Whiteness as Property

Issues regarding race and racial identity as well as questions pertaining
to property rights and ownership have been prominent in much public dis-
course in the United States. In this article, Professor Harris 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 Ham’s 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. Fol-
lowing 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 ratiJied 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
classijication 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.

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