U.S. Constittuion and Harris – Literature and Law Spring 2020

Treasured Property: Our racial reality

Cheryl Harris’ “Whiteness As Property” didn’t really come as a surprise to me, for me it put everything I was already familiar with into one article. The part that stood out the most for me was the introduction, it gives somewhat of an emotional and more personal factor which made me feel a connection to the author. Harris talks about her grandmother being able to pass as a white woman, which allowed her to get a job in Chicago’s central business district. The line that stood out the most to me was on page 276, in the fifth paragraph, “Each evening, my grandmother tired and worn, retracted her steps home, laid aside her mask, and reentered herself.” This line was heartbreaking, having to endure hateful comments from your coworkers as well as take on an identity you’re not would definitely take a toll on anyone. Being white meant better jobs, nobody subjecting you to hateful comments, and overall being seen as the “better race.” Unfortunately, in today’s society, it still means a lot of those things. I think one of the main points of this article was to say to the reader “hey, being White was treasured property in the 1930s, but it’s still a thing and we should talk about it.”

Towards the end of the article, another quote was able to stand out to me was on page 286, where Harris talks about how whiteness is a “consolation prize,” she goes on to say “it does not mean that all Whites will win, but simply that they will not lose, if losing is defined as being on the bottom of the social and economic hierarchy—- the position to which blacks have been consigned.” A lot of this article, but specifically this line reminded me of a quote that has been drilled into my mind as an African American: “In order to get half of what they have, you have to work twice as hard.” Even if we were to get twice as good, we’re still sometimes reaped with half the benefits. This took a complete 180 for me right back to the introduction, Harris’ grandmother could get a job being black, but being White opened more doors for her. Being White meant that she would be able to better sustain her family and probably even make a better income, in short being White is beneficial to White people.

Partus Sequitur Ventrem

In both Philip’s and Harris’ works, there is a question, spoken or non, about the association of blackness to property.

For Harris, she noted that slavery was a system that thrived from the division of color, facilitating the idea that ownership was a birthright of skin tone. On page 278, Harris says, “…the institution of slavery, lying at the very core of economic relations, was bound up with the idea of property.” There were many continuing underlying issues perpetuating the idea of whiteness as property, but the most notable was the monetary gain white slave owners were earning from their black slaves.

Philips examined every line of text from the Zong legal case and offered her own expert insight on the determination of the case. As she tore into insurance and property law, she highlighted several key points, one of which was the reasoning behind throwing the African slaves overboard. The insurance company would have to pay the Captain and the family buying the slaves money for “loss of property and income.” In the original case document, the slaves were referred to as “cargo.” Slaves were considered property.

I find it interesting that in both readings we hear cases for blackness as property, and in each case, the law stands on the side of white, property-owning citizens. Even though the law does not strictly mention skin color, it mentions property, and slaves had their statuses legally demoted to “domestic animal” and were branded as animals (Duke Law). This was because whites had adopted the Roman law of partus sequitur ventrem. It handled the legal status of animals in Rome, but the law had been twisted to fit the needs of slave owners by becoming “a legal doctrine concerning the slave or free status of children born in the English royal colonies” (Wikipedia, Duke Law). Both authors make strong legal arguments that blackness was a determinant of property, and I believe they are correct in their stances of black skin color sealing slaves’ fates as property.

Duke Law: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5386&context=faculty_scholarship

I realize Wikipedia isn’t a good source, but Duke Law stated the same idea. Wikipedia just said it better.

Passing in Whiteness as Property

Within Harris’ article she describes her grandmother’s experience with passing. She describes how “anonymity was possible for a black person with white features” (276). Her grandmother’s ability to deceive the public’s evaluation of her immediate appearance allowed her to transcend some of the social constructs put in place at the time. Visual appearance created a societal separation between people of one race and another. This separation created opposition and animosity. To move past this social boundary some African Americans utilized their inherited “white” features to pass for white themselves. This allowed them to operate beyond the restrictions placed upon the social, cultural and racial group to which they had belonged.

In one of my prior courses, which was focused on Modernsim, we read Passing by Nella Larsen. This story describes the fictional experiences of black Americans in the early twentieth century who attempted to “pass” for white as well as the opposition to the practice. It detailed the internal struggles and fears associated with being caught within the lie. It really made the reader consider the turmoil that could happen within a person denying who they are and where they came from. This piece by Harris reminded me of this novel and made my experience reading those few lines on her grandmother’s life much more potent. I believe it also assisted me in trying to understand her perspective when writing this piece.

Presentation of Law in Two Constitutions

While reading, I was drawn to do a close reading comparison of the Haitian Constitution and the U.S. Constitution. I am currently in a Constitutional Law class so I couldn’t help but note the differences between the document from Haiti and here. Specifically, the biggest difference is in how the law is presented. One aspect of the United States Constitution that is frustrating in a Con Law class, but I found an appreciation for after reading the Haitian document, is the fluidity of it. The US Constitution is crafted in a vague way, especially in the Bill of Rights. I think that this vagueness and introduced elasticity is actually beneficial for the law. The law in the U.S. Constitution becomes malleable in a way that is still firm, but also open to interpretation. It opens it to changing times and beliefs so that it is not stuck in tradition, but able to move forward with the people. For example, the First Amendment says that “Congress shall make no law establishing religion, or prohibiting the free exercise thereof” which may seem specific, but is not. It brings up the questions of “what is a religion”, “can Congress allot tax money to religious organizations with secular aims”, etc. These are all questions that have answers that can change with the time because the law, in this case, is how it is interpreted. The Haitian Constitution does not have this flexible aspect. It seems that the clauses are very specific. Article Two says that “slavery is abolished forever”. This applies to the list of duties of the government as well. The U.S. Constitution lists vaguely again the roles of each branch of government, but the Haitian Constitution gets specific. Article 15 says that “The Empire is one and indivisible; its territory composed of six military divisions”. I should also note that there are some strangely vague parts like the article about the “good father”, but for the most part, I see this Constitution as something very specific. There is little room there for potential change. I am not here to argue that one is better than the other, but it is interesting that the U.S. Constitution opens the law to change, while the Haitian Constitution sets it more firmly.

Founding White America

“Indeed, the very fact of citizenship itself was linked to white racial identity” (285).

To be white was to be free, but the necessity of being white was an unwritten clause in the Declaration of Independence. Harris comments that the “concept of whiteness” was “established by centuries of custom (illegitimate custom, but custom nonetheless)” (280). Harris argues that justice and subsequently equality are heavily dependent on the color of one’s skin. On page 279, she states, “Whiteness was the characteristic, the attribute, the property of free human beings.” Slavery was a system that thrived from the division of color, facilitating the idea that ownership was a birthright of skin tone. There were many continuing underlying issues perpetuating the idea of whiteness as property, but the most notable was the monetary gain white slave owners were earning from their black slaves. I believe it’s also important to note that, while Harris focuses primarily on slavery, these statements transcend the historical timeline to modern day where white privileges are sprouts on the deeply rooted practice of slavery. There is an expectation of inferiority associated with blackness in America, a concept supported and uplifted, according to Harrison, through the perpetuated encouragement of the establishment that was slavery.

The Significance of Native Americans and their History in “Whiteness as Property”

In the article, “Whiteness as Property,” Cheryl I. Harris addresses the racism that has been embedded into the American society as a result of white privilege being protected under the law. Harris introduces her believe that the origin of this phenomenon stems from the justification of whites conquering the land that was once inhabited by the Native Americans. Harris writes, “the conquest, removal, and extermination of Native American life and culture were ratified by conferring and acknowledging the property rights of whites in Native American land. Only white possession and occupation of land was validated and therefore privileged as a basis for property rights” (278). She incorporates the history of whites conquering the land of the Native Americans’ into her argument as an example to further illustrate America’s history of whites’ dehumanization of minorities and how the nation was formed as a result of oppressing a race that whites have deemed as inferior to themselves. From day one, the American society was constructed to favor whites over other races. It was justified for the whites to conquer the Native American land because they felt that they had the privilege to exploit everyone, even though they were living on this land before them. This addition was necessary to Harris’ article because she shows how the American society was built on the foundation that whites are superior and therefore entitled to enjoy privileges that other races cannot. The racism that is prevalent today originates from whites having this self-proclaimed superiority since America’s beginning.

What is sad, frustrating and disappointing; is that over five hundred years have passed since this moment and white supremacy is still prevalent today. The United States is a nation divided by varying racial and political beliefs. Harris is able to use her personal experiences to address the privilege that America’s society has given to whites, dating back to the justification of conquest of the land that once belonged to the Native Americans. But, what can be done to change the ways that whites have been entitled throughout America’s history?

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.

The Property of “Whiteness”

This set of prose was especially interesting to me as I had never read an article where the idea of privilege and institutionalism was directly related to the property of citizens, also known as “whiteness”. The author, Cheryl I. Harris, goes into detail about how whiteness is property based on the laws of America and having that particular amount of property, gives you the advantage above most people who don’t have it. The author defines whiteness as “the characteristic, the attribute, the property of free human beings…” (279). It is so important to begin with the definition of the advantaged within our country before we understand why that is.

Property and the advantage during this time is described as wealth and privileges. The idea that the government is there to protect your property at any cost during this time is not only biased but just blatantly racist. In this article we can understand that even poor white people had more of an advantage than free African or Native Americans. This means that the whites would have had more support and rights than anyone else even though they might own less property. For example, whiteness was seen as “-the right to white identity as embraced by the law-is property if by ‘property’ one means all of the person’s legal rights” (280). Overall, the property of their “whiteness” gives them the leverage needed to create a great life and social status.

Even according to Harris, although “blackness” is organically property, it is not looked at the same way that “whiteness” is. The advantage is that the whites, since the beginning, have dominated other races, even buying them as property. Therefore, “It is contended that property rights and interests are not “natural” but “creation[s] of law” (280-281). To explain, the only reason other races have been put down and are considered disadvantaged, was all based on the laws of our country. For example, slavery, sharecropping, etc. were all legal ways of life, supporting the white idea of gaining social status by owning and the repression of other races.

Whiteness as Property

William Stover

I found this to be a really interesting take on an issue that has been discussed quite often recently: the idea of white privilege and white institutionalism. This in- depth description of whiteness and “the others” stands out from other pieces that I have read because of the concept of property. The writer makes a point that I never really considered when reading or referring to the constitution: whiteness is seen as property so that it can exclude and remain to itself. It is something that was sought after due to its implications of wealth, class, and a variety of other characteristics deemed to be pleasant. Certainly, her ideas force me to look at the Constitution in a bit of a different light. It makes me think more deeply about some of the concepts introduced by our founding fathers.

Here, the writer speaks a great deal about the founding of the United States. She speaks of the importance of “natural law” that usually has a rather nonmalignant connotation. However, Harris writes that this idea of natural law was something made up so that whites could be separate from and more powerful than other races, and have the law to back that behavior up. She mentions that whites tend to see natural law as positive and important without understanding that these purposefully implemented laws were used to kick out natives and to put down blacks, all by giving undeserved power to the white race. Harris uses many gruesome examples of colonial theory such as the utilization and exploitation of black women to sort of breed slaves, among other ideas.

Property is associated with ownership, with wealth, with class, and with privilege. It is something that cannot be tampered with or taken because it is inherently “yours”. The law tells us that. From Harris’s work, I take it that she is bothered by the idea that one could be born into a private, privileged group simply because of their complexion and family roots. She points out that because of the protection of whiteness as a form of property, it forces others to be intruders or at least put into a separate, less than realm.

There is a ton of history, some dark, written about in this piece. Given that, it was a lot for me to digest. However, I feel like the ideas presented are fair ones and should be discussed. There is something about the work as a whole that is off-putting for me, and I kind of feel like the writer does a lot of grouping. I am not going to say that she is wrong about anything she discusses (I think she has great ideas), and I absolutely feel more educated about the topics presented, but it was a bit difficult for me to get through at times. Overall, I think the ideas brought forth were interesting, complex, and begging to be discussed.