Whiteness is not property: deconstructing critical race theory

This is a long post, in part because I do not have time to write a short one. It is a response to a 1993 Harvard Law Review essay by Cheryl L. Harris arguing for the notion of whiteness as property. I not only critique that claim, doing so gives me an opportunity to demonstrate the problems with the treatment of "race" by the critical race theory/intersectionalism/identity/diversity streams of thought that the essay is an example of.

Normally, when I discover a Law Review article on a matter I am concerned with, I am pleased. Law Review articles tend to be thorough, strongly evidence-based, with careful interrogation of key concepts, being thus very useful. The Columbia Law Review article “Polygamy, Prostitution and the Federalization of Immigration Law” (pdf) on immigration bars on Chinese entry, for example, epitomises these virtues.

Sadly, these virtues are not universal. In particular, the careful interrogation of key concepts can be rather lacking, as in this 1993 Harvard Law Review article, “Whiteness as Property” (pdf) by Cheryl L. Harris. Take the following passage:

In addition to the theoretical descriptions of property, whiteness also meets the functional criteria of property. Specifically, the law has accorded "holders" of whiteness the same privileges and benefits accorded holders of other types of property. The liberal view of property is that it includes the exclusive rights of possession, use, and disposition. Its attributes are the right to transfer or alienability, the right to use and enjoyment, and the right to exclude others. Even when examined against this limited view, whiteness conforms to the general contours of property. It may be a "bad" form of property, but it is property nonetheless.

There follows various arguments that inalienability does not preclude something from being property, that whiteness is used by its possessors and that it is exclusory. Yet nowhere does Harris establish that either law or custom explicitly viewed whiteness as property: it is all inference without explicit statement—an odd sort of property, that. Even the argument on inalienability rather fails to distinguish between what is not allowed to be alienated and what is not capable of being alienated. Something incapable of being alienated rather lacks any need to be designated as property: it certainly cannot be surrendered into the public domain, as property typically can. 

It is true that entire human bodies can be alienated (that makes one a slave) and that control over labour services can be alienated (that makes one a serf), but one’s “racial” identity cannot be alienated, merely adjudicated. Being “black” made it possible to be a slave, but did not make one a slave; one was not enslaved by one’s “blackness”. 

Someone has an economic property right in some attribute if they control the attribute. It is a legal property right if the law recognises and endorses such control. Being included, or excluded, from some group is not controlling an attribute. Indeed, the urgency of being “white” was precisely that it was not an individually controlled attribute, it was a profoundly legally and socially beneficial status. It is precisely this social nature which makes it not property. 

As is nicely stated in this deeply enlightening discussion (pdf) of the filtering role of duels of honour:

Social capital is an inalienable asset which generates value through connections with other people. Because social capital requires the cooperation of others in the group for it to be useful, it is not a form of private property like physical or human capital. As such it is not transferable to other levels of society, and investments in it are sunk.

As has been similarly the case with being "white". 

The whiteness construction

Talking of “whiteness” is a crucial move in Harris’s reasoning, and an increasingly common usage. To talk of being white as-a-thing-you-had makes it easier to conceive of “whiteness” as being property, but it is deeply dubious move if such a usage was not part of the common usage, rather than an ideological term of art. 

“White” was what you were, it was the group you belonged to; not a distinctive personal feature you had, with its benefit being precisely its group nature. If it is a group you belonged to, then it is not personal property. After all, why is not then “maleness” or “femaleness” property? Or “heterosexuality” or any other group identity? 

Being accused of being black did damage your reputation, but it did so because it assigned you to a different group subject to exclusions and denigrations. It was an in-group out-group dynamic and hardly the only one in operation. After all, the wrong of racism is precisely that stigmatisation by general category, of being judged by something other than “the content of your character”; these being personal, in the sense of particular to you, characteristics which your race is not. 

What other group characteristic are property? If all of them are, all of them at least that are subject to some legal differentiation, then we would seem to have lots of overlapping property, which is not how property generally operates, it being based on control of some distinguishable attribute.

Yes, being white was exclusory in the sense of you belonged to one racial group and not another but it was not exclusory in the sense of only you can use of this particular thing, this specific owned attribute of something. All “white” people were “white”, with all the legal and social advantages that entailed. In Harris’s usage, they all “had whiteness”. This is not why property concerns itself with in being exclusory: separating you off from everyone else in a way that makes it your property and no one else’s. After all, the crucial element in property rights is not “mine!”, that is compatible with endless fights over control. The crucial element in property rights is “yours!”, whether it is individually yours or collectively yours, with a legal property right being such because the law says or agrees that it is yours. 

Something that everyone in the community “has” is not property, it is in the public domain. Even something that is shared by a group is in a common domain, that is a public domain for the sharers (though not for the excluded). “Whiteness” was at most a shared common good, not personal property. A club good, from which outsiders could be excluded. We do not turn membership of a club into a “clubness” or think of it as such. The club typically owns property and the members may own the club, but individually they only have use of the club’s property; which they lose access to if they cease being members. 

Preserving one’s identity as “white” meant preserving one’s membership of a racial club operating as a social cartel. If there were not common benefits from which outsiders could be excluded, it would not be a club good. It is the existence of those exclusory common goods which Harris is critiquing, but their very nature as the shared benefit of “whiteness” operating as a group contradicts the notion that “whiteness” is property that individuals had. In fact, even seeing “being white” as a common good is dubious. The racial club did not own “whiteness” (though it did adjudicate who was, or was not, “white”), it owned access to various social goods, which provided a reason to define who was white. Being “white” was the membership characteristic, not the property.

The path dependence of race

The American colonies were establishments by invaders of new societies based on dispossession of the original inhabitants. This is hardly a unique feature in human history. What was somewhat unusual compared to pre-1500 history was the ancestry distance between invaders and invaded. Their differing continental origins enabled the distinction between them to be characterised as a racial one. Especially as the invaders were themselves of somewhat varied ethnic origin (English, Scottish, Welsh, Irish, Dutch, German ...). Race created both a commonality and a distinction: of being not “reds” and of being “whites” together. Abstraction away from culture was a prime feature of both the commonality and the distinction. The abstracting-away thinness of the racialised identity was crucial to making it work.

It was, in fact, a quick-and-dirty way of labelling people of European origins. A commonality which involved some overlapping factors (overwhelmingly Christian, cultures which sanctified monogamy, mutual historical and cultural awareness) none of which were, in any useful sense, racial.

The commonality and the distinction were social and political. Features the colonial legal systems evolved to maintain—not least in what form of “first possession” counted in establishing property rights. The communal systems of the original inhabitants did not count, the individual systems of the invaders did. As Harris pertinently observes:

Citing custom as a source of property law begs the central question: whose custom?

Harris describes what went on a “racial subordination” but it was more a process of racial exclusion—excluding the “reds” from the political nation(s) of the colonies. It became one of subordination as “reds” became permanent inhabitants of the United States. But it was always an erratic structure of domination, subject to various exceptions and evasions. A Choctaw Confederate General and a Kaw Vice President would hardly have been possible in any thorough system of racial subordination. Nor was having members of the former Hawaiian royal family be prominent Republicans.

Contingency of race

Race is inherently a fuzzy boundary concept, which is why systems based on racial identity generate awkward which race? cases as a matter of course. If one does not understand the historical contingency of race as a classifying system, one does not understand it. Which means understanding that race is a particular way of engaging in in-group/out-group distinctions. Such distinctions are ubiquitous in human societies. Harris starts her article by movingly describing the experiences of her grandmother in “passing” for a few years as “white” in postwar Chicago. The experience reads as having been remarkably like being in the closet. (Not that they were quite the same closets: the line “you don’t have to tell your mother than you’re black” comes to mind.)

Exclusory race talk typically engages in claiming a much grander metaphysical grounding for race in order to justify racial exclusions, but understanding and rejection of the use of race in such ways require grasping how specious these metaphysical pretensions are.

Which is precisely the grasp that critical race theory, intersectionality and identity politics generally lack. These daisy chains of theory are as committed to treating race as a metaphysically profound designation as any white exclusionist. Hence the readiness to talk of racial subordination, white supremacy (which, to the extent it points to a genuine phenomenon, was often, though not always, just racialisation of majority advantage). Hence also the failure to refer to broader human patterns. 

A failure which is evident in Harris’s discussion of slavery:

In 1662, the Virginia colonial assembly provided that "[c]hildren got by an Englishman upon a Negro woman shall be bond or free according to the condition of the mother ...”. In reversing the usual common law presumption that the status of the child was determined by the father, the rule facilitated the reproduction of one's own labor force.

Well yes, which is why serfdom operated similarly—if either parent was a serf, then so was the child. Estate holders obviously had a powerful interest in having marriage add to their bound workforce rather than subtract from it. 

Economics of bondage

Slaves, being property, could not get married. Indeed, the total legal negation of rights is what distinguishes slave from serf. Slavery and serfdom are, however, both forms of labour bondage. Some understanding of the general patterns of human bondage is helpful if one is going to discuss slavery. 

Hence, when Harris writes:

The further entrenchment of plantation slavery was in part an answer to a social crisis produced by the eroding capacity of the landed class to control the white labor population.

she is touching on, in typically portentous terms for this stream of thought, why slavery was such a pervasive element in the European occupation and exploitation of the Americas. 

The importation of the entire Eurasian disease pool to the Americas devastated the indigenous population, creating a massive scarcity of labour compared to available land. This could be solved by importing labour—either from Europe or from Africa. 

Given the scarcity premium on labour in the Americas, indenture was a relatively attractive deal to European workers precisely because the full scarcity premium of labour in the Americas became available as soon as the indenture ended. Slaves were slaves until their owner freed them, so a much better deal for landholders, at least for activities where the supervision was able to overcome the inherent motivational resistance of bound labour, particularly slavery. The typical means of doing so was production by work-gangs.

Ability to sufficiently profitably overcome said motivational resistance was far from the case for all the economic activities of the American colonies. Which is why many of the colonies had few slaves and came to abolish slavery during and after the Revolutionary War. The patterns of the slave states did not transfer to all states: hence the American Civil War. Portentous statements about “social crisis”, “control”, “racial subordination”, “white supremacy” fail rather dismally in explaining and understanding the complexities of the actual historical patterns. 

A house divided

Which is why writing up slavery as if it was a universal characteristic of the American colonies, or even of the United States, is so profoundly misleading. On the contrary, it was a serious tension point right from the beginning. When Harris writes: 

Slavery produced a peculiar, mixed category of property and humanity - a hybrid possessing inherent instabilities that were reflected in its treatment and ratification by the law. The dual and contradictory character of slaves as property and persons was exemplified in the Representation Clause of the Constitution. Representation in theHouse of Representatives was apportioned on the basis of population computed by counting all persons and "three-fifths of all other persons" - slaves. Gouveneur Morris's remarks before the Constitutional Convention posed the essential question: "Upon what principle is it that slaves shall be computed in the representation? Are they men? Then make them Citizens & let them vote? Are they property? Why then is no other property included?"

She is making an excellent point on the tension between property and slavery, even if she takes it for granted rather than it being, as it was, another contingent feature of using race as a divider. 

The tension between property and persons was a result of Christianity—it was not a distinction Roman law had any particular difficulty with, straightforwardly treating slaves as owned animals. Indeed, it was precisely because Christianity took all humans to be beings with souls and children of God that the denigration of the excluded had to be so intense so as to justify the level of degradation slavery required. Pagan Rome had no such moral presumption to overcome and suppress.

But lawyer and politician Gouveneur Morris (1752-1816) was also the most prominent critic of slavery at the Constitutional Convention. The slave states were certainly part of the United States, but only part. There have always been large sections of the US where the African-American population has been a small, even tiny, proportion of the population. Such states and regions could function just fine being “American” without race being as remotely salient as it was in the slave states, or in Northern cities after the great migrations. 

It was certainly true that “whites” could not be slaves did help make the American system of slavery one of the most closed in human history, creating the intense racial exclusions and subordinations of the American South. One that, after the failure of Reconstruction, needed both legal coercion and the permitting of extra-legal violence to maintain. Take both away, and the system collapsed rather speedily. Racial subordination may explain the need for the Civil Rights Acts and the Voting Rights Act, but does rather less well at explaining their passing, implementation and effects thereof. 

Building polities

Even for the period when slavery was operating, Harris’s attempts to generate hard racial lines within implicit legal theory fails to cope with awkward complexities. In particular, the ability to free slaves rather gets in the way of equating “white” and “black” with “free” and “slave”. The category of “free black” is another indicator of the awkward contingency of racial categories. (So, of course, was the phenomenon of “passing”.)

Somewhat unusually, a definition of white supremacy is provided: 

I adopt here the definition of white supremacy utilized by Frances Lee Ansley:
By "white supremacy" I do not mean to allude only to the self-conscious racism of white supremacist hate groups. I refer instead to a political, economic, and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.

The American colonies were established under the authority of European powers by people of European origin. The specific British colonies that formed the United States were settler colonies established in that manner which then successfully revolted against the political authority of their founding State and federated together. Their political nations were made up of people of European origin, dispossessing Amerindians and importing sub-Saharan Africans as slaves. 

In order to generate a common political identity, and exercise and justify the dispossession of the former group and the enslaving of the latter, racial categories were utilised and racial stigmatisation and valorisation mobilised. But there was enormously more to what was going on than differing skin tones and other physical markers of racial categorisation. 

Those commonalities and differentiations “worked” because they were pursued by, and in the interests of, the majority, often the overwhelming majority, of the residents of the colonies. This was majority dominance categorised in racial terms, when and where such was useful. To label it “white supremacy” not only strips away (as racial categorisations do) cultural and institutional legacies, and specific histories, it maintains and replicates those racial categorisations. It is not only a speciously narrowing categorisation, it entrenches race talk in a very destructive way. 

To understand it, correctly, as majority dominance categorised in racial terms connects the phenomenon to its key dynamics and to relevant cases elsewhere in human history. To label it as white supremacy not only does none of that, it gets in the way of doing any of that. It was not the dominance of a particular skin tone, it was the dominance of numbers combined with institutional and technological capacity, characterised in racial terms. The particular form of characterisation certainly had consequences, as noted above, but the dynamics operating do not even remotely start with race. Social dynamics never do. The “what do we have in common?, what differentiates us from others?” questions were not the original motivations, they were questions that arose in the course of colonisation and settlement. 

And they did so even if there was no local slave race. Harris writes:

Although not accorded the privileges of the ruling class, in both the North and South, white workers could accept their lower class position in the hierarchy "by fashioning identities as 'not slaves' and as 'not Blacks." Whiteness produced - and was reproduced by - the social advantage that accompanied it.
Whiteness was also central to national identity and to the republican project. The amalgamation of various European strains into an American identity was facilitated by an oppositional definition of Black as "other. As Hacker suggests, fundamentally, the question was not so much "who is white," but "who may be considered white," as the historical pattern was that various immigrant groups of different ethnic origins were accepted into a white identity shaped around Anglo-American norms.

The same process occurred in colonial Australia, without any African slaves. The existence of a racially distinct indigenous people, the awareness of differing continental races and the wish to block tropical zone migration in favour of temperate zone (specifically European) migration was more than sufficient to generate a “white” identity. Which is why the non-slave states in the US did not need local slaves to generate a “white” identity. Harris’s analysis is deeply flawed because of the lack of awareness of more general historical patterns, a perennial flaw in US social analysis in general and critical race theory in particular. 

Stigmatising the excluded and exploited

Harris notes that as property limits on voting were abolished, racial exclusions on voting were imposed:

The inherent contradiction between the bondage of Blacks and republican rhetoric that championed the freedom of all men was resolved by positing that Blacks were different. The laws did not mandate that Blacks be accorded equality under the law because nature - not man, not power, not violence - had determined their degraded status. Rights were for those who had the capacity to exercise them, a capacity denoted by racial identity. This conception of rights was contingent on race - on whether one could claim whiteness - a form of property. This articulation of rights that were contingent on property ownership was a familiar paradigm, as similar requirements had been imposed on the franchise in the early part of the republic. For the first two hundred years of the country's existence, the system of racialized privilege in both the public and private spheres carried through this linkage of rights and inequality, and rights and property. Whiteness as property was the critical core of a system that affirmed the hierarchical relations between white and Black.

Both Islam and colonising Christendom engaged in stigmatisation of sub-Saharan Africans because both, as universalist religions and moral systems, had to justify why they were enslaving children of God without bringing them fully into the community of God. In the case of Islam, similar stigmatising rhetoric for the same reason was applied to “white” folk from the North—as the Slavs were also a slave race. 

In his Al‐tarif bi-tabaqat al-umam (Book of the Categories of Nations), the geographer Sa’id al-Andalusi(1029-1070), makes various observations about the peoples of the known world:

Chapter 3: Nations having no interest in science 

The rest of this [category], which showed no interest in science, resembles animals more than human beings. Those among them who live in the extreme North, between the last of the seven regions and the end of the populated world to the north, suffered from being too far from the sun; their air is cold and their skies are cloudy. As a result, their temperament is cool and their behavior is rude. Consequently, their bodies become enormous, their color turned white, and their hair drooped down. They have lost keenness of understanding and sharpness of perception. They were overcome by ignorance and laziness, infested by fatigue and stupidity. Such as the Slavonians, Bulgarians and neighboring people.
Also in this category are the people who live close to the equinoctial line and behind it to the populated world to the south. Because the sun remain close to their heads for long periods, their air and their climate has become hot: they are of hot temperament and fiery behavior. Their color turned black and their hair turned kinky. As a result, they have lost the value of patience and firmness of perception. They are overcome by foolishness and ignorance. These are the people of Sudan who inhabited the far reaches of Ethiopia, Nubia, the Zini, and others. 

Chapter 5: Science in India

The Indians, as known to all nations for many centuries, are the metal [essence] of wisdom, the source of fairness and objectivity. They are peoples of sublime pensiveness, universal apologues, and useful and rare inventions. In spite of the fact that their colour is in the first stage of blackness, which puts them in the same category as the blacks, Allah in His glory, did not give them the low characters, the poor manners, or the inferior principles, associated with this group and ranked them above a large number of white and brown peoples. 

The most intense stigmatization by the Islamic geographer is reserved for groups subject to mass slaving by the Islamic world, displaying what became a common pattern in Islamic intellectual discourse, particularly in al-Andalus and the Maghreb. Even now, Arabic for ‘slave’ (abeed, a derivative of abd, slave or servant, as in Abdullah, ‘servant of Allah’) is also used derogatively for “black”. Such stigmatizing-to-justify mass slaving generated remarkably similar language within Islam to that used later in both the antebellum South and the Jim Crow South, except that in the Islamic case it is also applied to “whites” because they were also enslaved. 

Slavery drove the stigmatisation, not the other way around. Just as invasion and conquest drove stigmatisation, not the other way round.  

The suffrage Harris is writing about above were male-only franchises. “Whiteness” did not give women the vote. If “whiteness” enfranchised only if paired with “maleness”, then “not-Black” seems to be the crucial requirement, rather than any positive element of being “white”. Once again, “whiteness” is the marker for a common status granting access to various social benefits from which people were able to be excluded, rather than a collection of individuals with particular property holdings in a specific, yet common, attribute. 

Harris continues the pattern of generalising from the slave and former slave states to the US in general: 

Even after the period of conquest and colonization of the New World and the abolition of slavery, whiteness was the predicate for attaining a host of societal privileges, in both public and private spheres. Whiteness determined whether one could vote, travel freely, attend schools, obtain work, and indeed, defined the structure of social relations along the entire spectrum of interactions between the individual and society. Whiteness then became status, a form of racialized privilege ratified in law. Material privileges attendant to being white inhered in the status of being white. After the dismantling of legalized race segregation, whiteness took on the character of property in the modern sense in that relative white privilege was legitimated as the status quo.

That the Jim Crow Southwas a regime of racial subordination is obvious. That this could be identified as a general regime inherent in American identity is a very different claim. The federalism of the United States was part of its fundamental structure. 

In considering Plessy v Ferguson, the infamous “separate but equal” case, Harris does have a case of the courts, the US Supreme Court no less, seeming to write as if being white was property:

If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

Except the court is actually stating that a person could be construed as having property in their reputation and being white is part of their reputation, which is not quite the same thing. As Harris notes, Plessy’s lawyers had argued for being white as a property Plessy had, but the Court ignored the argument, hence the “so-called”. 

Harris’s claim that Brown v Board of Education, the case that overturned “separate but equal”, allowed whiteness as property to be re-instituted in more subtle terms is tendentious in the extreme. Her argument is that the Supreme Court failed to address the material inequalities that African-Americans were subject to so “white domination” remained. Even if one granted that that was something the US Supreme Court could and should have done, that does not remotely establish the continuation of “whiteness” as property. A continuing social advantage yes, but not a claim in law granting control over some attribute. 

Harris continues her argument from Brown I to Brown II, arguing that ordering desegregation “with all deliberate speed” rather than immediately was a deference to white interests effectively maintaining “whiteness” as property. Even if the Supreme Court presuming a certain amount of administrative action would have to be undertaken was a subtle way of incorporating white concerns, that hardly maintains whiteness as a property claim in law. Indeed, the subsequent development of judicially-mandated busing surely made it clear that there was no such claim. 

Similarly, Harris’s claim regarding Milliken v Bradley, in which the US Supreme Court held (5:4) that prior actions to segregate suburbs did not require ameliorative action: 

Like the substantive inequality of power and resources in Brown, the white privilege and Black subordination fostered by systems of interlocking private and public power was left intact by Milliken. 

also does not establish “whiteness” as a property in law. Indeed, Harris’s critique of the individualist basis of liberal theory as reflected in law—that it does not recognise group identity—rather fundamentally undermines her claim that whiteness continued to be a property claim in law. 

Similarly her claim that white identity blocks working class whites from “seeing” their class oppression does not sit well if one compares the US to other Western liberal democracies. The failure of socialism, or an explicitly socially democratic political party, to adhere as a mass political movement in the US has more to do with the open frontier and ethnically diverse waves of migration; in other words, to the “white” identity not establishing sufficient commonality, than the existence of an African-descended minority. Especially a minority subject to a host of formal and informal exclusions.

Harris arguing that, in the case of Mashpee Tribe v. Town of Mashpee regarding tribal property:

Whiteness as property assumes the form of the exclusive right to determine rules; it asserts that, against a framework of racial dominance and unequal power, fairness can result from a property rule, or indeed any other rule, that imposes an entirely externally constituted definition of group identity. 

continues to confuse property with club membership while elevating the metaphysical status of race by abstracting away from culture and history. It is the common (but exclusory) good of rule-making that is the basis of her complaint. A complaint which must surely lose force the moment that judges and legislators of African-descent start being appointed or elected.

Just as the common law originally represented a distillation of the common elements in the various legal systems operating in Henry II’s Kingdom of England, so Americanism was about distilling and creating common elements from the ethnically varied European origins of the polity-creating population(s). Which could be, and was, negative, even oppressive, for indigenous Americans. But a set of cultures which had suppressed any element of tribal identity to the point of extinction centuries previously were hardly likely to manage tribal identity well, even with the best will in the world (which was frequently lacking). Especially when abstracting away from ethnic difference was a continuing purpose of American identity and law. 

Precisely because Harris is so committed to reifying race so as to give it moral grandeur, she fails to grasp that much opposition to affirmative action is precisely about extending that abstracting away from difference instead of extending a common Americanness to African-Americans so as to swap past exclusion for present and future inclusion. 

Dividing forever

If one cannot grasp the historical contingency, the path-dependent happenstance, of racial identifications and their use, their historically specific logic, one is stuck with being committed to the forever-universality of race. Making “whiteness” crucial to Americanness has the perverse effect of blocking full incorporation of African-Americans into American life and politics. However obnoxious and oppressive racial exclusions were, they arose out of a particular historical dynamic. Indeed, they were a particular aspect of a much wider project. For African-Americans to be fully incorporated into that wider project requires inclusion on the basis of what is shared, of what is common, not endless differentiation on the basis of what is different, even if (in some ways especially if) the relative normative valorisations are not reversed. 

Harris is against “reducing race to color”: not surprising, as mere colour is insufficient to make race a metaphysically grand concept, fundamental to one’s identity. She is also against colourblindness as an ideal:

This protection of the property interest in whiteness is achieved by embracing the norm of colorblindness ... colorblindness is a form of race subordination in that it denies the historical context of white domination and Black subordination.

Separate but equal was a false doctrine, yet it is hard to see how some intersectional version of it (equal but separately identified) can be other than a perverse reversal; especially as the “black” identity is, in fact, clearly regarded as morally superior to being “white”. But Harris’s contention that colourblindness, a claim that race is not an appropriate legal and social distinction, maintains “whiteness” as property, shouts how far from any coherent legal doctrine of property the argument has wandered. 

I would be the last to claim that the legacy of slavery and racial oppression is irrelevant to current American realities—see my essay Bravado in the Absence of Order. But the realities are much more complex than “oppression did it”. In particular, the African origins of African-Americans makes a difference, not least because the family and kin systems of sub-Saharan Africa are so profoundly different from those of Europe and Asia (which, as anthropologist Sir Jack Goody perennially pointed out, were much more like each other than either was like those of sub-Saharan Africa; even before considering the exacerbating disadvantages from the severe effects of slavery on family structures). The complexity of social capital and family dynamics, including parenting practices and patterns, casts serious doubt on how much affirmative action can be successfully remedial. But framing everything in terms of oppression simply closes off any such considerations: indeed, such considerations are anathematised as “blaming the victims”. 

There are many reasons that East Asians and South Asians in general do so much better than African-Americans. In part, it is migrant selection-and-initiative advantages that recent African immigrants also share. But it is also enduring social capital and family coherence and strategy advantages that have nothing to do with “whiteness” that Asian immigrants and their descendants conspicuously do not have. If “whiteness” is property, they neither have it, nor seem to suffer from the lack. The alleged benefit and explanatory value of “whiteness” in the contemporary US fails precisely because South Asians and East Asians can be so readily incorporated into the American project, which does not require “whiteness” as either a differentiation or a commonality: it was merely convenient and beneficial for many to use it as such. 

In the context of Regents of University of California v. Bakke, Harris attacks the notion that exam results represent a neutral form of merit:

The idea of merit embodied in the opinions of the plurality have the character of property; the law ratified the settled expectations in a particular definition of merit as MCAT scores and GPAs, even though in fact merit is not only shifting, but also is imperfectly measured by the chosen standard.

As the current controversy over Harvard’s restricting the number of Asian-American students demonstrate, it is simply nonsense to connect an exam success notion of merit with “whiteness”, still less to see it as a form of property. Whatever the limits of exam results as measures, the SAT penalties that affirmative action generates are patently morally arbitrary—precisely why should Asian-American students suffer any penalty due to the legacies of slavery and Jim Crow? (And why should recent African immigrants get any benefit therefrom?) Even with the presumption of inter-generational guilt that is pervasive in identity-intersectionality-critical race theory, it patently does not pertain to Asian-Americans.

In the case of Griggs v Duke Power, where the US Supreme Court ruled that: 

tests having a disparate impact on minorities could be invalid regardless of intent, unless shown to be related to job performance.

a result hardly in line with any notion of “whiteness”-as-property. Harris discusses the case in a footnote, holding that it:

demonstrates the correlation between increased reliance on testing and increased demands for integration.

Well yes, but a correlation that hardly helps her argument. Testing provided both a non-discretionary filter and, potentially, a filter disproportionately favouring (or disfavouring) a group: neither establishes or supports “whiteness” as any sort of property. 

The conflation of identity with property inherent in the concept of “whiteness”-as-property comes out clearly in Harris’s discussion of City of Richmond v Croson: 

Treating white identity as no different from any other group identity when, at its core, whiteness is based on racial subordination ratifies existing white privilege by making it the referential base line.

“White” identity is an oppressor identity: presumably until the end of time. So, that racial prejudice is at a low ebb and declining becomes irrelevant. Indeed, intent and action becomes irrelevant, “whiteness” is all about structural guilt. No attempt to take race out of legal distinctions can ever be legitimate, because it “equalises” oppressors and oppressed, who are frozen in those roles by historical legacies. 

Thus does the property of “whiteness” becomes permanently and inherently morally delegitimising and the only legitimate way for law to operate is to recognise that. Which, would of course, on the arguments advanced previously by Harris, create “Blackness” as property. 

The reifying of race is clear. The intersectional, critical race theory, “equal but separately identified” is thus demonstrated to be every bit as self-refuting as “separate but equal”, with racial ranking being the inevitable result of valorising racial identities. A result which requires blocking off any aspiration to eliminate racial differentiation.

The failure to grasp the contingency of racial categorisation in order to reify race is very clear when Harris writes:

... race oppression has meaning in this country not because of what has been done to whites because of their racial identity, but what has been done to those who are not white in the name of protecting whiteness.

Being “white” was convenient commonality, it was form of social cartelisation, it was not the purpose of the state, which is why the US can move on from such cartelisation; albeit clumsily and fitfully, but sometimes dramatically. 

The discussion by Harris of Wygant v Jackson Board of Education provides another example of how continuing an established way of treating people (teacher seniority as reverse indicator for layoffs) is classed as “whiteness”-as-property because there was a previous exclusion in place. Simple inclusion is not enough, there has to be a new racial ranking where “Blackness” is a positive characteristic, and “whiteness” a negative one. 

Harris denies that the implication of her arguments is to establish “Blackness” as property for: 

Affirmative action does not embody a conception of Blackness that is the functional opposite of whiteness, because Black identity, unlike whiteness, is not derived from racial subordination. Affirmative action does not reify expectations of continued race-based privilege, for it does not implement a permanent system of unfair advantage that is then naturalized and held outside the boundaries of continued scrutiny.

“Oppression”, in the form of subordination, is operating as a magic wand here, waving away obvious implications. Harris argues that:

If affirmative action is viewed through the prism of distributive justice, the claim of white innocence no longer seems so compelling, because a distributive justice framework does not focus primarily on guilt and innocence, but rather on entitlement and fairness. Thus, distributive justice as a matter of equal protection requires that individuals receive that share of the benefits they would have secured in the absence of racism.

If “Blackness” is not property, then affirmative action has a use-by date. It is clear that no such use-by date is being countenanced, which has the effect of, if one accepts the basis of her previous arguments, turning “Blackness” into a property to be recognised by the courts every bit as much as “whiteness” allegedly was. 

  

Harris argues that:

Equating affirmative action with whiteness as property, however, is false and can only be maintained if history is ignored or inverted and the premises inherent in the existing racial hierarchy are retained. Whiteness as property is derived from the deep historical roots of systematic white supremacy that has given rise to definitions of group identity predicated on the racial subordination of the "other," and that has reified expectations of continued white privilege. This reification differs in crucial ways from the premises, intent, and objectives of affirmative action.

Something that is not possible to alienate, which is structural, and consisting of reified expectations is hardly property in any useful sense of the term. In order to avoid the claim that affirmative action creates “Blackness” as property, Harris undermines her original claim that “whiteness” is property.   

Her commentary also tends to wildly overestimate how much “white” outcomes rested on exclusion of “blacks”. Much of the point of the exclusions was precisely that (1) mainstream society could function just fine with the exclusions and (2) legal and extra legal measures were required to maintain the exclusions, otherwise the normal operations of commerce would tend to act to include. 

In some areas of the US, African-Americans were large enough that the exclusions did operate to boost “whites”, though only via expenditure of considerable efforts which seriously limited the material benefits for “whites” of such exclusions. The status gains way exceeded the material ones. The overturning of Jim Crow was a long term boost to the economies of Southern states (pdf). 

In most of the US, African-Americans were simply not a large enough group for the exclusions to generate major material benefits (as distinct from status ones). The reification involved in “white supremacy” obscures considerable complexity. 

Harris attempts to claim a basic asymmetry as protection against any notion that affirmative action creates "Blackness" as property: 

Fundamentally, affirmative action does not reestablish a property interest in Blackness because Black identity is not the functional opposite of whiteness. Even today, whiteness is still intertwined with the degradation of Blacks and is still valued because "the artifact of . . . 'whiteness' sets a floor on how far [whites] can fall." Acknowledging Black identity does not involve the systematic subordination of whites, nor does it even set up a danger of doing so. Affirmative action is based on principles of antisubordination, not principles of Black superiority. 

If being white, having the quality of “whiteness”, is a morally inferior identity because it is oppressive, then a moral hierarchy is being set up, as the subsequent development of identity politics has made very clear. 

That affirmative action has been of considerable advantage to recent African immigrants rather reinforces it operating to create being “black” as an advantage: and doing so with considerable irony, as, to the extent the ancestors of recent African immigrants had anything to do with slavery, it is much more likely to have been on the side of being slavers rather than slaves. 

Breaking up social cartels

Moreover, the end of Jim Crow has seen striking improvements in the economic position of (pdf) African-Americans in the Southern US. It turned out that ending racial exclusion was enough in itself for the inclusive, positive-sum nature of commerce to work its effects. Benefits that dwarf anything affirmative action can plausibly said to have done apart from its role in ending such exclusions. 

The afore-linked papers on economic improvements in the American South after the end of Jim Crow do make the point that the dismantling required on-the-ground activism, including use of affirmative action measures. But that experience provides a clear point of differentiation: if affirmative action measures work to break up racialised social cartels, they are a useful and beneficial policy. If they persist after racialised social cartels have already been broken up, then they operate against common rules as the basis of a shared society, and move from being a socially-positive policy to being a socially-negative, even toxic, policy. 

Harris suggests that affirmative action could undermine notions of property generally:

A conception of affirmative action that would dismantle whiteness as property raises similar implications about the meaning of property for it is dissonant with notions of property, such as the absolute right to exclude.

But that could be turned around: abolishing racial exclusion in itself, over time, corrodes the past effect of racial exclusions. 

As to some grander critique of property, a common status built on exclusion is not property in any sense that resonates with common usages and understandings of property. People do not, and did not, control their “whiteness” in any way that was analogous to how they control their actual property. One could not, for example, as one can with actual property, abandon “whiteness” to the public domain. On the contrary, every white person is indelibly tagged with the oppressive nature of “whiteness”.

“Whiteness” was not property any more than, to use another advantageous caste identity, being Brahmin is property. Being “white” was used as an identity of racial inclusion (those of European origins together) and of exclusion (against “reds” and “blacks”). In doing so, the usage also incorporated the stigmatising that goes with such in group/out group exclusions. Reducing people to such a superficial identity as race and then (positively or negatively) valorising it is morally repugnant, no matter for what purpose one does so. 

Race is something to be put in a fuzzy statistical box where it belongs, not turned into either a moralised obsession or a categorical pattern. To inflate race in such a way effectively requires avoiding complexities of human society in order to create racialised narratives. Ironically, doing so does not increase one’s perceptions of relevant social dynamics, but requires narrowing one’s vision in order to avoid all those complexities that do not conform to any merely racial narrative. It is only by seeing clearly the relentless historical contingency of racial categorisations that we can understand their role.

[Cross-posted at Skepticlawyer.]