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Cheryl I. Harris |
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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.
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