White by Law: The Legal Construction of Race

White by Law is an example of critical race theory (CRT), an interdisciplinary field of study pioneered in the mid-1970s by Black American legal scholars, notably, Derrick Bell Jr., Kimberlé Crenshaw, and Patricia Williams. CRT emerged in response to the erosion of civil rights laws and persisting racial inequalities in the US. CRT is concerned with how social conceptions of race and ethnicity shape, and are shaped by, various social structures, including law, politics, and the media. Since 2020, conservative lawmakers have challenged CRT, introducing legislation banning its use in schools across several states (Gross, Terry. “From slavery to socialism, new legislation restricts what teachers can discuss.” 2022. npr.org.)

CRT makes five overarching claims: 1) Racism is ordinary, rather than aberrational; 2) White people will only support racial justice efforts if there is something positive in it for them (a theory of “interest convergence” developed by Bell); 3) Unlearning commonly held beliefs is possible through counter-storytelling, a necessary remedy given curriculum inequities in the American educational system; 4) White people have benefited from civil rights legislation, a point illustrated by the replacement of de jure segregation, or legally mandated segregation, by de facto segregation, where school segregation prevailed in spite of the law not requiring it; and 5) Race is a social construct, with no biological or natural basis (Delgado, Richard, et al. Critical Race Theory: An Introduction. 2nd edition. New York: New York University Press. 2012).

The Legal and Social Construction of Race is the central theme of White by Law, which explores the different ways law created race in the late 19th and early 20th century. Haney López’s focus on racial prerequisite cases reveals that courts struggled to define whiteness as scientists repudiated commonly held beliefs about the biological nature of race. Previous scholarship engaged with various aspects of race and law. For example, Bell’s Race, Racism, and American Law (1973) and A. Leon Higginbotham Jr.’s In the Matter of Color: Race and the American Legal Process: The Colonial Period (1978) are expansive studies of the legal burdens of Blackness in North America, from colonialism to the 20th century. However, both books treat race as natural categories (8 - 9). By contrast, Haney López argues that race is socially fashioned and that law plays a key role in this process. His approach builds on earlier work by critical race theorists, notably, Gerald Torres and Kathryn Milun, who studied attempts by the Mashpee tribe of Massachusetts to reclaim alienated lands in federal court (Gerald, Torres. Kathryn, Milun. “Translating Yonnondio by Precedent And Evidence: The Mashpee Indian Case.” 1990. www.scholarship.law.duke.edu.)

To proceed with the case, a district judge required that the Mashpee prove their existence as a “tribe” using a legal definition from 1901 that was both racist and antiquated. Unable to conform to legal notions of a racially pure “tribe’” with clear geographic boundaries, the Mashpee lost their bid to recover their lands. Torres and Milun not only recognized that race is not a fixed term, but emphasized the role of law in fashioning racial identity. Though narrowly focused, their research served as an important precedent for White by Law. Haney López’s text is the first systematic study of how law creates and maintains race, and remains a foundational text for students and scholars of CRT and US law.