The "Most Valuable Sort of Property": Constructing White Identity in American Law, 1880-1940

This Article examines the manner in which southern courts labored to instill the legal meaning of whiteness as an object of property inherent in the individual in cases involving racial defamation, miscegenation, and writs of mandamus to white-only schools during the decades following Plessy. The author starts by discussing Plessy and the argument that the reputation of being white was itself a property interest that deserved legal protection from being taken away from the individual by the community. Although this argument did not succeed in Plessy, the author goes on to discuss how a new property regime began to develop in which property got its meaning from a constellation of social relationships of rights, duties, privileges, powers, and immunities, rather than from a mere object. He then discusses the importance of reputation within a community in the context of defamation suits and the two inseparable meanings of property, honor and substance.

Finally, the author discusses cases in the South in which parties had to prove or disprove “whiteness” and the tension between standards of “whiteness” based upon reputation and standards of “whiteness” based upon blood.