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In White By Law, Haney Lopez argues that race is a socially mediated idea which has never been primarily based on physical characteristics. In America, the concept of race developed as an intellectual construct used to distinguish social values and beliefs distinct from those of the dominant Anglo-Saxon majority (and subsequently the “white” European majority) (Haney Lopez, 56). For example, a federal district court in 1921 barred Asian naturalization under the rationale that, “The yellow or bronze racial color is the hallmark of Oriental despotism”. Thus Asians were not fit for republican self-government and were to be denied citizenship.
Haney Lopez uses fifty one court decisions rendered on immigration cases during the period 1878-1952 (the “pre-requisite decisions”) to demonstrate that the concept of “whiteness” was created through a process of legal exclusion. The application of law, both in terms of its coercive and ideological arms, constructed the racial superstructure of America. For example, the very act of excluding Asians from America influenced reproductive choices for those who were included in the American polity.
During the period 1878-1952, the courts determined “whiteness”, sometimes inconsistently, on the basis of four rationales: (1) common knowledge, (2) scientific evidence, (3) Congressional intent, and (4) legal precedence. The decisions coming out of the “pre-requisite cases” appear to the contemporary reader to be both illogical and, in many cases, unjust. The record does however support the view of Oliver Wendell Holmes that “the life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed and unconscious, even the prejudices which the judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed ” (Haney Lopez, 95). Thus, in Haney Lopez’s analysis the law emerges as a conservative coercive and ideological institution adjudicating in favor of a white racist status quo.
The law by its very nature is a conservative force acting to protect the long term interests of the status quo. The question then becomes: Who rules? Haney Lopez suggests that the primary concern of the status quo is to preserve racial hierarchy. Racial domination is the motive for legal decisions. An economic interpretation of the same set of facts reveals a different emphasis. In a Marxist interpretation, class (or the economic) is more real, more fundamental and more important than race. Racism is a low hanging branch of a tree that is rooted in class relations (Wages of Whiteness by David Roediger 7-8). Haney Lopez cannot see beyond racism when Chester Rowell expresses the businessman’s viewpoint of 1909 that “…we find the Chinese fitting much better than the Japanese into the status which the white American prefers them both to occupy – that of biped domestic animals in the white man’s service. The Chinese coolie is the ideal industrial machine, the perfect human ox.” ( Haney Lopez, 62). An economic interpretation of this statement would suggest that it is in the nature of capitalism to objectify people, to turn the worker wherever possible into “the perfect human ox”, and that in the absence of countervailing force will do just that. Immigrants were politically weak and could thus be exploited, let in, restricted, and kicked out as required by the economic elite. It is only shifting power relationships that change laws.
Haney Lopez uses fifty one court decisions rendered on immigration cases during the period 1878-1952 (the “pre-requisite decisions”) to demonstrate that the concept of “whiteness” was created through a process of legal exclusion. The application of law, both in terms of its coercive and ideological arms, constructed the racial superstructure of America. For example, the very act of excluding Asians from America influenced reproductive choices for those who were included in the American polity.
During the period 1878-1952, the courts determined “whiteness”, sometimes inconsistently, on the basis of four rationales: (1) common knowledge, (2) scientific evidence, (3) Congressional intent, and (4) legal precedence. The decisions coming out of the “pre-requisite cases” appear to the contemporary reader to be both illogical and, in many cases, unjust. The record does however support the view of Oliver Wendell Holmes that “the life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed and unconscious, even the prejudices which the judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed ” (Haney Lopez, 95). Thus, in Haney Lopez’s analysis the law emerges as a conservative coercive and ideological institution adjudicating in favor of a white racist status quo.
The law by its very nature is a conservative force acting to protect the long term interests of the status quo. The question then becomes: Who rules? Haney Lopez suggests that the primary concern of the status quo is to preserve racial hierarchy. Racial domination is the motive for legal decisions. An economic interpretation of the same set of facts reveals a different emphasis. In a Marxist interpretation, class (or the economic) is more real, more fundamental and more important than race. Racism is a low hanging branch of a tree that is rooted in class relations (Wages of Whiteness by David Roediger 7-8). Haney Lopez cannot see beyond racism when Chester Rowell expresses the businessman’s viewpoint of 1909 that “…we find the Chinese fitting much better than the Japanese into the status which the white American prefers them both to occupy – that of biped domestic animals in the white man’s service. The Chinese coolie is the ideal industrial machine, the perfect human ox.” ( Haney Lopez, 62). An economic interpretation of this statement would suggest that it is in the nature of capitalism to objectify people, to turn the worker wherever possible into “the perfect human ox”, and that in the absence of countervailing force will do just that. Immigrants were politically weak and could thus be exploited, let in, restricted, and kicked out as required by the economic elite. It is only shifting power relationships that change laws.
A brief look at the
background of the Chinese Exclusion Act and the relation of race and class in
the American labor movement.
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