Guest blogger, Jennifer Wagner, JD: Enforcing forced definitions of race

Most of us didn’t need to go to law school to learn that the Supreme Court in its infamous Dred Scott case ruled that blacks or African Americans were not citizens. Stated another way, the Court ruled that only white persons were entitled to automatic citizenship by birthright. What is perhaps less well-known, however, is the story of how the law (Congress and the courts) helped reinforce popular views on race. Ian Haney-Lopez deserves much credit for telling this story in White by Law: The Legal Construction of Race, and I encourage everyone to read it. For present purposes, I will do my best to highlight the major events on the intersection of race, anthropological/scientific expertise, and the law.

I mentioned the Dred Scott opinion and its announcement that a prerequisite for birthright citizenship was being white. Birthright citizenship was not broadened to include any individual born on U.S. soil until passage of the Civil Rights Act of 1866, and that Act – like many of the other legal reforms of the day – was a reform in theory more so than practice. It wasn’t until 1898 that birthright citizenship was interpreted as including all individuals born on U.S. soil (even those individuals whose parents were ineligible for naturalization).

So we’ve discussed how birthright citizenship was dictated by race concepts. But there is another type of citizenship: naturalized citizenship. Congress established the rules for naturalization in 1790, making naturalized citizenship available to “any alien, being a free white person.” Notice that Congress did not refer to any “European” or even any “Caucasian” person. Congress steadfastly maintained this prerequisite that naturalization applicants be white. In 1870 Congress loosened restrictions on naturalized citizenship to include not only white persons but also those persons of African descent (Act of July 14, 1870, Ch. 255, §7, 16 Stat. 254).

To recap, then, before 1866 no non-whites were eligible for birthright citizenship and before 1870 no non-whites were eligible for naturalized citizenship. Yet what did this mean? Notice how the options for claiming eligibility for naturalized citizenship were now based on somewhat different considerations: appearances (specifically, skin color) and ancestry (specifically, geographic origins). Why wasn’t the prerequisite based on race (or something like race) deleted instead of enumerating an exhaustive list of two options? If Congress had done so, it would have had the effect of permitting citizenship (and legal rights that accompany such citizen status) to Native Americans and Asians. What does this all mean? It means that when people immigrated to the United States and sought to naturalize, the immigrants had to claim they were “white” or claim they were of African descent. For obvious reasons, the former was the preferred approach.

In the first case to challenge the prerequisites (In re Ah Yup, 1878), a California court quoted anthropological and scientific expertise to legitimize its decision that the Chinese applicant was not white and, therefore, not eligible for citizenship. A Texas court (In re Rodriguez, 1897), considering a Mexican applicant, turned to anthropological and scientific expertise as well, but ultimately held that while Mexicans wouldn’t be considered white by “strict scientific definition” they are eligible for naturalization as “white,” thanks to treaties related to the U.S. expansion through Florida and the Southwest. These cases were relatively clear. They had predictable outcomes. The confusion of race, skin color, ancestry, and nationality in America’s history – including legal adjudications – should now be readily apparent.

At the turn of the 20^th Century, whiteness was not equated with a single race or even equated with being of European ancestry or having geographical origins from any European nation. Recall that William Z. Ripley convinced many of the existence of three distinct European races of Nordics, Alpines, and Mediterraneans (determined largely on the basis of head shape, skin color and stature), and Comte de Gobineau’s attribution of behavioral and physical attributes to Aryan speakers unified the Nazis. The Dillingham Commission Report of 1911 illustrates how American policy was not immune from heavy reliance on eugenics and rising nativist sentiment.

Early U.S. immigrants were predominately from Northern and Western Europe. It’s unsurprising, then, that all immigrants were not seen as equally “suitable” for naturalized citizenship and that distinctions were made between new immigrants and old immigrants. When immigration patterns changed, the courts ran into problems. Immigrants of the late 19^th Century were predominantly from Southern and Eastern Europe as well as from Asia, and they were not treated the same as “old” immigrants. Yet immigrants from Europe regardless of region were scientifically considered Caucasian. The courts waffled on how to treat Syrians and Asian Indians, for example. The courts had to decide whether to continue to follow scientific opinion (thereby expanding who is white by making the term synonymous with Caucasian) or whether to preserve common knowledge about who is white. I encourage you to read Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, written by my colleague Hiroshi Motomura, for a fascinating account of immigration policy in America.

The transition in prerequisite cases from white (i.e. skin color) to Caucasian (i.e. race) is noted to have started in 1909 with the case of In Re Najour. Ian Haney Lopez has described this as follows: "The Najour court reasoned syllogistically from Caucasian to 'white' to citizen. Doing so, it tied the 'white person' restriction to a rapidly expanding anthropological classification. Herein lies the significance to the courts of the strict equation of 'white' and 'caucasian.' By making persons from North Africa to Oceania 'white,' the broad definition of Caucasian employed by Judge Newman [who decided In Re Najour] arguably vitiated the restrictive impulse animating the 'white person' bar, and thus undercut the prerequisite laws. If courts accepted that all those categorized as Caucasians were 'white persons,' many people generally seen as non-White would become White, at least for purposes of citizenship." White by Law: The Legal Construction of Race, at 51.

Not all cases followed this reasoning however, which is why the two Supreme Court rulings in 1922 and 1923 (Ozawa v. United States, 260 U.S. 178 and United States v. Thind, 261 U.S. 204) were so meaningful. In Ozawa, the Supreme Court defined “white” as the equivalent of members of the Caucasian race and denied a Japanese applicant citizenship. Just three months later, in Thind, the Supreme Court denied an Asian Indian applicant citizenship, retreated from the use of Caucasian for white, and rejected anthropological/scientific expertise. The Court explained, “the average well informed white American would learn with some degree of astonishment that the race to which he belongs is made up of such heterogeneous elements.” (Thind at 211)

So by 1923 the courts were saying that scientific definitions of race were not important and that popular notions of race and whiteness were what mattered. In 1924 the National Origins Act set up a strict quota system to limit the less “suitable” European immigrants from southern and eastern Europe. In essence, as Mae Ngai has stated, “‘the law constructed a white American race, in which persons of European descent shared a common whiteness distinct from those deemed to be not white.’” (as quoted in Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States at 127).

So courts decided citizenship after 1923, and legally constructed and reinforced the concept of race, (1) without regard to anthropological and scientific knowledge on human variation or the non-existence of human races and (2) by acceptance of popular conceptions of race, perceived differences of the character of individuals on the basis of skin color. It was not until passage of the Nationality Act of 1940 that birthright citizenship was freed from racial restrictions, and naturalized citizenship was not freed from racial restrictions until passage of the Immigration and Nationality Act of 1952.

Native Americans factually were not U.S. immigrants, yet they faced similar struggles of confused notions of skin color, race, and ancestry. That story, however, must be told another day.

Jennifer Wagner, JD