David Simson (UCLA School of Law) has posted Whiteness As Innocence (Denver University Law Review, Vol. 96, No. 1, 2018) on SSRN. Here is the abstract:
Twenty-five years ago, Cheryl Harris showed how the American legal system has treated whiteness as property — a legally protected interest enabling its holders to amass social privilege and power, and to exclude and oppress various groups of outsiders. Harris uncovered how law can make constructs such as race and whiteness appear to be real and their social consequences inevitable, when in fact they are “ideological propositions imposed through subordination.” Building on these insights and core claims of Critical Race Theory, this Article argues that American race law has similarly treated whiteness as innocence. Whiteness as innocence is an ideology which, at its core, proceeds from a presumption that white Americans’ disproportionate possession of resources and privileges is legitimate, and the expected outcome if American society and its institutions, including the legal system, function “normally.” That is, in this view, the dominant social position and privileges of whites are “innocently” held — rather than unearned or taken from someone to whom they properly belonged — and therefore ought to be legally protected. This Article aims to show how important legal doctrines governing the remediation of race-based harms bear the imprint of this ideology. Such doctrines have consequently helped to protect a racial hierarchy built around notions of white racial superiority, and have undermined efforts to remedy racial subordination — particularly during times when the stability of the hierarchy seemed uncertain. As a result, racial conflict and inequality persist. Whiteness as innocence has deeply influenced our understandings of race, racial justice, equality, the legitimacy of social privilege, and the role of law in regulating all of those things. It has a long history that can be traced back to some of the most vilified legal cases of the past, and it has many negative implications and effects in the present. Yet it remains underexplored. We ought to make it visible, discuss and reject it, and start building a more equitable future free from its constraints. This Article takes a step in this direction.