White by Law: The Legal Construction of Race

Chapter 4 focuses on the Supreme Court’s first racial prerequisite cases: Ozawa v. United States and United States v. Thind, excerpts of which are reproduced in the Appendix. Ozawa cited scientific evidence and common knowledge in its ruling, while Thind relied only on common knowledge. The Court’s move away from science underscores the falsity of natural ideas of race, exposing race as a socially constructed product.

Ozawa

Takao Ozawa, a Japanese-born man, moved to California in 1894 to pursue his studies at the University of California, Berkeley. In 1914, after moving to Hawaii, he applied for naturalization. Ozawa penned a legal brief outlining his suitability for citizenship, including his and his children’s ties to American churches and schools, his use of the English language at home, his 28 years on American soil, his choice of an American-educated wife, and his lack of ties to Japanese organizations (57). Despite his eloquent plea, the US District Attorney for Hawaii opposed Ozawa’s application on racial grounds.

Ozawa pursued citizenship for eight years until his case reached the Supreme Court in 1922. The Court rebutted Ozawa’s multipronged argument. For example, Ozawa claimed his skin was white in color, citing anthropological studies that described Japanese people as being lighter skinned than Italian, Spanish, and Portuguese individuals (58). In response, the Court asserted that skin color did not correlate well with racial identity. Contemporary science supported this conclusion. Indeed, more and more scientists understood that there were no clear divisions among the races, and that morphological attributes depended on a wide range of factors, including heredity and environment. The Court in Ozawa articulated this point, asserting that the color test alone would “‘result in a confused overlapping of races and a gradual merging of one into the other, without any practical line of separation’” (59).

Late 19th- and early 20th-century scientists increasingly questioned the credibility of race-based taxonomies. They recognized that skin color and other physical features did not reliably indicate race. Thus, humanity could not be divided into races based on physical attributes. Ozawa’s argument that his skin was white also undermined the idea that racial divisions are valid, which should have prompted the Court to reconsider the “white persons” eligibility requirement. The Court ignored the argument’s implications and denied Ozawa’s petition. The allowed prejudices against the Japanese to continue unchecked, laying the foundation for Japanese internment camps in the Second World War. Congress lifted the bar on Japanese eligibility to naturalization 30 years after Ozawa; yet to this day, many Americans characterize Asian Americans as non-white foreigners.

Thind

In 1913, Bhagat Singh Thind, a man born in India, arrived in the US as part of a new wave of immigrants from Asia. He pursued naturalization in 1920. His case differs from Ozawa’s; he was Indian, a group anthropologists classified as Caucasian, not Mongolian. This distinction formed the foundation of Thind’s case, which he won on October 18,1920.

A Washington district court cited three case precedents in its ruling, all of which followed Najour. The federal government appealed the ruling. In 1923, the case went before the Supreme Court. The Court referred to Thind’s birthplace, caste, religion, and blood. It did not dispute that Thind was Caucasian by scientific standards, but cited contemporary belief or common knowledge to undermine his white identity: “‘It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today’” (63).

The Court eschewed its own equation of Caucasian and white in Ozawa, in addition to rejecting contemporary, scientific beliefs about race more broadly. Following a discussion of the notion of an Aryan race, the Court found that the word Caucasian was general and ill-defined. Moreover, it cited Keane’s broad definition of the Caucasian race as evidence that science could not be trusted in matters of race. Thind ended Caucasian-based arguments in racial prerequisite cases. It also made naturalization legally impossible for Indians. The federal government stripped many Indian Americans of their citizenship in the wake of Thind. The public response to the ruling was generally positive, reflecting the racism of large swathes of America, including members of the Court.

Race and Nature

This section addresses two underlying issues in Ozawa and Thind: race and nature. Studying the cases in tandem is instructive because they had the same justices and judicial author, in addition to occurring months apart. The dilemma facing the Court was whether to preserve or undermine the concept of a white race. The Court understood that all but one decision after Najour relied on science and favored petitioners. On the surface, the Court was deciding on the evidentiary weight of science and common knowledge. On a more fundamental level, however, it was ruling on whether race was natural or a social construct.

Haney López posits that racial prejudice prompted the Court to reject science-based definitions of race, citing the Court’s rationales. In Ozawa, science and common knowledge aligned, allowing the Court to rely on science. In contrast, science and popular belief diverged in Thind, leading the Court to reject science. The Court rightly questioned the etymology of the term Caucasian in Thind, but it did so to maintain, rather than to challenge, the social construction of race. Ozawa and Thind suggest that the Court was committed to maintaining popular beliefs about the existence of different races and racial hierarchies.

Another dilemma in Ozawa and Thind was preserving or destabilizing the concept of whiteness. Scientists were increasingly challenging whiteness as a racial category. Despite these advancements, the Court held that race was self-evident and easily apparent in the natural world. They embraced science when it supported this belief, but rejected it when it contradicted it. Both law and science are part of culture and society and reflect social beliefs and practices. Taxonomies such as plant, animal, Black, and white are social conventions created to describe the material world. Nothing about race is based in nature. It is entirely a social construct. In the early 20th century, however, the courts believed exactly the opposite. As such, their rationales in racial prerequisite cases, such as In re Feroz Din, reveal an open hostility to science. As the decision states:

This applicant for citizenship is a typical Afghan and native of Afghanistan. He is readily distinguishable from “white” persons of this country, and approximates Hindus. The conclusion is that he is not a white person. What ethnologists, anthropologists, and other so-called scientists may speculate and conjecture in respect to races and origins may interest the curious and convince the credulous, but it is of no moment in arriving at the intent of Congress in the statute aforesaid. (70)

Scientists today have largely abandoned the idea that race is natural, with most agreeing that it has no biological basis. However, naturalistic notions of race persist in law and common knowledge. Congress, for instance, recently penned a statute linking race to biological descent and physical characteristics (71). Similarly, in a 1987 case, the Supreme Court relied on a biological understanding of race to determine whether a man of Iraqi descent could be compensated for racial discrimination.

Social Construction of Race

Race is a fiction created and preserved by society, including the courts. Najour and Ozawa stressed the social aspects of race, not pigmentation. Najour determined that a dark-skinned person was white, while Ozawa denied white status to a light-skinned person.

From the start, courts acknowledged that racial categories changed over time. In 1790, for example, Italians, Greeks, and Slavs were considered non-white. By the early 20th century, however, their racial status had changed, a shift reflecting evolving social biases. Whiteness is a construct, a mutable artifact inextricably tied to historical moments. In Haney López’s words: “White is common knowledge. White is what we believe it is” (76).