“I’d like to say that when I say “white” I’m not talking about the color of anybody’s skin. I’m not talking about race. It’s a curious country, a curious civilization, that thinks of it as race. I don’t believe any of that. White people are imagined. White people are white only because they want to be white.”–James Baldwin, 1980This quote by American writer, playwright, and social critic, James Baldwin, raises an unorthodox assertion about race that remains in question to this present day. In it, he claims that race is purely an invention, a figment of our imagination, a thing that we do. More specifically he claims that “white” or “whiteness” is an invention. Your midterm assignment is to employ a set of theories that we learned in class to engage Baldwin’s argument from a sociological perspective. Your task for this assignment is to use the course materials to unpack Baldwin’s statement, as well as to assert your own argument in response.Questions you may want to probe are: What is “race”? What is “white”? How do policy, history, opinions, ideas, or social relations factor into your assessment. Is race real? If so, is it a choice? If race is, as Baldwin claims, “not about the color of anybody’s skin” but instead “imagined”, what is the purpose of this invention and how has it sustained itself for centuries? Further, if race is imagined, then does it even matter in this contemporary moment?All content introduced throughout the course is appropriate to use in your response. At the minimum, you must engage at least two theories from the course readings, however you are welcome to use as many of them as you need to advance your argument. You may also draw on videos, movies, historical, and legal examples introduced during the lectures.Cite all of your work—that goes for block quotes and ideas—and include a bibliography of all cited works. The paper should be 3-5 pages (excluding bibliography), double spaced, with 1-inch margins. All midterms are due by 11:59pm on Friday, November 6th and must be uploaded into CCLE. There is no class during Week 5 in order to give you ample time to complete and carefully proofread your assignment.Grading RubricThe Baldwin quote(What did he mean by that?)Student should unpack Baldwin’s quote.Sociological Analysis(How would a sociologist respond?)Student should demonstrate ability to engage the Baldwin quote using sociological theories and frameworks to support their response. Avoid assumptions; back your arguments up with facts, warrants, and claims.Critical Thinking & Argumentation (What do you think?)Offer your nuanced argument. Where do you agree or depart from Baldwin’s assertion and/or the theories you used? Why?Writing Integrity (Is it well written?)Here we are looking for clear and concise writing, and a well structured argument.Whiteness as Property
Author(s): Cheryl I. Harris
Source: Harvard Law Review, Vol. 106, No. 8 (Jun., 1993), pp. 1707-1791
Published by: The Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1341787
Accessed: 21-04-2017 21:58 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at

Terms and Conditions of Use

The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access
to Harvard Law Review
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
Cheryl I. Harris
I. INTRODUCTION . ………………………………………………….. I7I
PROPERTY . …………………………………………………….. 1715
A. Forms of Racialized Property: Relationships Between Slavery, Race, and
Property . …………………………………………………….. I7I6
i. The Convergence of Racial and Legal Status …………………….. . I7I6
2. Implications for Property ……… …………………………….. 17I8
B. Forms of Racialized Property: Relationships Between Native American Land
Seizure, Race, and Property ………… …………………………. I72I
C. Critical Characteristics of Property and Whiteness ………… … ………. I724
i. Whiteness as a Traditional Form of Property …………………….. .1 I725
2. Modern Views of Property as Defining Social Relations ………… . 1728
3. Property and Expectations ……… …………. .1 729
4. The Property Functions of Whiteness ………………. . 1731
(a) Rights of Disposition ……… …………………………….. 1731
(b) Right to Use and Enjoyment …….. ……………………….. I734
(c) Reputation and Status Property ……. ………………………. I734
(d) The Absolute Right to Exclude ……. ……………………….. 1736
D. White Legal Identity: The Law’s Acceptance and Legitimation of Whiteness as
Property ……………………………………………………… I737
i. Whiteness as Racialized Privilege …………….. ……………….. I74I
2. Whiteness, Rights, and National Identity ……….. .. …………….. I744
IN PLESSY AND BROWN …………. ……………………………….. 1745
A. Plessy ………………………………………………………. I746
B. BrownI …………………………………………………….. I750
C. Brown II . ……………………………………………………. I754
D. Brown’s Mixed Legacy ………… ………………………………. 1756
A. The Persistence of Whiteness as Valued Social Identity ………………. . 1758
B. Subordination Through Denial of Group Identity ……… .. …………… I76I
C. Subjugation Through Affirmative Action Doctrine ……… .. …………… I766
i. Bakke ……………………………………………………. I769
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
AFFIRMATIVE ACTION …………………………………………….. I777
A. Corrective Justice, Sin, and Whiteness as Property …….. ……………. I78I
B. Affirmative Action: A New Form of Status Property? ……. ……………. I784
C. What Affirmative Action Has Been; What Affirmative Action Might Become .. I787
VI. CONCLUSION ………………….. …………………… I79I
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
Cheryl 1. Harris*
Issues regarding race and racial identity as well as questions pertaining
to property rights and ownership have been prominent in much public discourse in the United States. In this article, Professor Haris contributes to
this discussion by positing that racial identity and property are deeply
interrelated concepts. Professor Harris examines how whiteness, initially
constructed as a form of racial identity, evolved into a form of property,
historically and presently acknowledged and protected in American law.
Professor Harris traces the origins of whiteness as property in the parallel
systems of domination of Black and Native American peoples out of which
were created racially contingent forms of property and property rights. Following the period of slavery and conquest, whiteness became the basis of
racialized privilege – a type of status in which white racial identity provided
the basis for allocating societal benefits both private and public in character.
These arrangements were ratified and legitimated in law as a type of status
property. Even as legal segregation was overturned, whiteness as property
continued to serve as a barrier to effective change as the system of racial
classification operated to protect entrenched power.
Next, Professor Harris examines how the concept of whiteness as property
persists in current perceptions of racial identity, in the law’s misperception
of group identity and in the Court’s reasoning and decisions in the arena of
affirmative action. Professor Harris concludes by arguing that distortions in
affirmative action doctrine can only be addressed by confronting and exposing
the property interest in whiteness and by acknowledging the distributive
justification and function of affirmative action as central to that task.
she walked into forbidden worlds
impaled on the weapon of her own pale skin
she was a sentinel
at impromptu planning sessions
of her own destruction ….
Cheryl I. Harris, poem for almal
* Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology;
B.A. I973, Wellesley College; J.D. 1978, Northwestern University. My thanks for comments
and support to members of the Third Midwestern People of Color Legal Scholarship Conference
to whom I first presented this paper and to members of the Third and Fourth Critical Race
Theory Workshops whose work and discussion inspired me to pursue this project. I especially
must thank Lisa Ikemoto and Leland Ware who provided very thoughtful comments on earlier
drafts. The support of Joan Steinman, Marty Malin, Steve Heyman, A. Dan Tarlock, and all
the members of the faculty who provided input was most helpful. I also appreciate the
encouragement offered by Gerald Torres and Linda Greene. The research assistance provided
by Terry Lewis, Britt Shawver, Ron Haywood, and Jordan Marsh was also invaluable, as was
the secretarial support offered by Carol Johnson and Inis Petties. This paper would not have
been possible without the work and support of Derrick Bell. Beyond all reasonable expectations,
Neil Gotanda has provided invaluable insights, support, and encouragement. For his contributions, I thank him most sincerely. This paper was supported by the Marshall D. Ewell
Research Fund.
1 Cheryl I. Harris, poem for alma (I990) (unpublished poem, on file at the Harvard L
School Library).
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
1710 HARVARD LAW REVIEW [Vol. I06:1707
[P]etitioner was a citizen of the United States and a resident of the
state of Louisiana of mixed descent, in the proportion of seven eighths
Caucasian and one eighth African blood; that the mixture of colored
blood was not discernible in him, and that he was entitled to every
recognition, right, privilege and immunity secured to the citizens of
the United States of the white race by its Constitution and laws . . .
and thereupon entered a passenger train and took possession of a
vacant seat in a coach where passengers of the white race were
Plessy v. Ferguson2
In the I930S, some years after my mother’s family became part of
the great river of Black3 migration that flowed north,4 my Mississippi-born grandmother was confronted with the harsh matter of economic survival for herself and her two daughters. Having separated
from my grandfather, who himself was trapped on the fringes of
economic marginality, she took one long hard look at her choices and
presented herself for employment at a major retail store in Chicago’s
central business district. This decision would have been unremarkable
for a white woman in similar circumstances, but for my grandmother,
it was an act of both great daring and self-denial, for in so doing she
was presenting herself as a white woman. In the parlance of racist
America, she was “passing.)”
Her fair skin, straight hair, and aquiline features had not spared
her from the life of sharecropping into which she had been born in
2 I63 U.S. 537, 538 (I896).
3 I use the term “Black” throughout the paper for the reasons articulated by Professor
Kimberle Crenshaw. I share her view that “Blacks, like Asians, Latinos, and other ‘minorities,’
constitute a specific cultural group and, as such, require denotation as a proper noun.” Kimberle
W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, ioi HARV. L. REV. 1331, 1332 n.2 (I988). According to W.E.B. DuBois,
“[t]he word ‘Negro’ was used for the first time in the world’s history to tie color to race and
blackness to slavery and degradation.” W.E. BURGHARDT Du Bois, THE WORLD AND AFRICA
20 (I965). The usage of the lower case “N” in “negro” was part of the construction of an inferior
image of Blacks that provided justification for and a defense of slavery. See W.E.B. Du Bois,
That Capital “N,” in 2 THE SEVENTH SON I2, I3 (Julius Lester ed., I97i). Thus, the use of
the upper case and lower case in reference to racial identity has a particular political history.
Although “white” and “Black” have been defined oppositionally, they are not functional opposites.
“White” has incorporated Black subordination; “Black” is not based on domination. See discussion infra p. 1785. “Black” is naming that is part of counterhegemonic practice.
4 The Great Migration of Blacks from the rural South to urban centers between I9IO and
I940 doubled the percentage of Blacks living in the North and West. See i GUNNAR MYRDAL,
AN AMERICAN DILEMMA I83 (I944). The second major wave of Black migration, during the
I940s, increased the Black population in Northern cities. For example, in Chicago, it increased
by over 70 percent. See NICHOLAS LEMANN, THE PROMISED LAND 70 (I99I).
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
anywhere/nowhere, Mississippi – the outskirts of Yazoo City. But
in the burgeoning landscape of urban America, anonymity was possible for a Black person with “white” features. She was transgressing
boundaries, crossing borders, spinning on margins, traveling between
dualities of Manichean space, rigidly bifurcated into light/dark, good/
bad, white/Black. No longer immediately identifiable as “Lula’s
daughter,” she could thus enter the white world, albeit on a false
passport, not merely passing, but trespassing.
Every day my grandmother rose from her bed in her house in a
Black enclave on the south side of Chicago, sent her children off to
a Black school, boarded a bus full of Black passengers, and rode to
work. No one at her job ever asked if she was Black; the question
was unthinkable. By virtue of the employment practices of the “fine
establishment” in which she worked, she could not have been. Catering to the upper-middle class, understated tastes required that
Blacks not be allowed.
She quietly went about her clerical tasks, not once revealing her
true identity. She listened to the women with whom she worked
discuss their worries – their children’s illnesses, their husbands’ disappointments, their boyfriends’ infidelities – all of the mundane yet
critical things that made up their lives. She came to know them but
they did not know her, for my grandmother occupied a completely
different place. That place – where white supremacy and economic
domination meet – was unknown turf to her white co-workers. They
remained oblivious to the worlds within worlds that existed just beyond the edge of their awareness and yet were present in their very
Each evening, my grandmother, tired and worn, retraced her steps
home, laid aside her mask, and reentered herself. Day in and day
out, she made herself invisible, then visible again, for a price too
inconsequential to do more than barely sustain her family and at a
cost too precious to conceive. She left the job some years later, finding
the strain too much to bear.
From time to time, as I later sat with her, she would recollect that
period, and the cloud of some painful memory would pass across her
face. Her voice would remain subdued, as if to contain the still
remembered tension. On rare occasions she would wince, recalling
some particularly racist comment made in her presence because of her
presumed, shared group affiliation. Whatever retort might have been
called for had been suppressed long before it reached her lips, for the
price of her family’s well-being was her silence. Accepting the risk of
self-annihilation was the only way to survive.
Although she never would have stated it this way, the clear and
ringing denunciations of racism she delivered from her chair when
advanced arthritis had rendered her unable to work were informed
by those experiences. The fact that self-denial had been a logical
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
choice and had made her complicit in her own oppression at times
fed the fire in her eyes when she confronted some daily outrage
inflicted on Black people. Later, these painful memories forged her
total identification with the civil rights movement. Learning about
the world at her knee as I did, these experiences also came to inform
my outlook and my understanding of the world.
My grandmother’s story is far from unique. Indeed, there are
many who crossed the color line never to return. Passing is well-
known among Black people in the United States5 and is a feature of
race subordination in all societies structured on white supremacy.6
Notwithstanding the purported benefits of Black heritage in an era of
5 When I began to relate the subject matter of my research to Black friends and colleagues,
in nearly every instance I was told, “I had an uncle . … I had a great aunt . … My
grandfather’s brother left Alabama to go North as a white man and we never saw or heard
from him again” or other similar stories. See also PATRICIA J. WILLIAMS, On Being the Object
of Property, in THE ALCHEMY OF RACE AND RIGHTS 2i6, 223 (I99I) (recounting the story of
Marjorie, Williams’s godmother, who was given away by her mother at the age of six in order
that her mother could “pass” and marry a white man); Gregory H. Williams, Neither Black
Nor White: A Childhood on the Color Line 8 (I99I) (unpublished manuscript, on file at the
Harvard Law School Library) (describing the childhood of a law professor whose father passed
for white, a fact unknown to his son until the age of ten).
Gunnar Myrdal’s discussion of the phenomenon of “passing” in his I944 study of race
illuminates the social context of my grandmother’s story and the stories of many like her.
“[P]assing” means that a Negro becomes a white man, that is, moves from the lower to
the higher caste. In the American caste order, this can be accomplished only by the
deception of the white people with whom the passer comes to associate and by a
conspiracy of silence on the part of other Negroes who might know about it…. In the
Northern and Border states it seems to be relatively common for light-skinned Negroes
to “pass professionally” but preserve a Negro social life. Negro girls have practically no
chance of getting employment as stenographers or secretaries, salesclerks in department
stores, telephone operators, outside the establishments run by Negroes for Negroes. In
most communities their chances are slight even to become regular teachers, social workers,
or the like, if they do not conceal their Negro ancestry. . . . Not only in these female
middle class occupations but in all male and female trades where Negroes are excluded,
there must be a similar incentive to attempt to “pass professionally.”. . . In view of the
advantages to be had by passing, it is not difficult to explain why Negroes pass, professionally or completely. It is more difficult, however, to explain why Negroes do not pass
over to the white race more often than they actually do.
MYRDAL, supra note 4, at 683-86 (I944).
6 Because of the relative privileges of whites, the principal incentive is for Blacks to pass as
whites, not vice versa. See Marvin Harris, Referential Ambiguity in the Calculus of Brazilian
Racial Identity, in AFRO-AMERICAN ANTHROPOLOGY: CONTEMPORARY PERSPECTIVES 75, 7576 (Norman E. Whitten, Jr. & John F. Szwed eds., I970) (describing the more fluid racial
classification systems of the Caribbean, Brazil, and other parts of Latin America that, unlike
the U.S. model that denotes as Black anyone with any known Black heritage, admits of
intermediate categories of mixed blood, but still holds that “money whitens,” thereby equating
“white” with higher class position and reflecting that white is preferred and dominant). See
generally MARVIN HARRIS, PATTERNS OF RACE IN THE AMERICAS 39-40, 56-59 (I964) (describing the phenomena of Indians “passing” in Mexico, and the complex racial system of Brazil).
However, there have been recent accounts of “reverse passing,” that is, whites attempting to be
reclassified as Black or Hispanic for purposes of affirmative action programs. See infra note
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
affirmative action, passing is not an obsolete phenomenon that has
slipped into history.7
The persistence of passing is related to the historical and continu-
ing pattern of white racial domination and economic exploitation that
has given passing a certain economic logic.8 It was a given to my
grandmother that being white automatically ensured higher economic
returns in the short term, as well as greater economic, political, and
social security in the long run. Becoming white meant gaining access
to a whole set of public and private privileges that materially and
permanently guaranteed basic subsistence needs and, therefore, survival. Becoming white increased the possibility of controlling critical
aspects of one’s life rather than being the object of others’ domination.
My grandmother’s story illustrates the valorization of whiteness as
treasured property in a society structured on racial caste. In ways so
embedded that it is rarely apparent, the set of assumptions, privileges,
and benefits that accompany the status of being white have become
a valuable asset that whites sought to protect and that those who
passed sought to attain – by fraud if necessary. Whites have come
to expect and rely on these benefits, and over time these expectations
have been affirmed, legitimated, and protected by the law. Even
though the law is neither uniform nor explicit in all instances, in
protecting settled expectations based on white privilege, American law
has recognized a property interest in whiteness9 that, although unack7 See, e.g., Doe v. State of Louisiana, 479 So.2d 369, 371 (La. Ct. App. 1985) (rejecting the
attempt by a family whose parents had been classified as “colored” to be reclassified as white).
8 See WILLIAMS, supra note 5, at 8 (theorizing that the author’s father’s masquerade as a
white man was motivated by the belief that passing brought “greater job opportunities”).
One recurrent image of Blacks in cinema was the “tragic mulatto” who assassinated her
Black origins in order to attain a better life in the white world. Although many of the cinematic
versions of this tale have been cautionary morality plays illustrative of the tragic consequences
of self-denial, the underlying economic rationale for the hero(ine) to pass was so self-evident as
never to be challenged nor even explicitly stated. See generally DONALD BOGLE, ToMs, COONS,
FILMS 9 (i989) (discussing film images of the “tragic mulatto”).
9 My exploration of this concept began in March, I99I, when I participated in a conference
on “Constitution Making in a New South Africa,” held at the University of the Western Cape
in South Africa. (The conference was jointly sponsored by the National Conference of Black
Lawyers, the National Lawyers Guild and the National Association of Democratic Lawyers in
South Africa.) My paper argued that American law had implicitly recognized a property interest
in whiteness. The concept resonated in the South African context because of the similar and
even more extreme patterns of white domination evident there.
As I later discovered, the concept of a “property interest in whiteness” is one that has been
recognized in modern legal theory. Professor Bell in his chronicle, “Xerces and the Affirmative
Action Myth,” noted the argument advanced in Plessy v. Ferguson, I63 U.S. 537 (I896),
regarding the property interest in whiteness and the extent to which affirmative action policies
are seen as a threat to “property interests of identifiable whites.” Derrick Bell, Xerces and the
Affirmative Action Myth, 57 GEO. WASH. L. REV. 1595, I602, i6o8 (i989). Finding that
Professor Bell, to whom I am deeply indebted intellectually, had identified this concept before
me only served to confirm my belief that further exploration of this idea is a worthwhile project.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
nowledged, now forms the background against which legal disputes
are framed, argued, and adjudicated.
My Article investigates the relationships between concepts of race
and property and reflects on how rights in property are contingent
on, intertwined with, and conflated with race. Through this entangled
relationship between race and property, historical forms of domination
have evolved to reproduce subordination in the present. In Part II,
I examine the emergence of whiteness as property and trace the evolution of whiteness from color to race to status to property as a
progression historically rooted in white supremacy10 and economic
hegemony over Black and Native American peoples. The origins of
whiteness as property lie in the parallel systems of domination of
Black and Native American peoples out of which were created racially
contingent forms of property and property rights. I further argue that
whiteness shares the critical characteristics of property even as the
meaning of property has changed over time. In particular, whiteness
and property share a common premise – a conceptual nucleus – of
a right to exclude. This conceptual nucleus has proven to be a powerful center around which whiteness as property has taken shape.
Following the period of slavery and conquest, white identity became
the basis of racialized privilege that was ratified and legitimated in
law as a type of status property. After legalized segregation was
overturned, whiteness as property evolved into a more modern form
through the law’s ratification of the settled expectations of relative
white privilege as a legitimate and natural baseline.
Part III examines the two forms of whiteness as property – status
property and modern property – that are the submerged text of two
paradigmatic cases on the race question in American law, Plessy v.
Ferguson”1 and Brown v. Board of Education.12 As legal history, they
illustrate an important transition from old to new forms of whiteness
as property. Although these cases take opposite interpretive stances
regarding the constitutional legitimacy of legalized racial segregation,
the property interest in whiteness was transformed, but not discarded,
in the Court’s new equal protection jurisprudence.
Part IV considers the persistence of whiteness as property. I first
examine how subordination is reinstituted through modern conceptions
10 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.
Frances L. Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship,
74 CORNELL L. REV. 993, I024 n.I29 (I989).
11 I63 U.S. 537 (i896).
12 347 U.S. 483 (I954).
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
of race and identity embraced in law. Whiteness as property has
taken on more subtle forms, but retains its core characteristic – the
legal legitimation of expectations of power and control that enshrine
the status quo as a neutral baseline, while masking the maintenance
of white privilege and domination. I further identify the property
interest in whiteness as the unspoken center of current polarities
around the issue of affirmative action. As a legacy of slavery and de
jure and de facto race segregation, the concept of a protectable property interest in whiteness permeates affirmative action doctrine in a
manner illustrated by the reasoning of three important affirmative
action cases – Regents of the University of California v. Bakke,13
City of Richmond v. J.A. Croson & Co.,14 and Wygant v. Jackson
Board of Education. 15
Finally, in Part V, I offer preliminary thoughts on a way out of
the conundrum created by protecting whiteness as a property interest.
I suggest that affirmative action, properly conceived and reconstructed, would de-legitimate the property interest in whiteness. I do
not offer here a complete reformulation of affirmative action, but
suggest that focusing on the distortions created by the property interest
in whiteness would provoke different questions and open alternative
perspectives on the affirmative action debate. The inability to see
affirmative action as more than a search for the “blameworthy” among
“innocent” individuals is tied to the inability to see the property interest in whiteness. Thus reconstructed, affirmative action would
challenge the characterization -of the unfettered right to exclude as a
legitimate aspect of identity and property.
The racialization of identity and the racial subordination of Blacks
and Native Americans provided the ideological basis for slavery and
conquest. 16 Although the systems of oppression of Blacks and Native
Americans differed in form – the former involving the seizure and
appropriation of labor, the latter entailing the seizure and appropriation of land – undergirding both was a racialized conception of
property implemented by force and ratified by law.
13 438 U.S. 265 (1978).
14 488 U.S. 469 (I989).
15 476 U.S. 267 (I986).
(i990) (describing how English definitions of Blacks and Native Americans as “savage” and
“instinctual” “encouraged English immigrants to appropriate Indian land and black labor as
they settled and set up production in the New World, and enabled white colonists to justify the
actions they had committed against both peoples”).
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
I7i6 HARVARD LAW REVIEW [Vol. I06:1707
The origins of property rights in the United States are rooted in
racial domination.17 Even in the early years of the country, it was
not the concept of race alone that operated to oppress Blacks and
Indians; rather, it was the interaction between conceptions of race
and property that played a critical role in establishing and maintaining
racial and economic subordination.
The hyper-exploitation of Black labor was accomplished by treating Black people themselves as objects of property. Race and property
were thus conflated by establishing a form of property contingent on
race – only Blacks were subjugated as slaves and treated as property.
Similarly, 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. These distinct forms of exploitation each contributed in varying ways to the construction of whiteness as property.
A. Forms of Racialized Property: Relationships Between Slavery,
Race, and Property
i. The Convergence of Racial and Legal Status. – Although the
early colonists were cognizant of race,18 racial lines were neither
consistently nor sharply delineated among or within all social groups. 19
Captured Africans sold in the Americas were distinguished from the
population of indentured or bond servants – “unfree” white labor
but it was not an irrebuttable presumption that all Africans were
THE DISCOURSE OF CONQUEST (I990), an eloquent and meticulous work on the American Indian
in Western legal doctrine, Joseph William Singer draws out the organic connections between
property rights and race as the pattern of conquest of native lands exemplified:
[P]roperty and sovereignty in the United States have a racial basis. The land was taken
by force by white people from peoples of color thought by the conquerors to be racially
inferior. The close relation of native peoples to the land was held to be no relation at
all. To the conquerors, the land was “vacant.” Yet it required trickery and force to
wrest it from its occupants. This means that the title of every single parcel of property
in the United States can be traced to a system of racial violence.
Joseph W. Singer, The Continuing Conquest: American Indian Nations, Property Law, and
Gunsmoke, i RECONSTRUCTION 97, I02 (I99I); see Frances L. Ansley, Race and the Core
Curriculum in Legal Education, 79 CAL. L. REV. 15II, I523 (I99I) (citing the history of
discovery and conquest of American Indian land to be illustrative of the fact that “race is at
the heart of American property law”).
NEGRO, I550-I8I2, at 3-43 (i968) (describing early colonial racism).
19 Indeed, between I607 and i8oo, racial lines among the lower classes were quite blurred;
not only were social activities between Blacks and lower class whites sometimes racially integrated, but also political resistance in the form of urban slave revolts sometimes included whites.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
“slaves” or that slavery was the only appropriate status for them.20
The distinction between African and white indentured labor grew,
however, as decreasing terms of service were introduced for white
bond servants.21 Simultaneously, the demand for labor intensified,
resulting in a greater reliance on African labor and a rapid increase
in the number of Africans imported into the colonies.22
The construction of white identity and the ideology of racial hierarchy also were intimately tied to the evolution and expansion of
the system of chattel slavery. 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.23 The dominant paradigm of social relations, however, was
that, although not all Africans were slaves, virtually all slaves were
not white. It was their racial otherness that came to justify the
subordinated status of Blacks.24 The result was a classification system
that “key[ed] official rules of descent to national origin” so that
“[m]embership in the new social category of ‘Negro’ became itself
sufficient justification for enslaveability.”25 Although the cause of the
increasing gap between the status of African and white labor is contested by historians,26 it is clear that “[t]he economic and political
20 According to John Hope Franklin, “there is no doubt that the earliest Negroes in Virg
occupied a position similar to that of the white servants in the colony.” JOHN H. FRANKLIN,
(1978). The legal disabilities imposed on Blacks were not dissimilar to those imposed on non-
English servants of European descent, as the principal line of demarcation was between Christian
and non-Christian servants. See Raymond T. Diamond & Robert J. Cottrol, Codifying Caste:
Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 Loy. L. REV. 255,
259 n. I9 (I983). Indeed, “the word slave had no meaning in English law.” THOMAS F. GOSSETT,
RACE: THE HISTORY OF AN IDEA IN AMERICA 29 (I963). Later statutory provisions prohibited
Blacks who were slaves from attaining their freedom by converting to Christianity. See, e.g.,
HIGGINBOTHAM, supra, at 200 (citing a South Carolina statute of I690 that declared “no slave
shall be free by becoming a christian”).
21 See GOSSETT, supra note 20, at 30.
22 See id.
COLONIAL VIRGINIA 295-300 (1975).
24 See Neil Gotanda, A Critique of “Our Constitution is Colorblind,” 44 STAN. L. RE
34 (I99I).
25 Id.; see also Christopher Lasch, THE WORLD OF NATIONS 17 (1974) (asserting that the
concept of “Negro” emerged from “related . . . concepts of African, heathen and savage – at
the very point in time when large numbers of men and women were beginning to question the
moral legitimacy of slavery”). The implications are that, as the system of chattel slavery came
under fire, it was rationalized by an ideology of race that further differentiated between white
and Black.
26 Compare GOSSETT, supra note 20, at 29-30 (arguing that the terms of service for white
workers were decreased in order to attract white labor in the colonies) with HIGGINBOTHAM,
supra note 20, at 26 (citing masters’ fears of a potential alliance between white indentured
servants and the rapidly expanding African population). See generally DAVID W. GALENSON,
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
interests defending Black slavery were far more powerful than those
defending indentured servitude.”27
By the i66os, the especially degraded status of Blacks as chattel
slaves was recognized by law.28 Between i68o and I682, the first
slave codes appeared, codifying the extreme deprivations of liberty
already existing in social practice. Many laws parceled out differential
treatment based on racial categories: Blacks were not permitted to
travel without permits, to own property, to assemble publicly, or to
own weapons; nor were they to be educated.29 Racial identity was
further merged with stratified social and legal status: “Black” racial
identity marked who was subject to enslavement; “white” racial identity marked who was “free” or, at minimum, not a slave.30 The
ideological and rhetorical move from “slave” and “free” to “Black” and
“white” as polar constructs marked an important step in the social
construction of race.
2. Implications for Property. – The social relations that produced
racial identity as a justification for slavery also had implications for
the conceptualization of property. This result was predictable, as the
institution of slavery, lying at the very core of economic relations,
was bound up with the idea of property. Through slavery, race and
economic domination were fused.31
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 contradic-
tory character of slaves as property and persons was exemplified in
the Representation Clause of the Constitution. Representation in the
that the increased demand for skilled labor, a limited pool of low-cost, skilled white labor, and
the decline in the cost of training for the slave population that was increasingly born in the
Americas, combined to make slave labor more economically attractive); Diamond & Cottrol,
supra note 20, at 260 (advancing an argument in accord with Higginbotham).
27 ROEDIGER, supra note I9, at 32.
28 In i66i, the Maryland legislature enacted a bill providing that “‘All Negroes and other
slaves shall serve Durante Vita [for life].”‘ GOSSETT, supra note 20, at 30.
29 See HIGGINBOTHAM, supra note 20, at 39-40.
30 For a catalogue of pre-Civil War cases articulating the general rule that a Black person
was presumed to be a slave, see CHARLES S. MANGUM, JR., THE LEGAL STATUS OF THE
NEGRO 2 n. 2 (I 940).
31 The system of racial oppression grounded in slavery was driven in large measure (although
by no means exclusively) by economic concerns. See MORGAN, supra note 23, at 295-3I5;
LESLIE H. OWENS, THIS SPECIES OF PROPERTY passim (I976). Whether from the perspective
of Southern slave owners or early Northern capitalists, the slave trade, slave labor, and the
direct and indirect profits that flowed from it were central to an economic structure that benefited
the nation. Thus, the tension over the issue of slavery ultimately resulted in the now welldocumented set of constitutional compromises that subordinated the humanity of Black people
to the economic and political interests of the white, propertied class. See DERRICK BELL, AND
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
House of Representatives was apportioned on the basis of population
computed by counting all persons and “three-fifths of all other persons”
– slaves.32 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?”33
The cruel tension between property and humanity was also reflected in the law’s legitimation of the use of Blackwomen’s34 bodies
as a means of increasing property.35 In I662, 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 . …36 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.37 Because the
children of Blackwomen assumed the status of their mother, slaves
were bred through Blackwomen’s bodies. The economic significance
of this form of exploitation of female slaves should not be underestimated. Despite Thomas Jefferson’s belief that slavery should be abol-
32 U.S. CONST. art. I, ? 2, cl. 3.
33 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 222 (Max Farrand ed.,
‘9” ).
34 My use of the term “Blackwomen” is an effort to use language that more clearly reflects
the unity of identity as “Black” and “woman,” with neither aspect primary or subordinate to
the other. It is an attempt to realize in practice what has been identified in theory – that, as
Kimberle Crenshaw notes, Blackwomen exist “at the crossroads of gender and race hierarchies.”
Kimberle Crenshaw, Whose Story Is It, Anyway? Feminist and Antiracist Appropriations of
THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 402, 403 (Toni Morrison ed., 1992).
Indeed, this essay projects a powerful and complex vision of blackwomen that forms the
foundation of my construction of this term:
The particular experience of black women in the dominant cultural ideology of American
society can be conceptualized as intersectional. Intersectionality captures the way in
which the particular location of black women in dominant American social relations is
unique and in some senses unassimilable into the discursive paradigms of gender and
race domination.
Id. at 404.
35 This use of slave women made them a type of sexual property, and particularly subject
to the control of white males. See Margaret Burnham, An Impossible Marriage: Slave Law and
Family Law, 5 LAW & INEQ. J. I87, I97-99 (1987).
36 HIGGINBOTHAM, supra note 20, at 43. By the late i6oos and early I700s, the legislatures
of various colonies adopted similar rules of classification. See, e.g., id. at I28 (citing a 1706
New York statute); id. at 252 (citing a 1755 Georgia law).
37 See id. at 44. According to Paula Giddings, the Virginia statute completed “[t]he circle
of denigration . . . [in] combin[ing] racism, sexism, greed, and piety” in that it “laid women
open to the most vicious exploitation.” She noted that “a master could save the cost of buying
new slaves by impregnating his own slave, or for that matter having anyone impregnate her.”
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
ished, like other slaveholders, he viewed slaves as economic assets,
noting that their value could be realized more efficiently from breeding
than from labor. A letter he wrote in i8o5 stated: “I consider the
labor of a breeding woman as no object, and that a child raised every
2 years is of more profit than the crop of the best laboring man.”38
Even though there was some unease in slave law, reflective of the
mixed status of slaves as humans and property, the criticaj nature of
social relations under slavery was the commodification of human
beings. Productive relations in early American society included varying forms of sale of labor capacity, many of which were highly oppressive; but slavery was distinguished from other forms of labor
servitude by its permanency and the total commodification attendant
to the status of the slave. Slavery as a legal institution treated slaves
as property that could be transferred, assigned, inherited, or posted
as collateral. 39 For example, in Johnson v. Butler,40 the plaintiff sued
the defendant for failing to pay a debt of $496 on a specified date.
Because the covenant had called for payment of the debt in “money
or negroes,” the plaintiff contended that the defendant’s tender of one
negro only, although valued by the parties at an amount equivalent
to the debt, could not discharge the debt. The court agreed with
the plaintiff.41 This use of Africans as a stand-in for actual currency
highlights the degree to which slavery “propertized” human life.
Because the “presumption of freedom [arose] from color [white]”
and the “black color of the race [raised] the presumption of slavery,”42
whiteness became a shield from slavery, a highly volatile and unstable
form of property. In the form adopted in the United States, slavery
made human beings market-alienable and in so doing, subjected human life and personhood – that which is most valuable – to the
ultimate devaluation. Because whites could not be enslaved or held
as slaves,43 the racial line between white and Black was extremely
38 Letter from Thomas Jefferson to John Jordan (Dec. 2I, I805), cited in TAKAKI, supra
note i6, at 44.
39 By I705, Virginia had classified slaves as real property. See HIGGINBOTHAM, supra note
20, at 52. In Massachusetts and South Carolina, slaves were identified as chattel. See id. at
78, 2II.
40 4 Ky. (i Bibb) 97 (i8I5).
41 Id. at 98. The court held that the defendant was not entitled to judgment on the demurrer
for three reasons, including the following:
The defendant, under the terms of the covenant, no doubt had his election to pay either
in money or negroes; but in case of his choosing the latter alternative, as the covenant
requires the payment to be made in negroes, in the plural number, the plaintiff could
not be compelled to receive one only. The tender therefore, of a single negro, though of
value equal to the amount to be paid, could not discharge the covenant.
STATES ?? 68-69, at 66-67 (i858).
43 See id. ? 68, at 66.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
critical; it became a line of protection and demarcation from the
potential threat of commodification, and it determined the allocation
of the benefits and burdens of this form of property. White identity
and whiteness were sources of privilege and protection; their absence
meant being the object of property.
Slavery as a system of property facilitated the merger of white
identity and property. Because the system of slavery was contingent
on and conflated with racial identity, it became crucial to be “white,”
to be identified as white, to have the property of being white.44
Whiteness was the characteristic, the attribute, the property of free
human beings.
B. Forms of Racialized Property: Relationships Between Native
American Land Seizure, Race, and Property
Slavery linked the privilege of whites to the subordination of
Blacks through a legal regime that attempted the conversion of Blacks
into objects of property. Similarly, the settlement and seizure of Native American land supported white privilege through a system of
property rights in land in which the “race” of the Native Americans
rendered their first possession rights invisible and justified conquest.
This racist formulation embedded the fact of white privilege into the
very definition of property, marking another stage in the evolution of
the property interest in whiteness. Possession – the act necessary to
lay the basis for rights in property – was defined to include only the
cultural practices of whites. This definition laid the foundation for
the idea that whiteness – that which whites alone possess – is
valuable and is property.
Although the Indians were the first occupants and possessors of
the land of the New World, their racial and cultural otherness45
allowed this fact to be reinterpreted and ultimately erased as a basis
for asserting rights in land. Because the land had been left in its
natural state, untilled and unmarked by human hands, it was “waste”
44 Kenneth Minogue states that property performs the critical function of identification:
“[P]roperty is the concept by which we find order in things. The world is a bundle of things,
and things are recognized in terms of their attributes or properties.” Kenneth R. Minogue, The
Concept of Property and Its Contemporary Significance, in NOMOS XXII: PROPERTY 3, II (J.
Roland Pennock & John W. Chapman eds., i980). Indeed, he suggests that it is impossible to
identify anyone or anything except by reference to their properties. See id. at I2.
45 Takaki describes the construction of Native Americans as savages through political doctrine and cultural imagery – what Herman Melville called the “metaphysics of Indian hating”
– as an ideology that facilitated the removal and extermination of Native Americans. See
TAKAKI, supra note I6, at 8I (citation omitted). The “savage Indian” also served as the
referential opposite by which whites defined themselves to be civilized. See generally id. at 56
(stating that Jefferson’s efforts to civilize the Indians affirmed a definition of civilization and
progress measured by distance from the savagery of the Indian); id. at I76-80 (describing
George Custer’s view of the “heathen and savage” Indians as “counterpoint[s] to civilization”).
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
I 72 2 HARVARD LAW REVIEW [Vol. I06:1707
and, therefore, the appropriate object of settlement and appropria-
tion.46 Thus, the possession maintained by the Indians was not “true”
possession and could safely be ignored.47 This interpretation of the
rule of first possession effectively rendered the rights of first possessors
contingent on the race of the possessor.48 Only particular forms of
possession – those that were characteristic of white settlement –
would be recognized and legitimated.49 Indian forms of possession
were perceived to be too ambiguous and unclear.
46 Thus, the Indians’ claim as first possessors was said to rest on a “questionable foundation,
according to John Quincy Adams, because the right of the hunter could not preempt and provide
the basis for an exclusive claim for a “few hundreds” against the needs of “millions.” His
argument reflected a widely held consensus. GOSSETT, supra note 20, at 230 (citations omitted).
The land that lay in the common, left “wholly to nature,” was the proper subject of appropriation
by one’s labor because these “great tracts of ground . . . [that] lie waste . . . are more than the
people who dwell on it do, or can make use of.” JOHN LOCKE, Two TREATISES OF GOVERNMENT I37, I39 (photo. reprint I990) (W.S. Carpenter ed., I924) (3d ed. I698). The forms of
land use typical of Native American peoples were fluid and communal in nature. The American
courts have held that governmental seizures of Indian property held under original Indian title
do not offend the Takings Clause of the Fifth Amendment. Courts have reasoned that Indian
property rights were not protected by the constitutional prohibition against taking private
property without just compensation because the property rights of Native Americans were
communal and inhered in the tribe rather than an individual. Secondly, courts have contended
that Native American people had not established possession of the lands they claimed for.
Although they had hunted and fished on the land, they had never enclosed it and allotted the
land to individuals. See Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REv. i,
I-i8 (iggi).
47 According to Carol Rose, the common law made a “choice among audiences” in refusing
to dismiss legal claims to Indian land based on the assertion that “the Indians . . . had never
done acts on the land sufficient to establish property in it . … [T]he Indians had never really
undertaken those acts of possession that give rise to a property right.” Carol M. Rose, Possession
as the Origin of Property, 52 U. CHI. L. REv. 73, 85-86 (I985). She states:
“[I]n defining the acts of possession that make up a claim to property, the law not only
rewards the author of the ‘text’; it also puts an imprimatur on a particular symbolic
system and on the audience that uses this system. Audiences that do not understand or
accept the symbols are out of luck.”
Id. at 85.
48 See Joseph W. Singer, Re-reading Property, 27 NEw ENG. L. REV. 7II, 720 (I992).
49 This redefinition of possession and occupancy at the theoretical level was accompanied at
the practical level by massive land dispossession that restricted Indians to reservations and
designated hunting areas, established lines of demarcation by treaty that were later violated,
effected land “sales” through fraud, trickery, or coercion, and led ultimately to campaigns of
forced removals. See GOSSETT, supra note 20, at 228. Jefferson’s Indian policy, for example,
had the stated goal of “civilizing” the Indians, which resulted in their land being taken by whites
for development. The objective of making the Indians “willing to sell” was achieved by the
threat of force and encouraging the exchange of lands for goods pushed on them through trading
houses. See TAKAKI, supra note i6, at 60-62. Andrew Jackson’s campaign to dissolve the
tribes, through both the forced removal of entire tribes and the land allotment program, was
an attempt to make the Indians “citizens” and to coerce them to get rid of their lands. Under
the land allotment program, Indians, as a condition of remaining on the land, were required to
accept individual land grants that later were seized by land speculators through fraud or by
creditors for debts. See id. at 92-IO7; see also ROBERT A. WILLIAMS, JR., THE AMERICAN
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
The conquest and occupation of Indian land was wrapped in the
rule of law.50 The law provided not only a defense of conquest and
colonization, but also a naturalized regime of rights and disabilities,
power and disadvantage that flowed from it, so that no further justifications or rationalizations were required.51 A key decision defending the right of conquest was Johnson and Graham’s Lessee v. M’Intosh,52 in which both parties to the action claimed the same land
through title descendant from different Indian tribes. The issue specifically presented was not merely whether Indians had the power to
convey title, but to whom the conveyance could be made – to individuals or to the government that “discovered” land.53 In holding
that Indians could only convey to the latter, the Court reasoned that
Indian title was subordinate to the absolute title of the sovereign that
was achieved by conquest because “[c]onquest gives a title which the
Courts of the conqueror cannot deny . . . . “54 If property is under-
the “time-honored” policy of “waging war on the Indians in order to force a land cession”).
50 In Alexis de Tocqueville’s words, “the United States ha[s] accomplished this twofold
purpose [of extermination of Indians and deprivation of rights] . . . legally, philanthropically,
. . .and without violating a single great principle of morality in the eyes of the world. It is
impossible to destroy men with more respect for the laws of humanity.” i ALEXIS DE TocQUEVILLE, DEMOCRACY IN AMERICA 355 (Phillips Bradley ed. & Henry Reeve trans., I945) (I835).
As Rennard Strickland argues, these acts by the United States constituted genocide-at-law. See
Rennard Strickland, Genocide-at-law: An Historic and Contemporary View of the Native Amer-
ican Experience, 34 KAN. L. REv. 7I3, 7I4-I5 (i986).
51 See WILLIAMS, supra note 49, at 8.
52 2I U.S. (8 Wheat.) 543 (i823).
53 See id. at 563. Milner Ball’s reinterpretation of Johnson rejects the traditional reading
that all rights held by American Indian nations were lost in conquest. Instead, he argues that
the case held only that, by conquest, Indians lost the right to convey title to any country other
than the United States. See Milner S. Ball, Constitution, Court, Indian Tribes, I987 AM. B.
FOUND. RES. J. I, 29.
54 Johnson, 2I U.S. (8 Wheat.) at 588-89. According to Robert Williams, in rendering this
decision, the Court “merely formalized the outcome of a political contest that the Founders had
fought and resolved among themselves some forty years earlier.” WILLIAMS, supra note 49, at
23I. Before Independence, radical colonists of the “landless” states – those without Crown
charters specifying the territory available for settlement under the authority of the Crown
asserted the Indians’ natural law right to alienate their land to whomever they chose, without
regard to approval of the sovereign. See id. at 229-30. On the other hand, colonists of the
“landed” states, those who held original Crown charters, argued that the colonial charters, as
expressions of the will of the sovereign, granted them rights to the land specified and, under
the frequently broad language of the grant, rights to control the land extending to the frontier.
See id. at 230.
However, the coherence of the views between the settlers was far more significant than their
differences. Ultimately, the conflict was resolved through a political compromise reached by the
Founders that allowed for frontier claims held by the landed states to be ceded to a federal
sovereign that could then assert exclusive rights to eradicate Indian occupancy claims by conquest
or purchase and to undertake reallocation. See Johnson, 2I U.S. (8 Wheat.) at 585-88. Notwithstanding the differences between the opposing settler groups, their shared assumptions were
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
I724 HARVARD LAW REVIEW [Vol. I06:1707
stood as a delegation of sovereign power – the product of the power
of the state55 – then a fair reading of history reveals the racial
oppression of Indians inherent in the American regime of property.56
In Johnson and similar cases, courts established whiteness as a
prerequisite to the exercise of enforceable property rights. Not all first
possession or labor gave rise to property rights; rather, the rules of
first possession and labor as a basis for property rights were qualified
by race.57 This fact infused whiteness with significance and value
because it was solely through being white that property could be
acquired and secured under law. Only whites possessed whiteness, a
highly valued and exclusive form of property.
C. Critical Characteristics of Property and Whiteness
The legal legacy of slavery and of the seizure of land from Native
American peoples is not merely a regime of property law that is
(mis)informed by racist and ethnocentric themes. Rather, the law has
established and protected an actual property interest in whiteness
itself, which shares the critical characteristics of property and accords
with the many and varied theoretical descriptions of property.
Although by popular usage property describes “things” owned by
persons, or the rights of persons with respect to a thing,58 the concept
that the Indians’ rights to land as first possessors were subordinate to European claims, and
that therefore conquest and occupation could give rise to a right.
55 See Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 6ii, 650-52
(i 988).
56 See generally Joseph W. Singer, Sovereignty and Property, 86 Nw. U. L. REV. i, i-8
(I99I) (exploring the deleterious effects of the Supreme Court’s formulation of tribal property
rights). Parallel to the colonization of the Americas and the removal of the indigenous peoples
from the land was the colonization of Africa and the removal of Africans from the continent.
European conquest effected a horrific paradigm: as Europeans took Africans from the land,
control of the land was taken from the Africans who remained. The result was that Africans
who were removed from the continent became people without a country, and Africans on the
continent became people without the legal capacity to control the land they occupied or to reap
the benefits of the land they worked. The objective of capturing and enslaving Africans was
to convert Africans and their descendants into property, or more accurately, into objects of
property. The land dispossession of Africans on the continent, which was a central feature of
colonialization, was accompanied by the introduction of regimes of property law that ratified
the results of conquest and domination. See generally WALTER RODNEY, How EUROPE UNDERDEVELOPED AFRICA passim (I972) (offering a historical account of the origins and impact of the
slave trade and European imperialism on African development). Thus, both here and on the
African continent, race domination, imperialist conquest, and property rights were organically
57 See Singer, supra note 48, at 7I3.
58 See C.B. Macpherson, The Meaning of Property, in PROPERTY: MAINSTREAM AND CRITICAL POSITIONS I, 3 (C.B. Macpherson ed., I978) [hereinafter PROPERTY]. Stephen Munzer
characterizes the idea of property-as-“thing” as the popular conception and property-as-relations
as “the sophisticated version of property.” STEPHEN R. MUNZER, A THEORY OF PROPERTY i6
(I 990).
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
of property prevalent among most theorists, even prior to the twentieth century, is that property may “consist[] of rights in ‘things’ that
are intangible, or whose existence is a matter of legal definition.”59
Property is thus said to be a right, not a thing, characterized as
metaphysical, not physical.60 The theoretical bases and conceptual
descriptions of property rights are varied, ranging from first possessor
rules,61 to creation of value,62 to Lockean labor theory, to personality
theory, to utilitarian theory.63 However disparate, these formulations
of property clearly illustrate the extent to which property rights and
interests embrace much more than land and personalty. Thus, the
fact that whiteness is not a “physical” entity does not remove it from
the realm of property.
Whiteness is not simply and solely a legally recognized property
interest. It is simultaneously an aspect of self-identity and of personhood, and its relation to the law of property is complex. Whiteness
has functioned as self-identity in the domain of the intrinsic, personal,
and psychological; as reputation in the interstices between internal
and external identity; and, as property in the extrinsic, public, and
legal realms. According whiteness actual legal status converted an
aspect of identity into an external object of property, moving whiteness
from privileged identity to a vested interest. The law’s construction
of whiteness defined and affirmed critical aspects of identity (who is
white); of privilege (what benefits accrue to that status); and, of property (what legal entitlements arise from that status). Whiteness at
various times signifies and is deployed as identity, status, and property, sometimes singularly, sometimes in tandem.
I. Whiteness as a Traditional Form of Property. – Whiteness fits
the broad historical concept of property described by classical theo-
59 Frederick G. Whelan, Property as Artifice: Hume and Blackstone, in NOMOS XXII:
PROPERTY, supra note 44, at ioi, I04. Whelan argues that even Blackstone was aware that
property rights may pertain to things that may themselves be creations of law. See id. at I2I-
22. Thus, for example, Whelan notes that Blackstone described property in incorporeal hereditaments, which issue out of a “thing” but have “mental existence.” Id. at I2I. The distinction
between property as things and property as rights, then, is not so clear.
61 See Richard A. Epstein, Possession as the Root of Title, I3 GA. L. REV. I22I, I22I-22
62 See Wendy J. Gordon, On Owning Information: Intellectual Property and the Restit
tionary Impulse, 78 VA. L. REV. I49, I78 (I992).
63 Margaret Radin ascribes these concepts as the principal basis for liberal property theories
propounded by John Locke, Georg W. Friedrich Hegel, and Jeremy Bentham respectively. See
Margaret J. Radin, Property and Personhood, 34 STAN. L. REv. 957, 958 n.3 (I982). Munzer
describes the multiplicity of definitions of property as inviting the despairing conclusion that
“any overarching normative theory of property is impossible.” MUNZER, supra note 58, at I7;
see Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY, supra note
44, at 69, 69-82.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
rists. In James Madison’s view, for example, property “embraces
every thing to which a man may attach a value and have a right,”64
referring to all of a person’s legal rights.65 Property as conceived in
the founding era
included not only external objects and people’s relationships to them,
but also all of those human rights, liberties, powers, and immunities
that are important for human well-being, including: freedom of expression, freedom of conscience, freedom from bodily harm, and free
and equal opportunities to use personal faculties.66
Whiteness defined the legal status of a person as slave or free. White
identity conferred tangible and economically valuable benefits and was
jealously guarded as a valued possession, allowed only to those who
met a strict standard of proof.67 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.
Other traditional theories of property emphasize that the “natural”
character of property is derivative of custom, contrary to the notion
that property is the product of a delegation of sovereign power. This
“bottom up” theory holds that the law of property merely codifies
existing customs and social relations.68 Under that view, government-
(quoting James Madison, Property, NAT’L GAZETTE, Mar. 29, I792, at I74).
65 According to Macpherson, the common seventeenth century usage was very broad: “[M]en
were said to have a property not only in land and goods and in claims on revenue from leases,
mortgages, patents, monopolies and so on, but also a property in their lives and persons.”
Macpherson, supra note 58, at 7; see LAWRENCE BECKER, PROPERTY RIGHTS-PHILOSOPHIC
FOUNDATIONS I20 n. II (1977) (describing the use of the word “property” by Blackstone, Hobb
and Locke to be referring to all of a person’s legal rights).
66 Laura S. Underkuffler, On Property: An Essay, IOO YALE L.J. I27, I28-29 (I990).
67 See infra pp. I738-4I.
68 Epstein argues the case as follows:
In line with the theories of John Austin, law is regarded as a command of the sovereign
….In opposition to Austin stands an alternative view that grounds property rights on
the traditions and common practices within a given community. On this view, property
comes from the bottom up and not from the top down. . . . [The state’s] chief function
is to discover and reflect accurately what the community has customarily regarded as
binding social rules and then to enforce those rules in specific controversies.
Richard A. Epstein, International News Service v. Associated Press: Custom and Law as Sources
of Property Rights in News, 78 VA. L. REv. 85, 85 (I992) (footnotes omitted) [hereinafter
Epstein, Custom and Law]. The customary rule recognized in common law was the primary
right of first possessors. See Richard A. Epstein, No New Property, 56 BROOK. L. REV. 747,
750 (I990) [hereinafter Epstein, No New Property); Rose, supra note 47, at 73-74.
The argument that all American law and property relates to custom rests on assumptions
that second possessors were actually first, or that the land that had been “conquested” was
vacant. The idea that second possessors were first is apparently Epstein’s assumption: “[A]s
inheritors of the Lockean tradition, the basic theory [in the United States] was that property
rights emerged from first possession, from first occupation, from homesteading, and not from
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
created rights such as social welfare payments cannot constitute legitimate property interests because they are positivistic in nature.69
Other theorists have challenged this conception, and argued that even
the most basic of “customary” property rights – the rule of first
possession, for example – is dependent on its acceptance or rejection
in particular instances by the government. 70 Citing custom as a source
of property law begs the central question: whose custom?
Rather than remaining within the bipolar confines of custom or
command, it is crucial to recognize the dynamic and multifaceted
relationship among custom, command, and law, as well as the extent
to which positionality7l determines how each may be experienced and
understood. Indian custom was obliterated by force and replaced with
the regimes of common law that embodied the customs of the conquerors. The assumption of American law as it related to Native
Americans was that conquest did give rise to sovereignty. Indians
experienced the property laws of the colonizers and the emergent
American nation as acts of violence perpetuated by the exercise of
power and ratified through the rule of law.72 At the same time, these
laws were perceived as custom and “common sense” by the colonizers.73 The Founders, for instance, so thoroughly embraced Lockean
state grant.” Epstein, No New Property, supra, at 750. The notion of vacant land belongs to
Locke: the right to acquire property through labor as long as there was some “good left in
common for others” applied to the “inland vacant places of America.” LOCKE, supra note 46,
at 130, I34. Neither of these two premises is tenable. See Singer, supra note 48, at 719 (arguing
that, “while Indian land was not built up, virtually all land in America was under tribal
sovereignty, so that the land was not vacant, but was taken from the first possessors”). The
apparent presumption, therefore, must be that, if the custom was conquest – that is, if the
acquisition of land through occupation, settlement, and conquest was customary – then the
state’s incorporation of customary rules into the common law is merely a ratification of custom
-a bottom up, not a top down relation.
69 See Epstein, No New Property, supra note 68, at 76I-62.
70 See Rose, supra note 47, at 73 (arguing that the law defines acts of possession that give
rise to a claim to property).
71 I use “positionality” here in the sense employed in feminist legal theory. Positionality is a
theory of knowledge, a rejection of objective, neutral truth in favor of a truth “situated and
partial[,] . . . emerg[ing] from particular involvements and relationships . . . [that] define the
individual’s perspective and provide the location for meaning, identity, and political commit-
ment.” Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REv. 829, 88o (I990).
72 This relation between law and power has long been noted: “[Bleneath the veneer of
consensus on legal principles, a struggle of interest is going on, and the law is seen as a weapon
in the hands of those who possess the power to use it for their own ends.” Vilhelm Aubert,
Introduction to SOCIOLOGY OF LAW 9, II (Vilhelm Aubert ed., I969).
73 Williams argues that “Locke’s discourse . . . legitimated the appropriation of the American
wilderness as a right, and even as an imperative, under natural law.” WILLIAMS, supra note
49, at 248. Locke’s ideas were at the root of the Declaration of Independence, a fact readily
conceded by Jefferson who indicated that the document was perhaps “a compilation of commonplaces.” Id. at 246.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
I728 HARVARD LAW REVIEW [Vol. I06:1707
labor theory as the basis for a right of acquisition because it affirmed
the right of the New World settlers to settle on and acquire the
frontier. It confirmed and ratified their experience.74
The law’s interpretation of those encounters between whites and
Native Americans not only inflicted vastly different results on them,
but also established a pattern – a custom – of valorizing whiteness.
As the forms of racialized property were perfected, the value and
protection extended to whiteness increased. Regardless of which theory of property one adopts, the concept of whiteness – established
by centuries of custom (illegitimate custom, but custom nonetheless)
and codified by law – may be understood as a property interest.
2. Modern Views of Property as Defining Social Relations. Although property in the classical sense refers to everything that is
valued and to which a person has a right, the modern concept of
property focuses on its function and the social relations reflected
therein. In this sense, modern property doctrine emphasizes the more
contingent nature of property and has been the basis for the argument
that property rights should be expanded.
Modern theories of property reject the assumption that property is
“objectively definable or identifiable, apart from social context. “75
Charles Reich’s ground-breaking work, The New Property,76 was an
early effort to focus on the function of property and note the changing
social relations reflected and constructed by new forms of property
derived from the government.77 Property in this broader sense encompassed jobs, entitlements, occupational licenses, contracts, subsi-
dies, and indeed a whole host of intangibles that are the product of
labor, time, and creativity, such as intellectual property, business
goodwill, and enhanced earning potential from graduate degrees.78
Notwithstanding the dilution of new property since Goldberg v. Kelly79
and its progeny80 as well as continued attacks on the concept,81 the
legacy of new property infuses the concept of property with questions
74 See id. at 247.
75 Underkuffler, supra note 66, at I33.
76 Charles Reich, The New Property, 73 YALE L.J. 733 (I964).
77 See id. at 733.
78 The analysis derived from Reich’s conception of “New Property” formed the basis of the
majority opinion in Goldberg v. Kelly, 397 U.S. 254 (I970). See generally Singer, supra note
48, at 723 (cataloguing the range of intangible interests described as property).
79 397 U.S. 254 (I970).
80 Perry v. Sindermann, 408 U.S. 593 (I972); Morrissey v. Brewer, 408 U.S. 47I (I972); Be
v. Burson, 402 U.S. 535 (I97I).
81 See Bishop v. Wood, 426 U.S. 34I, 347 (I976) (holding that the plaintiff’s discharge
employment with the police department did not constitute a deprivation of a property in
Board of Regents v. Roth, 408 U.S. 564, 578 (I972) (holding that a non-tenured, one-year
university teaching position was not a property right); Epstein, No New Property, supra note
68, at 760-75; William Van Alstyne, Cracks in “The New Property”: Adjudicative Due Process
and the Administrative State, 62 CORNELL L. REV. 445, 457-70 (I977).
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
of power, selection, and allocation. Reich
not a natural right but a construction by s
theories of property that describe the al
a series of choices. This construction directs attention toward issues
of relative power and social relations inherent in any definition o
3. Property and Expectations. ? “Property is nothing but the basis
of expectation,” according to Bentham, “consisting] in an established
expectation, in the persuasion of being able to draw such and such
advantage from the thing possessed.”83 The relationship between ex?
pectations and property remains highly significant,84 as the law “has
recognized and protected even the expectation of rights as actual legal
property.”85 This theory does not suggest that all value86 or all ex?
pectations give rise to property,87 but those expectations in tangible
or intangible things that are valued and protected by the law are
In fact, the difficulty lies not in identifying expectations as a part
of property, but in distinguishing which expectations are reasonable
and therefore merit the protection of the law as property.88 Although
82 See Reich, supra note 76, at 771. The rejection of “new property” on the ground that it
is derived from the government rather than private sources is ultimately not persuasive, because
as Reich argues, all property is a creation of law. See id. at 778-79.
According to Singer, “the legal system makes constant choices about what interests to define
as property.” Singer, supra note 56, at 47. Moreover, “[sjtate power defines and allocates
property rights, and property rights, in turn, allocate power and vulnerability. Seemingly neutral
definitions of property rights by the courts distribute power and vulnerability in ways that
construct illegitimate hierarchies based on race, sex, class, disability and sexual orientation.”
Id. at 8.
83 Jeremy Bentham, Security and Equality in Property, in Property, supra note 58, at 5
52. Curiously, although Bentham argued strongly for the constructed nature of property, h
considered the absence of property ? poverty ? to be natural: “Poverty is not the work of t
laws; it is the primitive condition of the human race . . . .” ld. at 52-53.
A more modern formulation of the relation between property and expectations is advanc
by Macpherson, although from an opposing philosophical view. He argues that property is
right or claim that one anticipates or expects will be enforced. See Macpherson, supra note
at 3 (“What distinguishes property from mere momentary possession is that property is a claim
that will be enforced by society or the state, by custom or convention of law.”). Munzer a
notes that “property, conceived as a legal structure of Hohfeldian normative modalities, mak
possible legal expectations with respect to things.” Munzer, supra note 58, at 29.
84 “Expectations are an important part of modern property theory.” john a. powell, New
Property Disaggregated: A Model to Address Employment Discrimination, 24 U.S.F. L. R
363, 374 (1990).
85 Id. at 366.
86 Wendy Gordon persuasively argues that the notion that property arises from value w
simply not hold up under examination and thus has little merit. See Gordon, supra note 62,
87 Munzer argues that property cannot be equated with expectations, but that expectations
are part of the psychological dimension of property. See Munzer, supra note 58, at 30.
88 Joseph Sax asserts: “The essence of property law is respect for reasonable expectations.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
the existence of certain property rights may seem self-evident and the
protection of certain expectations may seem essential for social stability,89 property is a legal construct by which selected private interests
are protected and upheld. In creating property “rights,” the law draws
boundaries and enforces or reorders existing regimes of power.90 The
inequalities that are produced and reproduced are not givens or inevitabilities, but rather are conscious selections regarding the structuring
of social relations. In this sense, it is contended that property rights
and interests are not “natural,” but are “creation[s] of law.”91
In a society structured on racial subordination, white privilege
became an expectation and, to apply Margaret Radin’s concept, whiteness became the quintessential property for personhood.92 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”: “Its basis is that a relation
between people takes on the character of a thing and thus acquires a
‘phantom objectivity,’ an autonomy that seems so strictly rational and
all-embracing as to conceal every trace of its fundamental nature: the
relation between people.”93 Whiteness was an “object” over which
continued control was – and is – expected. The protection of these
expectations is central because, as Radin notes: “If an object you now
control is bound up in your future plans or in your anticipation of
your future self, and it is partly these plans for your own continuity
that make you a person, then your personhood depends on the real-
ization of these expectations.”94
The idea of justice at the root of private property protection calls for identification of those
expectations which the legal system ought to recognize.” Joseph L. Sax, Liberating the Public
Trust Doctrine from Its Historical Shackles, I4 U.C. DAVIS L. REV. i85, I86-87 (I980) (footnote
89 See, e.g., Epstein, supra note 6i, at 1241 (“In essence the first possession rule has been
the organizing principle of most social institutions, and the heavy burden of persuasion lies
upon those who wish to displace it.”).
90 Singer argues that, in deciding what contract and what property rights to enforce, the
state endorses the power of one party over the other or prevents one party from exercising
power to the detriment of the other. Thus, the state makes allocative decisions in all transactions, public or private. See Singer, supra note 55, at 650-52.
91 Justice Holmes’s dissent in International News Service v. Associated Press stated that
“[p]roperty, a creation of law, does not arise from value . . . .” International News Serv. v.
Associated Press, 248 U.S. 215, 246 (I9I8) (Holmes, J., dissenting).
92 See Radin, supra note 63, at 959-6I (examining property as “a class of objects or resources
necessary to be a person or whose absence would hinder the autonomy or liberty attributed to
a person”).
93 GEORG LuKAcs, HISTORY AND CLASS CONSCIOUSNESS 83 (Rodney Livingstone trans.,
94 Radin, supra note 63, at 968. In this passage, Radin is not attempting to carry out
Bentham’s project of providing overall justifications for property; rather, she is only considering
the role of expectations in personal property.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
Because the law recognized and protected expectations grounded
in white privilege (albeit not explicitly in all instances), these expectations became tantamount to property that could not permissibly be
intruded upon without consent. As the law explicitly ratified those
expectations in continued privilege or extended ongoing protection to
those illegitimate expectations by failing to expose or to radically
disturb them, the dominant and subordinate positions within the racial
hierarchy were reified in law.95 When the law recognizes, either
implicitly or explicitly, the settled expectations of whites built on the
privileges and benefits produced by white supremacy, it acknowledges
and reinforces a property interest in whiteness that reproduces Black
4. The Property Functions of Whiteness. – 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.96 Its attributes
are the right to transfer or alienability, the right to use and enjoyment,
and the right to exclude others.97 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.
(a) Rights of Disposition. – Property rights are traditionally described as fully alienable.98 Because fundamental personal rights are
commonly understood to be inalienable, it is problematic to view them
as property interests.99 However, as Margaret Radin notes, “inalienability” is not a transparent term; it has multiple meanings that refer
to interests that are non-salable, non-transferable, or non-marketalienable. 100 The common core of inalienability is the negation of the
possibility of separation of an entitlement, right, or attribute from its
holder. 101
Classical theories of property identified alienability as a requisite
aspect of property;102 thus, that which is inalienable cannot be prop95 See infra pp. 1745-5 7.
96 See J.S. MILL, PRINCIPLES OF POLITICAL ECONOMY bk. II, ch. ii, at 2I8 (W. Ashley
ed., I909).
97 See id.
98 See Margaret Radin, Market-Inalienability, I00 HARV. L. REv. 1849, I854 n. I9 (1987).
99 See id. at I85I.
100 See id. at I85 2-53.
101 See id. at I852.
(William Ashley ed., I909) (stating that “[t]he institution of property, when limited t
elements” is a person’s right to its “exclusive disposal” as well as the producer’s right
can be gotten for the goods in a fair market), quoted in Radin, supra note 98, at I889. Radin
notes that this position differs from one pluralist view, which states that some things can be
property without being fully alienable. See Radin, supra note 98, at I890.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
1732 HARVARD LAW REVIEW [Vol. 106:1707
erty.103 As the major exponent of this vie
offices, monopoly privileges, and human b
or should have been inalienable ? should n
at all.104 Under this account, if inalienabil
of property, then whiteness, incapable of bein
either inside or outside the market, would
As Radin notes, however, even under the classical view, aliena?
bility of certain property was limited. Mill also advocated certain
restraints on alienation in connection with property rights in land and
probably other natural resources.106 In fact, the law has recognized
various kinds of inalienable property. For example, entitlements of
the regulatory and welfare states, such as transfer payments and
government licenses, are inalienable; yet they have been conceptual?
ized and treated as property by law.107 Although this “new property”
has been criticized as being improper ? that is, not appropriately
cast as property ? the principal objection has been based on its
alleged lack of productive capacity, not its inalienability.108
103 If property inherently includes the power of alienation, then property that is inalienable
is a logical contradiction. See Radin, supra note 98, at 1889-90. The result is an inexorable
pull toward “universal commodification.” Id. at 1890-91.
104 See Mill, supra note 102, at 208, cited in Radin, supra note 98, at 1889-90.
105 There is one historical instance in which arguably whiteness was transferred. In Loving
v. Virginia, 388 U.S. 1 (1967), the Supreme Court invalidated Virginia’s anti-miscegenation
statute that prohibited intermarriage between white persons and “colored persons” as violative
of the Equal Protection Clause. See id. at 12. Significantly, the statute did allow intermarriage
between whites and persons of white and American Indian descent. It further defined white
persons as those of exclusively Caucasian origin, but granted persons with less than one-sixteenth
American Indian blood the status of being white for the purposes of the statute. See Va. Code
Ann. ? 20-54 (repealed 1968). In conferring the status of honorary white on persons of such
heritage, the statute was reflecting the “desire of all to recognize as an integral and honored
part of the white race the descendants of John Rolfe and Pocahantas.” Bureau of Vital Statistics,
The New Family and Race Improvement, 17 Va. Health Bull., Extra No. 12, at 18, 19, 26
(New Families Series No. 5, 1925), cited in Walter Wadlington, The Loving Case: Virginia’s
Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189, 1202 (1966). In
one sense, the statute represented a legal conveyance of the property interest in whiteness to
those who were technically not white, possibly to ensure the stability of a social order in which
many who considered themselves white were not in fact white as defined by law.
106 See Mill, supra note 102, at 218, cited in Radin, supra note 98, at 1889-90. Mill thus
argued that property included the power to bequest, but not the right to inherit and that
property rights in land carried limitations. See John S. Mill, Of Property, in Property, supra
note 58, at 77, 87, 95107 See Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (holding that Social Security benefi?
ciaries possessed a qualified property interest); Goldberg v. Kelly, 397 U.S. 254, 264 (1970)
(holding that welfare benefits constituted property interests and could not be taken away without
a pre-termination hearing); In re Ming, 469 F.2d 1352, 1355-56 (7th Cir. 1972) (holding that a
law license, as a form of property, may not be suspended without a hearing); Reich, supra note
76, at 733.
108 Epstein acknowledges that “the state can create new forms of property other than the
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
The law has also acknowledged forms of inalienable property derived from nongovernmental sources. In the context of divorce, courts
have held that professional degrees or licenses held by one party and
financed by the labor of the other is marital property whose value is
subject to allocation by the court.’09 A medical or law degree is not
alienable either in the market or by voluntary transfer. Nevertheless,
it is included as property when dissolving a legal relationship.
Indeed, Radin argues that, as a deterrent to the dehumanization
of universal commodification, market-inalienability may be justified
to protect property important to the person and to safeguard human
flourishing.”10 She suggests that non-commodification or market-inalienability of personal property”‘ or those things essential to human
flourishing is necessary to guard against the objectification of human
beings.”12 To avoid that danger, “we must cease thinking that market
alienability is inherent in the concept of property.’ ’13 Following this
classic forms that existed at common law . . . so long as it observes the basic conditions
associated with its own raison d’etre.” Epstein, No New Property, supra note 68, at 754. Thus,
he argues that there is a legitimate basis for treating copyrights and patents, broadcast frequen-
cies, or corporate indentures as property, but no justification exists for treating welfare benefits
as property, because the former confer significant financial gain whereas the latter do not. See
id. at 754-62.
109 See, e.g., O’Brien v. O’Brien, 489 N.E.2d 7I2, 7I3 (N.Y. i985); Joan M. Krauskopf,
Recompense for Financing Spouse’s Education: Legal Protection for the Marital Investor in
Human Capital, 28 KAN. L. REV. 379, 4IO-I6 (I980); see also Charles Reich, The New Property
After 25 Years, 24 U.S.F. L. REV. 223, 226 (I990) (arguing that, if a professional degree is a
couple’s major asset, failure to accord it the status of property may result in substantial injustice
to the wife). But see In re Marriage of Graham, 574 P.2d 75, 77 (Colo. I978) (holding that an
M.B.A. did not constitute marital property subject to division).
110 See Radin, supra note 98, at I903-09. Universal market rhetoric in fact subjects “everything people need or desire” to commodification and “includes not only those things usually
considered goods, but also personal attributes, relationships, and states of affairs.” Id. at i86o.
Radin identifies Richard Posner with this view. See id. at i862 n.49 (“Posner argues that, but
for the costs of implementing a property system, value would be maximized if everything scarce
and desired were ownable and salable . . . . Thus, [because we ought to maximize value,J
everything scarce and desirable ought to be ownable and salable.”) (citation omitted); see also
Elizabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL
STUD. 323, 324 (I978) (arguing for the establishment of a market for babies). This model rejects
inalienability – reductively conceptualized as market-inalienability – as being dysfunctional,
with the result that everything, including bodily integrity, is objectified and property that is
personal collapses into the fungible. See Radin, supra note 98, at i88o-8i.
1″I The distinction between personal and fungible property is described as follows:
Property is personal in a philosophical sense when it has become identified with a person,
with her self-constitution and self-development in the context of her environment. Personal property cannot be taken away and replaced with money or other things without
harm to the person – to her identity and existence. In a sense, personal property
becomes a personal attribute. On the other hand, property is fungible when there is no
such personal attachment.
Radin, supra 98, at i88o n.115; see Radin, supra note 63, at 959-6I.
112 See Radin, supra note 98, at 1903-06.
113 Id. at I903.
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
1734 HARVARD LAW REVIEW [Vol. I06:I707
logic, then, the inalienability of whiteness should not preclude the
consideration of whiteness as property. Paradoxically, its inalienability
may be more indicative of its perceived enhanced value, rather than
its disqualification as property.
(b) Right to Use and Enjoyment. – Possession of property includes
the rights of use and enjoyment. If these rights are essential aspects
of property, it is because “the problem of property in political philosophy dissolves into . . . questions of the will and the way in which
we use the things of this world.””l14 As whiteness is simultaneously
an aspect of identity and a property interest, it is something that can
both be experienced and deployed as a resource. Whiteness can move
from being a passive characteristic as an aspect of identity to an active
entity that – like other types of property – is used to fulfill the will
and to exercise power. The state’s official recognition of a racial
identity that subordinated Blacks and of privileged rights in property
based on race elevated whiteness from a passive attribute to an object
of law and a resource deployable at the social, political, and institutional level to maintain control. Thus, a white person “used and
enjoyed” whiteness whenever she took advantage of the privileges
accorded white people simply by virtue of their whiteness – when
she exercised any number of rights reserved for the holders of whiteness. Whiteness as the embodiment of white privilege transcended
mere belief or preference; it became usable property, the subject of
the law’s regard and protection. In this respect whiteness, as an active
property, has been used and enjoyed.
(c) Reputation and Status Property. – In constructing whiteness
as property, the ideological move was to conceptualize white racial
identity as an external thing in a constitutive sense – an “object[] or
resource[] necessary to be a person.””115 This move was accomplished
in large measure by recognizing the reputational interest in being
regarded as white as a thing of significant value, which like other
reputational interests, was intrinsically bound up with identity and
personhood. The reputation of being white was treated as a species
of property, or something in which a property interest could be as-
serted.”16 In this context, whiteness was a form of status property.
114 Minogue, supra note 44, at I5.
115 Radin, supra note 63, at 960.
116 There have been longstanding debates on whether one’s reputation is more correctly
characterized as property or liberty. Compare Van Alstyne, supra note 8i, at 479 n.97 (claiming
that interests in reputation, traditionally described as interests in liberty, are at least as well
described as property interests) with MUNZER, supra note 58, at 46 n.9 (noting that reputation
in Anglo-American law is more often described as a liberty interest than a property interest).
Reputational interests, however, have been treated as interests possessing aspects of both in
American law. As Robert Post indicates, the concepts of reputation manifested in the common
law of defamation at different points in history include reputation as property, reputation as
honor, and reputation as dignity. See Robert C. Post, The Social Foundations of Defamation
This content downloaded from on Fri, 21 Apr 2017 21:58:15 UTC
All use subject to http://about.jstor.org/terms
The conception of reputation as property found its origins in early
concepts of property that encompassed things (such as land and personalty), income (such as revenues from leases, mortgages, and patent
monopolies), and one’s life, liberty, and labor.”17 Thus, Locke’s famous pronouncement, “every man has a ‘property’ in his own ‘person,”’8 undergirded the assertion that one’s physical self was one’s
property.’19 From this premise, one’s labor, “the work of his hands,”
combined with those things found in the common to form property
over which one could exercise ownership, control, and dominion.120
The idea of self-ownership, then, was particularly fertile ground for
the idea that reputation, as an aspect of identity earned through effort,
was similarly property. Moreover, the loss of reputation was capable
of being valued in the market.12’
The direct manifestation of the law’s legitimation of whiteness as
reputation is revealed in the well-established doctrine that to call a
white person “Black” is to defame her.122 Although many of the cases
Law: Reputation and the Constitution, 74 CAL. L. REv. 69I, 693 (I986). Reputation is a
“melange” lending itself to different descriptions over time. Id. at 740.
117 See Macpherson, supra note 58, at 7.
118 LOCKE, supra note 46, at I30.
119 Radin surmises that Locke’s use of person in this passage probably refers to ownership
of one’s physical body. See Radin, supra note 63, at 965. To construe the Lockean precept of
holding property in one’s person as meaning property in one’s body depends on a particular
theory of the person that equates persons with human bodies. However, solving the riddle of
the meaning of person is not an essential predicate to recognizing whiteness as property because
whatever the c…
Purchase answer to see full

Why Choose Us

  • 100% non-plagiarized Papers
  • 24/7 /365 Service Available
  • Affordable Prices
  • Any Paper, Urgency, and Subject
  • Will complete your papers in 6 hours
  • On-time Delivery
  • Money-back and Privacy guarantees
  • Unlimited Amendments upon request
  • Satisfaction guarantee

How it Works

  • Click on the “Place Order” tab at the top menu or “Order Now” icon at the bottom and a new page will appear with an order form to be filled.
  • Fill in your paper’s requirements in the "PAPER DETAILS" section.
  • Fill in your paper’s academic level, deadline, and the required number of pages from the drop-down menus.
  • Click “CREATE ACCOUNT & SIGN IN” to enter your registration details and get an account with us for record-keeping and then, click on “PROCEED TO CHECKOUT” at the bottom of the page.
  • From there, the payment sections will show, follow the guided payment process and your order will be available for our writing team to work on it.