“‘White’ is an idea, an evolving social group, an unstable identity subject to expansion and contraction, a trope for welcome immigrant groups, a mechanism for excluding those of unfamiliar origin, an artifice of social prejudice… ‘White’ is not a biologically defined group, a neutral designation of difference, an objective description of immutable traits, a scientifically defensible division of humankind, an accident of nature unmolded by the hands of people.” (Haney Lopez)

Becoming White, then, is not an either/or proposition, but rather it is an uneven process, resulting in racial identities that change across contexts and time. Thus, in the 1920s eastern and southern Europeans could be White for purposes of naturalization, but still racial inferiors in the close context of immigration and the more general milieu of social relations. […] Recall now the question that opened this book. Judge [107] Smith in Shahid asked: “Then, what is white?”[81] The above discussion suggests some answers. Whiteness is a social construct, a legal artifact, a function of white people believe, a mutable category tied to particular historical moments. Other answers are also possible. “White” is an idea, an evolving social group, an unstable identity subject to expansion and contraction, a trope for welcome immigrant groups, a mechanism for excluding those of unfamiliar origin, an artifice of social prejudice. Indeed, Whiteness can be one, all, or any combination of these, depending on the local setting in which it is deployed. On the other hand, in light of the prerequisite cases, some answers are no longer acceptable. “White” is not a biologically defined group, a neutral designation of difference, an objective description of immutable traits, a scientifically defensible division of humankind, an accident of nature unmolded by the hands of people. In the end, the prerequisite cases leave us with this: “white” is common knowledge. “White” is what we believe it is.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 80-81.

 

  1. [81]Ex parte Shahid, 205 F. 812, 813 (E.D.S.C. 1913).

“That no judge naturalized a person identified as having dark skin suggests an unwillingness among the courts to find such persons White” (Haney Lopez)

??? What about Rodriguez, seems like an exception here ??? / WBL 69ff

Despite Judge Newman’s assertion in Najour that the term “white person” “refers to race, rather than to color, and fair or dark complexion should not be allowed to control” in questions of naturalization, no judge, not even Judge Newman, was particularly comfortable with this legal point. Instead, the decisions betray judicial antipathy toward allowing dark-skinned persons to naturalize as Whites, a predictable response of the times. This antipathy can be seen in the way the various courts discussed the applicants’ skin color. Consider two decisions denying petitions for citizenship issued by a federal court in South Carolina. In the first, the judge said of the petitioner, “in color, he is about that of a walnut, or somewhat darker than is the usual mulatto of one-half mixed blood between the white and negro races.”[58] In the next, the same judge described another ill-fated applicant as “darker than the usual person of white European descent, and that of tinged or sallow appearance which usually accompanies persons of descent other than purely European.”[59] Though the judge did not identify skin color as a determining factor in his decisions, that the court thought it necessary to describe the applicants’ complexions suggests that this factor contributed to the decisions to deny them naturalization. Concern over skin color also manifests itself, albeit in different form, in those decisions allowing applicants to naturalize. Courts ruling for naturalization either noted the applicants light skin color or remained silent as [69] to physical features. That no judge naturalized a person identified as having dark skin suggests an unwillingness among the courts to find such persons White. This is true even of Judge Newman. In Najour, he wrote of the applicant: “He is not particularly dark, and has none of the characteristics or appearance of the Mongolian race, but, so far as I can see and judge, has the appearance and characteristics of the Caucasian race.”[60] Similarly, another federal court admitting several Armenian applicants remarked that they were “white persons in appearance, not darker in complexion than some persons of northern European descent traceable for generations.”[61] Najour‘s holding that color was legally irrelevant to race proved highly troublesome to the courts considering prerequisite cases, both to those deciding upon the application of persons perceived as dark-skinned, and, to a lesser degree, to those finding the petitioners before them White.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 69ff.
  1. [58]Shahidsupra, 205 F. at 813.
  2. [59]Ex parte Dowsupra, 211 F. 486; In re Dowsupra, 213 F. 355.
  3. [60]Najoursupra, 174 F. at 735.
  4. [61]Halladjiansupra, 174 F. at 835.

“a tendency among Whites not to see themselves in racial terms … the transparency phenomenon” (Haney-López)

Transparency phenomenon of whiteness. / WBL, p. 22.

Not all White scholars suffer from the same myopia regarding Whiteness. Indeed, Barbara Flagg introduces her article on White race-consciousness, “Was Blind, But Now I See”: White Race Consciousness and the Requirement of Discriminating Intent, by criticizing other White authors for their singular focus on Blacks.[49] Importantly, Flagg suggests that the exclusive focus on Blacks is more than an innocent mistake. She argues that it is a contingent, particularly revealing error, a function of the nature of White race-consciousness rather than a fortuitous slip. Flagg fits this myopia into her theory of White race-consciousness by suggesting that there exists a tendency among Whites not to see themselves in racial terms. She identifies this tendency as one of the defining characteristics of being White, and labels this the “transparency phenomenon.” “The most striking characteristic of whites’ consciousness of whiteness is that most of the time we don’t have any. I call this the transparency phenomenon: the tendency of whites not to think about whiteness, or about norms, behaviors, experiences, or perspectives that are white-specific.”[50] Flagg argues that as an antidote to transparency, Whites must develop “a carefully conceived race consciousness, one that begins with whites’ consciousness of whiteness.”[51] In this critique and in her prescription for change, Flagg is almost certainly correct. Her article advances the thinking on race-consciousness by [23] placing Whites securely within the parameters of discussion and by identifying a central hurdle that must be surmounted in the development of White racial self-awareness.

If transparency is a common phenomenon among Whites today, it seems also to have afflicted judges deciding prerequisite cases. Despite the apparent simplicity of the issue before them, the courts hearing prerequisite cases experienced great difficulty defining who was White, often turning for succor to such disparate materials as amici briefs, encyclopedias, and anthropological texts. Even with the assistance of these materials, however, the courts hearing prerequisite cases were slow to develop a defensible definition of Whiteness, instead frequently reaching contradictory results. Though themselves White, judges hearing prerequisite cases could not easily say what distinguishes a “white person.” More than a few judges expressed considerable consternation over the indeterminacy of the prerequisite language in its reference to “whites.” Thus, in a 1913 case, Ex parte Shahid, a federal court in South Carolina protested that “[t]he statute as it stands is most uncertain, ambiguous, and difficult both of construction and application.”[52] Shahid posed in frustration the beguilingly simple question that introduces this book: “Then, what is white?”[53]

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 22-23.
  1. [49]Flagg, supra, at 956-57.
  2. [50]Id. at 957 (emphasis in original).
  3. [51]Id. at 961.
  4. [52]20 F. 812, 813 (E.D.S.C. 1913).
  5. [53]Id.