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(Cf. 1836 Declaration from Texas on “unfit to govern themselves,” etc., which is cited in briefs in In re Rodriguez.)

The prerequisite cases also naturalized Whiteness by linking cognitive and cultural traits to physical difference. The prerequisite courts tied temperament, culture, intellect, political sophistication, and so on to physical features, treating questions of behavior as innate elements of human biology rather than as aspects of acquired identity.^[16] Reconsider the justification offered by one court for the racial bar on Asian naturalization: “The yellow or bronze racial color is the hallmark of Oriental despotisms.”^[17] This language draws a direct link between race and political temperament, thereby making culture a function of racial rather than social variability. This view of race seems to undergird the prerequisite laws, rendering fitness for citizenship not a question of learned behavior but of innate predispositions. To see this, contrast the remark about “despotism” with the view commonly held at the turn of the century that the White race was, as a leading scholar put it, “peculiarly fitted for self-government. It submits its action habitually to the guidance of reason, and has the judicial faculty of seeing both sides of a question.”^[18] Whites qualified for citizenship because they were fit by nature for republican government; non-Whites remained perpetual aliens because they were inherently unfit for self-rule. Putative differences in temperament and culture were naturalized as “racial” differences.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 162.

 

1. ^[16]SMEDLEY, supra, at 27.↩
2. ^[17]Terrace v. Thompson, 274 F. 841, 849 (W.D.Wash. 1921).↩
3. ^[18]FRANCIS PARKMAN: REPRESENTATIVE SELECTIONS 380-82 (William Schram ed., 1938), quoted in THOMAS GOSSETT, RACE: THE HISTORY OF AN IDEA IN NORTH AMERICA 95 (1963).↩

The prerequisite cases show that race is a social construct fabricated in part by law. More than this, these cases specifically illuminate the construction of Whiteness, constituting that rare instance when White racial identity is unexpectedly drawn out of the background and placed abruptly in question. Moving away from legal theory, it is useful to ask what the prerequisite cases tell us about Whiteness. It may seem that these cases say relatively little, both because the courts failed to offer a developed definition of White identity, and also seemed to concern themselves much more with who was not White. In the end, however, it is exactly these practices that tell us most about the nature of White identity today, drawing into view both the maintaining technologies of transparency and the relational construction of White and non-White identity.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 155.

Non-Whites

Judges and legislators continue to participate in the legal construction of race, if for some only through the internalization [147] of socially prevalent racist beliefs. But what of non-legal actors? The role of nonlegal actors in the legal construction of race can be understood as a question about whether people obey or acquiesce to the law. To obey suggests a rational, considered relation to law in which the law coerces through threats and rewards that are evaluated and form the basis for decisions about how to act. Acquiescence suggests a more complex relationship with law, one in which the actor accepts the norms and assumptions underlying law as legitimate or at least binding, leading to behavior conditioned, not just through a rational calculus of rsisk and rewards, but through subscription to the normative world of the legal regime.^[67] This question of obedience or acquiescence among nonlegal actors is central to assessing the intractability of existing racial categories. If people merely obey the law, then altering laws might promise quick changes in racial construction; however, change might be more difficult if through a lifetime of acquiescence people have fully embraced the assumptions about races embedded in current laws. Questioning whether people obey or acquiesce to law takes on a significantly different character, however, when posed in a discussion about the role of people of color in the legal construction of race. In this context, the question becomes one of complicity: If rather than simply obeying the law we have acquiesced to it, are we complicitous in our own oppression?

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 146-147.

 

1. ^[67]KELMAN, supra, at 263.↩

California 1855 ‘Greaser’ Act — [using a Texas-origin ethnic slur… -CJ]

It may be that those who draft or support such laws are unconscious racists in the sense that they operate under the influence of prevalent social prejudices but cannot admit even to themselves the racial antipathies that rule their fears and desires. Racial prejudice against immigrants is a long tradition in the United States, evident [145] certainly in the prerequisite cases. In the western states, racial discrimination against Mexicans shares an almost equally long history, appearing for example in California’s 1855 “Greaser Act,” an antiloitering law that applied to “all persons who are commonly known as ‘Greasers’ or the issue of Spanish and Indian blood . . . and who go armed and are not peaceable and quiet persons.”^[65] Prejudice forms an established part of the contemporary social fabric, even as it stands in contradiction to society’s expressed disapproval of racial discrimination. Racial prejudice, though not consciously recognized as such, exists at a level that motivates and directs social hostility, giving it rhetorical and, more importantly, legal form.

The relative lack of intentional racial animus behind Proposition 187 and similar anti-immigrant legislation does not reduce the effect such laws have in maintaining and deepening racial hierarchies. […] Anti-immigrant laws, drawing on deep social beliefs in racial hierarchy, give effect to and entrench those same social beliefs.

The prevalence and daily material reinforcement of racist beliefs in our society ensure the continued legal construction of race in the form of ostensibly neutral but [146] actually discriminatory laws put forward by those who assure us, and are genuinely convinced of, their own good intentions.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 144-146.

 

1. ^[65]Act of April 30, 1855, ch. 175, § 2, 1855, Cal. Stat. 217, excerpted in ROBERT F. HEIZER and ALAN J. ALMQUIST, THE OTHER CALIFORNIANS: PREJUDICE AND DISCRIMINATION UNDER SPAIN, MEXICO, AND THE UNITED STATES 151 (1971).↩

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]

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).↩