Friday, May 24, 2019
Ian Haney Lopez

excerpted from:  White By Law:  The Legal Construction of Race. 
New York:  New York University Press, 1996.

Learn more about the book.
 



Introduction (Excerpts)

Racial PreRequisite Cases - Chronological Order

Racial Prerequisite Cases by National Origin 

Afghans Arabians Armenians Asian Indians Burmese Chinese Filipino Hawaiian Japanese Korean Mexican  Native American Punjabis  Syrians 



Excerpts

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


RACIAL PREREQUISITE CASES - 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

 


 

 





 


 


 

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