Whiteness as Property
Harvard Law Review
Volume 106, Number 8 (June 1993)
pages 1707-1791
Cheryl I. Harris, Rosalinde and Arthur Gilbert Professor in Civil Rights and Civil Liberties
School of Law
University of California, Los Angeles
Issues regarding race and racial identity as well as questions pertaining to property rights and ownership have been prominent in much public discourse in the United States. In this article, Professor Harris contributes to this discussion by positing that racial identity and property are deeply interrelated concepts. Professor Harris examines how whiteness, initially constructed as a form of racial identity, evolved into a form of property, historically and presently acknowledged and protected in American law. Professor Harris traces the origins of whiteness as property in the parallel systems of domination of Black and Native American peoples out of which were created racially contingent forms of property and property rights. Following the period of slavery and conquest, whiteness became the basis of racialized privilege—a type of status in which white racial identity provided the basis for allocating societal benefits both private and public in character. These arrangements were ratified and legitimated in law as a type of status property. Even as legal segregation was overturned, whiteness as property continued to serve as a barrier to effective change as the system of racial classification operated to protect entrenched power.
Next, Professor Harris examines how the concept of whiteness as property persists in current perceptions of racial identity, in the law’s misperception of group identity and in the Court’s reasoning and decisions in the arena of affirmative action. Professor Harris concludes by arguing that distortions in affirmative action doctrine can only be addressed by confronting and exposing the property interest in whiteness and by acknowledging the distributive justification and function of affirmative action as central to that task.
TABLE OF CONTENTS
- I. INTRODUCTION
- II. THE CONSTRUCTION OF RACE AND THE EMERGENCE OF WHITENESS AS PROPERTY
- A. Forms of Racialized Property: Relationships Between Slavery, Race, and Property
- 1. The Convergence of Racial and Legal Status
- 2. Implications for Property
- B. Forms of Racialized Property: Relationships Between Native American Land Seizure, Race, and Property
- C. Critical Characteristics of Property and Whiteness
- 1. Whiteness as a Traditional Form of Property
- 2. Modern Views of Property as Defining Social Relations
- 3. Property and Expectations
- 4. The Property Functions of Whiteness
- (a) Rights of Disposition
- (b) Right to Use and Enjoyment
- (c) Reputation and Status Property
- (d) The Absolute Right to Exclude
- D. White Legal Identity: The Law’s Acceptance and Legitimation of Whiteness as Property
- 1. Whiteness as Racialized Privilege
- 2. Whiteness, Rights, and National Identity
- III. BOUND BY LAW: THE PROPERTY INTEREST IN WHITENESS AS LEGAL DOCTRINE IN PLESSY AND BROWN
- A. Plessy
- B. Brown I
- C. Brown II
- D. Brown’s Mixed Legacy
- IV. THE PERSISTENCE OF WHITENESS AS PROPERTY
- A. The Persistence of Whiteness as Valued Social Identity
- B. Subordination Through Denial of Group Identity
- C. Subjugation Through Affirmative Action Doctrine
- 1. Bakke
- 2. Croson
- 3. Wygant
- V. DE-LEGITIMATING THE PROPERTY INTEREST IN WHITENESS THROUGH AFFIRMATIVE ACTION
- A. Corrective Justice, Sin, and Whiteness as Property
- B. Affirmative Action: A New Form of Status Property?
- C. What Affirmative Action Has Been; What Affirmative Action Might Become
- VI. CONCLUSION
…Because the “presumption of freedom [arose] from color [white]” and the “black color of the race [raised] the presumption of slavery,” whiteness became a shield from slavery, a highly volatile and unstable form of property. In the form adopted in the United States, slavery made human beings market-alienable and in so doing, subjected human life and personhood—that which is most valuable—to the ultimate devaluation. Because whites could not be enslaved or held as slaves, the racial line between white and Black was extremely critical; it became a line of protection and demarcation from the potential threat of commodification, and it determined the allocation of the benefits and burdens of this form of property. White identity and whiteness were sources of privilege and protection; their absence meant being the object of property.
Slavery as a system of property facilitated the merger of white identity and property. Because the system of slavery was contingent on and conflated with racial identity, it became crucial to be “white,” to be identified as white, to have the property of being white. Whiteness was the characteristic, the attribute, the property of free human beings…
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