At first glance, race is a natural concept, meaning people are born labeled with a race. It seems unnatural to think race does not exist because in our daily lives, there are physical differences in appearances and cultures. In Ian Haney Lopez’s book White by Law: The Legal Construction of Race, Lopez argues that race is not a natural concept and instead was created and furthered through the use of law. Law legitimizes the notion of race and makes it impossible to escape the thought of racial identity. Through law, race has become one of the biggest -isms that pervade through history and society today. Lopez argues that law constructs race by examining prerequisite cases of naturalization law, state laws defining Blacks, and how law is utilized to advance race in society through coercion and as an ideology.
In identifying how law constructs race, Lopez examines fifty-two prerequisite cases, including two that reached the Supreme Court. Beginning in 1790, Congress created the first naturalization law restricting citizenship to “white persons,” lasting until 1952. This, in turn, leads to many cases of people arguing for citizenship and to prove their Whiteness. Lopez focuses on these prerequisite cases because they show the methods judges would use to rationalize their judgments on deciding a person’s race. Two main rationales were relied on: common knowledge and scientific evidence. Common knowledge is defined as popular and widely held ideas of race whereas scientific evidence was provided by anthropologists identifying past geography, biology, and cultures.
Judges went back and forth between using common knowledge and scientific reasoning, using whichever method worked in their favor to restrict non-whites from naturalizing. Two specific cases, Ozawa v. United States (1922) and Thind v. United States (1923) distinctly show how the Supreme Court struggled between using the two rationales. In Ozawa v. United States (1922), the Supreme Court ruled that Ozawa, a Japanese who had lived in the U.S. for twenty years, was not “popularly known as the Caucasian race” (as cited by Lopez, 2006, p. 5). The Justices drew on both rationales using the words “popularly known” and “Caucasian race” for common knowledge and scientific reasoning respectively to justify that Ozawa was not eligible for citizenship. In deciding Ozawa, they simultaneously determined that White and Caucasian are synonymous terms. Shortly following in 1923, the Supreme Court heard Thind v. United States (1923). Scientific evidence reasoned that Thind would be allowed to naturalize because Asian Indians were Caucasians which ultimately meant Asian Indians were White.
However, the Court drew upon common knowledge, ruling that Thind wasn’t allowed citizenship because his race and beliefs were drastically different than the general white person. The Justices diverged from scientific knowledge because they believed that science made a mistake, Caucasians included more people than science initially thought. Through examining Ozawa and Thind, common knowledge and scientific knowledge went hand in hand if they were both measuring the same physical fact and if they were both tainted by social conceptions of racial difference. Courts used both rationales in deciding cases, however, they ultimately abandoned scientific evidence once science could not prove that racial distinctions existed biologically. Lopez argues that by abandoning scientific knowledge and instead utilizing common knowledge as the main method of deciding race shows that race is a social notion and not a natural concept.
A secondary product made by prerequisite cases is giving meaning to certain races. Through the prerequisite cases, judges never truly addressed what constitutes a White person and White culture. By defining who is not White, judges set an example of undesirableness because people who cannot acquire citizenship must mean there exists inferior and superior status. By excluding people from assimilating into the U.S., connotations and stereotypes were assigned to specific races to impose meaning. For every negative connotation given to non-Whites, there is a positive term used for Whites. Common stereotypes for Blacks are dirty, dangerous, lazy, and ignorant. The opposite is believed to be true of Whites: pure, innocent, hard-working, and knowledgeable. Although naturalization laws were introduced in 1790, there were already bad connotations of Blacks produced from slavery. Segregation laws created a foundation for creating more race categories.
Almost every U.S. state before Brown v. Board of Education (1954), had a law defining who was Black based on the amount of Black blood a person had. According to Florida, a person who had a one-eighth drop of Black blood was considered Black. However in Virginia, they defined a Black person as having “any Negro blood with not more than one-sixteenth Native American ancestry” (as cited by Lopez, 2006, p. 83) and in Oregon, they had a one-fourth rule. Lopez states that by creating and having different definitions of what makes a person Black, shows unquestionably that race is produced through social beliefs and not naturally.
Law continues to create racial divisions by coercion and ideology. Lopez argues that the construction of race does not stop at the prerequisite cases. The idea and meaning behind races were incorporated into anti-miscegenation laws. To keep the concept of race in society and to create a White country, laws targeted reproductive choices which would create a general image of how a White person looks and on a larger scale, a White race. Naturalization laws first limits who people can reproduce with.
By not allowing non-Whites to live in the U.S., there would be no blurred lines in determining who is White. Furthermore, women were mainly targeted and could not naturalize if they were married to a person who was ineligible for naturalization. Women would also be stripped of their citizenship status if they gave birth to a child of a different race in the U.S. These anti-miscegenation laws coerced women to follow the law which in turn created the ideology that race is a natural concept. They were created to maintain pure physical features to distinguish racial differences. Lopez goes on to say that coercion plays a big role in keeping racism alive today because racial conceptions are materialized.
The idea of Whites being superior above other races materialize in housing and financial status. Because people can clearly see the difference and truth that non-Whites are poor and inferior, racism continues to exist. Law works as an ideology to push race because law is the basis of how people and society regulate. People will not follow law solely because of coercion, but also because people generally believe that law reflects society and morality. Because laws have indicated that racial discrimination is acceptable, people are inclined to discriminate. Lopez states that even if minorities freed their minds of racism, they still cannot escape their material well-being and that White-consciousness is the key to deconstructing race.
White-consciousness is important to solving racism because Whites introduced a world with oppression and non-white consciousness can only do so much when they seemingly are lower than Whites in society and privileges. Racial discrimination and the White and Black connections to good and evil will take long to overcome and solve. One solution Lopez discusses to overcome race issues is to talk about race. To not talk about race, would be to ignore racial issues. Although the Supreme Court is taking actions to strike down laws that explicitly target certain races, laws could still not explicitly discuss race and still intentionally hurt a specific group of people. However, the discussion of race requires caution because if a White person is race-conscious but kept stating that they are white, other people could see it as a declaration of superiority.
Lopez proposes a future that America is moving towards a mixed-race demographic similar to Latin America. However, there will continue to exist a color-blind White dominance where there is continued dominance by Whites while expanding White identity along socio-racial lines rather than bio-racial lines. Lopez supports this hypothesis by stating that a large number of Asians and Latin Americans have immigrated and assimilated in the U.S. in the past few decades. Many Asians and Latin Americans are also rising in status and are received as more tamed, resulting in being labeled as the model minority. Lopez combines these facts to say the U.S. will incorporate a colorblind ideology where the U.S. proclaims to be anti-racism yet works against it.
From abandoning scientific evidence rationale, giving meaning to race, having different definitions of what makes a Black person, law coercing people and working as an ideology, it is clear that law constructed race. By disavowing scientific reasoning for common knowledge when determining if a person is White enough for naturalization, this shows that judges pushed for racial division even when faced with no factual evidence differentiating between races. States establishing different definitions for who counts as a Black person based on blood shows that there is not a consensus of what exactly makes up a Black person and ultimately that there is no definitive method to measure race. Anti-miscegenation laws were created to push a White identity to seem as if race was clearly natural which pushed the ideology of race into society. Lopez concludes his argument by stating that although there are more effort and attention to being race-consciousness, it is also clear that racial discrimination will not disappear soon.
- Lopez, Ian Haney. White by Law. New York University Press, New York, 2006.