The legal legacy of slavery and of the seizure of land from
Native American peoples is not merely a regime of property
law that is (mis)informed by racist and ethnocentric themes.
Rather, the law has established and protected an actual
property interest in whiteness itself, which shares the
critical characteristics of property and accords with the
many and varied theoretical descriptions of property.
Although by popular usage property describes
"things" owned by persons, or the rights of
persons with respect to a thing, the concept of
property prevalent among most theorists, even prior to the
twentieth century, is that property may "consist[] of
rights in 'things' that are intangible, or whose existence
is a matter of legal definition." Property is thus said
to be a right, not a thing, characterized as metaphysical,
not physical. The theoretical bases and conceptual
descriptions of property rights are varied, ranging from
first possessor rules, to creation of value, to Lockean
labor theory, to personality theory, to utilitarian theory.
However disparate, these formulations of property clearly
illustrate the extent to which property rights and interests
embrace much more than land and personalty. Thus, the fact
that whiteness is not a "physical" entity does not
remove it from the realm of property.
Whiteness is not simply and solely a legally recognized
property interest. It is simultaneously an aspect of
self-identity and of personhood, and its relation to the law
of property is complex. Whiteness has functioned as self-
identity in the domain of the intrinsic, personal, and
psychological; as reputation in the interstices between
internal and external identity; and, as property in the
extrinsic, public, and legal realms. According whiteness
actual legal status converted an aspect of identity into an
external object of property, moving whiteness from
privileged identity to a vested interest. The law's
construction of whiteness defined and affirmed critical
aspects of identity (who is white); of privilege (what
benefits accrue to that status); and, of property (what
legal entitlements arise from that status). Whiteness at
various times signifies and is deployed as identity, status,
and property, sometimes singularly, sometimes in tandem.
1. Whiteness as a Traditional Form of Property. -
Whiteness fits the broad historical concept of property
described by classical theorists. In James Madison's
view, for example, property "embraces every thing to
which a man may attach a value and have a right,"
referring to all of a person's legal rights. Property as
conceived in the founding era included not only external
objects and people's relationships to them, but also all of
those human rights, liberties, powers, and immunities that
are important for human well-being, including: freedom of
expression, freedom of conscience, freedom from bodily harm,
and free and equal opportunities to use personal faculties.
Whiteness defined the legal status of a person as slave
or free. White identity conferred tangible and economically
valuable benefits and was jealously guarded as a valued
possession, allowed only to those who met a strict standard
of proof. Whiteness - the right to white identity as
embraced by the law - is property if by property one means
all of a person's legal rights. . . .
The law's interpretation of those encounters between
whites and Native Americans not only inflicted vastly
different results on them, but also established a pattern -
a custom - of valorizing whiteness. As the forms of
racialized property were perfected, the value and protection
extended to whiteness increased. Regardless of which theory
of property one adopts, the concept of whiteness -
established by centuries of custom (illegitimate custom, but
custom nonetheless) and codified by law - may be understood
as a property interest.
2. Modern Views of Property as Defining Social
Relations. - Although property in the classical sense
refers to everything that is valued and to which a person
has a right, the modern concept of property focuses on its
function and the social relations reflected therein. In this
sense, modern property doctrine emphasizes the more
contingent nature of property and has been the basis for the
argument that property rights should be expanded.
Modern theories of property reject the assumption that
property is "objectively definable or identifiable,
apart from social context.". . . Property in this
broader sense encompassed jobs, entitlements, occupational
licenses, contracts, subsidies, and indeed a whole host of
intangibles that are the product of labor, time, and
creativity, such as intellectual property, business
goodwill, and enhanced earning potential from graduate
degrees. Notwithstanding the dilution of new property since
Goldberg v. Kelly and its progeny as well as continued
attacks on the concept, the legacy of new property infuses
the concept of property with questions of power,
selection, and allocation. Reich's argument that property is
not a natural right but a construction by society resonates
in current theories of property that describe the allocation
of property rights as a series of choices. This construction
directs attention toward issues of relative power and social
relations inherent in any definition of property.
3. Property and Expectations. - "Property is
nothing but the basis of expectation," according to
Bentham, "consist[ing] in an established expectation,
in the persuasion of being able to draw such and such
advantage from the thing possessed." The relationship
between expectations and property remains highly
significant, as the law "has recognized and protected
even the expectation of rights as actual legal
property." This theory does not suggest that all value
or all expectations give rise to property, but those
expectations in tangible or intangible things that are
valued and protected by the law are property.. . .
In a society structured on racial subordination, white
privilege became an expectation and, to apply Margaret
Radin's concept, whiteness became the quintessential
property for personhood. The law constructed
"whiteness" as an objective fact, although in
reality it is an ideological proposition imposed through
subordination. This move is the central feature of
"reification": "Its basis is that a relation
between people takes on the character of a thing and thus
acquires a 'phantom objectivity,' an autonomy that seems so
strictly rational and all-embracing as to conceal every
trace of its fundamental nature: the relation between
people." Whiteness was an "object" over which
continued control was - and is - expected. The protection of
these expectations is central because, as Radin notes:
"If an object you now control is bound up in your
future plans or in your anticipation of your future self,
and it is partly these plans for your own continuity that
make you a person, then your personhood depends on the
realization of these expectations."
Because the law recognized and protected expectations
grounded in white privilege (albeit not explicitly in all
instances), these expectations became tantamount to property
that could not permissibly be intruded upon without consent.
As the law explicitly ratified those expectations in
continued privilege or extended ongoing protection to those
illegitimate expectations by failing to expose or to
radically disturb them, the dominant and subordinate
positions within the racial hierarchy were reified in law.
When the law recognizes, either implicitly or explicitly,
the settled expectations of whites built on the privileges
and benefits produced by white supremacy, it acknowledges
and reinforces a property interest in whiteness that
reproduces Black subordination.
4. The Property Functions of Whiteness. - In
addition to the theoretical descriptions of property,
whiteness also meets the functional criteria of property.
Specifically, the law has accorded "holders" of
whiteness the same privileges and benefits accorded holders
of other types of property. The liberal view of property is
that it includes the exclusive rights of possession, use,
and disposition. Its attributes are the right to transfer or
alienability, the right to use and enjoyment, and the right
to exclude others. Even when examined against this limited
view, whiteness conforms to the general contours of
property. It may be a "bad" form of property, but
it is property nonetheless.
(a) Rights of Disposition. - Property rights are
traditionally described as fully alienable. Because
fundamental personal rights are commonly understood to be
inalienable, it is problematic to view them as property
interests. However, as Margaret Radin notes,
"inalienability" is not a transparent term; it has
multiple meanings that refer to interests that are
non-salable, non-transferable, or non-market-alienable. The
common core of inalienability is the negation of the
possibility of separation of an entitlement, right, or
attribute from its holder.
Classical theories of property identified alienability as
a requisite aspect of property; thus, that which is
inalienable cannot be property. As the major exponent of
this view, Mill argued that public offices, monopoly
privileges, and human beings - all of which were or should
have been inalienable - should not be considered property at
all. Under this account, if inalienability inheres in the
concept of property, then whiteness, incapable of being
transferred or alienated either inside or outside the
market, would fail to meet a criterion of property.
As Radin notes, however, even under the classical view,
alienability of certain property was limited. Mill also
advocated certain restraints on alienation in connection
with property rights in land and probably other natural
resources. In fact, the law has recognized various kinds of
inalienable property. For example, entitlements of the
regulatory and welfare states, such as transfer payments and
government licenses, are inalienable; yet they have been
conceptualized and treated as property by law. Although this
"new property" has been criticized as being
improper - that is, not appropriately cast as property - the
principal objection has been based on its alleged lack of
productive capacity, not its inalienability.
The law has also acknowledged forms of inalienable
property derived from nongovernmental sources. In the
context of divorce, courts have held that professional
degrees or licenses held by one party and financed by the
labor of the other is marital property whose value is
subject to allocation by the court. A medical or law degree
is not alienable either in the market or by voluntary
transfer. Nevertheless, it is included as property when
dissolving a legal relationship.
Indeed, Radin argues that, as a deterrent to the
dehumanization of universal commodification,
market-inalienability may be justified to protect property
important to the person and to safeguard human flourishing.
She suggests that non-commodification or
market-inalienability of personal property or those things
essential to human flourishing is necessary to guard against
the objectification of human beings. To avoid that danger,
"we must cease thinking that market alienability is
inherent in the concept of property." Following this
logic, then, the inalienability of whiteness should not
preclude the consideration of whiteness as property.
Paradoxically, its inalienability may be more indicative of
its perceived enhanced value, rather than its
disqualification as property.
(b) Right to Use and Enjoyment. - Possession of
property includes the rights of use and enjoyment. If these
rights are essential aspects of property, it is because
"the problem of property in political philosophy
dissolves into ... questions of the will and the way in
which we use the things of this world." As whiteness is
simultaneously an aspect of identity and a property
interest, it is something that can both be experienced and
deployed as a resource. Whiteness can move from being a
passive characteristic as an aspect of identity to an active
entity that - like other types of property - is used to
fulfill the will and to exercise power. The state's official
recognition of a racial identity that subordinated Blacks
and of privileged rights in property based on race elevated
whiteness from a passive attribute to an object of law and a
resource deployable at the social, political, and
institutional level to maintain control. Thus, a white
person "used and enjoyed" whiteness whenever she
took advantage of the privileges accorded white people
simply by virtue of their whiteness - when she exercised any
number of rights reserved for the holders of whiteness.
Whiteness as the embodiment of white privilege transcended
mere belief or preference; it became usable property, the
subject of the law's regard and protection. In this respect
whiteness, as an active property, has been used and enjoyed.
(c) Reputation and Status Property. - In
constructing whiteness as property, the ideological move was
to conceptualize white racial identity as an external thing
in a constitutive sense - an "object[] or resource[]
necessary to be a person." This move was accomplished
in large measure by recognizing the reputational interest in
being regarded as white as a thing of significant value,
which like other reputational interests, was intrinsically
bound up with identity and personhood. The reputation of
being white was treated as a species of property, or
something in which a property interest could be asserted. In
this context, whiteness was a form of status property.
The conception of reputation as property found its
origins in early concepts of property that encompassed
things (such as land and personalty), income (such as
revenues from leases, mortgages, and patent monopolies), and
one's life, liberty, and labor. Thus, Locke's famous
pronouncement, "every man has a 'property' in his own
'person,"' undergirded the assertion that one's
physical self was one's property. From this premise, one's
labor, "the work of his hands," combined with
those things found in the common to form property over which
one could exercise ownership, control, and dominion. The
idea of self-ownership, then, was particularly fertile
ground for the idea that reputation, as an aspect of
identity earned through effort, was similarly property.
Moreover, the loss of reputation was capable of being valued
in the market.
The direct manifestation of the law's legitimation of
whiteness as reputation is revealed in the well-established
doctrine that to call a white person "Black" is to
defame her. Although many of the cases were decided
in an era when the social and legal stratification of whites
and Blacks was more absolute, as late as 1957 the principle
was reaffirmed, notwithstanding significant changes in the
legal and political status of Blacks. As one court noted,
"there is still to be considered the social distinction
existing between the races," and the allegation was
likely to cause injury. A Black person, however, could not
sue for defamation if she was called "white."
Because the law expressed and reinforced the social
hierarchy as it existed, it was presumed that no harm could
flow from such a reversal.
Private identity based on racial hierarchy was
legitimated as public identity in law, even after the end of
slavery and the formal end of legal race segregation.
Whiteness as interpersonal hierarchy was recognized
externally as race reputation. Thus, whiteness as public
reputation and personal property was affirmed.
(d) The Absolute Right to Exclude. - Many
theorists have traditionally conceptualized property to
include the exclusive rights of use, disposition, and
possession, with possession embracing the absolute right to
exclude. The right to exclude was the central principle,
too, of whiteness as identity, for mainly whiteness has been
characterized, not by an inherent unifying characteristic,
but by the exclusion of others deemed to be "not
white." The possessors of whiteness were granted the
legal right to exclude others from the privileges inhering
in whiteness; whiteness became an exclusive club whose
membership was closely and grudgingly guarded. The courts
played an active role in enforcing this right to exclude -
determining who was or was not white enough to enjoy the
privileges accompanying whiteness. In that sense, the courts
protected whiteness as any other form of property.
Moreover, as it emerged, the concept of whiteness was
premised on white supremacy rather than mere difference.
"White" was defined and constructed in ways that
increased its value by reinforcing its exclusivity. Indeed,
just as whiteness as property embraced the right to exclude,
whiteness as a theoretical construct evolved for the very
purpose of racial exclusion. Thus, the concept of whiteness
is built on both exclusion and racial subjugation. This fact
was particularly evident during the period of the most rigid
racial exclusion, as whiteness signified racial privilege
and took the form of status property.
At the individual level, recognizing oneself as
"white" necessarily assumes premises based on
white supremacy: It assumes that Black ancestry in any
degree, extending to generations far removed, automatically
disqualifies claims to white identity, thereby privileging
"white" as unadulterated, exclusive, and rare.
Inherent in the concept of "being white" was the
right to own or hold whiteness to the exclusion and
subordination of Blacks. Because "[i]dentity is ...
continuously being constituted through social
interactions," the assigned political, economic, and
social inferiority of Blacks necessarily shaped white
identity. In the commonly held popular view, the presence of
Black "blood" - including the infamous
"one-drop" - consigned a person to being
"Black" and evoked the "metaphor ... of
purity and contamination" in which Black blood is a
contaminant and white racial identity is pure. Recognizing
or identifying oneself as white is thus a claim of racial
purity, an assertion that one is free of any taint of Black
blood. The law has played a critical role in legitimating
this claim. |