White by Law: The Legal Construction of Race

In 1790, Congress restricted naturalization to “white persons,” creating a racial requirement for US citizenship that endured until 1952. In Chapter 1, Haney López problematizes the concept of “white persons” by examining how definitions of whiteness shifted as new immigrants arrived in the US. Several cases addressing the “white person” prerequisite reached the highest state and federal courts, including the US Supreme Court. Citizenship applicants from various parts of Asia lost their cases, while those from Mexico and Armenia won. The courts were inconsistent with petitioners from India, Arabia, and Syria.

These cases are important because they forced the courts to define “white persons,” in addition to requiring rationales for the racial divisions being created. The courts weighed in on a wide range of issues, such as skin color, facial features, place of origin, ancestry, and culture, as well as scientific speculation and popular opinion. Chapter 1 studies the cases to generate a theory about the legal construction of race and its influence on contemporary white identity, introducing key concepts that recur throughout the book.

The Racial Prerequisite Cases

This section introduces readers to racial prerequisite cases. The cases were central to racial debates in the US after the Civil War, a period that saw a rise in both immigration and nativism, where established inhabitants were protected over immigrants.

Immigrants pushed back against restrictions, using primarily the legal system. Courts heard 52 racial prerequisite cases between 1878 and 1952. Although judges justified racial divisions in many ways, two rationales prevailed: common knowledge or popular belief and scientific evidence. Early cases, such as In re Ah Hup (1878), drew on both rationales. Starting in 1909, however, the courts became split on which standard to apply, common knowledge or scientific evidence. Haney López uses statistics to underscore this point: From 1909 onward, six lower courts based their rulings on common knowledge, while seven relied on scientific evidence. No court used both rationales (5). He attributes the 1909 shift to changes in immigrant demographics and science, which began to classify dark-skinned people from places like South Asia as Caucasians.

However, the courts did not question the long-held belief that race is a natural phenomenon. Instead, they disparaged science for failing to prove this belief. The Supreme Court eventually resolved the common knowledge/scientific evidence conflict by rejecting the role of science in racial assignments in a landmark case, United States v. Thind. The Court was frustrated by the failure of scientists to plot clear boundaries of whiteness. As Haney López points out, the task was impossible because whiteness is socially constructed and not based in nature.

The Legal Construction of Race

This section addresses the centrality of law in constructing race. Law does not merely codify race, but also creates it, defining systems of domination and subordination. Early scholars treated races as natural categories without recognizing that social and legal relations created these categories. More recently, critical race theorists have stressed the socially constructed nature of race, emphasizing the role of law. Haney López builds on this work by approaching race not as a fixed term, but rather, as a “fluctuating, decentered complex of social meanings that are formed and transformed under constant pressures of political struggle” (10).

Haney López defines race as “the historically contingent social systems of meaning that attach to elements of morphology and ancestry” (10). For Haney López, there are three core aspects to race. First, race is physical in that it hinges on physical features and lineage, both of which are imbued with meaning. Second, race is social in that society ascribes meanings to certain features and ancestries. Third, race began as a set of ideas, and gained force as these ideas were reproduced materially in society, notably, in the distribution of wealth. Wealth and poverty in part turn on the actions of people and their accepted ideas of race, thereby reinforcing the construct of race.

Laws can create differences in physical appearance. For example, laws have shaped people’s reproductive choices by excluding individuals with certain features from the country, as evidenced by the racial citizenship prerequisite. This not only impacted people who possessed ineligible features, but their partners. Until 1931, women married to racially ineligible foreigners could not become citizens, even if they were otherwise eligible (11). The makeup of America largely results from such legal rulings.

Prerequisite cases created positive and negative meanings pertaining to racial difference. The cases established connotations of non-whiteness and whiteness, deeming the former lacking in intellect, morals, self-restraint, and political values. The latter, by contrast, had positive associations.

Racial criteria are not natural, but figures of speech and social constructs. Haney López cites the literary critic Henry Louis Gates Jr. to make this point: “‘Who has seen a black or red person, a white, yellow, or brown? These terms are arbitrary constructs, not reports of reality’” (12). Prerequisite cases decided what features were white and non-white. In doing so, they not only provided legal definitions, but imbued constructs with complex meanings that have ideological and material components. The purpose of some laws was to create material differences between races by embedding racial dominance and subordination into the social and economic relations of American society.

As Haney López notes, this process had long-term effects: A “white” America emerged because of migration patterns and legal cases preventing non-white naturalization. This claim to whiteness continues to serve as the basis for claims about the country’s European nature, which, in turn, justifies restrictive immigration policies and laws designed to preserve national identity.

White Race-Consciousness

Haney López defines race consciousness as the “explicit recognition of racial differences” (14). Most race-conscious scholarship related to legal studies was initially produced by people of color, notably scholar Kimberlé Crenshaw, who focused on how constructions of race impact people of color. White scholars later engaged with CRT, also emphasizing people of color. By contrast, Haney López engages with whiteness, namely, white-specific experiences, perspectives, and behaviors.

Judges presiding over racial prerequisite cases struggled to define whiteness, turning to amici or friend of the court briefs, anthropological studies, and encyclopedias for guidance. Yet even with these tools, they were unable to articulate clearly what constituted “white persons.” White privilege helps explain this phenomenon: White people have the option not to think of themselves in racial terms, the phenomenon of transparency, whereas people of color do not. The issue of naturalization is equally important. Prerequisite cases did not simply naturalize white people as citizens; they also figuratively naturalized white identity. Many prerequisite cases relied on common knowledge definitions of whiteness. Locating race in the sphere of common knowledge presented it as natural, explaining the persistence of transparency.

Courts constructed whiteness in myriad ways. Although judges didn’t provide a list of characteristics defining whiteness, they determined, on a case-by-case basis, who was not white. Thus, they treated race as “comparative taxonomies of relative difference” (20), rather than as absolute categories. Whiteness existed both in opposition to non-whiteness and was considered its superior.

Racial justice requires white people to see themselves in racial terms. In contrast to Flagg, who argued that white people should develop a “positive” white racial identity, Haney López eschews the concept of positivity, calling it redundant, at best, and dangerous, at worst. Whiteness is already defined in positive terms and in opposition to non-whiteness. Moreover, systems and institutions maintain white dominance and non-white subordination. Haney López urges white readers to renounce the privilege whiteness affords—not out of guilt or self-deprecation, but to combat racial inequity.

Whiteness perpetuates systems of superiority and inferiority. White people must strive to overcome transparency to achieve racial self-awareness and dismantle systems of injustice. Early-20th century courts were unable to define whiteness in a consistent or rational manner, yet only one court recognized the fallacy of race.

Caveats

This section defines the parameters of White by Law. Haney López’s treatment of prerequisite cases focuses on processes of racial differentiation. He discusses only the first 37 reported court decisions, omitting the final 15 because they add little to his discussion. He treats other sources of information about naturalization, including magistrate records and census statistics, in a cursory manner. He historicizes the cases only insofar as they underscore contradictions in court practices. Similarly, he limits his discussion of white identity, focusing on the emergence of whiteness in the colonial period and its relationship to prerequisite cases.

Haney López does not present a full legal history of whiteness, omitting slave codes and contemporary interpretations of racial identity related to anti-discrimination laws. He restricts his discussion of whiteness to the dates of the prerequisite cases and the social status of the people establishing the typologies, namely, judges. His book is grounded in early 20th century cases. As such, it is not concerned with contemporary debates about citizenship rights and privileges, or with strains of resurgent nativism in the US.