Law and Race Commons^™

The "Free White Person" Clause Of The Naturalization Act Of 1790 As Super-Statute, Gabriel J. Chin, Paul Finkelman

William & Mary Law Review

A body of legal scholarship persuasively contends that some judicial decisions are so important that they should be considered part of the canon of constitutional law including, unquestionably, Marbury v. Madison and Brown v. Board of Education. Some decisions, while blunders, were nevertheless profoundly influential in undermining justice and the public good. Scholars call cases such as Dred Scott v. Sandford and Plessy v. Ferguson the anticanon. Recognizing the contemporary centrality of statutes, Professors William Eskridge and John Ferejohn propose that certain federal laws should be recognized as part of legal canon because of their extraordinary influence and duration. These …

Creating A Racialized Liminal Status: The 1790 Act And Interstitial Citizenship, Rose Cuison-Villazor

William & Mary Law Review

This Comment began with De La Ysla’s case to highlight the political status that Filipinos held when the Philippines was a U.S. territory. This Comment argues that this status, which a court would later describe as a “hybrid status ... the so-called ‘non-citizen national,’” was a racialized liminal political status with roots in the 1790 Naturalization Act (1790 Act). Professors Jack Chin and Paul Finkelman claim that the 1790 Act played a critical role in shaping “the very composition of the people of the United States” by including the “free white person” clause in the country’s first naturalization law. One …

Afterward: A Reply To Commentators, Gabriel J. Chin, Paul Finkelman

William & Mary Law Review

Authors Gabriel J. Chin and Paul Finkelman respond to the comments on their article, The "Free White Person" Clause of the Naturalization Act of 1790 as Super-Statute.

Separate, Sovereign, And Subjugated: Native Citizenship And The 1790 Trade And Intercourse Act, Bethany Berger

William & Mary Law Review

In 1790, the same year Congress limited naturalization to “free white persons,” it also enacted the first Indian Trade and Intercourse Act. The Trade and Intercourse Act may have even stronger claims to “super statute” status than the Naturalization Act. Key provisions of the Trade and Intercourse Act remain in effect today, and the Act enshrined a tribal, federal, and state relationship that profoundly shapes modern law. Unlike the Naturalization Act, the Trade and Intercourse Act reflected the input of people of color: it responded to the demands of tribal nations and—to a degree—reflected tribal sovereignty. While Indigenous people could …

The Road Not Taken: A Critical Juncture In Racial Preferences For Naturalized Citizenship, Ming Hsu Chen

William & Mary Law Review

In The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era …

Paradoxical Citizenship, Amanda Frost

William & Mary Law Review

In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a “super-statute” that has shaped not only U.S. immigration law and policy, but also America’s conception of itself as a “White nation.”

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This Comment explores the conflict between the Naturalization Act’s racial restrictions on citizenship (and its proponents’ vision of the United States as a White nation) and the Fourteenth Amendment’s Citizenship Clause (and its proponents’ vision of the United States as a multiracial …

The Unfinished Business Of Desegregation: Race Conscious College Admissions, Wendy B. Scott

William & Mary Bill of Rights Journal

This rejection of race conscious admissions practices under the Equal Protection Clause of the Fourteenth Amendment by the [Supreme] Court requires a revisit to desegregation jurisprudence and practice to demonstrate why the considerations of race in higher education admissions fulfills the desegregation mandate. Given its rich history and contributions to the formation of equality norms and affirmative action, desegregation jurisprudence and practice provide a foundation for the premise that the use of race in college admissions constitutes a compelling state interest, supported by specific evidence of discrimination, that moves us closer to the democratization of education and racial equality under …

Get Out: Structural Racism And Academic Terror, Renee Nicole Allen

William & Mary Journal of Race, Gender, and Social Justice

Released in 2017, Jordan Peele’s critically acclaimed film Get Out explores the horrors of racism. The film’s plot involves the murder and appropriation of Black bodies for the benefit of wealthy, white people. After luring Black people to their country home, a white family uses hypnosis to paralyze victims and send them to the Sunken Place where screams go unheard. Black bodies are auctioned off to the highest bidder; the winner’s brain is transplanted into the prized Black body. Black victims are rendered passengers in their own bodies so that white inhabitants can obtain physical advantages and immortality.

Like Get …

Heirs' Property In Virginia: Filling In The Gaps, J. Noble Pearson, Lillian Coward

Virginia Coastal Policy Center

The term heirs’ property refers to land that has been passed down informally for multiple generations through intestate succession. Each generation of intestate succession can drastically increase the number of heirs who own the property as tenants-in-common to the point that many may not even know their heirship status. This clouds the title to the property and makes ownership more fractionalized. Because heirs’ property exists outside of the official estate and title systems, owners are vulnerable both at the community and individual levels for three main reasons.

First, and most importantly, heirs’ property is a leading cause of involuntary Black …

Race, Space, And Place: Interrogating Whiteness Through A Critical Approach To Place, Keith H. Hirokawa

William & Mary Journal of Race, Gender, and Social Justice

Drawing from George Lipsitz’s notion that whiteness is “not so much a color as a condition,” this Article embarks on the project of framing the manner and methods through which whiteness continues to dominate space and place. Wherever whiteness dominates space, space carries rules and expectations about the identity and characteristics of people who are present—visitors and jaunters, owners and occupiers—and the types of activities and cultural practices that might occur there. Occasionally, spaces are racialized because of intentional practices of discrimination and segregation. In others, less intentional methods produce racialized space. In both, American spaces tell their own histories …

Constitutional Memories, Jack M. Balkin

William & Mary Bill of Rights Journal

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions …

Debiasing Criminal Justice, Sandra Guerra Thompson, Nicole Bremner Cásarez

William & Mary Bill of Rights Journal

The killing of George Floyd by police officers in Minnesota inspired a summer of protests in 2020, followed by a call for racial reckoning and a professed commitment to reform criminal justice. Many have condemned the “systemic racism” reflected in countless demographic measures. From killings of unarmed men by the police at the front end of the criminal justice system to incarceration rates at the back end, the statistics show stark disparities along racial lines. These disparities are held up as evidence of racial bias in the system.

Statements about racial bias may be intended as an indictment of a …

Indoctrination By Elimination: Why Banning Critical Race Theory In Public Schools Is Unconstitutional, Emma Postel

William & Mary Bill of Rights Journal

This Note argues that Texas public school students’ First Amendment Rights have been violated by the passage of Senate Bill 3 (SB 3), which bans the teaching of Critical Race Theory (CRT) in K–12 public schools. The First Amendment is violated here because (1) students have a First Amendment right to speech, and this law bans protected speech; (2) students have a right to receive information, and this ban prevents them from receiving information; and (3) schools are meant to be the marketplace of ideas for students and banning CRT amounts to unconstitutional viewpoint discrimination. This Note does not suggest …

Shaky Science: Shaken Baby Syndrome And Its Disproportionate Impact On False Convictions Of Women Of Color, Shae A. Woodburn

William & Mary Journal of Race, Gender, and Social Justice

Shaken Baby Syndrome (SBS) is a controversial diagnosis and an even more controversial basis for conviction. The syndrome is questioned by scientists and doctors who have yet to come to a consensus on its diagnosis. Courts have permitted SBS evidence to be admitted in criminal trials, and many people have been convicted solely on the basis of this controversial diagnosis. This Note seeks to analyze the history of SBS, the conflicts in the medical and scientific community, standards of evidence that permit its admission in court, and how all of these factors converge in a way that disproportionately impacts women …

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

William & Mary Law Review

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of …

Abortion, Sterilization, And The Universe Of Reproductive Rights, Melissa Murray

William & Mary Law Review

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities.

Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

Faculty Publications

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

Curing Corrective Rape: Socio-Legal Perspectives On Sexual Violence Against Black Lesbians In South Africa, Waruguru Gaitho

William & Mary Journal of Race, Gender, and Social Justice

Corrective rape can be defined as a hate crime that entails the rape of any member of a group that does not conform to gender or sexual orientation norms, where the motive of the perpetrator is to “correct” the individual, fundamentally combining gender-based violence and homophobic violence. In the South African context, these biases intersect with systemic racism, producing a disproportionate impact on Black, queer, womxn. While the legal framework has evolved to better address sexual violence crimes, Black lesbians remain prone to falling through the legal cracks, and South African society continues to sanction the homophobia and misogyny that …

Blocking The Ballot Box: The Republican War On Voting Rights, Brendan Williams

William & Mary Journal of Race, Gender, and Social Justice

This Article addresses threats to the right to vote that have arisen since 2018, when voter suppression efforts were key to denying Stacey Abrams, the Black Democratic nominee, victory over Republican Brian Kemp in the Georgia gubernatorial race, while Kemp, in administering his own election while Georgia’s Secretary of State, “laid out a chilling blueprint of voting suppression for other states to follow.”

This Article begins by examining the early Republican voter intimidation tactics that resulted in a consent decree, as these can be viewed as part of a continuum to the present day. It discusses the two U.S. Supreme …

Resistance Is Not Futile: Challenging Aapi Hate, Peter H. Huang

William & Mary Journal of Race, Gender, and Social Justice

This Article analyzes how to challenge AAPI (Asian American Pacific Islander) hate—defined as explicit negative bias in racial beliefs towards AAPIs. In economics, beliefs are subjective probabilities over possible outcomes. Traditional neoclassical economics view beliefs as inputs to making decisions with more accurate beliefs having indirect, instrumental value by improving decision-making. This Article utilizes novel economic theories about belief-based utility, which economically captures the intuitive notion that people can derive pleasure and pain directly from their and other people’s beliefs. Even false beliefs can offer comfort and reassurance to people. This Article also draws on interdisciplinary and multidisciplinary theories …

You Can't Have Your Vote And Dilute It Too: Closing The Voting Rights Act Loophole In Gerrymandering Claims, Megan B. Kelly

William & Mary Law Review

The problem with creating and enforcing redistricting standards arises poignantly in racial gerrymandering cases that involve VRA section 2 compliance. In many ways, the rights that the Equal Protection Clause seeks to protect are at odds with the rights that section 2 seeks to protect. On the one hand, equal protection asserts a certain color-blindness, an interest in minimizing the focus on race and, in doing so, maximizing equality for all. On the other hand, the VRA suggests, and in fact requires, line-drawers keep at least one eye on race when drawing lines.

These opposing rights create a tension, which …

Breathing Room For The Right Of Assembly, Tabatha Abu El-Haj

William & Mary Journal of Race, Gender, and Social Justice

This Article explores the legal and political fault lines that the wave of protests highlighting police violence and systemic racism in the summer of 2020 reveal. It focuses in depth on Detroit, Michigan, as a window into the ways that the First Amendment, as currently construed, under-protects those seeking political change and racial reckoning by demonstrating in the streets.

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen J. Pita Loor

William & Mary Journal of Race, Gender, and Social Justice

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …

Reform, Retrench, Repeat: The Campaign Against Critical Race Theory, Through The Lens Of Critical Race Theory, Vivian E. Hamilton

William & Mary Journal of Race, Gender, and Social Justice

The protest movement ignited by the 2020 murder of George Floyd was of a scale unprecedented in U.S. history. The movement raised the nation’s consciousness of racial injustices and spurred promises—and the beginnings—of justice-oriented reform. Reform and racial progress, however, have rarely been linear over the course of U.S. history. Instead, they typically engender resistance and retrenchment. The response to the current justice movement is no exception. One manifestation of the retrenchment has been a rush by states to enact legislation curtailing race-related education in government workplaces and in public schools, colleges, and universities.

These legislative measures purport to prevent …

Working On The Other Side Of The Fence: Relief For Incarcerated Individuals After Employment Discrimination, Hannah C. Merrill

William & Mary Journal of Race, Gender, and Social Justice

One of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” …

Foreword, A. Benjamin Spencer

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

As Muddy As The Mississippi River: An Examination Of Louisiana Jury Venire Creation Procedures, Kristen M. Vicknair

William & Mary Journal of Race, Gender, and Social Justice

Americans expect their constitutional rights to be respected by the federal, state, and local governments, but a lack of transparency on a government’s behalf prevents Americans from being able to trust their governments fully. This Note demonstrates the astounding lack of transparency in Louisiana parishes’ jury venire creation procedures, which prevent Louisianans from trusting that their communities are represented by a fair cross-section on jury venires. The same lack of transparency restricts any constitutional challenges of the representation on appeal, as the major test for the fair cross-section, the Duren test, requires a showing of systematic exclusion on the government’s …

#Blacklivesmatter: From Protest To Policy, Jamillah Bowman Williams, Naomi Mezey, Lisa Singh

William & Mary Journal of Race, Gender, and Social Justice

We find that the protests of 2020 did indeed begin a paradigm shift in the social awareness of racialized police violence, and this important and significant social change has in turn already inspired political change and some degree of legal and policy change. However, the movement remains in a precarious position and it is uncertain how enduring these changes will be. While many state legislators and local officials have responded to the protests with policy reforms, policy action at the federal level is mostly stalled. In addition, it is unclear whether the state and local policy changes will lead to …

Race-Based Remedies In Criminal Law, Ion Meyn

William & Mary Law Review

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize that these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, …

Law Schools, Law Firms Must Share Responsibility For Diversity, A. Benjamin Spencer

Popular Media

Law schools and law firms must partner to ensure that a pipeline of underrepresented students apply to law school and receive the professional development support they need to remain and advance at firms, William & Mary Law School Dean A. Benjamin Spencer says. Those who make, interpret, and apply the law must reflect the full range of human experiences, thought, and insight into the human condition, he says.