Inconsistencies in Harris’ “Whiteness as Property”

I understand that these blog posts are meant to be relatively short, but the more I looked at the essay given to us, the more it seemed deeply flawed to me in ways we did not have time to go over in class. I realized I had a great deal to say about it and this seemed the place to put it.

Harris makes the argument that “whiteness”, the racial identity of a person as ‘white’ is a form of property in America. To this end she presents several statements that explain exactly what she means. I think these statements are key to understanding the deep logical and ethical problems with her essay and her arguments. She claims,

“Whiteness — the right to white identity as embraced by the law — is property if by “property one means all of a person’s legal rights” (pg. 280)

“Property is nothing but the basis of expectation…consist[ing] in an established expectation, in the persuasion of being able to draw such and such a benefit from the thing possessed.” (pg. 280)

“…those expectations in tangible or intangible things which are valued and protected by the law are property.” (pg. 280)

She further makes a claim that I think is the beginning of the flaws of the essay.

“Although the existence of certain property rights may seem self-evident, and the protection of certain expectations may seem essential for social stability, property is a legal construct by which selected private interests are protected and upheld.” (pg 280)

“It is contended that property rights and interests are not “natural” but “creation[s] of law”.” (pg 280-281)

Harris has essentially done away with ideas of natural law here. Her fundamental ideological claim is that there is no natural law behind things and all of our conceptions of race, identity, and rights are in fact social constructs created by and protected by an arbitrarily constructed human system of laws meant to protect a single groups interests. If we take her statements “whiteness is property of by property one means all of a persons legal rights” and “property is a legal construct” side by side, this becomes painfully apparent.

She doubles down on this point in statements made later in the paper. She vehemently attacks the ideas of natural law and paints them as hypocritical and destructive when she references their usage. She says

“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” (pg. 286)

However, Harris quickly contradicts her initial ideology, stumbling into logical inconsistency. Her entire argument is based on the idea that the treatment of blacks was unethical and transgressed their rights. However, the idea that rights and racial identity are arbitrary social constructs, not the product of natural law, CANNOT be held logically at the same time as the idea that the laws are transgressing the rights of any person or group. It just doesn’t work. If rights are created by the law, then the law cannot possibly fail to recognize someone’s rights because they have no rights unless the law says they do. 

You cannot say that the law is failing to recognize rights unless you admit that there is a source of rights which is not the laws of men, and which supersedes the laws of men in a fundamental way. Unless you admit the existence of natural law. But Harris does just that. As we have seen, she has denied the existence of natural law and has attributed the existence of rights to the arbitrary laws of men. There are no “rights”, there is only the interests which the law either protects or does not protect. But in her own essay, Harris laments what she sees as an unjust state of affairs in the modern world and says,

The existing state of affairs is considered neutral and fair, however unjust and unequal it is in substance” (pg. 287)

You cannot attack the idea of fairness, of natural law, and then expect to be able to use fairness in your own defense. 

Furthermore, Harris seems to have no qualms whatsoever in appropriating the racial categories she so denounces to make her own points and advance her own ends. She spends some of page 283 and most of page 284 criticizing the way that the American judicial system created the racial distinctions of “White” and “Black” or “Native American”. She finishes the section by saying

In the realm of social relations, racial recognition in the United States is thus an act of race subordination. In the realm of legal relations, judicial definition of racial identity based of white supremacy reproduced that race subordination at the institutional level. In transforming white to whiteness, the law masked the ideological content of racial definition and the exercise of power required to maintain it: “It convert[ed] and abstract concept into [an] entity (pg. 284)

On the very next page, Harris quotes Du Bois, saying 

[whites] were given public deference…because they were white. They were admitted freely with all classes of white people, to public functions, to public parks…The police were drawn from their ranks, and the courts, dependent on their votes, treated them with…leniency…Their vote selected public officials, and while this had small effect upon their economic situation, it had great effect on their personal treatment…White schoolhouses were the best in the community, and conspiculously placed, and they cost anywhere from twice to ten times as much per capita and the colored schools. (pg. 285)

She repeatedly uses statements just like this to pain a picture of her supposed current and past white privilege. And lest it be said that she is simply describing the unfortunate state of things, not advocating it’s continued existence, It bears mentioning that there is perhaps no system in law today that more codifies the existence of and differing social status of the racial groups that she so disdains than affirmative action.

She goes on to continue her criticism of white privilege in modern society, which also keeps maintaining the existence and veracity of the racial boxes she criticizes the existence of. She says 

Nevertheless, whiteness retains it’s value as a “consolation prize”: it does not mean that all whites will win, but simply that they will not lose, of losing is defined as being on the bottom of the social and economic hierarchy—the position to which blacks have been consigned (pg. 286)

To begin with, this statement seems just utterly untrue. Being white or black makes no difference whatsoever in the life of a homeless alcoholic drug addict who is sleeping in a gutter and eating trash. To claim that white people cannot fall to the bottom of the social and economic hierarchy seems to be either inexpressibly naive, or more likely deliberately misleading. 

Secondly, she has again rushed to the use of these exact same categories of whiteness and blackness to make her point. She paints the modern world as existing in this way. Far from arguing for the dissolution of these categories, her every statement validates their existence, making ready use of them. One can’t help but see it as disingenuous at best. 

Perhaps the most puzzling of all, Harris claims on page 286 

White workers often identify themselves primarily as white rather than as workers because it is through their whiteness that they are afforded access to a host of public, private, and psychological benefits.

This statement seems so impossibly ludicrous to me that I scarcely know how to interface with it in a logically coherent manner. But, here goes. Racial identification in the workplace is something that is asked and/or required only in light of affirmative action these days. It isn’t white supremacists who made it a requirement for job applications to have those “voluntary” self identification forms on them. Furthermore, I invite anyone who has worked many working class jobs, as I have, to think if they have ever heard anybody going around talking about how wonderful it is to be white, how proud they are of their whiteness, how it is their whiteness that defines their life, rather than their job (or anything else for that matter), or touting the benefits accorded to them as white. The only time anybody in those positions ever asks a worker to racially identify is when affirmative action requires them to do so.

Harris also makes claims that seem to me to be obviously untrue about how the law deals with racial minorities and what she calls “oppressed” groups. Harris states

“[The law] has refused to recognize group identity when asserted by racially oppressed groups as a basis for affirming or claiming rights.” (pg. 287)

As we’ve already discussed, Harris doesn’t believe in rights and has no business talking about them at all, but even if she did, this statement would still be nonsense. The Civil Rights Act of 1964 does this implicitly and explicitly. The Fifteenth Amendment to the U.S. Constitution reads

“The right of citizens of the United States to vote shall not denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

More examples could be provided, and easily at that. Her statement is obviously untrue at every single level of government.

The logical and moral inconsistencies of Harris’s arguments are most clearly visible in her closing ideas about affirmative action. She says, 

“[Affirmative Action] directly confronts the notion that there is a protectable property interest in whiteness” (pg 289)

If property is nothing but the expectation of being able to draw some advantage from the thing possessed, as Harris claims on page 280, then what Affirmative Action is doing is not in fact confronting the idea that there is a protectable property interest in whiteness, unless by that you mean it creates a protectable property interest in blackness (or other racial minority-ness). It creates an advantage, defined and protected by law, extended to those of racial minorities, which they can expect to draw from their racial “property”/identity. It hasn’t changed the idea at all, just taken the same tool Harris protests against and uses it again, this time in her favor. It isn’t morally superior, it is just the other side of the same coin. 

Her justification for doing so is found on pages 288-289. She claims

“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 antisubordiantion, not principles of black superiority.”

What is hiding behind this storm of confusing words is the core idea that “It’s wrong for white people to view their racial identity as property because they did/do it as a means to oppression of blacks. It’s okay for black people to view their racial identity in the exact same way (we won’t use ‘property’ to describe it), because they are the oppressed.”

No.

That’s not how logic works.

That’s not how morality works. 

You cannot claim that it is wrong for one people to encode their racial identity into law to draw advantages from it, and then allow another race to do so. This is the very definition of racism, which she is claiming to denounce while she actively advocates doing something she has claimed is racist. By her own logic, by her own definitions, she is deeply inconsistent with her own ideas of property and racial identity.