"Objective" Definitions in the Law

Throughout her work, Cheryl Harris criticizes the courts for their reification of racialized property. Often, Harris' critique lies in the Court's failure to define terms such as "first possession" in a way that does not unduly favor the party with systematic power. She traces these consistent "misdefinitions" to court cases involving the definitions of "tribe," "color," "inequality," and "merit." In her discussion of the Court's justification for the conquest of Native American land, Harris specifically notes that, "possession--the act necessary to lay the basis for rights in property-- was defined to include only the cultural practices of whites" (1721).  For Harris, it is this dominance of law by those who hold the most power that has permitted the consistent subjugation of African American peoples. She argues that, "the law holds to the basic premise that definition from above can be fair to those below, that beneficiaries of racially conferred privilege have the right to establish norms for those who have historically been oppressed pursuant to those norms and that race is not historically contingent" (1762). Harris explains that so long as those leading the law also feel the need to protect their expectations and identity from the outcome of these decisions, the law will continue to oppress underrepresented groups.

Harris' argument about decisions in law drew a few questions for me: Is it impossible to ever create objective laws? And if so, how can we ensure that we create the most fair laws? Harris seems to most directly answer these questions during her reference to Mari Matsuda during her argument for improving the current system for affirmative action in America. Matsuda argues that, "looking to the bottom [involves] adopting the perspective of those who have seen and felt the falsity of the liberal promise" (1779). She explains that this "bottom-up" approach mandates thorough studies of oppressed groups and their experiences without any desire to remain "abstract." Thus, Harris contends that while the law will never be objective, such objectivity is not necessary to create the "most fair" laws. Instead, the actual experiences of oppressed groups must replace appeals to abstract terms such as "liberty" and "equality" which Harris demonstrates have been disguised as "objective" to conceal their essential role in promoting subjugation and oppression.

What Does First Possession Mean?

One of Harris' primary arguments for the emergence of whiteness as property is rooted in the conquest of Native American land; in her view, our Nation's colonial legacy "embedded the fact of white privilege into the very definition of property" (Harris, 1721). By Harris' account, possession "was defined to include only the cultural practices of whites" (Harris, 1721). Essentially, Harris argues that colonists brought with them their understanding of property rights (one which she argues is thoroughly Lockean) and determined that it was the only definition which could codify possession within the New World. To make this concrete, she explains the Native Americans' approach: A more "fluid and communal" view of land where property inhered in the tribe rather than the individual.

As Harris explains, because the Native Americans did not enclose their land or allot it to individuals, their claim could safely be ignored (Harris, footnote 46). As was reflected both by the colonialist mindset, as well as the laws governing the New World, "the possession maintained by the Indians was not 'true' possession and could safely be ignored...Indian forms of possession were perceived to be too ambiguous and unclear" (Harris, 1722). Harris points out that this "right of conquest" was reified in Johnson and Graham's Lessee v. M'Intosh; by only upholding a Lockean conception of property, "courts established whiteness as a prerequisite to the exercise of enforceable property rights" (Harris, 1724).

While I absolutely agree that this happened, and believe the results to be morally reprehensible, I wonder how one might have gotten around this difficulty. It seems that in order to form consistent property rights -- or laws of any sort, for that matter -- one has to be informed by a certain understanding or "custom." From the beginning, should (or, perhaps more significantly, could) colonists have incorporated the Native American approach to property into their laws? Or is this too idealistic? In other words, did the colonists have a choice to do something other than 1) Conquer and stick to your own understanding of property, or 2) Don't conquer?

Law and Custom in the Establishment of Whiteness as Propety

As Harris traces the development and establishment of Whiteness as property she accounts for the influence of both the law and custom. Specifically, she says she is using the feminist legal concept of "positionality" to place each of these in their appropriate historical context, as opposed to merely "remaining within the bipolar confines of custom or [law]"(1727)(See footnote 71).
Harris seems to argue that Whiteness transitioned from an aspect of identity to a property because of the law: "According Whiteness actual legal status converted an aspect of identity into an external object of property" (1725). This would imply that the concept of Whiteness originated outside of the law, and became a privileged position in property through the law.
As Harris recognises later on, the status and origin of property is a contentious matter as property seems to require justification and enforcement, at the very least in order to be effective and allow the owner to profit. Having property in something that I cannot securely enjoy is relatively useless, as I am forced to spend my energy on protecting my property, as opposed to profiting from it. This would then imply that property (specifically the kind of actionable property that serves as the basis for institutionalised wealth disparities accumulated over generations and protected by the state) requires the protection of the law. Whiteness as property really only seems to become potent once the law starts to enforce it, for without the law Whiteness can merely function as a privileged societal status, as opposed to truly serving as property, in the truly potent sense of the word.
In trying to untangle the interrelated effects of custom and law, the concept of positionality becomes critically useful. Given historical context, it seems fair to conclude that custom initially provided the raw materials, which the law then shaped and moulded in order to achieve its desired goal, namely the protection of white property (both of Whiteness itself, and of physical assets in the hands of white people). As Harris concludes: "The law [...] established a pattern -- a custom -- of valorising whiteness." (1728) Custom then served to amplify the law and the effects thereof.

AA as Distributive vs. Corrective Justice

Towards the end of “Whiteness as Property,” Harris contends that our main issue regarding affirmative action is that we consider it to be a principle of solely corrective justice rather than both corrective and distributive justice. Using Ronald Fiscus’s definition, she argues, “distributive justice ‘is the claim an individual or group has to the positions or advantages or benefits they would have been awarded under fair conditions’” (1781). Harris asserts that rather than focusing on “the need to compensate minorities for harms done to them in the past,” we focus on the harm that affirmative action inflicts on individuals competing for the same positions, especially “innocent whites”(1781). She notes that the Court, even when upholding affirmative action plans, remains concerned about the “burdens” these policies have placed on whites and instead argues that this “bipolar corrective justice between individual Black and white competitors renders invisible parties essential to the proper adjudication of the claims at issue”(1782). This is a very compelling point. For support, Harris again quotes Fiscus: “If in a fair world, white males would have achieved N percent of a given set of benefits, then white males who claim benefits beyond that percentage are claiming benefits they are not entitled to, whether or not they appear to have ‘earned’ the benefit according to accepted criteria” (1784).

However, while this idea of combating racial injustice through a distributive justice affirmative action lens is a very appealing one, it is not easy to reject the “accepted criteria” to which Fiscus refers. After all, this “accepted criteria” has been upheld by law since the nation’s founding. And it is to this Harris refers when she states, “whiteness has value, whiteness is valued, and whiteness is expected to be valued in law” (1777). Further, even though Fiscus’s example seems perfectly neat on paper, “equalizing treatment by redistributing power and resources in order to rectify inequalities and to achieve real equality” creates very significant issues in practice (1788). Even if a white male has earned N+5 benefits in today’s world (where in an entirely fair world he would have only earned N), it would be very difficult to tell this person that he does not have any property right in these goods. It is possible to create a tax for achieving more than N goods. However, it would violate the 14^th Amendment to only tax groups who have not been subject to racial discrimination. Likewise, it is very difficult to tell someone that even though they haven’t done anything wrong, their application to a school is rejected while a student with lower test scores is accepted based on race. Isn’t it a problem that individuals are punished for past injustices when they have done nothing wrong? Is it okay to say that this is permissible if distributive justice is what’s best for the greater good of society? Harris would certainly say yes, this version of affirmative action is extremely necessary. But I’m not as convinced, even though the United States clearly has a history of immense injustice to non-white racial groups and it is extremely obvious to me that something must be done to correct for these wrongs.

Choices

In her exploration of “Whiteness as Property,” Cheryl Harris evokes the idea of “autonomous decision-making.”  Harris employs her grandmother’s story and the story of many Black Americans to discuss the idea of “passing” as a white citizen (Harris 1743).  Harris emphasizes that “only when oppression makes self-denial and the obliteration of identity rational and, in significant measure, beneficial” would so many Black Americans cover up their identities to “embrace a lie” (Harris 1743).  Thus, she asks whether this “choice” represents “voluntariness or lack of compulsion” at all (Harris 1743).  This idea of “choice” evoked the Lockean theme of “tacit consent” for me. Adam Smith noted about Americans in the in the 18^th century, “most people know no other language nor country, are poor, and obliged to stay not far from the place where they were born to labour for a subsistence.  They cannot therefore be said to give any consent to a contract (Smith 403).” Thus, like Harris, Smith is skeptical of whether this choice to consent constitutes a choice at all.  During my tutorial with Professor Hurley, we discussed “tacit consent” and examined when choices—like that of “consenting” to a government or “choosing” a race—are choices and when they are coercion.  If men or women in Locke’s time did not support their government, did they really have the option to leave that government?  Did they really have the ability to leave family, culture, source of revenue, and life in order to pursue a life in a foreign land? Like Smith argues about 18^th century Americans, Harris argues that her grandmother did not have a choice of whether to pass as a white.  Rather, “the economic coercion of white supremacy on self-identification” forced Harris’ grandmother to self-identify as white, thereby causing her to leave her culture, heritage, and true self behind (1743).

A Constitutional Amendment for Affirmative Action

Harris effectively articulates the differences in two conceptions of affirmative action and its purpose within society. She dissects the corrective justice framework first, condemning how even talking about affirmative action as “the current generation of whites being required to compensate for harms caused by prior generations […] implicitly has accepted the notion that affirmative action burdens—that is, extracts compensation from—innocent whites” (1782). The notion that affirmative action corrects wrongdoings of our white predecessors actually enshrines white property within the education system, even if its aim is to strip this property from whites today. In contrast, Harris discusses the benefits out the   distribute justice framework, a more basic focus on “entitlement and fairness” (1783). This primal understanding of equal protection “Requires that individuals receive that share of the benefits they would have secured in the absence of racism” (1783). She holds that this view attempts to recreate “what would have been the proper allocation” of property to each race, instead of attempting to rectify wrongdoings and upholding their validity while doing so.

She clearly articulates the dangers within protecting white property through challenges to affirmative action when she critiques the Croson decision. She underlines the fact that when Croson appealed to equal protection clause within the 14^th amendment and accused the affirmative action program of violating his equal protection under the constitution, he extended protection of the law “in the form of strict scrutiny review to whites as whites” (1775). Harris holds that strict scrutiny should not be applied to instances of white racial discrimination since it “does not signify the same meaning as differential treatment of Blacks” (1775). In fact, “treating whiteness as the basis for a valid claim to special constitutional protection [applying strict scrutiny] is a further legitimation for whiteness as identity status, and property” (1775).  Although she does not deny whites equal protection, she holds that applying strict scrutiny to whites’ right to racial superiority further legitimates white property.

My question is: did the Constitution fail to provide an avenue to true, distributive justice for African Americans today? Was the Fourteenth Amendment simply not specific enough? Do we need a Constitutional amendment to underline that strict scrutiny should only be applied to equal protection for the purpose of the advancement of Blacks to their natural, equally apportioned rights before racism subordinated the people as a whole? Wouldn’t that actually further illuminate what the amendment was truly meant to do after the Civil War? Harris briefly touches on the ways in which South Africa has constitutionally committed to affirmative action. Is this what the United States needs? I will argue in class in favor of this idea.

Equality: The Foundation for Defining the State of War and the State of Nature

While Hobbes views the state of nature as identical to the state of war, Locke considers a distinction between the two. These contrasting interpretations emerge due to their conflicting definitions of equality.

Hobbes contends that the state of nature is equivalent to the state of war predominantly because the state of nature inevitably evolves into the state of war. Conversely, Locke argues that there is a “plain difference between the state of nature and the state of war” (15). He defines the ideal state of nature as, “Men living together according to reason, without a common superior on earth, with authority to judge between them” and characterizes the state of war as, “force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief” (Locke 15). According to Locke, in the state of nature, reason is the guiding principle that not only compels men to coexist, but also provides humans with the ability to live without the need for “a common superior on earth” to arbitrate their actions. In the state of war, men disregard reason as they attempt to infringe on one another through “force, or a declared design of force” (Locke 15). Furthermore, the state of nature’s relationship to “peace, good will, mutual assistance and preservation” and the state of war’s affiliation to “enmity, malice, violence, and mutual destruction” originate from the need to seek a collective higher power (Locke 15).  Since men base their actions on reason in the state of nature, there is no requirement for a “common superior.” However, in the state of war, the disorder calls for a “common superior on earth to appeal to for relief” (Locke 15).

            Even though Hobbes and Locke view equality as a foundation for the state of nature, they differ on the development of inequality.  Hobbes regards equality as a key underpinning in the state of nature, writing, “Nature hath made men so equal in the faculties of body and mind” (74). Locke, correspondingly, defines men as naturally equal with “no one having more than another” (8). While both philosophers consider inequality, Locke and Hobbes hold opposing views as to how the contrary arises. Locke argues that inequality emerges through the assertion of a dominant individual, writing, “The lord and master of them all should, by any manifest declaration of his will, set one above another” (Locke 8). Hobbes, on the other hand, contends that inequality arises in a more natural manner. Even though one person is innately physically stronger or smarter, this variance is not substantial enough to justify the ability for, “one man can thereupon claim to himself any benefit to which another may not pretend as well as he” (Hobbes 74). According to Hobbes, although some discrepancies exist, all men are inherently equal. Based on Locke’s argument for the emergence of inequality, he views it as appropriate for a “lord or master” to distinguish himself above the rest. As opposed to Locke, who is more tolerant of inequality, Hobbes considers the existing inequality as an insignificant reason to validate a person’s power over others.

         Additionally, Locke and Hobbes hold contrasting opinions on the equality of men. While Locke considers the equality of men as progressive, Hobbes views it as unfavorable. Locke cites Hooker’s definition of equality of men as “foundation of that obligation to mutual love amongst men, on which he builds the duties they owe one another, and from whence he derives the great maxims of justice and charity” (8). Locke argues that the equality of men set forth by the state of nature as a unifying factor to foster a community. Hobbes, alternatively, views the equality of men as a separating and potentially destructive quality. He argues that equality causes the state of war, writing, “From this equality of ability ariseth equality of hope in the attaining of our ends. And therefore, if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies” (75). With the same body and mind, men expect to achieve the same goals. However, in the event that this prospect fails, competition emerges. Competition is a key underpinning behind the state of war because the two men now “become enemies” (Hobbes 75). While Hobbes argues that the state of war naturally evolves from competition, Locke claims that a man enters a state of war through a declaration “by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life” (14). According to Locke, the state of war does not develop from a series of events, but from man’s assertion. The different foundations for the state of war explicate Locke’s and Hobbes’ contrary definitions for the state of nature.