“The prerequisite cases show that race is a social construct fabricated in part by law.” (Haney Lopez)

The prerequisite cases show that race is a social construct fabricated in part by law. More than this, these cases specifically illuminate the construction of Whiteness, constituting that rare instance when White racial identity is unexpectedly drawn out of the background and placed abruptly in question. Moving away from legal theory, it is useful to ask what the prerequisite cases tell us about Whiteness. It may seem that these cases say relatively little, both because the courts failed to offer a developed definition of White identity, and also seemed to concern themselves much more with who was not White. In the end, however, it is exactly these practices that tell us most about the nature of White identity today, drawing into view both the maintaining technologies of transparency and the relational construction of White and non-White identity.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 155.

“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.