WHITE BY LAW

Vol. 17 No. 2 (February, 2007) pp.138-140

WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE, REVISED AND UPDATED, 10TH ANNIVERSARY EDITION, by Ian Haney López. New York: New York University Press, 2006. 263pp. Cloth $70.00. ISBN: 081473698X. Paper $21.00. ISBN: 0814736947.

Reviewed by Staci L. Beavers, Political Science Department, California State University San Marcos. E-mail: sbeavers [at] csusm.edu.

Here is one work that proved challenging to review with a fresh eye, having been widely reviewed and discussed since its original publication more than 10 years ago. Ian Haney López’s WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE has now been “Revised and Updated” for release as a “10th Anniversary Edition.” The existing text has been left unchanged, with only an original Preface and an original closing chapter added to constitute the revision. While one’s first question upon picking up such a book could easily be “why bother?” with the re-release of an older work, in this case, the strategy works. As Haney López asserts in his fresh Preface, it turns out correctly, the text from 1996 is still highly relevant to discussions of race in the US. Moreover, the newly penned closing chapter provides additional insights into the evolution and possible future of US society regarding race and racism that mesh well with the existing text. My own hope upon finishing this edition is that the new presentation of the book will provide the opportunity for a new generation of scholars to be introduced to Haney López’s powerful arguments critiquing racial identities in the US and the continuing challenges resulting from US society’s racial constructions.

A legal scholar, Haney López makes his contribution to the literature on critical race theory primarily through an assessment of mostly early 20th century judicial decisions attempting to determine who was to be considered as “White” in the US during that period. Described by Haney López as the “racial prerequisite cases,” which spanned from 1878 to 1944 and included two opinions by a unanimous Supreme Court in 1922-1923, these 52 published cases interpreted federal statutes tying the opportunity of naturalized citizenship explicitly to racial criteria (pp.2-3). Congress’s 1790 legislation on the matter required that an individual be “‘a free white person’” to qualify for naturalization (statute quoted by Haney López, p.31). While an 1870 statute also opened the opportunity of naturalization to “‘persons of African nativity, or African descent’” (statute quoted by Haney López, p.31), nearly all of the judicial decisions rendered involved individuals of non-European descent attempting (but usually failing) to gain judicial declarations that they were “White” and thus eligible for US citizenship through naturalization. As Haney López describes, the various judges used a variety of justifications for their rulings, most notably “common knowledge” and contemporary “scientific evidence” (p.3). The Supreme Court’s shift over the course of [*139] just a few months from a partial reliance on scientific criteria that allowed the justices to unanimously deny “White” standing to Takao Ozawa in OZAWA v. U.S. (1922) to a “common knowledge” approach that explicitly dismissed science in order to unanimously deny Bhagat Singh Thind “White” standing in U.S. v. THIND (1923) is particularly troubling in its arbitrariness. Upon the strength of such evidence, Haney López seeks to establish that basic human prejudice has contributed to the development of race as “a social construction fabricated in part by law” (p.109), with the effects remaining with us forcefully today. The discussions of the case rationales and relevant statutes provide a highly instructive lesson in how racial boundaries have been willfully drawn by policymakers over time.

In later chapters, Haney López successfully shifts gears to establish the continuing significance of such previously defined racial boundaries. The argument: race is simultaneously an entirely artificial construction and yet a nearly all-encompassing one, serving as a powerful force regarding one’s status and experience in the US. In Haney López’s words, “race is only an idea, but it is an implacable one whose material effects pervade and predominate all social relationships” (p.119). A great concern in these later chapters is the trend since the late 20th century towards “colorblindness” in US policy, for example in the dismantling of allegedly discriminatory affirmative action programs intended to assist minorities. Instead, Haney López asserts the impossibility of achieving a racially just society without continuing to acknowledge race for remedial purposes. He quotes Justice Blackmun’s eloquent statement in his solo BAKKE opinion: “‘In order to get beyond racism, we must first take account of race. There is no other way’” (quoted on p.124). One issue only just touched upon in this discussion, however, is defining these artificial racial categories for purposes of remediation (see for example p.88, citations omitted). Though he asserts that “there is no indication that in and of itself the legal construction of race is normatively good or bad” (p.81), Haney López has devastatingly critiqued past legal definitions of racial categories and the social forces that have gone into their development; can such definitions be any less problematic when designed for remedial purposes? Additionally, Haney López suggests he has no idea whether Justice Blackmun’s goal of “‘get[ting] beyond racism’” can ever be realized when he notes that he has no way of knowing “whether Whiteness can be dismantled” (p.133). Despite such sticking points, however, Haney López makes a compelling case for race-based remedies as a necessary means of at least attempting to promote greater opportunities and equality for disadvantaged racial minorities.

As noted above, it is to the original Preface and closing chapter, “Colorblind White Dominance,” that the reader must look for new insights in this edition. In the Preface, Haney López explores his own introduction to the study of race, and the closing chapter is devoted to his predictions regarding race relations into the foreseeable future. He predicts that the “racial ideology of colorblindness” [*140] (p.156) will dominate the racial landscape, with policies that, while on their face racially neutral, will still serve (whether unintentionally or deliberately) to perpetuate “White” domination of society and its resources and privileges. Though at present the phenomenon may seem difficult to visualize, his prediction that “White” standing, or some variation thereof, will eventually be accorded to some individuals currently categorized as racial minorities (primarily some Asians and Latinos) is consistent with the idea that racial identities morph over time. Further, he sees this development as being tied to, and perhaps assisting in, the continuation and entrenchment of racial divisions and inequality rather than their demise.

While the writing is accessible, even for many undergraduates, both the topic and the arguments will be uncomfortable for many (read “White”) readers. One concern is that individuals who may benefit the most from the work, including policymakers, may be the least likely to express an interest in picking it up on their own in the first place due to its unsettling assertions. As a tool for instruction, the book could be quite useful in a wide range of courses. Since the court cases evaluated focus on statutory analysis rather than constitutional issues, it may be difficult to fit the book into a standard course on constitutional law; however, it would certainly be appropriate for a seminar on civil rights or for a judicial process course, as well as for courses in racial/ethnic politics. Faculty at my own institution have long used excerpts of the original edition in courses ranging from Communication to Sociology and tell me that they have been pleased with its impact; I believe the addition of the author’s personal narrative in the Preface and his intriguing view into the future with the new conclusion will add to the book’s pedagogical value.

In sum, Haney López has provided a piece of scholarship worthy of bringing out for a curtain call on its 10th anniversary.

CASE REFERENCES:

OZAWA v. UNITED STATES, 260 U.S. 178 (1922).

UNITED STATES v. THIND, 261 U.S. 204 (1923).

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE, 438 U.S. 265 (1978).

STATUTORY REFERENCES:

ACT of MARCH 26, 1790, ch. 3, 1 Stat. 103.

ACT of JULY 14, 1870, ch. 255, §7, 16 Stat. 254.

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