Excerpted From: Nancy Jin, Legally Codifying a Social Construction: How American Courts Have Weaponized Whiteness to Exclude Black and Chinese People, 27 69 Asian Pacific American Law Journal (2023) (216 Footnotes) (Full Document)


NoPictureMaleIn the wake of the COVID-19 pandemic, racism towards Chinese people skyrocketed. Testimonies of racist and xenophobic acts towards Chinese people and Chinese Americans popped up on news articles, blogs, and across social media platforms. Perhaps the most prominent act of racism that could be felt nationally was Donald Trump's choice to call the coronavirus “the Chinese virus,” the “Wuhan virus,” and the “kung flu,” a decision that went directly against the World Health Organization's guidance against tying diseases to geographic locations and invigorated racist behavior across the nation.

Trump first used the term “Chinese virus” on March 17, 2020 and he, as well as the White House Twitter, defended his use of the terms on March 18, when the White House Twitter tweeted, “Spanish Flu. West Nile Virus. Zika. Ebola. All named for places.” San Francisco State University found a 50 percent increase in news articles relating the coronavirus and anti-Asian discrimination between February 9 and March 7. Even this figure was hypothesized to only cover a small portion of the cases of xenophobia, because the media likely reported only the worst cases.

From mid-March to the beginning of August, an incident reporting center called STOP AAPI HATE received more than 2,500 reports of harassment or violence directed towards the AAPI (Asian Americans and Pacific Islanders) population across the nation. Seven out of ten incidents involved racial slurs, name calling, and profanities. Four out of ten incidents occurred at places of business such as restaurants and grocery stores. Even Antonio Guterres, the United Nations Secretary-General, urged governments to act in response to the “tsunami of hate and xenophobia, scapegoating and scare-mongering” that ensued as a result of the pandemic. This reaction came as a surprise to some, but to anyone who had been paying attention, there was no surprise at all.

This increase in violence towards AAPI [Asian Americans and Pacific Islander] came at the same time as national unrest, provoked by gruesome, systemic police brutality and catalyzed by the death of George Floyd. On May 25, 2020, George Floyd was murdered by a police officer who used his knee on Floyd's neck to pin him to the ground. Floyd, who had neither struggled nor resisted detainment, could barely breathe for eight minutes and forty-six seconds before crying for his “momma” and succumbing to death. The macabre killing, combined with Floyd's mild-mannered demeanor and boiling racial tensions, resulted in an explosion of protests across the nation. People from all walks of life came together to demand consequences for the unchecked and pervasive racism that is foundational to the police system.

These protests made something especially clear to AAPI [Asian Americans and Pacific Islander] across the nation--the necessity of cross-racial solidarity. This concept is not a new one. The Black community has, time and time again, advocated for the rights of groups of people besides their own. AAPI [Asian Americans and Pacific Islander] were forced to confront anti-Blackness in their own communities and make a choice to be “a 'model minority’ aspiring to be white-adjacent on a social spectrum carefully engineered to serve the white and privileged,” or to be “an active member of a distinct community that emerged from the tireless resistance of people of color who came before [them].” The events of 2020 offer an opportunity to compare how AAPI [Asian Americans and Pacific Islander], specifically Chinese people, and Black people have historically been pitted against each other and against white people in the eyes of the law.

AAPI [Asian Americans and Pacific Islander] are largely considered a “model minority” or a “superior ethnic group,” somehow immune to racialized problems in a “post-racial America.” They are seen as living proof that the American Dream is real and attainable, and that people can achieve anything they desire as long as they put their heads down and work hard. AAPI [Asian Americans and Pacific Islander] are seen as more white-adjacent than other communities of color, and this proximity to white privilege has led to fewer AAPI [Asian Americans and Pacific Islander] speaking out against model minority stereotyping, despite these stereotypes being inherently racist. This label that AAPI [Asian Americans and Pacific Islander] are assigned creates pressure to conform to the white-dominated culture but does not protect AAPI [Asian Americans and Pacific Islander] from racism or discrimination as a result of their race. The national reaction to COVID-19 is a particularly apt example--as arbitrarily as the proximity to white privilege was doled out, it was violently snatched back.

This proximity to whiteness has had a similar ebb and flow throughout American history. Perspectives from Chinese immigrants are not generally taught, perhaps because “most accounts of the great Chinese immigration to the United States ... have concentrated almost exclusively on the reaction it provoked in the white population.” While the first Chinese people to arrive in California found Americans to have a “mixture of enthusiasm and curiosity,” that attitude was brief. As more Chinese people immigrated and settled in America, white Americans felt more unrest and irritation.

Among the first anti-Chinese campaigns in legislature was a report in 1852 by a California assembly committee which identified the growing Chinese population as a preeminent evil, suggesting a tax be placed on those who did not intend to become American citizens. This was quickly followed by a flurry of mixed opinions--some agreed that the Chinese presence was menacing, while others argued that the Chinese were an “industrious and moral” net benefit to the American economy. Regardless, anti-Chinese taxes were passed soon after, designed to both punish Chinese immigrants already living in the United States and discourage potential immigrants from coming. From the Chinese Exclusion Act of 1882 to the Immigration Act of 1924, also known as the Asian Exclusion Act, American law was developed to exclude and alienate Chinese people and Chinese Americans.

Although Black Americans have had a very different journey, something that ties these groups together is their purposeful, invidious exclusion throughout American history. There is a persistent theme of these groups of people not being considered American, or even at times human. While there is rich scholarship on the institution of slavery, this paper will focus on the continued exclusion of Black Americans, post-emancipation. Even after emancipation, America still permitted slavery as a sentence for crimes - precursor to the racist and brutal police state we see today.

Throughout Jim Crow and the Reconstruction Era, systemic racism was pervasive, from voting laws, to zoning and redistricting, to segregation. The concept that Black people are lesser than has been so indoctrinated in American culture and society that we are still seeing the repercussions of it today. Rather than Emancipation eradicating slavery, as is the dominant narrative, it transformed slavery into the prison industrial complex. The Thirteenth Amendment created a clear carve-out: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” Even as the states were forced to abolish slavery, they created legislation that allowed them to “regulate the behavior of free blacks in ways similar to those that had existed during slavery.” This legislation, called the Black Codes, allowed legislators to criminalize only Black people for the smallest transgressions-missing work, insulting gestures, possessing a firearm, etc. These Black Codes, in combination with the carve-out in the Thirteenth Amendment, meant that “former slaves, who had recently been extricated from a condition of hard labor for life, could be legally sentenced to penal servitude.”

Even for crimes that were not specifically created by the Black Codes, there was a tendency to “impute crime to color”-Frederick Douglass wrote about how not only was “guilt frequently assigned to a black person regardless of the perpetrator's race, but [also] white men sometimes sought to escape punishment by disguising themselves as black.” This trend has continued into the present, where police departments have “admitted the existence of formal procedures designed to maximize the numbers of African-Americans and Latinos arrested - even in the absence of probable cause.”

Even as society shifts to color blindness, there is no “other explanation for the startling racial disparities that continue to mark every socioeconomic, health, and political indicator.” In fact, there is a trend to separate genetic or biological race from social race, the latter of which is dismissed as “politically correct ideology.” Chalking biological race up to science allows a narrative shift wherein “addressing racist policies that make blacks more vulnerable to imprisonment is a violation of color blindness, but suggesting that blacks are genetically predisposed to crime is simply considering a scientific hypothesis.” This blatant ignorance-this belief that we live in a post-racial world-is what allows systemic racism to persist, even now. It can be seen most plainly in the need for a Black Lives Matter movement, as well as the rise of the ignorant All Lives Matter countermovement.

This shift sparked a curiosity about the evolution of how race was treated throughout history. This paper will explore the parallels between court cases involving Chinese people and Black people around the mid to late 1800's and showcases the othering and exclusion of both groups, justified and normalized by the American court system. Additionally, this paper demonstrates that the social construction of “whiteness” was codified through the legal system in order to legally exclude Chinese and Black people.

Race, including whiteness, is hard to define because different groups have used it differently, for their own purposes. Ian F. Haney López defines race as “a sui generis social phenomenon in which contested systems of meaning serve as the connections between physical features, faces, and personal characteristics ... social meanings connect our faces to our souls.” Although López focuses his analysis on the othering of Mexicans, he is clear that “a Mexican might also be White, Indian, Black, or Asian.” He describes how increasing social prejudice against Mexican people “quickly became legal [prejudices],” with laws being passed that both purported to define what a “Mexican” was, and labeled them as “not peaceable and quiet persons.” Ultimately, the “attempt to racially define the conquered, subjugated, or enslaved is at the same time an attempt to racially define the conqueror, the subjugator, or the enslaver.” By creating sub-classes of races, it follows that there would be a superior race. As Cheryl Harris writes, “being white automatically ensures 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.” Even as society evolves, whiteness continues to be the yardstick by which everything else is compared.

Here, I will focus on how the courts have legally developed and legitimated the concept of whiteness to achieve no other purpose besides exclusion. Part I will discuss case law in the mid to late 1800's regarding Chinese people and Chinese Americans. Then, I will discuss case law in the same timeframe regarding Black Americans. The case law will be presented chronologically to showcase the development of the interpretation of law over time. Part II will then explore how the courts have weaponized the concept of whiteness by comparing how law is manipulated and interpreted to be exclusionary. I will examine how the repercussions of this legal history have manifested in various areas of law, such as immigration law. In Part III, I will discuss how this knowledge can be used moving forward.

[. . .]

Historically, whiteness has been seen as a shining beacon. It is what beauty standards are based on, it is what dominates most industries, and it is regarded as what people should aspire to be more like. For decades, nonwhite people have clamored over each other, fighting for that prized status of being white-adjacent. The courts, both a product of the social and political tides of their times, did nothing but encourage such behavior. The white men that sat upon the judicial seats fabricated a social and racial caste--one that placed white people on top and the other races below. The courts then used this dichotomy of being white versus non-white to nurture to develop the exclusion of other races.

The recent events of the coronavirus and the Black Lives Matter protests have highlighted a critical need in our country. While the bottom half of the country is struggling to pay rent, buy food, find healthcare, and live a normal day to day life, the top one percent of the country has profited off of cheap labor. Billionaires like Jeff Bezos and Bill Gates, not subject to the same rules as everyone else, have capitalized on this system that was built to benefit white people in order to make themselves richer.

This system, that has been running the exact way it is supposed to since day one, profits off of the exclusion of non-white people, while glorifying and praising the privilege of being white. This can be seen in the rampant police brutality in our country--a system that was inherently designed to capture Black people and treat them as a lower caste. It can be seen through ICE and the colonization, fetishization, and racial subordination of the Global South. There millions of children are lost and people are deported without a second thought, entire cultures are wiped in the name of spreading democracy, and people of color are created to be less than the white person.

It can also be seen in the carceral system, where people of color, by and large, are convicted and sentenced more frequently than white people, where cash bail is an antiquated system that was designed to keep people of color in jail, and where people are literally still subjected to slavery, because slavery was never abolished completely and simply exists in a different form. The list goes on forever.

This nation does not know anything besides putting white people on a pedestal, but that can change. When people come together and work towards a common goal, when people across different races, classes, gender identities, etc. band together to demand government protection, amazing things can happen. The Black Lives Matter protests have had an incredible impact on the United States: it illuminated the “inordinate amount of money spent on policing and civilian payouts for police brutality”, it “helped stimulate federal oversight for problematic cities such as Ferguson, Louisville, Baltimore, and Minneapolis”, it “galvanized a new crop of elected officials and political actors”, and it shone a bright light at the issue of police brutality. If we are able to dismantle the existing system and create a new one where people are not perceived exclusively for the color of their skin and courts are able to stop excluding other races as being less than white, then there is hope for a more just, a more equitable, and a better tomorrow.