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VOLUME 106 JUNE 1993 NUMBER 8

HARVARD LAW REVIEW

WHITENESS AS PROPERTY

Cheryl I. Harris

TABLE OF CONTENTS PAGE

I. INTRODUCTION ………………………………………………….. .17 O

II. THE CONSTRUCTION OF RACE AND THE EMERGENCE OF WHITENESS AS PROPERTY ……………………………………………………… 1715 A. Forms of Racialized Property: Relationships Between Slavery, Race, and

Property …………………………………………………….. 1716 z. The Convergence of Racial and Legal Status ……………………… 1716 2. Implications for Property …………………………………….. 1718

B. Forms of Racialized Property: Relationships Between Native American Land Seizure, Race, and Property …………………………………….. 1721

C. Critical Characteristics of Property and Whiteness ……………………. 1724 x. Whiteness as a Traditional Form of Property ……………………… 1725 2. Modem Views of Property as Defining Social Relations …………….. 1728 3. Property and Expectations ……………………………………. 1729 4. The Property Functions of Whiteness ……………………………. 1731

(a) Rights of Disposition …………………………………….. 1731 (b) Right to Use and Enjoyment ………………………………. 1734 (c) Reputation and Status Property …………………………….. 1734 (d) The Absolute Right to Exclude ……………………………… 1736

D. White Legal Identity: The Law’s Acceptance and Legitimation of Whiteness as Property …………………………………………………….. 1737 x. Whiteness as Racialized Privilege ………………………………. 1741 2. Whiteness, Rights, and National Identity ………………………… 1744

m. BOUND BY LAW: THE PROPERTY INTEREST IN WHITENESS AS LEGAL DOCTRINE IN PLESSY AND BROWN …………………………………………… 1745 A. Plessy ………………………………………………………. 1746

B. Brown I …………………………………………………….. 1750 C. Brown II ……………………………………………………. 1754 D. Brown’s M ixed Legacy …………………………………………. 2756

IV. THE PERSISTENCE OF WHITENESS AS PROPERTY ……………………….. 1757 A. The Persistence of Whiteness as Valued Social Identity ……………….. 1758 B. Subordination Through Denial of Group Identity …………………….. 1761 C. Subjugation Through Affirmative Action Doctrine …………………….. 1766

z. Bakke ……………………………………………………. 1769

1707

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z. Croson …………………………………………………… 1773 3. W ygant …………………………………………………… 1776

V. DE-LEGITIMATING THE PROPERTY INTEREST IN WHITENESS THROUGH AFFIRMATIVE ACTION …………………………………………….. 1777 A. Corrective Justice, Sin, and Whiteness as Property …………………… 1781 B. Affirmative Action: A New Form of Status Property? ………………….. 1784 C. What Affirmative Action Has Been; What Affirmative Action Might Become .. 1787

VI. CONCLUSION ……………………………………………………. 1791

ARTICLES

WHITENESS AS PROPERTY Cheryl I. Harris*

Issues regarding race and racial identity as well as questions pertaining to property rights and ownership have been prominent in much public dis- course in the United States. In this article, Professor Harris contributes to this discussion by positing that racial identity and property are deeply interrelated concepts. Professor Harris examines how whiteness, initially constructed as a form of racial identity, evolved into a form of property, historically and presently acknowledged and protected in American law. Professor Harris traces the origins of whiteness as property in the parallel systems of domination of Black and Native American peoples out of which were created racially contingent forms of property and property rights. Fol- lowing the period of slavery and conquest, whiteness became the basis of racialized privilege – a type of status in which white racial identity provided the basis for allocating societal benefits both private and public in character. These arrangements were ratified and legitimated in law as a type of status property. Even as legal segregation was overturned, whiteness as property continued to serve as a barrier to effective change as the system of racial classification operated to protect entrenched -power.

Next, Professor Harris examines how the concept of whiteness as property persists in current perceptions of racial identity, in the law’s misperception of group identity and in the Court’s reasoning and decisions in the arena of affirmative action. Professor Harris concludes by arguing that distortions in affirmative action doctrine can only be addressed by confronting and exposing the property interest in whiteness and by acknowledging the distributive justification and function of affirmative action as central to that task.

she walked into forbidden worlds impaled on the weapon of her own pale skin she was a sentinel at impromptu planning sessions of her own destruction ….

Cheryl I. Harris, poem for alma’

* Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology; B.A. 1973, Wellesley College; J.D. 1978, Northwestern University. My thanks for comments and support to members of the Third Midwestern People of Color Legal Scholarship Conference to whom I first presented this paper and to members of the Third and Fourth Critical Race Theory Workshops whose work and discussion inspired me to pursue this project. I especially must thank Lisa Ikemoto and Leland Ware who provided very thoughtful comments on earlier drafts. The support of Joan Steinman, Marty Malin, Steve Heyman, A. Dan Tarlock, and all the members of the faculty who provided input was most helpful. I also appreciate the encouragement offered by Gerald Torres and Linda Greene. The research assistance provided by Terry Lewis, Britt Shawver, Ron Haywood, and Jordan Marsh was also invaluable, as was the secretarial support offered by Carol Johnson and Inis Petties. This paper would not have been possible without the work and support of Derrick Bell. Beyond all reasonable expectations, Neil Gotanda has provided invaluable insights, support, and encouragement. For his contri- butions, I thank him most sincerely. This paper was supported by the Marshall D. Ewell Research Fund.

I Cheryl I. Harris, poem for alma (ggo) (unpublished poem, on file at the Harvard Law School Library).

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[P]etitioner was a citizen of the United States and a resident of the state of Louisiana of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws . . . and thereupon entered a passenger train and took possession of a vacant seat in a coach where passengers of the white race were accommodated.

Plessy v. Ferguson 2

I. INTRODUCTION

n the 1930s, some years after my mother’s family became part of the great river of Black 3 migration that flowed north,

4 my Missis- sippi-born grandmother was confronted with the harsh matter of eco- nomic survival for herself and her two daughters. Having separated from my grandfather, who himself was trapped on the fringes of economic marginality, she took one long hard look at her choices and presented herself for employment at a major retail store in Chicago’s central business district. This decision would have been unremarkable for a white woman in similar circumstances, but for my grandmother, it was an act of both great daring and self-denial, for in so doing she was presenting herself as a white woman. In the parlance of racist America, she was “passing.”

Her fair skin, straight hair, and aquiline features had not spared her from the life of sharecropping into which she had been born in

2 163 U.S. 537, 538 (I896).

3 I use the term “Black” throughout the paper for the reasons articulated by Professor Kimber6 Crenshaw. I share her view that “Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.” KimberlC W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidis- crimination Law, ioi HARV. L. REV. 1331, 1332 n.2 (1988). According to W.E.B. DuBois, “tihe word ‘Negro’ was used for the first time in the world’s history to tie color to race and blackness to slavery and degradation.” W.E. BURGHARDT Du Bois, THE WORLD AND AFRICA 20 (1965). The usage of the lower case “N” in “negro” was part of the construction of an inferior image of Blacks that provided justification for and a defense of slavery. See W.E.B. Du Bois, That Capital “N,” in 2 THE SEVENTH SON 12, 13 (Julius Lester ed., 1971). Thus, the use of the upper case and lower case in reference to racial identity has a particular political history. Although “white” and “Black” have been defined oppositionally, they are not functional opposites. “White” has incorporated Black subordination; “Black” is not based on domination. See dis- cussion infra p. 1785. “Black” is naming that is part of counterhegemonic practice.

4 The Great Migration of Blacks from the rural South to urban centers between igio and 194o doubled the percentage of Blacks living in the North and West. See I GUNNAR MYRDAL, AN AMERICAN DILEMMA 183 (1944). The second major wave of Black migration, during the 1940s, increased the Black population in Northern cities. For example, in Chicago, it increased by over 70 percent. See NICHOLAS LEMANN, THE PROMISED LAND 70 (1991).

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anywhere/nowhere, Mississippi – the outskirts of Yazoo City. But in the burgeoning landscape of urban America, anonymity was pos- sible for a Black person with “white” features. She was transgressing boundaries, crossing borders, spinning on margins, traveling between dualities of Manichean space, rigidly bifurcated into light/dark, good/ bad, white/Black. No longer immediately identifiable as “Lula’s daughter,” she could thus enter the white world, albeit on a false passport, not merely passing, but trespassing.

Every day my grandmother rose from her bed in her house in a Black enclave on the south side of Chicago, sent her children off to a Black school, boarded a bus full of Black passengers, and rode to work. No one at her job ever asked if she was Black; the question was unthinkable. By virtue of the employment practices of the “fine establishment” in which she worked, she could not have been. Ca- tering to the upper-middle class, understated tastes required that Blacks not be allowed.

She quietly went about her clerical tasks, not once revealing her true identity. She listened to the women with whom she worked discuss their worries – their children’s illnesses, their husbands’ dis- appointments, their boyfriends’ infidelities – all of the mundane yet critical things that made up their lives. She came to know them but they did not know her, for my grandmother occupied a completely different place. That place – where white supremacy and economic domination meet – was unknown turf to her white co-workers. They remained oblivious to the worlds within worlds that existed just be- yond the edge of their awareness and yet were present in their very midst.

Each evening, my grandmother, tired and worn, retraced her steps home, laid aside her mask, and reentered herself. Day in and day out, she made herself invisible, then visible again, for a price too inconsequential to do more than barely sustain her family and at a cost too precious to conceive. She left the job some years later, finding the strain too much to bear.

From time to time, as I later sat with her, she would recollect that period, and the cloud of some painful memory would pass across her face. Her voice would remain subdued, as if to contain the still remembered tension. On rare occasions she would wince, recalling some particularly racist comment made in her presence because of her presumed, shared group affiliation. Whatever retort might have been called for had been suppressed long before it reached her lips, for the price of her family’s well-being was her silence. Accepting the risk of self-annihilation was the only way to survive.

Although she never would have stated it this way, the clear and ringing denunciations of racism she delivered from her chair when advanced arthritis had rendered her unable to work were informed by those experiences. The fact that self-denial had been a logical

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choice and had made her complicit in her own oppression at times fed the fire in her eyes when she confronted some daily outrage inflicted on Black people. Later, these painful memories forged her total identification with the civil rights movement. Learning about the world at her knee as I did, these experiences also came to inform my outlook and my understanding of the world.

My grandmother’s story is far from unique. Indeed, there are many who crossed the color line never to return. Passing is well- known among Black people in the United Statess and is a feature of race subordination in all societies structured on white supremacy.

6

Notwithstanding the purported benefits of Black heritage in an era of

5 When I began to relate the subject matter of my research to Black friends and colleagues, in nearly every instance I was told, “I had an uncle . . . . I had a great aunt . . . . My grandfather’s brother left Alabama to go North as a white man and we never saw or heard from him again” or other similar stories. See also PATRICIA J. WILLIAMS, On Being the Object of Property, in THE ALCHEMY OF RACE AND RIGHTS 216, 223 (1991) (recounting the story of Marjorie, Williams’s godmother, who was given away by her mother at the age of six in order that her mother could “pass” and marry a white man); Gregory H. Williams, Neither Black Nor White: A Childhood on the Color Line 8 (i991) (unpublished manuscript, on file at the Harvard Law School Library) (describing the childhood of a law professor whose father passed for white, a fact unknown to his son until the age of ten).

Gunnar Myrdal’s discussion of the phenomenon of “passing” in his 1944 study of race illuminates the social context of my grandmother’s story and the stories of many like her.

“[Plassing” means that a Negro becomes a white man, that is, moves from the lower to the higher caste. In the American caste order, this can be accomplished only by the deception of the white people with whom the passer comes to associate and by a conspiracy of silence on the part of other Negroes who might know about it …. In the Northern and Border states it seems to be relatively common for light-skinned Negroes to “pass professionally” but preserve a Negro social life. Negro girls have practically no chance of getting employment as stenographers or secretaries, salesclerks in department stores, telephone operators, outside the establishments run by Negroes for Negroes. In most communities their chances are slight even to become regular teachers, social workers, or the like, if they do not conceal their Negro ancestry. . . . Not only in these female middle class occupations but in all male and female trades where Negroes are excluded, there must be a similar incentive to attempt to “pass professionally.”. . . In view of the advantages to be had by passing, it is not difficult to explain why Negroes pass, profes- sionally or completely. It is more difficult, however, to explain why Negroes do not pass over to the white race more often than they actually do.

MYRDAL, supra note 4, at 683-86 (944). 6 Because of the relative privileges of whites, the principal incentive is for Blacks to pass as

whites, not vice versa. See Marvin Harris, Referential Ambiguity in the Calculus of Brazilian Racial Identity, in AFRO-AMERICAN ANTHROPOLOGY: CONTEMPORARY PERSPECTIVES 75, 75- 76 (Norman E. Whitten, Jr. & John F. Szwed eds., 1970) (describing the more fluid racial classification systems of the Caribbean, Brazil, and other parts of Latin America that, unlike the U.S. model that denotes as Black anyone with any known Black heritage, admits of intermediate categories of mixed blood, but still holds that “money whitens,” thereby equating “white” with higher class position and reflecting that white is preferred and dominant). See generally MARVIN HARRIS, PATTERNS OF RACE IN THE AMERICAS 39-40, 56-59 (1964) (describ- ing the phenomena of Indians “passing” in Mexico, and the complex racial system of Brazil). However, there have been recent accounts of “reverse passing,” that is, whites attempting to be reclassified as Black or Hispanic for purposes of affirmative action programs. See infra note 319.

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affirmative action, passing is not an obsolete phenomenon that has slipped into history.

7

The persistence of passing is related to the historical and continu- ing pattern of white racial domination and economic exploitation that has given passing a certain economic logic. 8 It was a given to my grandmother that being white automatically ensured higher economic returns in the short term, as well as greater economic, political, and social security in the long run. Becoming white meant gaining access to a whole set of public and private privileges that materially and permanently guaranteed basic subsistence needs and, therefore, sur- vival. Becoming white increased the possibility of controlling critical aspects of one’s life rather than being the object of others’ domination.

My grandmother’s story illustrates the valorization of whiteness as treasured property in a society structured on racial caste. In ways so embedded that it is rarely apparent, the set of assumptions, privileges, and benefits that accompany the status of being white have become a valuable asset that whites sought to protect and that those who passed sought to attain – by fraud if necessary. Whites have come to expect and rely on these benefits, and over time these expectations have been affirmed, legitimated, and protected by the law. Even though the law is neither uniform nor explicit in all instances, in protecting settled expectations based on white privilege, American law has recognized a property interest in whiteness 9 that, although unack-

7 See, e.g., Doe v. State of Louisiana, 479 So.2d 369, 37r (La. Ct. App. 1985) (rejecting the attempt by a family whose parents had been classified as “colored” to be reclassified as white).

8 See WILLIAMS, supra note 5, at 8 (theorizing that the author’s father’s masquerade as a white man was motivated by the belief that passing brought “greater job opportunities”). •

One recurrent image of Blacks in cinema was the “tragic mulatto” who assassinated her Black origins in order to attain a better life in the white world. Although many of the cinematic versions of this tale have been cautionary morality plays illustrative of the tragic consequences of self-denial, the underlying economic rationale for the hero(ine) to pass was so self-evident as never to be challenged nor even explicitly stated. See generally DONALD BOGLE, TOMS, COONS, MULATTOES, MAMMIES, AND BUCKS: AN INTERPRETIVE HISTORY OF BLACKS IN AMERICAN FILMS 9 (1989) (discussing film images of the “tragic mulatto”).

9 My exploration of this concept began in March, iggi, when I participated in a conference on “Constitution Making in a New South Africa,” held at the University of the Western Cape in South Africa. (The conference was jointly sponsored by the National Conference of Black Lawyers, the National Lawyers Guild and the National Association of Democratic Lawyers in South Africa.) My paper argued that American law had implicitly recognized a property interest in whiteness. The concept resonated in the South African context because of the similar and even more extreme patterns of white domination evident there.

As I later discovered, the concept of a “property interest in whiteness” is one that has been recognized in modern legal theory. Professor Bell in his chronicle, “Xerces and the Affirmative Action Myth,” noted the argument advanced in Plessy v. Ferguson, 163 U.S. 537 (I896), regarding the property interest in whiteness and the extent to which affirmative action policies are seen as a threat to “property interests of identifiable whites.” Derrick Bell, Xerces and the Affirmative Action Myth, 57 GEO. WASH. L. REv. 1595, 602, 16o8 (1989). Finding that Professor Bell, to whom I am deeply indebted intellectually, had identified this concept before me only served to confirm my belief that further exploration of this idea is a worthwhile project.

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nowledged, now forms the background against which legal disputes are framed, argued, and adjudicated.

My Article investigates the relationships between concepts of race and property and reflects on how rights in property are contingent on, intertwined with, and conflated with race. Through this entangled relationship between race and property, historical forms of domination have evolved to reproduce subordination in the present. In Part II, I examine the emergence of whiteness as property and trace the evo- lution of whiteness from color to race to status to property as a progression historically rooted in white supremacy’ 0 and economic hegemony over Black and Native American peoples. The origins of whiteness as property lie in the parallel systems of domination of Black and Native American peoples out of which were created racially contingent forms of property and property rights. I further argue that whiteness shares the critical characteristics of property even as the meaning of property has changed over time. In particular, whiteness and property share a common premise – a conceptual nucleus – of a right to exclude. This conceptual nucleus has proven to be a pow- erful center around which whiteness as property has taken shape. Following the period of slavery and conquest, white identity became the basis of racialized privilege that was ratified and legitimated in law as a type of status property. After legalized segregation was overturned, whiteness as property evolved into a more modern form through the law’s ratification of the settled expectations of relative white privilege as a legitimate and natural baseline.

Part III examines the two forms of whiteness as property – status property and modern property – that are the submerged text of two paradigmatic cases on the race question in American law, Plessy v. Ferguson” and Brown v. Board of Education.12 As legal history, they illustrate an important transition from old to new forms of whiteness as property. Although these cases take opposite interpretive stances regarding the constitutional legitimacy of legalized racial segregation, the property interest in whiteness was transformed, but not discarded, in the Court’s new equal protection jurisprudence.

Part IV considers the persistence of whiteness as property. I first examine how subordination is reinstituted through modern conceptions

10 1 adopt here the definition of white supremacy utilized by Frances Lee Ansley: By “white supremacy” I do not mean to allude only to the self-conscious racism of white supremacist hate groups. I refer instead to a political, economic, and cultural system in which whites overwhelmingly control power and material resources, conscious and un- conscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.

Frances L. Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 CORNELL L. REV. 993, 1024 n.129 (1989).

11 i63 U.S. 537 (1896). 12 347 U.S. 483 (i954).

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WHITENESS AS PROPERTY

of race and identity embraced in law. Whiteness as property has taken on more subtle forms, but retains its core characteristic – the legal legitimation of expectations of power and control that enshrine the status quo as a neutral baseline, while masking the maintenance of white privilege and domination. I further identify the property interest in whiteness as the unspoken center of current polarities around the issue of affirmative action. As a legacy of slavery and de jure and de facto race segregation, the concept of a protectable prop- erty interest in whiteness permeates affirmative action doctrine in a manner illustrated by the reasoning of three important affirmative action cases – Regents of the University of California v. Bakke,

13

City of Richmond v. J.A. Croson & Co., 1 4 and Wygant v. Jackson Board of Education.’5

Finally, in Part V, I offer preliminary thoughts on a way out of the conundrum created by protecting whiteness as a property interest. I suggest that affirmative action, properly conceived and recon- structed, would de-legitimate the property interest in whiteness. I do not offer here a complete reformulation of affirmative action, but suggest that focusing on the distortions created by the property interest in whiteness would provoke different questions and open alternative perspectives on the affirmative action debate. The inability to see affirmative action as more than a search for the “blameworthy” among “innocent” individuals is tied to the inability to see the property in- terest in whiteness. Thus reconstructed, affirmative action would challenge the characterization of the unfettered right to exclude as a legitimate aspect of identity and property.

II. THE CONSTRUCTION OF RACE AND THE EMERGENCE OF WHITENESS AS PROPERTY

The racialization of identity and the racial subordination of Blacks and Native Americans provided the ideological basis for slavery and conquest.1 6 Although the systems of oppression of Blacks and Native Americans differed in form – the former involving the seizure and appropriation of labor, the latter entailing the seizure and appropria- tion of land – undergirding both was a racialized conception of property implemented by force and ratified by law.

13 438 U.S. 265 (1978). 14 488 U.S. 469 (1989). 15 476 U.S. 267 (1986). 16 See RONALD TAKAKi, IRON CAGES: RACE AND CULTURE IN I9TH-CENTURY AMERICA II

(iggo) (describing how English definitions of Blacks and Native Americans as “savage” and “instinctual” “encouraged English immigrants to appropriate Indian land and black labor as they settled and set up production in the New World, and enabled white colonists to justify the actions they had committed against both peoples”).

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The origins of property rights in the United States are rooted in racial domination. 17 Even in the early years of the country, it was not the concept of race alone that operated to oppress Blacks and Indians; rather, it was the interaction between conceptions of race and property that played a critical role in establishing and maintaining racial and economic subordination.

The hyper-exploitation of Black labor was accomplished by treat- ing Black people themselves as objects of property. Race and property were thus conflated by establishing a form of property contingent on race – only Blacks were subjugated as slaves and treated as property. Similarly, the conquest, removal, and extermination of Native Amer- ican life and culture were ratified by conferring and acknowledging the property rights of whites in Native American land. Only white possession and occupation of land was validated and therefore privi- leged as a basis for property rights. These distinct forms of exploi- tation each contributed in varying ways to the construction of white- ness as property.

A. Forms of Racialized Property: Relationships Between Slavery, Race, and Property

r. The Convergence of Racial and Legal Status. – Although the early colonists were cognizant of race,’ 8 racial lines were neither consistently nor sharply delineated among or within all social groups. 19 Captured Africans sold in the Americas were distinguished from the population of indentured or bond servants – “unfree” white labor – but it was not an irrebuttable presumption that all Africans were

17 In reviewing ROBERT WILLIAMS, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE OF CONQUEST (Iggo), an eloquent and meticulous work on the American Indian in Western legal doctrine, Joseph William Singer draws out the organic connections between property rights and race as the pattern of conquest of native lands exemplified:

[P]roperty and sovereignty in the United States have a racial basis. The land was taken by force by white people from peoples of color thought by the conquerors to be racially inferior. The close relation of native peoples to the land was held to be no relation at all. To the conquerors, the land was “vacant.” Yet it required trickery and force to wrest it from its occupants. This means that the title of every single parcel of property in the United States can be traced to a system of racial violence.

Joseph W. Singer, The Continuing Conquest: American Indian Nations, Property Law, and Gunsmoke, I RECONSTRUCTION 97, 102 (i99i); see Frances L. Ansley, Race and the Core Curriculum in Legal Education, 79 CAL. L. REV. ISII, 1523 (i99i) (citing the history of discovery and conquest of American Indian land to be illustrative of the fact that “race is at the heart of American property law”).

1 8 See WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE

NEGRO, 155o-I812, at 3-43 (1968) (describing early colonial racism). 19 Indeed, between x607 and 18oo, racial lines among the lower classes were quite blurred;

not only were social activities between Blacks and lower class whites sometimes racially inte- grated, but also political resistance in the form of urban slave revolts sometimes included whites. See DAVID ROEDIGER, THE WAGES OF WHITENESS 24 (1991).

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“slaves” or that slavery was the only appropriate status for them. 20

The distinction between African and white indentured labor grew, however, as decreasing terms of service were introduced for white bond servants.2 1 Simultaneously, the demand for labor intensified, resulting in a greater reliance on African labor and a rapid increase in the number of Africans imported into the colonies.

2 2

The construction of white identity and the ideology of racial hi- erarchy also were intimately tied to the evolution and expansion of the system of chattel slavery. The further entrenchment of plantation slavery was in part an answer to a social crisis produced by the eroding capacity of the landed class to control the white labor popu- lation.2 3 The dominant paradigm of social relations, however, was that, although not all Africans were slaves, virtually all slaves were not white. It was their racial otherness that came to justify the subordinated status of Blacks.2 4 The result was a classification system that “key[ed] official rules of descent to national origin” so that “[m]embership in the new social category of ‘Negro’ became itself sufficient justification for enslaveability. ‘ 25 Although the cause of the increasing gap between the status of African and white labor is con- tested by historians, 26 it is clear that “[tihe economic and political

20 According to John Hope Franklin, “there is no doubt that the earliest Negroes in Virginia

occupied a position similar to that of the white servants in the colony.” JOHN H. FRANKLIN, U.S. COMM’N ON CIVIL RIGHTS, FREEDOM TO THE FREE 71 (1963), cited in A. LEON HIGGIN- BOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 21 (1978). The legal disabilities imposed on Blacks were not dissimilar to those imposed on non- English servants of European descent, as the principal line of demarcation was between Christian and non-Christian servants. See Raymond T. Diamond & Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LoY. L. REv. 255, 259 n.I9 (1983). Indeed, “the word slave had no meaning in English law.” THOMAS F. GOSSETT, RACE: THE HISTORY OF AN IDEA IN AMERICA 29 (1963). Later statutory provisions prohibited Blacks who were slaves from attaining their freedom by converting to Christianity. See, e.g., HIGGINBOTHAM, supra, at 200 (citing a South Carolina statute of 169o that declared “no slave shall be free by becoming a christian”).

21 See GoSSETT, supra note 20, at 30. 22 See id. 23 See EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF

COLONIAL VIRGINIA 295-300 (I975). 24 See Neil Gotanda, A Critique of “Our Constitution is Colorblind,” 44 STAN. L. REV I,

34 (1991). 25 Id.; see also Christopher Lasch, THE WORLD OF NATIONS 17 (1974) (asserting that the

concept of “Negro” emerged from “related … concepts of African, heathen and savage – at the very point in time when large numbers of men and women were beginning to question the moral legitimacy of slavery”). The implications are that, as the system of chattel slavery came under fire, it was rationalized by an ideology of race that further differentiated between white and Black.

26 Compare GOSSETT, supra note 20, at 29-30 (arguing that the terms of service for white workers were decreased in order to attract white labor in the colonies) with HIGGINBOTHAM, supra note 20, at 26 (citing masters’ fears of a potential alliance between white indentured servants and the rapidly expanding African population). See generally DAVID W. GALENSON,

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interests defending Black slavery were far more powerful than those defending indentured servitude.”

27

By the I66os, the especially degraded status of Blacks as chattel slaves was recognized by law.2 8 Between 168o and 1682, the first slave codes appeared, codifying the extreme deprivations of liberty already existing in social practice. Many laws parceled out differential treatment based on racial categories: Blacks were not permitted to travel without permits, to own property, to assemble publicly, or to own weapons; nor were they to be educated.2 9 Racial identity was further merged with stratified social and legal status: “Black” racial identity marked who was subject to enslavement; “white” racial iden- tity marked who was “free” or, at minimum, not a slave. 30 The ideological and rhetorical move from “slave” and “free” to “Black” and “white” as polar constructs marked an important step in the social construction of race.

2. Implications for Property. – The social relations that produced racial identity as a justification for slavery also had implications for the conceptualization of property. This result was predictable, as the institution of slavery, lying at the very core of economic relations, was bound up with the idea of property. Through slavery, race and economic domination were fused. 3 1

Slavery produced a peculiar, mixed category of property and hu- manity – a hybrid possessing inherent instabilities that were reflected in its treatment and ratification by the law. The dual and contradic- tory character of slaves as property and persons was exemplified in the Representation Clause of the Constitution. Representation in the

WHITE SERVITUDE IN COLONIAL AMERICA: AN ECONOMIC ANALYSIS I59-60 (1981) (arguing that the increased demand for skilled labor, a limited pool of low-cost, skilled white labor, and the decline in the cost of training for the slave population that was increasingly born in the Americas, combined to make slave labor more economically attractive); Diamond & Cottrol, supra note 2o, at 26o (advancing an argument in accord with Higginbotham).

27 ROEDIGER, supra note x9, at 32. 28 In i661, the Maryland legislature enacted a bill providing that “‘All Negroes and other

slaves shall serve Durante Vita [for life].'” GOSSETT, supra note 20, at 30. 29 See HIGGINBOTHAM, supra note 20, at 39-40. 30 For a catalogue of pre-Civil War cases articulating the general rule that a Black person

was presumed to be a slave, see CHARLES S. MANGUM, JR., THE LEGAL STATUS OF THE NEGRO 2 n.2 (1940).

31 The system of racial oppression grounded in slavery was driven in large measure (although by no means exclusively) by economic concerns. See MORGAN, supra note 23, at 295-315; LESLIE H. OWENS, THIS SPECIES OF PROPERTY passim (1976). Whether from the perspective of Southern slave owners or early Northern capitalists, the slave trade, slave labor, and the direct and indirect profits that flowed from it were central to an economic structure that benefited the nation. Thus, the tension over the issue of slavery ultimately resulted in the now well- documented set of constitutional compromises that subordinated the humanity of Black people to the economic and political interests of the white, propertied class. See DERRICK BELL, AND WE ARE NOT SAVED 34 (1987).

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House of Representatives was apportioned on the basis of population computed by counting all persons and “three-fifths of all other persons” – slaves. 32 Gouveneur Morris’s remarks before the Constitutional Convention posed the essential question: “Upon what principle is it that slaves shall be computed in the representation? Are they men? Then make them Citizens & let them vote? Are they property? Why then is no other property included?”

33

The cruel tension between property and humanity was also re- flected in the law’s legitimation of the use of Blackwomen’s 34 bodies as a means of increasing property. 35 In 1662, the Virginia colonial assembly provided that “[c]hildren got by an Englishman upon a Negro woman shall be bond or free according to the condition of the mother …. -36 In reversing the usual common law presumption that the status of the child was determined by the father, the rule facilitated the reproduction of one’s own labor force. 3 7 Because the children of Blackwomen assumed the status of their mother, slaves were bred through Blackwomen’s bodies. The economic significance of this form of exploitation of female slaves should not be underesti- mated. Despite Thomas Jefferson’s belief that slavery should be abol-

32 U.S. CONST. art. I, § 2, ci. 3. 33 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 222 (Max Farrand ed.,

1911). 34 My use of the term “Blackwomen” is an effort to use language that more clearly reflects

the unity of identity as “Black” and “woman,” with neither aspect primary or subordinate to the other. It is an attempt to realize in practice what has been identified in theory – that, as Kimberld Crenshaw notes, Blackwomen exist “at the crossroads of gender and race hierarchies.” Kimberl6 Crenshaw, Whose Story Is It, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, EN-GENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 402, 403 (Toni Morrison ed., 1992). Indeed, this essay projects a powerful and complex vision of blackwomen that forms the foundation of my construction of this term:

The particular experience of black women in the dominant cultural ideology of American society can be conceptualized as intersectional. Intersectionality captures the way in which the particular location of black women in dominant American social relations is unique and in some senses unassimilable into the discursive paradigms of gender and race domination.

Id. at 404. 35 This use of slave women made them a type of sexual property, and particularly subject

to the control of white males. See Margaret Burnham, An Impossible Marriage: Slave Law and Family Law, 5 LAW & INEQ. J. 187, 197-99 (1987).

36 HIGGINBOTHAM, supra note 20, at 43. By the late 16oos and early I7oos, the legislatures of various colonies adopted similar rules of classification. See, e.g., id. at 128 (citing a 17o6 New York statute); id. at 252 (citing a 1755 Georgia law).

37 See id. at 44. According to Paula Giddings, the Virginia statute completed “[tihe circle of denigration . . . [in] combin[ing] racism, sexism, greed, and piety” in that it “laid women open to the most vicious exploitation.” She noted that “a master could save the cost of buying new slaves by impregnating his own slave, or for that matter having anyone impregnate her.” PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE

AND SEX IN AMERICA 37 (1984).

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ished, like other slaveholders, he viewed slaves as economic assets, noting that their value could be realized more efficiently from breeding than from labor. A letter he wrote in 18o5 stated: “I consider the labor of a breeding woman as no object, and that a child raised every 2 years is of more profit than the crop of the best laboring man.

‘3 8

Even though there was some unease in slave law, reflective of the mixed status of slaves as humans and property, the critical nature of social relations under slavery was the commodification of human beings. Productive relations in early American society included vary- ing forms of sale of labor capacity, many of which were highly op- pressive; but slavery was distinguished from other forms of labor servitude by its permanency and the total commodification attendant to the status of the slave. Slavery as a legal institution treated slaves as property that could be transferred, assigned, inherited, or posted as collateral. 39 For example, in Johnson v. Butler,40 the plaintiff sued the defendant for failing to pay a debt of $496 on a specified date. Because the covenant had called for payment of the debt in “money or negroes,” the plaintiff contended that the defendant’s tender of one negro only, although valued by the parties at an amount equivalent to the debt, could not discharge the debt. The court agreed with the plaintiff. 4 1 This use of Africans as a stand-in for actual currency highlights the degree to which slavery “propertized” human life.

Because the “presumption of freedom [arose] from color [white]” and the “black color of the race [raised] the presumption of slavery,”

42

whiteness became a shield from slavery, a highly volatile and unstable form of property. In the form adopted in the United States, slavery made human beings market-alienable and in so doing, subjected hu- man life and personhood – that which is most valuable – to the ultimate devaluation. Because whites could not be enslaved or held as slaves, 43 the racial line between white and Black was extremely

38 Letter from Thomas Jefferson to John Jordan (Dec. 21, i8os), cited in TAKAKI, supra note I6, at 44.

39 By 2705, Virginia had classified slaves as real property. See HIGGINBOTHAM, supra note 20, at 52. In Massachusetts and South Carolina, slaves were identified as chattel. See id. at 78, 211.

40 4 Ky. (I Bibb) 97 (815). 41 Id. at 98. The court held that the defendant was not entitled to judgment on the demurrer

for three reasons, including the following: The defendant, under the terms of the covenant, no doubt had his election to pay either in money or negroes; but in case of his choosing the latter alternative, as the covenant requires the payment to be made in negroes, in the plural number, the plaintiff could not be compelled to receive one only. The tender therefore, of a single negro, though of value equal to the amount to be paid, could not discharge the covenant.

Id. 42 I THOMAS R.R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITED

STATES §§ 68-69, at 66-67 (1858). 43 See id. § 68, at 66.

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critical; it became a line of protection and demarcation from the potential threat of commodification, and it determined the allocation of the benefits and burdens of this form of property. White identity and whiteness were sources of privilege and protection; their absence meant being the object of property.

Slavery as a system of property facilitated the merger of white identity and property. Because the system of slavery was contingent on and conflated with racial identity, it became crucial to be “white,” to be identified as white, to have the property of being white.

44

Whiteness was the characteristic, the attribute, the property of free human beings.

B. Forms of Racialized Property: Relationships Between Native American Land Seizure, Race, and Property

Slavery linked the privilege of whites to the subordination of Blacks through a legal regime that attempted the conversion of Blacks into objects of property. Similarly, the settlement and seizure of Na- tive American land supported white privilege through a system of property rights in land in which the “race” of the Native Americans rendered their first possession rights invisible and justified conquest. This racist formulation embedded the fact of white privilege into the very definition of property, marking another stage in the evolution of the property interest in whiteness. Possession – the act necessary to lay the basis for rights in property – was defined to include only the cultural practices of whites. This definition laid the foundation for the idea that whiteness – that which whites alone possess – is valuable and is property.

Although the Indians were the first occupants and possessors of the land of the New World, their racial and cultural otherness

45

allowed this fact to be reinterpreted and ultimately erased as a basis for asserting rights in land. Because the land had been left in its natural state, untilled and unmarked by human hands, it was “waste”

44 Kenneth Minogue states that property performs the critical function of identification: “(P]roperty is the concept by which we find order in things. The world is a bundle of things, and things are recognized in terms of their attributes or properties.” Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in NOMOS XXII: PROPERTY 3, II (J. Roland Pennock & John W. Chapman eds., ig8o). Indeed, he suggests that it is impossible to identify anyone or anything except by reference to their properties. See id. at 12.

4s Takaki describes the construction of Native Americans as savages through political doc- trine and cultural imagery – what Herman Melville called the “metaphysics of Indian hating” – as an ideology that facilitated the removal and extermination of Native Americans. See TAKAKI, supra note 16, at 81 (citation omitted). The “savage Indian” also served as the referential opposite by which whites defined themselves to be civilized. See generally id. at 56 (stating that Jefferson’s efforts to civilize the Indians affirmed a definition of civilization and progress measured by distance from the savagery of the Indian); id. at 276-8o (describing George Custer’s view of the “heathen and savage” Indians as “counterpoint[s] to civilization”).

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and, therefore, the appropriate object of settlement and appropria- tion. 46 Thus, the possession maintained by the Indians was not “true” possession and could safely be ignored.4 7 This interpretation of the rule of first possession effectively rendered the rights of first possessors contingent on the race of the possessor. 48 Only particular forms of possession – those that were characteristic of white settlement – would be recognized and legitimated. 4 9 Indian forms of possession were perceived to be too ambiguous and unclear.

46 Thus, the Indians’ claim as first possessors was said to rest on a “questionable foundation,”

according to John Quincy Adams, because the right of the hunter could not preempt and provide the basis for an exclusive claim for a “few hundreds” against the needs of “millions.” His argument reflected a widely held consensus. GOSSETT, supra note 20, at 230 (citations omitted). The land that lay in the common, left “wholly to nature,” was the proper subject of appropriation by one’s labor because these “great tracts of ground . . . [that] lie waste . . . are more than the people who dwell on it do, or can make use of.” JOHN LOCKE, Two TREATISES OF GovERN- MENT 137, 139 (photo. reprint I9go) (W.S. Carpenter ed., 1924) (3d ed. 1698). The forms of land use typical of Native American peoples were fluid and communal in nature. The American courts have held that governmental seizures of Indian property held under original Indian title do not offend the Takings Clause of the Fifth Amendment. Courts have reasoned that Indian property rights were not protected by the constitutional prohibition against taking private property without just compensation because the property rights of Native Americans were communal and inhered in the tribe rather than an individual. Secondly, courts have contended that Native American people had not established possession of the lands they claimed for. Although they had hunted and fished on the land, they had never enclosed it and allotted the land to individuals. See Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REv. I, 17-18 (iggi).

47 According to Carol Rose, the common law made a “choice among audiences” in refusing to dismiss legal claims to Indian land based on the assertion that “the Indians . . . had never done acts on the land sufficient to establish property in it. . . . [T]he Indians had never really undertaken those acts of possession that give rise to a property right.” Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 85-86 (i985). She states:

“[In defining the acts of possession that make up a claim to property, the law not only rewards the author of the ‘text’; it also puts an imprimatur on a particular symbolic system and on the audience that uses this system. Audiences that do not understand or accept the symbols are out of luck.”

Id. at 85. 48 See Joseph W. Singer, Re-reading Property, 27 NEW ENG. L. REV. 711, 720 (1992). 49 This redefinition of possession and occupancy at the theoretical level was accompanied at

the practical level by massive land dispossession that restricted Indians to reservations and designated hunting areas, established lines of demarcation by treaty that were later violated, effected land “sales” through fraud, trickery, or coercion, and led ultimately to campaigns of forced removals. See GOSSETT, supra note 20, at 228. Jefferson’s Indian policy, for example, had the stated goal of “civilizing” the Indians, which resulted in their land being taken by whites for development. The objective of making the Indians “willing to sell” was achieved by the threat of force and encouraging the exchange of lands for goods pushed on them through trading houses. See TAKAIU, supra note i6, at 60-62. Andrew Jackson’s campaign to dissolve the tribes, through both the forced removal of entire tribes and the land allotment program, was an attempt to make the Indians “citizens” and to coerce them to get rid of their lands. Under the land allotment program, Indians, as a condition of remaining on the land, were required to accept individual land grants that later were seized by land speculators through fraud or by creditors for debts. See id. at 92-1o7; see also ROBERT A. WILLIAMS, JR., THE AMERICAN

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The conquest and occupation of Indian land was wrapped in the rule of law.5 0 The law provided not only a defense of conquest and colonization, but also a naturalized regime of rights and disabilities, power and disadvantage that flowed from it, so that no further jus- tifications or rationalizations were required. 5 ‘ A key decision defend- ing the right of conquest was Johnson and Graham’s Lessee v. M’In- tosh,5 2 in which both parties to the action claimed the same land through title descendant from different Indian tribes. The issue spe- cifically presented was not merely whether Indians had the power to convey title, but to whom the conveyance could be made – to indi- viduals or to the government that “discovered” land.5 3 In holding that Indians could only convey to the latter, the Court reasoned that Indian title was subordinate to the absolute title of the sovereign that was achieved by conquest because “[c]onquest gives a title which the Courts of the conqueror cannot deny . . . . 4 If property is under-

INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST 274 (1990) (describing

the “time-honored” policy of “waging war on the Indians in order to force a land cession”). SO In Alexis de Tocqueville’s words, “the United States ha[s] accomplished this twofold

purpose [of extermination of Indians and deprivation of rights] … legally, philanthropically, • .. and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity.” I ALEXIS DE TOCQUE- VILLE, DEMOCRACY IN AMERICA 355 (Phillips Bradley ed. & Henry Reeve trans., 1945) (1835). As Rennard Strickland argues, these acts by the United States constituted genocide-at-law. See Rennard Strickland, Genocide-at-law: An Historic and Contemporary View of the Native Amer- ican Experience, 34 KAN. L. REV. 713, 714-15 (1986).

S1 See WILLIAMS, supra note 49, at 8. 52 21 U.S. (8 Wheat.) 543 (1823).

53 See id. at 563. Milner Ball’s reinterpretation of Johnson rejects the traditional reading that all rights held by American Indian nations were lost in conquest. Instead, he argues that the case held only that, by conquest, Indians lost the right to convey title to any country other than the United States. See Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. I, 29.

54 Johnson, 2i U.S. (8 Wheat.) at 588-89. According to Robert Williams, in rendering this decision, the Court “merely formalized the outcome of a political contest that the Founders had fought and resolved among themselves some forty years earlier.” WILLIAMS, supra note 49, at 231. Before Independence, radical colonists of the “landless” states – those without Crown charters specifying the territory available for settlement under the authority of the Crown – asserted the Indians’ natural law right to alienate their land to whomever they chose, without regard to approval of the sovereign. See id. at 229-30. On the other hand, colonists of the “landed” states, those who held original Crown charters, argued that the colonial charters, as expressions of the will of the sovereign, granted them rights to the land specified and, under the frequently broad language of the grant, rights to control the land extending to the frontier. See id. at 230.

However, the coherence of the views between the settlers was far more significant than their differences. Ultimately, the conflict was resolved through a political compromise reached by the Founders that allowed for frontier claims held by the landed states to be ceded to a federal sovereign that could then assert exclusive rights to eradicate Indian occupancy claims by conquest or purchase and to undertake reallocation. See Johnson, 21 U.S. (8 Wheat.) at 585-88. Not- withstanding the differences between the opposing settler groups, their shared assumptions were

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stood as a delegation of sovereign power – the product of the power of the state55 – then a fair reading of history reveals the racial oppression of Indians inherent in the American regime of property.

5 6

In Johnson and similar cases, courts established whiteness as a prerequisite to the exercise of enforceable property rights. Not all first possession or labor gave rise to property rights; rather, the rules of first possession and labor as a basis for property rights were qualified by race. 5 7 This fact infused whiteness with significance and value because it was solely through being white that property could be acquired and secured under law. Only whites possessed whiteness, a highly valued and exclusive form of property.

C. Critical Characteristics of Property and Whiteness

The legal legacy of slavery and of the seizure of land from Native American peoples is not merely a regime of property law that is (mis)informed by racist and ethnocentric themes. Rather, the law has established and protected an actual property interest in whiteness itself, which shares the critical characteristics of property and accords with the many and varied theoretical descriptions of property.

Although by popular usage property describes “things” owned by persons, or the rights of persons with respect to a thing,5 8 the concept

that the Indians’ rights to land as first possessors were subordinate to European claims, and that therefore conquest and occupation could give rise to a right.

55 See Joseph W. Singer, The Reliance Interest in Property, 40 SrAN. L. REV. 61x, 650-52 (1988).

s6 See generally Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REv. x, 1-8 (i99i) (exploring the deleterious effects of the Supreme Court’s formulation of tribal property rights). Parallel to the colonization of the Americas and the removal of the indigenous peoples from the land was the colonization of Africa and the removal of Africans from the continent. European conquest effected a horrific paradigm: as Europeans took Africans from the land, control of the land was taken from the Africans who remained. The result was that Africans who were removed from the continent became people without a country, and Africans on the continent became people without the legal capacity to control the land they occupied or to reap the benefits of the land they worked. The objective of capturing and enslaving Africans was to convert Africans and their descendants into property, or more accurately, into objects of property. The land dispossession of Africans on the continent, which was a central feature of colonialization, was accompanied by the introduction of regimes of property law that ratified the results of conquest and domination. See generally WALTER RODNEY, How EUROPE UNDER- DEVELOPED AFRICA passim (1972) (offering a historical account of the origins and impact of the slave trade and European imperialism on African development). Thus, both here and on the African continent, race domination,, imperialist conquest, and property rights were organically linked.

S7 See Singer, supra note 48, at 713. 58 See C.B. Macpherson, The Meaning of Property, in PROPERTY: MAINSTREAM AND CRIT-

ICAL POSITIONS I, 3 (C.B. Macpherson ed., 1978) [hereinafter PROPERTY]. Stephen Munzer characterizes the idea of property-as-“thing” as the popular conception and property-as-relations as “the sophisticated version of property.” STEPHEN R. MUNZER, A THEORY OF PROPERTY x6 (199o).

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of property prevalent among most theorists, even prior to the twen- tieth century, is that property may “consist[j of rights in ‘things’ that are intangible, or whose existence is a matter of legal definition.” 59

Property is thus said to be a right, not a thing, characterized as metaphysical, not physical. 60 The theoretical bases and conceptual descriptions of property rights are varied, ranging from first possessor rules, 61 to creation of value, 6 2 to Lockean labor theory, to personality theory, to utilitarian theory.6 3 However disparate, these formulations of property clearly illustrate the extent to which property rights and interests embrace much more than land and personalty. Thus, the fact that whiteness is not a “physical” entity does not remove it from the realm of property.

Whiteness is not simply and solely a legally recognized property interest. It is simultaneously an aspect of self-identity and of person- hood, and its relation to the law of property is complex. Whiteness has functioned as self-identity in the domain of the intrinsic, personal, and psychological; as reputation in the interstices between internal and external identity; and, as property in the extrinsic, public, and legal realms. According whiteness actual legal status converted an aspect of identity into an external object of property, moving whiteness from privileged identity to a vested interest. The law’s construction of whiteness defined and affirmed critical aspects of identity (who is white); of privilege (what benefits accrue to that status); and, of prop- erty (what legal entitlements arise from that status). Whiteness at various times signifies and is deployed as identity, status, and prop- erty, sometimes singularly, sometimes in tandem.

i. Whiteness as a Traditional Form of Property. – Whiteness fits the broad historical concept of property described by classical theo-

S9 Frederick G. Whelan, Property as Artifice: Hume and Blackstone, in NOMOS XXII: PROPERTY, supra note 44, at ’01, 104. Whelan argues that even Blackstone was aware that property rights may pertain to things that may themselves be creations of law. See id. at 12X- 22. Thus, for example, Whelan notes that Blackstone described property in incorporeal here- ditaments, which issue out of a “thing” but have “mental existence.” Id. at 121. The distinction between property as things and property as rights, then, is not so clear.

60 See JEREMY BENTHAM, THE THEORY OF LEGISLATION 111-13 (Richard Hildreth trans., 1931).

61 See Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REv. 1221, 1221-22 (1979).

62 See Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitu- tionary Impulse, 78 VA. L. Rnv. 149, 178 (1992).

63 Margaret Radin ascribes these concepts as the principal basis for liberal property theories propounded by John Locke, Georg W. Friedrich Hegel, and Jeremy Bentham respectively. See Margaret J. Radin, Property and Personhood, 34 STAN. L. REv. 957, 958 n.3 (1982). Munzer describes the multiplicity of definitions of property as inviting the despairing conclusion that “any overarching normative theory of property is impossible.” MJNZER, supra note 58, at 17; see Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY, supra note 44, at 69, 69-82.

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Moreover, as it emerged, the concept of whiteness was premised on white supremacy rather than mere difference. “White” was defined and constructed in ways that increased its value by reinforcing its exclusivity. Indeed, just as whiteness as property embraced the right to exclude, whiteness as a theoretical construct evolved for the very purpose of racial exclusion. Thus, the concept of whiteness is built on both exclusion and racial subjugation. This fact was particularly evident during the period of the most rigid racial exclusion, as white- ness signified racial privilege and took the form of status property.

At the individual level, recognizing oneself as “white” necessarily assumes premises based on white supremacy: It assumes that Black ancestry in any degree, extending to generations far removed, auto- matically disqualifies claims to white identity, thereby privileging “white” as unadulterated, exclusive, and rare. Inherent in the concept of “being white” was the right to own or hold whiteness to the exclu- sion and subordination of Blacks. Because “[i]dentity is . . . contin- uously being constituted through social interactions,”1 2 7 the assigned political, economic, and social inferiority of Blacks necessarily shaped white identity. In the commonly held popular view, the presence of Black “blood” – including the infamous “one-drop”‘128 – consigned a person to being “Black” and evoked the “metaphor . . . of purity and contamination” in which Black blood is a contaminant and white racial identity is pure.129 Recognizing or identifying oneself as white is thus a claim of racial purity, 13 0 an assertion that one is free of any taint of Black blood. The law has played a critical role in legitimating this claim.

D. White Legal Identity: The Law’s Acceptance and Legitimation of Whiteness as Property

The law assumed the crucial task of racial classification, and accepted and embraced the then-current theories of race as biological fact. This core precept of race as a physically defined reality allowed the law to fulfill an essential function – to “parcel out social standing according to race” and to facilitate systematic discrimination by artic- ulating “seemingly precise definitions of racial group membership.’

3 1

This allocation of race and rights continued a century after the abo- lition of slavery.

132

127 Post, supra note 116, at 709. 128 F. JAMES DAVIS, WHO IS BLACK? 5 (iggi) (citations omitted). 129 Gotanda, supra note 24, at 26. 130 See id. at 27. 131 Robert J. Cottrol, The Historical Definition of Race Law, 21 LAw & Soc’y REv. 865,

865 (1988). 132 See id.

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The law relied on bounded, objective, and scientific definitions of race – what Neil Gotanda has called “historical race” 133 – to con- struct whiteness as not merely race, but race plus privilege. By making race determinant and the product of rationality and science, dominant and subordinate positions within the racial hierarchy were disguised as the product of natural law and biology 134 rather than as naked preferences.’ 35 Whiteness as racialized privilege was then leg- itimated by science and was embraced in legal doctrine as “objective fact.”

Case law that attempted to define race frequently struggled over the precise fractional amount of Black “blood” – traceable Black ancestry – that would defeat a claim to whiteness. 136 Although the courts applied varying fractional formulas in different jurisdictions to define “Black” or, in the terms of the day, “Negro” or “colored,” the law uniformly accepted the rule of hypodescent 137 – racial identity was governed by blood, and white was preferred.13

8

133 Gotanda defines “historical race” as socially constructed formal categories predicated on

race subordination that included presumed substantive characteristics relating to “ability, dis- advantage, or moral culpability.” Gotanda, supra note 24, at 4.

134 See infra note 139 and accompanying text. 135 See Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689,

1693-94 (1989). 136 See, for example, People v. Dean, 14 Mich. 406 (x866), in which the majority held that

those with less than one-quarter Black blood were white within the meaning of the constitutional provision limiting the franchise to “white male citizens,” see id. at 425. The dissent argued that a preponderance of white blood should be sufficient to accord the status of whiteness. See id. at 435, 438 (Martin, C.J., dissenting).

137 “Hypodescent” is the term used by anthropologist Marvin Harris to describe the American system of racial classification in which the subordinate classification is assigned to the offspring if there is one “superordinate” and one “subordinate” parent. Under this system, the child of a Black parent and a white parent is Black. MARVIN HARRIS, PATTERNS OF RACE IN THE AMERICAS 37, 56 (1964).

138 According to various court decisions of the nineteenth and early twentieth centuries, the

term “negro” was construed to mean a person of mixed blood within three generations, see State v. Melton & Byrd, 44 N.C. (Busb.) 49, 51 (1852); a person having one-fourth or more of African blood, see Gentry v. McMinnis, 3 Dana (Ky.) 382, 385 (1835); Jones v. Commission, 8o Va. 538, 542 (1885); a person having one-sixteenth or more of African blood, see State v. Chavers, 5o N.C. 1i, 14-15 (1857); State v. Watters, 25 N.C. (3 Ired.) 455, 457 (1843); a person having one-eighth or more of African blood, see Rice v. Gong Lum, 139 Miss. 760, 779 (925); Marre v. Marre, 184 Mo. App. 198, 211 (1914); anyone with any trace of Negro blood, see State v. Montgomery County School Dist. No. 16, 242 S.W. 545, 546 (1922). The term “colored” too had a range of legal meanings. See ii C.J. Colored 1224 (917). For a review of court decisions and statutes of nineteenth and early twentieth centuries delineating who is a “Negro” or who is colored, see MANGUM, supra note 30, at 1-17.

An example of the complexity of defining these terms is revealed in State v. Treadaway, 52 So. 5oo (La. x91o), in which the Louisiana state supreme court exhaustively reviewed the various meanings of the words “negro” and “colored” in considering whether an “octoroon” – a person of one-eighth Black blood – was a Negro within the meaning of a statute barring cohabitation between a person of the “white” race and a person of the “negro or black” race. See id. at 5oi-1o. In examining the definitions propounded in various dictionaries, court

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This legal assumption of race as blood-borne was predicated on the pseudo-sciences of eugenics and craniology that saw their major development during the eighteenth and nineteenth centuries. 13 9 The legal definition of race was the “objective” test propounded by racist theorists of the day who described race to be immutable, scientific, biologically determined – an unsullied fact of the blood rather than a volatile and violently imposed regime of racial hierarchy.

In adjudicating who was “white,” courts sometimes noted that, by physical characteristics, the individual whose racial identity was at issue appeared to be white and, in fact, had been regarded as white in the community. Yet if an individual’s blood was tainted, she could not claim to be “white” as the law understood, regardless of the fact that phenotypically she may have been completely indistinguishable from a white person, may have lived as a white person, and have descended from a family that lived as whites. Although socially ac- cepted as white, she could not legally be white. 140 Blood as “objective

decisions, and statutory law that used either term, the court concluded that “colored” denoted a person of mixed white and Black blood in any degree, and a “negro” was a “person of the African race, or possessing the black color and other characteristics of the African.” Id. at 531. Because “there are no negroes who are not persons of color; but there are persons of color who are not negroes,” id., the court concluded that the statute did not include octoroons because they were not commonly considered “negroes,” although they were persons of color, see id. at 537. The response of the Louisiana legislature was to reenact the statute with the identical language, except it substituted the word “colored” for the word “Negro.” See MANGUM, supra note 30, at 5-6.

139 For example, Samuel Morton, one of the principal architects of these theories, ascribed the basis of Black and non-white racial inferiority to differences in cranial capacity, which purportedly revealed that whites had larger heads. Notwithstanding the gross breaches of scientific method and manipulation of data evident in Morton’s theory, see GossETT, supra note 20, at 73-74, his 1839 book, Crania Americana, was widely accepted as the scientific explanation of Blacks’ inability to mature beyond childhood, see GossETT, supra note 20, at 58-59 (citing the remarks of Oliver Wendell Holmes, Sr., extolling Morton as a “leader” whose “severe and cautious … researches” would provide “permanent data for all future students of Ethology”); TAKAKI, supra note i6, at 113 (citing the remarks of an Indiana senator in 1850 who spoke of the diminished brain capacity of Blacks). These and other widely disseminated theories of Black inferiority provided the rationale for the political and popular discourse of the time that argued that Black equality and participation in the polity were impossible because Blacks lacked the capacity to develop rational decisionmaking. See REGINALD HORSMAN, RACE AND MANIFEST DESTINY 116-57 (describing the permeation of “scientific” bases for racial inferiority into every aspect of American thought).

140 See, e.g., Sunseri v. Cassagne, 185 So. i, 4-5 (La. 2938). The case involved a suit by Sunseri to annul his marriage to Cassagne on the grounds that she had a trace of “negro blood.” He contended that his wife’s great-great-grandmother was a “full-blooded negress,” and Cassagne herself asserted that she was Indian. See id. at 2. It was not disputed that all of Cassagne’s paternal ancestors from her father to her great-great-grandfather were white men. See id. Moreover, Cassagne had been regarded as white in the community, as she and her mother had been christened in a white church, had attended white schools, were registered as white voters, were accepted as white in public facilities, and had exclusively associated with whites. See id. at 4-5. Nevertheless, because certificates and official records designated Cassagne and some of her relatives as “colored,” the court concluded that she was not white and that thus there were

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fact” dominated over appearance and social acceptance, which were socially fluid and subjective measures.

But, in fact, “blood” was no more objective than that which the law dismissed as subjective and unreliable. The acceptance of the fiction that the racial ancestry could be determined with the degree of precision called for by the relevant standards or definitions rested on false assumptions that racial categories of prior ancestors had been accurately reported, that those reporting in the past shared the defi- nitions currently in use, and that racial purity actually existed in the United States. 14 1 Ignoring these considerations, the law established rules that extended equal treatment to those of the “same blood,” albeit of different complexions, because it was acknowledged that, “It]here are white men as dark as mulattoes, and there are pure- blooded albino Africans as white as the whitest Saxons.”

1 42

The standards were designed to accomplish what mere observation could not: “That even Blacks who did not look Black were kept in their place.”1 43 Although the line of demarcation between Black and white varied from rules that classified as Black a person containing “any drop of Black blood,”1 44 to more liberal rules that defined persons with a preponderance of white blood to be white, 14 5 the courts uni- versally accepted the notion that white status was something of value

sufficient grounds to annul the marriage. See Sunseri v. Cassagne, 196 So. 7, lo (La. 1940); see also Johnson v. Board of Educ. of Wilson County, 82 S.E. 832, 833-35 (1914) (refusing to allow the children of a “pure white” husband and a wife who was less than “one-eighth negro” to be admitted to white schools because of the presence of “negro blood in some degree,” even assuming that the marriage was valid and not violative of the miscegenation statute).

141 It is not at all clear that even the slaves imported from abroad represented “pure Negro races.” As Gunner Myrdal noted, many of the tribes imported from Africa had intermingled with peoples of the Mediterranean, among them Portuguese slave traders. Other slaves brought to the United States came via the West Indies, where some Africans had been brought directly, but still others had been brought via Spain and Portugal, countries in which extensive interracial sexual relations had occurred. By the mid-nineteenth century it was, therefore, a virtual fiction to speak of “pure blood” as it relates to racial identification in the United States. See MYRDAL, supra note 4, at 123.

142 People v. Dean, 14 Mich. 406, 422 (r866). 143 Diamond & Cottrol, supra note 2o, at 281. 144 For a histoiy of the “one-drop” rule, see DAVIS, cited above in note 128, at 5. According

to Davis: The nation’s answer to the question “Who is black?” has long been that a black is any person with any known African black ancestry. This definition reflects the long experience with slavery and later with Jim Crow segregation. In the South it became known as the “one-drop rule,” meaning that a single drop of “black blood” makes a person black. It is also known as the . . . “traceable amount rule,” and anthropologists call it the “hypo-descent rule,” meaning that racially mixed persons are assigned the status of the subordinate group. This definition emerged from the American South to become the nation’s definition, generally accepted by whites and blacks alike. Blacks had no other choice.

Id. (citations omitted). 145 See, e.g., Gray v. Ohio, 4 Ohio 353, 355 (1831).

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that could be accorded only to those persons whose proofs established their whiteness as defined by the law. 14 6 Because legal recognition of a person as white carried material benefits, “false” or inadequately supported claims were denied like any other unsubstantiated claim to a property interest. Only those who could lay “legitimate” claims to whiteness could be legally recognized as “white,” because allowing physical attributes, social acceptance, or self-identification to deter- mine whiteness would diminish its value and destroy the underlying presumption of exclusivity. In effect, the courts erected legal “No Trespassing” signs.

In the realm of social relations, racial recognition in the United States is thus an act of race subordination. In the realm of legal relations, judicial definition of racial identity based on white suprem- acy reproduced that race subordination at the institutional level. In transforming white to whiteness, the law masked the ideological con- tent of racial definition and the exercise of power required to maintain it: “It convert[ed] [an] abstract concept into [an] entity.

’14 7

i. Whiteness as Racialized Privilege. – The material benefits of racial exclusion and subjugation functioned, in the labor context, to stifle class tensions among whites. White workers perceived that they had more in common with the bourgeoisie than with fellow workers who were Black. Thus, W.E.B. Du Bois’s classic historical study of race and class, Black Reconstruction,148 noted that, for the evolving white working class, race identification became crucial to the ways that it thought of itself and conceived its interests. There were, he suggested, obvious material benefits, at least in the short term, to the decision of white workers to define themselves by their whiteness: their wages far exceeded those of Blacks and were high even in comparison with world standards.14 9 Moreover, even when the white working class did not collect increased pay as part of white privilege, there were real advantages not paid in direct income: whiteness still yielded what Du Bois termed a “public and psychological wage” vital to white workers.’ 5 0 Thus, Du Bois noted:

They [whites] were given public deference . . . because they were white. They were admitted freely with all classes of white people, to

146 The courts adopted this standard even as they critiqued the legitimacy of such rules and

definitions. For example, in People v. Dean, 14 Mich. 4o6 (1886), the court, in interpreting the meaning of the word “white” for the purpose of determining whether the defendant had voted illegally, criticized as “absurd” the notion that “a preponderance of mixed blood, on one side or the other of any given standard, has the remotest bearing upon personal fitness or unfitness to possess political privileges,” id. at 417, but held that the electorate that had voted for racial exclusion had the right to determine voting privileges, see id. at 46.

147 STEPHEN J. GOULD, THE MISMEASURE OF MAN 24 (ig8i). 148 W.E.B. Du Bois, BLACK RECONSTRUCTION (photo. reprint 1976) (1935). 149 See id. at 634. 150 Id. at 700.

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public functions, to public parks . . . .The police were drawn from their ranks, and the courts, dependent on their votes, treated them with … leniency …. Their vote selected public officials, and while this had small effect upon the economic situation, it had great effect on their personal treatment . . . .White schoolhouses were the best in the community, and conspicuously placed, and they cost anywhere from twice to ten times as much per capita as the colored schools.151

The central feature of the convergence of “white” and “worker” lay in the fact that racial status and privilege could ameliorate and assist in “evad[ing] rather than confront[ing] [class] exploitation.”1

5 2

Although not accorded the privileges of the ruling class, in both the North and South, white workers could accept their lower class position in the hierarchy “by fashioning identities as ‘not slaves’ and as ‘not Blacks.”‘” 53 Whiteness produced – and was reproduced by – the social advantage that accompanied it.

Whiteness was also central to national identity and to the repub- lican project. The amalgamation of various European strains into an American identity was facilitated by an oppositional definition of Black as “other. 1 s4 As Hacker suggests, fundamentally, the question was not so much “who is white,” but “who may be considered white,”

151 Id. at 700-01. 152 ROEDIGER, supra note I9, at 13. One of Roediger’s principal themes is that whiteness

was constructed both from the top down and from the bottom up. See id. at 8-11. His vigorous analysis of the role of racism in the construction of working class consciousness leads him to conclude that “the pleasures of whiteness could function as a [wage] for white workers …. [Sitatus and privilege conferred by race could be used to make up for alienating and exploitive class relationships.” Id. at 13. Roediger further argues that the conjunction of “white” and “worker” came about in the nineteenth century at a time when the non-slave labor force came increasingly to depend on wage labor. The independence of this sector was then measured in relation to the dependency of Blacks as a subordinated people and class. See id. at 2o. The involvement of all sectors, including the white working class, in the construction of whiteness aids in explaining the persistence of whiteness in the modem period. See discussion infra PP. 1758-77.

153 ROEDIGER, supra note ig, at 13. 154 “One of the surest ways to confirm an identity, for communities and individuals, is to

find some way of measuring what one is not.” KAI ERICKSON, WAYWARD PURITANS: A STUDY IN THE SOCIOLOGY OF DEVIANCE 64 (I966).

Toni Morrison’s study of the Africanist presence in U.S. literature echoes the same theme of the reflexive construction of “American” identity:

It is no accident and no mistake that immigrant populations (and much immigrant literature) understood their Americaness as an opposition to the resident black population. Race in fact now functions as a metaphor so necessary to the construction of Americaness that it rivals the old pseudo-scientific and class-informed racisms whose dynamics we are more used to deciphering . . . .Deep within the word “American” is its association with race. To identify someone as South African is to say very little; we need the adjective “white” or “black” or “colored” to make our meaning clear. In this country, it is quite the reverse. American means white ….

TONI MORRISON, PLAYING IN THE DARK: WHITENESS AND THE LITERARY IMAGINATION 46- 47 (I992).

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as the historical pattern was that various immigrant groups of different ethnic origins were accepted into a white identity shaped around Anglo-American norms. 155 Current members then “ponder[ed] whether they want[ed] or need[ed] new members as well as the proper pace of new admissions into this exclusive club.”15 6 Through minstrel shows in which white actors masquerading in blackface played out racist stereotypes, the popular culture put the Black at “‘solo spot centerstage, providing a relational model in contrast to which masses of Americans could establish a positive and superior sense of iden- tity[,]’ . . . [an identity] …established by an infinitely manipulable negation comparing whites with a construct of a socially defenseless group.”‘1

57

It is important to note the effect of this hypervaluation of white- ness. Owning white identity as property affirmed the self-identity and liberty’5 8 of whites and, conversely, denied the self-identity and liberty of Blacks. 15 9 The attempts to lay claim to whiteness through “passing” painfully illustrate the effects of the law’s recognition of whiteness. The embrace of a lie, undertaken by my grandmother and the thou- sands like her, could occur only when oppression makes self-denial and the obliteration of identity rational and, in significant measure, beneficial. 16 0 The economic coercion of white supremacy on self- definition nullifies any suggestion that passing is a logical exercise of liberty or self-identity. The decision to pass as white was not a choice, if by that word one means voluntariness or lack of compulsion. The fact of race subordination was coercive and circumscribed the liberty

IS5 Andrew Hacker says that white became a “common front” established across ethnic

origins, social class, and language. ANDREW HACKER, TWO NATIONS 12 (1992). 156 Id. at 9. 157 ROEDIGER, supra note i9, at 118 (quoting Alan W.C. Green, “Jim Crow,” “Zip Coon”:

The Northern Origin of Negro Minstrelsy, ii MASS. REv. 385, 395 (197o)). 158 I do not attempt here to review or state a position with regard to the profusion of theories

that describe the relationship between liberty and property; that is beyond the scope of this inquiry. Rather, I use liberty in the Hohfeldian sense as a privilege, “a legal liberty or freedom,” not involving “a correlative duty but the absence of a right on someone else’s part to interfere.” MUNZER, supra note 58, at 18 (I99o).

159 In this respect, whiteness as property followed a familiar paradigm. Although the state can create new forms of property other than those existing at common law, “in each case that it creates new property rights, the state necessarily limits the common law liberty or property rights of other citizens, for conduct which was once legal now becomes an invasion or an infringement of the new set of rights that are established.” Epstein, No New Property, supra note 68, at 754; see HIGGINBOTHAM, supra note 20, at 13 (noting that, when the law establishes a right for a person, group, or institution, it simultaneously constrains those whose “preferences impinge on the right established”).

160 This problem is at the center of one of the early classics of Black literature, The Autobiography of an Ex-Coloured Man, by James Weldon Johnson, the story of a Black man who “passes” for white, crossing between Black and white racial identities four times. See Henry L. Gates, Jr., Introduction to JAMES W. JOHNSON, THE AUTOBIOGRAPHY OF AN Ex- COLOURED MAN vi (Vintage 1989) (1912).

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to self-define. Self-determination of identity was not a right for all people, but a privilege accorded on the basis of race. The effect of protecting whiteness at law was to devalue those who were not white by coercing them to deny their identity in order to survive. 16 1

2. Whiteness, Rights, and National Identity. – The concept of whiteness was carefully protected because so much was contingent upon it. Whiteness conferred on its owners aspects of citizenship that were all the more valued because they were denied to others. Indeed, the very fact of citizenship itself was linked to white racial identity. The Naturalization Act of 1790 restricted citizenship to persons who resided in the United States for two years, who could establish their good character in court, and who were “white. ‘ 162 Moreover, the trajectory of expanding democratic rights for whites was accompanied by the contraction of the rights of Blacks in an ever deepening cycle of oppression. 163 The franchise, for example, was broadened to extend voting rights to unpropertied white men at the same time that Black voters were specifically disenfranchised, arguably shifting the property required for voting from land to whiteness. 164 This racialized version of republicanism – this Herrenvolk 165 republicanism – constrained

161 I am indebted to Lisa Ikemoto for the insight regarding how whiteness as property

interacts with liberty and self-identity. 162 See Naturalization Act of 1790, ch. 3, § i, x Stat. 103, 103 (1790) (repealed 1795). As

Takaki explains, this law “specified a complexion for the members of the new nation” and reflected the explicit merger of white national identity and republicanism. TAKAKI, supra note 16, at x. It was also another arena in which the law promulgated racial definitions as part of its task of allocating rights of citizenship. These decisions further reinforced white hegemony by naturalizing white identity as objective when in fact it was a constructed and moving barrier. As noted in Corpus Juris, a white person

constitutes a very indefinite description of a class of persons, where none can be said to be literally white; and it has been said that a construction of the term to mean Europeans and persons of European descent is ambiguous. “White person” has been held to include an Armenian born in Asiatic Turkey, a person of but one-sixteenth Indian blood, and a Syrian, but not to include Afghans, American Indians, Chinese, Filipinos, Hawaiians, Hindus, Japanese, Koreans, negroes; nor does white person include a person having one fourth of African blood, a person in whom Malay blood predominates, a person whose father was a German and whose mother was a Japanese, a person whose father was a white Canadian and whose mother was an Indian woman, or a person whose mother was a Chinese and whose father was the son of a Portuguese father and a Chinese mother.

68 C.J. White 258 (1934) (citations omitted). 163 See Diamond & Cottrol, supra note 2o, at 262. 164 For an account of the linkage between expanding white voting rights and increased

constraints on rights for Blacks, see ROEDIGER, supra note i9, in which he describes the experience in Pennsylvania, see id. at 59; see also Diamond & Cottrol, supra note 2o, at 260- 61 n.26 (summarizing the fate of free, enfranchised Blacks who were later disenfranchised in the face of rising racism at the same time that property requirements were abolished for white voters).

165S Pierre van der Berghe uses this term to describe those societies in which dominant groups operate within democratic.and egalitarian rules, and subordinate groups are subjected to un- democratic and tyrannical regulation. The classic contemporary example of this model is South

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any vision of democracy from addressing the class hierarchies adverse to many who considered themselves white.

The inherent contradiction between the bondage of Blacks and republican rhetoric that championed the freedom of all men was resolved by positing that Blacks were different. 16 6 The laws did not mandate that Blacks be accorded equality under the law because nature – not man, not power, not violence – had determined their degraded status. Rights were for those who had the capacity to exercise them, a capacity denoted by racial identity. This conception of rights was contingent on race – on whether one could claim whiteness – a form of property. This articulation of rights that were contingent on property ownership was a familiar paradigm, as similar requirements had been imposed on the franchise in the early part of the republic. 16 7 For the first two hundred years of the country’s existence, the system of racialized privilege in both the public and private spheres carried through this linkage of rights and inequality, and rights and property. Whiteness as property was the critical core of a system that affirmed the hierarchical relations between white and Black.

II. BOUND BY LAW: THE PROPERTY INTEREST IN WHITENESS As LEGAL DOCTRINE IN PLESSY AND BROWN

Even after the period of conquest and colonization of the New World and the abolition of slavery, whiteness was the predicate for attaining a host of societal privileges, in both public and private spheres. Whiteness determined whether one could vote, travel freely, attend schools, obtain work, and indeed, defined the structure of social relations along the entire spectrum of interactions between the indi- vidual and society. Whiteness then became status, a form of racialized privilege ratified in law. Material privileges attendant to being white

Africa. See PIERRE VAN DER BERGHE, RACE AND RACISM: A COMPARATIVE PERSPECTIVE 17- 18 (1967).

166 See Diamond & Cottrol, supra note 20, at 262. 167 The organizing principle of the Federalist vision of the republic was that government

must protect the rights of persons and the rights of property. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 17 (iggi). But if, as Madison stated, “‘the first object of government is the protection of different and unequal faculties of acquiring property,'” id. at 17 (citation omitted), then an extension of the rights of suffrage to all would subject those with material property, always a minority, to the control of the prop- ertyless, see id. at 18. The solution adopted by Madisonian republicanism limited the franchise and installed a system of freehold suffrage. See id. at ig. The result, according to Nedelsky, was a distortion of the republican vision as inequality was presumed and protected. See id. at i. But see Book Note, Private Property, Civic Republicanism and the Madisonian Constitution, 1o4 HARv. L. REV. 961, 963-64 (iggi) (arguing that Nedelsky mischaracterizes the Madisonian vision of property to be referring only to material property when in fact Madison’s concept of property included everything to which one could claim a right).

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exclusionary practices that created residential segregation and rein- forced school segregation.2 1 6 It reinterpreted all of these facts, how- ever, to be neutral and, therefore, an inadequate predicate for inter- vention in an unfortunate but unrectifiable inequity.2 1 7 In effect, the protection of the expectations of the local school boards that the de facto segregation resulting from exogenous factors would be left un- disturbed was determined to be of greater significance than any con- stitutional injury caused by the state.2 1 8 Like the substantive inequal- ity of power and resources in Brown, the white privilege and Black subordination fostered by systems of interlocking private and public power was left intact by Milliken.

Thus, we are left with Brown’s mixed legacy: Brown held that the Constitution would not countenance legalized racial separation, but Brown did not address the government’s responsibility to eradicate inequalities in resource allocation either in public education or other public services, let alone to intervene in inequities in the private domain, all of which are, in significant measure, the result of white domination. In attempting to remedy state-mandated racial separation by the simple prescription of desegregation, the Brown decisions fi- nessed the question of what to do about the inequality produced by state and private policy and practice. Brown modified Plessy’s inter- pretation of the Equal Protection Clause and accommodated both Blacks’ claims for “equality under law” and the global interests of white ruling elites. 2 19 What remained consistent was the perpetuation of institutional privilege under a standard of legal equality. In the foreground was the change of formal societal rules; in the background was the “natural” fact of white privilege that dictated the pace and course of any moderating change. What remained in revised and reconstituted form was whiteness as property.

IV. THE PERSISTENCE OF WHITENESS As PROPERTY

In the modern period, neither the problems attendant to assigning racial identities nor those accompanying the recognition of whiteness have disappeared.2 2 0 Nor has whiteness as property. Whiteness as

216 See id. at 724. 217 See id. at 746-47. As Justice Douglas’s dissent notes, the “decision… means that there

is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only ‘separate’ but ‘inferior.'” Id. at 761 (Douglas, J., dis- senting).

218 See id. at 746-47. 219 See Bell, supra note i95, at 524-25. 220 Doe v. State, 479 So.2d 369 (La. App. 4 th Cir. x985), is a prime example. Before this

decision, the Doe plaintiffs had sued to change the racial classification of their parents on their birth certificate from “colored” to white. See id. at 371. Although by upbringing, experience, and appearance they were white, the court noted that, if the plaintiffs had standing, relief

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property continues to perpetuate racial subordination through the courts’ definitions of group identity and through the courts’ discourse and doctrine on affirmative action. The exclusion of subordinated “others” was and remains a central part of the property interest in whiteness and, indeed, is part of the protection that the court extends to whites’ settled expectations of continued privilege.

The essential character of whiteness as property remains manifest in two critical areas of the law and, as in the past, operates to oppress Native Americans and Blacks in similar ways, although in different arenas. This Part first examines the persistence of whiteness as valued social identity; then exposes whiteness as property in the law’s treat- ment of the question of group identity, as the case of the Mashpee Indians illustrates; and finally, exposes the presence of whiteness as property in affirmative action doctrine.

A. The Persistence of Whiteness as Valued Social Identity

Even as the capacity of whiteness to deliver is arguably diminished by the elimination of rigid racial stratifications, whiteness continues to be perceived as materially significant. Because real power and wealth never have been accessible to more than a narrowly defined ruling elite, for many whites the benefits of whiteness as property, in the absence of legislated privilege, may have been reduced to a claim of relative privilege only in comparison to people of color. 221 Never- theless, whiteness retains its value as a “consolation prize”: it does not mean that all whites will win, but simply that they will not lose,

2 22

would be denied because of the plaintiffs’ failure to establish that their grandparents had been incorrectly classified. A subsequent Fourteenth Amendment challenge to the 197o Louisiana racial classification law was rejected by both the trial and appellate courts on the ground that the statute had been held constitutional in a prior decision of the Louisiana Supreme Court. See State ex. rel. Plala v. Louisiana State Bd. of Health, 296 So.2d 809, 8io (La. 1974). The statute was repealed in 1983, and the Doe plaintiffs again brought a mandamus action that was again rejected by the trial court. See Doe, 479 So.2d at 371. On appeal, the state appellate court concluded that “the very concept of the racial classification of individuals, as opposed to that of a group, is scientifically insupportable . . . [because] [i]ndividual racial designations are purely social and cultural perceptions.” Id. Louisiana’s racial classification system was vigor- ously critiqued on constitutional grounds. See Diamond & Cottrol, supra note 20, at 278-85.

221 See Letter from Leland Ware, Professor of Law, St. Louis University School of Law, to Cheryl I. Harris, Assistant Professor of Law, Chicago-Kent College of Law 4 (Mar. 23, 1992) (on file at the Harvard Law School Library) [hereinafter Ware, Letter].

222 HACKER, supra note 155, at 29. Andrew Hacker says that given the fierceness of competition in American society, white America

cannot guarantee full security to every member of its own race. Still, while some of its members may fail, there is a limit to how far they can fall. . . . [N]o matter to what depths one descends, no white person can ever become black. As James Baldwin has pointed out, white people need the presence of black people as a reminder of what providence has spared them from becoming.

Id. at 29-30.

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if losing is defined as being on the bottom of the social and economic hierarchy – the position to which Blacks have been consigned.

Andrew Hacker, in his 1992 book Two Nations,2 2 3 recounts the results of a recent exercise that probed the value of whiteness accord- ing to the perceptions of whites. The study asked a group of white students how much money they would seek if they were changed from white to Black. “Most seemed to feel that it would not be out of place to ask for $50 million, or $i million for each coming black year.”22 4 Whether this figure represents an accurate amortization of the societal cost of being Black in the United States, it is clear that whiteness is still perceived to be valuable. The wages of whiteness are available to all whites regardless of class position, even to those whites who are without power, money, or influence. Whiteness, the characteristic that distinguishes them from Blacks, serves as compen- sation even to those who lack material wealth. It is the relative political advantages extended to whites, rather than actual economic gains, that are crucial to white workers. Thus, as KimberlM Crenshaw points out, whites have an actual stake in racism. 225 Because Blacks are held to be inferior, although no longer on the basis of science as antecedent determinant, but by virtue of their position at the bottom,

223 HACKER, supra note i55. 224 Id. at 32. Hacker reports these results from white students who were presented with the

following parable:

THE VISIT You will be visited tonight by an official you have never met. He begins by telling

you that he is extremely embarrassed. The organization he represents has made a mistake, something that hardly every happens.

According to their records . . ., you were to have been born black: to another set of parents, far from where you were raised.

However, the rules being what they are, this error must be rectified, and as soon as possible. So at midnight tonight, you will become black. And this will mean not simply a darker skin, but the bodily and facial features associated with African ancestry. How- ever, inside you will be the person you always were. Your knowledge and ideas will remain intact. But outwardly you will not be recognizable to anyone you now know.

Your visitor emphasizes that being born to the wrong parents was in no way your fault. Consequently, his organization is prepared to offer you some reasonable recom- pense. Would you, he asks, care to name a sum of money you might consider appro- priate? … [The] records show you are scheduled to live another fifty years – as a black man or woman in America.

How much financial recompense would you request?

Id. at 31-32. Hacker further argues that evidence of the continued value of whiteness is manifested in the fact that no white person would be willing to trade places with an even more successful black person:

All white Americans realize that their skin comprises an inestimable asset …. Its value persists not because a white appearance automatically brings success and status . … What it does ensure is that you will not be regarded as black, a security which is worth so much that no one who has it has ever given it away.

Id. at 6o. 22s See Crenshaw, supra note 3, at 1381.

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it allows whites – all whites – to “include themselves in the domi- nant circle. [Although most whites] hold no real power, [all can claim] their privileged racial identity.”

22 6

White workers often identify primarily as white rather than as workers because it is through their whiteness that they are afforded access to a host of public, private, and psychological benefits.

22 7 It is through the concept of whiteness that class consciousness among white workers is subordinated and attention is diverted from class oppression.

228

Although dominant societal norms have embraced the idea of fair- ness and nondiscrimination, removal of privilege and antisubordina-

226 Id.; see ROEDIGER, supra note ig, at 5 (describing the significance of whiteness to white workers).

This argument is not to suggest that poverty does not exist among whites. It is evident, however, that poverty is not proportionately represented across all racial groups. Blacks are and have been disproportionately affected by poverty and all its attendant social ills, such as inadequate housing, health care, and education. The relative advantage accorded to whites because of white supremacy is what I am identifying as a core component of “whiteness.” This advantage does not mean that no whites will be poor, but that the poor will be disproportionately Black. See BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, SERIES P-6o, No. I8g, POVERTY IN THE UNITED STATES: 199i, at x (1992) [hereinafter CENSUS] (reporting that the poverty rate of whites, Blacks, Asians, and Hispanics is 11.3%, 32.7%, 13.8%, and 28.7%, respectively).

227 These benefits may be difficult to discern, yet they often remain crucial. Albert Memmi’s classic indictment of French colonialism in pre-independence Algeria offers invaluable insight into the benefits of racism to the working or lower class, notwithstanding the nearly equivalent positions of need of lower class whites and Blacks. He suggests that the problem is not merely gullibility or illusion:

If the small colonizer defends the colonial system so vigorously, it is because he benefits from it to some extent. His gullibility lies in the fact that to protect his very limited interests, he protects other infinitely more important ones, of which he is, incidentally, the victim. But, though dupe and victim, he also gets his share.

[PIrivilege is something relative. To different degrees every colonizer is privileged, at least comparatively so, ultimately to the detriment of the colonized. If the privileges of the masters of colonization are striking, the lesser privileges of the small colonizer, even the smallest, are very numerous. Every act of his daily life places him in a relationship with the colonized, and with each act his fundamental advantage is demonstrated.

. . . From the time of his birth, he possesses a qualification independent of his personal merits or his actual class.

ALBERT MEMMI, THE COLONIZER AND THE COLONIZED 11-12 (Howard Greenfield trans., 1965).

228 Social scientists have noted this phenomenon as part of the social dynamic of the white working class for some time:

It is through differential access to social institutions and political power that the bour- geoisie binds white workers to it in “whiteness.”

[T]o the extent that white workers identify with “whiteness,” “a central component of Anglo-American bourgeois consciousness . . . ,” and not with their proletarian status as workers, they will remain supporters and defenders of relative privileges for whites as extended by capital.

Hermon George, Jr., Black America, the “Underclass” and the Subordination Process, BLACK SCHOLAR, May/June 1988, at 44, 49-50 (quoting ROXANNE MITCHELL & FRANK WEISS, A HOUSE DIVIDED: LABOR AND WHITE SUPREMACY 84 (1981)).

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tion principles are actively rejected or at best ambiguously received because expectations of white privilege are bound up with what is considered essential for self-realization. Among whites, the idea per- sists that their whiteness is meaningful.2 2 9 Whiteness is an aspect of racial identity230 surely, but it is much more; it remains a concept based on relations of power, a social construct predicated on white dominance and Black subordination.

B. Subordination Through Denial of Group Identity

Whiteness as property is also constituted through the reification of expectations in the continued right of white-dominated institutions to control the legal meaning of group identity. This reification manifests itself in the law’s dialectical misuse of the concept of group identity as it pertains to racially subordinated peoples. The law has recognized and codified racial group identity as an instrumentality of exclusion and exploitation; however, it has refused to recognize group identity when asserted by racially oppressed groups as a basis for affirming or claiming rights. 2 31 The law’s approach to group identity reproduces subordination, in the past through “race-ing” a group – that is, by assigning a racial identity that equated with inferior status, and in the present by erasing racial group identity.

In part, the law’s denial of the existence of racial groups is pred- icated not only on the rejection of the ongoing presence of the past,

2 32

but is also grounded on a basic tenet of liberalism – that constitu- tional protections inhere in individuals, not groups. 233 As informed by the Lockean notion of the social contract, the autonomous, free- will of the individual is central. Indeed, it is the individual who, in

229 Roediger describes this phenomenon as the “white problem.” ROEDIGER, supra note ig, at 6.

230 “Racial identities are not only black, Latino, Asian, Native American, and so on; they

are also white. To ignore white ethnicity is to redouble its hegemony by naturalizing it.” bell hooks, Representing Whiteness: Seeing Wings of Desire, ZETA, Mar. 1989, at 39 (citation omitted).

231 “Notably in the context of the affirmative action debate, some philosophers and policy- makers even refuse to acknowledge the reality of social groups, a denial that often reinforces group oppressions.” IRIs M. YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 9 (199o).

232 According to Aviam Soifer, in many ways, particularly as it pertains to racial subordi- nation, the Supreme Court has decided that history has stopped. See Aviam Soifer, On Being Overly Discrete and Insular: Involuntary Groups and the Anglo-American Judicial Tradition, 48 WASH. & LEE L. REv. 381, passim (iggi).

233 See William B. Reynolds, Individualism vs. Group Rights: The Legacy of Brown, 93 YALE L.J. 983, 984 (1984) (citing the remarks of Professor Chester Finn that civil rights “inhere in individuals, not in groups”). As Fiss notes, the strong appeal of the antidiscrimination principle as the mediating principle that informs the Equal Protection Clause is grounded in its tie to individualism, “yield[ing] a highly individualized conception of rights.” Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 127 (1976). Thus, it is the individual who lays claim to constitutionally protected rights. See id.

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concert with other individuals, elects to enter into political society23 4

and to form a state of limited powers. This philosophical view of society is closely aligned with the antidiscrimination principle – the idea being that equality mandates only the equal treatment of indi- viduals under the law.235 Within this framework, the idea of the social group has no place.

236

Although the law’s determination of any “fact,” including that of group identity, is not infinitely flexible, its studied ignorance of the issue of racial group identity insures wrong results by assuming a pseudo-objective posture that does not permit it to hear the complex dialogue concerning the identity question, particularly as it pertains to historically dominated groups.

Instead, the law holds to the basic premise that definition from above can be fair to those below, that beneficiaries of racially con- ferred privilege have the right to establish norms for those who have historically been oppressed pursuant to those norms, and that race is not historically contingent. Although the substance of race definitions has changed, what persists is the expectation of white-controlled in- stitutions in the continued right to determine meaning – the reified privilege of power – that reconstitutes the property interest in white- ness in contemporary form.

234 See LocKE, supra note 46, at z54-64; see also Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 4 DuKE L.J. 507, 514 (199′) (noting that Locke based the right of protection “on the consent of free individuals to enter society and establish government for the preservation of their natural rights”).

235 See Fiss, supra note 233, at 123 (1976) (noting that “the antidiscrimination principle

would seem individualistic in a negative sense – it is not in any way dependent on a recognition of social classes or groups,” although he argues that “the recognition and protection of social groups may be required to determine which state purposes are legitimate…”).

236 “Political philosophy typically has no place for a specific concept of the social group.” YOUNG, supra note 231, at 43. Many scholars have vigorously opposed this notion. See, e.g., TRIBE, supra note 204, at 1514-2i (arguing that the appropriate view of constitutional guarantees of equal protection is that they are animated by an antisubjugation principle that requires that actions be evaluated not by the intent of the actors, but by the impact on members of protected groups); Burke Marshall, A Comment on the Non-discrimination Principle in a “Nation of Minorities,” 93 YALE L.J. ioo6, ioo6 (1984) (arguing that discrimination and subordination were imposed not against individuals, but against a people, so that the remedy “has to correct and cure and compensate for the discrimination against the people and not just the discrimination against the identifiable persons”).

Although the existence and definition of a social group is complex, it is possible to articulate a coherent concept of a social group. For example, Iris Marion Young defines a social group as

a collective of persons differentiated from at least one other group by cultural forms, practices, or way of life.. .. Groups are an expression of social relations; a group exists only in relation to at least one other group. Group identification arises . . . in the encounter and interaction between social collectivities that experience some differences in their way of life and forms of association, even if they also regard themselves as belonging to the same society.

YOUNG, supra note 231, at 43. However, groups do not have “substantive essence.” Id. at 47. Rather, they are “cross-cutting, fluid, and shifting.” Id. at 48.

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In undertaking any definition of race as group identity, there are implicit and explicit normative underpinnings that must be taken into account. The “riddle of identity” is not answered by a “search for essences” or essential discoverable truth, nor by a search for mere “descriptions and re-descriptions.” 237 Instead, when handling the complex issue of group identity, we should look to “purposes and effects, consequences and functions.” 238 The questions pertaining to definitions of race then are not principally biological or genetic, but social and political: what must be addressed is who is defining, how is the definition constructed, and why is the definition being pro- pounded.2 39 Because definition is so often a central part of domina- tion, critical thinking about these issues must precede and adjoin any definition. The law has not attended to these questions. Instead,

237 Martha Minow, Identities, 3 YALE J.L. & HUMAN. 97, 97, 128 (’99’). 238 Id. at 97. 239 In the modem South African context, evolution of the terms “Black” and “African”

illustrate the possible interplay between definitions of identity and liberation. A central feature of apartheid law was the Population Registration Act that empowered the Ministry of the Interior to register the entire South African population, to classify each individual as a “white,” “coloured,” or “Black.” Population Registration Act No. 30 of 1950, § i(i) (as amended by Population Registration Act No. io6 of 1969, § r(a) (S. Afr.)). The definition, based on criteria such as appearance, social acceptance, and descent, produced predictably freakish and contra- dictory results, with siblings and parents being classified differently. See STUDY COMM’N ON U.S. POLICY TOwARD SOUTHERN AFRICA, SOUTH AFRICA: TIME RUNNING OUT 48-49 (i981) [hereinafter TIME RUNNING OUT].

In opposition to the categories propounded by the regime, during the 1970s different defi- nitions of race emerged in the context of the struggle against the apartheid regime. “Black” was defined by the Black Consciousness Movement, led by Steven Biko, to mean “[a]ll those people who by law or tradition have been politically, socially or economically exploited against [sic] as a group in South African Society and who identify themselves as a unit in the struggle for liberation.” Ziyad Motala, The Re-definition of “Black” in the South African Liberation Struggle 6 (unpublished manuscript, on file at the Harvard Law School Library); see TIME RUNNING OUT, supra, at 177.

Sometime, too, in the ig6os or 1970s, the African National Congress, the oldest and largest organized manifestation of the liberation movement, began using the term “African” for all those persons not of European origin. The word “African” thus subsumed the official categories of Bantu, Coloureds, and Indians. Subsequent references to Coloureds often appeared as “so- called ‘Coloureds.'” See IMMANUEL WALLERSTEIN, The Construction of Peoplehood, in RACE NATION AND CLASS: AMBIGUOUS IDENTITIES 71, 72-73 (Etienne Balibar & Immanuel Waller- stein eds., i99i).

This comparison reveals the rich, complex, and ultimately organic nature of group self- identity. Both the alternative usage of “Black” and “African” are fed by the impulse of oppressed people to deny legitimacy to categories propounded by their oppressors. It is the rejection of the right to control definitions of self and group identity. Thus, neither of these redefinitions situate around the axis of biological referents inherent in apartheid legislation. Instead, they implicitly or explicitly substitute the experience of oppression as the principal criterion and confront the problem of domination and subordination. In contrast to government-imposed classifications, these definitions are propounded by people exploited by apartheid, are arrived at through struggle, and are put forward to actively resist the source of their oppression, thus addressing the critical definitional issues of who, how, and why.

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identity of “the other” is still objectified, the complex, negotiated quality of identity is ignored, and the impact of inequitable power on identity is masked. 240 These problems are illustrated in the land claim suit brought by the Mashpee, a Massachusetts Indian tribe.

24 1

In Mashpee Tribe v. Town of Mashpee, 24 2 the Mashpee sued to recover land that several Indians had conveyed to non-Indians in violation of a statute that barred alienation of tribal land to non- Indians without the approval of the federal government. 243 In order to recover possession of the land, the Mashpee were required to prove that they were a tribe at the time of the conveyance. 24 4 Although the trial judge admitted to some preliminary confusion about the appro- priate definition of “tribe,”2 45 he ultimately accepted the standard articulated in prior case law that defined tribe as “a body of Indians of the same or similar race, united in a community under one lead- ership or government, and inhabiting a particular though sometimes ill-defined territory.”24 6 The Mashpee were held not to be a tribe at the time the suit was filed, so that their claim to land rights based on group identity were rejected.

247

The Mashpee’s experience was filtered, sifted, and ultimately ren- dered incoherent through this externally constituted definition of tribe that incorporated outside criteria regarding race, leadership, territory, and community. 24 8 The fact that the Mashpee had intermingled with Europeans, runaway slaves, and other Indian tribes signified to the jury and to the court that they had lost their tribal identity.24 9

240 As Martha Minow notes:

If lawyers and judges treat identity as something discoverable rather than forged or invented, they hide the latitude for choice and struggle over identity. At the same time they exercise their own power to make those choices . . . . The use of a specific notion of identity to resolve a legal dispute can obscure the complexity of lived experiences while imposing the force of the state behind the selected notion of identity.

Minow, supra note 237, at iii. 241 Gerald Torres and Kathryn Milun offer a sensitive interpretation of the case as an

exploration of the problems of meaning, telling, and legal translation within a context of white domination and Native American subordination. See Gerald Torres & Kathryn Milun, Trans- lating Yonnondio by Precedent and Evidence: The Mashpee Indian Case, 19go DUKE L.J. 625, passim.

242 447 F. Supp. 940 (D. Mass. 1978). 243 See id. at 946. 244 See id. at 943. 24S See id. at 949. 246 Montoya v. United States, 180 U.S. 261, 266 (igoI); accord Mashpee v. New Seabury

Corp., 427 F. Supp. 899, 902 (Mass. 1977). 247 See Mashpee, 447 F. Supp. at 950. 248 See Torres & Milun, supra note 241, at 634-35 & n.3. 249 See id. at 638-39. It was not the facts but the meaning of the facts that was contested.

See id. at 641. A meaning was constructed in which the Mashpees had no voice. Torres and Milun say: “The tragedy of power was manifest in the legally mute and invisible culture of

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But for the Mashpee, blood was not the measure of identity: their identity as a group was manifested for centuries by their continued relationship to the land of the Mashpee; their consciousness and em- brace of difference, even when it was against their interest; and, their awareness and preservation of cultural traditions.2 5 0 Nevertheless, under the court’s standard, the tribe was “incapable of legal self- definition. ’25 1 Fundamentally, then, the external imposition of defi- nition maintained the social equilibrium that was severely challenged by the Mashpee land claims.

The Mashpee case presents new variations on old themes of race and property. Previous reified definitions of race compelled abandon- ment of racial identity in exchange for economic and social privi- lege. 25 2 Under the operative racial hierarchy, passing is the ultimate assimilationist move – the submergence of a subordinate cultural identity in favor of dominant identity, assumed to achieve better societal fit within prevailing norms. 25 3 The modern definition of “tribe” achieved similar results by misinterpreting the Mashpee’s ad- aptation to be assimilation. The Mashpee absorbed and managed, rather than rejected and suppressed, outsiders; yet the court erased their identity, assuming that, by virtue of intermingling with other races, the Mashpee’s identity as a people had been subsumed. The Mashpee were not “passing,” but were legally determined to have “passed” – no longer to have distinct identity. This erasure was predicated on the assumption that what is done from necessity under conditions of established hierarchies of domination and subordination is a voluntary surrender for gain.

254

Beyond the immediate outcome of the case lies the deeper problem posed by the hierarchy of the rules themselves and the continued

those Mashpee Indians who stood before the court trying to prove that they existed.” Id. at 649.

250 See Minow, supra note 237, at 114. 251 Torres & Milun, supra note 241, at 655. 252 These privileges were the motivating forces behind my grandmother’s decision to “pass.”

See supra pp. 1710-12. 253 Here again Memmi describes one of the possible responses of an oppressed people – the

“colonized” in Memmi’s context – that is strikingly similar to what has been described in the U.S. context as passing:

The first attempt of the colonized is to change his condition by changing his skin. There is a tempting model very close at hand – the colonizer. The latter suffers from none of his deficiencies, has all rights, enjoys every possession and benefits from every prestige. . . . The first ambition of the colonized is to become equal to that splendid model and to resemble him to the point of disappearing into him.

MEMMI, supra note 227, at 12o. The American edition of this book is dedicated to “the American Negro, also colonized.” Id. at v.

254 As Torres and Milun note, “[tihat interpretation [of adaptation as surrender of identity] incorporates a dominant motif in the theory and practice of modem American pluralism. Ethnic distinctiveness often must be sacrificed in exchange for social and economic security.” Torres & Milun, supra note 241, at 651 (footnote omitted).

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retention by white-controlled institutions of exclusive control over definitions as they pertain to the identity and history of dominated peoples. Although the law will always represent the exercise of state power in enforcing its choices, the violence done to the Mashpee and other oppressed groups results from the law’s refusal to acknowledge the negotiated quality of identity. Whiteness as property assumes the form of the exclusive right to determine rules; it asserts that, against a framework of racial dominance and unequal power, fairness can result from a property rule, or indeed any other rule, that imposes an entirely externally constituted definition of group identity. 25 5 Reality belies this presumption. In Plessy, the Court affirmed the right of the state to define who was white, 25 6 obliterating aspects of social acceptance and self-identification as sources of validation and identity. The Mashpee were similarly divested of their identity through the state’s exclusive retention of control over meaning in ways that rein- forced group oppression. When group identity is a predicate for ex- clusion or disadvantage, the law has acknowledged it; when it is a predicate for resistance or a claim of right to be free from subordi- nation, the law determines it to be illusory. This determinist approach to group identity reproduces racial subordination and reaffirms white- ness as property.

C. Subjugation Through Affirmative Action Doctrine

The assumption that whiteness is a property interest entitled to protection is an idea born of systematic white supremacy and nurtured over the years, not only by the law of slavery and “Jim Crow,” but also by the more recent decisions and rationales of the Supreme Court concerning affirmative action. In examining both the nature of the affirmative action debate and the legal analysis applied in three Su- preme Court cases involving affirmative action – Regents of Univer- sity of California v. Bakke, 25 7 City of Richmond v. J.A. Croson Co.,

25 8

and Wygant v. Jackson Board of Education,259 it is evident that the protection of the property interest in whiteness still lies at the core of judicial and popular reasoning.

Affirmative action remains a wellspring of contention. 260 If any- thing, the tone of the debate has sharpened since affirmative action

2S5 See Plessy v. Ferguson, 63 U.S. 537, 552 (1896). 256 See id. at 552. 257 438 U.S. 265 (1978). 258 488 U.S. 469 (x989). 259 467 U.S. 267 (x986). 260 Hacker says that affirmative action has become “an epithet for our time.” HACKER, supra

note 155, at 118. The debate in the legal arena has been active. Compare Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SuP. CT. R~v. 1, 25 (arguing that all racial preferences should be held invalid per se) and

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programs were first introduced. The universal battle cry of the polit- ical right is that affirmative action means “quotas” for Blacks, and is an economic threat to whites. 26 1 This equation, although advanced most stridently by the right, has deep resonance among many whites across the political spectrum. In according “preferences” for Blacks and other oppressed groups, affirmative action is said to be “reverse discrimination” against whites, depriving them of their right to equal protection of the laws. Lawsuits brought by white males claiming constitutional injury allegedly produced by affirmative action pro- grams have proliferated and have garnered support in many quar- ters. 262 Whites concede that Blacks were oppressed by slavery and by legalized race segregation and its aftermath, but protest that, not- withstanding this legacy of deprivation and subjugation, it is unfair to allocate the burden to innocent whites who were not involved in acts of discrimination.

263

The Supreme Court’s rejection of affirmative action programs on the grounds that race-conscious remedial measures are unconstitu- tional under the Equal Protection Clause of the Fourteenth Amend- ment – the very constitutional measure designed to guarantee equality for Blacks – is based on the Court’s chronic refusal to dismantle the institutional protection of benefits for whites that have been based on white supremacy and maintained at the expense of Blacks. As a

Antonin Scalia, The Disease as Cure, i979 WASH. U. L.Q. 147, 153-54 (1979) (“[Affirmative action] is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need[; thus it] is racist.”) with WILLIAMS, The Obliging Shell, in ALCHEMY OF RACE AND RIGHTS, supra note 5, at 121 (“[A]ffirmative action is an affirmation; the affir- mative act of hiring – or hearing – blacks is a recognition of individuality that includes blacks as a social presence. . . . It is an act of verification and vision, an act of social as well as professional responsibility.”) and Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 199o DUKE L.J. 705, 705, 707 (arguing for affirmative action in law schools in order to respect the “democratic principle that people should be represented in institutions that have power over their lives,” and for the inclusion of minority scholars in order to “improve the quality and increase the social value of legal scholarship”).

261 Hacker cites the campaign of Jesse Helms of North Carolina as another instance of the

deployment of political rhetoric to -“remind white people how much they have invested in maintaining the status of their race.” HACKER, supra note 155, at 203. The Helms campaign commercial displayed a white working class man tearing up a rejection letter while the voice- over said, “You needed that job, and you were the best qualified. . . . But it had to go to a minority because of a racial quota.” Id. at 202. See generally THOMAS B. EDSALL & MARY D. EDSALL, CHAIN REACTION 172-97 (iggi) (describing how the Republican Party refocused the anger of the white working classes away from their declining economic position by indicting the Democratic Party’s pandering to “black” concerns at the expense of the rights of whites).

262 See, e.g., Billish v. City of Chicago, 962 F.2d 1269, 1272-73 (7th Cir. 1992); Baker v. Elmwood Distrib. Inc., 940 F.2d 1013, 1015 (7th Cir. i9gi); United States v. City of Chicago, 870 F.2d 1256, 1257-58 (7th Cir. 1989).

263 The “innocent persons” argument is at the heart of the legal and social dispute over affirmative action. See RONALD J. FisCus, THE CONSTITUTIONAL LOGIC OF AFFIRMATIVE ACTION 7 (Stephen L. Wasby ed., 1992). This argument is considered in greater depth below in Part IV at pages 1779-84.

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result, the parameters of appropriate remedies are not dictated by the scope of the injury to the subjugated, but by the extent of the in- fringement on settled expectations of whites. These limits to reme- diation are grounded in the perception that the existing order based on white privilege is not only just “there,” 264 but also is a property interest worthy of protection. Thus, under this assumption, it is not only the interests of individual whites who challenge affirmative action that are protected; the interests of whites as whites are enshrined and institutionalized as a property interest that accords them a higher status than any individual claim to relief.

This protection of the property interest in whiteness is achieved by embracing the norm of colorblindness. Current legal definitions interpret race as a factor disconnected from social identity and compel abandonment of race-consciousness. Thus, at the very historical mo- ment that race is infused with a perspective that reshapes it, through race-conscious remediation, into a potential weapon against subordi- nation, official rules articulated in law deny that race matters. Si- multaneously, the law upholds race as immutable and biological.

2 6 5

The assertion that race is color and color does not matter is, of course, essential to the norm of colorblindness.2 66 To define race reductively as simply color, and therefore meaningless, however, is as subordi- nating as defining race to be scientifically determinative of inherent deficiency. The old definition creates a false linkage between race and inferiority; the new definition denies the real linkage between race and oppression under systematic white supremacy. Distorting and denying reality, both definitions support race subordination. As Neil Gotanda has argued, colorblindness is a form of race subordination in that it denies the historical context of white domination and Black subordination. 26 7 This idea of race recasts privileges attendant

264 See Cass R. Sunstein, Lochner’s Legacy, 87 COLUm. L. REv. 873, 895 (1987). The Brown

decision was criticized for not being “neutral” because the existing distribution of power and resources between Blacks and whites was taken by the courts as simply “there” – the base line from which all actions should be measured. All subsequent departures from the status quo were then “preferences,” or violations of neutrality. Sunstein argues that the status quo’s distribution of wealth and power is in fact a product of state action and law through the assignment of entitlements and the creation of property rules. See id.

265 Modem formulations of race have shed notions of inherited inferiority linked to race and have substituted a conception of race that Gotanda describes as “formal-race” – in which “Black and white are seen as neutral apolitical descriptions reflecting merely ‘skin color’ or country of ancestral origin …unrelated to ability, disadvantage, or moral culpability . . .[and] uncon- nected to social attributes such as culture, education, wealth or language.” Gotanda, supra note 24, at 4.

266 Gotanda notes that the current discourse of colorblindness assumes that nonrecognition of race is possible and desirable. He argues, however, that nonrecognition “fosters systematic denial of racial subordination and the psychological repression of an individual’s recognition of that subordination, thereby allowing such subordination to continue.” Id. at x6.

267 See id. at 1-2. Gotanda provides an extended discussion of the modem application of

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to whiteness as legitimate race identity under “neutral” colorblind principles.

The use of colorblindness as the doctrinal mode of protecting the property interest in whiteness is exemplified in three major affirmative action cases decided by the Supreme Court: Bakke, Croson, and Wy- gant. The underlying, although unstated, premise in each of these cases is that the expectation of white privilege is valid, and that the legal protection of that expectation is warranted. This premise legit- imates prior assumptions of the right to ongoing racialized privilege and is another manifestation of whiteness as property.

z. Bakke. – The Supreme Court’s first full-blown review of an affirmative action program considered the claim of Alan Bakke, a white male applicant to a state medical school, that he had been the victim of “reverse discrimination.” 26 8 Bakke claimed an Equal Pro- tection violation because he had been denied admission, despite the fact that his undergraduate grades and Medical College Admissions Test (MCAT) scores were higher than those of the Black, Latino, and Asian students admitted through a special admissions program. The program reserved sixteen out of one hundred spaces for disadvantaged and minority students. Bakke reasoned that he had not been admitted because of his race – white – in violation of the Fourteenth Amend- ment’s equal protection guarantee.

26 9

In a deeply divided four-one-four decision, the Court invalidated the special admissions plan and ordered that Bakke be admitted.

270

Justice Powell, who offered the only opinion in support of Bakke’s position on constitutional grounds, was most concerned and perplexed by the lack of any basis that he could find to justify this “extraordi- nary” remedial action that displaced Bakke’s expectation of admittance and placed the burden of rectifying discrimination, which Justice Powell said was not proven here, on the shoulders of an “innocent” white. 27 1 Justice Powell could find no right to substantive equality justifying an affirmative action program that trumped Bakke’s settled expectations that, because of his grades and test scores, he should be admitted.2 72 Moreover, a majority of the Court invalidated the special admissions plan employed by the University because it denied future white applicants the opportunity to compete for all one hundred seats in the class.

2 73

“formal race” through the doctrine of colorblindness and illustrates the severe deficiencies of color-blind analysis. See id. at 40-52.

268 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 277-78 (1978). 269 See id. at 276-78. 270 See id. at 271. 271 See id. at 290-98. 272 See id. at 310. 273 See id. at 319-20.

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This analysis incorrectly assumes, first, that Bakke’s expectation of admission was valid and entitled to protection, and second, that the special admissions program impermissibly infringed the equal pro- tection rights of future white applicants. These presumptions in fact mask settled expectations of continued white privilege. By extending legal protection to these expectations and legitimating them as valid, the property interest in whiteness was given another form and further hegemony.

The first presumption – that Bakke’s expectation was valid be- cause he was better qualified – is severely flawed. The judgment of “who is better qualified” is fraught with complex and subjective as- sessments. Test scores and grade point averages are undoubtedly important factors in determining qualifications for admission, but work experience, difficulty of course of study, and even such intan- gibles as “motivation” and “potential for professional contribution” are also considered. Any combination of these factors can be used to determine that one applicant is “better qualified” or more meritorious than another. Bakke was nevertheless presumptively “better qualified” because (and these are the only facts the Court cited) he had higher MCAT scores and GPAs than students admitted through the special admissions program. 274 Bakke, according to Justice Powell, was therefore an “innocent victim” and implicitly deserving because he ranked higher in the selected criteria. Even assuming that Bakke could establish that his rejection constituted an abridgement of the Equal Protection Clause, 2 75 Bakke’s expectation of admission was neither reasonable nor supported by the evidence because he may not

274 See id. at 277 & n.7. 275 In order to establish a violation of the Equal Protection Clause, Bakke should have had

to demonstrate that he would have been admitted but for the special admissions program. The only facts in the record upon which Justice Powell seems to have relied upon were that Bakke was rejected in two successive years, although on each occasion students who ranked significantly lower, according to the criteria used to evaluate candidates, were admitted through the special admissions program. See id. at 276-77 & n.7. Although this analysis compared Bakke’s credentials with those of the students admitted through the special admissions program, equally probative is a comparison of Bakke’s test scores and GPA with those of all other students admitted and rejected. If white applicants with lower scores than Bakke’s were admitted, it could not fairly be said that Bakke was denied admission because of his race. In fact, both white and Black applicants with credentials lower than Bakke’s were admitted. See JOEL DREYFUSS & CHARLES LAWRENCE III, THE BAKKE CASE: THE POLITICS OF INEQUALITY 112- 13 (1979). This fact illustrates the inherently discretionary nature of all admissions processes, which are rarely, if ever, tied to purely mathematical formulae. Although race was undeniably a factor in favor of the minority applicants, that does not demonstrate that race was the reason why Bakke was rejected. Instead, the Court held that Bakke should be admitted because the school conceded that it could not carry its burden of proving that “but for the existence of its unlawful special admissions program, [Bakke] still would not have been admitted.” Bakke, 438 U.S. at 32o. This concession by the university was only one of many and was part of a pattern of serious omissions in its defense of the case. See DREYFUss & LAWRENCE, supra, at 32.

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have been “better qualified” if the entire range of admissions criteria had been considered.

The majority of the Court was willing to validate Bakke’s expec- tation because the special admissions plan violated neutrality, when “neutrality” was a colorblind decision process based on “objective merit.” In fact, however, the Court’s discussion about relative per- formance, measured by “neutral” merit criteria, masks its assumptions about the definition of merit. The Court assumed that merit in this context meant superior GPAs and MCAT scores and that these were objective, neutral measures beyond serious challenge. However, Ron- ald Dworkin has argued that Bakke’s claim that his rejection violated merit-based standards was unsubstantiated because merit could not be assumed to mean only undergraduate GPA and MCAT perfor- mance. Merit could in fact mean something quite different, such as the probability that the individual would make a contribution to the profession. 276 Bakke’s presumptions about “merit” were also the Court’s presumptions and formed an essential part of the idea that Bakke had a specific right to be admitted to medical school based on a “universal” definition of merit. This reductive assessment of merit obscures the reality that merit is a constructed idea, not an objective fact. There are few, if any, self-evident, universally agreed upon, objective criteria that comprise merit because merit itself is a fluid, ever-changing objective. Merit criteria are in fact selected in relation to certain “merit” objectives, and those choices are heavily influenced by subjective factors. The idea of merit embodied in the opinions of the plurality have the character of property; the law ratified the settled expectations in a particular definition of merit as MCAT scores and GPAs, even though in fact merit is not only shifting, but also is imperfectly measured by the chosen standard.

Nor is it certain that this standard was neutral or colorblind; commentators have claimed that the MCAT and other standardized tests are biased against racial minorities, and that the tests were deployed to ensure white dominance and privilege. 27 7 The idea, that

276 See Ronald Dworkin, Why Bakke Has No Case, N.Y. REV. BooKs, Nov. 1o, 1977, at II, 13-4.

277 Although MCATs and other standardized tests are not objective measures of ability, they may be the “best we can do.” DERRICK BELL, TEACHER’S HANDBOOK TO RACE, RACISM AND AMERICAN LAv 6I (2d ed. 198o). In fact, prior surveys of the Scholastic Aptitude Test, a test also constructed and administered by the Educational Testing Service as an objective measure of potential performance in college, show a striking correlation between performance and family income level. See id.

The deployment of standardized tests as a basis for graduate admissions and employment correlates with demands by Blacks for equal opportunity. Professor Ware has observed:

[S]tandardized tests were not generally used until the late 194os and early i9Sos. This, coincidentally, was the time when the NAACP’s pre-Brown equalization strategy began to force institutions of higher education to admit black students or to build separate and truly equal facilities for them. Prior to that time, students who successfully completed

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potential performance as a physician or even as a medical student can be quantified as a single number on a test that can then be rank ordered, embraces two central fallacies of biological determinism: the reification of the abstract concept of intelligence – a “complex and multifaceted set of human capabilities” – into a unitary thing (the performance on a test), and the ranking of “complex variation [as] a gradual ascending scale.”

278

Second, Bakke argued, and the Court agreed, that the minority admissions plan abridged Fourteenth Amendment guarantees for whites, who although not historically oppressed, were nevertheless “persons” within the meaning of the Equal Protection Clause. How- ever, the special admissions program violated equal protection stan- dards only if whites as a group can claim a vested and continuing right to compete for one hundred percent of the seats at the medical school, notwithstanding their undue advantage over minority candi- dates. This advantage results from illegal oppression and race seg-

their undergraduate studies could simply enroll in graduate schools. The sort of com- petitive examinations that exist today were not part of the process.

Ware, Letter, supra note 221, at 2; see also Moses v. Washington Parish Sch. Bd., 33o F. Supp. 1340, 1342 (E.D. La. 1971) (noting that “testing was first imposed on blacks at the time of full integration”), aff’d, 456 F.2d 1285 (5th Cir. 1972), cert. denied, 409 U.S. 1013; DERRICK BELL, RACE, RACISM AND AMERICAN LAW 6oi (3 d ed. 1992) (noting that, with regard to the use of testing in primary and secondary education, “[i]t is no coincidence that the interest in grouping students by ability resurfaced only in the mid-i95os, at the same time that desegregation was gaining momentum”). Indeed, Griggs v. Duke Power Co., 401 U.S. 424 (971), demonstrates the correlation between increased reliance on testing and increased demands for integration. In Griggs, the employer’s policy of requiring a high school diploma as a condition of transfer to higher ranked positions in the operating departments coincided with the company’s abandonment of its policy of excluding Blacks from those departments. See id. at 427. On the date that Title VII’s antidiscrimination provisions became effective, the company imposed the additional requirement of successful performance on two aptitude tests, see id., neither of which was designed “to measure the ability to learn to perform a particular job or category of jobs,” id. at 428. Rejecting the employer’s claim that the use of the tests was not prohibited by Title VII because the employer lacked the intent to discriminate, see id. at 432, the Court held that, if an employment practice in fact has discriminatory impact, it can be justified only by business necessity – a showing of a relationship between the requirement and the job in question, see id. at 431; see also Stamps v. Detroit Edison, 365 F. Supp. 87, 115 (E.D. Mich. 1973) (holding that “[i]t is indisputable that Detroit Edison had used its written examinations to ‘freeze the status quo’ of past discrimination and that such has resulted in a differential impact upon the races”).

For a history of the LSAT as a tool developed to respond to the high attrition rates of law students during the period of open admissions, when competence to perform in law school was measured by actual performance, not as a device to determine who should gain admission, see THE MEXICAN AMERICAN LEGAL DEFENSE FUND (MALDEF) LAW SCHOOL ADMISSIONS STUDY 16-24 (1980), cited in Portia Y.T. Hamlar, Minority Tokenism in American Law Schools, 26 How. L. J. 443, 495-97 (1983). See also David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admissions Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION 66, 81-93 (David M. White ed., 1981) (reviewing the accuracy of the LSAT as a predictor of law school grades).

278 GOULD, supra note 147, at 23-25.

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regation in all arenas that operate as an effective and lasting bar to the participation of people of color. The University’s remedial choice did in fact interfere with the expectations of Bakke and other whites that they had a property interest in a space in the class. Expectations of privilege based on past and present wrongs, however, are illegiti- mate and are therefore not immune from interference.

Bakke expected that he would never be disfavored when compet- ing with minority candidates, although he might be disfavored with respect to other more privileged whites. The relevance of class priv- ilege is not a matter of conjecture; the special admissions program and the regular admissions process were not the only paths to admis- sion to the medical school. Five seats in the class were reserved for the Dean to exercise his discretion in favor of children of prominent alumnae/i or donors. 27 9 Indeed, there was clear evidence that Bakke was rejected from twelve other medical schools, with some citing age as a factor. 28 0 The well-established bias against older applicants to medical schools was not challenged by Bakke; nor did the preference for children of wealthy donors and prominent alumnae/i trigger equal protection claims, despite the fact that such procedures clearly created classifications that worked against Bakke, who was neither young nor the son of a wealthy or prominent alumna or alumnus. Bakke was, however, white, and the special admissions program endangered his property interest in whiteness. The Court demonstrated its sympa- thetic concern for his interest in this circumstance by deferring to his vested property interest in whiteness and intervening to reorder the situation to his benefit and in accordance with his expectations.

2. Croson. – By the time the Court considered the City of Rich- mond’s set-aside program for minority-owned businesses and contrac- tors in Croson, the unease that it had displayed in Bakke over inap- propriate burden shifting had matured into full-blown hostility toward any infringement of white interest. In a suit brought by a disap- pointed white contractor, Richmond’s minority business enterprise pro- gram was challenged as an impermissible racial preference violating

279 See EzORsKy, supra note 203, at 9z. Although this program was later abandoned, see id. at 9I n.26, present data suggests that children of more affluent families continue to have a better chance of being accepted at elite institutions, see Graduates of Elite Schools Increasingly Getting Top Jobs, Cm TRIB., Aug. 19, 1992, § 3, at I (citing economists’ report on patterns of acceptance at elite institutions and high-paying employment that indicate that, in contrast to children of affluent families, “‘middle-class students of equal ability are relegated to an education with significantly lower value'”). Harvard University continues to favor children of alumnae as forty percent of alumnae children were admitted compared with fourteen percent of those who did not have such connections. The difference is not justified by higher qualifications of “legacy” candidates over non-legacy candidates. See John Larew, -Why Are Droves of Unqualified, Unprepared Kids Getting in Our Top Colleges? Because Their Dads Are Alumni, WASH. MONTHLY, June i99i, at io.

280 See DREYiFuss & LAwvRENCE, supra note 275, at 16.

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the Fourteenth Amendment. 28 1 For the first time, a majority of the Court embraced a strict scrutiny standard to evaluate an affirmative action program under the Equal Protection Clause. 28 2 Despite the fact that the City of Richmond had managed to spend only .67% of its contracting dollars with minority-owned businesses in a city that was over 50% Black, and that this and other testimony was presented to the City Council, 283 the Court held that there was an insufficient factual predicate upon which to base an affirmative action program for city contracts that required 30% minority participation. 2 84 Exist- ing societal discrimination was insufficient in the view of the majority of the Court to justify an affirmative action program – a program that it seemed to find was in derogation of the norm of nondiscrimi- nation. Only a compelling state interest, such as rectifying the city’s own proven discriminatory practices, would justify the imposition on “innocent whites” of this burden of lost expected profit from the contract that was not awarded because of the minority participation requirement.285

In the majority’s view, whites cannot be burdened with rectifying inequities that are the product of history. But even if one accepts this questionable normative premise, 286 it is still difficult to see how the injury claimed by Croson – the loss of anticipated profit – warranted the application of strict scrutiny review. The gravamen of Croson’s charge was that the state had no right under the Fourteenth Amend- ment to interfere with any de facto privilege accruing to him because he was white, and that therefore the status quo, in which over 99%

281 See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 485 (1989). 282 See id. at 494. 283 See id. at 479-80. 284 See id. at 477-78, 498-5oo. Another interesting feature of the Croson decision was the

Court’s hostility to the affirmative action set-aside program enacted by the Richmond City Council precisely because the City Council was predominantly Black. In the majority’s view, the set-aside program was no more than a political spoils system in which Blacks were using their political power to appropriate economic resources. Blacks’ actions to benefit themselves were deemed inappropriate and as illegitimate as similar action undertaken by whites. See id. at 495-96. The Court conveniently ignored the fact that history demonstrates that whites did implement such systems and that their current position of dominance is such a direct and successful product of it that “neutrality” is all that is now required for them to maintain control.

285 See id. at 488-506. 286 There is little to commend the notion that beneficiaries of historical wrongs are holders

of inviolable rights or interests. The underlying premises of much of the law disputes such an assumption. For example, the family of an embezzler who occupies a house or possesses goods purchased with stolen funds is not considered to have a normatively secure claim to the goods merely because they did not actively perpetuate the wrong. See Fiscus, supra note 263, at 45 (“[Plersonal guilt or innocence is irrelevant to the claim of right, as when a party innocently comes into possession of stolen goods; the claim on those goods by the rightful owner is not forfeited because of the innocence of the current possessor.”); WILLIAMS, The Obliging Shell, in ALCHEMY OF RACE AND RIGHTS, supra note 5, at io (“If a thief steals so that his children may live in luxury and the law returns his ill-gotten gain to its rightful owner, the children cannot complain that they have been deprived of what they did not own.”).

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of the government contracting business had gone to whites, could not be disturbed absent the most compelling justification. Essentially, Croson’s claim was an assertion of the property interest in white- ness.

2 87

It is not that white individuals like Croson do not or should not have a right to seek constitutional protection under the Equal Protec- tion Clause; that is a right guaranteed to all persons. The problem lies in extending the protection of the law in the form of strict scrutiny review28 8 to whites as whites. Treating whiteness as the basis for a valid claim to special constitutional protection is a further legitimation of whiteness as identity, status, and property. Treating white identity as no different from any other group identity when, at its core, whiteness is based on racial subordination ratifies existing white priv- ilege by making it the referential base line. Differential treatment of whites is not beyond constitutional concern; but differential treatment of whites does not signify the same meaning as differential treatment of Blacks. To assert that whites have an equivalent right to a level of review designed to protect groups and peoples subordinated by white supremacy is to seek to legitimate a usurpation. After all, race oppression has meaning in this country not because of what has been done to whites because of their racial identity, but what has been done to those who are not white in the name of protecting white- ness.

289

287 Linda Greene has described judicial solicitation for the “rights of whites,” which is evident

throughout American law and appears as a common theme in the Supreme Court’s civil rights decisions during the i988 Term. See Linda S. Greene, Race in the 21st Century: Equality Through Law?, 64 TUL. L. REv. 1515, 1533-38 (iggo). Greene maintains that Croson protects the rights of whites “against both the economic aspirations of black contractors and the political effectiveness of black leaders and constituents.” Id. at 1533. The case is thus situated in the modern trend of protecting white rights, not through explicit guarantees, but through counter- balancing Blacks’ claims for equality against the “vested interest of white[s] …in maintaining the status quo.” Id. at 1537.

288 The origin of the strict scrutiny standard is Korematsu v. United States, 323 U.S. 214 (1944), in which the Court reviewed the exclusion orders that shipped Japanese-Americans out of the western United States and interned them in camps, see id. at 216.

289 As noted by one author, there is tremendous irony in ascribing the same meaning to the differential treatment of whites and the discriminatory treatment of Blacks:

Why does racial discrimination excite us when so many other kinds of discrimination do not? It is because of the way we interpret history, associating racial discrimination with practices that now appear self-evidently evil: forcing blacks from their homeland, enslaving blacks, lynching blacks for actions that among whites would not be criminal, intimidating blacks who sought to exercise their rights – in sum, systematically disad- vantaging a people in almost every way that mattered ….

A claim made by a white person as a member of the dominant majority draws its moral force largely from our collective horror at centuries of oppressing black people. It would be ironic indeed if evils visited on blacks had lent enough force to the moral claims of whites to prevent what appears to many at this point to be the most effective means of eliminating the legacy of those evils.

Richard Lempert, The Force of Irony: On the Morality of Affirmative Action and United Steelworkers v. Weber, 95 ETHICS 86, 88-89 (1984).

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3. Wygant. – In Wygant, more senior white teachers who were laid-off before more junior Black teachers who had been hired to remedy prior discrimination by the Jackson, Michigan school board challenged the union-approved layoff plan as reverse discrimination barred by the Equal Protection Clause. 290 Because the loss of existing jobs was at issue in Wygant, it has been considered a more difficult case. Certainly, there was loss: the question, as Justice Marshall noted in dissent, is whether there was constitutional injury. 2 91 When the Jackson, Michigan School Board negotiated an agreement with the union that sought to protect the jobs of more recently hired Black teachers in the event of a layoff, it disturbed long-standing assump- tions about seniority as the basis of distributing loss. White teachers who had lost their jobs asserted that their seniority was a vested right – a property right – on which they were entitled to rely, and of which they were being deprived because of their race. The Court, disturbed by the loss of employment to innocent whites, overrode the provision in the union agreement that modified seniority rules in the interest of remediating past racial discrimination, and ordered rein- statement of the more senior white employees.2 92 It in fact restruc- tured the bargain and set aside a portion of the contract negotiated by the union so that whites were protected from the layoff despite the contract.

The majority’s analysis ignores what positions many of the white teachers would have held but for the privilege inherent in being white. Absent the history of overt and covert racial exclusion, many white employees would not have been hired in the first place and would therefore have no basis to claim seniority preferences. Thus, a claim of right predicated on seniority is an assertion of preference based on that racially discriminatory history. Asserting the property interest in seniority rights against the background of structured privilege for whites and inequities for Blacks “is to claim a property right in the benefits of being white.” 293 To illustrate the point, one could consider the extent to which the Court would extend protections to these workers if they were losing their jobs because of a corporate takeover, a plant closing, or any other reason.

294

Together, these cases establish the Court’s major doctrinal view of affirmative action as abnormal and against the norm of nondiscrimi-

290 See Wygant v. Jackson Bd. of Educ., 467 U.S. 267, 272-73 (x986). 291 See id. at 296 (Marshall, J., dissenting). 292 See id. at 283-84. 293 Singer, supra note 17, at 1o3. 294 Indeed, Frances Ansley suggests that, when one compares general worker protections

with “white skin protection,” it is evident that the courts are not in fact protecting workers but their whiteness. See Ansley, supra note xo, at xo68-69.

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nation. They speak the formal language of equality, but subordinate equality by vesting the expectations of whites that what is unequal in fact will be regarded as equal in law. Thus, they enshrine whiteness as property.

V. DE-LEGITIMATING THE PROPERTY INTEREST IN WHITENESS THROUGH AFFIRMATIVE ACTION

Within the worlds of de jure and de facto segregation, whiteness has value, whiteness is valued, and whiteness is expected to be valued in law. The legal affirmation of whiteness and white privilege allowed expectations that originated in injustice to be naturalized and legiti- mated. The relative economic, political, and social advantages dis- pensed to whites under systematic white supremacy in the United States were reinforced through patterns of oppression of Blacks and Native Americans. Materially, these advantages became institution- alized privileges, and ideologically, they became part of the settled expectations of whites2 95 – a product of the unalterable original bargain. The law masks what is chosen as natural; it obscures the consequences of social selection as inevitable. 29 6 The result is that the distortions in social relations are immunized from truly effective intervention, because the existing inequities are obscured and rendered nearly invisible. The existing state of affairs is considered neutral

29 7

295 Frances Ansley identifies the origins of these expectations in segregation: [I]n the days of Jim Crow, white people who lived in that system had emotional, cultural and financial stakes in the continuation of a segregated way of life. Segregation had become a settled expectation that, for most whites, represented their “chosen” preference … . From the point of view of blacks, these arrangements may have looked unjust and bizarre. Of course, the arrangements were unjust and bizarre. But they nevertheless clearly represented settled expectations, and to many ordinary white people these arrange- ments seemed natural and essential to their fundamental rights to private property and personal liberty.

Id. at ioni (cit1tion omitted). She further describes the pattern of antidiscrimination cases beginning with Shelley v. Kraemer, 334 U.S. 1 (1948), and continuing through Brown II and the cases following the Civil Rights Act of 1964, to be embracing the rule that these expectations could not supersede the mandate of equality. See id. at 1011-13.

296 See Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 BUFF. L. REv. 205, 334-50 (I979).

297 Neutrality, conceptualized as the “preservation of the existing distribution of wealth and entitlements,” is required and maintained through means adjudged to be fair. Sunstein, supra note 264, at 875. It is Sunstein’s argument that this notion of neutrality is so deeply embedded in the framework of American constitutionalism that, despite the fact that Lochner v. New York, 198 U.S. 45 (19o5) – one of the major cases enshrining this particular definition of neutrality – has been overruled and severely criticized, the legacy of Lochners assumptions about neutrality remain. See id. at 874-75. Neutrality also has its negative implications for Black self-definition that parallel the self-denial inherent in the phenomenon of passing. Patricia Williams describes several incidents in which Blacks shunned public identification as Blacks

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