18 Racial Reflections: Dialogues in the Direction of liberation
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18 Racial Reflections: Dialogues in the Direction of Liberation DERRICK A. BELL, TRACY HIGGINS, AND SUNG-HEE SUH, EDITORS How can we explain the willingness of so many white Americans to sacrifice their interests in social reform to insure that blacks they deem "undeserving" do not gain? What precisely are they trying to protect in this land where equality is a concept while ownership of property is a basic measure of worth? Over time, beliefs in white dominance, reinforced by policies subordinating black interests to those of whites, have led to an unrecognized, but no less viable, property right in whiteness. In challenging the legality of racial segregation in the late nineteenth century, the plaintiff in Plessy v. Ferguson recognized, and the Court acknowledged, a property right in being white: an entitlement to those advantages gained over blacks by virtue of a white identity.1 Although there is no such overt recognition in contemporary racial decisions, the application of the strict scrutiny standard of review-once reserved for the most invidious forms of racism-to affirmative action programs reflects a concern for "innocent whites" and implicitly recognizes what the Plessy Court was willing to acknowledge openly. Viewing racial discrimination as a phenomenon based on property rights, students explored why whites so often oppose social reforms that work to their advantage while perpetuating racial barriers that disadvantage them. Examining the Property of Rights in Whiteness WILHELMINA WRIGHT The practice of American racism is based on two principles: the sanctity of property and the belief in the hierarchy of races. The first principle is firmly protected by the words and action of the Constitution; the second is proscribed by the words of the instrument, but not by its effect. History shows that when these two principles are juxtaposed (which happens constantly) property rights are given absolute priority. American liberalism, embodied in the Constitution, was designed to protect life, liberty, and property. The polity was given the rights to these three things, and the state was given the power only to act to protect these rights. Slavery, the Black Codes, and Jim Crow laws could only exist under a constitutional regime when justified by the belief that the lives Originally published in 37 UCLA 1. REV. 1037 (1990). Copyright © 1990, The Regents of the University of California . All Rights Reserved. Reprinted by permission of the UCLA Law Review and Fred B. Rothman & Company. Copyrighted Material Racial Reflections 107 and liberty of members of the black race were worth less than the property of the white race. Few persons today would use that conception to justify their position against affirmative action, yet it remains a primary motivation for their actions. Modern America has publicly rejected advocacy of racial supremacy, that is, the argument that the life, liberty, and property of whites are worth more than those of blacks. What we face today, however, is equally damaging and little discussed: that property is worth more than life or liberty. That whites own the vast majority of what Americans define as property does not usually enter this argument, and it therefore appears nonracist. The failure of today's racial discourse lies in its belief that property is neutral, that the deed to a suburban home is "property," while the opportunity to move out of a slum is not. The fungibility of property can be no better exemplified than it is by slavery. That our Constitution once recognized one person's very life and liberty as another's property should teach us the danger of letting property determine liberty rather than looking to liberty to define property. Defining the Property Right in "Whiteness" TRACY HIGGINS The notion of a property right in "whiteness" seems to thwart the progress of civil rights for blacks in at least two ways. Within the political sphere, if an interest in "whiteness" is culturally defined and recognized even implicitly, the interests of blacks become separated from those of whites. This separation of interests allows blacks to become a "bargaining chip" among different white economic groups. In addition, the separation (and subordination) of black interest functions to soothe lower class white dissatisfaction with its own position and prevents the mobilization of both black and white economically exploited groups; within the judicial system, the implicit recognition of a property right in whiteness has led to frustration when relief for black plaintiffs would mean undermining this property right. For example, Washington v. Davis2 protected this property right in whiteness by severely limiting the possibility of...