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Race and the Law

Whiteness as Property

In the lead up to Volume 134, the Harvard Law Review republished five classic Critical Race Theory articles from our archives. This is the first piece in our series. The full version of this Article may be found by clicking on the PDF link below.

Issues regarding race and racial identity as well as questions pertaining to property rights and ownership have been prominent in much public discourse 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 Harris 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.  Following 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 ratified 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 classification 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.