Mixed Race Studies

White by Law 10th Anniversary Edition: The Legal Construction of Race

New York University Press
October 2006
236 pages
Paper ISBN: 9780814736944

Ian Haney López, John H. Boalt Professor of Law
University of California, Berkeley

White by Law was published in 1996 to immense critical acclaim, and established Ian Haney López as one of the most exciting and talented young minds in the legal academy. The first book to fully explore the social and specifically legal construction of race, White by Law inspired a generation of critical race theorists and others interested in the intersection of race and law in American society. Today, it is used and cited widely by not only legal scholars but many others interested in race, ethnicity, culture, politics, gender, and similar socially fabricated facets of American society.

In the first edition of White by Law, Haney López traced the reasoning employed by the courts in their efforts to justify the whiteness of some and the non-whiteness of others, and revealed the criteria that were used, often arbitrarily, to determine whiteness, and thus citizenship: skin color, facial features, national origin, language, culture, ancestry, scientific opinion, and, most importantly, popular opinion.

Ten years later, Haney López revisits the legal construction of race, and argues that current race law has spawned a troubling racial ideology that perpetuates inequality under a new guise: colorblind white dominance. In a new, original essay written specifically for the 10th anniversary edition, he explores this racial paradigm and explains how it contributes to a system of white racial privilege socially and legally defended by restrictive definitions of what counts as race and as racism, and what doesn’t, in the eyes of the law. The book also includes a new preface, in which Haney López considers how his own personal experiences with white racial privilege helped engender White by Law.

Table of Contents

• Preface to the Revised and Updated Edition
• Acknowledgments
• A Note on Whiteness
• 1. White Lines
• 2. Racial Restrictions in the Law of Citizenship
• 3. The Prerequisite Cases
• 4. Ozawa and Thind
• 5. The Legal Construction of Race
• 6. White Race-Consciousness
• 7. The Value to Whites of Whiteness
• 8. Colorblind White Dominance
• Appendix A. The Racial Prerequisite Cases
• Appendix B. Excerpts from Selected Prerequisite Cases
• Notes
• Bibliography
• Table of Legal Authorities
• Index
• About the Author

“I Thought He was White You Know a Regular American”: The Boston Marathon Bombing Shows Us How White Privilege Hurts White People… Again

We Are Respectable Negroes
2013-04-19

Chauncey DeVega

Race is a social construction. There is only one race, the human race. But, race has historically been something negotiated by the courts, has legal standing, and has impacted people’s life chances across the color line.

As Cheryl Harris and Ian Haney Lopez have detailed, to be “white” is to have a type of property in America. Because “Whiteness” is property it can be inherited, passed down from one person to another as an inheritance, and has value–both symbolic and monetary–under the law, and in the broader society.

European immigrants understood (and continue to understand in the present) the value of Whiteness. In the most stark example, they knew to distance themselves from black folks as a way of become fully “white” and a “real American.”

In addition, the United States government helped to create race and reinforce the value of Whiteness when it passed immigration laws that privileged “desirable” races from Europe over those “less desirable” from Africa, Asia, and other parts of the world.

And of course, the racist implementation of the G.I. Bill and FHA Housing Programs after World War 2 helped to create Whiteness again by creating a segregated place called “suburbia,” and creating a stark divide in the racial wealth and income gap that is still with us today.

Race works through a type of “common sense” that is based on individual experiences, cultural norms, (misunderstandings of) history, the law, politics, as well as psychological motivations and decision-making that operate on both a conscious and subconscious level. In total, the race business is a type of magic and pseudo-science. This makes it no less real or important.

Whiteness is synonymous with “American” for those who have socialized into what sociologists such as Joe Feagin have termed “the white racial frame.” Here, common sense dictates that “those people” look “American” and those “other people” do not…

Read the entire article here.

“White Latino” Leaders: A Foregone Conclusion or Mischaracterization of Latino Society

The Modern American
Volume 3, Issue 2 (Summer-Fall, 2007)
Article 11
pages 62-65

Eric M. Gutierrez

Am I white? My personal inquiry into race begins with a school picture of a six-year-old boy. My dark brown hair, parted to one side, falls impishly over half-cocked eyebrows. My eyes, more almond-shaped than oval, are a murky blue with green speckles. My nose, a thicker version of the traditional aquiline Roman contour, fades into a tiny bulbous tip. My smile, close-mouthed and askance. My skin, white, even with a faded summer tan.

If I am white, whether I have claimed it or not, has it afforded me the privileges of a racial hierarchy skewed towards the dominant white culture? Moreover, has my apparent skin color placed me in a leadership role in the Latino community based merely on society’s perception of what that race is? Will that perception imply that I will turn my back on the Latino community that raised me, opting instead for the spoils of an influential white power structure?

In this article I consider the arguments presented by Ian Haney López in his essay entitled “White Latinos” and analyze the validity of his statements on white Latino community leaders. I examine and challenge López’s assertions regarding the characterization of Latino leaders, generally; and his description of an emerging Latino culture identified as “Mexican Americans,” the “Brown Race,” and the “New Whites,” specifically.

The most crucial assertion by López is that white Latino leaders are the most prevalent and influential in Latino society and that by emphasizing their whiteness as a key component of their identity, they facilitate the mistreatment of Latinos and buttress social inequality. Although I agree with many of López’s assertions about white Latino leaders, I believe the aforementioned assertion is a mischaracterization of Latino leadership and neglects to consider the cultural values from which these leaders arise…

Read the entire article here.

White Latinos

Harvard Latino Law Review
Volume 6, Number 1 (Spring 2003)
8 pages

Ian Haney Lopez, John H. Boalt Professor of Law
University of California, Berkeley

Who are the leaders in Latino communities? This question does not admit simple answers, for who counts as a leader and what Latino identity entails are both contentious issues. Having said that, I contend that often Latino leaders are white. I employ this hyperbole to emphasize my point that most of those who see themselves as leaders of Latino communities accept or assert whiteness as a key component of their identity. This assertion of whiteness, I argue here, facilitates the mistreatment of Latinos and buttresses social inequality. In this Essay I use the experience of Mexican Americans and the Chicano movement to illustrate this dynamic, and also comment on the aspiration to be white in the context of contemporary racial politics.

I. WHITE LATINO LEADERS

The majority of those who consider themselves leaders in Latino communities are white. I do not contend by this that race is fixed or easily ascertained. Nor do I mean that the Latino community is led by Anglos—that is, by persons from the group hstorically understood as white in this country. Rather, Latino leaders are often white in terms of how they see themselves and how they are regarded by others within and outside of their community. Race’s socially constructed nature ensures that racial identity is formed on multiple, sometimes contradictory levels. Self-identification, group perception, and external classification all constitute axes of racial construction. In turn, these axes encompass myriad criteria for determining racial identity. In this context, many Latino leaders believe they are—and are understood to be—white by virtue of class privilege, education, physical features, accent, acculturation, self-conception, and social consensus. True, these Latinos are rarely white in the sense that they are accorded the full range of racial privileges and presumptions Anglos reserve for themselves. But then, as with all racial categories, there are various shades of white, and many Latino leaders are arrayed along this continuum…

Read the entire essay here.

Racial Classification and History

Routledge
1997-02-01
376 pages
Hardback ISBN: 978-0-8153-2602-1

Edited by

E. Nathaniel Gates (1955-2006)
Benjamin N. Cardozo School of Law
Yeshiva University

Explores the concept of “race”

The term “race,” which originally denoted genealogical or class identity, has in the comparatively brief span of 300 years taken on an entirely new meaning. In the wake of the Enlightenment it came to be applied to social groups. This ideological transformation coupled with a dogmatic insistence that the groups so designated were natural, and not socially created, gave birth to the modern notion of “races” as genetically distinct entities. The results of this view were the encoding of “race” and “racial” hierarchies in law, literature, and culture.

How “racial” categories facilitate social control

The articles in the series demonstrate that the classification of humans according to selected physical characteristics was an arbitrary decision that was not based on valid scientific method. They also examine the impact of colonialism on the propagation of the concept and note that “racial” categorization is a powerful social force that is often used to promote the interests of dominant social groups. Finally, the collection surveys how laws based on “race” have been enacted around the world to deny power to minority groups.

A multidisciplinary resource

This collection of outstanding articles brings multiple perspectives to bear on race theory and draws on a wider ranger of periodicals than even the largest library usually holds. Even if all the articles were available on campus, chances are that a student would have to track them down in several libraries and microfilm collections. Providing, of course, that no journals were reserved for graduate students, out for binding, or simply missing. This convenient set saves students substantial time and effort by making available all the key articles in one reliable source.

Table of Contents

• Volume Introduction
• The Crime of Color—Paul Finkelman
• Reflections on the Comparative History and Sociology of Racism—George M. Fredrickson
• The Italian, a Hindrance to White Solidarity in Louisiana, 1890-1898—George E. Cunningham
• Cornerstone and Stumbling Block: Racial Classification and the Late Colonial State in Indonesia—C. Fasseur
• Racial Restrictions in the Law of Citizenship—Ian Haney Lopez
• The Prerequisite Cases—Ian Haney Lopez
• Blackface Minstrelsy and Jacksonian Ideology—Alexander Saxton
• Introduction: Historical Explanations of Racial Inequality—Alexander Saxton
• Sexual Affronts and Racial Frontiers: European Identities and the Cultural Politics of Exclusion in Colonial Southeast Asia—Ann Stoler
• Irish-American Workers and White Racial Formation in the Antebellum United States—David R. Roediger
• The Race Question and Liberalism: Casuistries in American Constitutional Law—Stanford M. Lyman
• Introduction: From the Social Construction of Race to the Abolition of Whiteness—David R. Roediger
• Acknowledgments

The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice

Harvard Civil Rights – Civil Liberties Law Review
Volume 29 (1993)
62 pages

Ian F. Haney Lopez, John H. Boalt Professor of Law and Executive Committee Member for The Center for Social Justice
Berkeley Law School
University of California, Berkeley

Under the jurisprudence of slavery as it stood in 1806, one’s status followed the maternal line. A person born to a slave woman was a slave, and a person born to a free woman was free. In that year, three generations of enslaved women sued for freedom in Virginia on the ground that they descended from a free maternal ancestor. Yet, on the all-important issue of their descent, their faces and bodies provided the only evidence they or the owner who resisted their claims could bring before the court.

The appellees… asserted this right [to be free] as having been descended, in the maternal line, from a free Indian woman; but their genealogy was very imperfectly stated …. [T]he youngest… [had] the characteristic features, the complexion, the hair and eyes … the same with those of whites …. Hannah, [the mother] had long black hair, was of the right Indian copper colour, and was generally called an Indian by the neighbours…

Because grandmother, mother, and daughter could not prove they had a free maternal ancestor, nor could Hudgins show their descent from a female slave, the side charged with the burden of proof would lose.

Allocating that burden required the court to assign the plaintiffs a race. Under Virginia law, Blacks were presumably slaves and thus bore the burden of proving a free ancestor; Whites and Indians were presumably free and thus the burden of proving their descent fell on those alleging slave status. In order to determine whether the Wrights were Black and presumptively slaves or Indian and presumptively free, the court, in the person of Judge Tucker, devised a racial test:

Nature has stampt upon the African and his descendants two characteristic marks, besides the difference of complexion, which often remain visible long after the characteristic distinction of colour either disappears or becomes doubtful; a flat nose and woolly head of hair. The latter of these disappears the last of all; and so strong an ingredient in the African constitution is this latter character, that it predominates uniformly where the party is in equal degree descended from parents of different complexions, whether white or Indians…. So pointed is this distinction between the natives of Africa and the aborigines of America, that a man might as easily mistake the glossy, jetty clothing of an American bear for the wool of a black sheep, as the hair of an American Indian for that of an African, or the descendant of an African. Upon these distinctions as connected with our laws, the burden of proof depends.

The fate of the women rode upon the complexion of their face, the texture of their hair, and the width of their nose. Each of these characteristics served to mark their race, and their race in the end determined whether they were free or enslaved. The court decided for freedom:

[T]he witnesses concur in assigning to the hair of Hannah… the long, straight, black hair of the native aborigines of this country….

[Verdict] pronouncing the appellees absolutely free…

After unknown lives lost in slavery, Judge Tucker freed three generations of women because Hannah’s hair was long and straight.

I. Introduction: The Confounding Problem of Race

I begin this Article with Hudgins v. Wright in part to emphasize the power of race in our society.  Human fate still rides upon ancestry and appearance. The characteristics of our hair, complexion, and facial features still influence whether we are figuratively free or enslaved. Race dominates our personal lives. It manifests itself in our speech, dance, neighbors, and friends-“our very ways of talkdng, walking, eating and dreaming are ineluctably shaped by notions of race.” Race determines our economic prospects. The race-conscious market screens and selects us for manual jobs and professional careers, red-lines financing for real estate, green-lines our access to insurance, and even raises the price of that car we need to buy. Race permeates our politics. It alters electoral boundaries, shapes the disbursement of local, state, and federal funds, fuels the creation and collapse of political alliances, and twists the conduct of law enforcement. In short, race mediates every aspect of our lives.

I also begin with Hudgins v. Wright in order to emphasize the role of law in reifying racial identities. By embalming in the form of legal presumptions and evidentiary burdens the prejudices society attached to vestiges of African ancestry, Hudgins demonstrates that the law serves not only to reflect but to solidify social prejudice, making law a prime instrument in the construction and reinforcement of racial subordination. Judges and legislators, in their role as arbiters and violent creators of the social order, continue to concentrate and magnify the power of race in the field of law. Race suffuses all bodies of law, not only obvious ones like civil rights, immigration law, and federal Indian law, but also property law, contracts law, criminal law, federal courts, family law, and even “the purest of corporate law questions within the most unquestionably Anglo scholarly paradigm.” I assert that no body of law exists untainted by the powerful astringent of race in our society.

In largest part, however, I begin with Hudgins v. Wright because the case provides an empirical definition of race. Hudgins tells us one is Black if one has a single African antecedent, or if one has a “flat nose” or a “woolly head of hair.” I begin here because in the last two centuries our conception of race has not progressed much beyond the primitive view advanced by Judge Tucker.

Despite the pervasive influence of race in our lives and in U.S. law, a review of opinions and articles by judges and legal academics reveals a startling fact: few seem to know what race is and is not. Today most judges and scholars accept the common wisdom concerning race, without pausing to examine the fallacies and fictions on which ideas of race depend. In U.S. society, “a kind of ‘racial etiquette’ exists, a set of interpretive codes and racial meanings which operate in the interactions of daily life…. Race becomes ‘common sense’—a way of comprehending, explainiug and acting in the world.” This social etiquette of common ignorance is readily apparent in the legal discourse of race.

Rehnquist-Court Justices take this approach, speaking disingenuously of the peril posed by racial remediation to “a society where race is irrelevant: while nevertheless failing to offer an account of race that would bear the weight of their cynical assertions. Arguably, critical race theorists, those legal scholars whose work seems most closely bound together by their emphasis on the centrality of race, follow the same approach when they powerfully decry the permanence of racism and persuasively argue for race consciousness, yet do so without explicitly suggesting what race might be. Race may be America’s single most confounding problem, but the confounding problem of race is that few people seem to know what race is.

Adopting an interdisciplinary/dedisciplinizing approach, the first half of this essay critiques existing theories of race from venues into which legal scholars rarely venture, namely biology, sociology, and literature. The last half of this essay advances a new theory of race as a social complex of meanings we continually replicate in our daily lives. Part II of this Article considers and rejects the most widely accepted understanding of race, which I term “biological race.” By “biological race,” I mean the view of race espoused by Judge Tucker, and still popular today, that there exist natural, physical divisions among humans that are hereditary, reflected in morphology, and roughly but correctly captured by terms like Black, White, and Asian (or Negroid, Caucasoid, and Mongoloid). Under this view, one’s ancestors and epidermis ineluctably determine membership in a genetically defined racial group. The connection between human physiognomy and racial status is concrete; in Judge Tucker’s words, every individual’s race has been “stampt” by nature. Part II explains that despite the prevalent belief in biological races, overwhelming evidence proves that race is not biological. Biological races like Negroid and Caucasoid simply do not exist. Finally, Part II introduces the argument, newly popular among several scholars, that races are wholly illusory, whether as a biological or social concept. Under this thinking, if there is no natural link between faces and races, then no connection exists.

Under the rubric of “social race,” Part III criticizes the ethnicity, nationalist, and colonialist theories of race. All three theories repudiate the idea that race is a fixed essence and instead locate races within the cartography of other social constructions. These theories fall short of providing a comprehensive or sophisticated understanding of race because they each treat race as a facet of some larger social phenomenon whether that be ethnic identity, cultural struggle, or the dynamics of colonialist conquest and resistance. This section critiques these theories in order to elaborate on a theory of racial formation or, as I call it, racial fabrication. “Racial formation” refers to the process by which the social systems of meaning we know as race accrue to features and ancestry.

In this Article, I define a “race” as a vast group of people loosely bound together by historically contingent, socially significant elements of their morphology andlor ancestry. I argue that race must be understood as a sui generis social phenomenon in which contested systems of meaning serve as the connections between physical features, races, and personal characteristics. In other words, social meanings connect our faces to our souls. Race is neither an essence nor an illusion, but rather an ongoing, contradictory, self-reinforcing process subject to the macro forces of social and political struggle and the micro effects of daily decisions. As used in this Article, the referents of terms like Black, White, Asian, and Latino are social groups, not genetically distinct branches of humankind.

In Part IV, I expand upon the proffered definition of race by examining the deployment of race in our daily lives. Despite the role of history—that is, despite the actions and reactions of the preceding generations—race remains common sense today only to the extent we continue to invest our morphology with racial meaning. The divisions we commonly discuss as Black, White, and so forth are relatively recent inventions, dating back in their current incarnations no more than a couple of hundred years. These divisions remain subject to constant contestation and revision, with their continued existence dependent on our acquiescence and participation today and tomorrow. This section deconstructs the micromechanics of race, the way race shapes and is in turn shaped by individual lives. It does so in terms of chance, context, and choice, or roughly, appearance and ancestry, social setting, and personal action. I argue that to a limited but largely unrecognized extent we as individuals and communities choose our races.

Part V brings this Article full circle by examining the connection between race and personal identity. Racial groupings in our society have been built upon and in turn have built up the edifices of cultural groups, establishing a close, even inseverable, relationship between races and communities. As collections of individuals who share a common culture and a similar world-view, these communities provide the crucial bridge between race and identity. In contact across the medium of communities, race and identity overlap and influence each other; each is both product and producer of the other. This last section completes the racial fabrication thesis by arguing for a connection not only between our face and our race, but for a link, however tenuous and at times obliterated, between our race and our soul…

Read the entire article here.

Mixed Race America and the Law: A Reader

New York Univeristy Press
2003-02-01
512 pages
ISBN: 9780814742570

Edited by:

Kevin R. Johnson, Mabie-Apallas Professor of Public Interest Law and Chicano/a Studies
University of California Davis

For the first time in United States history, the Year 2000 census allowed people to check more than one box to identify their race. This new way of gathering data and characterizing race and ethnicity reflects important changes in how racial identity is understood in America. Besides acknowledging the presence of mixed race citizens, this new understanding promises to have major implications for American law and policy.

With this anthology, Kevin R. Johnson brings together ground-breaking scholarship on the mixed race experience in America to examine the impact of law on these citizens. The foundational essays that comprise the collection present the historical, social, and political contexts surrounding the body of law that addresses race while analyzing the implications of multiracialism. Divided into 12 sections, the reader includes an introduction by Johnson and essential essays by contributors such as Garrett Epps, Judith Resnick, Richard Delgado, Ian Haney López, Randall Kennedy, and Patricia Hill Collins. Selections address miscegenation, racial classification, interracial adoption, the 2000 census, “passing,” and other topics; each section includes questions to promote further discussion. This book is an invaluable resource for examining the complexities of racial categories in modern America.

Read the entire introduction here.