“I’m not saying that white people are better. I’m saying that being white is clearly better.”

-Louis C.K

Cheryl Harris’s composition “Whiteness as Property” puts forth an understanding of property starkly different from many of the readings we have done thus far in the semester. Harris elicits both a traditional and more intangible value of “whiteness”.  Historically, whiteness has contributed to a racialized conception of ownership. Property ownership was contingent on racial identity, as for many years only white people (men) could own property. Moreover, some racialized bodies were even considered property, most obvious being the enslaved African Americans in the US. As such, whiteness allowed both ownership of property and protected those considered white from becoming the property of others.

Harris also argues that the law has been a crucial tool in upholding and protecting the wealth of privileges associated with whiteness in the United States: “Whites have come to expect and rely on these benefits, and over time these expectations have been affirmed, legitimated, and protected by the law” (Harris 1713). To elucidate this point Harris provides the example of the court case Plessy v. Ferguson. One of Plessy’s attorneys argued that by consigning him to the “colored” car even though he was seven-eighths white, the state law mandating this separation deprived him of the “most valuable sort of property . . . the master-key that unlocks the golden door of opportunity.” (Harris 1748). Therefore, whiteness was also a reputational interest that bestowed owners with certain privileges founded on a public conception of their identity and personhood. The access to such entitlements was itself valuable property.

Whiteness also functioned as traditional property by conferring “the right to exclude others” (Harris, 1731). This exclusionism is foundational to making whiteness what Harris describes as, “an exclusive club whose membership was closely and grudgingly guarded” (Harris, 1737). A destructive cycle has emerged in which those in power then, almost exclusively white Americans, have perpetuated this phenomenon up to the present. Although education is thought to break the bonds of race and class, biases in the culture of schooling itself and the rising cos of private education often run counter to these efforts.

I have worked in the corporate world the last three summer at a consulting firm, a big pharma company, and most recently at an investment bank. It is only after reading Harris’s composition that I look back and realize just how little diversity existed in the office. While it widely known that the majority of corporate executives are white males, it is odd to see (at least in my limited experience) that this also appears to be the case for interns and entry-level positions. This pattern appears to subsist, despite apparent efforts and initiatives to increase diversity in the corporate world. Even more, there is a growing, falsely-founded belief that our society is almost post-racial. Harris’s article is needed today just as much as it was back in the early 1990’s. The power of whiteness lies in its invisibility, and that fuels the perpetuation of systemic racism. It is that quality that often allows the issues described in “Whiteness as Property” to subside to the periphery of people’s mind.

 

In liberal political and scholarly thought, it is largely accepted that whiteness is a privilege wielded by white people. White people are privileged to have whiteness. This use of the word “have” implies an ownership of one’s own whiteness, as if it were an object or property. Such is the premise of Cheryl Harris’ “Whiteness As Property,” an article in the Harvard Law Review which argues that whiteness has historically been a form of property excluding Black and Native American peoples from property rights and overall equality. What’s more, as a remedy for the future, Harris suggests that affirmative action is an essential key to achieving equality.

For centuries in the Western world, whiteness was the legal key to property. Even after black people could legally possess property, whiteness was still a social key to owning property. This key, as Harris asserts, is also the property of white people. She explains that whiteness became property once explicitly or implicitly defined in law to yield certain benefits, which then begs the question: if being male also was defined in law to yield certain privileges, can maleness also be considered property? Is one’s status as an adult, which allows a person the right to vote, also property? A closer look at history’s laws is needed to fully dissect how different identities have been woven into law and how they vary or converge with whiteness.

Harris also delves into how whiteness even shaped “natural” property law. Harris references European theorists like Locke and Blackstone, who both agreed that if land was not being explicitly used and still in its natural state, then it was free to be picked up, labored upon, and owned by anyone. Although Harris does not explicitly say she disagrees with the way in which white property theory was wielded against natives, she describes how under Lockean theory, the natives’ uncultivated use of land would be considered “waste” and “not true,” due to the fact that it was not legitimated by white property ideas. Even use of the phrase “Lockean labor theory” rather than “Locke’s labor theory” suggests how much of a hegemony this white property concept has had over history. This shows how ideas can build up and gain followers throughout history until it becomes dogma, much like how the white accrual of property overtime has snowballed into economic, political, and social inequality among different races and ethnicities.

In one area, however, Harris would seem to agree with Blackstone: redistribution of property. Harris describes this as affirmative action and that property has been assigned to whiteness unfairly in the past, which has led to modern socioeconomic inequality. Similarly, Blackstone would likely argue for redistribution of property, as he believed that “All property should therefore cease upon death.” White people have been passing on their property fortunes to their offspring for generations; it is precisely how whiteness has sustained power even past the removal of explicitly racist laws from legal code. So, although whiteness has accrued gross fortunes overtime based off the principles of white philosophers, there may be room for modern, progressive theorists like Harris and the dead white men (DWM) like Blackstone to find common ground on where property rights went wrong and how it may be presently corrected through affirmative action.

“Whiteness as Property” by critical race theorist, Cheryl Harris, is asking us to widen our understanding of property beyond the scope of Locke and George’s contributions. Specifically, Harris urges us to consider how “whiteness”, as a “right to white identity as embraced by the law” is indeed a modern form of property (1726). Harris highlights that whiteness functions as each an identity, status, and form of property– defending the latter by noting that, “the fact that whiteness is not a ‘physical’ entity does not remove it from the realm of property” (1725). Whiteness, she argues, shares with physical property the ability to exclude, codified and enforced by the law. However, whiteness as property fuses the concept of property with questions of power, selection, and allocation (1729), ultimately creating value because it and its explicit and implicit benefits could be, and is, denied to some (1744).

To bolster her claims, Harris traces the evolution and legacy of two monumental Supreme Court cases, Plessy and Brown, to showcase their attention to de jure, rather than de facto, forms of racism. While her main focus rests on the inadequacies of the legacy of Brown I and II, I found one of her footnotes quite curious. Harris mentions, “The removal of de jure segregation resulted from the domestic pressure generated by the oppressed Black masses under the banner of equal justice under law as well as from the external dynamic of competition between the United States and the Soviet Union for influence in the Third World. The United States was vulnerable to the charge that its domestic policies toward Black people residing in the United States were a better indication of its view of the emerging nations of Africa and Asia than its rhetoric of democracy” (1754). Contextualizing Brown v. Board in the Cold War moment makes its inability to address substantive and de facto inequities unsurprising, and perhaps predictable. The United States, as an empire, is unique in its rejection of its own status. Racism is written in the DNA of the U.S., making phrases like “We the people…” forever exclusive despite its appeal to both liberty and equality (an unlikely pair) on the global stage. What is rhetorically beneficial is prioritized, which is why Brown needed only to produce the bare minimum of equality under the law to keep the foundation of our international brand somewhat stable. Moreover, the Cold War, most basically representing the clash between Communism and Capitalism ideologies, is a clash between theories of private property. Compared to the Soviet Union, which generally attempted to advance economically-oriented rights, the United States emphasized more politically-oriented rights by which whiteness was undoubtedly protected and removed from class discontents. Whiteness could more easily function as property in the United States because whiteness superseded class distinction, a phenomenon aided by a disregard for social and economic rights in favor of political rights more easily formulated into rhetoric.

On another note, I want to pay attention to Harris’s section regarding the case Mashpee Tribe v. Town of Mashpee. Commenting on the ruling, Harris writes, “Fundamentally… the external imposition of definition maintained the social equilibrium that was severely challenged by the Mashpee land claims” (1765). This makes me wonder how certain groups are meant to remain the same over time despite external pressures to comply with changing cultural, social, and economic environments threatening the groups very survival. In other words, how is land connected to the perception of identity? How do claims to land depend on the stability, or even static-ness, of some identities? It is clear that the Mashpee Indians could not provide the vision whites wanted to have of them as “authentic”, even if this authenticity was not composed by the group it was meant to portray. In some ways, this pressure for cultures to remain unchanged in order for dominating groups to digest their presence reminds me of similar pressures imposed upon gentrifying neighborhoods today. In order to combat major, sterilizing, development, ethnic neighborhoods are sometimes saved by portraying the authenticity and richness of their culture. Cultural enclaves too must adapt to the market, and the construction of identity as portrayed to visitors can be crucial to its preservation. In a sense, claims to land are tied to how one presents their tie to it. If the presentation is convincing to outsiders, the better chance the tie has of surviving. Although the topic of gentrification deserves more attention, I found that Harris’s mention of the Mashpee case really struck a chord.

To sum it up, Harris’s “Whiteness as Property” makes a compelling argument as to why whiteness should indeed be understood as property, which makes her strong belief in affirmative action as a distributional, as opposed to corrective, form of justice convincing. However, as we have the luxury of hindsight, I do question how Harris, writing in 1993, underestimated the impasse that the U.S. finds itself in today. My parting questions revolve around her thoughts viewing whiteness as a “consolation prize” in that, “it does not mean that all whites will win, but simply that they will not lose, if losing is defined as being on the bottom of the social and economic hierarchy – the position to which Blacks have been consigned” (1758-59). How are we to get whites to view whiteness as property if some feel they are a part of the “forgotten America”, in which jobs, livelihoods, and the comforts whiteness used to automatically afford, feel as if they have been taken away? This “impasse” (which I see Trump wholly capitalizing from) has created a scenario in which whites don’t see whiteness as putting bread on the table, but as something explained to them solely through critique. How do you tell somebody they own a historically valued entity when they perceive themselves as having nothing without engendering defensiveness? Something to consider.

In part seven of political economist Henry George’s Progress and Property, George attempts to provide a remedy for the injustice of personal property in land. Like John Locke, Henry George asserts that it is the production of property which gives its producer a claim to it. However, the ownership of land results from the act of conquest rather than any natural act of labor, and is therefore “not a right that binds, but a force that compels.” Land is a natural right that belongs to all of nature’s inhabitants, and the private ownership of land subsequently represents “the monopolization by some of what nature has meant for all.” George recommends that rent be redefined as the amount an individual pays to the community at large to compensate others members for their equal, natural right to land. Recognizing that his remedy for the injustice of private property appears extreme, George offers the analogy of chattel slavery. Just as slave-owners were not compensated for their slaves lost to emancipation, landowners should not compensated for land purchased before the restoration of common land rights to all.

The chapter succeeds in effectively conveying its argument in part because it resists any displays of sentimentality, and appeals to the reader’s sense of reason rather than morality. George is adamant that personal property in land is wrong, but he frames his judgement in the language of justice rather than probity. He similarly argues for man’s common right to land on the basis of logic, reminding readers that the notion of common right has always remained intertwined with the concept of personal property in language. The distinction between “real” and “personal” estate, for example, indicates the “the survival of a primitive distinction between what was originally looked on as common property and what, from its nature, was always considered the exclusive property of the individual.” And, George recalls that the idea of common right attached itself to the concept of privately-owned land even in feudal times, as we saw in Linklater’s Owning the Earth.

More critically, George resists sentimentality by asking that readers not mistake ancient, foundational laws of contemporary civilizations for sacrosanct natural law. Private property in land exists not as a result of civilization, but as a result of chaos—“Private ownership of land has appeared only as the result of usurpation.” The analogy between land-owning and chattel slavery strengthens George’s point. Just as civilizations once thought nothing unjust about owning slaves, so too civilizations today see nothing unjust or unnatural in the private ownership of land. Yet, as with chattel slavery, custom or sentimentality toward custom does not necessarily make a practice just or even effective. Even with this extreme analogy, the chapter never assumes an overly moral slant. George does not criticize those who suggest land-owners should be compensated with the abolition of private property, and even concedes that discussions of compensation represent a positive step forward, as they did in the nineteenth-century with discussions of compensations for slave-owners. The question is not one of morality, but simply of one of justice. George merely restates that, “Inequality, once produced, alway tends toward greater inequality,” and, with yet another appeal to logic, refutes the suggestion. By the conclusion of the chapter, the restoration of the common right to land appeals to the reader principally because it appeals to her sense of logic.

The Injustice of Private Property in Land

In Henry George’s Progress and Property, George touches on the definition of property and what is considered property. George views the right to own land as one that humans are not justified to have due to its lack of being created by someone. Land is a natural occurrence, while everything else in the world is not. In “The Injustice of Private Property in Land”, George poses multiple opinions as to why owning land is an injustice to society, but he provokes readers to question the validity of his writings. For example, George writes, “As each person belongs to himself or herself, so labor belongs to the individual when put in concrete form. For this reason, what someone makes or produces belongs to that person — even against the claim of the whole world. It is that person’s property, to use or enjoy, give or exchange, or even destroy. No one else can rightfully claim it” (George). While George does make a great point that property is what is manmade or paid for, this idea of owning what one creates makes me question any exception to this view. One that immediately comes to mind is humans. Humans are literally man made and created by another person, but they are not viewed as property when they are old enough to survive on their own. Yes, children are considered property of their parents, but they are not treated like such.

Furthermore, I question the difference between natural and manmade. One could argue that humans are natural beings and cannot be property, therefor they cannot create it. While George’s personal beliefs are unknown to me, I am sure religion played some role in George’s opinion. If this is the case, why does the idea that humans are God’s creatures and cannot be owned not show in George’s beliefs? This creates the question of whether or not anything can be owned. Is everything on Earth “natural” because the means to create everything are on Earth? While these questions are extreme, they are an equal response to the radical opinions Henry George has.

George’s main argument, although there are many, focuses on the fact that we have no right to own land and that owning land is wrong. His main proof is that property is anything manmade and that only property can be sold or traded. George writes, “It is production that gives the producer the right to exclusive possession and enjoyment. If so, there can be no right to exclusive possession of anything that is not the product of labor. Therefore, private property in land is wrong” (George). George’s argument that land cannot be private because it was not produced by another person is convincing, but the validity of his statement depends on what people define property as. While George view’s it as something one has created and has the rights to, other may argue that property is anything one legally or financially owns. George’s whole argument can be thrown away if a majority of society does not define property is the same way George does.

Another question I had in response to this reading was “what is the solution?”. If George is so adamant that owning land is wrong, how does he propose we fix this? Does everyone get their money back and live on a piece of land for as long as they can? If humans are no longer able to own land, how are people guaranteed to live a peaceful life? George says it himself when he writes, “in a word, ownership of land rests upon conquest” (George). Kings fought wars over land, and who is to say that will not happen again. The dissolution of real estate will result in major turmoil and chaos. This possibility makes it harder to fully support George’s arguments even though they are reasonable.

John Locke’s Second Treatise of Government remains a foundational text today. His understanding of property rights has shaped our contemporary liberal societal framework. Personal property is the basis for Lock’s argument. Thus, by understanding the Lockean property rights, we can understand how they have shaped our current society.

Locke uses two principles to justify private property. Firstly, “God gave the world to men in common,” and—or perhaps rather but—secondly, “individual man has a property in his own person; […] the labour of his body [is] strictly his” (Locke 13, 11). These two principles drive his understanding of property, both as they stand alone and how they conflict with one another. Through the first principle, Locke rebukes the sole ownership of property by monarchs. While prior theorists had limited property rights to the king, Locke believes “God gave the world to Adam and his posterity in common” (Locke 10).

This is true for the expansive and “unworked” land in the Americas. Yet, because bodily labor has individual ownership, so does the products of that labor. For example, once a man gathers acorns, they become his. While Locke does not explain precisely why when personal labor and communal (natural) property are mixed together they become solely private, it appears to be a part of his rationale that spatial productivity must be maximized. He explains that “[God] gave it them for their benefit and for the greatest conveniences of life they could get from it” and because labor contributes so much to value, it is the determinant of (Locke 13, 15). This is seen in land. As it becomes cultivated, it becomes private property for the cultivator, who, in turn, becomes the owner of the land. In doing so, they add value to the land. Unworked land has little value, according to Locke—this does not necessarily hold true today—compared the value of cultivated land.  

In the natural state, one’s own land ownership does not affect other’s ability to own land. Again, looking towards the Americas, the land seemed limitlessly expansive. Thus, everyone has the ability to attain land. Property thus is a right for all people through both their bodily ownership and the land itself. Because God gave man land for their greatest conveniences vis a vis private ownership, land and bodily ownership become the basis of all forms of ownership. In industrial cases, like London, the government exists to maintain these property rights for the people and ensure that these “natural” property rights are maintained.

When considering the built environment today, Locke’s schemes are paramount with the vast majority of land held privately and the notion of private ownership appearing pre-political, as it is within the Lockean schema. Yet three questions I had of Locke’s rationalization pertaining to New York are, first, how does it rationalize one’s own labor as not a right but rather a commodity? From slavery to contemporary construction workers, the owners of New York City are not the builders, but rather the owners of labor. Second, land appears to have a value determined by neither the person who works the land nor in the land itself. An undeveloped parcel of land in New York City would have immense value compared to the same land in the 1970s or the early colonial era. How does Locke compensate for these external market forces? Finally, I was struck by Locke’s understanding of money corrupting property rights because now people could own more than they could consume. With land being the ultimate commodity in New York City, how would Locke understand this?