White by Law: The Legal Construction of Race

Chapter 3 examines select racial prerequisite cases brought before US courts between 1878 and 1952. Congress imposed the white person prerequisite in 1790, the first legal challenge only coming about 80 years later. All but one of the applicants based their petition on white identity, even though naturalization was also open to Black people. The lack of petitions until 1790 may reflect the relative lack of importance of federal citizenship during this period, when basic rights and privileges were the purview of states. National citizenship became more important after the Civil War and the ratification of the 14th Amendment, when state status became dependent on federal status.

The lack of petitions may also reflect immigration patterns. Until the late 18th century, most immigrants to the US were either from Western Europe or West Africa. The former were deemed clearly admissible, while the latter were not, negating the need for court cases. Moreover, relatively few non-white people immigrated to the US in the first part of the 19th century. These explanations, however, do not explain why applicants did not base their petitions on Black identity, since naturalization was open to Black people as of 1870.

The treatment of Asian people in the US mirrored that of Black people. Racial biases against Asians are apparent in court cases. For example, in People v. Hall (1854), a white defendant challenged his murder conviction on the grounds that it was based on the testimony of a Chinese witness. The court ruled for the defendant, citing an 1850 statute proclaiming that “‘no Black, or Mulatto person, or Indian shall be allowed to give evidence in favor of, or against a white man’” (36). In the eyes of the court, being Chinese was interchangeable with being Black, mixed-race, and Indian. As Haney López observes, Black in this period was a broad term that encompassed all non-white people, including Asians. Despite this ruling, however, no Asians sought naturalization by claiming a Black identity. The language of the 1870 act offers a possible explanation: The act referred not to Black people, but to people of African descent or nativity (37). By contrast, the naturalization statute referred to “‘white persons,” not people of European ancestry. The legal definition of Black was more firmly established than that of white, preventing Asians or other non-white people from claiming a Black racial identity. The stigma attached to Blackness may also have dissuaded people of color from claiming to be Black. These issues underscore the complex processes involved in constructing race, which is apparent in racial prerequisite cases.

Overview

In 1878, a California federal court decided the first racial prerequisite case, In re Ah Yup, excerpts of which appear in Haney López’s Appendix. Judge Lorenzo Sawyer had to determine whether Ah Yup, a Chinese citizen, was eligible for naturalization. The judge invited input from members of the bar who were not party to the case, drew on scientific and anthropological thinking, and studied congressional debates about racial prerequisites before concluding that “‘a native of China, of the Mongolian race, is not a white person’” (39).

As Haney López points out, accepting the non-whiteness of Chinese individuals points to the extent to which historical pronouncements about race continue to impact American society. Other judges echoed Judge Sawyer’s opinion. For example, in 1912, the federal district court in Washington justified excluding Asians from citizenship, claiming that “‘yellow and bronze racial color’” was evidence of “‘Oriental despotism’” and that people with these traits were “‘not fitted and suited to make for the success of a republican form of Government’” (39). As Haney López observes, this ruling turned on culture and politics, as much as it did on race.

The racism pervading the courts mirrored the racism of American society. Judicial racism is apparent in a 1909 naturalization case brought by a man named Knight, who served in the US navy for more than 25 years. Despite his service, he was denied citizenship on racial grounds. The presiding judge recited Knight’s genealogy during the proceedings, stressing that although Knight was born of an English father, his mother was half-Chinese and half-Japanese, which disqualified him from US citizenship: “‘[A] person, one-half white and one-half of some other race, belongs to neither of those races, but is literally a half-breed […] The application must be denied’” (42).

In contrast to Ah Hup and Knight, Gee Hop successfully naturalized as an American in 1890, receiving a US passport the same year. In 1895, however, he was denied entry at the port of San Francisco when he tried to reenter after a trip to China. Gee Hop sued, but a federal district court judge ruled against him, concluding that “‘Mongolians, or persons belonging to the Chinese race, are not included in [the naturalization] act’” (43).

Rationalizing Race: The Early Cases

The courts heard 12 racial prerequisite cases between 1878 and 1909. The applicants were from Mexico, Hawaii, China, Burma, and Japan. Two of them were mixed-race. Only the Mexican applicant, Ricardo Rodriguez, was successful (In re Rodriguez, 1897). The presiding judge specified that the applicant should “‘probably not be classed as white’” (43), but allowed him to naturalize based on treaties conferring citizenship on Mexicans and Spaniards after the US expansion into the Southwest and Florida. According to Haney López, Rodriguez is an exception.

The value of prerequisite cases lies not just in the rulings, but in the rationales. These fall into four main categories: 1) common knowledge; 2) scientific evidence; 3) congressional intent; and 4) legal precedent. The first three were already present in Ah Yup. Later judges then cited Ah Yup as legal precedent in their own cases. Although early prerequisite cases reveal some inconsistencies in definitions of whiteness, common knowledge and scientific evidence were generally aligned and provided consistent justifications for denying petitioners. Indeed, most judges relied on both common knowledge and scientific evidence in early prerequisite cases, as the two were mutually reinforcing. It is possible that the two paralleled one another because they relied on the same social notions of racial difference. However, a more likely explanation is that the two rationales measured the same thing—social beliefs.

Scientific Evidence Versus Common Knowledge

A rift between scientific evidence and common knowledge emerged between 1909 to 1923. The results and rationales of prerequisite case decisions became contradictory. Most judges continued to classify Asian and mixed-race people as non-white. In 1909, however, a court ruled that Armenians were white, despite originating from an area east of the Bosporus Strait, the official geographic boundary separating Europe and Asia. Courts ruled that Syrians were white in 1909, 1910, and 1915, but non-white in 1913 and 1914 (48). Similarly, Asian Indians were white in court rulings in 1910, 1913, 1919, and 1920, but not in 1909, 1917, and after 1923 (48).

These contradictory rulings coincided with marked divergences between scientific evidence and common knowledge. No court after 1909 relied on both rationales, only one or the other. Central to this shift was a federal court case in Georgia, In re Najour. A Syrian man named Costa George Najour successfully litigated his status as white. Citing new scientific studies, Judge Newman ruled that belonging to the Caucasian race was what mattered, not the skin color of the applicant. Judge Newman not only distinguished skin color and race, but deemed that belonging to the Caucasian race was the sole criterion to determine whiteness. In his mind, Caucasian equaled white. The link between Caucasian and whiteness caused rifts in the courts. Some judges followed Najour and cited scientific evidence, while others rejected Judge Newman’s rationale by citing common knowledge.

The science largely stemmed from the field of anthropology. Judge Newman, for instance, cited the work of journalist and ethnologist A. H. Keane in his ruling, describing Caucasians as “‘white and also dark’” and indigenous to “‘North Africa, Europe, Irania, India, Western Asia, and Polynesia’” (50). Dissenters rejected emerging racial paradigms. For example, the federal district court for eastern South Carolina explicitly rejected the equation of Caucasian and white, denying citizenship to petitioner Faras Shahid based on common knowledge. The judge described Shahid as being the color “‘of a walnut’” and as “‘a Syrian of Asiatic birth and descent’” with a poor grasp of English (51). The judge asserted that the term “white persons” in the Nationality Act of 1790 referred solely to white Europeans. The same judge denied citizenship to another Syrian man, George Dow, describing his skin color as “‘not purely European’” (53). Dow raised a key issue during his petition, namely, that Syria was the geographic birthplace of Judaism and Christianity. In short, he suggested that questioning his whiteness was tantamount to questioning the whiteness of Christ. The judge refused to engage, instead rejecting scientific definitions of whiteness. After expounding on the etymology of the term Caucasian, he questioned its utility and concluded that no such thing existed.

Despite these rulings, some judges continued to follow Najour. Rifts in the courts lasted until the Supreme Court decided Ozawa and Thind a decade later.