Whiteness as Property
A Tenet of Critical Race Theory
This part of the Culture War Encyclopedia and should be read along with the section on critical race theory (still a work in progress). 
In the glossary of Critical Race Theory - an Introduction by Delgado and Stefancic (2017), we find1
WHITENESS AS PROPERTY: Notion that whiteness itself has value for its possessor and conveys a host of privileges and benefits. See also Property interests in whiteness.
They define property interest in whiteness2 as the
idea that white skin and identity are economically valuable.
They also write briefly of whiteness as a property interest, a related concept, however, they do not explain or elaborate.3 The editors of Critical Race Theory - the Key Writings That Formed the Movement included Whiteness as Property by Cheryl I. Harris which was originally published Harvard Law Review, Vol. 106, No. 8, p. 1707, 1993 also printed in UCLA School of Law Research Paper No. 06-35. This essay applies the idea of redistribution of property to the property of whiteness and sees this as a form of affirmative action for rights and privileges. Harris writes,4
WHITENESS AS A TRADITIONAL FORM OF PROPERTY
Whiteness fits the broad historical concept of property described by classical theorists. In James Madison’s view, for example, property “embraces every thing to which a man may attach a value and have a right,” referring to all of a person’s legal rights. Property as conceived in the founding era included not only external objects, and people’s relationships to them, but also all of those human rights, liberties, powers, and immunities that are important for human well-being, including freedom of expression, freedom of conscience, freedom from bodily harm, and free and equal opportunities to use personal faculties.
Whiteness defined the legal status of a person as slave or free.
The author writes as if non white people do not also have human legal rights, liberties, powers and immunities such as freedom of expression. The author writes as if whites have this property of whiteness (rights and freedoms) that non-whites do not have but which can be taken from whites and redistributed to non-whites. She also writes that we should use affirmative action to5
dismantle the actual and expected privilege that has attended “white” skin since the founding of this country.
For some time there has been a criticism of affirmative action that it had no term limit. Harris writes,6
affirmative action does not implement a set of permanent, never-ending privileges for blacks.
Yes, well, this was verified by the Supreme Court on June 29, 2023, but when she was writing, she was not being honest because there was no reason to know when or if ever there would be a term limit to affirmative action. In her conclusion, Harris writes,7
It is long past time to put the property interest in whiteness to rest. Affirmative action can assist in that task. If properly conceived and implemented, it is not only consistent with norms of equality but also essential to shedding the legacy of oppression.
In 2014, the UCLA School of Law writes,8
In the two decades since the 1993 publication of “Whiteness as Property” in the Harvard Law Review, the article has had tremendous impact inside and outside of legal academia, as well as within and beyond the borders of the United States.
The phrase “whiteness as property” would leak its way from academia into more mainstream culture to some extent. We might find it in, for example, Campus Protests and Whiteness as Property or the headline Whiteness as Property: Why the acquittal of Rittenhouse is an affirmation of Critical Race Theory in which we read,9
what Rittenhouse brought was a sense that his property in Whiteness was being taken away.
In Critical Theory - the Key Concepts (2015), Dino Franco Felluga writes,10
Cheryl I. Harris influentially makes the argument for Critical Race Theory that, “Even though the law is neither uniform nor explicit in all instances, in protecting settled expectations based on white privilege, American law has recognized a property interest in whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated” (1993: 1713-14).
This tendency to see whiteness as property has its roots in the early exploitation of both black slaves and Native Americans:
“The hyper-exploitation of Black labor was accomplished by treating Black people themselves as objects of property. Race and property were thus conflated by establishing a form of property contingent on race - only Blacks were subjugated as slaves and treated as property. Similarly, the conquest, removal, and extermination of Native American life and culture were ratified by conferring and acknowledging the property rights of whites in Native American land was validated and therefore privileged as a basis for property rights. (1716)”
In both cases, what occurred is that whiteness was accorded legal status in relation to property rights, thus converting “an aspect of identity into an external object of property, moving whiteness from privileged identity to a vested interest” (1725). That is, whiteness was seen to entail both privilege and property: “Whiteness - the right to white identity as embraced by the law - is property if by property one means all of a person’s legal rights” (1726). According to Critical Race Theory, this early understanding of whiteness as property has been codified into law and has not been fundamentally challenged but, rather, taken as “an objective fact, although in reality it is an ideological proposition imposed through subordination” (1730). As Harris contends, “When the law recognizes, either implicitly or explicitly, the settled expectations of whites built on privileges and benefits produced by white supremacy, it acknowledges and reinforces a property interest in whiteness that reproduces Black subordination” (1731). What is supported by the law may no longer be slavery but rather an understanding of whiteness as “status property” (1734), “whiteness as reputation” (1734), which influenced a number of law cases across American history (for example, regarding citizenship and voting rights). This situation then persisted even after the Brown v. Board of Education (1954) court case that ended state-sponsored segregation, according to Harris:
“What privilege accorded as a legal right was rejected, but defacto white privilege not mandated by law remained unaddressed. In failing to clearly expose the real inequities produced by segregation, the status quo of substantive disadvantage was ratified as an acceptable base line - a neutral state operating to the disadvantage of Blacks long after de jure segregation had ceased to do so. In accepting substantial inequality as a neutral base line, a new form of whiteness as property was condoned. Material inequities between Blacks and whites - the product of systematic past and current, formal and informal, mechanisms of racial subordination - became the norm. (1753)”
According to Harris, the notion of whiteness as property thus persists into the present, as she illustrates in the examination of recent Affirmative Action and Native American law cases. Beyond specific law cases, there persists a notion of whiteness as status property that transcends any actual class inequality: “Whiteness is an aspect of racial identity surely, but it is much more; it remains a concept based on relations of subordination” (1761).
See also: Matrix of Domination.
In 2020, Cheryl I. Harris’ essay Reflections on Whiteness as Property was published in Harvard Law Review and also in UCLA School of Law Research Paper.11 It revisits her 1993 essay we quoted from earlier.12 In this 2020 retrospective, Harris writes,13
A rupture — a break in the façade — is erupting from intersecting pandemics, each reflecting intersecting systems of domination and extraction. [3] Power organizes hierarchies. Inequality is not the product of dysfunctional culture, or the biology — the “comorbidities” — of misbehaving, undisciplined bodies: rather, racial regimes construct and exploit vulnerabilities. [4] These are preexisting conditions, embodiments, material manifestations of exploitation. This is a feature of racial capitalism. [5]
That last line is, well, revealing of her view of capitalism and implies what her stance on socialism may be. This may help to explain the emphasis on seeing things in terms of redistribution of property. At any rate, she concludes (during the first covid fiasco),14
legal regimes cannot forestall crisis. Indeed, they may precipitate and fuel crisis. The denial of claims of redress, often expressed through the language of property as repayment for debts owed, has not foreclosed the demands for justice. [33] Indeed, these demands repeatedly erupt, grounded in the refusals of the dispossessed to accept the existing baseline and the racialized expectations on which they are based. The dominant consensus, cultivated by decades of colorblind racial ideology, has long asserted that the way forward to building support for change is to minimize the role of racial oppression. In fact, in demanding attention to the specifics of the conditions and precarity of Black life, in building, in organizing around the basic notion that Black lives matter, radical visions emerge that open up pathways to transformative change. [34]
Well, what more could one possibly add to that? I mean it was written so… …so, um… …well, I mean it was… …well, it was really something, wasn’t it? Something else. Something or other.
Also see:
Critical Race Theory (coming soon)
Critical Theory (coming soon)
Implicit Association Test (IAT)
Race Consciousness & Racial Separatism in Critical Race Theory
Racial Realism (coming soon)
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BIBLIOGRAPHY
Common Dreams - Whiteness as Property: Why the acquittal of Rittenhouse is an affirmation of Critical Race Theory - Milwakee Independent (November 28, 2021)
Delgado, Richard and Jean Stefancic - Critical Race Theory - an Introduction (3rd edition, 2017) New York University Press
Felluga, Dino Franco - Critical Theory - The Key Concepts (2015) Routledge Taylor & Francis Group
Harris, Cheryl I. - Whiteness as Property (June 10, 1993) originally published Harvard Law Review, Vol. 106, No. 8, p. 1707, 1993 also printed in UCLA School of Law Research Paper No. 06-35 and in Critical Race Theory - the Key Writings That Formed the Movement, page 276 (the New Press, 1995)
Harris, Cheryl I. - Reflections on Whiteness as Property - Harvard Law Review, Volume 133, Issue 9 (2020)
Shih, David - Campus Protests and Whiteness as Property - Stanford Humanities Today - Arcade, the Humanities of the World (February 1, 2016)
UCLA School of Law - Groundbreaking 'Whiteness as Property' by UCLA Law's Cheryl Harris focus of symposium - Faculty Bulletin Board (September 4, 2014)
(multiple authors, forward by Cornel West, edited by Kimberle Crenshaw, Neil Gotanda, Gary Peller, Kendell Thomas) - Critical Race Theory - The Key Writings That Formed the Movement (copyright 1995, the New Press)
F O O T N O T E S
Page 186
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Page 86
Pages 279-280
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Page 290
UCLA School of Law - Groundbreaking 'Whiteness as Property' by UCLA Law's Cheryl Harris focus of symposium - Faculty Bulletin Board (September 4, 2014)
Common Dreams - Whiteness as Property: Why the acquittal of Rittenhouse is an affirmation of Critical Race Theory - Milwakee Independent (November 28, 2021)
Pages 323 - 325
Harris, Cheryl I. - Reflections on Whiteness as Property - Harvard Law Review, Volume 133, Issue 9 (2020)
Harris, Cheryl I. - Whiteness as Property (June 10, 1993) originally published Harvard Law Review, Vol. 106, No. 8, p. 1707, 1993 also printed in UCLA School of Law Research Paper No. 06-35 and in Critical Race Theory - the Key Writings That Formed the Movement, page 276 (1995) The New Press.
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Pages 9-10