whitenessasproperty Notes on: Harris, C.  (1995) Whiteness as Property. In Kimberle Crenshaw, Neil Gotanda, Gary Peller, Kendall Thomas (Eds) Critical Race Theory. The key writings that formed the movement. New York: The New Press, 276 – 292.

Dave Harris (no relation)

[Another dreadful story of legal maneuverings to oppress black people and deny their rights. Some problems -- a reductionist notion of property which might be marxist semi-disguised with legalist argument, further reduced to the famous 'right to exclude', which probably was the major form in the period she is discussing and the one she most objects to re her politics of equality of opportunity. A very good critique of legal argument wit its absurd notions of neutrality, objectivity and social origins -- but that makes it pretty useless as an analogy for social science notions of objectivity and neutrality etc. To accuse us of harbouring the same ideological notions and claims is absurd]

Her grandmother found work in the 1930s only by passing as a white woman, or rather trespassing. It was unthinkable for anyone to actually ask her if she was black — 'she could not have been' (276). She did not reveal her true identity, and occupied a place unknown to her fellow workers. She re-entered her identity at the end of the working day. This was painful and arduous. She felt she had been 'complicit in her own oppression' (277).

'Passing is well known among black people in the USA'. It is well known as a feature of race subordination and is not obsolete. It's related to white racial domination and exploitation which has 'a certain economic logic' because being white means higher economic returns and greater security, gaining access to a set of public and private privileges that mean access to basic needs and therefore survival, a basic level of control over your life. Whiteness therefore can be seen as 'treasured property', 'a valuable asset', which whites come to take for granted, and which are protected and legitimated by the law. American law has always recognised this 'property interest in whiteness' and it is an important background for legal dispute. The relationships between race and property need to be investigated in the ways in which they have produced historical forms of domination and subordination.

The ideological basis for slavery and conquest lay in the 'racialisation of identity and… racial subordination' of both blacks and Native Americans,, although there were different forms of oppression — a preparation of labour on the one hand and land on the other. There was a common notion of property, however. The early interaction between conceptions of race and property played a critical role in maintaining subordination. Treating black people as objects of property permitted 'the hyper- exploitation of black labour' (278) [more than just would be provided by wage labour, but on the other hand, with additional costs as well], contingent on race. The same might be said by making Native American land the property of whites. These offer distinctive forms of exploitation.

At first, racial lines were not consistent or sharp between all social groups. For example captured Africans were distinguished from the population of bond servants who were '"unfree" white labour' (278) but being African was not equated totally with slavery at first. That distinction diminished as terms of service for white bond servants decreased but demand for labour intensified leading to an increase in the number of Africans. The system of chattel slavery was important in the construction of white identity and racial hierarchy. Plantation slavery was an answer to a social crisis produced by the white labour population becoming more difficult to control [some early ones would have been British deportees -- until Independence anyway] . The eventual equation of Africans and slavery arose because all slaves were not white — racial otherness became a way to justify subordinated status. The new social category of '"Negro"' became a sufficient justification for '"enslavability"'. [A bit suspiciously abstract and functionalist so far]. Black slavery triumphed over defenders of indentured servitude because of stronger '"economic and political interests"' [virtually a circular argument]

By the 1660s blacks as chattel slaves was recognised in law, and in the 1680s the first slave codes appeared, codifying the deprivations of liberty 'already existing in social practice'. Laws developed to award different treatment according to racial categories — not permitting blacks to travel without permits, to own property, to assemble, to own weapons nor to be educated. Black racial identity meant subject to enslavement, but white  racial identity meant you were free or at least not a slave. Slave and free became black and white.

The notion of property developed as well. Slavery produced a new mixed category of property and humanity, 'a hybrid with inherent instabilities', exemplified in the Constitution [the basis of population was counted on 3/5 of a person meaning a slave -- and see Bell] , and there was ambiguity about whether slaves were men or property. The same ambiguity affected the notion of a black woman's body as a means of increasing property, with her children as slaves, suspending the usual common law rights. Human beings were commodified. Labour capacity was already sold and oppressive conditions, but slavery was distinguished by its permanency and its total commodification — slaves could be 'transferred, assigned, inherited, or posted as co-lateral'(279) for debt.

Whiteness was a shield from slavery, 'a highly volatile and unstable form of property', making the racial line 'extremely critical' as a form of protection from commodification and a way of allocating benefits and burdens, privilege and protection. Slavery led to the merger of white identity and property. It became crucial to be white, to have the property of being white [bit of a useful pun here?]. Whiteness was the key characteristic of free human beings.

In this, whiteness fits the broad concept of property in classical theory, for example it '"embraces everything to which a man may attach a value and have a right"'. It meant not only external objects and relationships to them but also human rights, liberties, powers and immunities, everything that affected well-being, freedom of expression and conscience, freedom from harm, free and equal opportunities. It was the key to the legal status of a person and conveyed definite valuable benefits. It is property if 'one means all of a person's legal rights' (280).

Other theories of property emphasised that it is natural, based in custom, not produced by government or other more positive activities, but again the balance between these two is changeable. For example Indian custom 'was obliterated by force and replaced with the regimes of common-law which embodied the customs of the conquerors'. For Indians, these were experienced as the imposition of laws by violence. For whites. it was apparently based on 'Lockeian labour theory' [again -- like Australia -- the natives did not actually cultivate the land so they did not really own it etc -- but the Native Americans DID cultivate the land, maybe not on the coast so much, at least until smallpox hit them] . A new custom was established — 'valorising whiteness' and this was extended, further linking whiteness to property.

Bentham thought the property was based on expectations of being able to draw benefit, and this remains significant, so that the expectation of rights has become actual legal property, valued and protected by law, as long as expectations are reasonable. Some might be self evident. Some seem essential for social stability. Selected private interests are protected and upheld in these cases in the form of property rights. The law 'enforces or reorders existing regimes of power'. It produces inequalities as 'conscious selections', meaning that property rights are not natural at all but creations of law. Where there is racial subordination as a basis for social life, white privilege became an expectation, and thus, 'the quintessential property for personhood' (281).

'The law constructed "whiteness" as an objective fact, although in reality it is an ideological proposition imposed through subordination. This move is the central feature of "reification"'. The expectations grounded in the law became tantamount to property themselves. The law reified dominant and subordinate positions in the racial hierarchy, and this 'reproduces black subordination'.

Whiteness 'also meets the functional criteria of property' [what has taken place above is described as the theoretical argument for property]. Those who hold whiteness have privileges and benefits which are the same as those who hold other property, including exclusive rights of 'possession, use and disposition… The right to transfer or alienability, the right to use and enjoyment, and the right to exclude others'. Whiteness 'may be a "bad" form of property, but it is property nonetheless'. In more detail:

Property rights are fully alienable unlike fundamental personal rights, but inalienability itself  has multiple meanings, sometimes referring to interests that are non-saleable, nontransferable, or not subject to market alienability. Usually, it just means that rights cannot be separated from its holder. Thus John Stuart Mill, a major exponent, argued that offices, monopoly privileges and human beings should not be considered as property. By this account, whiteness similarly should not be seen as property [because it cannot be separated from persons]. However, even Mill saw some limits to inalienability, in property rights to natural resources, and the law has recognised other kinds, like personal entitlements to welfare or government licenses, which are often treated as '"new property"': here, the principal objection has been that these types are not productive rather than that they are not alienable. Similarly, in the context of divorce, courts have held that professional degrees or licences held by one party but financed by the other is marital property whose value can be allocated by the court, so that it is included as property. This sort of decision is often justified as a way of avoiding universal commodification and dehumanisation, and safeguarding 'human flourishing', to protect objectification of human beings by not resorting always to market alienability. Following all this, 'the inalienability of whiteness should not preclude the consideration of whiteness as property' (282) [what a typically legal nitpicking argument!] . Indeed, because of its inalienability it may have even more 'perceived enhanced value' [sod off]

Property rights include the rights of use and enjoyment as essential aspects, because property necessarily invokes the will and how we use the things of the world. Whiteness can both be experienced and deployed as a resource, it can move from being a passive aspect to an active entity used to fulfil our will and exercise power, as the state officially recognises. A white person uses and enjoys whiteness when they take advantage of the privileges accorded to white people, exercising particular rights. It therefore becomes usable property protected by the law.

Reputation as property began with early concepts relating to things such as land, revenues from leases on mortgages and life liberty and labour, or ownership of self. Thus reputation 'as an aspect of identity earned through effort was similarly property', and the loss of reputation could be valued in the market. In the USA, 'there is a well established doctrine that to call a white person "black" is to defame her', reaffirmed as late as 1957, when a court decided that the allegation was likely to cause injury'. A black person could not sue for defamation in the reverse case because 'it was presumed that no harm could flow from such a reversal'. All this took place after the end of slavery and the formal end of legal race segregation, when whiteness 'was recognised externally as race reputation… public reputation and personal property'

The absolute right to exclude is connected to the exclusive rights of use, disposition and possession, especially the latter. Whiteness has long been characterised as not only 'an inherent unifying characteristic but by the exclusion of others deemed to be "not white"' (283). This took the form of excluding others from various privileges, enforced by the courts. Moreover, it was based on white supremacy 'rather than on mere difference', reinforcing its exclusivity, and was developed as a theoretical construct for that very purpose, as evident 'during the period of the most rigid racial exclusion'. For individuals, black ancestry 'in any degree, extending to generations far removed, automatically disqualifies claims to white identity'. Because '" identity is continually being constituted through social interactions"', there was a danger of contamination, underpinned by the 'commonly held popular view [that] the presence of black "blood" — including the infamous "one drop" [enacted in legislation to define blackness in a number of states as a matter of having black ancestors however far removed, like the Nazis on Jewish blood] — consigned a person to being "black" and evoked the "metaphor… of purity and contamination"'. Whiteness became a claim to racial purity. 'The law has played a critical role in legitimating this claim'.

[A note makes the point that probably even Africans imported as slaves had 'mixed blood' from contacts with people from the Mediterranean and the Caribbean, including slave traders. The notions of different mixtures of 'blood' producing different castes seems to have developed to considerable lengths in some states with categories like 'mulattos' and 'creole' -- see the extract from Blay's book: https://lithub.com/how-the-one-drop-rule-became-a-tool-of-white-supremacy/. The discussion also shows how widespread miscegenation must have been in practice]

So the law took on the task of racial classification, embracing the 'then current theories of race'. It facilitated systematic discrimination based on apparently precise definitions. This continued 'a century after the abolition of slavery. It claimed it relied on 'bounded, objective, and scientific definitions of race'. It defined whiteness in a way which combined it with privilege. It saw race as determinant, the product of rationality and science, and this made it easy to see the hierarchy 'is the product of natural law and biology… Legitimated by science… Embraced in legal doctrine as "objective fact"'.

There were case laws that ran into problems, for example struggling over the exact fractional amount of black blood that would defeat the claim to whiteness, but the underlying principle was uniformly accepted, based on eugenics and craniology and other objective sciences of the day. [When did it give up this exercise?] Even the courts sometimes noted that individuals appear to be white and has even been regarded as white, yet if their blood were tainted they could not claim to be white and were legally not white. Racial ancestry was of course a fiction and could never be determined with any precision, given that the racial categories of ancestors had probably not been accurately reported, using the same definitions, or that racial purity had never actually existed in the USA. Nevertheless, at least complexion was not taken as definitive [which of course made the law apparently more reliable than mere observation — 'in effect the courts erected legal "no trespassing" signs' (284)]. The courts were important in making an abstract concept into actual practice.

Racial exclusion and subjugation help to 'stifle class tensions among whites', offering white workers an illusion that they had more in common with the bourgeoisie than with fellow black workers, so Dubois argued. [did they fall for it?]. Race identification became important and brought obvious material benefits — white wages exceeded those blacks, and whiteness still yielded what Dubois called '"a public and psychological wage"' (285), public deference, free admission to more places, more lenient treatment by police and the courts, better schooling. This could be seen as more chances to evade class exploitation, develop compensatory identities, [at least they were not slaves or blacks]. Whiteness was central to national identity 'and to the Republican project'. Blacks could be defined as Other. Various white immigrants were accepted into a white identity based around 'Anglo-American norms' but they could then put up barriers to new admissions. There were racist stereotypes like black minstrels or blackface. Whiteness was hyper-valued. The effects on black people could be seen by the painful consequences of having to pass, as at the start of the story.

Whiteness also conferred aspects of citizenship which were denied to others, beginning with the Naturalisation Act of 1790. As whites' democratic rights were expanded, so blacks' rights were contracted — the franchise was extended for propertied white men but black voters were specifically disenfranchised — 'Herrenvolk republicanism' (286). Blacks were different and were exempted from the freedom of 'all men', and this was due to nature, nothing to do with men or power. Rights depended on the capacity to exercise them and that was contingent on race, itself dependent on whiteness as property. So whiteness persisted as 'the critical core of the system' [slightly dodgy link for the last bit].

Whiteness is still materially significant because 'real power and wealth' are still confined to a narrowly defined ruling elite. Whiteness is now a matter of relative privilege 'only in comparison to people of colour' but it still is valuable as a consolation prize, meaning that whites may not win, but certainly they will not lose and end up on the very bottom of the hierarchy. [Not so in Britain then, according to Gillborn and the emphasis on white gypsies and travellers]. The study asking white students how much money they would seek changed from white to black is cited, and the sums quoted include $50 million showing that whiteness is still valuable. that it has a wage regardless of class position [not quite the same as arguing that it is property?]. Whites certainly 'have an actual stake in racism' [citing Crenshaw] and can include themselves in the dominant group even though they hold no real power. They are still afforded access to a range of public, private and psychological benefits and this reduces their class consciousness and diverts them from class oppression. It is true that societal norms stress fairness and nondiscrimination and anti-subordination, but these are 'actively rejected or at best ambiguously received' because of white expectations of self-realisation [they think they will personally benefit — be the last Jews left in Germany]. Whiteness is more than just racial identity but 'a concept based on relations of power' (287).

We find whiteness as property in the 'reification of expectations' in the apparent rights of white dominated institutions to control legal meanings of various kinds. There is the law's misuse of the concept of group identity, for example the way it has codified racial group identities to exclude and exploit, but refused to recognise group identity for racially oppressed groups to affirm or claim rights. It has engaged in '"race –ing"', assigning particular racial identities with inferior status. Liberalism is involved here, by focusing on constitutional protections for individuals rather than groups, itself based on notions of the social contract [Locke again], where groups and organisations are elective, and principles of equality refer only to the equal treatment of individuals. The law decides what counts as facts and it has displayed 'studied ignorance of the issue of racial group identity' and adopted a 'pseudo-objective posture', denying complex dialogues over identity and historical dimensions. It works on 'the basic premise that definition from above can be fair to those below, that beneficiaries of racially conferred privilege have the right to establish norms for those who have historically been oppressed… And that races not historically contingent'. There is a persistent expectation that white -controlled institutions have continued right to determine meaning 'the reified privilege of power' and what that does particularly is 'reconstitute the property interest in whiteness in contemporary form' [very good critique of legal reasoning, but that also limits it as a critique of social science reasoning and limits the analogy. Again the focus on property particularly as the basis of power is too reductive, and ignores Weberian sources of power in bureaucracy and party].

In both de jure and de facto terms, whiteness has value and is valued. All 'expectations that originated in injustice [were] naturalised and legitimated', and reinforced in patterns of oppression, until they became 'institutionalised privileges', settled expectations, ideologies, something appearing as natural although it was originally chosen, so that the 'existing iniquities are obscured and rendered nearly invisible' [no contradictions, relative autonomies or problems in everyday experience?]. Everything looks neutral and fair. Whites see it as part of the natural order of things [even when the law obviously changes and gets politicised?]

The property interest in whiteness is resilient and adaptive. It has changed in form but has retained 'its essential exclusionary character' (288) [so we are identifying essences], and in practice, its protection of things like rights equality means shielding it from interference, preserving only formal equality, protecting settled expectations and existing distributions.

Affirmative action by contrast involves rethinking rights power equality and property 'from the perspective of those whose access… has been limited by their oppression' [but how are they to engage in this rethinking this ideology if it is so dominant?] It is required on 'moral and legal grounds'. It denies the privilege of whiteness and seeks to remove its legal protections. It should equalise treatment — the meaning of this could vary because the extent of privilege and subordination is not constant: in some cases, we might be talking about material factors, but the issue is still 'the unconstrained right to exclude'. [Looks like we are heading toward equality of opportunity?]

However, affirmative action can be seen as performing the same ideological function. Recently, some whites have even claimed to be members of a racial minority[because they are locally oppressed or in a minority in their neighbourhoods?]. More importantly, as long as we retain the idea of whiteness as property and the premises inherent in the existing racial hierarchy, we will never achieve proper affirmative action. Whiteness as property has deep historical roots. It is reified. There is no equivalent property notion in blackness, no attempt to establish any systematic subordination of whites, it is based on anti-subordination not black superiority. [We are almost working towards answering my question about why white people would support black equality — they would not be subordinated]

Whites would not be systematically disadvantaged or oppressed [nice liberal version here to contrast with zero-sum versions] . Resisting affirmative action would not remedy the class oppression of poor whites. The hierarchy would not be reversed but levelled, if 'properly constructed' (289). Black privilege would not be permanently installed [a temporary dictatorship of the coloured?] , expectations for blacks not naturalised. Affirmative action would require constant monitoring and re-evaluation. It would not claim to be neutral. It would not become reified. It would harness 'a property interest' to 'true equal opportunity' [thought so] 'opportunity and means that are equalised'.

Affirmative action as applied in the United States is different, however and has been unevenly implemented, partly as a result of official responses to demands for justice. It has become a matter of attainment by blacks of jobs, admissions to universities and subcontracts of various kinds. It has not done anything about 'growing structural unemployment and underemployment' nor the decline in material conditions… or the subordinated status of blacks' as a result of structural changes in the economy. Affirmative action remains as a principle. It is not however just formal equality requiring equal treatment. Instead it means 'equalising treatment by redistributing power and resources' [pretty naive -- a on-off equalising or constant re-equalising via death duties etc?] , so it offers a fundamental challenge to the present distribution of property resources and entitlements, and clearly threatens the existing property interest in whiteness.

It is clearly seen at the moment as 'an uncompensated taking' (290), but whiteness at the moments depends on some illusory exclusivity, a 'symbolic Other', and '"illusion of unity"' among whites, a fundamental unrestricted right to exclude, and affirmative action should try to destroy these false premises. Affirmative action in South Africa might be examined. It appears both in the constitutional guidelines and the draft Bill of Rights. These denounce all forms of discrimination and attempt to rectify the gross inequities in South African society. This extends the application to a much broader domain, especially the redistribution of land and housing. The implication is that distributions of property will be designed to rectify 'unjust loss and inequality'. Property rights will be respected 'but they will not be absolute', but be judged against a requirement for affirmative action. This is a way of breaking with the property interest in whiteness. [What happened to it?]

Whiteness as property has a heavy legacy. It haunts the political and legal domains it has 'blinded societies of the systems of domination' and has underpinned 'systemic racialised privilege'. It has thwarted racial justice and also alternative notions of property which are more equitable. It is more than just a right to prevent infringement. It ignores countervailing equitable claims based on inclusion. We need affirmative action, properly conceived and implemented.