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Excerpted from: Ian Haney Lopez , White By Law: The Legal Construction of Race. New York: New York University Press, 1996.
Although now largely forgotten, the prerequisite cases were at the center of racial debates in the United States for the fifty years following the Civil War, when immigration and nativism were both running high. Naturalization laws figured prominently in the furor over the appropriate status of the newcomers and were heatedly discussed not only by the most respected public figures of the day, but also in the swirl of popular politics. . . .
The principal locus of the debate, however, was in the courts. From the first prerequisite case in 1878 until racial restrictions were removed in 1952, fifty-two racial prerequisite cases were reported, including two heard by the U.S. Supreme Court. Framing fundamental questions about who could join the citizenry in terms of who was White. . . .
Though the courts offered many different rationales to justify the various racial divisions they advanced, two predominated: common knowledge and scientific evidence. [. . .] Under a common knowledge approach, courts justified the assignment of petitioners to one race or another by reference to common beliefs about race. The common knowledge rationale contrasts with reasoning based on supposedly objective, technical, and specialized knowledge. Such "scientific evidence" rationales justified racial divisions by reference to the naturalistic studies of humankind [. . .]
These rationales, one appealing to common knowledge and the other to scientific evidence, were the two core approaches used by courts to explain their determinations of whether individuals belonged to the "white" race. . . . . the courts deciding racial prerequisite cases initially relied on both rationales to justify their decisions. However, beginning in 1909 a schism appeared among the courts over whether common knowledge or scientific evidence was the appropriate standard. Thereafter, the lower courts divided almost evenly on the proper test for Whiteness: six courts relied on common knowledge, while seven others based their racial determinations on scientific evidence. No court used both rationales. Over the course of two cases, heard in 1922 and 1923, the Supreme Court broke the impasse in favor of common knowledge. Though the courts did not see their decisions in this light, the early congruence of and subsequent contradiction between common knowledge and scientific evidence set the terms of a debate about whether race is a social construction or a natural occurrence. In these terms, the Supreme Court's elevation of common knowledge as the legal meter of race convincingly demonstrates that racial categorization finds its origins in social practices. . . . .
by 1909 changes in immigrant demographics and in anthropological thinking combined to create contradiction between science and common knowledge. These contradictions surfaced most directly in cases concerning immigrants from western and southern Asia, such as Syrians and Asian Indians, dark-skinned peoples who were nevertheless uniformly classified as Caucasians by the leading anthropologists of the times. Science's inability to confirm through empirical evidence the popular racial beliefs that held Syrians and Asian Indians to be non-Whites should have led the courts to question whether race was a natural phenomenon. So deeply held was this belief, however, that instead of re-examining the nature of race, the courts began to disparage science. Over the course of two decisions, the Supreme Court resolved the conflict between common knowledge and scientific evidence in favor of the former, but not without some initial confusion.
In Ozawa v. United States, the Court relied on both rationales to exclude a Japanese petitioner, holding that he was not of the type "popularly known as the Caucasian race," thereby invoking both common knowledge ("popularly known") and science ("the Caucasian race"). Here, as in the earliest prerequisite cases, science and popular knowledge worked hand in hand to exclude the applicant from citizenship. Within a few months of its decision in Ozawa, however, the Court heard a case brought by an Asian Indian, Bhagat Singh Thind, who relied on the Court's earlier linkage of "Caucasian" with "white" to argue for his own naturalization.
In United States v. Thind, science and common knowledge diverged, complicating a case that should have been easy under Ozawa's straightforward rule of racial specification. Reversing course, the Court repudiated its earlier equation and rejected any role for science in racial assignments. The Court decried the "scientific manipulation" it believed had ignored racial differences by including as Caucasian "far more [people] than the unscientific mind suspects," even some persons the Court described as ranging "in color ... from brown to black." "We venture to think," the Court said, "that 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 heterogenous elements." The Court held instead that "the words 'free white persons' are words of common speech, to be interpreted in accordance with the understanding of the common man." In the Court's opinion, science had failed as an arbiter of human difference, and common knowledge was made into the touchstone of racial division. In elevating common knowledge, the Court no doubt remained convinced that racial divisions followed from real, natural, physical differences. The Court upheld common knowledge in the belief that people are accomplished amateur naturalists, capable of accurately discerning differences in the physical world. This explains the Court's frustration with science, which to the Court's mind was curiously and suspiciously unable to identify and quantify those racial differences so readily apparent in the petitioners who came before them.
This frustration is understandable, given early anthropology's promise to establish a definitive catalogue of racial differences, and from these differences to give scientific justification to a racial hierarchy that placed Whites at the top. This, however, was a promise science could not keep. Despite their strained efforts, students of race could not plot the boundaries of Whiteness because such boundaries are socially fashioned and cannot be measured, or found, in nature. The Court resented the failure of science to fulfil an impossible vow; it might better have resented that science ever undertook such an enterprise. The early congruence between scientific evidence and common knowledge did not reflect the accuracy of popular understandings of race, but rather the social embeddedness of scientific inquiry. Neither common knowledge nor the science of the day measured human variation. Both merely reported social beliefs about races. The earlier reliance on scientific evidence to justify racial assignments implied that races exist as physical fact, humanly knowable but not dependent on human knowledge or human relations. The Court's ultimate reliance on common knowledge says otherwise: it demonstrates that racial taxonomies devolve upon social demarcations. That common knowledge emerged as the only workable racial test shows that race is something which must be measured in terms of what people believe, that it is a socially mediated idea. The social construction of the White race is manifest in the Court's repudiation of science and its installation of common knowledge as the appropriate racial meter of Whiteness.
RACIAL PREREQUISITE CASES- Chronological Order | ||
CASE | HOLDING | RATIONALES |
In re Ah Yup 1 F. Cas. 223 (C.C.D. Cal. 1878) | Chinese are not White | Scientific Evidence Common Knowledge Congressional Intent |
In re Camille 6 F. 256 (C.C.D. Or. 1880) | Native American/White
Persons half White and half Native American are not White |
Legal Precedent |
In re Kanaka Nian 6 Utah 259 21 Pac. 993 (1899) | Hawaiians are not White | Scientific Evidence |
In re Hong Yen Chang 84 Cal. 163 24 Pac. 156 (1890) | Chinese are not White | Legal Precedent |
In re Po 7 Misc. 471 28 N.Y. Supp. 838 (City Ct. 1894) | Burmese are not White | Common Knowledge Legal Precedent |
In re Saito 62 F. 126 (C.C.D. Mass. 1894) | Japanese are not White | Congressional Intent Common Knowledge Scientific Evidence Legal Precedent |
In re Gee Hop 71 F. 274 (N.D. Cal. 1895) | Chinese are not White | Legal Precedent Congressional Intent |
In re Rodriguez 81 F. 337 (W.D. Tex. 1897) | Mexican are White | Legal Precedent * |
In re Burton 1 Ala. 111 (1900) | Native Americans are not White | No Explanation |
re Yamashita 30 Wash. 234 70 Pac. 482 (1902) | Japanese are not White | Legal Precedent |
In re Buntaro Kumagai 163 F. 992 (W.D. Wash. 1908) | Japanese are not White | Congressional Intent Legal Precedent |
In re Knight 171 F. 299 (E.D.N.Y. 1909) | Persons half White, one-quarter Japanese, and one-quarter Chinese are not White | Legal Precedent |
In re Balsara 171 F. 294 (C.C.S.D.N.Y. 1909) | Asian Whites are probably not White ** | Congressional Intent |
In re Najour 174 F. 735 (N.D. Ga. 1909) | Syrians are White | Scientific Evidence |
In re Halladjiian 174 F. 834 (C.C.D. Mass. 1909) | Armenians are White | Scientific Evidence
Legal Precedent *** |
United States v. Dolla 177 F. 101 (5th Cir. 1910) | Asian Indians are White | Ocular Inspection of Skin **** |
In re Mudarri 176 F. 465 (C.C.D. Mass. 1910) | Syrians are White | Scientific Evidence Legal Precedent |
Bessho v. United States 178 F. 245 (4th Cir. 1910) | Japanese are not White | Congressional Intent |
In re Ellis 179 F. 1002 (D. Or. 1910) | Syrians are White | Common Knowledge Congressional. Intent |
United States v. Balsara 180 F. 694 (2nd Cir. 1910) | Asian Indians are White | Scientific Evidence Congressional Intent |
In re Alverto 198 F. 688 (E.D. Pa. 1912) | Persons three-quarters Filipino and one-quarter white are not White | Legal Precedent Congressional Intent |
In re Young 195 F. 645 (W.D. Wash. 1912) | Persons half German and half Japanese are not White | Legal Precedent |
In re Young 198 F. 715 (W.D. Wash. 1912) | Persons half German and half Japanese are not White | Common Knowledge Legal Precedent |
Ex parte Shahid 205 F. 812 (E.D.S.C. 1913) | Syrians are not White ***** | Common Knowledge |
In re Akhay Kumar Mozumdar 107 F. 115 (E.D. Wash. 1913) | Asian Indians are not White | Legal Precedent |
Ex Parte Dow 211 F. 486 (E.D.S.C. 1914) | Syrians are not White | Common Knowledge |
In re Dow 213 F. 355 (E.D.S.C. 1914) | Syrians are not White | Common Knowledge Congressional Intent |
Dow v. United States 226 F. 145 (4th Cir. 1915) | Syrians are White | Scientific Evidence Congressional Intent Legal Precedent |
In re Lampitoe 232 F. 382 (S.D.N.Y. 1916) | Filipino/White
Persons three-quarters Filipino and one-quarter White are not White |
Legal Precedent |
In re Mallari 239 F. 416 (D. Mass. 1916) | Filipinos are not White | No Explanation |
In re Rallos 241 F. 686 (E.D.N.Y. 1917) | Filipinos are not White | Legal Precedent |
In re Sadar Bhagwab Singh 246 F. 496 (E.D. Pa. 1917) | Asian Indians are not White | Common Knowledge Congressional Intent |
In re Mohan Singh 275 F. 209 (S.D. Cal. 1919) | Asian Indians are White | Scientific Evidence Legal Precedent |
In re Thind 268 F. 683 (D. Or. 1920) | Asian Indians are White | Legal Precedent |
Petition of Easurk Emsen Charr 273 F. 207 (W.D. Mo. 1921) | Koreans are not White | Common Knowledge Legal Precedent |
Ozawa v. United States 260 U.S. 178 (1922) | Japanese are not White | Legal Precedent Congressional Intent Common Knowledge Scientific Evidence |
United States v. Thind 261 U.S. 204 (1923) | Asian Indians are not White | Common Knowledge Congressional Intent |
Sato v. Hall 191 Cal. 510 217 Pac. 520 (1923) | Japanese are not White | Legal Precedent |
United States v. Akhay Kumar Mozumdar 296 F. 173 (S.D. Cal. 1923) | Asian Indians are not White | Legal Precedent |
United States v. Cartozian 6 F.2d 919 (D. Or. 1925) | Armeians are White | Scientific Evidence Common Knowledge Legal Precedent |
United States v. Ali 7 F.2d 728 (E.D. Mich. 1925) | Punjabis (whether Hindu or Arabian) are not White | Common Knowledge |
In re Fisher 21 F.2d 1007 (N.D. Cal. 1927) | Chinese/White
Persons three-quarter Chinese and one-quarter White are not White |
Legal Precedent |
United States v. Javier 22 F.2d 879 (D.C. Cir. 1927) | Filipinos are not White | Legal Precedent |
In re Feroz Din 27 F.2d 568 (N.D. Cal, 1928) | Afghans are not White | Common Knowledge |
United States v. Gokhale 26 F.2d 360 (2nd Cir. 1928) | Asian Indians are not White | Legal Precedent |
De La Ysla v. United States 77 F.2d 988 (9th Cir. 1935) | Filipinos are not White | Legal Precedent |
In re Cruz 23 F. Supp. 774 (E.D.N.Y. 1938) | Native American/African
Persons three-quarters Native American and one-quarter African are not African |
Legal Precedent |
Wadia v. United States 101 F.2d 7 (2nd Cir. 1939) | Asian Indians are not White | Common Knowledge |
De Cano v. State 110 P.2d 627 Wash. 1941 | Filipinos are not White | Legal Precedent |
Kharaiti Ram Samras v. United States 125 F.2d 879 (9th Cir. 1942) | Asian Indians are not White | Legal Precedent |
In re Ahmed Hassan 48 F. Supp. 843 (E.D. Mich 1942) | Arabians are not White | Common Knowledge Legal Precedent |
Ex parte Mohriez 54 F. Supp 941 (D. Mass. 1944) | Arabians are White | Common Knowledge Legal Precedent |
By National Origin
Afghans | ||
In re Feroz Din 27 F.2d 568 (N.D. Cal, 1928) | 1928 | Afghans are not White |
Arabians | ||
In re Ahmed Hassan 48 F. Supp. 843 (E.D. Mich 1942) | 1942 | Arabians are not White |
Ex parte Mohriez 54 F. Supp 941 (D. Mass. 1944) | 1944 | Arabians are White |
Armenians | ||
In re Halladjiian 174 F. 834 (C.C.D. Mass. 1909) | 1909 | Armenians are White |
United States v. Cartozian 6 F.2d 919 (D. Or. 1925) | 1925 | Armenians are White |
Asian Indians | ||
United States v. Dolla 177 F. 101 (5th Cir. 1910) | 1910 | Asian Indians are White |
United States v. Balsara 180 F. 694 (2nd Cir. 1910) | 1910 | Asian Indians are White |
In re Akhay Kumar Mozumdar 107 F. 115 (E.D. Wash. 1913) | 1913 | Asian Indians are not White |
n re Sadar Bhagwab Singh 146 F. 496 (E.D. Pa. 1917) | 1917 | Asian Indians are not White |
In re Mohan Singh 275 F. 209 (S.D. Cal. 1919) | 1919 | Asian Indians are White |
In re Thind 268 F. 683 (D. Or. 1920) | 1920 | Asian Indians are White |
United States v. Akhay Kumar Mozumdar 296 F. 173 (S.D. Cal. 1923) | 1923 | Asian Indians are not White |
United States v. Thind 261 U.S. 204 (1923) | 1923 | Asian Indians are not White |
United States v. Gokhale 26 F.2d 360 (2nd Cir. 1928) | 1928 | Asian Indians are not White |
Wadia v. United States 101 F.2d 7 (2nd Cir. 1939) | 1939 | Asian Indians are not White |
Kharaiti Ram Samras v. United States 125 F.2d 879 (9th Cir. 1942) | 1942 | Asian Indians are not White |
In re Balsara 171 F. 294 (C.C.S.D.N.Y. 1909) | 1909 | Asian Whites are probably not White ** |
Burmese | ||
In re Po 7 Misc. 471 28 N.Y. Supp. 838 (City Ct. 1894) | 1894 | Burmese are not White |
Chinese | ||
In re Ah Yup 1 F. Cas. 223 (C.C.D. Cal. 1878) | 1878 | Chinese are not White |
In re Hong Yen Chang 84 Cal. 163 24 Pac. 156 (1890) | 1890 | Chinese are not White |
In re Gee Hop 71 F. 274 (N.D. Cal. 1895) | 1895 | Chinese are not White |
In re Knight 171 F. 299 (E.D.N.Y. 1909) | 1909 | Chinese/White
Persons half White, one-quarter Japanese, and one-quarter Chinese are not White |
In re Fisher 21 F.2d 1007 (N.D. Cal. 1927) | 1927 | Chinese/White
Persons three-quarter Chinese and one-quarter White are not White |
Filipino | ||
In re Alverto 198 F. 688 (E.D. Pa. 1912) | 1912 | Filipino
Persons three-quarters Filipino and one-quarter white are not White |
In re Lampitoe 232 F. 382 (S.D.N.Y. 1916) | 1916 | Filipino/White
Persons three-quarters Filipino and one-quarter White are not White |
In re Mallari 239 F. 416 (D. Mass. 1916) | 1916 | Filipinos are not White |
In re Rallos 241 F. 686 (E.D.N.Y. 1917) | 1917 | Filipinos are not White |
United States v. Javier 22 F.2d 879 (D.C. Cir. 1927) | 1927 | Filipinos are not White |
De La Ysla v. United States 77 F.2d 988 (9th Cir. 1935) | 1935 | Filipinos are not White |
De Cano v. State 110 P.2d 627 Wash. 1941 | 1941 | Filipinos are not White |
Hawaiian | ||
In re Kanaka Nian 6 Utah 259 21 Pac. 993 (1899) | 1899 | Hawaiians are not White |
Japanese | ||
In re Saito 62 F. 126 (C.C.D. Mass. 1894) | 1894 | Japanese are not White |
In re Yamashita 30 Wash. 234 70 Pac. 482 (1902) | 1902 | Japanese are not White |
In re Buntaro Kumagai 163 F. 992 (W.D. Wash. 1908) | 1908 | Japanese are not White |
Bessho v. United States 178 F. 245 (4th Cir. 1910) | 1910 | Japanese are not White |
In re Young 195 F. 645 (W.D. Wash. 1912) | 1912 | Japanese/German
Persons half German and half Japanese are not White |
In re Young 198 F. 715 (W.D. Wash. 1912) | 1912 | Japanese/German
Persons half German and half Japanese are not White |
Ozawa v. United States 260 U.S. 178 (1922) | 1922 | Japanese are not White |
Sato v. Hall 191 Cal. 510 217 Pac. 520 (1923) | 1923 | Japanese are not White |
Korean | ||
Petition of Easurk Emsen Charr 273 F. 207 (W.D. Mo. 1921) | 1921 | Koreans are not White |
Mexican | ||
In re Rodriguez 81 F. 337 (W.D. Tex. 1897) | 1897 | Mexican are White |
Native American | ||
In re Camille 6 F. 256 (C.C.D. Or. 1880) | 1880 | Native American/White
Persons half White and half Native American are not White |
In re Cruz 23 F. Supp. 774 (E.D.N.Y. 1938) | 1938 | Native American/African
Persons three-quarters Native American and one-quarter African are not African |
In re Burton 1 Ala. 111 (1900) | 1900 | Native Americans are not White |
Punjabis | ||
United States v. Ali 7 F.2d 728 (E.D. Mich. 1925) | 1925 | Punjabis (whether Hindu or Arabian) are not White |
Syrians | ||
In re Najour 174 F. 735 (N.D. Ga. 1909) | 1909 | Syrians are White |
In re Mudarri 176 F. 465 (C.C.D. Mass. 1910) | 1910 | Syrians are White |
In re Ellis 179 F. 1002 (D. Or. 1910) | 1910 | Syrians are White |
Ex parte Shahid 205 F. 812 (E.D.S.C. 1913) | 1913 | Syrians are not White |
In re Dow 213 F. 355 (E.D.S.C. 1914) | 1914 | Syrians are not White |
Ex Parte Dow 211 F. 486 (E.D.S.C. 1914) | 1914 | Syrians are not White |
Dow v. United States 226 F. 145 (4th Cir. 1915) | 1915 | Syrians are White |