White by Law: The Legal Construction of Race

Chapter 2 addresses the role of the law in the racial makeup of the American populace. Haney López argues that although the country’s racial composition reflects global migration patterns, it is primarily the product of conscious design by law makers. Federal law restricted immigration based on race from the 1880s until 1965. In 1882, for example, Congress passed the Chinese Exclusion Act, preventing Chinese laborers from entering the country for 10 years. Congress expanded the act to include all Chinese people in 1884 before implementing it indefinitely. In the same period, Congress also passed a bill barring Black people from immigrating to the US. (The bill stalled in the House after intensive lobbying by special interest groups).

In 1921, Congress implemented temporary quotas privileging immigration from Western and Northern Europe, making the quotas permanent with the National Origin Act of 1924. During the Great Depression, federal immigration officials targeted Mexican immigrants with roundups and mass deportations, resulting in the expulsion of roughly 500,000 people, more than half of them US citizens. In 1954, another one million Mexicans were deported.

Immigration reform led to the removal of racial restrictions on immigration in 1965. That year, Congress abolished the National Origin Act and the Immigration Act of 1917 or the Asiatic Barred Zone, which targeted Asian individuals and prevented them from immigrating to America. However, Congress upheld the Chinese Exclusion Act, which remains law today. Racial discrimination continues in current immigration law. For example, Congress has enacted provisions to encourage Irish immigration, while failing to act on the backlog of immigration petitions from a variety of Asian countries, including China, South Korea, and India. These practices are of a piece with past discriminatory immigration laws.

Birthright Citizenship

Most people acquire their citizenship by birth, not through naturalization. Under birthright citizenship, or jus soli, all people born within a country’s borders are automatically citizens. In the US, this initially did not include people of color. For example, the Dred Scott decision of 1857 declared that Black people, both free and enslaved, could never be citizens because they were inferior (29). The 14th Amendment of 1868 broadened jus soli, yet some people of color remained excluded, namely, Native American individuals and US-born children of aliens, or people born outside of the US who don’t possess immigration documentation. Only with US v. Wong Kim Ark (1898) did US-born children of noncitizens gain citizenship rights. Jus soli was fully applied to all those born in the US, including Indigenous Americans, with the Nationality Act of 1940.

Efforts to restrict birthright citizenship continued despite the passing of the Nationality Act. During his tenure as Governor of California from 1983 to 1991, Pete Wilson supported the return of race-based immigration policies, calling on the federal government to amend the constitution to prevent the children of undocumented immigrants from receiving citizenship (30). Calls to change the 14th Amendment continue in Congress, with broad support from the American populace. Efforts to control the southern border as of the time this guide was written in 2022 reveal that racial discrimination remains a strong part of immigration rhetoric and policy.

Naturalization

Article 1 of the US Constitution gave Congress the authority to determine who could become a naturalized citizen. From the beginning, Congress used this leeway to place racial restrictions on naturalization. In 1790, months after the Constitution was ratified, Congress limited naturalized citizenship to free white people who had lived in the US for at least two years.

There are two phases to racial prerequisites in the US, each about 80 years long. The first phase (1790–1870) only allowed white people to naturalize. The second (1870–1952) saw the slow fading of racial restrictions. Black people gained the right to naturalize in 1870, but most other non-white people were barred from naturalizing for decades more. In 1940, Congress extended naturalization to “‘races indigenous to the Western Hemisphere’” (32). In 1943, it struck down the ban on Chinese people. In 1946, naturalization opened to people from India and the Philippines. The incremental move away from white-only immigration policies was complete in 1952, when Congress removed all racial bars on naturalization.

Before 1952, women were subject to specific naturalization rules. In the 19th century, a foreign woman’s eligibility depended on her marital status. In 1855, Congress ruled that a foreign woman automatically became a citizen if she married a US citizen, or if her husband became a naturalized citizen. However, this rule only applied to white women. An otherwise qualified foreign women was ineligible if she married a nonqualified man, further restricting women’s choices. The interplay of gender and racial restrictions also impacted women who were US citizens, who were stripped of their citizenship if they married foreign men. The gendered laws dictating women’s ability to naturalize explains why racial prerequisite cases are exclusively male.