Performing whiteness: naturalization litigation and the construction of racial identity in America.

• Author: Tehranian, John

--Herman Melville, Moby-Dick(1)

1. INTRODUCTION: THE ANTINOMY OF WHITENESS

   The antinomy of whiteness has haunted our nation since its founding. For much of American history, the concept of whiteness has embodied an ostensibly august and pure tradition while simultaneously enforcing a regime of fear and oppression. This internal contradiction is poignantly unmasked in Herman Melville's 459-word sentence from Moby-Dick about the color white and all of its accompanying honor and terror. Captain Ahab's mad search for the great white whale matches the American Republic's fruitless search for a concept of race(2) around which it could organize itself. Even today, the concept of race remains vital for an understanding of our social structures. To almost all Americans, the word "white" continues to connote race. The color has transcended its chromatic meaning and woven itself into a web of social, political, and economic entanglements that define our nation and its people, for better or worse. Despite the importance of racial definitions to individual identities and social structures, whiteness has remained an elusive and abstract concept. During the late nineteenth and early twentieth centuries, immigration statutes forced the American legal system to confront the task of defining what or who constituted the white race for the purposes of naturalization.

   Shortly after the ratification of the Constitution, Congress limited naturalization to "any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years."(3) Following the Civil War, Congress responded to the Dred Scott(4) decision by extending the right of naturalization to "aliens of African nativity and to persons of African descent."(5) Until 1952,(6) only whites and blacks could qualify for naturalization.(7) During the early years of the Republic, no litigation resulted from these naturalization requirements. At that time, the ethnic makeup of the country lent itself to a strict division between white and black. However, as a new wave of immigrants began to enter the country in the latter half of the nineteenth century, the law was forced to deal with an influx of individuals who did not fit so neatly into the constructed racial categories of the time. A wave of litigation ensued over the naturalization law's racial prerequisite. Fifty-two cases were reported between 1878 and 1952. In all of these cases, an individual sued to be declared white by law after being denied citizenship rights by immigration authorities on the grounds of racial ineligibility.(8)

   While litigation over whiteness often grew absurd, with judges delving into the depths of antiquity, reconstructing history, and spouting rigid ideologies in order to justify their rulings, the reification of whiteness had a profound impact on shaping the immigrant experience in the United States. Whiteness was transformed into a material concept imbued with rights and privileges, such as the franchise, for those who conformed to its definition.(9) As Cheryl Harris argues, "[I]n the early years of the country, it was not the concept of race alone that operated to oppress Blacks and Indians; rather, it was the interaction between conceptions of race and property that played a critical role in establishing and maintaining racial and economic subordination."(10) Similarly, for immigrants of the late nineteenth and early twentieth centuries, the critical interaction between racial classifications and property played an instrumental part in the creation of socioeconomic hierarchies. In California, for example, whiteness determined the ability of immigrants to participate fully in the economy. The Alien Land Law,(11) passed in 1920 and upheld as constitutional by the Supreme Court in 1923,(12) prohibited non-citizens from owning property in the state. Furthermore, other regulations prevented non-naturalized immigrants from exercising certain economic rights such as obtaining fishing(13) or law(14) licenses.

   An examination of the racial-prerequisite cases reveals the process of litigating whiteness in action. Ian Fidencio Haney Lopez's acclaimed book, White by Law: The Legal Construction of Race,(15) covers some of this ground. In his study, Haney Lopez analyzes the Supreme Court's rulings in Ozawa v. United States(16) and United States v. Thind(17) and the cases that led up to the two decisions. Prior to the Supreme Court's rulings, Haney Lopez observes, the lower courts wavered between two competing doctrines in determining whiteness--the common-knowledge test and the scientific-evidence inquiry. Ultimately, he argues that Ozawa and Thind marked the victory of the common-knowledge test.(18) The Court acknowledged the failure of the scientific model of racial determination and acceded to an explicitly constructed notion of race. Thus, he concludes succinctly that "[l]aw constructs race":(19) Race is not merely a scientific reality but a social construct, and the law emerges as one of the most potent forces in this process of construction.(20)

   In his analysis, Haney Lopez ignores the race prerequisite cases occurring after the Supreme Court's rulings in Ozawa and Thind, arguing that those fifteen cases "adduce little new in terms of racial rationales."(21) To him, these cases represent mere applications of the common-knowledge principle to racial determination. However, there is much to be learned from the application of precedent and from how courts chose to interpret the rulings in Ozawa and Thind.

   As this study will demonstrate, a close textual reading of Ozawa, Thind, and their progeny reveals that the dominant criterion for the determination of whiteness was not a scientific standard or even a common-knowledge test, the application of which was quite problematic. Instead, whiteness was determined through performance. The potential for immigrants to assimilate within mainstream Anglo-American culture was put on trial. Successful litigants demonstrated evidence of whiteness in their character, religious practices and beliefs, class orientation, language, ability to intermarry, and a host of other traits that had nothing to do with intrinsic racial grouping. Thus, a dramaturgy of whiteness emerged, responsive to the interests of society as defined by the class in power--an "evolutionary functionalism"(22) whereby courts played an instrumental role in limiting naturalization to those new immigrant groups whom judges saw as most fit to carry on the tradition of the "White Republic."(23) The courts thereby sent a clear message to immigrants: The rights enjoyed by white males could only be obtained through assimilatory behavior. White privilege became a quid pro quo for white performance.

   Part II will examine the Ozawa and Thind rulings and demonstrate how they failed to signal the triumph of a common-knowledge standard. Part III will then analyze the racial-prerequisite cases following Ozawa and Thind. As I will argue, the courts applied Ozawa and Thind by emphasizing the primacy of a dramaturgy of whiteness. Thus, performance became the dominant criterion for racial determination and the courts directly influenced the construction of racial identity. Finally, Part IV will conclude by examining the relevance of the racial-prerequisite cases to current legislation in force in the United States. In particular, I will analyze the continuing impact of racial-definition games on discrimination suits brought under 42 U.S.C. [sections] 1981 and [sections] 1982(24) and on immigration and naturalization laws today.

2. THE SUPREME COURT SPEAKS: OZAWA, THIND, AND THE QUEST FOR A CRITERION TO DETERMINE RACE

   Prior to 1922, two competing doctrines characterized the racial-prerequisite cases: the common-knowledge test and the scientific-evidence inquiry. According to Haney Lopez, the Supreme Court's decisions in Ozawa (1922) and Thind (1923) represented the ultimate triumph of the common-knowledge test in judicial racial determination.(25) As Haney Lopez argues, the common-knowledge standard relied upon "popular, widely held conceptions of race and racial divisions" based entirely on perceptions that might or might not be grounded in physical appearance.(26) This methodology contrasted sharply with the scientific-evidence test, previously in vogue, which had relied upon "supposedly objective, technical and specialized knowledge for racial determination."(27)

   In 1922, Takao Ozawa's petition for naturalization came before the Supreme Court. The Court ruled that Ozawa, an individual of Japanese ancestry, was not a white person and was therefore ineligible for naturalization.(28) In so ruling, the Court held that membership in the Caucasian race was a necessary (though not sufficient) condition to meet the common-knowledge definition of "white person."(29) Since Ozawa was not Caucasian, he could not qualify for naturalization.

   The following year, Thind forced the Supreme Court to clarify which Caucasians constituted "white persons."(30) In the case, Bhagat Singh Thind, an immigrant of Asian Indian heritage, petitioned the Court for naturalization rights. As Thind argued, Indians were classified by anthropologists as Caucasians. Thus, he claimed to be white and eligible for citizenship. The Supreme Court rejected his petition and elucidated the position they had taken in Ozawa. The Court ruled that scientific evidence would no longer be relevant to the racial-determination inquiry.(31) While a scientific standard was consistent with the ruling in Ozawa (by mandating Japanese exclusion from the concept of whiteness), such a test threatened to produce a dangerous result in the Thind case, as scientific evidence suggested that individuals with brown or even black skin color who were anthropologically Caucasian would count as whites.(32) Such an outcome would have undermined and delegitimated the carefully constructed system of racial...