White by Law: The Legal Construction of Race

“The social construction of the White race is manifest in the Court’s repudiation of science and its installation of common knowledge as the appropriate racial meter of Whiteness.”

Early prerequisite cases relied primarily on scientific evidence and commonly held beliefs to justify racial assignments. The courts rejected science when it stopped supporting the myth that race is natural. The court’s turn toward common knowledge underscores Haney López’s core argument: that race is socially constructed.

“From Ah Yup to Thind, the courts established not so much the parameters of Whiteness as the non-Whiteness of Chinese, South Asians, and so on.”

Prerequisite courts were key in The Legal and Social Construction of Race. They struggled to define whiteness because race is a social construct, rather than something that occurs in nature. Thus, the courts directed their attention to what whiteness is not, providing incoherent and often contradictory definitions of various racial categories.

“The racial composition of the U.S. citizenry reflects in part the accident of world migration patterns. More than this, however, it reflects the conscious design of U.S. immigration and naturalization laws.”

This addresses the two mechanisms for constructing race in the US: accident and conscious design. US demographics reflect migration patterns, many of which were accidental. The country’s racial makeup was also consciously created through state and federal court cases in the first part of the 20th century. The cases decided who qualified as “white persons” and who could be naturalized as citizens.

“In 1952, racial bars on naturalization came to an official end.”

Haney López calls attention to a key moment in US history: 1952—the year the country abandoned the racial prerequisite to citizenship. Courts had shaped the physical appearance and culture of the US since Congress instituted the “white person” prerequisite in 1790. Doing away with this expanded citizenship eligibility and reshaped the country’s demographics.

“The cases are disturbing because of the judges’ patent racism. The opinions are jarring in their willingness to express at the highest judicial levels derogatory views that today are almost universally condemned.”

Haney López discusses judicial racism and context. White male judges presided over all racial prerequisite cases. Their decisions and rationales reveal their racial biases, which reflect popular ideas about white superiority and non-white inferiority in contemporary American society, and The Value of Whiteness to White People.

“The task of deciding who was White may at first glance seem a simple one.

However, the evidence suggests otherwise.”

American courts struggled to define whiteness. Asian petitioners consistently failed to secure citizenship until 1890, when Gee Hop was allowed to naturalize. However, his citizenship was revoked five years later when he tried to reenter the country after a trip to China. Similarly, Rodriguez was afforded citizenship in 1897, despite being deemed non-white by the presiding judge. These two cases support Haney López’s argument that race is a legal and therefore social construct, not something based in nature.

“The prerequisite decisions from 1909 to 1923 are riven by contradictory results and rationales.”

Haney López describes the growing confusion of US courts seeking to define racial identities. Early prerequisite cases consistently ruled that Asians and mixed-race people were not white. In the early 20th century, however, courts deemed Armenians and Syrians “white persons” eligible for citizenship, even though they originate east of the Bosporus Strait, the official geographic border between Europe and Asia. Shifting and arbitrary definitions of whiteness once again highlight the fabricated nature of race.

“In Ozawa v. United States, the Court wrote that the term ‘white persons’ included ‘only persons of what is popularly known as the Caucasian race.’”

Ozawa is central to Haney López’s book as the first racial prerequisite case to reach the Supreme Court. The justices cited both science and commonly held belief in their rationale, the two most common arguments in these types of cases.

“Becoming White, then, is not an either/or proposition, but rather it is an uneven process, resulting in racial identities that change across contexts and time.”

Race has no basis in nature. Thus, the parameters of racial identities can change depending on time and context. Prerequisite courts redefined the boundaries of whiteness and non-whiteness over time. Similarly, southern Europeans were white for the purposes of naturalization, but racially inferior in the context of early 20th century American society.

“The prerequisite cases leave us with this: ‘white’ is common knowledge.

‘White’ is what we believe it is.”

Haney López reiterates that race is not based in nature, but on what law and society have decided. Racial criteria is arbitrary, self-contradictory, and mutable.

“The United States is ideologically a White country not by accident, but by design at least in part affected through naturalization and immigration laws.”

Instituting a racial prerequisite to citizenship allowed Congress to shape the demographics of the US. Barring some people from citizenship while favoring others had long-term effects, influencing both the types of people entering the country and the future gene pool.

“To say that law constructs races is also to say that races are the product of, not just the excuse for, violence.”

The law enforces rules through rewards, but most often through punishments. Petitioners in prerequisite cases could lose their freedom, property, and even their lives depending on how judges interpreted whiteness. The courts have been a prime institution of coercion, a form of state violence that continues today with armed immigration officers and border guards.

“The segregation that confirms racial differences was and is legally fashioned and legally maintained.”

Haney López discusses reification, or the process of making ideas material. Race is a construct, but through the law, it becomes real and self-perpetuating. The Jim Crow era enforcing racial segregation in the South ended in 1965, yet segregation continues in many arenas, including housing, education, and employment. Laws created and largely sustain the material effects of race.

“Judges and prosecutors are not immune to society’s pervasive depiction of minorities as prone to criminality and Whites as the victims rather than the perpetrators of crime.”

Unconscious bias plays an important role in the American judicial system. Few judges admit to the problem, but statistics reveal stark racial disparities in the application of laws, particularly sentencing practices in criminal cases.

“If rather than simply obeying the law we have acquiesced to it, are we complicitous in our own oppression?”

This explores the distinct but related notions of obedience and acquiescence. Obedience suggests a measured relationship to the legal system, whereby individuals comply with laws after evaluating threats and rewards. Acquiescence implies an internalization of racialized beliefs. For people of color, acquiescing to the law does not necessarily signal complicity in an oppressive system, as coercion, rather than collaboration, is the primary force driving inequity.

“Whiteness was so obvious to the judges it was transparent.”

Transparency is an important concept in Haney López’s book. For the judges in prerequisite cases, the obvious quality of whiteness inhibited their ability to articulate exactly what defines a white person. The tendency to remain blind to racialized aspects of white identity is pervasive among white people. Only by Probing the Content of White Identity can the country move toward racial justice.

“In order to get beyond racial beliefs, we must first be race-conscious.”

Claims of colorblindness are pervasive in the US. According to Haney López, colorblindness cannot bring an end to racial inequity. Race is deeply embedded in the American worldview. Simply ignoring it will not make it disappear.

“For society as a whole, dismantling the ideology of whiteness would be a key step towards racial justice.

Accepting whiteness as legitimate impacts everyone. Not only does whiteness require demonizing non-white people; it also forces white people to see themselves and others through the distorting lens of white supremacy. Deconstructing whiteness, then, is a necessary aspect of social justice.

“A race, once established in popular thought, does not take on a life of its own, independent from the surge of social forces. Instead, we continue to revitalize race at every moment, as a society, and, more pertinent to this discussion, as individuals.“

Haney López emphasizes the role of choice in dismantling whiteness. Race was constructed, notably through laws. As such, white people as individuals and communities can deconstruct it, if they choose.

“Whites are much more likely to embrace than dismantle their identity.”

Race has tremendous economic and social value for white people. Thus, when confronted with the falsity of race, many white people opt to entrench their racial identity, rather than undermine it.

“‘No matter how degraded their lives, white people are still allowed to believe that they possess the blood, the genes, the patrimony of superiority.’”

Andrew Hacker, an American political scientist, addresses the importance of whiteness to white people. Studies shows that white Americans find it comforting to view Black people as subordinate. The existence of a lesser class provides solace to even the most downtrodden white person.

“Race will remain, as it long has been, supremely color-coded.”

Expanding definitions of whiteness to incorporate people and groups who were previously excluded will not bring about social justice. Race is color-coded. Emerging socio-racial definitions of race, which focus on wealth and professional achievement, continue to exclude people with dark skin.

“The embrace of colorblindness by the conservative Court has converted our vaunted constitutional commitment to racial equality into a tool for preserving a racial status quo of continued white dominance.”

Colorblindness is the most prevalent racial ideology among white people in the US. Conservative members of the Supreme Court have used colorblind rhetoric to maintain white racial dominance. With its insistence on race neutrality, colorblindness limits race-conscious remedies to discrimination.