White by Law: The Legal Construction of Race

Nonfiction | Book | Adult | Published in 1996

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Summary

Background

Chapter Summaries & Analyses

Preface

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Key Figures

Themes

Index of Terms

Important Quotes

Essay Topics

Themes

The Legal and Social Construction of Race

White by Law is the first systematic study of how law creates and maintains race. Focusing on racial prerequisite cases, Haney López sheds light on key issues related to the legal construction of race, notably, the mechanisms by which courts and legislatures created race, and the conscious and unconscious role of legal actors, such as judges and justices, in these processes.

Following other critical race theorists, Haney López asserts that “race is nothing more than what society and law say it is” (73). The inability of courts to arrive at fixed definitions of whiteness underscores the social nature of race. Courts took a wide range of factors into account when determining white racial identity, including skin color, facial features, country of origin, ancestry, and culture. Unable to establish clear parameters for “white persons,” courts instead determined, on a case-by-case basis, who was not white. Race is a social construct, and therefore notions of whiteness and non-whiteness shifted over time, resulting in inconsistent and at times contradictory court rulings. In Ozawa, for instance, the Supreme Court followed scientific definitions of race, arguing that skin color did not correlate well with racial identity. A few months later, in Thind, the same justices rejected science and their own ruling in Ozawa, instead citing commonly held beliefs in their definition of whiteness and non-whiteness: “The average man knows perfectly well that there are unmistakable and profound differences between [Scandinavians and Indians] today’” (63).

As Haney López observes, the court’s turn away from science attests to the social nature of race: “The social construction of the white race is manifest in the Court’s repudiation of science and its installation of common knowledge as the appropriate racial meter of Whiteness” (7).

Haney López argues that unconscious racism largely accounts for the rejection of science in Thind and later racial prerequisite cases. Early 20th-century science failed to confirm popular beliefs about race, undermining existing racial identities and hierarchies. All the judges and justices in prerequisite cases were white men. Many of them stressed fair-mindedness and solicitude in their rationales. Although claims of impartiality cannot be taken at face value, they do suggest that at least some legal actors were unaware of their biases. Racist beliefs about whiteness and non-whiteness pervaded American society in the early 20th century and continue to do so today, albeit in different forms. Legal actors in prerequisite cases not only internalized racists beliefs, but legitimized and perpetuated them through their rulings.

The Value of Whiteness to White People

Racial prerequisite cases draw attention to the value of being white to white people. Whiteness presumes worth and superiority. Whiteness also bestows social, economic, and political privileges that can be measured across several indices. For example, the real median income for white people in 2003 was $48,000, compared to $30,000 for Black people. Similarly, the total poverty rate among white people in 2003 was 8 percent, compared to 24 percent for Black people. The same year, 11 percent of white people lacked health insurance, compared to 33 percent of Black people.

Racial disparities are even more striking in the country’s incarceration rates. At the time White by Law was revised and updated, Black men had a 28.5 percent chance of being incarcerated during their lifetimes, compared to 2.5 percent of white men. In ten states, Hispanic men are incarcerated five to nine times more frequently than white men (148).

Whiteness bestowed privilege in early 20th century America, just as it does today. White judges in prerequisite cases recognized the value of being white, which explains why they preserved whiteness as a racial category, even as science undermined the notion of race. Only one court out of 52 admitted the falsity of race (23). Moreover, after Thind, courts consistently rejected scientific evidence in favor of commonly held beliefs to support racial constructs. Legal actors were not immune to prevalent ideologies of race and racial difference. As Haney López argues, however, ideology does not adequately explain the lengths to which courts went to preserve race, or their contradictory, and at times incoherent, rationales. Haney López suggests the issue was personal for judges: “In a very real sense, they were setting the terms of their own existence. Wedded to their own sense of self, the judges proved to be loyal defenders of whiteness, defining this identity in ways that preserved its contours even at the cost of arbitrarily excluding fully qualified persons from citizenship” (23). Instead of questioning the underpinnings of race in light of scientific advancements, judges, and in particular the justices of the Supreme Court, embraced whiteness. In doing so, they not only legitimized race, but perpetuated racial inequality.

Probing the Content of White Identity and Racial Justice in the US

Haney López argues that the development of white race-consciousness that rejects whiteness is essential to promoting racial justice. Critical race theorists have long engaged with ideas of race-consciousness, defined as “the explicit recognition of racial differences” (14). Much of the early scholarship on the subject, however, was produced by people of color focusing on non-white people. In addition to recognizing the importance of race to personal identity and perspective, these scholars stressed race and racial differences to combat harmful race-neutral laws (Barnes, Robin. “Race Consciousness: The Thematic Content of Racial Distinctiveness in Critical Race Scholarship.” Harvard Law Review 103 (1990): 1864–71).

White scholars did not initially engage with race-based scholarship. Haney López speculates that white scholars felt unwelcome or unqualified to discuss race, and that they lacked the institutional support to do so. These trends resulted in a large body of scholarship focusing on people of color, with virtually no publications addressing white identity. Further, the scholarship on whiteness tended to present white identity as the norm and to equate race-consciousness with Black-consciousness (Aleinikoff, 1991). A notable exception is the work of Barbara Flagg, which not only addressed white race-consciousness, but criticized white scholars for focusing exclusively on Black people (Flagg, 1997).

Although Haney López draws on Flagg’s work, notably her idea of white transparency, he rejects her argument that social justice depends on the elaboration of a positive white race-consciousness. It is unclear exactly what Flagg meant by positive. However, given that whiteness exists in opposition to non-whiteness, and that the relationship between the two is hierarchical, encouraging a positive white race-consciousness is both redundant and dangerous. In Haney López’s words, “elaborating a positive White racial identity […] runs the high risk of concomitantly fostering deleterious images of non-Whites” (22).

Haney López urges White people to develop a white race-consciousness that rejects whiteness. He argues that maintaining whiteness creates and perpetuates racial inequity:

Maintaining Whiteness as a source of identity requires that one deny the costs associated with Whiteness; it requires a refusal, that is, fully to engage with the history and condition of our society and of all those living in it without the safety of White identity. It requires complacency, and more, the continued participation in social inequity. (131)

White people must overcome transparency and colorblindness to deconstruct whiteness. White self-consciousness requires reflecting on whiteness and the privileges it bestows. White people must recognize their role in creating and maintaining racism. Deconstructing whiteness is the only way to end harmful racial stereotypes about non-whiteness. White identity is so deeply engrained in American society, however, that deconstructing it fully may prove impossible.