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.