Enjoyed By White Citizens

Published date01 August 2021
Date01 August 2021
Enjoyed by White Citizens
NANCY LEONG*
Whiteness is invisible in American law. The U.S. Constitution never
mentions white people. Indeed, the entirety of constitutional and statutory
law, at both the federal and state level, includes only two antidiscrimina-
tion statutes that refer explicitly to white people. These Reconstruction-
era statutes—42 U.S.C. § 1981 and § 1982—declare that all people shall
have the “same right” regarding contracts and property as that “enjoyed
by white citizens.”
This Article argues that the unique visibility of whiteness in § 1981
and § 1982 presents an opportunity. The plain language of these statutes
exposes whiteness and requires explicit analysis of the contract and
property rights that white people enjoy. To remain faithful to the statu-
tory text, courts must consider why white people serve as a statutory
benchmark in the f‌irst place—a task that forces a reckoning with
America’s long history of white supremacy. Further, courts must examine
the nature of the contract and property rights that white people
“enjoy”—a task that requires them to examine how these rights aff‌irma-
tively provide pleasure and satisfaction.
The contract and property rights enjoyed by white and nonwhite people
remain profoundly unequal, but § 1981 and § 1982 offer a powerful tool for
reform. The two statutes provide not only an important avenue for litigation
but also a valuable model for legislation and a catalyst for public discourse
that openly examines whiteness and the benef‌its that it confers.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1423
I. THE INVISIBILITY OF WHITENESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1427
* William M. Beaney Memorial Research Chair and Professor of Law, University of Denver Sturm
College of Law. © 2021, Nancy Leong. I am grateful for helpful comments from Rebecca Aviel, John
Bliss, Stephen Calabresi, Alan Chen, Jack Chin, Dave Fagundes, Charlotte Garden, Ce
´sar Garcı
´a
Herna
´ndez, Emily Hughes, Sam Kamin, Michael Kang, Heidi Kitrosser, Margaret Kwoka, Kevin
Lynch, Justin Marceau, Viva Moffat, Govind Persad, Lisa Pruitt, Jessica Roberts, Leonard Rubinowitz,
Kate Shaw, Nadav Shoked, Brian Soucek, and Eli Wald, as well as for suggestions that I received during
faculty colloquia at Northwestern University School of Law, UC Davis School of Law, Iowa School of
Law, University of Houston School of Law, and University of Denver Sturm College of Law. During
this long, strange year I am sure that I have received feedback from other colleagues whose names I have
accidentally omitted, and I greatly appreciate their contributions as well. Stephanie Frisinger, Miriam
Kerler, Marissa Peck, Siera Schroeder, and Kevin Whitf‌ield provided amazing research assistance.
Finally, I deeply appreciate the hard work of The Georgetown Law Journal editors, especially Marcella
Bianchi, Hannah Flesch, Darren James, Phillip Kim, Adam Mitchell, Brittany Neihardt, Lily Sawyer,
Nicholas Yacoubian, and the Volume 110 staffers.
1421
A. DEFAULT WHITE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1427
B. DEFAULT PRIVILEGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1430
II. INVISIBILITY IN THE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1433
A. WHITE ABSENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1434
1. Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1434
2. State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1435
B. THE CIVIL RIGHTS ACT OF 1866 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1437
C. JUDICIAL INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1440
III. ENJOYING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1442
A. PLAIN MEANING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1443
1. “Enjoyed” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1443
2. “By White Citizens” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1445
3. Misinterpreting Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . 1446
B. ENJOYING CONTRACTS AND PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . 1447
1. Enjoying Food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1448
2. Enjoying Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1451
3. Enjoying Mobility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1454
4. Enjoying Fashion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1457
5. Enjoying Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1462
IV. SEEING WHITE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1467
A. COURTS ......................................... ....... 1467
B. LEGISLATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1469
C. DISCOURSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1470
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1471
1422 THE GEORGETOWN LAW JOURNAL [Vol. 109:1421
INTRODUCTION
It is idle to say that a man is free who cannot go and come at pleasure, who
cannot buy and sell, who cannot enforce his rights.
–Senator Lyman Trumbull, author of the Civil Rights Act of 1866
1
Whiteness is invisible in American law. The U.S. Constitution never explicitly
mentions white people.
2
On one level this absence is remarkable. After all, the
Constitution was written exclusively by white people, to ref‌lect the interests of
white people, to protect the rights of white people, and to create a government
run by white people.
3
Against the backdrop of its drafting, however, the absence of whiteness in the
Constitution is entirely unsurprising. A document created at a time of uninter-
rupted white supremacy did not need to explicitly mention white people.
4
The
Framers of the Constitution believed it self-evident that only white people were
entitled to the rights and privileges laid out in America’s founding documents.
5
The superior status of white people was seen as so obvious, natural, and correct
that the Framers did not need to recognize it explicitly.
6
1. CONG. GLOBE, 39th Cong., 1st Sess. 43 (1865) (statement of Sen. Trumbull).
2. See generally U.S. CONST.
3. By white people, I actually mean white men, given that women of all races were, at the time,
profoundly subordinated to men and lacked basic civil rights such as the ability to vote. Although this
Article focuses on race, gender is also relatively unexamined in the original U.S. Constitution and early
legislative enactments.
4. Throughout this Article, I use legal scholar Frances Lee Ansley’s def‌inition of white supremacy:
“[A] political, economic and cultural system in which whites overwhelmingly control power and
material resources,” and in which “white dominance and non-white subordination are daily reenacted
across a broad array of institutions and social settings.” Frances Lee Ansley, Stirring the Ashes: Race,
Class and the Future of Civil Rights Scholarship, 74 CORNELL L. REV. 993, 1024 n.129 (1989). As legal
scholar Erika K. Wilson has emphasized, “this def‌inition of white supremacy focuses primarily on the
institutional arrangements that underlie white supremacy and only secondarily on individual race-based
animus.” Erika K. Wilson, The Legal Foundations of White Supremacy, 11 DEPAUL J. FOR SOC. JUST. 1,
3 (2018). Although for some the phrase white supremacy may conjure images of pointed white hoods
and shouted epithets, this Article focuses instead on structural conditions that advantage white people as
a group. And although white supremacy has both individual and structural manifestations, this Article
urges greater attention to systemic aspects of racial inequality rather than a view of white supremacy as a
set of individual, overt acts.
5. See, e.g., RICHARD D. BROWN, SELF-EVIDENT TRUTHS: CONTESTING EQUAL RIGHTS FROM THE
REVOLUTION TO THE CIVIL WAR 123–38 (2017) (examining white supremacy at the time of the
Founding).
6. See, e.g., HENRY WIENCEK, MASTER OF THE MOUNTAIN: THOMAS JEFFERSON AND HIS SLAVES
(2012) (cataloging evidence of Jefferson’s white supremacist views); Michael J. Klarman, Brown,
Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881,
1895 (1995) (“The best ‘scientif‌ic’ evidence of the mid-nineteenth century held that racial differences
were natural, the supremacy of the white race was self-evident, and racial segregation an imperative for
the survival of both races.”); Samuel Marcosson, Colorizing the Constitution of Originalism: Clarence
Thomas at the Rubicon, 16 LAW & INEQUALITY 429, 429–30 (1998) (imagining the dilemma that Justice
Thomas would have faced had he been on the Court when Loving v. Virginia, was decided, given that
“the Framers of the Fourteenth Amendment neither believed nor intended that their handiwork would
invalidate State anti-miscegenation laws”).
2021] ENJOYED BY WHITE CITIZENS 1423

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