Whiteness as property

Harvard Law Review

Volumn 106, Issue 8, 1993, Pages 1709-1790

  Harris, Cheryl I ^a,b,c  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

^b WELLESLEY COLLEGE   (United States)

^c NORTHWESTERN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 12044257896     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341787     Document Type: Article

References (364)

1. Cheryl I. Harris, poem for alma (1990) (unpublished poem, on file at the Harvard Law School Library),
2. 163 U.S. 537, 538 (1896).
3. I use the term "Black" throughout the paper for the reasons articulated by Professor Kimberlé Crenshaw. I share her view that "Blacks, like Asians, Latinos, and other 'minorities,' constitute a specific cultural group and, as such, require denotation as a proper noun." Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1332 n.2 (1988). According to W.E.B. DuBois, "[t]he word 'Negro' was used for the first time in the world's history to tie color to race and blackness to slavery and degradation." W.E. BURGHARDT DU BOIS, THE WORLD AND AFRICA 20 (1965). The usage of the lower case "N" in "negro" was part of the construction of an inferior image of Blacks that provided justification for and a defense of slavery. See W.E.B. DU BOIS, That Capital "N," in 2 THE SEVENTH SON 12, 13 (Julius Lester ed., 1971). Thus, the use of the upper case and lower case in reference to racial identity has a particular political history. Although "white" and "Black" have been defined oppositionally, they are not functional opposites. "White" has incorporated Black subordination; "Black" is not based on domination. See discussion infra p. 1785. "Black" is naming that is part of counterhegemonic practice.
4. I use the term "Black" throughout the paper for the reasons articulated by Professor Kimberlé Crenshaw. I share her view that "Blacks, like Asians, Latinos, and other 'minorities,' constitute a specific cultural group and, as such, require denotation as a proper noun." Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1332 n.2 (1988). According to W.E.B. DuBois, "[t]he word 'Negro' was used for the first time in the world's history to tie color to race and blackness to slavery and degradation." W.E. BURGHARDT DU BOIS, THE WORLD AND AFRICA 20 (1965). The usage of the lower case "N" in "negro" was part of the construction of an inferior image of Blacks that provided justification for and a defense of slavery. See W.E.B. DU BOIS, That Capital "N," in 2 THE SEVENTH SON 12, 13 (Julius Lester ed., 1971). Thus, the use of the upper case and lower case in reference to racial identity has a particular political history. Although "white" and "Black" have been defined oppositionally, they are not functional opposites. "White" has incorporated Black subordination; "Black" is not based on domination. See discussion infra p. 1785. "Black" is naming that is part of counterhegemonic practice.
5. I use the term "Black" throughout the paper for the reasons articulated by Professor Kimberlé Crenshaw. I share her view that "Blacks, like Asians, Latinos, and other 'minorities,' constitute a specific cultural group and, as such, require denotation as a proper noun." Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1332 n.2 (1988). According to W.E.B. DuBois, "[t]he word 'Negro' was used for the first time in the world's history to tie color to race and blackness to slavery and degradation." W.E. BURGHARDT DU BOIS, THE WORLD AND AFRICA 20 (1965). The usage of the lower case "N" in "negro" was part of the construction of an inferior image of Blacks that provided justification for and a defense of slavery. See W.E.B. DU BOIS, That Capital "N," in 2 THE SEVENTH SON 12, 13 (Julius Lester ed., 1971). Thus, the use of the upper case and lower case in reference to racial identity has a particular political history. Although "white" and "Black" have been defined oppositionally, they are not functional opposites. "White" has incorporated Black subordination; "Black" is not based on domination. See discussion infra p. 1785. "Black" is naming that is part of counterhegemonic practice.
6. The Great Migration of Blacks from the rural South to urban centers between 1910 and 1940 doubled the percentage of Blacks living in the North and West. See 1 GUNNAR MYRDAL, AN AMERICAN DILEMMA 183 (1944). The second major wave of Black migration, during the 19405, increased the Black population in Northern cities. For example, in Chicago, it increased by over 70 percent. See NICHOLAS LEMANN, THE PROMISED LAND 70 (1991).
7. The Great Migration of Blacks from the rural South to urban centers between 1910 and 1940 doubled the percentage of Blacks living in the North and West. See 1 GUNNAR MYRDAL, AN AMERICAN DILEMMA 183 (1944). The second major wave of Black migration, during the 19405, increased the Black population in Northern cities. For example, in Chicago, it increased by over 70 percent. See NICHOLAS LEMANN, THE PROMISED LAND 70 (1991).
8. When I began to relate the subject matter of my research to Black friends and colleagues, in nearly every instance I was told, "I had an uncle . . . . I had a great aunt . . . . My grandfather's brother left Alabama to go North as a white man and we never saw or heard from him again" or other similar stories. See also PATRICIA J. WILLIAMS, On Being the Object of Property, in THE ALCHEMY OF RACE AND RIGHTS 216, 223 (1991) (recounting the story of Marjorie, Williams's godmother, who was given away by her mother at the age of six in order that her mother could "pass" and marry a white man); Gregory H. Williams, Neither Black Nor White: A Childhood on the Color Line 8 (1991) (unpublished manuscript, on file at the Harvard Law School Library) (describing the childhood of a law professor whose father passed for white, a fact unknown to his son until the age of ten). Gunnar Myrdal's discussion of the phenomenon of "passing" in his 1944 study of race illuminates the social context of my grandmother's story and the stories of many like her. "[P]assing" means that a Negro becomes a white man, that is, moves from the lower to the higher caste. In the American caste order, this can be accomplished only by the deception of the white people with whom the passer comes to associate and by a conspiracy of silence on the part of other Negroes who might know about it. . . . In the Northern and Border states it seems to be relatively common for light-skinned Negroes to "pass professionally" but preserve a Negro social life. Negro girls have practically no chance of getting employment as stenographers or secretaries, salesclerks in department stores, telephone operators, outside the establishments run by Negroes for Negroes. In most communities their chances are slight even to become regular teachers, social workers, or the like, if they do not conceal their Negro ancestry. . . . Not only in these female middle class occupations but in all male and female trades where Negroes are excluded, there must be a similar incentive to attempt to "pass professionally.". . . In view of the advantages to be had by passing, it is not difficult to explain why Negroes pass, professionally or completely. It is more difficult, however, to explain why Negroes do not pass over to the white race more often than they actually do. MYRDAL, supra note 4, at 683-86 (1944).
9. When I began to relate the subject matter of my research to Black friends and colleagues, in nearly every instance I was told, "I had an uncle . . . . I had a great aunt . . . . My grandfather's brother left Alabama to go North as a white man and we never saw or heard from him again" or other similar stories. See also PATRICIA J. WILLIAMS, On Being the Object of Property, in THE ALCHEMY OF RACE AND RIGHTS 216, 223 (1991) (recounting the story of Marjorie, Williams's godmother, who was given away by her mother at the age of six in order that her mother could "pass" and marry a white man); Gregory H. Williams, Neither Black Nor White: A Childhood on the Color Line 8 (1991) (unpublished manuscript, on file at the Harvard Law School Library) (describing the childhood of a law professor whose father passed for white, a fact unknown to his son until the age of ten). Gunnar Myrdal's discussion of the phenomenon of "passing" in his 1944 study of race illuminates the social context of my grandmother's story and the stories of many like her. "[P]assing" means that a Negro becomes a white man, that is, moves from the lower to the higher caste. In the American caste order, this can be accomplished only by the deception of the white people with whom the passer comes to associate and by a conspiracy of silence on the part of other Negroes who might know about it. . . . In the Northern and Border states it seems to be relatively common for light-skinned Negroes to "pass professionally" but preserve a Negro social life. Negro girls have practically no chance of getting employment as stenographers or secretaries, salesclerks in department stores, telephone operators, outside the establishments run by Negroes for Negroes. In most communities their chances are slight even to become regular teachers, social workers, or the like, if they do not conceal their Negro ancestry. . . . Not only in these female middle class occupations but in all male and female trades where Negroes are excluded, there must be a similar incentive to attempt to "pass professionally.". . . In view of the advantages to be had by passing, it is not difficult to explain why Negroes pass, professionally or completely. It is more difficult, however, to explain why Negroes do not pass over to the white race more often than they actually do. MYRDAL, supra note 4, at 683-86 (1944).
10. 7 See, e.g., Doe v. State of Louisiana, 479 So.2d 369, 371 (La. Ct. App. 1985) (rejecting the attempt by a family whose parents had been classified as "colored" to be reclassified as white).
11. 7 See, e.g., Doe v. State of Louisiana, 479 So.2d 369, 371 (La. Ct. App. 1985) (rejecting the attempt by a family whose parents had been classified as "colored" to be reclassified as white).
12. 8 See WILLIAMS, supra note 5, at 8 (theorizing that the author's father's masquerade as a white man was motivated by the belief that passing brought "greater job opportunities"). One recurrent image of Blacks in cinema was the "tragic mulatto" who assassinated her Black origins in order to attain a better life in the white world. Although many of the cinematic versions of this tale have been cautionary morality plays illustrative of the tragic consequences of self-denial, the underlying economic rationale for the hero(ine) to pass was so self-evident as never to be challenged nor even explicitly stated. See generally DONALD BOGLE, TOMS, COONS, MULATTOES, MAMMIES, AND BUCKS: AN INTERPRETIVE HISTORY OF BLACKS IN AMERICAN FILMS 9 (1989) (discussing film images of the "tragic mulatto").
13. My exploration of this concept began in March, 1991, when I participated in a conference on "Constitution Making in a New South Africa," held at the University of the Western Cape in South Africa. (The conference was jointly sponsored by the National Conference of Black Lawyers, the National Lawyers Guild and the National Association of Democratic Lawyers in South Africa.) My paper argued that American law had implicitly recognized a property interest in whiteness. The concept resonated in the South African context because of the similar and even more extreme patterns of white domination evident there. As I later discovered, the concept of a "property interest in whiteness" is one that has been recognized in modern legal theory. Professor Bell in his chronicle, "Xerces and the Affirmative Action Myth," noted the argument advanced in Plessy v. Ferguson, 163 U.S. 537 (1896), regarding the property interest in whiteness and the extent to which affirmative action policies are seen as a threat to "property interests of identifiable whites." Derrick Bell, Xerces and the Affrimative Action Myth, 57 GEO. WASH. L. REV. 1595, 1602, 1608 (1989). Finding that Professor Bell, to whom I am deeply indebted intellectually, had identified this concept before me only served to confirm my belief that further exploration of this idea is a worthwhile project.
14. adopt here the definition of white supremacy utilized by Frances Lee Ansley: By "white supremacy" I do not mean to allude only to the self-conscious racism of white supremacist hate groups. I refer instead to a political, economic, and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings. Frances L. Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 CORNELL L. REV. 993, 1024 n.129 (1989).
15. 163 U.S. 537 (1896).
16. 347 U.S. 483 (1954).
17. 438 U.S. 265 (1978).
18. 488 U.S. 469 (1989).
19. 476 U.S. 267 (1986).
20. See RONALD TAKAKI, IRON CAGES: RACE AND CULTURE IN 19TH-CENTURY AMERICA 11 (1990) (describing how English definitions of Blacks and Native Americans as "savage" and "instinctual" "encouraged English immigrants to appropriate Indian land and black labor as they settled and set up production in the New World, and enabled white colonists to justify the actions they had committed against both peoples").
21. In reviewing ROBERT WILLIAMS, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE OF CONQUEST (1990), an eloquent and meticulous work on the American Indian in Western legal doctrine, Joseph William Singer draws out the organic connections between property rights and race as the pattern of conquest of native lands exemplified: [P]roperty and sovereignty in the United States have a racial basis. The land was taken by force by white people from peoples of color thought by the conquerors to be racially inferior. The close relation of native peoples to the land was held to be no relation at all. To the conquerors, the land was "vacant." Yet it required trickery and force to wrest it from its occupants. This means that the title of every single parcel of property in the United States can be traced to a system of racial violence. Joseph W. Singer, The Continuing Conquest: American Indian Nations, Property Low, and Gunsmoke, 1 RECONSTRUCTION 97, 102 (1991); see Frances L. Ansley, Race and the Core Curriculum in Legal Education, 79 CAL. L. REV. 1511, 1523 (1991) (citing the history of discovery and conquest of American Indian land to be illustrative of the fact that "race is at the heart of American property law").
22. In reviewing ROBERT WILLIAMS, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE OF CONQUEST (1990), an eloquent and meticulous work on the American Indian in Western legal doctrine, Joseph William Singer draws out the organic connections between property rights and race as the pattern of conquest of native lands exemplified: [P]roperty and sovereignty in the United States have a racial basis. The land was taken by force by white people from peoples of color thought by the conquerors to be racially inferior. The close relation of native peoples to the land was held to be no relation at all. To the conquerors, the land was "vacant." Yet it required trickery and force to wrest it from its occupants. This means that the title of every single parcel of property in the United States can be traced to a system of racial violence. Joseph W. Singer, The Continuing Conquest: American Indian Nations, Property Low, and Gunsmoke, 1 RECONSTRUCTION 97, 102 (1991); see Frances L. Ansley, Race and the Core Curriculum in Legal Education, 79 CAL. L. REV. 1511, 1523 (1991) (citing the history of discovery and conquest of American Indian land to be illustrative of the fact that "race is at the heart of American property law").
23. In reviewing ROBERT WILLIAMS, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE OF CONQUEST (1990), an eloquent and meticulous work on the American Indian in Western legal doctrine, Joseph William Singer draws out the organic connections between property rights and race as the pattern of conquest of native lands exemplified: [P]roperty and sovereignty in the United States have a racial basis. The land was taken by force by white people from peoples of color thought by the conquerors to be racially inferior. The close relation of native peoples to the land was held to be no relation at all. To the conquerors, the land was "vacant." Yet it required trickery and force to wrest it from its occupants. This means that the title of every single parcel of property in the United States can be traced to a system of racial violence. Joseph W. Singer, The Continuing Conquest: American Indian Nations, Property Low, and Gunsmoke, 1 RECONSTRUCTION 97, 102 (1991); see Frances L. Ansley, Race and the Core Curriculum in Legal Education, 79 CAL. L. REV. 1511, 1523 (1991) (citing the history of discovery and conquest of American Indian land to be illustrative of the fact that "race is at the heart of American property law").
24. See WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550-1812, at 3-43 (1968) (describing early colonial racism).
25. Indeed, between 1607 and 1800, racial lines among the lower classes were quite blurred; not only were social activities between Blacks and lower class whites sometimes racially integrated, but also political resistance in the form of urban slave revolts sometimes included whites. See DAVID ROEDIGER, THE WAGES OF WHITENESS 24 (1991).
26. According to John Hope Franklin, "there is no doubt that the earliest Negroes in Virginia occupied a position similar to that of the white servants in the colony." JOHN H. FRANKLIN, U.S. COMM'N ON CIVIL RIGHTS, FREEDOM TO THE FREE 71 (1963), cited in A. LEON HIGGIN-BOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 21 (1978) The legal disabilities imposed on Blacks were not dissimilar to those imposed on nonEnglish servants of European descent, as the principal line of demarcation was between Christian and non-Christian servants. See 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). Indeed, "the word slave had no meaning in English law." THOMAS F. GOSSETT, RACE: HISTORY OF AN IDEA IN AMERICA 29 (1963). Later statutory provisions prohibited Blacks who were slaves from attaining their freedom by converting to Christianity. See, e.g., HIGGINBOTHAM, supra, at 200 (citing a South Carolina statute of 1690 that declared "no slave shall be free by becoming a christian").
27. According to John Hope Franklin, "there is no doubt that the earliest Negroes in Virginia occupied a position similar to that of the white servants in the colony." JOHN H. FRANKLIN, U.S. COMM'N ON CIVIL RIGHTS, FREEDOM TO THE FREE 71 (1963), cited in A. LEON HIGGIN-BOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 21 (1978) The legal disabilities imposed on Blacks were not dissimilar to those imposed on nonEnglish servants of European descent, as the principal line of demarcation was between Christian and non-Christian servants. See 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). Indeed, "the word slave had no meaning in English law." THOMAS F. GOSSETT, RACE: HISTORY OF AN IDEA IN AMERICA 29 (1963). Later statutory provisions prohibited Blacks who were slaves from attaining their freedom by converting to Christianity. See, e.g., HIGGINBOTHAM, supra, at 200 (citing a South Carolina statute of 1690 that declared "no slave shall be free by becoming a christian").
28. According to John Hope Franklin, "there is no doubt that the earliest Negroes in Virginia occupied a position similar to that of the white servants in the colony." JOHN H. FRANKLIN, U.S. COMM'N ON CIVIL RIGHTS, FREEDOM TO THE FREE 71 (1963), cited in A. LEON HIGGIN-BOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 21 (1978) The legal disabilities imposed on Blacks were not dissimilar to those imposed on nonEnglish servants of European descent, as the principal line of demarcation was between Christian and non-Christian servants. See 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). Indeed, "the word slave had no meaning in English law." THOMAS F. GOSSETT, RACE: HISTORY OF AN IDEA IN AMERICA 29 (1963). Later statutory provisions prohibited Blacks who were slaves from attaining their freedom by converting to Christianity. See, e.g., HIGGINBOTHAM, supra, at 200 (citing a South Carolina statute of 1690 that declared "no slave shall be free by becoming a christian").
29. According to John Hope Franklin, "there is no doubt that the earliest Negroes in Virginia occupied a position similar to that of the white servants in the colony." JOHN H. FRANKLIN, U.S. COMM'N ON CIVIL RIGHTS, FREEDOM TO THE FREE 71 (1963), cited in A. LEON HIGGIN-BOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 21 (1978) The legal disabilities imposed on Blacks were not dissimilar to those imposed on nonEnglish servants of European descent, as the principal line of demarcation was between Christian and non-Christian servants. See 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). Indeed, "the word slave had no meaning in English law." THOMAS F. GOSSETT, RACE: HISTORY OF AN IDEA IN AMERICA 29 (1963). Later statutory provisions prohibited Blacks who were slaves from attaining their freedom by converting to Christianity. See, e.g., HIGGINBOTHAM, supra, at 200 (citing a South Carolina statute of 1690 that declared "no slave shall be free by becoming a christian").
30. See GOSSETT, supra note 20, at 30.
31. See id.
32. See EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 295-300 (1975).
33. See Neil Gotanda, A Critique of "Our Constitution is Colorblind," 44 STAN. L. REV 1, 33 (1991).
34. Id.; see also Christopher Lasch, THE WORLD OF NATIONS 17 (1974) (asserting that the concept of "Negro" emerged from "related . . . concepts of African, heathen and savage - at the very point in time when large numbers of men and women were beginning to question the moral legitimacy of slavery"). The implications are that, as the system of chattel slavery came under fire, it was rationalized by an ideology of race that further differentiated between white and Black.
35. Compare GOSSETT, supra note 20, at 29-30 (arguing that the terms of service for white workers were decreased in order to attract white labor in the colonies) with HIGGINBOTHAM, suPra note 20, at 26 (citing masters' fears of a potential alliance between white indentured servants and the rapidly expanding African population). See generally DAVID W. GALENSON, WHITE SERVITUDE IN COLONIAL AMERICA: AN ECONOMIC ANALYSIS 159-60 (1981) (arguing that the increased demand for skilled labor, a limited pool of low-cost, skilled white labor, and the decline in the cost of training for the slave population that was increasingly born in the Americas, combined to make slave labor more economically attractive); Diamond & Cottrol, supra note 20, at 260 (advancing an argument in accord with Higginbotham).
36. ROEDIGER, supra note 19, at 32.
37. In 1661, the Maryland legislature enacted a bill providing that "'All Negroes and other slaves shall serve Durante Vita [for life].'" GOSSETT, supra note 20, at 30.
38. See HIGGINBOTHAM, supra note 20, at 39-40.
39. For a catalogue of pre-Civil War cases articulating the general rule that a Black person was presumed to be a slave, see CHARLES S. MANGUM, JR., THE LEGAL STATUS OF THE NEGRO 2 n.2 (1940).
40. The system of racial oppression grounded in slavery was driven in large measure (although by no means exclusively) by economic concerns. See MORGAN, supra note 23, at 295-315; LESLIE H. OWENS, THIS SPECIES OF PROPERTY passim (1976). Whether from the perspective of Southern slave owners or early Northern capitalists, the slave trade, slave labor, and the direct and indirect profits that flowed from it were central to an economic structure that benefited the nation. Thus, the tension over the issue of slavery ultimately resulted in the now well-documented set of constitutional compromises that subordinated the humanity of Black people to the economic and political interests of the white, propertied class. See DERRICK BELL, AND WE ARE NOT SAVED 34 (1987).
41. The system of racial oppression grounded in slavery was driven in large measure (although by no means exclusively) by economic concerns. See MORGAN, supra note 23, at 295-315; LESLIE H. OWENS, THIS SPECIES OF PROPERTY passim (1976). Whether from the perspective of Southern slave owners or early Northern capitalists, the slave trade, slave labor, and the direct and indirect profits that flowed from it were central to an economic structure that benefited the nation. Thus, the tension over the issue of slavery ultimately resulted in the now well-documented set of constitutional compromises that subordinated the humanity of Black people to the economic and political interests of the white, propertied class. See DERRICK BELL, AND WE ARE NOT SAVED 34 (1987).
42. U.S. CONST, art. I, § 2, cl. 3.
43. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 222 (Max Farrand ed., 1911).
44. My use of the term "Blackwomen" is an effort to use language that more clearly reflects the unity of identity as "Black" and "woman," with neither aspect primary or subordinate to the other. It is an attempt to realize in practice what has been identified in theory - that, as Kimberlé Crenshaw notes, Blackwomen exist "at the crossroads of gender and race hierarchies." Kimberlé Crenshaw, Whose Story Is It, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, EN-GENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 402, 403 (Toni Morrison ed., 1992). Indeed, this essay projects a powerful and complex vision of blackwomen that forms the foundation of my construction of this term: The particular experience of black women in the dominant cultural ideology of American society can be conceptualized as intersectional. Intersectionality captures the way in which the particular location of black women in dominant American social relations is unique and in some senses unassimilable into the discursive paradigms of gender and race domination. Id. at 404.
45. This use of slave women made them a type of sexual property, and particularly subject to the control of white males. See Margaret Burnham, An Impossible Marriage: Slave Law and Family Law, 5 LAW & INEQ. J. 187, 197-99 (1987).
46. HIGGINBOTHAM, supra note 20, at 43. By the late 1600s and early 1700s, the legislatures of various colonies adopted similar rules of classification. See, e.g., id. at 128 (citing a 1706 New York statute); id. at 252 (citing a 1755 Georgia law).
47. See id. at 44. According to Paula Giddings, the Virginia statute completed "[t]he circle of denigration . . . [in] combin[ing] racism, sexism, greed, and piety" in that it "laid women open to the most vicious exploitation." She noted that "a master could save the cost of buying new slaves by impregnating his own slave, or for that matter having anyone impregnate her." PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 37 (1984).
48. Letter from Thomas Jefferson to John Jordan (Dec. 21, 1805), cited in TAKAKI, supra note 16, at 44.
49. By 1705, Virginia had classified slaves as real property. See HIGGINBOTHAM, supra note 20, at 52. In Massachusetts and South Carolina, slaves were identified as chattel. See id. at 78, 211.
50. 4 Ky. (1 Bibb) 97 (1815).
51. Id. at 98. The court held that the defendant was not entitled to judgment on the demurrer for three reasons, including the following: The defendant, under the terms of the covenant, no doubt had his election to pay either in money or negroes; but in case of his choosing the latter alternative, as the covenant requires the payment to be made in negroes, in the plural number, the plaintiff could not be compelled to receive one only. The tender therefore, of a single negro, though of value equal to the amount to be paid, could not discharge the covenant. Id.
52. 1THOMAS R. R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITSD STATES §§ 68-69, at 66-67 (1858).
53. See id. § 68, at 66.
54. Kenneth Minogue states that property performs the critical function of identification: "(Property is the concept by which we find order in things. The world is a bundle of things, and things are recognized in terms of their attributes or properties." Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in NOMOS XXII: PROPERTY 3, 11 (J. Roland Pennock & John W. Chapman eds., 1980). Indeed, he suggests that it is impossible to identify anyone or anything except by reference to their properties. See id. at 12.
55. Takaki describes the construction of Native Americans as savages through political doctrine and cultural imagery - what Herman Melville called the "metaphysics of Indian hating" - as an ideology that facilitated the removal and extermination of Native Americans. See TAKAKI, supra note 16, at 81 (citation omitted). The "savage Indian" also served as the referential opposite by which whites defined themselves to be civilized. See generally id. at 56 (stating that Jefferson's efforts to civilize the Indians affirmed a definition of civilization and progress measured by distance from the savagery of the Indian); id. at 176-80 (describing George Custer's view of the "heathen and savage" Indians as "counterpoint[s] to civilization").
56. Thus, the Indians' claim as first possessors was said to rest on a "questionable foundation," according to John Quincy Adams, because the right of the hunter could not preempt and provide the basis for an exclusive claim for a "few hundreds" against the needs of "millions." His argument reflected a widely held consensus. GOSSETT, supra note 20, at 230 (citations omitted). The land that lay in the common, left "wholly to nature," was the proper subject of appropriation by one's labor because these "great tracts of ground . . . [that] lie waste . . . are more than the people who dwell on it do, or can make use of." JOHN LOCKE, Two TREATISES OF GOVERNMENT 137, 139 (photo, reprint 1990) (W.S. Carpenter ed., 1924) (3d ed. 1698). The forms of land use typical of Native American peoples were fluid and communal in nature. The American courts have held that governmental seizures of Indian property held under original Indian title do not offend the Takings Clause of the Fifth Amendment. Courts have reasoned that Indian property rights were not protected by the constitutional prohibition against taking private property without just compensation because the property rights of Native Americans were communal and inhered in the tribe rather than an individual. Secondly, courts have contended that Native American people had not established possession of the lands they claimed for, Although they had hunted and fished on the land, they had never enclosed it and allotted the land to individuals. See Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REV. 1, 17-18 (1991).
57. Thus, the Indians' claim as first possessors was said to rest on a "questionable foundation," according to John Quincy Adams, because the right of the hunter could not preempt and provide the basis for an exclusive claim for a "few hundreds" against the needs of "millions." His argument reflected a widely held consensus. GOSSETT, supra note 20, at 230 (citations omitted). The land that lay in the common, left "wholly to nature," was the proper subject of appropriation by one's labor because these "great tracts of ground . . . [that] lie waste . . . are more than the people who dwell on it do, or can make use of." JOHN LOCKE, Two TREATISES OF GOVERNMENT 137, 139 (photo, reprint 1990) (W.S. Carpenter ed., 1924) (3d ed. 1698). The forms of land use typical of Native American peoples were fluid and communal in nature. The American courts have held that governmental seizures of Indian property held under original Indian title do not offend the Takings Clause of the Fifth Amendment. Courts have reasoned that Indian property rights were not protected by the constitutional prohibition against taking private property without just compensation because the property rights of Native Americans were communal and inhered in the tribe rather than an individual. Secondly, courts have contended that Native American people had not established possession of the lands they claimed for, Although they had hunted and fished on the land, they had never enclosed it and allotted the land to individuals. See Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REV. 1, 17-18 (1991).
58. According to Carol Rose, the common law made a "choice among audiences" in refusing to dismiss legal claims to Indian land based on the assertion that "the Indians . . . had never done acts on the land sufficient to establish property in it . . . . [T]he Indians had never really undertaken those acts of possession that give rise to a property right." Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 85-86 (1985). She states: "[I]n defining the acts of possession that make up a claim to property, the law not only-rewards the author of the 'text'; it also puts an imprimatur on a particular symbolic system and on the audience that uses this system. Audiences that do not understand or accept the symbols are out of luck." Id. at 85.
59. See Joseph W. Singer, Re-reading Property, 27 NEW ENG. L. REV. 711, 720 (1992).
60. This redefinition of possession and occupancy at the theoretical level was accompanied at the practical level by massive land dispossession that restricted Indians to reservations and designated hunting areas, established lines of demarcation by treaty that were later violated, effected land "sales" through fraud, trickery, or coercion, and led ultimately to campaigns of forced removals. See GOSSETT, supra note 20, at 228. Jefferson's Indian policy, for example, had the stated goal of "civilizing" the Indians, which resulted in their land being taken by whites for development. The objective of making the Indians "willing to sell" was achieved by the threat of force and encouraging the exchange of lands for goods pushed on them through trading houses. See TAKAKI, supra note 16, at 60-62. Andrew Jackson's campaign to dissolve the tribes, through both the forced removal of entire tribes and the land allotment program, was an attempt to make the Indians "citizens" and to coerce them to get rid of their lands. Under the land allotment program, Indians, as a condition of remaining on the land, were required to accept individual land grants that later were seized by land speculators through fraud or by creditors for debts. See id. at 92-107; see also ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST 274 (1990) (describing the "time-honored" policy of "waging war on the Indians in order to force a land cession").
61. In Alexis de Tocqueville's words, "the United States ha[s] accomplished this twofold purpose [of extermination of Indians and deprivation of rights] . . . legally, philanthropically, . . . and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity." I ALEXIS DE TOCQUE-VILLE, DEMOCRACY IN AMERICA 355 (Phillips Bradley ed. & Henry Reeve trans., 1945) (1835). As Rennard Strickland argues, these acts by the United States constituted genocide-at-law. See Rennard Strickland, Genocide-at-law: An Historic and Contemporary View of the Native American Experience, 34 KAN. L. REV. 713, 714-15 (1986).
62. In Alexis de Tocqueville's words, "the United States ha[s] accomplished this twofold purpose [of extermination of Indians and deprivation of rights] . . . legally, philanthropically, . . . and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity." I ALEXIS DE TOCQUE-VILLE, DEMOCRACY IN AMERICA 355 (Phillips Bradley ed. & Henry Reeve trans., 1945) (1835). As Rennard Strickland argues, these acts by the United States constituted genocide-at-law. See Rennard Strickland, Genocide-at-law: An Historic and Contemporary View of the Native American Experience, 34 KAN. L. REV. 713, 714-15 (1986).
63. See WILLIAMS, supra note 49, at 8.
64. 21 U.S. (8 Wheat.) 543 (1823).
65. See id. at 563. Milner Ball's reinterpretation of Johnson rejects the traditional reading that all rights held by American Indian nations were lost in conquest. Instead, he argues that the case held only that, by conquest, Indians lost the right to convey title to any country other than the United States. See Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1, 29.
66. Johnson, 21 U.S. (8 Wheat.) at 588-89. According to Robert Williams, in rendering this decision, the Court "merely formalized the outcome of a political contest that the Founders had fought and resolved among themselves some forty years earlier." WILLIAMS, supra note 49, at 231, Before Independence, radical colonists of the "landless" states - those without Crown charters specifying the territory available for settlement under the authority of the Crown - asserted the Indians' natural law right to alienate their land to whomever they chose, without regard to approval of the sovereign. See id. at 229-30. On the other hand, colonists of the "landed" states, those who held original Crown charters, argued that the colonial charters, as expressions of the will of the sovereign, granted them rights to the land specified and, under the frequently broad language of the grant, rights to control the land extending to the frontier. See id at 230. However, the coherence of the views between the settlers was far more significant than their differences. Ultimately, the conflict was resolved through a political compromise reached by the founders that allowed for frontier claims held by the landed states to be ceded to a federal sovereign that could then assert exclusive rights to eradicate Indian occupancy claims by conquest or purchase and to undertake reallocation. See Johnson, 21 U.S. (8 Wheat.) at 585-88. Notwithstanding the differences between the opposing settler groups, their shared assumptions were that the Indians' rights to land as first possessors were subordinate to European claims, and that therefore conquest and occupation could give rise to a right.
67. See Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611, 650-52 (1988).
68. See generally Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REV. 1, 1-8 (1991) (exploring the deleterious effects of the Supreme Court's formulation of tribal property rights). Parallel to the colonization of the Americas and the removal of the indigenous peoples from the land was the colonization of Africa and the removal of Africans from the continent. European conquest effected a horrific paradigm: as Europeans took Africans from the land, control of the land was taken from the Africans who remained. The result was that Africans who were removed from the continent became people without a country, and Africans on the continent became people without the legal capacity to control the land they occupied or to reap the benefits of the land they worked. The objective of capturing and enslaving Africans was to convert Africans and their descendants into property, or more accurately, into objects of property. The land dispossession of Africans on the continent, which was a central feature of colonialization, was accompanied by the introduction of regimes of property law that ratified the results of conquest and domination. See generally WALTER RODNEY, How EUROPE UNDER-DEVELOPED AFRICA passim (1972) (offering a historical account of the origins and impact of the slave trade and European imperialism on African development). Thus, both here and on the African continent, race domination, imperialist conquest, and property rights were organically linked.
69. See generally Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REV. 1, 1-8 (1991) (exploring the deleterious effects of the Supreme Court's formulation of tribal property rights). Parallel to the colonization of the Americas and the removal of the indigenous peoples from the land was the colonization of Africa and the removal of Africans from the continent. European conquest effected a horrific paradigm: as Europeans took Africans from the land, control of the land was taken from the Africans who remained. The result was that Africans who were removed from the continent became people without a country, and Africans on the continent became people without the legal capacity to control the land they occupied or to reap the benefits of the land they worked. The objective of capturing and enslaving Africans was to convert Africans and their descendants into property, or more accurately, into objects of property. The land dispossession of Africans on the continent, which was a central feature of colonialization, was accompanied by the introduction of regimes of property law that ratified the results of conquest and domination. See generally WALTER RODNEY, How EUROPE UNDER-DEVELOPED AFRICA passim (1972) (offering a historical account of the origins and impact of the slave trade and European imperialism on African development). Thus, both here and on the African continent, race domination, imperialist conquest, and property rights were organically linked.
70. See Singer, supra note 48, at 713.
71. See C.B. Macpherson, The Meaning of Property, in PROPERTY: MAINSTREAM AND CRITICAL POSITIONS 1, 3 (C.B. Macpherson ed., 1978) [hereinafter PROPERTY]. Stephen Munzer characterizes the idea of property-as-"thing" as the popular conception and property-as-relations as "the sophisticated version of property." STEPHEN R. MUNZER, A THEORY OF PROPERTY 16 (1990).
72. See C.B. Macpherson, The Meaning of Property, in PROPERTY: MAINSTREAM AND CRITICAL POSITIONS 1, 3 (C.B. Macpherson ed., 1978) [hereinafter PROPERTY]. Stephen Munzer characterizes the idea of property-as-"thing" as the popular conception and property-as-relations as "the sophisticated version of property." STEPHEN R. MUNZER, A THEORY OF PROPERTY 16 (1990).
73. 22 Thus, for example, Whelan notes that Blackstone described property in incorporeal here-ditaments, which issue out of a "thing" but have "mental existence." Id. at 121. The distinction between property as things and property as rights, then, is not so clear.
74. See JEREMY BENTHAM, THE THEORY OF LEGISLATION 111-13 (Richard Hildreth trans., 1931).
75. See Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1221-22 (1979).
76. See Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149, 178 (1992).
77. Margaret Radin ascribes these concepts as the principal basis for liberal property theories propounded by John Locke, Georg W. Friedrich Hegel, and Jeremy Bentham respectively. See Margaret J. Radin, Property and Personhood, 34 STAN. L. REV. 957, 958 n.3 (1982).
78. Munzer describes the multiplicity of definitions of property as inviting the despairing conclusion that any overarching normative theory of property is impossible." MUNZER, supra note 58, at 17; see Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY, supra note 14, at 69, 69-82.
79. JAMES MADISON, THE WRITINGS OF JAMES MADISON 101 (Gaillard Hunt ed., 1906) (quoting James Madison, Property, NAT'L GAZETTE, Mar. 29, 1792, at 174).
80. According to Macpherson, the common seventeenth century usage was very broad: "[M]en were said to have a property not only in land and goods and in claims on revenue from leases, mortgages, patents, monopolies and so on, but also a property in their lives and persons" Macpherson, supra note 58, at 7; see LAWRENCE BECKER, PROPERTY RIGHTS-PHILOSOPHIC FOUNDATIONS 120 n. 11 (1977) (describing the use of the word "property" by Blackstone, Hobbes, and Locke to be referring to all of a person's legal rights).
81. Laura S. Underkuffler, On Property: An Essay, 100 YALE L.J. 127, 128-29 (1990).
82. See infra pp. 1738-41.
83. Epstein argues the case as follows: In line with the theories of John Austin, law is regarded as a command of the sovereign . . . . In opposition to Austin stands an alternative view that grounds property rights on the traditions and common practices within a given community. On this view, property comes from the bottom up and not from the top down. . . . [The state's] chief function is to discover and reflect accurately what the community has customarily regarded as binding social rules and then to enforce those rules in specific controversies. Richard A. Epstein, International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News, 78 VA. L. REV. 85, 85 (1992) (footnotes omitted) [hereinafter Epstein, Custom and Law]. The customary rule recognized in common law was the primary right of first possessors. See Richard A. Epstein, No New Property, 56 BROOK. L. REV. 747, 750 (1990) [hereinafter Epstein, No New Property); Rose, supra note 47, at 73-74. The argument that all American law and property relates to custom rests on assumptions that second possessors were actually first, or that the land that had been "conquested" was vacant. The idea that second possessors were first is apparently Epstein's assumption "[A]S inheritors of the Lockean tradition, the basic theory [in the United States] was that property rights emerged from first possession, from first occupation, from homesteading, and not from state grant." Epstein, No New Property, supra, at 750. The notion of vacant land belongs to Locke: the right to acquire property through labor as long as there was some "good left in common for others" applied to the "inland vacant places of America." LOCKE, supra note 46, at 130, 134. Neither of these two premises is tenable. See Singer, supra note 48, at 719 (arguing that, "while Indian land was not built up, virtually all land in America was under tribal sovereignty, so that the land was not vacant, but was taken from the first possessors"). The apparent presumption, therefore, must be that, if the custom was conquest - that is, if the acquisition of land through occupation, settlement, and conquest was customary - then the state's incorporation of customary rules into the common law is merely a ratification of custom - a bottom up, not a top down relation.
84. See Epstein, No New Property, supra note 68, at 761-62.
85. See Rose, supra note 47, at 73 (arguing that the law defines acts of possession that give rise to a claim to property).
86. use "positionality" here in the sense employed in feminist legal theory. Positionality is a theory of knowledge, a rejection of objective, neutral truth in favor of a truth "situated and partial[,] . . . emerg[ing] from particular involvements and relationships . . . [that] define the individual's perspective and provide the location for meaning, identity, and political commitment." Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 880 (1990).
87. This relation between law and power has long been noted: "[B]eneath the veneer of consensus on legal principles, a struggle of interest is going on, and the law is seen as a weapon in the hands of those who possess the power to use it for their own ends." Vilhelm Aubert, Introduction to SOCIOLOGY OF LAW 9, 11 (Vilhelm Aubert ed., 1969).
88. Williams argues that "Locke's discourse . . . legitimated the appropriation of the American wilderness as a right, and even as an imperative, under natural law." WILLIAMS, supra note 49, at 248. Locke's ideas were at the root of the Declaration of Independence, a fact readily conceded by Jefferson who indicated that the document was perhaps "a compilation of commonplaces." Id. at 246.
89. See id. at 247.
90. Underkuffler, supra note 66, at 133.
91. Charles Reich, The New Property, 73 YALE L.J. 733 (1964).
92. See id. at 733.
93. The analysis derived from Reich's conception of "New Property" formed the basis of the majority opinion in Goldberg v. Kelly, 397 U.S. 254 (1970). See generally Singer, supra note 48, at 723 (cataloguing the range of intangible interests described as property).
94. 397 U.S. 254 (1970).
95. Perry v. Sindermann, 408 U.S. 593 (1972); Morrissey v. Brewer, 408 U.S. 471 (1972); Bell v. Burson, 402 U.S. 535 (1971).
96. See Bishop v. Wood, 426 U.S. 341, 347 (1976) (holding that the plaintiff's discharge from employment with the police department did not constitute a deprivation of a property interest); Board of Regents v. Roth, 408 U.S. 564, 578 (1972) (holding that a non-tenured, one-year university teaching position was not a property right); Epstein, No New Property, supra note 68, at 760-75; William Van Alstyne, Cracks in "The New Property": Adjudicative Due Process and the Administrative State, 62 CORNELL L. REV. 445, 457-70 (1977).
97. See Reich, supra note 76, at 771. The rejection of "new property" on the ground that it is derived from the government rather than private sources is ultimately not persuasive, because as Reich argues, all property is a creation of law. See id. at 778-79. According to Singer, "the legal system makes constant choices about what interests to define as property." Singer, supra note 56, at 47. Moreover, "[s]tate power defines and allocates property rights, and property rights, in turn, allocate power and vulnerability. Seemingly neutral definitions of property rights by the courts distribute power and vulnerability in ways that construct illegitimate hierarchies based on race, sex, class, disability and sexual orientation." id at 8.
98. Jeremy Bentham, Security and Equality in Property, in PROPERTY, supra note 58, at 51-52. Curiously, although Bentham argued strongly for the constructed nature of property, he considered the absence of property - poverty - to be natural: "Poverty is not the work of the laws; it is the primitive condition of the human race . . . ." Id. at 52-53. A more modern formulation of the relation between property and expectations is advanced by Macpherson, although from an opposing philosophical view. He argues that property is a right or claim that one anticipates or expects will be enforced. See Macpherson, supra note 58, at 3 ("What distinguishes property from mere momentary possession is that property is a claim that will be enforced by society or the state, by custom or convention of law."). Munzer also notes that "property, conceived as a legal structure of Hohfeldian normative modalities, makes possible legal expectations with respect to things." MUNZER, supra note 58, at 29.
99. "Expectations are an important part of modern property theory." John a. powell, New Property Disaggregated: A Model to Address Employment Discrimination, 24 U.S.F. L. REV. 363, 374 (1990).
100. Id. at 366.
101. Wendy Gordon persuasively argues that the notion that property arises from value will simply not hold up under examination and thus has little merit. See Gordon, supra note 62, at
102. Munzer argues that property cannot be equated with expectations, but that expectations are part of the psychological dimension of property. See MUNZER, supra note 58, at 30.
103. Joseph Sax asserts: "The essence of property law is respect for reasonable expectations. The idea of justice at the root of private property protection calls for identification of those expectations which the legal system ought to recognize." Joseph L. Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, 14 U.C. DAVIS L. REV. 185, 186-87 (1980) (footnote omitted).
104. Epstein, supra note 61, at 1241 ("In essence the first possession rule has been the organizing principle of most social institutions, and the heavy burden of persuasion lies upon those who wish to displace it.").
105. Singer argues that, in deciding what contract and what property rights to enforce, the state endorses the power of one party over the other or prevents one party from exercising power to the detriment of the other. Thus, the state makes allocative decisions in all transactions, public or private. See Singer, supra note 55, at 650-52.
106. Justice Holmes's dissent in International News Service v. Associated Press stated that "[p]roperty, a creation of law, does not arise from value . . . ." International News Serv. v. Associated Press, 248 U.S. 215, 246 (1918) (Holmes, J., dissenting).
107. See Radin, supra note 63, at 959-61 (examining property as "a class of objects or resources necessary to be a person or whose absence would hinder the autonomy or liberty attributed to a person").
108. GEORG LUKÄCS, HISTORY AND CLASS CONSCIOUSNESS 83 (Rodney Livingstone trans., 1971).
109. Radin, supra note 63, at 968. In this passage, Radin is not attempting to carry out Bentham's project of providing overall justifications for property; rather, she is only considering the role of expectations in personal property.
110. See infra pp. 1745-57.
111. See J.S. MILL, PRINCIPLES OF POLITICAL ECONOMY bk. II, ch. ii, at 218 (W. Ashley ed., 1909).
112. See id.
113. See Margaret Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1854 n-19 (1987).
114. See id. at 1851.
115. See id. at 1852-53.
116. See id. at 1852.
117. See JOHN S. MILL, PRINCIPLES OF POLITICAL ECONOMY 218 (photo. reprint 1976) (William Ashley ed., 1909) (stating that "[t]he institution of property, when limited to its essential elements" is a person's right to its "exclusive disposal" as well as the producer's right to whatever can be gotten for the goods in a fair market), quoted in Radin, supra note 98, at 1889. Radin notes that this position differs from one pluralist view, which states that some things can be Property without being fully alienable. See Radin, supra note 98, at 1890.
118. If property inherently includes the power of alienation, then property that is inalienable is a logical contradiction. See Radin, supra note 98, at 1889-90. The result is an inexorable pull toward "universal commodification." Id. at 1890-91.
119. See MILL, supra note 102, at 208, cited in Radin, supra note 98, at 1889-90.
120. There is one historical instance in which arguably whiteness was transferred. In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court invalidated Virginia's anti-miscegenation statute that prohibited intermarriage between white persons and "colored persons" as violative of the Equal Protection Clause. See id. at 12. Significantly, the statute did allow intermarriage between whites and persons of white and American Indian descent. It further defined white persons as those of exclusively Caucasian origin, but granted persons with less than one-sixteenth American Indian blood the status of being white for the purposes of the statute. See VA. CODE ANN. § 20-54 (repealed 1968). In conferring the status of honorary white on persons of such heritage, the statute was reflecting the "desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahantas." Bureau of Vital Statistics, The New Family and Race Improvement, 17 VA. HEALTH BULL., Extra No. 12, at 18, 19, 26 (New Families Series No. 5, 1925), cited in Walter Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 VA. L. REV. 1189, 1202 (1966). In one sense, the statute represented a legal conveyance of the property interest in whiteness to those who were technically not white, possibly to ensure the stability of a social order in which many who considered themselves white were not in fact white as defined by law.
121. There is one historical instance in which arguably whiteness was transferred. In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court invalidated Virginia's anti-miscegenation statute that prohibited intermarriage between white persons and "colored persons" as violative of the Equal Protection Clause. See id. at 12. Significantly, the statute did allow intermarriage between whites and persons of white and American Indian descent. It further defined white persons as those of exclusively Caucasian origin, but granted persons with less than one-sixteenth American Indian blood the status of being white for the purposes of the statute. See VA. CODE ANN. § 20-54 (repealed 1968). In conferring the status of honorary white on persons of such heritage, the statute was reflecting the "desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahantas." Bureau of Vital Statistics, The New Family and Race Improvement, 17 VA. HEALTH BULL., Extra No. 12, at 18, 19, 26 (New Families Series No. 5, 1925), cited in Walter Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 VA. L. REV. 1189, 1202 (1966). In one sense, the statute represented a legal conveyance of the property interest in whiteness to those who were technically not white, possibly to ensure the stability of a social order in which many who considered themselves white were not in fact white as defined by law.
122. See MILL, supra note 102, at 218, cited in Radin, supra note 98, at 1889-90. Mill thus argued that property included the power to bequest, but not the right to inherit and that property rights in land carried limitations. See John S. Mill, Of Property, in PROPERTY, supra note 58, at 77, 87, 95.
123. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (holding that Social Security beneficiaries possessed a qualified property interest); Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (holding that welfare benefits constituted property interests and could not be taken away without a pre-termination hearing); In re Ming, 469 F.2d 1352, 1355-56 (7th Cir. 1972) (holding that a law license, as a form of property, may not be suspended without a hearing); Reich, supra note 76, at 733.
124. Epstein acknowledges that "the state can create new forms of property other than the classic forms that existed at common law . . . so long as it observes the basic conditions associated with its own raison d'etre." Epstein, No New Property, supra note 68, at 754. Thus, he argues that there is a legitimate basis for treating copyrights and patents, broadcast frequencies, or corporate indentures as property, but no justification exists for treating welfare benefits as property, because the former confer significant financial gain whereas the latter do not. See id. at 754-62.
125. See, e.g., O'Brien v. O'Brien, 489 N.E.2d 712, 713 (N.Y. 1985); Joan M. Krauskopf, Recompense for Financing, Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 410-16 (1980); see also Charles Reich, The New Property After 25 Years, 24 U.S.F. L. REV. 223, 226 (1990) (arguing that, if a professional degree is a couple's major asset, failure to accord it the status of property may result in substantial injustice to the wife). But see In re Marriage of Graham, 574 P.2d 75, 77 (Colo. 1978) (holding that an M.B.A. did not constitute marital property subject to division).
126. See, e.g., O'Brien v. O'Brien, 489 N.E.2d 712, 713 (N.Y. 1985); Joan M. Krauskopf, Recompense for Financing, Spouse's Education: Legal Protection for the Marital Investor in Human Capital, 28 KAN. L. REV. 379, 410-16 (1980); see also Charles Reich, The New Property After 25 Years, 24 U.S.F. L. REV. 223, 226 (1990) (arguing that, if a professional degree is a couple's major asset, failure to accord it the status of property may result in substantial injustice to the wife). But see In re Marriage of Graham, 574 P.2d 75, 77 (Colo. 1978) (holding that an M.B.A. did not constitute marital property subject to division).
127. See Radin, supra note 98, at 1903-09. Universal market rhetoric in fact subjects "everything people need or desire" to commodification and "includes not only those things usually considered goods, but also personal attributes, relationships, and states of affairs." Id. at 1860. Radin identifies Richard Posner with this view. See id. at 1862 n.49 ("Posner argues that, but for the costs of implementing a property system, value would be maximized if everything scarce and desired were ownable and salable . . . . Thus, [because we ought to maximize value,] everything scarce and desirable ought to be ownable and salable.") (citation omitted); see also Elizabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD. 323, 324 (1978) (arguing for the establishment of a market for babies). This model rejects inalienability - reductively conceptualized as market-inalienability - as being dysfunctional, with the result that everything, including bodily integrity, is objectified and property that is personal collapses into the fungible. See Radin, supra note 98, at 1880-81.
128. The distinction between personal and fungible property is described as follows: Property is personal in a philosophical sense when it has become identified with a person, with heir self-constitution and self-development in the context of her environment. Personal property cannot be taken away and replaced with money or other things without harm to the person - to her identity and existence. In a sense, personal property becomes a personal attribute. On the other hand, property is fungible when there is no such personal attachment. Radin, supra 98, at 1880 n.115; see Radin, supra note 63, at 959-61.
129. See Radin, supra note 98, at 1903-06.
130. Id. at 1903.
131. Minogue, supra note 44, at 15.
132. Radin, supra note 63, at 960.
133. There have been longstanding debates on whether one's reputation is more correctly characterized as property or liberty. Compare Van Alstyne, supra note 81, at 479 n.97 (claiming that interests in reputation, traditionally described as interests in liberty, are at least as well described as property interests) with MUNZER, supra note 58, at 46 n.9 (noting that reputation in Anglo-American law is more often described as a liberty interest than a property interest). Reputational interests, however, have been treated as interests possessing aspects of both in American law. As Robert Post indicates, the concepts of reputation manifested in the common law of defamation at different points in history include reputation as property, reputation as honor, and reputation as dignity. See Robert C. Post, The Social Foundations of Defamattion Low: Reputation and the Constitution, 74 CAL. L. REV. 691, 693 (1986). Reputation is a "melange" lending itself to different descriptions over time. Id. at 740.
134. See Macpherson, supra note 58, at 7.
135. LOCKE, supra note 46, at 130.
136. Radin surmises that Locke's use of person in this passage probably refers to ownership of one's physical body. See Radin, supra note 63, at 965. To construe the Lockean precept of holding property in one's person as meaning property in one's body depends on a particular theory of the person that equates persons with human bodies. However, solving the riddle of the meaning of person is not an essential predicate to recognizing whiteness as property because whatever the concept of personhood, whiteness was bound up with identity and liberty in both private and public spheres.
137. LOCKE, supra note 46, at 130.
138. Reputation as honor is also grounded in historical traditions, but in contrast to the values of the marketplace, embodies the values of society that endow social roles. See Post, supra note 116, at 699-700. Thus, a king does not work to attain honor; rather, honor is attributed to his position and he is expected to "personify" the role. The underlying presumption is one of social stratification, in which hierarchically determined roles are assigned rather than earned. See id. ad 700-02. Post notes that the idea of reputation as honor is predicated on the norms of a "deference society" in which "ascribed social roles are pervasive and well established." Id. at 701-02. Although American society, which is at least overtly committed to egalitarian principles, might not accurately be characterized as a "deference society," honor defined by hierarchy persists in some institutions. Id. at 706-07. Being regarded as white, or the reputation of whiteness, represents a blending of the concepts of reputation as honor - that which is claimed by virtue of status - and reputation as property - that which has value in the market. Whiteness was honorific in that it was conferred and not earned, based on the inherent unequal status of dominant and subordinate groups. Thus, it might be seen as outside conceptions of reputation as property. In fact, whiteness as reputation seems to evoke Post's description of reputation as honor. See id. at 725-26. Nevertheless, because whiteness is something to which market value attaches, I argue that the reputation of whiteness also presents aspects of property. Indeed, being Black - or being de-propertied of whiteness - is something that causes harm capable of pecuniary measurement. See infra notes 222-226 and accompanying text.
139. See J. H. Crabb, Annotation, Libel and Slander: Statements Respecting Race, Color, or Nationality as Actionable, 46 A.L.R. 2d 1287, 1289 (1956) ("The bulk of the cases have arisen from situations in which it was stated erroneously that a white person was a Negro. According to the majority rule, this is libelous per se."); Annotation, Libel and Slander: Statements Respecting Race, Color, or Nationality as Actionable, 50 A.L.R. 1413, 1413-14 (1927) ("The great weight of authority in the cases involving charges that the plaintiff is of African origin is that such an imputation is actionable per se."). But see Collins v. Oklahoma State Hosp., 184 P. 946, 947-48 (Okla. 1916). See generally MANGUM, supra note 30, at 18-25 (summarizing cases on this issue from the 1800s to the 1930s).
140. See J. H. Crabb, Annotation, Libel and Slander: Statements Respecting Race, Color, or Nationality as Actionable, 46 A.L.R. 2d 1287, 1289 (1956) ("The bulk of the cases have arisen from situations in which it was stated erroneously that a white person was a Negro. According to the majority rule, this is libelous per se."); Annotation, Libel and Slander: Statements Respecting Race, Color, or Nationality as Actionable, 50 A.L.R. 1413, 1413-14 (1927) ("The great weight of authority in the cases involving charges that the plaintiff is of African origin is that such an imputation is actionable per se."). But see Collins v. Oklahoma State Hosp., 184 P. 946, 947-48 (Okla. 1916). See generally MANGUM, supra note 30, at 18-25 (summarizing cases on this issue from the 1800s to the 1930s).
141. Bowen v. Independent Publishing Co., 96 S.E.2d 564, 565 (S.C. 1957).
142. See Post, supra note 116, at 725-26.
143. See RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 65 (1985) ("The idea of property embraces the absolute right to exclude."). The idea that property means "my right to exclude you from some use or benefit of something" is pervasive in modern theory. See Macpherson, supra note 58, at 2. Not all theorists agree that the right to exclude embodied in property rights is absolute. See generally Margaret J. Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1669-70 (criticizing as "naive conceptualism" the neoconservative view that the word "property" has a "timeless," "obvious, objective meaning" that is "in" the Constitution).
144. See RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 65 (1985) ("The idea of property embraces the absolute right to exclude."). The idea that property means "my right to exclude you from some use or benefit of something" is pervasive in modern theory. See Macpherson, supra note 58, at 2. Not all theorists agree that the right to exclude embodied in property rights is absolute. See generally Margaret J. Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1669-70 (criticizing as "naive conceptualism" the neoconservative view that the word "property" has a "timeless," "obvious, objective meaning" that is "in" the Constitution).
145. See infra notes 133-140 and accompanying text
146. Post, supra note 116, at 709.
147. F. JAMES DAVIS, WHO is BLACK? 5 (1991) (citations omitted).
148. Gotanda, supra note 24, at 26.
149. See id. at 27.
150. Robert J. Cottrol, The Historical Definition of Race Law, 21 LAW & SOC'Y REV. 865, 865 (1988).
151. See id.
152. Gotanda defines "historical race" as socially constructed formal categories predicated on race subordination that included presumed substantive characteristics relating to "ability, disadvantage, or moral culpability." Gotanda, supra note 24, at 4.
153. See infra note 139 and accompanying text.
154. See Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689, 1693-94 (1989).
155. See, for example, People v. Dean, 14 Mich. 406 (1866), in which the majority held that those with less than one-quarter Black blood were white within the meaning of the constitutional provision limiting the franchise to "white male citizens," see id. at 425. The dissent argued that a preponderance of white blood should be sufficient to accord the status of whiteness. See id. at 435, 438 (Martin, C.J., dissenting).
156. Hypodescent" is the term used by anthropologist Marvin Harris to describe the American system of racial classification in which the subordinate classification is assigned to the offspring if there is one "superordinate" and one "subordinate" parent. Under this system, the child of a Black parent and a white parent is Black. MARVIN HARRIS, PATTERNS OF RACE IN THE AMERICAS 37, 56 (1964).
157. According to various court decisions of the nineteenth and early twentieth centuries, the term "negro" was construed to mean a person of mixed blood within three generations, see State v. Melton & Byrd, 44 N.C. (Busb.) 49, 51 (1852); a person having one-fourth or more of African blood, see Gentry v. McMinnis, 3 Dana (Ky.) 382, 385 (1835); Jones v. Commission, 80 Va, 538, 542 (1885); a person having one-sixteenth or more of African blood, see State v. Chavers, 50 N.C. 11, 14-15 (1857); State v. Watters, 25 N.C. (3 Ired.) 455, 457 (1843); a person having one-eighth or more of African blood, see Rice v. Gong Lum, 139 Miss. 760, 779 (1925); Marre v. Marre, 184 Mo. App. 198, 211 (1914); anyone with any trace of Negro blood, see State v Montgomery County School Dist. No. 16, 242 S.W. 545, 546 (1922). The term "colored" too had a range of legal meanings. See 11 C.J. Colored 1224 (1917). For a review of court decisions and statutes of nineteenth and early twentieth centuries delineating who is a "Negro" or who is colored, see MANGUM, supra note 30, at 1-17. An example of the complexity of defining these terms is revealed in State v. Treadaway. 52 So. 500 (La. 1910), in which the Louisiana state supreme court exhaustively reviewed the various meanings of the words "negro" and "colored" in considering whether an "octoroon" - a person of one-eighth Black blood - was a Negro within the meaning of a statute barring cohabitation between a person of the "white" race and a person of the "negro or black" race. See id. at 501-10. In examining the definitions propounded in various dictionaries, court decisions, and statutory law that used either term, the court concluded that "colored" denoted a person of mixed white and Black blood in any degree, and a "negro" was a "person of the African race, or possessing the black color and other characteristics of the African." Id. at 531. Because "there are no negroes who are not persons of color; but there are persons of color who are not negroes," id., the court concluded that the statute did not include octoroons because they were not commonly considered "negroes," although they were persons of color, see id. at 537. The response of the Louisiana legislature was to reenact the statute with the identical language, except it substituted the word "colored" for the word "Negro." See MANGUM, supra note 30, at 5-6.
158. For example, Samuel Morton, one of the principal architects of these theories, ascribed the basis of Black and non-white racial inferiority to differences in cranial capacity, which purportedly revealed that whites had larger heads. Notwithstanding the gross breaches of scientific method and manipulation of data evident in Morton's theory, see GOSSETT, supra note 20, at 73-74, his 1839 book, Crania Americana, was widely accepted as the scientific explanation of Blacks' inability to mature beyond childhood, see GOSSETT, supra note 20, at 58-59 (citing the remarks of Oliver Wendell Holmes, Sr., extolling Morton as a "leader" whose "severe and cautious . . . researches" would provide "permanent data for all future students of Ethology"); TAKAKI, supra note 16, at 113 (citing the remarks of an Indiana senator in 1850 who spoke of the diminished brain capacity of Blacks). These and other widely disseminated theories of Black inferiority provided the rationale for the political and popular discourse of the time that argued that Black equality and participation in the polity were impossible because Blacks lacked the capacity to develop rational decisionmaking. See REGINALD HORSMAN, RACE AND MANIFEST DESTINY 116-57 (describing the permeation of "scientific" bases for racial inferiority into every aspect of American thought).
159. See, e.g., Sunseri v. Cassagne, 185 So. 1, 4-5 (La. 1938). The case involved a suit by Sunseri to annul his marriage to Cassagne on the grounds that she had a trace of "negro blood." He contended that his wife's great-great-grandmother was a "full-blooded negress," and Cassagne herself asserted that she was Indian. See id. at 2. It was not disputed that all of Cassagne's paternal ancestors from her father to her great-great-grandfather were white men. See id. Moreover, Cassagne had been regarded as white in the community, as she and her mother had been christened in a white church, had attended white schools, were registered as white voters, were accepted as white in public facilities, and had exclusively associated with whites. See id. at 4-5 Nevertheless, because certificates and official records designated Cassagne and some of her relatives as "colored," the court concluded that she was not white and that thus there were sufficient grounds to annul the marriage. See Sunseri v. Cassagne, 196 So. 7, 10 (La. 1949); see also Johnson v. Board of Educ. of Wilson County, 82 S.E. 832, 833-35 (1914) (refusing to allow the children of a "pure white" husband and a wife who was less than "one-eighth negro" to be admitted to white schools because of the presence of "negro blood in some degree," even assuming that the marriage was valid and not violative of the miscegenation statute).
160. It is not at all clear that even the slaves imported from abroad represented "pure Negro races." As Gunner Myrdal noted, many of the tribes imported from Africa had intermingled with peoples of the Mediterranean, among them Portuguese slave traders. Other slaves brought to the United States came via the West Indies, where some Africans had been brought directly, but still others had been brought via Spain and Portugal, countries in which extensive interracial sexual relations had occurred. By the mid-nineteenth century it was, therefore, a virtual fiction to speak of "pure blood" as it relates to racial identification in the United States. See MYRDAL, supra note 4, at 123.
161. People v. Dean, 14 Mich. 406, 422 (1866).
162. Diamond & Cottrol, supra note 20, at 281.
163. For a history of the "one-drop" rule, see DAVIS, cited above in note 128, at 5. According to Davis: The nation's answer to the question "Who is black?" has long been that a black is any person with any known African black ancestry. This definition reflects the long experience with slavery and later with Jim Crow segregation. In the South it became known as the "one-drop rule," meaning that a single drop of "black blood" makes a person black It is also known as the . . . "traceable amount rule," and anthropologists call it the "hypo-descent rule," meaning that racially mixed persons are assigned the status of the subordinate group. This definition emerged from the American South to become the nation's definition, generally accepted by whites and blacks alike. Blacks had no other choice. Id. (citations omitted).
164. See, e.g., Gray v. Ohio, 4 Ohio 353, 355 (1831).
165. The courts adopted this standard even as they critiqued the legitimacy of such rules and definitions. For example, in People v. Dean, 14 Mich. 406 (1886), the court, in interpreting the meaning of the word "white" for the purpose of determining whether the defendant had voted illegally, criticized as "absurd" the notion that "a preponderance of mixed blood, on one side or the other of any given standard, has the remotest bearing upon personal fitness or unfitness to possess political privileges," id. at 417, but held that the electorate that had voted for racial exclusion had the right to determine voting privileges, see id. at 416.
166. STEPHEN J. GOULD, THE MISMEASURE OF MAN 24 (1981).
167. W.E.B. Du BOIS, BLACK RECONSTRUCTION (photo. reprint 1976) (1935).
168. See id. at 634.
169. Id. at 700.
170. Id. at 700-01.
171. ROEDIGER, supra note 19, at 13. One of Roediger's principal themes is that whiteness was constructed both from the top down and from the bottom up. See id. at 8-11. His vigorous analysis of the role of racism in the construction of working class consciousness leads him to conclude that "the pleasures of whiteness could function as a [wage] for white workers . . . . [S]tatus and privilege conferred by race could be used to make up for alienating and exploitive class relationships." Id. at 13. Roediger further argues that the conjunction of "white" and "worker" came about in the nineteenth century at a time when the non-slave labor force came increasingly to depend on wage labor. The independence of this sector was then measured in relation to the dependency of Blacks as a subordinated people and class. See id. at 20. The involvement of all sectors, including the white working class, in the construction of whiteness aids in explaining the persistence of whiteness in the modern period. See discussion infra pp. 1758-77.
172. ROEDIGER, supra note 19, at 13.
173. "One of the surest ways to confirm an identity, for communities and individuals, is to find some way of measuring what one is not." KAI ERICKSON, WAYWARD PURITANS: A STUDY IN THE SOCIOLOGY OF DEVIANCE 64 (1966). Toni Morrison's study of the Africanist presence in U.S. literature echoes the same theme of the reflexive construction of "American" identity: It is no accident and no mistake that immigrant populations (and much immigrant literature) understood their Americaness as an opposition to the resident black population. Race in fact now functions as a metaphor so necessary to the construction of Americaness that it rivals the old pseudo-scientific and class-informed racisms whose dynamics we are more used to deciphering . . . . Deep within the word "American" is its association with race. To identify someone as South African is to say very little; we need the adjective "white" or "black" or "colored" to make our meaning clear. In this country, it is quite the reverse. American means white . . . . TONI MORRISON, PLAYING IN THE DARK: WHITENESS AND THE LITERARY IMAGINATION 46-47 (1992).
174. "One of the surest ways to confirm an identity, for communities and individuals, is to find some way of measuring what one is not." KAI ERICKSON, WAYWARD PURITANS: A STUDY IN THE SOCIOLOGY OF DEVIANCE 64 (1966). Toni Morrison's study of the Africanist presence in U.S. literature echoes the same theme of the reflexive construction of "American" identity: It is no accident and no mistake that immigrant populations (and much immigrant literature) understood their Americaness as an opposition to the resident black population. Race in fact now functions as a metaphor so necessary to the construction of Americaness that it rivals the old pseudo-scientific and class-informed racisms whose dynamics we are more used to deciphering . . . . Deep within the word "American" is its association with race. To identify someone as South African is to say very little; we need the adjective "white" or "black" or "colored" to make our meaning clear. In this country, it is quite the reverse. American means white . . . . TONI MORRISON, PLAYING IN THE DARK: WHITENESS AND THE LITERARY IMAGINATION 46-47 (1992).
175. 156 Id. at 9.
176. ROEDIGER, supra note 19, at 118 (quoting Alan W.C. Green, "Jim Crow," "Zip Coon": The Northern Origin of Negro Minstrelsy, 11 MASS. REV. 385, 395 (1970)).
177. I do not attempt here to review or state a position with regard to the profusion of theories that describe the relationship between liberty and property; that is beyond the scope of this inquiry. Rather, I use liberty in the Hohfeldian sense as a privilege, "a legal liberty or freedom," not involving "a correlative duty but the absence of a right on someone else's part to interfere." MUNZER, supra note 58, at 18 (1990).
178. In this respect, whiteness as property followed a familiar paradigm. Although the state can create new forms of property other than those existing at common law, "in each case that it creates new property rights, the state necessarily limits the common law liberty or property rights of other citizens, for conduct which was once legal now becomes an invasion or an infringement of the new set of rights that are established." Epstein, No New Property, supra note 68, at 754; see HIGGINBOTHAM, supra note 20, at 13 (noting that, when the law establishes a right for a person, group, or institution, it simultaneously constrains those whose "preferences impinge on the right established").
179. This problem is at the center of one of the early classics of Black literature, The Autobiography of an Ex-Coloured Man, by James Weldon Johnson, the story of a Black man who "passes" for white, crossing between Black and white racial identities four times. See Henry L. Gates, Jr., Introduction to JAMES W. JOHNSON, THE AUTOBIOGRAPHY OF AN EX-COLOURED MAN vi (Vintage 1989) (1912).
180. I am indebted to Lisa Ikemoto for the insight regarding how whiteness as property interacts with liberty and self-identity.
181. See Naturalization Act of 1790, ch. 3, § 1, 1 Stat. 103, 103 (1790) (repealed 1795). As Takaki explains, this law "specified a complexion for the members of the new nation" and reflected the explicit merger of white national identity and republicanism. TAKAKI, supra note 16, at 15. It was also another arena in which the law promulgated racial definitions as part of its task of allocating rights of citizenship. These decisions further reinforced white hegemony by naturalizing white identity as objective when in fact it was a constructed and moving barrier As noted in Corpus Juris, a white person constitutes a very indefinite description of a class of persons, where none can be said to be literally white; and it has been said that a construction of the term to mean Europeans and persons of European descent is ambiguous. "White person" has been held to include an Armenian born in Asiatic Turkey, a person of but one-sixteenth Indian blood, and a Syrian, but not to include Afghans, American Indians, Chinese, Filipinos, Hawaiians, Hindus, Japanese, Koreans, negroes; nor does white person include a person having one fourth of African blood, a person in whom Malay blood predominates, a person whose father was a German and whose mother was a Japanese, a person whose father was a white Canadian and whose mother was an Indian woman, or a person whose mother was a Chinese and whose father was the son of a Portuguese father and a Chinese mother. 68 C.J. White 258 (1934) (citations omitted).
182. See Diamond & Cottrol, supra note 20, at 262.
183. For an account of the linkage between expanding white voting rights and increased constraints on rights for Blacks, see ROEDIGER, supra note 19, in which he describes the experience in Pennsylvania, see id. at 59; see also Diamond & Cottrol, supra note 20, at 260-61 n.26 (summarizing the fate of free, enfranchised Blacks who were later disenfranchised in the face of rising racism at the same time that property requirements were abolished for white voters).
184. Pierre van der Berghe uses this term to describe those societies in which dominant groups operate within democratic and egalitarian rules, and subordinate groups are subjected to undemocratic and tyrannical regulation. The classic contemporary example of this model is South Africa, See PIERRE VAN DER BERGHE, RACE AND RACISM: A COMPARATIVE PERSPECTIVE 17-18 (1967).
185. See Diamond & Cottrol, supra note 20, at 262.
186. The organizing principle of the Federalist vision of the republic was that government must protect the rights of persons and the rights of property. See JENNIFER NEDELSKY, PRIVATE PSOPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 17 (1991). But if, as Madison stated, "'the first object of government is the protection of different and unequal faculties of acquiring property,'" id. at 17 (citation omitted), then an extension of the rights of suffrage to all would subject those with material property, always a minority, to the control of the propertyless, see id. at 18. The solution adopted by Madisonian republicanism limited the franchise and installed a system of freehold suffrage. See id. at 19. The result, according to Nedelsky, was a distortion of the republican vision as inequality was presumed and protected. See id. at 1. But see Book Note, Private Property, Civic Republicanism and the Madisonian Constitution, 104 HARV. L. REV. 961, 963-64 (1991) (arguing that Nedelsky mischaracterizes the Madisonian vision of property to be referring only to material property when in fact Madison's concept of property included everything to which one could claim a right).
187. The organizing principle of the Federalist vision of the republic was that government must protect the rights of persons and the rights of property. See JENNIFER NEDELSKY, PRIVATE PSOPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 17 (1991). But if, as Madison stated, "'the first object of government is the protection of different and unequal faculties of acquiring property,'" id. at 17 (citation omitted), then an extension of the rights of suffrage to all would subject those with material property, always a minority, to the control of the propertyless, see id. at 18. The solution adopted by Madisonian republicanism limited the franchise and installed a system of freehold suffrage. See id. at 19. The result, according to Nedelsky, was a distortion of the republican vision as inequality was presumed and protected. See id. at 1. But see Book Note, Private Property, Civic Republicanism and the Madisonian Constitution, 104 HARV. L. REV. 961, 963-64 (1991) (arguing that Nedelsky mischaracterizes the Madisonian vision of property to be referring only to material property when in fact Madison's concept of property included everything to which one could claim a right).
188. 163 U.S. 537 (1896).
189. 347 U.S. 483 (1954).
190. See generally C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW passim (1974) (describing the American system of legally mandated race segregation).
191. Lynching, an extreme form of social control designed to contain or obliterate potential economic and political challenges posed by Blacks, rose during the ten-year period between 1890 and 1900. In 1892 alone, over 255 Black men, women, and children were lynched. See GIDDINGS, supra note 37, at 26.
192. Some historians have argued that the actual material conditions of Blacks deteriorated in the last two decades of the nineteenth century as they were squeezed out of the core of the labor force. See MYRDAL, supra note 4, at 222 (arguing that, after Emancipation, "no . . . proprietary interest [of slaveowners] protected negro laborers from the desire of white workers to squeeze them out of skilled employment[,] [t]hey were gradually driven out and pushed down into 'Negro jobs', a category which has been more and more narrowly defined").
193. See CHARLES LOFGREN, THE PLESSY CASE 41 (1987).
194. Id. at 41.
195. See id. at 32.
196. Plessy v. Ferguson, 163 U.S. 537, 551 (1896).
197. Brief for Plaintiff in Error at 8, Plessy (No. 210) [hereinafter Brief for Homer Plessy].
198. See LOFGREN, supra note 173, at 41.
199. Albion Tourgée, attorney for Plessy, had specifically sought a fair-skinned plaintiff in order to raise this argument, over vigorous opposition from organized Black leadership. Although Tourgée was seeking a narrower ground for the Court to rule upon, as he was very pessimistic about overturning Jim Crow in the hostile political climate, Black leadership objected that such a strategy, even if successful, would mitigate conditions only for those Blacks who appeared to be white. Legally sanctioning the privilege of fair skin over dark would only serve to reinforce the legitimacy of the race hierarchy that kept white over Black. Nevertheless, Tourgée prevailed in his efforts to pursue this strategy and Homer A. Plessy was chosen because phenotypically he appeared to be white. See JACK GREENBERG, LITIGATION FOR SOCIAL CHANGE: METHODS, LIMITS AND ROLE IN DEMOCRACY 13-15 (1974). Greenberg notes that one of the benefits of Tourgée's approach was that, had it been accepted by the Court, it might have, in time, made Jim Crow laws extremely difficult to administer. Thus, states might simply have abandoned them. See id. at 14.
200. See Brief for Homer Plessy, supra note 177, at 9-10.
201. Id. at 8.
202. Id. at 9.
203. Id. at 11. Although from a very different perspective and analysis, Tourgée's attack on the arbitrariness of racial categories presaged the full-blown assault on the illusion of colorblindness offered by Neil Gotanda's insight that recognition of race in this society involves race subordination. Gotanda states: Under hypodescent [the rule governing race in the United States], Black parentage is recognized through the generations. . . . Black ancestry is a contaminant that overwhelms white ancestry. Thus, under the American system of racial classification, claiming a white racial identity is a declaration of racial purity and an implicit assertion of racial domination. . . . . . . [T]he moment of racial recognition is the moment in which is reproduced the inherent asymmetry of the metaphor of racial contamination and the implicit impossibility of racial equality. Gotanda, supra note 24, at 26-27 (footnotes omitted).
204. 185 See Plessy, 163 U.S. at 549.
205. Id.
206. The Court validated, as acceptable norms, state law requirements including, presumably, all common law regarding the proportion of "colored blood necessary to constitute a colored person;" The Court stated: It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states . . . . But these are questions to be determined under the laws of each state and are not properly put in issue in this case. Id at 552 (citations omitted). Obviously, state law also would control the federal due process claim. This fact invites speculation that had Plessy been on a train in a different state with different laws defining whiteness, the case might have gone the other way, although on the narrower basis of the deprivation of due process.
207. The opinion says that the right asserted by Plessy is "so-called" property and acknowledged the existence of such a property right for the purposes of this case." Id. at 549.
208. Brown v. Board of Educ. (Brown I), 347 U.S. 483 (1954).
209. See id. at 494-95.
210. Id. at 488.
211. Id. at 492.
212. See id. at 494.
213. Herbert Wechsler's search for the neutral principles that justify the outcome in Brown is unsuccessful because he argues that Brown really is about the competing associational claims of Blacks whose rights to freely associate were impaired by segregation and the rights of whites to be free from association with Blacks. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 34 (1959). Defining the problem of segregation in purely associational terms ignores the crucial fact that the system of white supremacy was built not merely to achieve race segregation, but also to construct systematic disadvantage.
214. Assessing the underlying reasons for Brown is beyond the scope of this work, but it is noteworthy that a careful analysis of Brown not only reveals the way in which it was analytically and remedially compromised by the protection of the new form of whiteness as property, but also discloses that the impetus for the decision was as much white self-interest as the relentless struggle of Blacks for equal justice. The removal of de jure segregation resulted from the domestic pressure generated by the oppressed Black masses under the banner of equal justice under law as well as from the external dynamic of competition between the United States and the Soviet Union for influence in the Third World. The United States was vulnerable to the charge that its domestic policies toward Black people residing in the United States were a better indication of its view of the emerging nations of Africa and Asia than its rhetoric of democracy. For a thorough and fascinating account of Brown in the context of U.S. foreign policy and Cold War initiatives, see Mary Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61 (1988). See also Derrick A. Bell, Jr., Brown v. Board of Education and the Interest Convergence Dilemma, 93 HARV. L. REV. 518, 524-25 (1980) (arguing that the decision in Brown was also in the interests of white foreign policymakers); Mark Tushnet, What Really Happened in Brown v. Board of Education, 91 COLUM. L. REV. 1867, 1885 (1991) (citing the briefs filed by the Department of Justice that noted that the system of Jim Crow was a tremendous handicap to U.S. foreign policy in its competition with the Soviet Union for influence in Africa).
215. Some historians have suggested that this ambiguity may have been deliberate to some extent, part of the necessary price for a unanimous opinion. See J. HARVIE WILKINSON III, FROM BROWN TO BAKKE 31 (1979).
216. According to Alan Freeman: [Brown] has come to stand for both more and less than equality of educational opportunity - more to the extent it reached out to strike down other discriminatory practices, but much less to the extent there is no recognized right, no ethical claim for equality of resources or a substantively effective education as such. Alan P. Freeman, Antidiscrimination Law: A Critical Review, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 96, 101 (David Kairys ed., 1982). This ambiguity infected the remedial Phase. See infra pp. 1754-56.
217. This failure may have been due, in part, to the difficulty of attacking the system of racial oppression from different fronts. The National Association for the Advancement of Colored People (NAACP) lawyers representing the plaintiffs in the long campaign against state-enforced segregation had long debated the merits of different strategies: (1) pursuing suits that sought equalization of school facilities in systems throughout the country where disparities were obvious; or (2) undertaking a direct attack on Plessy. The major issues were not only ideological - that is whether integration was a desired or viable goal - but were strategic as well. That the legal battle was being waged under severe financial constraints made pure equalization suits a less effective and less useful choice, as it was evident early on that equalization suits would have to pursue remedies locality by locality, with each outcome turning on facts highly specific to the case and having little or no precedential value. Unequal conditions were factual questions in essence, and required intensive investigatory resources to make out a case. See MARK V. TUSHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION 107-10 (1987). Moreover, equality of facilities alone was unacceptable to the plaintiffs, their lawyers, and many of those directly engaged in the struggle. An argument limited to "separate but equal" alone would have served to reinforce the very principle of the system of racial oppression, built to police and reflect race and class privilege. Finally, because the lawyers for the NAACP were fighting for a mandate to desegregate the system from top to bottom, many, such as Thurgood Marshall, believed that the difference between the strategies was more form than substance, because "relief in the form of equalization of facilities was subsumed under the request for an end to discrimination." TUSHNET, supra, at 108.
218. Cf. Derrick A. Bell, School Litigation Strategies for the 1970's: New Phases in the Continuing Quest for Quality Schools, 1970 WIS. L. REV. 257, 291-92 (noting that seperate facilities are likely to be unequal because prejudiced school authorities may be unwilling to provide resources to minority schools).
219. There is some evidence to suggest that the Brown I decision was in part a reaction to the Court's reluctance to involve itself in a seemingly endless inquiry into whether a particular set of circumstances was "equal." The cases that preceded Brown I, brought as part of the NAACP's legal offensive against Plessy's endorsement of race segregation, sought to test the limits of Plessy's sanction of "separate but equal." That is, if under Plessy, equal protection required separate but equal facilities, then if there were no equal or parallel facilities, the court would be required to order the state to act to rectify the inequality. See LOFGREN, supra note 173, at 201 (citing the use of Plessy "to complicate and make more costly the enforcement of race separation"). Although this approach appeared to be a litigation strategy within the framework of race segregation, in fact, the limits of the meaning of equality were being tested.
220. Brown v. Board of Educ. (Brown I), 347 U.S. 483, 495 (1954).
221. As Professor Bell notes ironically: [W]hile we spoke and thought in an atmosphere of 'rights and justice,' our opponents had their eyes on the economic benefits and power relationships all the time. And that difference in priorities meant that the price of black progress was benefits to the other side, benefits that tokenized our gains and sometimes strengthened the relative advantages whites held over us. BELL, supra note 31, at 108.
222. The underfunding of schools in Black districts continues, although no longer based on explicitly racial criteria. In part, these funding inequities are the result of property tax-based funding schemes for public schools that operate to the disadvantage of all poor students. But because of the convergence of housing and employment discrimination, and the lack of political power of poor school districts, Blacks disproportionately experience "the racist impact of less than equal funding to poor school districts." GERTRUDE EZORSKY, RACISM AND JUSTICE: THE CASE FOR AFFIRMATIVE ACTION 19 n.20 (1991); see JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS passim (1991) (exposing the two-tier system of educational funding that results in present-day segregated and unequal public school systems).
223. The underfunding of schools in Black districts continues, although no longer based on explicitly racial criteria. In part, these funding inequities are the result of property tax-based funding schemes for public schools that operate to the disadvantage of all poor students. But because of the convergence of housing and employment discrimination, and the lack of political power of poor school districts, Blacks disproportionately experience "the racist impact of less than equal funding to poor school districts." GERTRUDE EZORSKY, RACISM AND JUSTICE: THE CASE FOR AFFIRMATIVE ACTION 19 n.20 (1991); see JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS passim (1991) (exposing the two-tier system of educational funding that results in present-day segregated and unequal public school systems).
224. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1512 (1988). Tribe concludes that the Court's refusal to find a constitutional wrong that arises from regulations that have a racially discriminatory impact in the absence of discriminatory intent is a reservation about the institutional capacity of the Court to articulate a remedy, masquerading as a question about the existence of a constitutional violation. See id. at 1502-11 (discussing Washington v. Davis, 426 U.S. 229 (1976), in which the Court rejected an Equal Protection challenge to a screening test brought by unsuccessful Black applicants for police department positions because a discriminatory intent on the part of the department was not shown, see id. at 240). Tribe notes: The Supreme Court may be forgiven for being taken aback by [the] prospect [of becoming deeply involved in the operation of local government]; the institutional concerns about such a role for the judiciary are serious and legitimate. But the Court may not be forgiven for the way it has elided the problem rather than facing up to it. The proper course would have been to confront the remedial challenge head on: either grit the teeth and get to work fixing the inequality, no matter what it takes, or swallow hard and acknowledge that the constitutional wrong cannot be judicially put right. . . . [When the Court does neither] . . . the actual circumstances of racial disadvantage - unemployment, inadequate education, poverty, and political powerlessness - are to be regarded as mere unfortunate conditions, not as consequences of racial discrimination. Those conditions are then readily rationalized . . . . Id. at 1512 (footnotes omitted).
225. Brown v. Board of Educ. (Brown II), 349 U.S. 294 (1955).
226. Id. at 301.
227. The aftermath of Brown I and thirty years of school desegregation litigation demonstrates that Brown's assumption that pupil integration would eliminate racial separation overlooked the critical issue of power and the influence of facially-neutral government policies on the success of desegregation. Desegregated schools are rare, particularly in the urban context, because patterns of residential segregation - fostered by private lending and construction practices and public land use and development policy - gradually became greater determinants of de facto racial segregation in schools than any explicit, racially discriminatory student assignment policies. Integration of public school systems became even less attainable by reason of the physical exodus of white students and their families from school districts that were under a mandate to desegregate See Bell, supra note 195, at 518.
228. In "Chronicle of the Sacrificed Black Schoolchildren," a chapter in Derrick Bell's 1987 book And We Are Not Saved, BELL, supra note 31, Geneva Crenshaw, the storyteller who illuminates many contradictions in existing doctrine pertaining to race and rights, chides Professor Bell for not advocating a better desegregation policy: For example - if we recognize that the real motivation for segregation was white domination of public education - suppose the Court had issued the following orders: 1. Even though we encourage voluntary desegregation, we will not order racially integrated assignments of students or staff for ten years. 2. Even though "separate but equal" no longer meets the constitutional equal-protection standard, we will require immediate equalization of all facilities and resources. 3. Blacks must be represented on school boards and other policy-making bodies in proportions equal to those of black students in each school district. The third point would have been intended to give Blacks meaningful access to decision-making - a prerequisite to full equality still unattained in many predominately Black school systems. BELL, supra note 31, at 112.
229. "The Supreme Court endorsed a formula of gradual desegregation that provided the opportunity for massive resistance in the Deep South and for token desegregation elsewhere." Tushnet, supra note 195, at 1867. Following Brown, from the late 1950s through the mid1960s, white opposition to school integration was fierce and often violent. Notwithstanding the existence of court orders mandating the admission of Black students and the presence of federal marshals, state governors stood in the doorways of state universities to obstruct school desegregation. Public school systems in the South shut down rather than admit Black students. Students and their families were terrorized and beaten. See, e.g., United States v. Farrar, 414 F. 2d 936, 939-42 (5th Cir. 1969); United States v. Crenshaw County Unit of The United Klans of Am., 290 F. Supp. 181, 183 (M.D. Ala. 1968); Bullock v. United States, 265 F.2d 683, 688 (6th Cir.), cert. denied, 360 U.S. 909 (1959).
230. Robert L. Carter, The Warren Court and Desegregation, 67 MICH. L. REV. 237, 243 (1968).
231. As this delay in implementing school desegregation stretched over the years, the Court grew increasingly impatient with the subterfuge and insubordination of school officials. See e.g., Bradley v. School Bd., 382 U.S. 103, 105 (1965) (per curiam) ("Delays in desegregating school systems are no longer tolerable."); Griffin v. County Sch. Bd., 377 U.S. 218, 234 (1964) (announcing that "the time for mere 'deliberate speed' had run out"). However, by this time, the patterns of official segregation implemented through overt governmental action became less important than patterns of de facto segregation maintained by economics and governmental inaction. Hence, thirty-six years after Brown I and II, federal court intervention in local school systems has produced decidedly mixed results. There is a consensus among the white polity that, despite the fact that many school systems are as segregated now as they were when Brown I and II were decided, the federal courts do not have an unlimited license nor indeterminate time to achieve an unattainable goal, given the patterns of residential segregation. Recent Supreme Court decisions suggest that the mandate to desegregate with all deliberate speed is now read to require not only the school boards' implementation of integration, but also a temporal constraint on the federal courts' efforts to ensure integration as well. In Board of Educ. v. Dowell, 111 S. Ct. 630 (1991), the Court considered a challenge brought by the Oklahoma City School Board to the continuation of an injunction imposed in a school desegregation case. The majority opinion criticized the lower court's application of a standard for modifying or dissolving an injunction as too strict because it "would condemn a school district, once governed by a board which intentionally discriminated, to judicial tutelage for the indefinite future," a result not required by the Equal Protection Clause. Id. at 638.
232. Although the Court insisted that the purpose of implementing the remedy "with all deliberate speed" was to permit preparation for necessary administrative changes, examination of the historical record clearly indicates that the purpose of the formula was to allow "compliance on terms that the white South could accept." Carter, supra note 210, at 243.
233. 418 U.S. 717 (1974).
234. See id. at 745.
235. Id. at 746.
236. See id. at 724.
237. See id. at 746-47. As Justice Douglas's dissent notes, the "decision . . . means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only 'separate' but 'inferior.'" Id. at 761 (Douglas, J., dissenting).
238. See id. at 746-47.
239. See Bell, supra note 195, at 524-25.
240. 221 See Letter from Leland Ware, Professor of Law, St. Louis University School of Law, to Cheryl I. Harris, Assistant Professor of Law, Chicago-Kent College of Law 4 (Mar. 23, 1992) (on file at the Harvard Law School Library) [hereinafter Ware, Letter].
241. HACKER, supra note 155, at 29. Andrew Hacker says that given the fierceness of competition in American society, white America cannot guarantee full security to every member of its own race. Still, while some of its members may fail, there is a limit to how far they can fall. . . . [N]o matter to what depths one descends, no white person can ever become black. As James Baldwin has pointed out, white people need the presence of black people as a reminder of what providence has spared them from becoming. Id. at 29-30.
242. HACKER, supra note 155.
243. Id. at 32. Hacker reports these results from white students who were
244. See Crenshaw, supra note 3, at 1381.
245. Id.; see ROEDIGER, supra note 19, at 5 (describing the significance of whiteness to white workers). This argument is not to suggest that poverty does not exist among whites. It is evident, however, that poverty is not proportionately represented across all racial groups. Blacks are and have been disproportionately affected by poverty and all its attendant social ills, such as inadequate housing, health care, and education. The relative advantage accorded to whites because of white supremacy is what I am identifying as a core component of "whiteness." This advantage does not mean that no whites will be poor, but that the poor will be disproportionately Black. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, SERIES P-60, No. 181, POVERTY IN THE UNITED STATES: 1991, at X (1992) [hereinafter CENSUS] (reporting that the poverty rate of whites, Blacks, Asians, and Hispanics is 11.3%, 32.7%, 13.8%, and 28.7%, respectively).
246. These benefits may be difficult to discern, yet they often remain crucial. Albert Memmi's classic indictment of French colonialism in pre-independence Algeria offers invaluable insight into the benefits of racism to the working or lower class, notwithstanding the nearly equivalent positions of need of lower class whites and Blacks. He suggests that the problem is not merely gullibility or illusion: If the small colonizer defends the colonial system so vigorously, it is because he benefits from it to some extent. His gullibility lies in the fact that to protect his very limited interests, he protects other infinitely more important ones, of which he is, incidentally, the victim. But, though dupe and victim, he also gets his share. [P]rivilege is something relative. To different degrees every colonizer is privileged, at least comparatively so, ultimately to the detriment of the colonized. If the privileges of the masters of colonization are striking, the lesser privileges of the small colonizer, even the smallest, are very numerous. Every act of his daily life places him in a relationship with the colonized, and with each act his fundamental advantage is demonstrated. . . . From the time of his birth, he possesses a qualification independent of his personal merits or his actual class. ALBERT MEMMI, THE COLONIZER AND THE COLONIZED 11-12 (Howard Greenfield trans. 1965).
247. Social scientists have noted this phenomenon as part of the social dynamic of the white working class for some time: It is through differential access to social institutions and political power that the bourgeoisie binds white workers to it in "whiteness." . . . [T]o the extent that white workers identify with "whiteness," "a central component of Anglo-American bourgeois consciousness . . . ," and not with their proletarian status as workers, they will remain supporters and defenders of relative privileges for whites as extended by capital. Hermon George, Jr., Black America, the "Underclass" and the Subordination Process, BLACK SCHOLAR, May/June 1988, at 44, 49-50 (quoting ROXANNE MITCHELL & FRANK WEISS A HOUSE DIVIDED: LABOR AND WHITE SUPREMACY 84 (1981)).
248. Social scientists have noted this phenomenon as part of the social dynamic of the white working class for some time: It is through differential access to social institutions and political power that the bourgeoisie binds white workers to it in "whiteness." . . . [T]o the extent that white workers identify with "whiteness," "a central component of Anglo-American bourgeois consciousness . . . ," and not with their proletarian status as workers, they will remain supporters and defenders of relative privileges for whites as extended by capital. Hermon George, Jr., Black America, the "Underclass" and the Subordination Process, BLACK SCHOLAR, May/June 1988, at 44, 49-50 (quoting ROXANNE MITCHELL & FRANK WEISS A HOUSE DIVIDED: LABOR AND WHITE SUPREMACY 84 (1981)).
249. Roediger describes this phenomenon as the "white problem." ROEDIGER, supra note 19, at 6.
250. "Racial identities are not only black, Latino, Asian, Native American, and so on; they are also white. To ignore white ethnicity is to redouble its hegemony by naturalizing it." bell hooks, Representing Whiteness: Seeing Wings of Desire, ZETA, Mar. 1989, at 39 (citation omitted).
251. "Notably in the context of the affirmative action debate, some philosophers and policymakers even refuse to acknowledge the reality of social groups, a denial that often reinforces group oppressions." IRIS M. YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 9 (1990).
252. According to Aviam Soifer, in many ways, particularly as it pertains to racial subordination, the Supreme Court has decided that history has stopped. See Aviam Soifer, On Being Overly Discrete and Insular: Involuntary Groups and the Anglo-American Judicial Tradition, 48 WASH. & LEE L. REV. 381, passim (1991).
253. See William B. Reynolds, Individualism vs. Group Rights: The Legacy of Brown, 93 YALE L.J. 983, 984 (1984) (citing the remarks of Professor Chester Finn that civil rights "inhere in individuals, not in groups"). As Fiss notes, the strong appeal of the antidiscrimination principle as the mediating principle that informs the Equal Protection Clause is grounded in its tie to individualism, "yield[ing] a highly individualized conception of rights." Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 127 (1976). Thus, it is the individual who lays claim to constitutionally protected rights. See id.
254. See LOCKE, supra note 46, at 154-64; see also Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 DUKE L.J. 507, 514 (1991) (noting that Locke based the right of protection "on the consent of free individuals to enter society and establish government for the preservation of their natural rights").
255. See Fiss, supra note 233, at 123 (1976) (noting that "the antidiscrimination principle would seem individualistic in a negative sense - it is not in any way dependent on a recognition of social classes or groups," although he argues that "the recognition and protection of social groups may be required to determine which state purposes are legitimate . . .").
256. "Political philosophy typically has no place for a specific concept of the social group." YOUNG, supra note 231, at 43. Many scholars have vigorously opposed this notion. See, e.g., TRIBE, supra note 204, at 1514-21 (arguing that the appropriate view of constitutional guarantees of equal protection is that they are animated by an antisubjugation principle that requires that actions be evaluated not by the intent of the actors, but by the impact on members of protected groups); Burke Marshall, A Comment on the Non-discrimination Principle in a "Nation of Minorities," 93 YALE L.J. 1006, 1006 (1984) (arguing that discrimination and subordination were imposed not against individuals, but against a people, so that the remedy "has to correct and cure and compensate for the discrimination against the people and not just the discrimination against the identifiable persons"). Although the existence and definition of a social group is complex, it is possible to articulate a coherent concept of a social group. For example, Iris Marion Young defines a social group as a collective of persons differentiated from at least one other group by cultural forms, practices, or way of life. . . . Groups are an expression of social relations; a group exists only in relation to at least one other group. Group identification arises . . . in the encounter and interaction between social collectivities that experience some differences in their way of life and forms of association, even if they also regard themselves as belonging to the same society. YOUNG, supra note 231, at 43. However, groups do not have "substantive essence." Id. at 47. Rather, they are "cross-cutting, fluid, and shifting." Id. at 48.
257. Martha Minow, Identities, 3 YALE J.L. & HUMAN. 97, 97, 128 (1991).
258. Id. at 97.
259. In the modern South African context, evolution of the terms "Black" and "African" illustrate the possible interplay between definitions of identity and liberation. A central feature of apartheid law was the Population Registration Act that empowered the Ministry of the Interior to register the entire South African population, to classify each individual as a "white," "coloured," or "Black." Population Registration Act No. 30 of 1950, § 1(1) (as amended by Population Registration Act No. 106 of 1969, § 1(a) (S. Afr.)). The definition, based on criteria such as appearance, social acceptance, and descent, produced predictably freakish and contradictory results, with siblings and parents being classified differently. See STUDY COMM'N ON U.S. POLICY TOWARD SOUTHERN AFRICA, SOUTH AFRICA: TIME RUNNING OUT 48-49 (1981) [hereinafter TIME RUNNING OUT]. In opposition to the categories propounded by the regime, during the 19705 different definitions of race emerged in the context of the struggle against the apartheid regime. "Black" was defined by the Black Consciousness Movement, led by Steven Biko, to mean "[a]ll those people who by law or tradition have been politically, socially or economically exploited against [sic] as a group in South African Society and who identify themselves as a unit in the struggle for liberation." Ziyad Motala, The Re-definition of "Black" in the South African Liberation Struggle 6 (unpublished manuscript, on file at the Harvard Law School Library); see TIME RUNNING OUT, supra, at 177. Sometime, too, in the 1960s or 1970s, the African National Congress, the oldest and largest organized manifestation of the liberation movement, began using the term "African" for all those persons not of European origin. The word "African" thus subsumed the official categories of Bantu, Coloureds, and Indians. Subsequent references to Coloureds often appeared as "socalled 'Coloureds.'" See IMMANUEL WALLERSTEIN, The Construction of Peoplehood, in RACE NATION AND CLASS: AMBIGUOUS IDENTITIES 71, 72-73 (Etienne Balibar & Immanuel Wallerstein eds., 1991). This comparison reveals the rich, complex, and ultimately organic nature of group self-identity. Both the alternative usage of "Black" and "African" are fed by the impulse of oppressed people to deny legitimacy to categories propounded by their oppressors. It is the rejection of the right to control definitions of self and group identity. Thus, neither of these redefinitions situate around the axis of biological referents inherent in apartheid legislation. Instead, they implicitly or explicitly substitute the experience of oppression as the principal criterion and confront the problem of domination and subordination. In contrast to government-imposed classifications, these definitions are propounded by people exploited by apartheid, are arrived at through struggle, and are put forward to actively resist the source of their oppression, thus addressing the critical definitional issues of who, how, and why.
260. In the modern South African context, evolution of the terms "Black" and "African" illustrate the possible interplay between definitions of identity and liberation. A central feature of apartheid law was the Population Registration Act that empowered the Ministry of the Interior to register the entire South African population, to classify each individual as a "white," "coloured," or "Black." Population Registration Act No. 30 of 1950, § 1(1) (as amended by Population Registration Act No. 106 of 1969, § 1(a) (S. Afr.)). The definition, based on criteria such as appearance, social acceptance, and descent, produced predictably freakish and contradictory results, with siblings and parents being classified differently. See STUDY COMM'N ON U.S. POLICY TOWARD SOUTHERN AFRICA, SOUTH AFRICA: TIME RUNNING OUT 48-49 (1981) [hereinafter TIME RUNNING OUT]. In opposition to the categories propounded by the regime, during the 19705 different definitions of race emerged in the context of the struggle against the apartheid regime. "Black" was defined by the Black Consciousness Movement, led by Steven Biko, to mean "[a]ll those people who by law or tradition have been politically, socially or economically exploited against [sic] as a group in South African Society and who identify themselves as a unit in the struggle for liberation." Ziyad Motala, The Re-definition of "Black" in the South African Liberation Struggle 6 (unpublished manuscript, on file at the Harvard Law School Library); see TIME RUNNING OUT, supra, at 177. Sometime, too, in the 1960s or 1970s, the African National Congress, the oldest and largest organized manifestation of the liberation movement, began using the term "African" for all those persons not of European origin. The word "African" thus subsumed the official categories of Bantu, Coloureds, and Indians. Subsequent references to Coloureds often appeared as "socalled 'Coloureds.'" See IMMANUEL WALLERSTEIN, The Construction of Peoplehood, in RACE NATION AND CLASS: AMBIGUOUS IDENTITIES 71, 72-73 (Etienne Balibar & Immanuel Wallerstein eds., 1991). This comparison reveals the rich, complex, and ultimately organic nature of group self-identity. Both the alternative usage of "Black" and "African" are fed by the impulse of oppressed people to deny legitimacy to categories propounded by their oppressors. It is the rejection of the right to control definitions of self and group identity. Thus, neither of these redefinitions situate around the axis of biological referents inherent in apartheid legislation. Instead, they implicitly or explicitly substitute the experience of oppression as the principal criterion and confront the problem of domination and subordination. In contrast to government-imposed classifications, these definitions are propounded by people exploited by apartheid, are arrived at through struggle, and are put forward to actively resist the source of their oppression, thus addressing the critical definitional issues of who, how, and why.
261. As Martha Minow notes: If lawyers and judges treat identity as something discoverable rather than forged or invented, they hide the latitude for choice and struggle over identity. At the same time they exercise their own power to make those choices . . . . The use of a specific notion of identity to resolve a legal dispute can obscure the complexity of lived experiences while imposing the force of the state behind the selected notion of identity. Minow, supra note 237, at 111.
262. Gerald Torres and Kathryn Milun offer a sensitive interpretation of the case as an exploration of the problems of meaning, telling, and legal translation within a context of white domination and Native American subordination. See Gerald Torres & Kathryn Milun, Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case, 1990 DUKE L.J. 625, passim.
263. 447 F. Supp. 940 (D. Mass. 1978).
264. See id. at 946.
265. See id. at 943.
266. See id. at 949.
267. Montoya v. United States, 180 U.S. 261, 266 (1901); accord Mashpee v. New Seabury Corp., 427 F. Supp. 899, 902 (Mass. 1977).
268. See Mashpee, 447 F. Supp. at 950.
269. See Torres & Milun, supra note 241, at 634-35 & n.31.
270. See id. at 638-39. It was not the facts but the meaning of the facts that was contested. See id. at 641. A meaning was constructed in which the Mashpees had no voice. Torres and Milun say; "The tragedy of power was manifest in the legally mute and invisible culture of those Mashpee Indians who stood before the court trying to prove that they existed." Id. at 649.
271. See Minow, supra note 237, at 114.
272. Torres & Milun, supra note 241, at 655.
273. These privileges were the motivating forces behind my grandmother's decision to "pass." See supra pp. 1710-12.
274. Here again Memmi describes one of the possible responses of an oppressed people - the "colonized" in Memmi's context - that is strikingly similar to what has been described in the U.S. context as passing: The first attempt of the colonized is to change his condition by changing his skin. There is a tempting model very close at hand - the colonizer. The latter suffers from none of his deficiencies, has all rights, enjoys every possession and benefits from every prestige. . . . The first ambition of the colonized is to become equal to that splendid model and to resemble him to the point of disappearing into him. MEMMI, supra note 227, at 120. The American edition of this book is dedicated to "the American Negro, also colonized." Id. at v.
275. As Torres and Milun note, "[t]hat interpretation [of adaptation as surrender of identity] incorporates a dominant motif in the theory and practice of modern American pluralism. Ethnic distinctiveness often must be sacrificed in exchange for social and economic security." Torres & Milun, supra note 241, at 651 (footnote omitted).
276. See Plessy v. Ferguson, 163 U.S. 537, 552 (1896).
277. See id. at 552.
278. 438 U.S. 265 (1978).
279. 488 U.S. 469 (1989).
280. 467 U.S. 267 (1986).
281. Hacker says that affirmative action has become "an epithet for our time." HACKER, supra note 155, at 118. The debate in the legal arena has been active. Compare Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 25 (arguing that all racial preferences should be held invalid per se) and Antonin Scalia, The Disease as Cure, 1979 WASH. U. L.Q. 147, 153-54 (1979) ("[Affirmative action] is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need[; thus it] is racist. ") with WILLIAMS, The Obliging Shell, in ALCHEMY OF RACE AND RIGHTS, supra note 5, at 121 ("[A]ffirmative action is an affirmation; the affirmative act of hiring - or hearing - blacks is a recognition of individuality that includes blacks as a social presence. . . . It is an act of verification and vision, an act of social as well as professional responsibility.") and Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L.J. 705, 705, 707 (arguing for affirmative action in law schools in order to respect the "democratic principle that people should be represented in institutions that have power over their lives," and for the inclusion of minority scholars in order to "improve the quality and increase the social value of legal scholarship").
282. Hacker says that affirmative action has become "an epithet for our time." HACKER, supra note 155, at 118. The debate in the legal arena has been active. Compare Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 25 (arguing that all racial preferences should be held invalid per se) and Antonin Scalia, The Disease as Cure, 1979 WASH. U. L.Q. 147, 153-54 (1979) ("[Affirmative action] is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need[; thus it] is racist. ") with WILLIAMS, The Obliging Shell, in ALCHEMY OF RACE AND RIGHTS, supra note 5, at 121 ("[A]ffirmative action is an affirmation; the affirmative act of hiring - or hearing - blacks is a recognition of individuality that includes blacks as a social presence. . . . It is an act of verification and vision, an act of social as well as professional responsibility.") and Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L.J. 705, 705, 707 (arguing for affirmative action in law schools in order to respect the "democratic principle that people should be represented in institutions that have power over their lives," and for the inclusion of minority scholars in order to "improve the quality and increase the social value of legal scholarship").
283. Hacker says that affirmative action has become "an epithet for our time." HACKER, supra note 155, at 118. The debate in the legal arena has been active. Compare Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 25 (arguing that all racial preferences should be held invalid per se) and Antonin Scalia, The Disease as Cure, 1979 WASH. U. L.Q. 147, 153-54 (1979) ("[Affirmative action] is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need[; thus it] is racist. ") with WILLIAMS, The Obliging Shell, in ALCHEMY OF RACE AND RIGHTS, supra note 5, at 121 ("[A]ffirmative action is an affirmation; the affirmative act of hiring - or hearing - blacks is a recognition of individuality that includes blacks as a social presence. . . . It is an act of verification and vision, an act of social as well as professional responsibility.") and Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L.J. 705, 705, 707 (arguing for affirmative action in law schools in order to respect the "democratic principle that people should be represented in institutions that have power over their lives," and for the inclusion of minority scholars in order to "improve the quality and increase the social value of legal scholarship").
284. Hacker says that affirmative action has become "an epithet for our time." HACKER, supra note 155, at 118. The debate in the legal arena has been active. Compare Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 25 (arguing that all racial preferences should be held invalid per se) and Antonin Scalia, The Disease as Cure, 1979 WASH. U. L.Q. 147, 153-54 (1979) ("[Affirmative action] is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need[; thus it] is racist. ") with WILLIAMS, The Obliging Shell, in ALCHEMY OF RACE AND RIGHTS, supra note 5, at 121 ("[A]ffirmative action is an affirmation; the affirmative act of hiring - or hearing - blacks is a recognition of individuality that includes blacks as a social presence. . . . It is an act of verification and vision, an act of social as well as professional responsibility.") and Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L.J. 705, 705, 707 (arguing for affirmative action in law schools in order to respect the "democratic principle that people should be represented in institutions that have power over their lives," and for the inclusion of minority scholars in order to "improve the quality and increase the social value of legal scholarship").
285. Hacker cites the campaign of Jesse Helms of North Carolina as another instance of the deployment of political rhetoric to "remind white people how much they have invested in maintaining the status of their race." HACKER, supra note 155, at 203. The Helms campaign commercial displayed a white working class man tearing up a rejection letter while the voiceover said, "You needed that job, and you were the best qualified. . . . But it had to go to a minority because of a racial quota." Id. at 202. See generally THOMAS B. EDSALL & MARY D. EDSALL, CHAIN REACTION 172-97 (1991) (describing how the Republican Party refocused the anger of the white working classes away from their declining economic position by indicting the Democratic Party's pandering to "black" concerns at the expense of the rights of whites).
286. See, e.g., Billish v. City of Chicago, 962 F.2d 1269, 1272-73 (7th Cir. 1992); Baker v. Elmwood Distrib. Inc., 940 F.2d 1013, 1015 (7th Cir. 1991); United States v. City of Chicago, 870 F.2d 1256, 1257-58 (7th Cir. 1989).
287. The «innocent persons" argument is at the heart of the legal and social dispute over affirmative action. See RONALD J. FISCUS, THE CONSTITUTIONAL LOGIC OF AFFIRMATIVE ACTION 7 (Stephen L. Wasby ed., 1992). This argument is considered in greater depth below in Part IV at pages 1779-84.
288. See Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 895 (1987). The Brown decision was criticized for not being "neutral" because the existing distribution of power and resources between Blacks and whites was taken by the courts as simply "there" - the base line from which all actions should be measured. All subsequent departures from the status quo were then "preferences," or violations of neutrality. Sunstein argues that the status quo's distribution of wealth and power is in fact a product of state action and law through the assignment of entitlements and the creation of property rules. See id.
289. Modern formulations of race have shed notions of inherited inferiority linked to race and have substituted a conception of race that Gotanda describes as "formal-race" - in which "Black and white are seen as neutral apolitical descriptions reflecting merely 'skin color' or country of ancestral origin . . . unrelated to ability, disadvantage, or moral culpability . . . [and] unconnected to social attributes such as culture, education, wealth or language." Gotanda, supra note 24, at 4.
290. Gotanda notes that the current discourse of colorblindness assumes that nonrecognition of race is possible and desirable. He argues, however, that nonrecognition "fosters systematic denial of racial subordination and the psychological repression of an individual's recognition "' that subordination, thereby allowing such subordination to continue." Id. at 16.
291. See id. at 1-2. Gotanda provides an extended discussion of the modern application of "formal race" through the doctrine of colorblindness and illustrates the severe deficiencies of color-blind analysis. See id. at 40-52.
292. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 277-78 (1978).
293. 269 See id. at 276-78.
294. See id. at 271.
295. See id. at 290-98.
296. See id. at 310.
297. See id. at 319-20.
298. See id. at 277 & n.7.
299. In order to establish a violation of the Equal Protection Clause, Bakke should have had to demonstrate that he would have been admitted but for the special admissions program. The only facts in the record upon which Justice Powell seems to have relied upon were that Bakke was rejected in two successive years, although on each occasion students who ranked significantly lower, according to the criteria used to evaluate candidates, were admitted through the special admissions program. See id. at 276-77 & n.7. Although this analysis compared Bakke's credentials with those of the students admitted through the special admissions program, equally probative is a comparison of Bakke's test scores and GPA with those of all other students admitted and rejected. If white applicants with lower scores than Bakke's were admitted, it could not fairly be said that Bakke was denied admission because of his race. In fact, both white and Black applicants with credentials lower than Bakke's were admitted. See JOEL DREYFUSS & CHARLES LAWRENCE III, THE BAKKE CASE: THE POLITICS OF INEQUALITY 112-13 (1979). This fact illustrates the inherently discretionary nature of all admissions processes, which are rarely, if ever, tied to purely mathematical formulae. Although race was undeniably a factor in favor of the minority applicants, that does not demonstrate that race was the reason why Bakke was rejected. Instead, the Court held that Bakke should be admitted because the school conceded that it could not carry its burden of proving that "but for the existence of its unlawful special admissions program, [Bakke] still would not have been admitted." Bakke, 438 U.S. at 320. This concession by the university was only one of many and was part of a patter of serious omissions in its defense of the case. See DREYFUSS & LAWRENCE, supra, at 32.
300. See Ronald Dworkin, Why Bakke Has No Case, N.Y. REV. BOOKS, Nov. 10, 1977, at 11, 13-14.
301. th Cir. 1972), cert, denied, 409 U.S. 1013; DERRICK BELL, RACE, RACISM AND AMERICAN LAW 601 (3d ed. 1992) (noting that, with regard to the use of testing in primary and secondary education, "[i]t is no coincidence that the interest in grouping students by ability resurfaced only in the mid-1950s, at the same time that desegregation was gaining momentum"). Indeed, Griggs v. Duke Power Co., 401 U.S. 424 (1971), demonstrates the correlation between increased reliance on testing and increased demands for integration. In Griggs, the employer's policy of requiring a high school diploma as a condition of transfer to higher ranked positions in the operating departments coincided with the company's abandonment of its policy of excluding Blacks from those departments. See id. at 427. On the date that Title VII's antidiscrimination provisions became effective, the company imposed the additional requirement of successful performance on two aptitude tests, see id., neither of which was designed "to measure the ability to learn to perform a particular job or category of jobs," id. at 428. Rejecting the employer's claim that the use of the tests was not prohibited by Title VII because the employer lacked the intent to discriminate, see id. at 432, the Court held that, if an employment practice in fact has discriminatory impact, it can be justified only by business necessity - a showing of a relationship between the requirement and the job in question, see id. at 431; see also Stamps v. Detroit Edison, 365 F. Supp. 87, 115 (E.D. Mich. 1973) (holding that "[i]t is indisputable that Detroit Edison had used its written examinations to 'freeze the status quo' of past discrimination and that such has resulted in a differential impact upon the races"). For a history of the LSAT as a tool developed to respond to the high attrition rates of law students during the period of open admissions, when competence to perform in law school was measured by actual performance, not as a device to determine who should gain admission, see THE MEXICAN AMERICAN LEGAL DEFENSE FUND (MALDEF) LAW SCHOOL ADMISSIONS STUDY 16-24 (1980), cited in Portia Y.T. Hamlar, Minority Tokenism in American Law Schools, 26 How. L. J. 443, 495-97 (1983). See also David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admissions Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION 66, 81-93 (David M. White ed., 1981) (reviewing the accuracy of the LSAT as a predictor of law school grades).
302. th Cir. 1972), cert, denied, 409 U.S. 1013; DERRICK BELL, RACE, RACISM AND AMERICAN LAW 601 (3d ed. 1992) (noting that, with regard to the use of testing in primary and secondary education, "[i]t is no coincidence that the interest in grouping students by ability resurfaced only in the mid-1950s, at the same time that desegregation was gaining momentum"). Indeed, Griggs v. Duke Power Co., 401 U.S. 424 (1971), demonstrates the correlation between increased reliance on testing and increased demands for integration. In Griggs, the employer's policy of requiring a high school diploma as a condition of transfer to higher ranked positions in the operating departments coincided with the company's abandonment of its policy of excluding Blacks from those departments. See id. at 427. On the date that Title VII's antidiscrimination provisions became effective, the company imposed the additional requirement of successful performance on two aptitude tests, see id., neither of which was designed "to measure the ability to learn to perform a particular job or category of jobs," id. at 428. Rejecting the employer's claim that the use of the tests was not prohibited by Title VII because the employer lacked the intent to discriminate, see id. at 432, the Court held that, if an employment practice in fact has discriminatory impact, it can be justified only by business necessity - a showing of a relationship between the requirement and the job in question, see id. at 431; see also Stamps v. Detroit Edison, 365 F. Supp. 87, 115 (E.D. Mich. 1973) (holding that "[i]t is indisputable that Detroit Edison had used its written examinations to 'freeze the status quo' of past discrimination and that such has resulted in a differential impact upon the races"). For a history of the LSAT as a tool developed to respond to the high attrition rates of law students during the period of open admissions, when competence to perform in law school was measured by actual performance, not as a device to determine who should gain admission, see THE MEXICAN AMERICAN LEGAL DEFENSE FUND (MALDEF) LAW SCHOOL ADMISSIONS STUDY 16-24 (1980), cited in Portia Y.T. Hamlar, Minority Tokenism in American Law Schools, 26 How. L. J. 443, 495-97 (1983). See also David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admissions Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION 66, 81-93 (David M. White ed., 1981) (reviewing the accuracy of the LSAT as a predictor of law school grades).
303. th Cir. 1972), cert, denied, 409 U.S. 1013; DERRICK BELL, RACE, RACISM AND AMERICAN LAW 601 (3d ed. 1992) (noting that, with regard to the use of testing in primary and secondary education, "[i]t is no coincidence that the interest in grouping students by ability resurfaced only in the mid-1950s, at the same time that desegregation was gaining momentum"). Indeed, Griggs v. Duke Power Co., 401 U.S. 424 (1971), demonstrates the correlation between increased reliance on testing and increased demands for integration. In Griggs, the employer's policy of requiring a high school diploma as a condition of transfer to higher ranked positions in the operating departments coincided with the company's abandonment of its policy of excluding Blacks from those departments. See id. at 427. On the date that Title VII's antidiscrimination provisions became effective, the company imposed the additional requirement of successful performance on two aptitude tests, see id., neither of which was designed "to measure the ability to learn to perform a particular job or category of jobs," id. at 428. Rejecting the employer's claim that the use of the tests was not prohibited by Title VII because the employer lacked the intent to discriminate, see id. at 432, the Court held that, if an employment practice in fact has discriminatory impact, it can be justified only by business necessity - a showing of a relationship between the requirement and the job in question, see id. at 431; see also Stamps v. Detroit Edison, 365 F. Supp. 87, 115 (E.D. Mich. 1973) (holding that "[i]t is indisputable that Detroit Edison had used its written examinations to 'freeze the status quo' of past discrimination and that such has resulted in a differential impact upon the races"). For a history of the LSAT as a tool developed to respond to the high attrition rates of law students during the period of open admissions, when competence to perform in law school was measured by actual performance, not as a device to determine who should gain admission, see THE MEXICAN AMERICAN LEGAL DEFENSE FUND (MALDEF) LAW SCHOOL ADMISSIONS STUDY 16-24 (1980), cited in Portia Y.T. Hamlar, Minority Tokenism in American Law Schools, 26 How. L. J. 443, 495-97 (1983). See also David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admissions Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION 66, 81-93 (David M. White ed., 1981) (reviewing the accuracy of the LSAT as a predictor of law school grades).
304. th Cir. 1972), cert, denied, 409 U.S. 1013; DERRICK BELL, RACE, RACISM AND AMERICAN LAW 601 (3d ed. 1992) (noting that, with regard to the use of testing in primary and secondary education, "[i]t is no coincidence that the interest in grouping students by ability resurfaced only in the mid-1950s, at the same time that desegregation was gaining momentum"). Indeed, Griggs v. Duke Power Co., 401 U.S. 424 (1971), demonstrates the correlation between increased reliance on testing and increased demands for integration. In Griggs, the employer's policy of requiring a high school diploma as a condition of transfer to higher ranked positions in the operating departments coincided with the company's abandonment of its policy of excluding Blacks from those departments. See id. at 427. On the date that Title VII's antidiscrimination provisions became effective, the company imposed the additional requirement of successful performance on two aptitude tests, see id., neither of which was designed "to measure the ability to learn to perform a particular job or category of jobs," id. at 428. Rejecting the employer's claim that the use of the tests was not prohibited by Title VII because the employer lacked the intent to discriminate, see id. at 432, the Court held that, if an employment practice in fact has discriminatory impact, it can be justified only by business necessity - a showing of a relationship between the requirement and the job in question, see id. at 431; see also Stamps v. Detroit Edison, 365 F. Supp. 87, 115 (E.D. Mich. 1973) (holding that "[i]t is indisputable that Detroit Edison had used its written examinations to 'freeze the status quo' of past discrimination and that such has resulted in a differential impact upon the races"). For a history of the LSAT as a tool developed to respond to the high attrition rates of law students during the period of open admissions, when competence to perform in law school was measured by actual performance, not as a device to determine who should gain admission, see THE MEXICAN AMERICAN LEGAL DEFENSE FUND (MALDEF) LAW SCHOOL ADMISSIONS STUDY 16-24 (1980), cited in Portia Y.T. Hamlar, Minority Tokenism in American Law Schools, 26 How. L. J. 443, 495-97 (1983). See also David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admissions Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION 66, 81-93 (David M. White ed., 1981) (reviewing the accuracy of the LSAT as a predictor of law school grades).
305. th Cir. 1972), cert, denied, 409 U.S. 1013; DERRICK BELL, RACE, RACISM AND AMERICAN LAW 601 (3d ed. 1992) (noting that, with regard to the use of testing in primary and secondary education, "[i]t is no coincidence that the interest in grouping students by ability resurfaced only in the mid-1950s, at the same time that desegregation was gaining momentum"). Indeed, Griggs v. Duke Power Co., 401 U.S. 424 (1971), demonstrates the correlation between increased reliance on testing and increased demands for integration. In Griggs, the employer's policy of requiring a high school diploma as a condition of transfer to higher ranked positions in the operating departments coincided with the company's abandonment of its policy of excluding Blacks from those departments. See id. at 427. On the date that Title VII's antidiscrimination provisions became effective, the company imposed the additional requirement of successful performance on two aptitude tests, see id., neither of which was designed "to measure the ability to learn to perform a particular job or category of jobs," id. at 428. Rejecting the employer's claim that the use of the tests was not prohibited by Title VII because the employer lacked the intent to discriminate, see id. at 432, the Court held that, if an employment practice in fact has discriminatory impact, it can be justified only by business necessity - a showing of a relationship between the requirement and the job in question, see id. at 431; see also Stamps v. Detroit Edison, 365 F. Supp. 87, 115 (E.D. Mich. 1973) (holding that "[i]t is indisputable that Detroit Edison had used its written examinations to 'freeze the status quo' of past discrimination and that such has resulted in a differential impact upon the races"). For a history of the LSAT as a tool developed to respond to the high attrition rates of law students during the period of open admissions, when competence to perform in law school was measured by actual performance, not as a device to determine who should gain admission, see THE MEXICAN AMERICAN LEGAL DEFENSE FUND (MALDEF) LAW SCHOOL ADMISSIONS STUDY 16-24 (1980), cited in Portia Y.T. Hamlar, Minority Tokenism in American Law Schools, 26 How. L. J. 443, 495-97 (1983). See also David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admissions Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION 66, 81-93 (David M. White ed., 1981) (reviewing the accuracy of the LSAT as a predictor of law school grades).
306. GOULD, supra note 147, at 23-25.
307. See EZORSKY, supra note 203, at 91. Although this program was later abandoned, see id. at 91 n.26, present data suggests that children of more affluent families continue to have a better chance of being accepted at elite institutions, see Graduates of Elite Schools Increasingly Getting Top Jobs, CHI. TRIB., Aug. 19, 1992, § 3, at 1 (citing economists' report on patterns of acceptance at elite institutions and high-paying employment that indicate that, in contrast to children of affluent families, "'middle-class students of equal ability are relegated to an education with significantly lower value'"). Harvard University continues to favor children of alumnae as forty percent of alumnae children were admitted compared with fourteen percent of those who did not have such connections. The difference is not justified by higher qualifications of "legacy" candidates over non-legacy candidates. See John Larew, Why Are Droves of Unqualified, Unprepared Kids Getting in Our Top Colleges? Because Their Dads Are Alumni, WASH. MONTHLY, June 1991, at 10.
308. See DREYFUSS & LAWRENCE, supra note 275, at 16.
309. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 485 (1989).
310. See id. at 494.
311. See id. at 479-80.
312. See id. at 477-78, 498-500. Another interesting feature of the Croson decision was the Court's hostility to the affirmative action set-aside program enacted by the Richmond City Council precisely because the City Council was predominantly Black. In the majority's view, the set-aside program was no more than a political spoils system in which Blacks were using their political power to appropriate economic resources. Blacks' actions to benefit themselves were deemed inappropriate and as illegitimate as similar action undertaken by whites. See id. at 495-96. The Court conveniently ignored the fact that history demonstrates that whites did implement such systems and that their current position of dominance is such a direct and successful product of it that "neutrality" is all that is now required for them to maintain control.
313. See id. at 488-506.
314. There is little to commend the notion that beneficiaries of historical wrongs are holders of inviolable rights or interests. The underlying premises of much of the law disputes such an assumption. For example, the family of an embezzler who occupies a house or possesses goods purchased with stolen funds is not considered to have a normatively secure claim to the goods merely because they did not actively perpetuate the wrong. See FISCUS, supra note 263, at 45 ("[P]ersonal guilt or innocence is irrelevant to the claim of right, as when a party innocently comes into possession of stolen goods; the claim on those goods by the rightful owner is not forfeited because of the innocence of the current possessor."); WILLIAMS, The Obliging Shell, in ALCHEMY OF RACE AND RIGHTS, supra note 5, at 101 ("If a thief steals so that his children may live in luxury and the law returns his ill-gotten gain to its rightful owner, the children cannot complain that they have been deprived of what they did not own.").
315. Linda Greene has described judicial solicitation for the "rights of whites," which is evident throughout American law and appears as a common theme in the Supreme Court's civil rights decisions during the 1988 Term. See Linda S. Greene, Race in the 21st Century: Equality Through Law?, 64 TUL. L. REV. 1515, 1533-38 (1990). Greene maintains that Croson protects the rights of whites "against both the economic aspirations of black contractors and the political effectiveness of black leaders and constituents." Id. at 1533. The case is thus situated in the modern trend of protecting white rights, not through explicit guarantees, but through counter-balancing Blacks' claims for equality against the "vested interest of white[s] . . . in maintaining the status quo." Id. at 1537.
316. The origin of the strict scrutiny standard is Korematsu v. United States, 323 U.S. 214 (1944), in which the Court reviewed the exclusion orders that shipped Japanese-Americans out of the western United States and interned them in camps, see id. at 216.
317. As noted by one author, there is tremendous irony in ascribing the same meaning to the differential treatment of whites and the discriminatory treatment of Blacks: Why does racial discrimination excite us when so many other kinds of discrimination do not? It is because of the way we interpret history, associating racial discrimination with practices that now appear self-evidently evil: forcing blacks from their homeland, enslaving blacks, lynching blacks for actions that among whites would not be criminal, intimidating blacks who sought to exercise their rights - in sum, systematically disadvantaging a people in almost every way that mattered. . . . A claim made by a white person as a member of the dominant majority draws its moral force largely from our collective horror at centuries of oppressing black people. It would be ironic indeed if evils visited on blacks had lent enough force to the moral claims of whites to prevent what appears to many at this point to be the most effective means of eliminating the legacy of those evils. Richard Lempert, The Force of Irony: On the Morality of Affirmative Action and United Steelworkers v. Weber, 95 ETHICS 86, 88-89 (1984).
318. See Wygant v. Jackson Bd. of Educ., 467 U.S. 267, 272-73 (1986).
319. See id. at 296 (Marshall, J., dissenting).
320. See id. at 283-84.
321. Singer, supra note 17, at 103.
322. Indeed, Frances Ansley suggests that, when one compares general worker protections with "white skin protection," it is evident that the courts are not in fact protecting workers but their whiteness. See Ansley, supra note 10, at 1068-69.
323. Frances Ansley identifies the origins of these expectations in segregation: [I]n the days of Jim Crow, white people who lived in that system had emotional, cultural and financial stakes in the continuation of a segregated way of life. Segregation had become a settled expectation that, for most whites, represented their "chosen" preference . . . From the point of view of blacks, these arrangements may have looked unjust and bizarre. Of course, the arrangements were unjust and bizarre. But they nevertheless clearly represented settled expectations, and to many ordinary white people these arrangements seemed natural and essential to their fundamental rights to private property and personal liberty. Id. at 1011 (citation omitted). She further describes the pattern of antidiscrimination cases beginning with Shelley v. Kraemer, 334 U.S. 1 (1948), and continuing through Brown II and the cases following the Civil Rights Act of 1964, to be embracing the rule that these expectations could not supersede the mandate of equality. See id. at 1011-13.
324. See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 334-50 (1979).
325. Neutrality, conceptualized as the "preservation of the existing distribution of wealth and entitlements," is required and maintained through means adjudged to be fair. Sunstein, supra note 264, at 875. It is Sunstein's argument that this notion of neutrality is so deeply embedded in the framework of American constitutionalism that, despite the fact that Lochner v. New York, 198 U.S. 45 (1905) - one of the major cases enshrining this particular definition of neutrality - has been overruled and severely criticized, the legacy of Lochner's assumptions about neutrality remain. See id. at 874-75. Neutrality also has its negative implications for Black self-definition that parallel the self-denial inherent in the phenomenon of passing. Patricia Williams describes several incidents in which Blacks shunned public identification as Blacks because of the perceived negative consequences. This phenomenon, Williams argues, is a product of a "tabooed sense of self" linked to requirements of neutrality. Thus, she states: Neutrality is from this perspective a suppression, an institutionalization of psychic taboos as much as segregation was the institutionalization of physical boundaries. What the middle-class, propertied, upwardly mobile black striver must do, to accommodate a raceneutral world view, is to become an invisible black, a phantom black, by avoiding the label "black" . . . . WILLIAMS, The Obliging Shell, in THE ALCHEMY OF RACE AND RIGHTS, supra note 5, at 98, 119. The de facto lack of neutrality and equality occurs as part of a partial integration in which "white" is still good, but some blacks "who are like whites" can be considered good. This is a form of neo-racism under which "equality and neutrality have become . . . constant and necessary companions, two sides of the same coin: 'equal . . .' has as its unspoken referent '. . . to whites'; 'neutral . . . ' has as it [sic] hidden subtext '. . . to concerns of color.'" Id. at 116.
326. According to Macpherson, this is the underlying assumption of a full market economy as "there is no measure of a man's merit other than what the market will award him." C. B. MACPHERSON, THE RISE AND FALL OF ECONOMIC JUSTICE AND OTHER PAPERS 9 (1985). Under these conditions, market value equals just value. See id.
327. Some critical scholars have argued that the goals of equal protection have never been fully implemented because allowing the claims of Blacks would disrupt the system. All people might then lay claim to equal conditions rather than equal opportunity, which is measured by definitions of merit that perpetuate class preferences. See, e.g., Freeman, supra note 197, at 112-14 (arguing that the retreat in antidiscrimination law is due to the fact that overturning Black subordination would lay siege to hallowed concepts central to the functioning of the existing order). However, Kimberlé Crenshaw cautions that we should not overlook the embedded nature of white supremacy that causes whites to be "unlikely to question the legitimacy" of the class structure, and instead more likely "to question the legitimacy of racial remedies that relied upon a suspension of these myths" of equal opportunity. Crenshaw writes that "whites were on the defensive, not
328. Matsuda suggests something beyond imagining the experience of oppression. Rather, she says that "[I]ooking to the bottom [involves] adopting the perspective of those who have seen and felt the falsity of the liberal promise." Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 324. This shift of perspective requires studying the actual experience of those groups that have suffered oppression and heeding the voice of that experience rather than considering this viewpoint in the abstract. See id. at 325.
329. History reveals that the racial oppression of Blacks has been both beneficial and harmful to white workers. Racial stratifications have often operated to weaken the capacity of organized labor to exert leverage in bargaining. Marginalized Black workers have worked in substandard conditions and for inadequate wages rejected by white laborers. Their work allows employers to resist demands for improved wages and conditions for all workers. See EZORSKY, supra note 203, at 83-84. However, the white working class has also benefited from Black subordination: [White workers] have been first in line for hiring, training, promotion, and desirable job assignments, but last in line for seniority-based layoffs. As white, they have also benefited from housing discrimination in areas where jobs could be had and from the racist impact of selection based on personal connections, seniority, and qualifications. Id. at 83.
330. FISCUS, supra note 263, at 8.
331. See id. Thus, according to Fiscus, if "the argument refers to past harms so great that their victims (or, more likely, their victims' descendants) deserve to be compensated," it is a compensatory justice claim. Alternatively, if it refers "to past harms that have continuing, disabling effects," then, Fiscus argues, it really is a distributive justice claim. Id. at 8-9. In contrast to remedies imposed for rectifying a retroactive compensatory justice claim, affirmative action applies when a past injustice has continuing effects and the distributive claim, situated in present, has "subsumed or incorporated the compensation claim." Id. at 9.
332. For the contrasting view, rejecting distributive justice as a basis for affirmative action, Thomas Nagel, Equal Protection and Compensatory Discrimination, 2 PHIL. & PUB. AFF. 348, 359 (1973). Nagel argues that preferential policies for minorities can be justified only on the basis of social utility, not on the basis of distributive justice, because distributive justice arguments are difficult to construct without the aid of premises on the source of unequal qualifications between different groups. See id. at 350-51.
333. FISCUS, supra note 263, at 9.
334. See id. at 9-10.
335. See id. at 5.
336. See id. at 4-5.
337. See Ansley, supra note 10, at 1005 (describing the "innocent victim" as "the most harrowing and publicly-debated issue in affirmative action").
338. See generally Kathleen M. Sullivan, The Supreme Court, 1985 Term - Comment: Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 80 (1986) (arguing that the Supreme Court's approach of only approving affirmative action plans when designed to rectify past "sins of racism" has "invited claims . . . [that] white workers 'innocent' of their bosses' or union leadership's past discrimination . . . should not pay for the sins of others of their own race'"). Thus, when the Court invokes legal protections for the interests of innocent whites, affirmative action claims are conceptualized as problems of corrective justice, inevitably to the detriment of the claim of any Black aspirant. If affirmative action is cast as a bipolar corrective justice claim between a Black aspirant and a white applicant or incumbent, then denying relief to the Black aspirant logically follows. Although the claim for compensation for unjust loss may be valid, the white applicant or incumbent is innocent of the historical wrong for which the Black aspirant seeks relief and therefore should not be forced to yield position. Alternatively, when a white aspirant or incumbent lays a claim of reverse discrimination, he is asserting another type of corrective justice argument. He argues that he has been caused unjust harm by the affirmative action program that has displaced white expectations of a secured position in favor of the Black applicant. In this scenario, it is the white aspirant or incumbent who has suffered unjust loss and, under a corrective justice model, is the central focus of the rights debate and rectification question.
339. This tendency for the employer to fade into the background is exemplified by Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). The discriminatory hiring practices of the Jackson, Michigan School Board that had led to gross racial imbalance among teachers were not the central concerns of the Wygant plurality opinions. Indeed, Justice Marshall's dissent notes that the decision in the case was impaired by a record that was "informal[,] incomplete," and "inadequate to inform the Court's decision," leading to a failure to appreciate the factual basis for the imposition of affirmative action in the first instance. Id. at 295-96 (Marshall, J., dissenting). Instead, the discourse focused on whether it was fair to override the seniority interests of innocent white employees in apportioning loss between Black and white workers. According to Justice Powell, "'the rights and expectations surrounding seniority make up what is probably the most valuable capital asset that the worker "owns," worth even more than the current equity in his home.'" Wygant, 476 U.S. at 283 (plurality opinion) (quoting Richard H. Fallon, Jr. & Paul C. Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984 Sup. CT. REV. 1, 58 (1985)).
340. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 276 (1978). The fact that minority students were not actual parties to the Bakke litigation was crucial to the way in which the case was litigated, the strategies were developed, and indeed, even what facts ultimately became part of the record that went before the Supreme Court. Cf. DREYFUSS & LAWRENCE, supra note 275, at 40-42 (documenting the omission of critical facts from the record, such as (1) the Dean's special admissions policy for children of wealthy donors and alumnae; (2) the university's mistaken concessions that the admissions program for disadvantaged students admitted 16 students each year that Bakke applied, when in fact it did not; and, (3) the fact that whites were considered for admission through the Task Force Program).
341. This observation is Frances Ansley's insight regarding the shift in both legal discourse and popular conception regarding remediation of race discrimination. See Ansley, supra note 10, at 1021-22. She notes the "picture is of an embattled white, male worker in need of protection from an overbearing and intrusive government or employer." Id. at 1022. This vision tends to exclude Black aspirants from consideration. See id. at 1022 n.126.
342. If one assumes relative equality of abilities among the races at birth, then it is only racial subordination that can explain the fact that Blacks have not secured the proportion of society's benefits that they would be expected to have based on their numbers in society. But see Posner, supra note 260, at 17 ("Many groups are underrepresented in various occupations for reasons of taste, opportunity, or aptitude unrelated to discrimination. There is no basis for a presumption that but for past discrimination . . . minorities . . . would supply [a proportional] percent of the nation's lawyers."). Fiscus argues that, if one accepts relative group equality in ability at birth, then race-correlated differences must be due to societal factors that differentiate along racial lines - racism. See FISCUS, supra note 263, at 24. He rejects the racial ethnicity argument "because any racially correlated variation in taste, opportunity, or aptitude can only be explained by either innate racial differences or pervasive societal recognition of race and differential behavior based on it - i.e., de facto discrimination." Id. at 27.
343. Fiscus, supra note 263, at 13-14.
344. As Fiscus argues, "the question is not Who is to blame for racism? but What would [Blacks] have naturally attained? . . . [W]hat . . . would [whites] be entitled to in a nonracist society." Id. at 45.
345. It is not my belief that changing the rationale and discourse around affirmative action will magically dispel objections or dissipate the very real tensions that have accumulated around these issues. In the real world, these questions are not merely discursive. Rather, I suggest that the proper reformulations of these issues would avoid exacerbating the very difficult issues of allocation by excluding essential parties or minimizing the role of those holding power an control. For example, Ansley argues that alternatives to the issue of laying off Black versus white workers include job sharing, increased unemployment compensation, greater worker control over the workplace, and other remedial measures that require greater employer concessions. See Ansley, supra note 10, at 1069-70. Moreover, correctly identifying the locus of power in the affirmative action debate would serve to better expose class privilege and domination. See id. at 1021-23.
346. Interestingly, when I describe my project of exposing the property interest in whiteness, it is principally whites who make this suggestion. Although this may signal nothing more than coincidence, I fear there is an undercurrent to the question that is grounded in what Hacker describes as the fear of retribution - that Blacks will do to whites what whites did to them. Hacker attributes this observation to Louis Farrakhan. See HACKER, supra note 155, at 206 (discussing white fears of having Black elected officials).
347. See, e.g., Susan Diesenhouse, In Affirmative Action, A Question of Truth in Labeling, N.Y. TIMES, Dec. 11, 1988, at E26 (relating the account of Philip J. and Paul J. Malone, two brothers on the Boston Fire Department who were dismissed for falsely stating on their job applications that they were Black, a status they claimed by virtue of a Black great-grandmother). The definition of race deployed by the Malones is based on old fractional formulas that measure race by bloodlines and consider race to be biologically determined.
348. See supra notes 128-131 and accompanying text.
349. See supra pp. 1724-46.
350. HACKER, supra note 155, at 217.
351. The assertion of Black identity in the face of the concerted and relentless efforts to degrade and eradicate it is indeed essential to the recovery of Blacks in particular and of the society as a whole. Cf. MEMMI, supra note 227, at 128 ("The more oppression increases, the more the the colonizer needs justification. The more he must debase the colonized, the more guilty he feels . . . . How can he emerge from this increasingly explosive circle except by rupture, explosion?").
352. As Fiscus argues, "unfairness to poor whites is a serious matter in its own right [I]t is [however] a different injustice, and the net unfairness of the society is not improved by giving to poor whites what Blacks would have won under racially fair conditions. . . .The only proper remedy for . . . class-based unfairness is one that addresses class per se . . . ." FISCUS, supra note 263, at 50.
353. See powell, supra note 84, at 379-80. The issue of equal opportunity was examined in United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979). Weber, a white employee who had been denied a spot in his employer's training program, alleged that the program, open to selected workers on the basis of seniority with the proviso that at least 50% were Black, violated Title VII of the Civil Rights Act of 1964 because the program resulted in Black workers receiving training in preference to more senior whites. The training program had been designed, pursuant to a collective bargaining agreement, to rectify the craft unions' past exclusion of Blacks. Because the company, in the past, had hired only experienced craftworkers, few Blacks had been able to rise through the craft ranks. See id. at 197-200. The Court upheld the constitutionality of the training program, and instructed that the language of Title VII was to be interpreted in light of its affirmative action goals. See id. at 202-04. John powell discusses Weber as a case in which both the majority and minority workers have a personal property interest in promotions on the job. powell surmises that the expectation of equal opportunity a property interest that both groups have, although "neither group has a vested interest in the job itself." powell, supra note 84, at 379. I contend that expectations in the status quo are not legitimately considered as property, but have, nevertheless, been treated as property. Thus, disposing or interfering with these expectations is not impermissible. Indeed, to validate the status quo against the backdrop of disadvantage would interfere with what powell calls the property interest in equal opportunity - a legitimate form of property. Thus, Weber's claim to equal opportunity is not insignificant, but the gravamen of his complaint was that he was more senior and therefore would have been selected for the training program first. This claim rested on expectations borne of a racialized stratification and was not valid. As powell points out, "[t]o protect this expectation would be abusive power." Id. at 380.
354. Affirmative action as a matter of U.S. policy surfaced in a remark attributed to President Lyndon B. Johnson in a 1965 speech at Howard University. "You do not take a person who for years has been hobbled by chains, and liberate him, bring him up to the starting line and then say 'you are free to compete with all the others.'" Lyndon B. Johnson, Commencement Speech at Howard University (June 4, 1965), in N.Y. TIMES, June 5, 1965, at A14. In fact, Martin Luther King, Jr. had previously been quoted to the effect that equality could not be achieved by telling people who do not have boots to pull themselves up by their own bootstraps. See HACKER, supra note 155, at 119. Hacker traces the idea to an even earlier history of presidential initiatives beginning with Franklin Delano Roosevelt's 1941 Executive Order regarding employment in defense industries and the creation of the Fair Employment Practices Commission. See id. at 118-19. He attributes the phrase "affirmative action" to the Kennedy administration orders that firms with federal contracts take "positive steps" toward a racially integrated work force. See id. at 119; Exec. Order No. 10,925, 3 C.F.R. 448, 449 (1959-1963).
355. " See EZORSKY, supra note 203, at 31-32.
356. Although the numbers of Blacks who have attained professional status and middle-class income have increased, so too have the numbers of Black poor. See A COMMON DESTINY: BLACKS AND AMERICAN SOCIETY 275 (Gerald D. Jaynes & Robin M. Williams, Jr., eds., 1989) [hereinafter COMMON DESTINY]. Over 45 percent of all Black children in 1991 lived below the official poverty line as defined by government income standards, see CENSUS, supra note 226, at x, and the Black infant mortality rate has been twice that of whites for most of the century, although the rates of all groups have improved in this category, see COMMON DESTINY, supra, at 398. The mortality of Black people from treatable diseases as well as from a host of socioeconomically related ills, such as homicide, see id. at 397, 419, AIDS, see id, at 420-21, and substance abuse, see id. at 421-22, continues to be disproportionately high in comparison with the rest of U.S. society. Further, the gap in per capita income between Blacks and whites also remains in existence, see id. at 16-18, 323. On every plane, along every indicator of socioecohomic conditions from employment rates, see id. at 18, the percentage of persons living below the poverty line, see id. at 17, and median family wealth, see id. at 282, to health care standards, see id. at 435, the picture is one of continued, relatively poor material living conditions for Blacks.
357. One of the more prominent critiques made by writers such as William Julius Wilson is that affirmative action has failed because it has not changed conditions for the "truly disadvantaged." See WILLIAM J. WILSON, THE TRULY DISADVANTAGED passim (1987) . Although it is true that Black poverty and unemployment has persisted, see supra note 328, it is also true that Blacks at all income and educational levels have benefited from affirmative action. See EZORSKY, supra note 203, at 63-65 (disputing the claim that affirmative action has aided only advantaged Blacks and citing studies indicating increased and better employment among Blacks at the lower end of the economic scale as a result of affirmative action); see also William L. Taylor, Brown, Equal Protection, and the Isolation of the Poor, 95 YALE L.J. 1700, 1713-14 (1986) (citing evidence of increased job opportunities for Blacks in blue-collar work as well at significant increases in minority enrollment in professional schools, which reflect the matriculation of children from families of low income and job status).
358. One of the more prominent critiques made by writers such as William Julius Wilson is that affirmative action has failed because it has not changed conditions for the "truly disadvantaged." See WILLIAM J. WILSON, THE TRULY DISADVANTAGED passim (1987) . Although it is true that Black poverty and unemployment has persisted, see supra note 328, it is also true that Blacks at all income and educational levels have benefited from affirmative action. See EZORSKY, supra note 203, at 63-65 (disputing the claim that affirmative action has aided only advantaged Blacks and citing studies indicating increased and better employment among Blacks at the lower end of the economic scale as a result of affirmative action); see also William L. Taylor, Brown, Equal Protection, and the Isolation of the Poor, 95 YALE L.J. 1700, 1713-14 (1986) (citing evidence of increased job opportunities for Blacks in blue-collar work as well at significant increases in minority enrollment in professional schools, which reflect the matriculation of children from families of low income and job status).
359. The Charter of the United Nations requires that all members promote human rights "without distinction as to race, sex, language, or religion." U.N. CHASTER art. 1, ¶ 3, This mandate does not mean that one may never differentiate (because this would disallow bilingual classes for students in a language that they speak), but that one may never discriminate. See VERNON VAN DYKE, HUMAN RIGHTS, ETHNICITY, AND DISCRIMINATION 4 (1985). The International Convention on the Elimination of All Forms of Race Discrimination defines racial discrimination as: [A]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. U.N. GAOR, 3d Comm. 20th Sess., Annex 2, Agenda Item 58, at 42, U.N. Doc. A/RES/2106 (1967). Significantly, the Convention also states that, "when the circumstances so warrant," parties shall take "special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights." Id. This provision has been construed by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities to mean that the implementation of special measures does not violate the mandate of equality. Thus, affirmative action or "special measures" are not merely permitted, but are required to attain factual (substantive) equality. See VAN DYKE, supra, at 9-11. American judicial confusion notwithstanding, affirmative action is perceived under international law to be entirely consistent with equality.
360. Crenshaw, supra note 3, at 1372.
361. Macpherson suggests that the central problem of liberal democracy has been the failure to reconcile the contradiction between the "liberal property right" enshrined in law as the individual right to exclusive use and disposition and the "ethical goal of free and independent individual development." C.B. Macpherson, Liberal Democracy and Property, in PROPERTY, supra note 58, at 199, 199-200. Because there is no legitimate norm for constraining the exclusive property right conferred by liberal theory, it leads to the excessive concentration of ownership that invariably forecloses "the equal possibility of individual human fulfilment." Id. at 200. "It led to denial of property as a right to what is needed to be human." Id. at 205. The crux of the problem lies in an excessively narrow view of the nature of the property right as the right to exclude others from the benefit or use of something when, in fact, property legitimately embraces "the right not to be excluded from the use or benefit of . . . the achievements of the whole society." Id. at 206. A conception of affirmative action that would dismantle whiteness as property raises similar implications about the meaning of property for it is dissonant with notions of property, such as the absolute right to exclude.
362. As Albie Sachs, one of the leading lawyers for the African National Congress, writes: Without a constitutionally structured programme of deep and extensive affirmative action, a Bill of Rights in South Africa is meaningless. Affirmative action by its nature involves the disturbance of inherited rights. It is redistributory rather than conservative in character. It is not a brake on change but rather a regulator of change, designated on the one hand to guarantee that change takes place, and on the other hand that it proceeds in an orderly way according to established criteria. . . . In the historical conditions of South Africa, affirmative action is not merely the corrector of certain perceived structural injustices. It becomes the major instrument in the transitional period after a democratic government has been installed, for converting a racist oppressive society into a democratic and just one. Albie Sachs, Towards a Bill of Rights for a Democratic South Africa, 35 J. AFR. L. 21, 29 (1991).
363. The Draft Constitutional Principles for the ANC instruct that: Provision will be made for discrimination to be eliminated in substance as well as in form. At all levels of government the state will be empowered to pursue policies of affirmative action for the advancement of persons who have been socially, economically or educationally disadvantaged by past discriminatory laws and practices and in order to redress social, economic and educational imbalances in South Africa resulting from such discrimination with special regard to the maldistribution of land and the need for housing. Special provision will also be made to redress the added discrimination which has been suffered by women and the victims of forced removals. AFRICAN NAT'L CONGRESS, CONSTITUTIONAL COMM., DISCUSSION DOCUMENT: CONSTITUTIONAL PRINCIPLES AND STRUCTURES FOR A DEMOCRATIC SOUTH AFRICA 30 (Centre for Development Studies, Univ. of the Western Cape, South Africa, Apr. 1991). The Draft Bill of Rights similarly authorizes the implementation of affirmative action and states that: Nothing in the Constitution shall prevent the enactment of legislation, or the adoption by any public or private body of special measures of a positive kind designed to procure the advancement and the opening up of opportunities, including access to education, skills, employment and land, . . . of men and women who in the past have been disadvantaged by discrimination. ANC CONSTITUTIONAL COMM., ANC DRAFT BILL OF RIGHTS, PRELIMINARY REVISED VERSION 1.1, Art. 14, at 14 (Centre for Development Studies, Univ. of the Western Cape, South Africa, May 1992) [hereinafter ANC DRAFT BILL OF RIGHTS].
364. To deal with the grossly skewed property relations produced by apartheid under which whites, who number less than 13% of the population, own 87% of the land and 95% of productive capital, a new democratic government could pursue a number of alternatives ranging from completely precluding public intervention in the existing patterns of ownership to authorizing total nationalization. The ANC's proposal on the land issue seems to embody a third option - permitting intervention through taking property in the public interest and providing compensation to the owner, but defining compensation to include affirmative action principles. Sachs suggests that under the formulation: [M]arket valuation would not be the sole determinant [of compensation]. Affirmative action principles could enter the picture, so that under broad equal protection principles, historical, social, and family factors could be taken into account, as well as the need to ensure continuity of productive use; there could be flexibility in terms of the modalities of payment, and a wide variety of transitional arrangements and forms of mixed interests could be permitted. ALBIE SACHS, PROTECTING HUMAN RIGHTS IN A NEW SOUTH AFRICA 166 (1990); see ANC DRAFT BILL OF RIGHTS, supra note 334, at 11-12 (describing the objectives and principles of land redistribution that would consider an "equitable balance" between private and public interests).