White by Law: The Legal Construction of Race

Chapter 5 considers how law works to construct race. Prerequisite cases are instructive: They offer a body of decisions in which courts struggled to define the parameters of various racial categories amid shifting scientific and social definitions. In contrast to most other legal cases, the judges in prerequisite cases directly practiced racial categorization, rather than treating race as a phenomenon separate from the law. The cases not only offer a window into the historical relationship between race and law, but provide insights into similar, but more subtle constitutive processes in today’s courts.

Haney López’s approach to the legal construction of race is twofold: First, he examines legal rules and their impact on defining races. Second, he studies the role of legal actors, such as judges and justices, positing that they are both conscious and unwitting participants in constructing race. The legal construction of race operates in varied and sometimes contradictory ways because of the complexity of law and the sheer number of legal institutions and actors.

Law as Coercion

This section presents law as a coercive system, focusing on the rules it creates and enforces. These rules include legislative enactments (statutory law) and judicial decisions (case law). Laws contributing to racializing the American population. America’s ideological whiteness is not an accident, but something that was created through law.

Law constructed racial difference in three ways: 1) Naturalization laws determined who was eligible to join society; 2) Anti-miscegenation laws promoted the separation of the races by regulating sexual relations, which reinforced differences such as skin color and maintained racial hierarchies; and 3) Segregation laws governed where people could and could not live and work on the basis on race.

Prerequisite cases determined whether applicants were white or non-white, establishing legal precedents for various racial identities. In addition to the prerequisite cases, many states had legal definitions of race. In 1705, the state of Virginia attempted to define Blackness, an effort that coincided with the state’s ban on interracial marriage (83).

The states defined the races in varied ways. For example, in Arkansas and Alabama, the “one-drop rule” held that a single drop of Black blood made a person Black. Florida adopted the one-eighth rule, while Kentucky defined Black people as those with “‘an appreciable admixture” of Black ancestry’” (83). Statutes used different terms when referring to Black or mixed-race people, including “African,” “Negro,” “mulatto,” and “mestizo” (84). These competing legal definitions and terms highlight the many ways in which laws created racial categories.

The law used violence to construct race. Individuals stripped of their citizenship on racial grounds lost their property, freedom, and in some cases, their lives. The discriminatory enforcement of criminal laws, the legal internment of Japanese people during the Second World War, and the stripping of Indigenous Americans of their land rights are all forms of state violence. Race and racial divisions are deeply embedded in American society, in large part because of coercive laws.

Law as Ideology

The law operates on an ideological level. It shapes societal views, including notions of race. Prerequisite cases legitimized the existence of race by lending institutional support to the notion that race was natural, and by supporting race as a necessary part of differentiating humans. Indeed, the prerequisite statute required that all petitioners be assigned a race.

Laws continue to legitimize race, as evidenced by contemporary legal reliance on racial categories. This is most evident in anti-discrimination laws current as of October of 2022, which distinguish white people and non-white people. The persistence of racial categories in legal contexts legitimates the notion that race exists, as well as prompting people to view themselves, and others, in racialized ways.

Law constructs race in lasting ways. When Congress passed the Nationality Act of 1790, the concept of race included only white people, Black people, and Indigenous Americans. Congress was not concerned with Armenians, Turks, Chinese, Hindu individuals, and so forth. By institutionalizing and legitimating the category of “white persons,” Congress set in motion a series of processes that continues to impact society. Laws often cross the sociohistorical boundaries in which they were written, in large part because of legal precedents. Haney López uses the example of the Mashpee Tribe case to make this point. The Mashpee filed suit to recover tribal lands in Cape Cod in 1976. To proceed with the case, the district court ruled that the Mashpee had to prove they were a tribe by the Supreme Court’s 1901 definition. This definition was racist, antiquated, and limited in its understanding of tribal identity. The Mashpee could not meet the requirement and failed in their bid to recover tribal lands.

Law creates race through reification, where what is abstract is treated as real. For example, prerequisite cases transformed ideas about race into differences in rights depending on whether the courts deemed petitioners white or non-white. Courts ruled Armenians white, in contrast to the Japanese, who were denied the privilege and prosperity of the designation. The importance of reification lies in its ability to create and maintain the wealth and poverty society views as racially innate. This relates specifically to racial segregation, which persists in American society in many forms, but most clearly in white suburbs and poor Black urban neighborhoods. Tree-lined streets, expansive malls, college graduates, and country clubs characterize the former, while poverty characterizes the latter. Law creates race, with serious material consequences.

Judges and Legislators

This section explores the role of legal actors in constructing race, positing that actors are both conscious and unwitting participants in the process. Legislators and judges explicitly defined race by establishing a racial prerequisite for naturalization and deciding on the whiteness and non-whiteness of applicants. Judges in prerequisite cases regularly claimed that their decisions were impartial, but their racism is clear in their rulings and rationales. Social conceptions of race shape everyone’s views of the world, including judges. Despite claims of impartiality, judges were deeply, and largely unconsciously, biased. According to Haney López, unconscious racism played a central role in legally constructing race, prompting judges to reject science and embrace popular understandings of whiteness and non-whiteness.

Unconscious racial discrimination continues to impact courts, as evidenced by the discriminatory application of laws. Non-white offenders regularly receive harsher sentences than white offenders who commit the same crime in the same jurisdiction. Statistics show that racial disparities are most apparent in capital cases: Prosecutors are four times more likely to pursue the death penalty against Latinos than white people. Similarly, they are 14 times more likely to ask for the death penalty when the victim is white than when the victim is Latino (97- 98). Despite the statistics, judges rarely acknowledge the role of racism in the courtroom, which suggests that their racism is unconscious. No one is immune to racial stereotyping, not even legal actors.

Non-Whites

Here, Haney López examines the role of non-legal actors in constructing race, focusing on issues of obedience and acquiescence. Individuals who obey laws have a rational relationship to the law—they make decisions based on their evaluation of legal threats and rewards. In contrast, those who acquiesce to the law subscribe to the legal regime’s normative worldview. Enacting change is more difficult when non-legal actors are acquiescent, rather than obedient.

Some legal scholars argue that non-white people who acquiesce to the law are complicit in their own oppression, while others suggest that coercion, rather than ideology, most strongly shapes the lives of people of color (104). Haney López falls somewhere in between. He recognizes that acquiescence is more relevant to white people, and coercion to non-white people. However, coercion alone does not explain why people of color follow laws. Using prerequisite cases, Haney López suggests that non-white people are sometimes complicit in creating oppression. For example, in his argument before the Supreme Court, Thind relied on ideas of white superiority and non-white inferiority, asserting that the Punjab belonged to the Aryan race and that lower-caste Indians were like Black people (105). Although Thind’s apparent assimilation of harmful aspects of whiteness may have been calculated, it also suggests a level of complicity in his own oppression. This type of acquiescence harms individuals and society by implicating non-whites in the construction of an unequal world. Thind’s arguments were widely disseminated, making them all the more injurious. Despite clear indicators of complicity in prerequisite cases, however, Haney López concludes that coercion, not cognitive collaboration, currently drives racial inequality in the US. People of color cannot end racism merely by freeing their minds of harmful racial myths and hierarchies. White race-consciousness is necessary to address racial domination, not the race consciousness of non-white people. (See Probing the Content of White Identity and Racial Justice in the US.)