Mark S. Weiner


Ian F. Haney López, White by Law: The Legal Construction of Race. New York: New York University Press, 1996. Pp. xiv, 296. $24.95 (cloth), $17.95 (paper).

Fourteen years ago, Robert Gordon noted that scholars associated with the Critical Legal Studies movement "pay a lot of attention to history." In fact, wrote Gordon, Critical Legal Studies scholars "have probably devoted more pages to historical description - particularly the intellectual history of legal doctrine - than to anything else." Much the same could be said today of the academic movement known as Critical Race Theory. Although Critical Race theorists are concerned above all with alleviating current racial injustice, they devote a good deal of their intellectual energy to examining the past. In the following Book Note, I consider one of the most recent and celebrated historical contributions to Critical Race Theory, Ian Haney López's White by Law: The Legal Construction of Race. Unlike other evaluations of White by Law, this Book Note focuses not on Haney López's theoretical objectives, but on one of his central empirical claims. In particular, it examines Haney López's pathbreaking discussion of the role anthropological evidence played in determining the outcome of two Supreme Court decisions of the 1920s: Ozawa v. United States and United States v. Thind. Both decisions clarified the racial requirements for becoming a naturalized U.S. citizen under federal law.

I have divided this Book Note into three brief sections. First, I describe the subject of White by Law and explain why Haney López's analysis of Ozawa and Thind forms the foundation on which he constructs his more general historical and normative conclusions. Second, by considering the language of Ozawa and Thind and the jurisprudence of Justice George Sutherland, the author of both decisions, I suggest how that analysis is open to empirical critique. My remarks on Justice Sutherland focus on his consistent wariness toward the use of social science by the Supreme Court, as well as on his drive to consolidate federal authority over international affairs. Finally, I propose an alternative perspective on Ozawa and Thind that I hope might supplement Haney López's trenchant interpretation.