Hemleben on Law as Mirror and Mold: The Judicial Construction of Whiteness in America, 1790-1927

Joe Hemleben, Appellate Advocate, Mississippi Office of State Public Defender; Independent Research & Author, has published Law as Mirror and Mold: The Judicial Construction of Whiteness in America, 1790-1927. Here is the abstract.

This Article explores how American law created and operationalized the category of “white” from the nation’s founding through the early twentieth century, not within any single doctrinal silo, but across the full architecture of membership, capacity, and civic authority. It argues that whiteness emerged not as a natural or intuitive classification but as a legally manufactured identity policed by the judiciary in naturalization law, constitutional law, state criminal adjudication, professional licensure, and property and alienage regulation. Beginning with the Naturalization Act of 1790 and the racial lexicon supplied by legal dictionaries, encyclopedias, and census manuals, courts translated contested cultural understandings of race into juridical facts. Federal judges constructed a racial taxonomy in the prerequisite cases from Ah Yup to Thind; the Supreme Court constitutionalized racial identity as a boundary of sovereignty in Fong Yue Ting and as a conditional form of membership in Wong Kim Ark. State courts then absorbed and repurposed these federal definitions in miscegenation prosecutions, evidentiary competency rules, and school segregation cases from Rice v. Gong Lum to Bond v. Tij Fung, relying on visual inspection, community reputation, and folk racial grammars to assign legal identity in the courtroom. At the same time, licensing boards, bar admission rules, hospital charters, and alien land laws converted whiteness into a credential of civic trust and economic authority, excluding Asian immigrants and nonwhite professionals from the professions, skilled trades, and landholding through the category of the “alien ineligible for citizenship.” Across these domains, law acted as both mirror and mold: mirroring prevailing racial hierarchies even as it molded whiteness into a legal personhood, a status that structured who could belong, who could speak with professional authority, who could hold land, and who the state treated as perpetually foreign. This Article concludes by showing how this architecture of legal whiteness continues to shape contemporary debates over citizenship verification, professional licensing, and the racialization of foreignness long after the formal dismantling of racial prerequisites.

Download the article from SSRN at the link.