Performing whiteness: Naturalization litigation and the construction of racial identity in America

Yale Law Journal

Volumn 109, Issue 4, 2000, Pages 817-847

  Tehranian, John ^a  

^a NONE

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EID: 0005192291     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797505     Document Type: Article

References (191)

1. HERMAN MELVILLE, MOBY-DICK 234-36 (Constable & Co. 1922) (1850).
2. As noted infra Section II.C, the conception of race was eventually problematized into a hermeneutics of color.
3. Act of Mar. 26, 1790, ch. 3, 1 Stat. 103, repealed by Act of Jan. 29, 1795, ch. 20, 1 Stat. 414.
4. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).
5. Act of July 14, 1870, ch. 255, § 7, 16 Stat. 254.
6. See Immigration and Nationality Act of 1952, ch. 2, § 311, 66 Stat. 239 (codified as amended at 8 U.S.C. § 1422 (1994)).
7. There was a brief and accidental exception to the rule from June 22, 1874 to February 18, 1875. See In re Ah Chong, 2 F. 733, 739 (C.C.D. Cal. 1880) (noting the inadvertent omission of the word "white" from the naturalization statute that made nonwhite individuals eligible for naturalization from June 22, 1874 to February 18, 1875).
8. Curiously enough, there is only one reported case of an individual suing for naturalization eligibility on the grounds of being black by law. See In re Cruz, 23 F. Supp. 774 (E.D.N.Y. 1938).
9. Interestingly enough, a failure to assimilate or perform whiteness was also one of Chief Justice Marshall's grounds for denying Native Americans the full right of property possession in the Supreme Court's famous Johnson v. McIntosh decision. See Johnson v. McIntosh, 21 U.S. (8 Wheat.) 240, 260 (1823) (describing Native Americans as a "people with whom it was impossible to mix").
10. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709, 1716 (1993).
11. Alien Property Initiative Act (Alien Land Law) of 1920, 1 Cal. Gen. Laws, Act 261 (Peering 1944 & Supp. 1949).
12. See Porterfield v. Webb, 263 U.S. 225 (1923); see also Morrison v. California, 291 U.S. 82 (1934); Cockrill v. California, 268 U.S. 258 (1925); Webb v. O'Brien, 263 U.S. 313 (1923); Terrace v. Thompson, 263 U.S. 197 (1923).
13. See Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948).
14. See United States v. Pandit, 15 F.2d 285 (9th Cir. 1926).
15. IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996).
16. 260 U.S. 178 (1922).
17. 261 U.S. 204 (1923).
18. See HANEY LÓPEZ, supra note 15, at 7, 8.
19. Id. at 19.
20. See Frank H. Wu, From Black to White and Back Again, 3 ASIAN L.J. 185, 186 (1996) (reviewing HANEY LOPEZ, supra note 15).
21. HANEY LÓPEZ, supra note 15, at 33.
22. Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 59 (1984).
23. See ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC (1990).
24. 42 U.S.C. §§ 1981, 1982 (1994).
25. See HANEY LÓPEZ, supra note 15, at 107.
26. Id. at 5.
27. Id.
28. See Ozawa v. United States, 260 U.S. 178, 198 (1922).
29. See id.
30. See United States v. Thind, 261 U.S. 204, 206 (1923).
31. See id. at 208.
32. For the major scientific race treatises of the nineteenth and early twentieth centuries, see DANIEL GARRISON BRINTON, RACES AND PEOPLES (New York, N.D.C. Hodges 1890); LOUIS FIGUIER, LES RACES HUMAINES (Paris, Hachette 1872); JOHN P. JEFFRIES, THE NATURAL HISTORY OF THE HUMAN RACES (New York, E.O. Jenkins 1869); A.H. KEANE, THE WORLD'S PEOPLES (1908); CHARLES PICKERING, THE RACES OF MAN (London, H.G. Bohn 1851); and JAMES COWLES PRICHARD, THE NATURAL HISTORY OF MAN (London, H. Bailliere 1848), all of which are cited in Dow v. United States, 226 F. 145, 146 (4th Cir. 1915).
33. For the major scientific race treatises of the nineteenth and early twentieth centuries, see DANIEL GARRISON BRINTON, RACES AND PEOPLES (New York, N.D.C. Hodges 1890); LOUIS FIGUIER, LES RACES HUMAINES (Paris, Hachette 1872); JOHN P. JEFFRIES, THE NATURAL HISTORY OF THE HUMAN RACES (New York, E.O. Jenkins 1869); A.H. KEANE, THE WORLD'S PEOPLES (1908); CHARLES PICKERING, THE RACES OF MAN (London, H.G. Bohn 1851); and JAMES COWLES PRICHARD, THE NATURAL HISTORY OF MAN (London, H. Bailliere 1848), all of which are cited in Dow v. United States, 226 F. 145, 146 (4th Cir. 1915).
34. For the major scientific race treatises of the nineteenth and early twentieth centuries, see DANIEL GARRISON BRINTON, RACES AND PEOPLES (New York, N.D.C. Hodges 1890); LOUIS FIGUIER, LES RACES HUMAINES (Paris, Hachette 1872); JOHN P. JEFFRIES, THE NATURAL HISTORY OF THE HUMAN RACES (New York, E.O. Jenkins 1869); A.H. KEANE, THE WORLD'S PEOPLES (1908); CHARLES PICKERING, THE RACES OF MAN (London, H.G. Bohn 1851); and JAMES COWLES PRICHARD, THE NATURAL HISTORY OF MAN (London, H. Bailliere 1848), all of which are cited in Dow v. United States, 226 F. 145, 146 (4th Cir. 1915).
35. For the major scientific race treatises of the nineteenth and early twentieth centuries, see DANIEL GARRISON BRINTON, RACES AND PEOPLES (New York, N.D.C. Hodges 1890); LOUIS FIGUIER, LES RACES HUMAINES (Paris, Hachette 1872); JOHN P. JEFFRIES, THE NATURAL HISTORY OF THE HUMAN RACES (New York, E.O. Jenkins 1869); A.H. KEANE, THE WORLD'S PEOPLES (1908); CHARLES PICKERING, THE RACES OF MAN (London, H.G. Bohn 1851); and JAMES COWLES PRICHARD, THE NATURAL HISTORY OF MAN (London, H. Bailliere 1848), all of which are cited in Dow v. United States, 226 F. 145, 146 (4th Cir. 1915).
36. For the major scientific race treatises of the nineteenth and early twentieth centuries, see DANIEL GARRISON BRINTON, RACES AND PEOPLES (New York, N.D.C. Hodges 1890); LOUIS FIGUIER, LES RACES HUMAINES (Paris, Hachette 1872); JOHN P. JEFFRIES, THE NATURAL HISTORY OF THE HUMAN RACES (New York, E.O. Jenkins 1869); A.H. KEANE, THE WORLD'S PEOPLES (1908); CHARLES PICKERING, THE RACES OF MAN (London, H.G. Bohn 1851); and JAMES COWLES PRICHARD, THE NATURAL HISTORY OF MAN (London, H. Bailliere 1848), all of which are cited in Dow v. United States, 226 F. 145, 146 (4th Cir. 1915).
37. For the major scientific race treatises of the nineteenth and early twentieth centuries, see DANIEL GARRISON BRINTON, RACES AND PEOPLES (New York, N.D.C. Hodges 1890); LOUIS FIGUIER, LES RACES HUMAINES (Paris, Hachette 1872); JOHN P. JEFFRIES, THE NATURAL HISTORY OF THE HUMAN RACES (New York, E.O. Jenkins 1869); A.H. KEANE, THE WORLD'S PEOPLES (1908); CHARLES PICKERING, THE RACES OF MAN (London, H.G. Bohn 1851); and JAMES COWLES PRICHARD, THE NATURAL HISTORY OF MAN (London, H. Bailliere 1848), all of which are cited in Dow v. United States, 226 F. 145, 146 (4th Cir. 1915).
38. Thind, 261 U.S. at 209.
39. See HANEY LÓPEZ, supra note 15, at 107; Donald Braman, Of Race and Immutability, 46 UCLA L. REV. 1375, 1410 (1999). Braman, for example, argues that Ozawa and Thind provide extended examples of the Court's taking note of the scientific community's failure to arrive at a practicable system of racial classification, and turning to a reliance on the statutory meanings developed through the political process. The terms produced were popular and not scientific, indicating and naturalizing an understanding of social groups, not biological ones. Braman, supra, at 1410.
40. This study draws upon Ariela Gross's work, which suggests that juries used performative aspects of whiteness to make racial determinations in slavery trials in the antebellum South. See Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109, 117, 156-76 (1998). However, Gross implies that the appellate process was more immune to the use of such performative criteria (offered in the form of reputation evidence). See id. at 146. Furthermore, she points out that individual appellate judges were actually conscious of the ́subversive possibilities of a discourse of racial performance.́ Id. at 162. In focusing on bench rulings at both the trial and appellate levels, this article suggests that judges were no more immune to the use of such performative criteria than were juries. Moreover, the naturalization cases demonstrate that judges often lacked awareness of the subversive possibilities of a discourse on racial performance, as in the case of Ozawa. Finally, a close textual analysis of the naturalization cases unveils the more insidious assimilationist policy considerations that factored into the judges' decisions - a powerful reflection of the broader goals of American immigration policy.
41. Interestingly, the Court doth protest too much when it quickly disclaims its assimilationist criteria as completely free of value judgments on racial worth: ́It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.́ Thind, 261 U.S. at 215. The word choice in these sentences-from "very far" to "slightest" and "merely" - belies the Court's underlying motives.
42. Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303, 312 (1986).
43. See id. at 311-15.
44. Cf. Enid Trucios-Gaynes, The Legacy of Racially Restrictive Immigration Laws and Policies and the Construction of the American National Identity, 76 OR. L. REV. 369, 371-72, 405-06 (1997) (demonstrating the power of assimilationist criteria in shaping immigration laws and policies throughout American history).
45. See Ozawa v. United States, 260 U.S. 178, 195-96 (1922).
46. Thind, 261 U.S. at 209 (citation omitted).
47. Id. at 210.
48. In re Hassan, 48 F. Supp. 843, 846 (E.D. Mich. 1942).
49. Thind, 261 U.S. at 213.
50. Id. at 213-14 (emphasis added).
51. For a thorough historical account of the Irish-American struggle for integration into the White Republic, see NOEL IGNATIEV, How THE IRISH BECAME WHITE (1995).
52. Sufficiently removed from historical memory, the statement has now become the stuff of safe, mainstream ethnic humor. See, e.g., THE COMMITMENTS (Beacon Communications 1991) (featuring a quip by the main character, an Irish musician named Jimmy, who states that "[t]he Irish are the blacks of Europe. Dubliners are the blacks of Ireland. North Dubliners are the blacks of Dublin.").
53. As Leonard Dinnerstein and David Reimers observe, Italians . . . were one of the most despised groups. Old-stock Americans called them wops, dagos, and guineas and referred to them as the "Chinese of Europe" and "just as bad as the Negroes." In the South some Italians were forced to attend all-black schools, and in both the North and the South they were victimized by brutality. In 1875, the New York Times thought it "perhaps hopeless to think of civilizing them, or keeping them in order, except by the arm of the law." LEONARD DINNERSTEIN & DAVID M. REIMERS, ETHNIC AMERICANS: A HISTORY OF IMMIGRATION AND ASSIMILATION 36 (1982), quoted in MARY C. WATERS, ETHNIC OPTIONS: CHOOSING IDENTITIES IN AMERICA 2 (1990).
54. As Leonard Dinnerstein and David Reimers observe, Italians . . . were one of the most despised groups. Old-stock Americans called them wops, dagos, and guineas and referred to them as the "Chinese of Europe" and "just as bad as the Negroes." In the South some Italians were forced to attend all-black schools, and in both the North and the South they were victimized by brutality. In 1875, the New York Times thought it "perhaps hopeless to think of civilizing them, or keeping them in order, except by the arm of the law." LEONARD DINNERSTEIN & DAVID M. REIMERS, ETHNIC AMERICANS: A HISTORY OF IMMIGRATION AND ASSIMILATION 36 (1982), quoted in MARY C. WATERS, ETHNIC OPTIONS: CHOOSING IDENTITIES IN AMERICA 2 (1990).
55. Americans of Northern European descent commonly viewed Greeks as "some kind of lower species," physically attacking them in Omaha, Nebraska, and forcing them out of Mountain View, Idaho, for example. Id. 50. "The Slavs," argued one turn-of-the-century physician, "are immune to certain kinds of dirt. They can stand what would kill a white man." EDWARD ALSWORTH Ross, THE OLD WORLD IN THE NEW 291 (1914), quoted in WATERS, supra note 48, at 2 (emphasis added). This statement typifies the attitude towards Slavs at the time. The etymological link between "Slav" and "slave" - a link which removed Slavs from the concept of whiteness and its concomitant virtue of freedom and relegated them to the realm of blackness and its natural consequence of servitude -also symbolizes the subordinate standing of those of Slavic descent. See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1107 (1985) (linking both the word "Slav" and "slave" to the Medieval Latin word "sclavus").
56. Americans of Northern European descent commonly viewed Greeks as "some kind of lower species," physically attacking them in Omaha, Nebraska, and forcing them out of Mountain View, Idaho, for example. Id. 50. "The Slavs," argued one turn-of-the-century physician, "are immune to certain kinds of dirt. They can stand what would kill a white man." EDWARD ALSWORTH Ross, THE OLD WORLD IN THE NEW 291 (1914), quoted in WATERS, supra note 48, at 2 (emphasis added). This statement typifies the attitude towards Slavs at the time. The etymological link between "Slav" and "slave" - a link which removed Slavs from the concept of whiteness and its concomitant virtue of freedom and relegated them to the realm of blackness and its natural consequence of servitude - also symbolizes the subordinate standing of those of Slavic descent. See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1107 (1985) (linking both the word "Slav" and "slave" to the Medieval Latin word "sclavus").
57. Prejudice against the new immigrant groups from Europe found expression in the broader social movements of the turn of the century. For example, proponents of Social Darwinism and eugenics asserted the racial supremacy of Northern Europeans to Europeans of Slavic and Mediterranean descent. See, e.g., Robert J. Cynkar, Buck v. Bell: "Felt Necessities" v. Fundamental Values?, 81 COLUM. L. REV. 1418, 1427 (1981) (noting that "Eugenists took the cultural characteristics which made assimilation difficult for eastern and southern European immigrants and exaggerated them into innate biological deficiencies"). For examples of leading works in the field of eugenics featuring theories relating to those of Slavic and Mediterranean descent, see C. BRIGHAM, A STUDY OF AMERICAN INTELLIGENCE 192 (1923), quoted in Cynkar, supra, at 1427, which noted that "[t]he intellectual superiority of our Nordic group over the Alpine, Mediterranean, and negro groups has been demonstrated" as a scientific fact; and C.B. DAVENPORT, HEREDITY IN RELATION TO EUGENICS 214 (1911), quoted in Cynkar, supra, at 1427, which argued that Germans were "full of courage and daring" but Italians lacked "self-reliance, initiative, resourcefulness."
58. Prejudice against the new immigrant groups from Europe found expression in the broader social movements of the turn of the century. For example, proponents of Social Darwinism and eugenics asserted the racial supremacy of Northern Europeans to Europeans of Slavic and Mediterranean descent. See, e.g., Robert J. Cynkar, Buck v. Bell: "Felt Necessities" v. Fundamental Values?, 81 COLUM. L. REV. 1418, 1427 (1981) (noting that "Eugenists took the cultural characteristics which made assimilation difficult for eastern and southern European immigrants and exaggerated them into innate biological deficiencies"). For examples of leading works in the field of eugenics featuring theories relating to those of Slavic and Mediterranean descent, see C. BRIGHAM, A STUDY OF AMERICAN INTELLIGENCE 192 (1923), quoted in Cynkar, supra, at 1427, which noted that "[t]he intellectual superiority of our Nordic group over the Alpine, Mediterranean, and negro groups has been demonstrated" as a scientific fact; and C.B. DAVENPORT, HEREDITY IN RELATION TO EUGENICS 214 (1911), quoted in Cynkar, supra, at 1427, which argued that Germans were "full of courage and daring" but Italians lacked "self-reliance, initiative, resourcefulness."
59. Prejudice against the new immigrant groups from Europe found expression in the broader social movements of the turn of the century. For example, proponents of Social Darwinism and eugenics asserted the racial supremacy of Northern Europeans to Europeans of Slavic and Mediterranean descent. See, e.g., Robert J. Cynkar, Buck v. Bell: "Felt Necessities" v. Fundamental Values?, 81 COLUM. L. REV. 1418, 1427 (1981) (noting that "Eugenists took the cultural characteristics which made assimilation difficult for eastern and southern European immigrants and exaggerated them into innate biological deficiencies"). For examples of leading works in the field of eugenics featuring theories relating to those of Slavic and Mediterranean descent, see C. BRIGHAM, A STUDY OF AMERICAN INTELLIGENCE 192 (1923), quoted in Cynkar, supra, at 1427, which noted that "[t]he intellectual superiority of our Nordic group over the Alpine, Mediterranean, and negro groups has been demonstrated" as a scientific fact; and C.B. DAVENPORT, HEREDITY IN RELATION TO EUGENICS 214 (1911), quoted in Cynkar, supra, at 1427, which argued that Germans were "full of courage and daring" but Italians lacked "self-reliance, initiative, resourcefulness."
60. See, e.g., WATERS, supra note 48, at 2 (observing that, at the turn of the century, those of Slavic and Mediterranean descent were viewed as a lower species of humanity, and certainly not as members of the white race).
61. 180 F. 694 (2d Cir. 1910). Incidentally, the Balsara court rejected the common-knowledge test in favor of the scientific-evidence inquiry. See id. at 695.
62. Id.
63. Ozawa v. United States, 260 U.S. 178, 197 (1922).
64. United States v. Thind, 261 U.S. 204, 210 (1923).
65. But see HANEY LoPEZ, supra note 15, at 107 (arguing that a popular, common-knowledge understanding of racial determination was endorsed by the Supreme Court); Braman, supra note 34, at 1410 (arguing that, starting with Ozawa and Thind, the Supreme Court has progressively moved toward an understanding of racial determination as contextual and socially constructed).
66. Ozawa, 260 U.S. at 197.
67. 177 F. 101 (5th Cir. 1910).
68. See HANEY LOPEZ, supra note 15, at 206 n.c.
69. 1 THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE: RACIAL OPPRESSION AND SOCIAL CONTROL 28, 32 (1994).
70. I am indebted to Abner Cohen's brilliant study on the Creoles of Sierra Leone for inspiring the application of dramaturgy theory to law and social science research. See ABNER COHEN, THE POLITICS OF ELITE CULTURE: EXPLORATIONS IN THE DRAMATURGY OF POWER IN A MODERN AFRICAN SOCIETY (1981).
71. See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 25 (1990). As Butler has argued, gender is a social construct promulgated through public drama. By pointing to the gender performances of drag queens and cross-dressers, Butler has subverted the notion of gender as a natural or fixed trait, demonstrating instead that gender is performative, based on a collection of acts representing a mythic ideal. As Butler argues, "[G]ender is always a doing, though not a doing by a subject who might be said to preexist the deed . . . . There is no gender identity behind the expressions of gender; that identity is performatively constituted by the very 'expressions' that are said to be its result." Id. Thus, to Butler, public embrace of gender roles is, at its core, nothing more than a drag show.
72. As Butler argues, identity is formulated through four performative steps: (1) differentiation of oneself from others; (2) pointing to paragons of one's chosen identity; (3) development of practices to affirm one's chosen identity; and (4) repeated engagement in these practices. See JUDITH BUTLER, BODIES THAT MATTER at ix-xi (1993), cited in Camille A. Gear, Note, The Ideology of Domination: Barriers to Client Autonomy in Legal Ethics Scholarship, 107 YALE L.J. 2473, 2484 (1998).
73. As Butler argues, identity is formulated through four performative steps: (1) differentiation of oneself from others; (2) pointing to paragons of one's chosen identity; (3) development of practices to affirm one's chosen identity; and (4) repeated engagement in these practices. See JUDITH BUTLER, BODIES THAT MATTER at ix-xi (1993), cited in Camille A. Gear, Note, The Ideology of Domination: Barriers to Client Autonomy in Legal Ethics Scholarship, 107 YALE L.J. 2473, 2484 (1998).
74. A number of legal scholars have drawn upon Butler's performativity analysis. See, e.g., Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1166 (1996) (using Butler's performance model to analyze sexual orientation and gender identity); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691, 771 (1997) (using Butler's performance model to analyze gender identity); see also Judith Butler, Burning Acts: Injurious Speech, 3 U. CHI. L. SCH. ROUNDTABLE 199, 199-204 (1996) (using the performance model to analyze hate speech).
75. A number of legal scholars have drawn upon Butler's performativity analysis. See, e.g., Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1166 (1996) (using Butler's performance model to analyze sexual orientation and gender identity); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691, 771 (1997) (using Butler's performance model to analyze gender identity); see also Judith Butler, Burning Acts: Injurious Speech, 3 U. CHI. L. SCH. ROUNDTABLE 199, 199-204 (1996) (using the performance model to analyze hate speech).
76. A number of legal scholars have drawn upon Butler's performativity analysis. See, e.g., Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1166 (1996) (using Butler's performance model to analyze sexual orientation and gender identity); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691, 771 (1997) (using Butler's performance model to analyze gender identity); see also Judith Butler, Burning Acts: Injurious Speech, 3 U. CHI. L. SCH. ROUNDTABLE 199, 199-204 (1996) (using the performance model to analyze hate speech).
77. Ozawa v. United States, 260 U.S. 178, 189 (1922).
78. Id. at 198.
79. United States v. Thind, 261 U.S. 204, 206 (1923).
80. Ozawa, 260 U.S. at 198 (quoting Davidson v. New Orleans, 96 U.S. 97, 104 (1877)).
81. See, e.g., DERRICK BELL, RACE. RACISM AND AMERICAN LAW 6 (1st ed. 1973) (asserting that color-based racial categories were rigid and fixed during the colonial years); A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 19-22 (1978) (arguing that servitude and slavery moved from a non-racial to a racial basis during the colonial years but not recognizing that racial concepts themselves were constructed, moving from a basis in religious views to a basis in skin color).
82. See, e.g., DERRICK BELL, RACE. RACISM AND AMERICAN LAW 6 (1st ed. 1973) (asserting that color-based racial categories were rigid and fixed during the colonial years); A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 19-22 (1978) (arguing that servitude and slavery moved from a non-racial to a racial basis during the colonial years but not recognizing that racial concepts themselves were constructed, moving from a basis in religious views to a basis in skin color).
83. HANEY LÓPEZ, supra note 15, at 12.
84. Constructivist theorists of identity formation utilize the taxonomy of the Self and the Other to illustrate a common binary that results in hierarchical systems of differentiation. Typical dividing lines for the differentiation include ethnicity, see FREDERICK BARTH, ETHNIC GROUPS AND BOUNDARIES: THE SOCIAL ORGANIZATION OF CULTURE DIFFERENCE 9 (1969); Joane Nagel, The Political Construction of Ethnicity, in COMPETITIVE ETHNIC RELATIONS 93 (Susan Olzak & Joane Nagel eds., 1986), and gender, see JACQUES LACAN, FEMININE SEXUALITY (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) (arguing that men need to create the concept of ́womań - a dialectic ́otheŕ or a petit objet à - as a response to their existential emptiness, insecurity, and lack of psychological completion); see also SIMONE DE BEAUVOIR, THE SECOND SEX (H.M. Parshley ed. & trans., Bantam Books 1961) (1949); LUCE IRIGARAY, THIS SEX WHICH Is NOT ONE (Catherine Porter trans., Cornell University Press 1985).
85. Constructivist theorists of identity formation utilize the taxonomy of the Self and the Other to illustrate a common binary that results in hierarchical systems of differentiation. Typical dividing lines for the differentiation include ethnicity, see FREDERICK BARTH, ETHNIC GROUPS AND BOUNDARIES: THE SOCIAL ORGANIZATION OF CULTURE DIFFERENCE 9 (1969); Joane Nagel, The Political Construction of Ethnicity, in COMPETITIVE ETHNIC RELATIONS 93 (Susan Olzak & Joane Nagel eds., 1986), and gender, see JACQUES LACAN, FEMININE SEXUALITY (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) (arguing that men need to create the concept of ́womań - a dialectic ́otheŕ or a petit objet à - as a response to their existential emptiness, insecurity, and lack of psychological completion); see also SIMONE DE BEAUVOIR, THE SECOND SEX (H.M. Parshley ed. & trans., Bantam Books 1961) (1949); LUCE IRIGARAY, THIS SEX WHICH Is NOT ONE (Catherine Porter trans., Cornell University Press 1985).
86. Constructivist theorists of identity formation utilize the taxonomy of the Self and the Other to illustrate a common binary that results in hierarchical systems of differentiation. Typical dividing lines for the differentiation include ethnicity, see FREDERICK BARTH, ETHNIC GROUPS AND BOUNDARIES: THE SOCIAL ORGANIZATION OF CULTURE DIFFERENCE 9 (1969); Joane Nagel, The Political Construction of Ethnicity, in COMPETITIVE ETHNIC RELATIONS 93 (Susan Olzak & Joane Nagel eds., 1986), and gender, see JACQUES LACAN, FEMININE SEXUALITY (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) (arguing that men need to create the concept of ́womań - a dialectic ́otheŕ or a petit objet à - as a response to their existential emptiness, insecurity, and lack of psychological completion); see also SIMONE DE BEAUVOIR, THE SECOND SEX (H.M. Parshley ed. & trans., Bantam Books 1961) (1949); LUCE IRIGARAY, THIS SEX WHICH Is NOT ONE (Catherine Porter trans., Cornell University Press 1985).
87. Constructivist theorists of identity formation utilize the taxonomy of the Self and the Other to illustrate a common binary that results in hierarchical systems of differentiation. Typical dividing lines for the differentiation include ethnicity, see FREDERICK BARTH, ETHNIC GROUPS AND BOUNDARIES: THE SOCIAL ORGANIZATION OF CULTURE DIFFERENCE 9 (1969); Joane Nagel, The Political Construction of Ethnicity, in COMPETITIVE ETHNIC RELATIONS 93 (Susan Olzak & Joane Nagel eds., 1986), and gender, see JACQUES LACAN, FEMININE SEXUALITY (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) (arguing that men need to create the concept of ́womań - a dialectic ́otheŕ or a petit objet à - as a response to their existential emptiness, insecurity, and lack of psychological completion); see also SIMONE DE BEAUVOIR, THE SECOND SEX (H.M. Parshley ed. & trans., Bantam Books 1961) (1949); LUCE IRIGARAY, THIS SEX WHICH Is NOT ONE (Catherine Porter trans., Cornell University Press 1985).
88. Constructivist theorists of identity formation utilize the taxonomy of the Self and the Other to illustrate a common binary that results in hierarchical systems of differentiation. Typical dividing lines for the differentiation include ethnicity, see FREDERICK BARTH, ETHNIC GROUPS AND BOUNDARIES: THE SOCIAL ORGANIZATION OF CULTURE DIFFERENCE 9 (1969); Joane Nagel, The Political Construction of Ethnicity, in COMPETITIVE ETHNIC RELATIONS 93 (Susan Olzak & Joane Nagel eds., 1986), and gender, see JACQUES LACAN, FEMININE SEXUALITY (Juliet Mitchell & Jacqueline Rose eds. & Jacqueline Rose trans., 1985) (arguing that men need to create the concept of ́womań - a dialectic ́otheŕ or a petit objet à - as a response to their existential emptiness, insecurity, and lack of psychological completion); see also SIMONE DE BEAUVOIR, THE SECOND SEX (H.M. Parshley ed. & trans., Bantam Books 1961) (1949); LUCE IRIGARAY, THIS SEX WHICH Is NOT ONE (Catherine Porter trans., Cornell University Press 1985).
89. See DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 43 (1985).
90. See Harris, supra note 10, at 1717 n.20; see also Raymond T. Diamond & Robert J. Cottrol, Codifying Caste: Louisiana's Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 259 n. 19 (1983).
91. 1 McIlwaine 479 (Va. Gen. Ct. 1630), reprinted in HIGGlNBOTHAM, supra note 70, at 23.
92. Id.
93. See HIGGINBOTHAM, supra note 70, at 38.
94. As Erving Goffman argues, when the signifier of identity is not a visible stigma, individuals can better control information about themselves in order to avert discrimination. See ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTTTY 48 (1963).
95. See F.G. BAILEY, POLITICS AND SOCIAL CHANGE: ORISSA IN 1959, at 126 (1963); F.G. Bailey, Closed Social Stratification in Indian Society, 4 EUR. J. Soc. 107, 113, 120 (1963).
96. See F.G. BAILEY, POLITICS AND SOCIAL CHANGE: ORISSA IN 1959, at 126 (1963); F.G. Bailey, Closed Social Stratification in Indian Society, 4 EUR. J. Soc. 107, 113, 120 (1963).
97. See, e.g., HIGGINBOTHAM, supra note 70, at 36-37 (citing a 1667 Virginia statute providing that ́[w]hereas some doubts have arisen whether children that are slaves by birth, and by the charity and pity of their owners made partakers of the blessed sacrament of baptism, should by virtue of their baptism be made free, it is enacted that baptism does not alter the condition of the person as to his bondage of freedom" (emphasis added by Higginbotham)); id. at 200 (citing a South Carolina statute passed in 1690 that declared that "no slave shall be free by becoming a christian").
98. See WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550-1812, at 91-98 (1968).
99. See KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTEBELLUM SOUTH 195-96 (1956); Gross, supra note 35.
100. See Gross, supra note 35, at 156-76.
101. See John H. Wigmore, American Naturalization and the Japanese, 28 AM. L. REV. 818 (1894).
102. Id. at 827.
103. Id.
104. Analyzing the courts' opinions as narratives, one could argue that the judges' pursuit of the hieroglyphics of racial identity resembles an exercise akin to that of such semiotic sleuths as Oedipa Maas, see THOMAS PYNCHON, THE CRYING OF LOT 49 (1966), Arthur Gordon Pym, see EDGAR ALLAN POE, THE NARRATIVE OF ARTHUR GORDON PYM OF NANTUCKET (J. Gerald Kennedy ed., Oxford Univ. Press 1994) (1838), and Quinn, see PAUL AUSTER, CITY OF GLASS (1985).
105. Analyzing the courts' opinions as narratives, one could argue that the judges' pursuit of the hieroglyphics of racial identity resembles an exercise akin to that of such semiotic sleuths as Oedipa Maas, see THOMAS PYNCHON, THE CRYING OF LOT 49 (1966), Arthur Gordon Pym, see EDGAR ALLAN POE, THE NARRATIVE OF ARTHUR GORDON PYM OF NANTUCKET (J. Gerald Kennedy ed., Oxford Univ. Press 1994) (1838), and Quinn, see PAUL AUSTER, CITY OF GLASS (1985).
106. Analyzing the courts' opinions as narratives, one could argue that the judges' pursuit of the hieroglyphics of racial identity resembles an exercise akin to that of such semiotic sleuths as Oedipa Maas, see THOMAS PYNCHON, THE CRYING OF LOT 49 (1966), Arthur Gordon Pym, see EDGAR ALLAN POE, THE NARRATIVE OF ARTHUR GORDON PYM OF NANTUCKET (J. Gerald Kennedy ed., Oxford Univ. Press 1994) (1838), and Quinn, see PAUL AUSTER, CITY OF GLASS (1985).
107. See generally IGNATIEV, supra note 46. Noel Ignatiev's intriguing study provides a telling example of the complex system of symbols used by Irish Americans in the performance of whiteness. Ignatiev examines how the Irish transformed themselves from an oppressed race in Ireland to an oppressing race in the United States - from being part of the Other to being a part of the dominant race. See id. at 2. A key step in this process of transformation came with the hypervigilance of the Irish in the anti-black movement. Unadulterated embrace of white supremacy paved the way for Irish integration into the White Republic, see SAXTON, supra note 23, where citizenship was defined by race. Performance even yielded to over-performance, with the Irish becoming more white than whites. "To become white [Irish immigrants] had to learn to subordinate county, religious, or national animosities, not to mention any natural sympathies they may have felt for their fellow creatures, to a new solidarity based on color - a bond which, it must be remembered, was contradicted by their experience in Ireland." IGNATIEV, supra note 46, at 96.
108. See MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BlRTH OF THE PRISON (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1978); see also MICHEL FOUCAULT, The Eye of Power, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS, 1972-1977, at 146, 155 (Colin Gordon ed. & trans., Pantheon Books 1980) (arguing that the heightened legibility of the Panopticon is a remarkably effective and efficient means of exercising control over individuals, for "[t]here is no need for arms, physical violence, material constraints. Just a gaze. An inspecting gaze, a gaze which each individual under its weight will end by interiorising to the point that he is his own overseer, each individual thus exercizing this surveillance over, and against, himself. A superb formula: power exercised continuously and for what turns out to be minimal cost.").
109. See MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BlRTH OF THE PRISON (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1978); see also MICHEL FOUCAULT, The Eye of Power, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS, 1972-1977, at 146, 155 (Colin Gordon ed. & trans., Pantheon Books 1980) (arguing that the heightened legibility of the Panopticon is a remarkably effective and efficient means of exercising control over individuals, for "[t]here is no need for arms, physical violence, material constraints. Just a gaze. An inspecting gaze, a gaze which each individual under its weight will end by interiorising to the point that he is his own overseer, each individual thus exercizing this surveillance over, and against, himself. A superb formula: power exercised continuously and for what turns out to be minimal cost.").
110. For the sake of brevity, I have chosen to focus only on a few of the more interesting, yet still representative, racial-prerequisite cases in the post-OzawalThind era. Eleven additional cases not discussed in this study occurred between 1923 and 1952. Like the cases discussed here, these other cases drew upon the precedent of Ozawa and Thind. Where individuals remained outside of the realm of racial ambiguity, see supra text accompanying note 69, the courts declared individuals ineligible for naturalization by binding legal precedent. See, e.g., Samras v. United States, 125 F.2d 879 (9th Cir. 1942) (finding that Asian Indians are not white); De La Ysla v. United States, 77 F.2d 988 (9th Cir. 1935) (finding that Filipinos are not white); United States v. Gokhale, 26 F.2d 360 (2d Cir. 1928) (per curiam) (finding, in a case involving an Asian Indian, that Hindus are not white); United States v. Javier, 22 F.2d 879 (D.C. Cir. 1927) (finding that Filipinos are not white); In re Cruz, 23 F. Supp. 774 (E.D.N.Y. 1938) (finding that people of three-quarters Native American and one-quarter African blood do not qualify as being of African descent for the purposes of the naturalization statute); In re Fisher, 21 F.2d 1007 (N.D. Cal. 1927) (finding that people who are three-quarters Chinese and one-quarter Portuguese are not white); United States v. Mozumdar, 296 F. 173 (S.D. Cal. 1923) (finding, in a case involving an Asian Indian, that Hindus are not white); Sato v. Hall, 217 P. 520 (Cal. 1923) (finding that Japanese are not white); De Cano v. State, 110 P.2d 627 (Wash. 1941) (en banc) (finding that Filipinos are not white). Meanwhile, the courts used performative criteria wherever they possessed discretion and leeway in the act of racial determination. See, e.g., In re Din, 27 F.2d 568 (N.D. Cal. 1928) (finding that Afghanis are not white); United States v. Ali, 7 F.2d 728 (E.D. Mich. 1925) (finding that Punjabis, whether Hindu or Arab, are not white).
111. 6 F.2d 919 (D. Or. 1925).
112. Thus, like the juries on race trials in the antebellum South, see Gross, supra note 35, at 117, 156-76, judges turned to a performative test for whiteness.
113. See Cartozian, 6 F.2d at 920.
114. See Trucios-Gaynes, supra note 39, at 406.
115. Cartozian, 6 F.2d at 920.
116. See supra text accompanying notes 66-68.
117. Cartozian, 6 F.2d at 920.
118. United States v. Thind, 261 U.S. 204, 215 (1923).
119. Cartozian, 6 F.2d at 921.
120. Ironically, the court is in fact drawing upon expert evidence and the behavior of the aristocracy to determine what common people on the street know of racial divides.
121. Cartozian, 6 F.2d at 921.
122. See id. at 921-22.
123. Id. at 922.
124. With thanks to SOUL COUGHING, Is Chicago. Is Not Chicago, on RUBY VROOM (WEA/Warner Bros. 1994).
125. 48 F. Supp. 843 (E.D. Mich. 1942).
126. 54 F. Supp. 941 (D. Mass. 1944).
127. See Hassan, 48 F. Supp. at 845.
128. Id.
129. See supra text accompanying note 95.
130. Hassan, 48 F. Supp. at 846.
131. See Mohriez, 54 F. Supp. at 942.
132. Id. (citations omitted).
133. See supra note 36.
134. See Mohriez, 54 F. Supp. at 942.
135. Id. at 943.
136. See Trucios-Gaynes, supra note 39, at 374.
137. See, e.g., Sale v. Haitian Ctrs. Council, 509 U.S. 155, 201 (1993); Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).
138. In order to make subjects visible to their gaze, hegemons frequently ground their power/knowledge systems in identity signifiers, such as a person's race or appellation. The effectiveness of such signifiers as a tool for legibility naturally depends upon their immutable quality. When such signifiers turn out to be fluid, socially-constructed, and malleable through time and space, the carefully constructed edifice around such signifiers loses its value. The result has been the failure of many schemes intended to improve the human condition. See JAMES C. SCOTT, SEEING LIKE A STATE: How CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED (1998); John Tehranian & James C. Scott, The Production of Legal Identities Proper to States: The Case of the Permanent Family Surname (unpublished manuscript, on file with The Yale Law Journal). 119. By making judicial opinions read like Tristan Tzara's Dadaist Manifesto, see TRISTAN TZARA, Dadaist Manifesto, in SEVEN DADA MANIFESTOS AND LAMPISTERIES (Barbara Wright trans., Calder 1977) (1919), such racial-determination games ultimately undermine the credibility of the rule of law and the alleged reliance of jurisprudence on rationality and logic.
139. In order to make subjects visible to their gaze, hegemons frequently ground their power/knowledge systems in identity signifiers, such as a person's race or appellation. The effectiveness of such signifiers as a tool for legibility naturally depends upon their immutable quality. When such signifiers turn out to be fluid, socially-constructed, and malleable through time and space, the carefully constructed edifice around such signifiers loses its value. The result has been the failure of many schemes intended to improve the human condition. See JAMES C. SCOTT, SEEING LIKE A STATE: How CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED (1998); John Tehranian & James C. Scott, The Production of Legal Identities Proper to States: The Case of the Permanent Family Surname (unpublished manuscript, on file with The Yale Law Journal). 119. By making judicial opinions read like Tristan Tzara's Dadaist Manifesto, see TRISTAN TZARA, Dadaist Manifesto, in SEVEN DADA MANIFESTOS AND LAMPISTERIES (Barbara Wright trans., Calder 1977) (1919), such racial-determination games ultimately undermine the credibility of the rule of law and the alleged reliance of jurisprudence on rationality and logic.
140. In order to make subjects visible to their gaze, hegemons frequently ground their power/knowledge systems in identity signifiers, such as a person's race or appellation. The effectiveness of such signifiers as a tool for legibility naturally depends upon their immutable quality. When such signifiers turn out to be fluid, socially-constructed, and malleable through time and space, the carefully constructed edifice around such signifiers loses its value. The result has been the failure of many schemes intended to improve the human condition. See JAMES C. SCOTT, SEEING LIKE A STATE: How CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED (1998); John Tehranian & James C. Scott, The Production of Legal Identities Proper to States: The Case of the Permanent Family Surname (unpublished manuscript, on file with The Yale Law Journal). 119. By making judicial opinions read like Tristan Tzara's Dadaist Manifesto, see TRISTAN TZARA, Dadaist Manifesto, in SEVEN DADA MANIFESTOS AND LAMPISTERIES (Barbara Wright trans., Calder 1977) (1919), such racial-determination games ultimately undermine the credibility of the rule of law and the alleged reliance of jurisprudence on rationality and logic.
141. 171 F. 294 (S.D.N.Y. 1909), aff'd sub nom. United States v. Balsara, 180 F. 694 (2d Cir. 1910).
142. HANEY LOPEZ, supra note 15, at 206 app. a n.a.
143. Sahara, 171 F. at 295.
144. See id. at 285.
145. 101 F.2d 7 (2d Cir. 1939).
146. See id. at 7.
147. Id. at 8 (citing United States v. Thind, 261 U.S. 204, 214 (1923)). Admittedly, the Thind Court does go on to declare that "there is much in the origin and historic development of the statue to suggest that no Asiatic whatever was included," Thind, 261 U.S. at 214, though it does so in dicta.
148. Wadia, 101 F.2d at 9 (citing Ozawa v. United States, 260 U.S. 178, 198 (1922)).
149. This sentiment was strongly echoed in the Supreme Court's Korematsu case. As Justice Murphy's dissent in the case argues, outright racism and the failure of Japanese immigrants to assimilate themselves into the White Republic (unlike German and Italian immigrants) played a vital role in the military's decision to single them out for internment and the Supreme Court's decision to declare the military's actions constitutional. See Korematsu v. United States, 323 U.S. 214, 236-40 (1944) (Murphy, J., dissenting). Thus, white performance by both German and Italian Americans was rewarded with protection from internment and the failure of Japanese Americans to assimilate was punished. I want to thank Kenneth Stahl for pointing out the link to Korematsu. 130. Immigration and Nationality Act of 1952, ch. 2. § 311, 66 Stat. 163, 239 (codified as amended at 8 U.S.C. § 1422 (1994)).
150. See Trucios-Gaynes, supra note 39, at 399.
151. See Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. REV. 273, 298 (1996).
152. U.S. COMM'N ON IMMIGRATION REFORM, BECOMING AN AMERICAN: IMMIGRATION AND IMMIGRANT POLICY 26 (1997).
153. It is critical to note that white performance is not the only form of racial dramaturgy. Where nonwhite groups dominate, performance of nonwhiteness can be a condition for nonwhite privilege. For example, Italian-American teenagers in the inner-city frequently perform nonwhiteness to distance themselves from the white hegemon and to facilitate their assimilation with other urban youth.
154. 481 U.S. 604 (1987).
155. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27 (reenacted as Act of May 31, 1870, ch. 114, § 16, 16 Stat. 140, 144) (codified as amended at 42 U.S.C. §§ 1981, 1982 (1994)).
156. 42 U.S.C. § 1981.
157. 427 U.S. 160 (1976).
158. See id. at 168, 174-75.
159. Al-Khazraji, 481 U.S at 606 (footnote omitted).
160. Saint Francis College v. Al-Khazraji, 784 F.2d 505 (3d Cir. 1986).
161. Al-Khazraji, 481 U.S. at 613.
162. See Sandhu v. Lockheed Missiles & Space Co., 26 Cal. App. 4th 846, 850 (Cal. Ct. App. 1994).
163. Id. at 850 (quoting Judge Stone's unpublished opinion for the Superior Court of Santa Clara County).
164. See id. at 851 (citing Al-Khazraji, 481 U.S. at 610 n.4).
165. See Deborah A. Widiss, Note, Re-viewing History: The Use of the Past as Negative Precedent in United States v. Virginia, 108 YALE L.J. 237 (1998). As Widiss notes, the tension between stare decisis and evolution in the law is particularly salient "in a jurisprudence that defines itself in counter-distinction to the past, yet works within a structure that embraces a conservative adherence to past decisions as precedent." Id. at 238. Antidiscrimination law is a prime example of one of these areas in the law.
166. 606 F. Supp. 1504 (D. Md. 1985), aff'd, 785 F.2d 523 (4th Cir. 1986), rev'd, 481 U.S. 615 (1987).
167. 42U.S.C. § 1982 (1994).
168. See Shaare Tefila Congregation, 785 F.2d at 526. 150. Id.; see also Shaare Tefila Congregation, 606 F. Supp. at 1504, 1508-09.
169. Shaare Tefila Congregation, 785 F.2d at 527.
170. Id. at 528 (Wilkinson, J., concurring in part and dissenting in part).
171. See Joseph Avanzato, Note, Section 1982 and Discrimination Against Jews: Shaare Tefila Congregation v. Cobb, 37 AM. U. L. REV. 225 (1987) (arguing that the Fourth Circuit decided the case incorrectly and that the Supreme Court's reversal of the lower court failed to provide guidance for future § 1982 cases).
172. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) (quoting Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987)).
173. On a related note, questions abound on the definition of "Jewish." See, e.g., MERYL HYMAN, "WHO IS A JEW?" (1998); JACK WERTHEIMER, A PEOPLE DIVIDED: JUDAISM IN CONTEMPORARY AMERICA 173-80 (1993); Nancy Caren Richmond, Comment, cc, 12 DICK. J. INT'L L. 95 (1993).
174. On a related note, questions abound on the definition of "Jewish." See, e.g., MERYL HYMAN, "WHO IS A JEW?" (1998); JACK WERTHEIMER, A PEOPLE DIVIDED: JUDAISM IN CONTEMPORARY AMERICA 173-80 (1993); Nancy Caren Richmond, Comment, cc, 12 DICK. J. INT'L L. 95 (1993).
175. On a related note, questions abound on the definition of "Jewish." See, e.g., MERYL HYMAN, "WHO IS A JEW?" (1998); JACK WERTHEIMER, A PEOPLE DIVIDED: JUDAISM IN CONTEMPORARY AMERICA 173-80 (1993); Nancy Caren Richmond, Comment, Israel's Law of Return: Analysis of Its Evolution and Present Application, 12 DICK. J. INT'L L. 95 (1993).
176. On a related note, questions abound on the definition of "Jewish." See, e.g., MERYL HYMAN, "WHO IS A JEW?" (1998); JACK WERTHEIMER, A PEOPLE DIVIDED: JUDAISM IN CONTEMPORARY AMERICA 173-80 (1993); Nancy Caren Richmond, Comment, Israel's Law of Return: Analysis of Its Evolution and Present Application, 12 DICK. J. INT'L L. 95 (1993).
177. Avanzato, supra note 153, at 255.
178. This assertion directly contradicts the thesis of Donald Braman's recent article, Of Race and Immutability, which argues that the Supreme Court has consistently, at least since Ozawa and Thind, moved toward a view of racial status as the product of social and political institutions, and not of biology. See Braman, supra note 34. First, if this were the case, it would be difficult to rationalize the results of Al-Khazraji in the district court and the court of appeals. Second, Braman's article almost entirely ignores the Supreme Court's opinion in Shaare Tefila Congregation, even though it was issued in conjunction with Al-Khazraji, a case that Braman discusses extensively. See id. at 1442-45.
179. Similarly, courts accepted a broad definition of blackness to uphold social sanctions such as segregation against African Americans, see Plessy v. Ferguson, 163 U.S. 537, 541, 550 (1896) (upholding as reasonable the classification of an individual of "one-eighth African blood" as black), but imposed a narrow definition of blackness to deny those of African blood the privileges of African descent, see In re Cruz, 23 F. Supp. 774 (E.D.N.Y. 1938) (denying the right to naturalization to an individual of one-quarter African blood on the grounds that he was not of African descent).
180. See, e.g., Robert S. Chang, The Nativist's Dream of Return, 9 LA RAZA L.J. 55, 55 (1996); Deborah Ramirez, Multicultural Empowerment: It's Nor Just Black and White Anymore, 47 STAN. L. REV. 957, 960-69 (1995); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 10-15 (1995); Trucios-Gaynes, supra note 39, at 373.
181. See, e.g., Robert S. Chang, The Nativist's Dream of Return, 9 LA RAZA
182. See, e.g., Robert S. Chang, The Nativist's Dream of Return, 9 LA RAZA L.J. 55, 55 (1996); Deborah Ramirez, Multicultural Empowerment: It's Nor Just Black and White Anymore, 47 STAN. L. REV. 957, 960-69 (1995); William R. Tamayo, When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 10-15 (1995); Trucios-Gaynes, supra note 39, at 373.
183. For other works demonstrating the fundamental flaws of a scientific/naturalistic view of race, see MICHAEL BANTON & JONATHAN HARWOOD, THE RACE CONCEPT 43-60 (1975); ASHLEY MONTAGU, STATEMENT ON RACE 46-50 (3d ed. 1972); Frank B. Livingstone, On the Nonexistence of Human Race, in THE CONCEPT OF RACE 46, 46-59 (Ashley Montagu ed., 1964); and Henry P. Lundsgaarde, Racial and Ethnic Classifications: An Appraisal of the Role of Anthropology in the Lawmaking Process, 10 HOUS. L. REV. 641, 648-49 n.23 (1973)
184. For other works demonstrating the fundamental flaws of a scientific/naturalistic view of race, see MICHAEL BANTON & JONATHAN HARWOOD, THE RACE CONCEPT 43-60 (1975); ASHLEY MONTAGU, STATEMENT ON RACE 46-50 (3d ed. 1972); Frank B. Livingstone, On the Nonexistence of Human Race, in THE CONCEPT OF RACE 46, 46-59 (Ashley Montagu ed., 1964); and Henry P. Lundsgaarde, Racial and Ethnic Classifications: An Appraisal of the Role of Anthropology in the Lawmaking Process, 10 HOUS. L. REV. 641, 648-49 n.23 (1973)
185. For other works demonstrating the fundamental flaws of a scientific/naturalistic view of race, see MICHAEL BANTON & JONATHAN HARWOOD, THE RACE CONCEPT 43-60 (1975); ASHLEY MONTAGU, STATEMENT ON RACE 46-50 (3d ed. 1972); Frank B. Livingstone, On the Nonexistence of Human Race, in THE CONCEPT OF RACE 46, 46-59 (Ashley Montagu ed., 1964); and Henry P. Lundsgaarde, Racial and Ethnic Classifications: An Appraisal of the Role of Anthropology in the Lawmaking Process, 10 HOUS. L. REV. 641, 648-49 n.23 (1973)
186. For other works demonstrating the fundamental flaws of a scientific/naturalistic view of race, see MICHAEL BANTON & JONATHAN HARWOOD, THE RACE CONCEPT 43-60 (1975); ASHLEY MONTAGU, STATEMENT ON RACE 46-50 (3d ed. 1972); Frank B. Livingstone, On the Nonexistence of Human Race, in THE CONCEPT OF RACE 46, 46-59 (Ashley Montagu ed., 1964); and Henry P. Lundsgaarde, Racial and Ethnic Classifications: An Appraisal of the Role of Anthropology in the Lawmaking Process, 10 HOUS. L. REV. 641, 648-49 n.23 (1973)
187. For other works demonstrating the fundamental flaws of a scientific/naturalistic view of race, see MICHAEL BANTON & JONATHAN HARWOOD, THE RACE CONCEPT 43-60 (1975); ASHLEY MONTAGU, STATEMENT ON RACE 46-50 (3d ed. 1972); Frank B. Livingstone, On the Nonexistence of Human Race, in THE CONCEPT OF RACE 46, 46-59 (Ashley Montagu ed., 1964); and Henry P. Lundsgaarde, Racial and Ethnic Classifications: An Appraisal of the Role of Anthropology in the Lawmaking Process, 10 HOUS. L. REV. 641, 648-49 n.23 (1973)
188. For other works demonstrating the fundamental flaws of a scientific/naturalistic view of race, see MICHAEL BANTON & JONATHAN HARWOOD, THE RACE CONCEPT 43-60 (1975); ASHLEY MONTAGU, STATEMENT ON RACE 46-50 (3d ed. 1972); Frank B. Livingstone, On the Nonexistence of Human Race, in THE CONCEPT OF RACE 46, 46-59 (Ashley Montagu ed., 1964); and Henry P. Lundsgaarde, Racial and Ethnic Classifications: An Appraisal of the Role of Anthropology in the Lawmaking Process, 10 HOUS. L. REV. 641, 648-49 n.23 (1973)
189. See John Okamura, Situational Identity, 4 ETHNIC & RACIAL STUD. 452 (1981).
190. See, e.g., supra notes 46 and 61.
191. See PAULTHEROUX, THE HAPPY ISLES OF OCEANIA 476 (1992).