White by Law: The Legal Construction of Race

Case law refers to legal rules created by judicial decisions. Alongside statutory law or legislative enactments, case law created and enforced rules that shaped the racial makeup of the American population.

Critical race theory emerged in the mid-1970s in response to the erosion of civil rights and persisting racial inequities after the passing of civil rights laws. Early critical race theorists were Black legal scholars who questioned how ideas about race and ethnicity shape law and various other aspects of society, and vice versa. In addition to challenging dominant views of race, racism, and racial injustice, CRT focuses on the interconnections between race, gender, class, and ableness. Haney López engages CRT in his discussion of the socially constructed nature of race and his emphasis on the role of law in these processes.

Derrick Bell Jr., an American legal scholar and civil rights activist, developed the theory of interest convergence in 1980, claiming that Black people only make civil rights advancements when their interests converge with those of white people. He cited Brown v. Board of Education (1952­–1954) as a key example. The desegregation of American schools increased the country’s political prestige during the Cold War. The interests of white and Black people diverged as the political context changed, leading to court cases and social practices that promoted de facto segregation. 

Jus soli is a Latin term that translates as “born soil.” It refers to the automatic granting of US citizenship to people born on US soil.

Naturalization refers to the granting of citizenship to lawful residents who meet specific requirements. Congress restricted naturalization to “white persons” in 1790, creating a racial prerequisite to citizenship that remained in place until 1952.