Fair Use Blog

Immigration laws targeting presumptively Latinx immigrants serve as Haney Lopez’s chief example of facially neutral laws that nevertheless have a racially disparate impact. / WBL 141ff

The proposed constitutional amendment to repeal the [142] Citizenship Clause of the Fourteenth Amendment in order to deny birthright citizenship to children born in the United States to undocumented persons exemplifies current efforts to write facially neutral laws with racially discriminatory effects.^[54] So does California’s Proposition 187, the “Save Our State” (S.O.S.) initiative, which makes undocumented persons and their children ineligible for public social services ranging from primary education to non-emergency doctor’s visits and prenatal care.^[55] Approved in 1994 by a two-to-one margin but currently blocked by a series of court challenges, S.O.S. is being hailed by some national leaders as a model for the entire country. Its success dramatically confirms the role of unconscious racism in the legal construction of race.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 141ff.

 

1. ^[54]H.R.J. Res. 129, 103d Cong., 1st Sess. (1993). See chapter 2.↩
2. ^[55]Proposition 187: Text of Proposed Law, CALIFORNIA BALLOT PAMPHLET, GENERAL ELECTION, NOVEMBER 8, 1994, at 91.↩

Evolution of ‘white’ from 1790s to 1890s – ‘sociohistorical boundary crossing’ of legal terms. / WBL 126-7.

In addition to legitimating race, legal rules operate as an idea-system to construct races in a second way. Though race as a social concept has some autonomy, it is always bounded in its meanings by the local setting. Laws help racial categories to transcend the sociohistorical contexts in which they develop. For example, the original prerequisite statute was written in 1790, when popular conceptions of race on the eastern seaboard of North America encompassed only Whites, Native Americans, and Blacks. As a legal restriction on naturalization, however, the “white person” prerequisite of 1790 was imposed on Bhagat Singh Thind on the West Coast of the United States in 1920. It is most unlikely that those who wrote the first prerequisite law intended either to include or to exclude South Asians, for that group almost certainly existed outside the realm of their world knowledge. […] Nevertheless, partially by its institutionalization in law, the category of ‘white persons’ transcended the local boundaries of time, place, and imagination in which it had one meaning, persisting and expanding into [127] remarkably different locales, where, though with a facade of continuity, it took on various new definitions.

This sociohistorical boundary crossing is normal to law.. One of the defining elements of law is its universal aspiration, its will to apply equally in all cases and across all situations. However, the pursuit of universality in law can make it a profoundly conservative force in racial construction. Here, the role of precedent is particularly important. Racial lines are prevented from shifting to the extent that past racial definitions control decisions about race in the present. “Reasoning by analogy to precedent cases creates a false historicity in that it perpetually reclaims the past for the present: in theory a dispute in 1989 can be resolved by reference to cases from 1889 or 1389.”^[23] Of course, the dead hand of the past does not completely control the present; precedent is often manipulated, and such manipulation is central to legal change. Nevertheless, by giving great weight to superannuated racial definitions, precedent keeps alive restrictive notions of race.

Consider the Mashphee Indian case. [… difficulty of proving they were a “tribe” according to Supreme Court standards from 1901…] [128] In this way the use of precedent in law provides a conserving, stabilizing force in racial construction by preserving the relevance of past racial definitions, thereby allowing such categories to transcend their local settings.

Law frees racial categories from their local settings in another, quite distinct sense, as well: it occasionally provides new language with which to construct racial differences. Legal terms that do not refer explicitly to race may nevertheless come to serve as racial synonyms, thus expanding in often unpredictable ways the form and range of racial categorization. This possibility is evident in the prerequisite cases, though it is much more relevant to the legal construction of race today. The prerequisite laws spawned a new vocabulary by which to mark racial difference, the phrase “alien ineligible to citizenship.” Congress and a number of states used this phrase to avoid the Fourteenth Amendment’s bar against invidious race-based discrimination. In 1922 Congress proscribed the marriage of U.S. citizen women to non-White aliens by providing that “any woman citizen who marries an alien ineligible to [129] citizenship shall cease to be a citizen of the United States.^[28] Two years later Congress relied on the same phrase to ban unwanted races from the country, mandating that “[n]o alien ineligible to citizenship shall be admitted to the United States” except under restrictive circumstances.^[29] [… use in alien land laws, struck down eventually in Oyama …] Legal language can allow ideas of race to transcend their historical context through precedent, and also can contribute to the construction of race by providing a new vocabulary with which to take note of, stigmatize, and penalize putative racial differences. Law thus frees racial categories not only from contextual bounds, but also from the bounds society places on the use of race. […] As will be emphasized later, the law’s ability to provide seemingly neutral synonyms for race may be one [130] of the most important legal mechanisms in current processes of racial construction.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 126-130.

 

1. ^[23]Carol Greenhouse, Just in Time: Temporality and the Cultural Legitimation of Law, 98 YALE L.J. 1631, 1640 (1989).↩
2. ^[28]Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.↩
3. ^[29]Act of May 26, 1924, ch. 190, § 13(c), 43 Stat. 153.↩

Irrespective of the use of violence, however, it may seem that at this coercive level laws construct races only at the margins. Granting that races are social constructions, some may suggest that legal rules patrol only the borders between races, resolving just those rare cases not already clearly defined within the underlying social systems of racial division. Arguably, only the person not clearly White or Black has her race determined in a prerequisite case or by her neighborhood. However, a focus on the coercive aspect of law seems to explain more than just the legal construction of race at the margins. Certainly the prerequisite cases legally established the legal identity of groups we now regard as firmly at the core of racial categories, for example the Japanese, and Jim Crow laws were indispensable in maintaining and even extending the social differentiation established through the slave codes and threatened during Reconstruction. Nevertheless, the explanatory power of this model should be questioned. How does law-as-coercion explain the continuing significance of race in a [123] postsegregation era? If races have been created through coercion, why hasn’t the end to the legal enforcement of racial differences been followed by a collapse in racial systems? Or, what can such a model tell us about the prevalent belief that races are legally fashioned? If races have been imposed, why is it that the vast majority of people embrace race so willingly? And why do these same people so vigorously deny that they have been coerced into a racial identity? Races are much more deeply embedded in our society than a theory of law-as-coercion would seem to explain. If law is a full participant in the construction of races, it must fashion races through some additional mechanism besides simple direct behavioral control.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 122ff.

It is crucial to note that, in constructing race, legal rules operate through violence. The legal system enforces rules occasionally through rewards but most often through the threat of application of harm. Such potential or actual harm is often difficult to see. For example, the prerequisite cases seem at first glance to be nothing more than dry exegetical readings of ambiguous legal texts in which it is impossible to find even obscure allusions to coercive force. Nevertheless, violence is there. “A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life,” Robert Cover correctly insists, adding, “[w]hen [judges] have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”^[11] In the prerequisite cases, we may assume violence, probably literally in the corporeal forms of immigration officers and border guards, certainly figuratively in the form of constrained lives and truncated hopes, and occasionally obviously in the form of suicide. [122] In the law of race more generally, violence is manifest in slavery, in Jim Crow segregation, in police brutality, in the discriminatory enforcement of criminal laws, in the dispossession of Native American land rights, in the internment of people of Japanese descent, in the failures of the law to provide equal justice or to protect against discrimination. In all of this violence, the law not only relied on but also constructed racial distinctions. To say that law constructs races is also to say that races are the product of, not just the excuse for, violence. James Baldwin remarks that “no one was white before he/she came to America. It took generations, and a vast amount of coercion, before this became a white country.”^[12] Courts may have been the principal institutional forum for that vast coercion, and laws its principal form of civilized expression.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 121ff.

 

1. ^[11]Robert Cover, Violence and the Word, 95 YALE L.J. 1601 (1986).↩
2. ^[12]James Baldwin, On Being ‘White’ … And Other Lies, ESSENCE, April 1984, at 90.↩

According to Haney López, pp. 116-123, “Law as Coercion,” in its coercive aspect law serves to create racial categories in three chief ways:

1. Legal rules have shaped physical appearances
2. Positive law has created the racial meanings that attach to physical features
3. Positive law establishes the material conditions which often code for race.

[WBL p. 119]

Second, positive law has created the racial meanings that attach to physical features. In a sense, this is the heart of the prerequisite cases, which at root embody the efforts of the courts to inscribe on the bodies of individual applicants the term “White” or “non-White.” These cases established as legal precedent the racial identities of the various faces and nationalities entering the United States at the turn of the century. Again, however, the racial prerequisites to naturalization are not the only laws that explicitly defined racial identities. Almost every state with racially discriminatory legislation also established legal definitions of race. It is no accident that the first legal ban on interracial marriage, a 1705 Virginia act, also constituted the first statutory effort to define who was Black.^[6] Regulating or criminalizing behavior in racial terms required legal definitions of race.^[7] Thus, in the years leading up to Brown, most states that made racial distinctions in their laws provided statutory racial definitions, almost always focusing on the boundaries of Black identity. Alabama and Arkansas defined anyone with one drop of “Negro” blood as Black; Florida had a one-eighth rule; Georgia referred to “ascertainable” non-White blood; Indiana used a one-eighth rule; Kentucky relied on a combination of any “appreciable admixture” of Black ancestry and a one-sixteenth rule; Louisiana did not statutorily define Blackness but did adopt via its Supreme Court an “appreciable mixture of negro blood” standard; Maryland used a “person of negro descent to the third generation” test; Mississippi combined an “appreciable amount of Negro blood” and a one-eighth rule; Missouri used a one-eighth test, as did Nebraska, North Carolina, and North Dakota; Oklahoma referred to “all persons of African descent,” [119] adding that the “term ‘white race’ shall include all other persons”; Oregon promulgated a one-fourth rule; South Carolina had a one-eighth standard; Tennessee defined Blacks in terms of “mulattoes, mestizos, and their descendants, having any blood of the African race in their veins”; Texas used an “all persons of mixed blood descended from negro ancestry” standard; Utah law referred to mulattos, quadroons, or octoroons; and Virginia defined Blacks as those in whom there was “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.^[8]

The very practice of legally defining Black identity demonstrates the social, rather than the natural basis of race. Moreover, these competing definitions demonstrate that the many laws that discriminated on the basis of race more often than not defined, and thus helped to create, the categories they claimed only to elucidate. In defining Black and White, statutory and case law assisted in fashioning the racial significance that by themselves drops of blood, ascertainable amounts, and fractions never could have. In the name of racially regulating behavior, they created racial identities.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 118-119.

1. ^[6]Finkelman, supra, at 2088. According to Finkelman, “This act also made the first stab at defining who was actually black. The law declared that anyone who was a child, grandchild, or great grandchild of a black was a mulatto under the statute. this meant that persons who were of one-eighth African ancestry were black for purposes of Virginia law.” See generally A. Leon Higginbotham, Jr., and Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L. J. 1967 (1989).↩
2. ^[7]See Raymond T. Diamond and Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 265 (1983) They argue that “[s]tate supported or initiated discrimination required racial definitions. The law could not separate what it failed to categorize.”↩
3. ^[8]Paul Finkelman, The Color of Law, 87 NW. U. L. REV. 937, 955 n. 96 (citing PAUL MURRAY, STATES’ LAWS ON RACE AND COLOR [1950]).↩

Naturalization and immigration laws are not, however, the only or even the most important laws that have influenced the appearance of this country’s populace. More significant may be the antimiscegenation laws, which appeared in the statutes of almost every state in the union until they were struck down by the Supreme Court in 1967.^[3] These laws purported merely to separate the races. In reality, they did much more than this: they acted to prevent intermixture between peoples of diverse origins so that morphological differences that code as race might be more neatly maintained.^[4] Antimiscegenation laws, like lynch laws more generally, sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social domination. As Martha Hodes argues, “racial hierarchy could be maintained primarily through the development of a rigid color line: if blacks and whites did not have children together, then racial categories could be preserved.”^[5] Cross-racial procreation erodes racial differences by producing people whose faces, skin, and hair blur presumed racial boundaries. Forestalling such intermixture is an exercise in racial domination and subordination. It is also, however, an effort to forestall racial blurring. Antimiscegenation laws [118] maintained the races they ostensibly merely separated by insuring the continuation of “pure” physical types on which notions of race are based in the United States.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 117ff.

1. ^[3]The Supreme Court declared antimiscegenation laws unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). See generally ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW (1972).↩
2. ^[4]See VIRGINIA DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA, 56-62 (1986); Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2081-87 (1993).↩
3. ^[5]Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War, 3 J. OF THE HIST. OF SEXUALITY 402, 415 (1993).↩

Contemplated Servile Rising in Texas.

The Galveston News publishes the following in relation to the late contemplated negro insurrection in Colorado county:

Columbus, Colorado Co., Sept. 9, 1856

The object of this communication is to state to you all the facts of any importance connected with a recent intended insurrection.

Our suspicions were aroused about two weeks ago, when a meeting of the citizens of the county was called, and a committee of investigation appointed to ferret out the whole matter, and lay the facts before the people of the county for their consideration. The committee entered upon their duties, and in a short time, they were in full possession of the facts of a well-organized and systematized plan for the murder of our entire white population, with the exception of the young ladies, who were to be taken captives, and made the wives of the diabolical murderers of their parents and friends. The committee found in their possession a number of pistols, bowie-knives, guns, and ammunition. Their passwords of organization were adopted, and their motto, “Leave not a shadow behind.”

Last Saturday, the 6th inst., was the time agreed upon for the execution of their damning designs. At a late hour at night, all were to make one simultaneous, desperate effort, with from two to ten apportioned to nearly every house in the county, kill all the whites, save the above exception, plunder their homes, take their horses and arms, and fight their way on to a “free State” (Mexico).

[504] Notwithstanding the intense excitement which moved every member of our community, and the desperate measures to which men are liable to be led on by such impending danger to which we have been exposed by our indulgence and lenity to our slaves, we must say the people acted with more caution and deliberation than ever before characterized the action of any people under similar circumstances.

More than two hundred negroes had violated the law, the penalty of which is death. But, by unanimous consent, the law was withheld, and their lives spared, with the exception of three of the ringleaders, who were, on last Friday, the 5th inst., at 2 o’clock P.M., hung, in compliance with the unanimous voice of the citizens of the county.

Without exception, every Mexican in the county was implicated. They were arrested, and ordered to leave the county within five days, and never again to return, under the penalty of death. There is one, however, by the name of Frank, who is proven to be one of the prime movers of the affair, that was not arrested; but we hope that he may yet be, and have meted out to him such reward as his black deed demands.

We are satisfied that the lower class of the Mexican population are incendiaries in any country where slaves are held, and should be dealt with accordingly. And for the benefit of the Mexican population, we would here state, that a resolution was passed by the unanimous voice of the county, forever forbidding any Mexican from coming within the limits of the county.

Peace, quiet, and good order are again restored, and, by the watchful care of our Vigilance Committee, a well-organized patrol, and good discipline among our planters, we are persuaded that there will never again occur the necessity of a communication of the character of this.

Yours respectfully,

John H. Robson, H.A. Tatum, J.H. Hicks.

}

Cor. Com.

The Galveston News, of the 11th nst. has also the following paragraph:

“We learn, from the Columbian Planter, of the 9th, that two of the negroes engaged in the insurrection at Columbus were whipped to death; three more were hung last Friday, and the Mexicans who were implicated were ordered to leave the country. There was no proof against these last beyond surmises. The band had a deposit of arms and ammunition in the bottom. They had quite a number of guns, and a large lot of knives, manufactured by one of their number. It was their intention to fight their way to Mexico.”

[From the True Issue, Sept. 5]

We noticed last week the rumor that a large number of slaves, of Colorado county, had combined and armed themselves for the purpose of fighting their way into Mexico. Developments have since been made of a much more serious nature than our information then indicated. It is ascertained that a secret combination had been formed, embracing most of the negroes of the county, for the purpose of not fleeing to Mexico, but of murdering the inhabitants–men, women, and children promiscuously. To carry out their hellish purposes, they had organized into companies of various sizes, had adopted secret signs and passwords, sworn never to divulge the plot under the penalty of death, and had elected captains and subordinate officers to command the respective companies. They had provided themselves with some fire-arms and home-made bowie-knives, and had appointed the time for a simultaneous movement. Some two hundred, we learn, have been severely punished under the lash, and several are now in jail awaiting the more serious punishment of death, which is to be inflicted to-day. One of the principal instigators of the movement is a free negro, or one who had been permitted to control his own time as a free man.

Frederick Law Olmsted, A Journey Through Texas; or, a Saddle-Trip on the Southwestern Frontier (New York: Dix, Edwards & Co, 1857), 503-504.

 

“the lower class or ‘Peon’ Mexicans… taking the likeliest negro girls for wives” (Matagorda Co.) ‘a greaser’ / JTT p. 502

MATAGORDA.–The people of Matagorda county have held a meeting and ordered every Mexican to leave the county. To strangers this may seem wrong, but we hold it to be perfectly right and highly necessary; but a word of explanation should be given. In the first place, then, there are none but the lower class or “Peon” Mexicans in the county; secondly, they have no fixed domicile but hang around the plantations, taking the likeliest negro girls for wives; and, thirdly, they often steal horses, and these girls, too, and endeavor to run them to Mexico. We should rather have anticipated Lynch law, than the mild course which has been adopted.

---

A VOTER.–As an evidence of the capacity of the Mexican population to discriminate in matters of State importance, it may be mentioned that at one of the polls held in this city, a greaser, who was challenged, was asked incidentally by a bystander, “who he voted for, for Governor?”

“Sublett,” was the reply.

“Who for Lieutenant-Governor?”

“Sublett,” rejoined the Mexican.

“Who for Representative?”

“Sublett,” again muttered this bombshell freeman.

Voters like that swelled the Anti American majority in Bexar. Boast of your triumphs, gentleman Bombshells.

Frederick Law Olmsted, A Journey Through Texas; or, a Saddle-Trip on the Southwestern Frontier (New York: Dix, Edwards & Co, 1857), 502.

Here’s the rules.

1. Pick a quote of one or more paragraphs from something you’ve read, in print, over the course of the past week. (It should be something you’ve actually read, and not something that you’ve read a page of just in order to be able to post your favorite quote.)

2. Avoid commentary above and beyond a couple sentences, more as context-setting or a sort of caption for the text than as a discussion.

3. Quoting a passage doesn’t entail endorsement of what’s said in it. You may agree or you may not. Whether you do isn’t really the point of the exercise anyway.

Here’s the quote. This is from my class readings, Herodotus (c. 449 BCE), The Histories (trans. G.C. Macaulay and Donald Lateiner); I read it during one of my study jags over at The Coffee Cat. It’s Herodotus’s version of the end of the life of Cyrus the Great, the first King of Kings of the Persian Empire. At this time in his life, Cyrus had gained supreme power over the Persians, taken power over the old Median Empire, and set out on decades of large-scale conquest, subjugating nearly all of the peoples in Asia Minor, the Levant, and Mesopotamia. He then went with his army to the river Aras, in the hopes of expanding his conquest onto the Central Asian plains.

201. When [Babylon] also had been subdued by Cyrus, he desired to bring the Massagetai into subjection to himself. This nation is reputed to be both great and warlike, and to dwell towards the East and the sunrise, beyond the river Araxes and over against the Issedonians. Some say that this nation is of the Scythian race.

. . . 205. Now the ruler of the Massagetai was a woman, who was queen after the death of her husband, and her name was Tomyris. To her Cyrus sent and wooed her, pretending that he desired to have her for his wife. Tomyris, understanding that he was wooing not herself but rather the kingdom of the Massagetai, rejected his approaches. Cyrus after this, as he made no progress by craft, marched to the Araxes and campaigned openly against the Massagetai, forming bridges of boats over the river for his army to cross, and building towers upon the vessels which gave them safe passage across the river.

[. . . The captive king Croesus advised Cyrus to leave behind part of his army, along with preparations for a feast with strong wine, as a snare for the Massagetai warriors, who had no experience with Persian drinks.]

211. . . . After this when Cyrus and the sound part of the army of the Persians had marched back to the Araxes, and those unfit for fighting had been left behind, then one-third of the army of the Massagetai attacked and proceeded to kill, not without resistance, those whom the army of Cyrus had left behind. Seeing the feast that was set forth, when they had overcome their enemies they lay down and feasted, and being satiated with food and wine they went to sleep. Then the Persians came upon them and slew many of them, and took alive many more even than they slew, and among these the son of the queen Tomyris, who was leading the army of the Massagetai; and his name was Sparagapises.

212. She then, when she heard that which had come to pass with the army and also the things concerning her son, sent a herald to Cyrus and said: Cyrus, insatiable of blood, do not celebrate too much what has come to pass, namely because with that fruit of the vine, with which you fill yourselves and become so mad that as the wine descends into your bodies, wicked words float up upon its stream,—because setting a snare, I say, with such a drug as this you overcame my son and not by valor in fight. Now therefore hear this my word, giving you good advice:—Restore to me my son and depart from this land without penalty, triumphant over a third part of the army of the Massagetai. If you shall not do so, I swear to you by the Sun, who is lord of the Massagetai, that surely I will give you your fill of blood, blood-thirsty though you are.

213. These words were reported to him, but Cyrus disregarded them; and the son of the queen Tomyris, Sparagapises, when he sobered up and he realized his plight, entreated Cyrus that he might be loosed from his chains and gained his request. So soon as his hands were free, he put himself to death. 214. He then ended his life in this manner; but Tomyris, as Cyrus did not listen to her, gathered together all her power and joined battle with Cyrus. This battle I judge to have been the fiercest of all the battles fought by Barbarians,^[1] and I am informed that it happened thus:—first, it is said, they stood apart and shot at one another, and afterwards when their arrows were all shot away, they fell upon one another and engaged in close combat with their spears and daggers; and so they continued their fight with one another for a long time, and neither side would flee; but at last the Massagetai got the better in the fight. The greater part of the Persian army was destroyed there upon the spot, and Cyrus himself died there, after he had reigned twenty-nine years. Then Tomyris filled a skin with human blood and had search made among the Persian dead for the corpse of Cyrus. When she found it, she let his head down into the skin and doing outrage to the corpse she said this over it: Though I yet live and have overcome you in fight, nevertheless you have destroyed me by taking my son with craft. I nevertheless according to my threat will give you your fill of blood. There are many tales told about the end of Cyrus, but this one is to my mind the most worthy of belief.

— Herodotus (c. 449 BCE), The Histories, Book I §§ 212-213. (Trans. G.C. Macaulay and Donald Lateiner.)

1. ^[1] [Sic. By Barbarians, Herodotus simply means nations that do not speak Greek. —CJ] ↩