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.

3 thoughts on “Inconsistencies in Harris’ “Whiteness as Property””

  1. I took some time to read over your blog post and I saw that you had some very strong opinions about “The Property of Whiteness” by Cheryl Harris. I think it is important to have differing opinions because it gives us a platform to hear each other out and reach a common ground, but most importantly learn. In the beginning you discuss how you felt that Cheryl has done away with Natural Law and how our laws “cannot possibly fail to recognize someone’s rights”. We have to think about who creates those laws, and who interprets and enforces the laws. They are the individuals that create the environment for blacks to not hold the same rights . We cannot benefit from those same rights as white people because not only do they make the law they also enforce it.

    And in the end of your blog post you took a quote by Cheryl and deduced it to “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.” But what you failed to realize is that when it has been done in the past by white individuals in power, they have done it to keep people of color and other marginalized groups as subordinates. However this is NOT the purpose of affirmative action, it is not black superiority it is a way to attempt to reverse the damage done by the generations before us. To make sure there are places for minorities in a world that has kept them out of every single decision involving their lives. It does not work in the same capacity as when white people have done so in the past and I think that is something that everyone needs to understand. It isnt taking any opportunites away, but giving opportunities to those who have been left out for generations in order to right the wrongs of those before us.

    Liked by 1 person

    1. I agree wholeheartedly that opinions are best shared and discussed. I’m grateful that you took the time to read and respond to my post, and shared your own thinking with me. Thank you for your candor and your thoughts. I appreciate the chance to clarify my thoughts and discuss them. It’s very helpful to me to do so and I hope the discussion is as fruitful for you as it is for me.

      Allow me to clarify my thoughts on the passages you mentioned. First, the passage on Natural Law and Rights. My contention is that Harris has done away with ideas of Natural Law altogether, and thus done away with the ideas of Rights as such. To my thinking, Natural Law has to exist. Certainly, Natural Law was interpreted at the time of slavery, and at many other times, to justify many atrocities. However, I believe that is grounds for refining and perfecting our understanding of it, not for denying its existence all together.

      If, as Harris says, there is no Natural Law, and only the laws of men and society exist, then Black people (or any other people for that matter) only have rights if the laws of the land say they have rights. Because, remember, as per Harris, Rights (being a part of property) are a social construct. This is the claim I take issue with.

      Rights are not a social construct. They exist absolutely as a part of what is often referred to as Natural Law, regardless of any human and societal law. Societal laws may succeed or fail to recognize them, but they have no influence on the actual existence of such rights. If we accept Harris’s argument, we must necessarily admit that, in fact, Black people HAD NO RIGHTS at all. And if this is the case, why ever should the laws of society change to recognize them? Without Natural Law there is no morality and thus no reason to change the laws of society. My contention is that black people DID AND DO HAVE RIGHTS, apart from the laws of society, which it is the responsibility of the laws of men to recognize. Harris, though she may not say so or even realize it herself, is making a profoundly anti-human, anti-rights, anti-morality statement which I am utterly unwilling to accept. And more importantly, Harris goes on to use the claims of morality, justice, fairness, and rights to support her position while she has already undermined them in a fundamental way. That inconsistency demands to be see and I cannot ignore it.

      Secondly, allow me to address the second passage speaking about affirmative action. Harris’s first contention as I understand it, is that by encoding racial identity into law and drawing benefit from such identity which was not extended to those of other identities, those who Harris labels as “white” were doing something deeply immoral and wrong.

      I whole heartedly agree with this statement.

      However, Harris argues that for racial minority groups to do so is acceptable.

      I believe this claim is wrong and deeply disingenuous.

      First off, I think it bears repeating that affirmative action is PRECISELY the thing Harris has denounced. It is the encoding into law of racial identity to allow certain racial groups to gain benefits which are not extended to other racial groups. Harris contends, and if I understand appropriately, you agree, that this case is different on the grounds that this is done with the intention of writing wrongs, whereas when it was done by those Harris labels as “white”, it was done with the intent to oppress.

      This opens an interesting philosophical debate that I think bears laying out. Is it acceptable for an oppressed people to turn the tools of oppression against their oppressors? Does the intent to oppress make the tool of that oppression inherently wrong in and of itself? Does the intent to level the scales make the tool of that leveling right in and of itself? And the tool in question, the encoding of racial identity into law with the intention to draw benefit to certain groups, have itself a moral component?

      These are big questions. Perhaps too big to wholly treat here. I could give my own opinion on the subject, but I don’t believe this is really about my opinions, or anyones for this matter. I’m not attacking Harris on the grounds that I personally disagree with her, I am attacking her article on the grounds that it is logically inconsistent within itself. Harris has made the statement that the encoding of racial privilege into law was wrong. Not that the intention to oppress was what made it wrong, but that to do so in the first place was wrong REGARDLESS of the intention. Then she does precisely the same thing and claims it is right. This is at best a lapse in her logic and at worst is actively deceptive. Either way it is inconsistent and I had to call it out as such.

      Again, thank you for your comment and your thoughts. I appreciate them.

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  2. I am deeply gratified by this thoughtful and respectful exchange, Ny’Tevia and Nick. This discussion is moving beyond the confines of Harris’s essay, which of course it should because Harris is intervening into a debate that was already well in process in 1993 and continues to be active today, albeit in different forms and within somewhat distinct social and political contexts. At the heart of what Nick is saying is a concern that has preoccupied thinkers and writers – legal, philosophical, and otherwise – for a long while now: what happens when we acknowledge the ways in which “natural law,” as construed by prominent Anglo-European Enlightenment thinkers, quite readily excluded Africans, Asians, and Indigenous Americans from its purportedly universalist vision? Within the field of critical human rights discourse, there have been two responses to this dilemma: one involves an outright rejection of the idea of rights, an extension of Jeremy Bentham’s recalcitrant description from the late 18th century of rights discourse as “nonsense upon stilts” (it’s important to note that thinkers in Jefferson and Paine’s own time were also very divided on the existence or at least the relative importance of “natural law”); another, which I would argue is closer to what Harris is doing, involves confronting that historical problem, thinking seriously about the historical legacy of that problem in the present (including economic inequality that has been passed down and exacerbated across generations), and trying to imagine the way in which we might be able to reconfigure the law in order to address those historical injustices. My sense, Nick, is that this is the reason Harris would not agree that there’s anything fundamentally inconsistent in her critique of the ways in which a certain conception of natural law got weaponized in the early Republic and her simultaneous championing of the law, and the connection she draws between race and property, as a tool that might be able to be deployed in a more historically informed way in order to more robustly protect the rights – natural or otherwise – of those who were excluded from Enlightenment universalist vision originally. Ny’Tevia offers up a useful summation of Harris’s rebuttal of the idea that affirmative action is a form of racism in reverse. Harris’s argument was certainly not uncontroversial in 1993, and there is no need, for purposes of this class, for us to all agree with her claims (or with the claims of anything else we read this spring). I will offer the reassurance, for whatever it’s worth, that I haven’t included any texts on this syllabus that I consider to be so flawed that even a reader with very different political/philosophical views couldn’t get something of real value out of taking their words and ideas seriously. I recall a graduate seminar in which another student was voicing a very smart but also very critical set of views on the poem we were reading. The professor responded by asking that student: “If you *were* to have a sympathetic response to this poem, what would it be?” I found that question really useful for my own thinking: the professor granted the student the ability to hold onto his point of view 100%, but also wanted to make sure he was doing more than that, doing the work to view the text from every possible angle, including angles that felt less comfortable or familiar or “right” to him. I tell that story in case it helps you find new ways into Harris’s essay (though you are free to leave it aside as we move on to other readings, of course).

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