Friday, December 03, 2021

 RacismLogo02

Article Index

Become a Patron

 

Excerpted from: Ian Haney Lopez ,  White By Law:  The Legal Construction of Race.  New York:  New York University Press, 1996.   

 

IanFHaneyLopezAlthough 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

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

  patreonblack01