Initially constructed as a racial identity, Whiteness has evolved into a form of property protected by the law and the absence of Whiteness signifies being the object of property.

Cheryl Harris’s landmark article “Whiteness as Property,” is an exceptional meditation on the aporia of race in law that I have been trying to outline RACIAL PROFILING 87 through Lawrence, Powell, and Prigg. As an exemplar of critical thought on race and law, it suggests another scale of legal interpretation that, by its interrogation of the legal status of the slave, offers the chance for a transformative reading. Harris’s article opens with an allegory about the history of passing in a white world. This is a history, Harris writes, about “not merely passing, but trespassing.”58 In contrast to the criminal existence of blackness under Jim Crow, Harris describes whiteness as a form of denial. “They [whites] remained oblivious to the worlds within worlds that existed just beyond the edge of their awareness and yet were present in their very midst.”59 Between black trespass and white denial, the modern discourse of property that Harris examines is a circumlocution of a secure, legally protected white racial identity. She refers to this as the “embrace of a lie.”60 What is this lie, exactly, at the heart of the legal notion of whiteness as property? It is true that whiteness is a social construction protected by a law that treats it as a kind of property that can be possessed. Yet we can also read in Harris’s theory a tacit acknowledgement of whiteness as a psychical formation organized by an unconscious relationship to blackness. Although the dominant tendency is to read Harris’s piece as an analysis of how the legal ideology of property legitimizes the social privileges and powers that accrue to white identity, it is also perhaps an immanent theoretical engagement with race in the dreamwork of the law. Let us look at this embedded theory more closely. Harris arrives at whiteness’s resemblance to property through an exposition of the legal position of the slave as both thing and person, and how the law deals with the slave’s resistance to this paradox. For purposes of political representation, the slave is both citizen and property; for purposes of commodity production, the slave is both thing and human; and for purposes of exchange, the slave is both money and person. Against the threatening capacity of humanity’s “market-alienability,”61 and against the universalizable “threat of commodification,”62 Harris observes, somewhat in passing, “whiteness became a shield.”63 We are dealing here with immaterial things like benefits, values, capacities, and expectations accrued to the social identity of whiteness.64 Few have appreciated Harris’s focus on how modern property law administers classical forms of property, including intangible things.65 It is this focus that expands the notion of whiteness as property to include not only identity as a source of property interests (for example, that which is legally protected by a cause of action against defamation), but also as the very capacity and expectation to have a past, a community, and a future that the idea of ownership implies. But no one has seized upon an even more crucial insight in Harris’s theory: under her legal metaphorization of whiteness as property is yet another literary move—not by metaphor but by a striking declarative. In writing about how property law enforces white identity and power, Harris’s assertion that “whiteness became a shield” grounds the conceptual metaphor of “whiteness as property.” Thus we can extend Harris’s formulation “whiteness as property” to “whiteness as property is shield.” The resemblance between the syntagm “whiteness as property is shield” and Frantz Fanon’s figuration of “white masks” is a suggestive overlap that emphasizes the fantasmatic structure of whiteness. For it was one of Fanon’s tasks in Black Skin, White Masks to meditate on white culture’s symbolic reliance on phobic fantasies of blackness.66 On this extended formulation, when Harris finds that the “absence [of whiteness] meant being the object of property,”67 her analysis of formally recognized whiteness is also an implicit analysis of the fantasmatic sense of threat, anxiety, and defensiveness crucial to white cultural life. As a shield protecting one from being made into an object, so the legal fantasy goes, whiteness as property provides the assurance of personhood itself. This shield of whiteness is inalienable, personal; it can be used and enjoyed; it is a marker of standing; and it is a mode of self-possession.68 Most interestingly, this white shield is also a symbolic representation in law of the legal fantasy of personhood. So when Harris writes further, “Owning white identity as property affirmed the self-identity and liberty of whites and, conversely, denied the self-identity and liberty of Blacks,”69 we should pause at this precise problem: a racial position from which claims to various forms of value can be made, and from which representational acts can signify personhood—both for the world and for the self. Whiteness, as an object of law, is private property; and whiteness, as a representational act in law, “self-identity,” is the cultural capacity to imagine oneself a subject of the law. Harris’s analysis of the relationship between race and law exceeds issues of unequal access to the privileges of private property; it encompasses the larger legal problem of blackness as a form of life lived in the unassimilable depths of the law’s language and its interpretive world of meaning. It points us to the possibility of understanding (or at least how the law understands) blackness as the experience of the law’s rendering of social reality into words. Lacan calls this a symbolic death, where “the symbol first manifests itself as the killing of the thing,” and thus, any mobilization of symbolic power always bears the trace of a murderous intimacy with “the thing,” or a form of social existence irreducible to the symbolic life of the law.70 This brings us to the central legal case for Harris’s text, Plessy v. Ferguson (1896), and an arresting recollection embedded in her discussion of it. In Chapter 1, I expanded on Plessy’s ruling that formal racial segregation is constitu- RACIAL PROFILING 89 tional and its implications for thinking about a multiracial citizenship structured by the fantasy of colorblindness. It is worth revisiting Plessy through Harris’s analysis because it, like Lawrence and Prigg, presents the racial profile through apostrophization. I am specifically interested in Harris’s vital focus beyond the ruling on how Homer Plessy’s lawyer, Albion Tourgée, rhetorically challenged Jim Crow. Harris quotes from Tourgée’s filings, “Probably most white persons if given a choice, would prefer death to life in the United States as colored persons. Under these conditions, is it possible to conclude that the reputation of being white is not property? Indeed, is it not the most valuable sort of property, being the master-key that unlocks the golden door of opportunity?”71 Tourgée’s larger argument here was about how the imprecision of formal racial categories applied to social practices results in arbitrary deprivations of property interests in racial identity. As Harris observes, the Court evaded this argument by simply asserting that Plessy’s racial classification was clear. On my reading of this evasion, the problem with it is not the refusal to acknowledge the mishaps of due process in the application of formal racial categories. It is that the evasion admits a more disturbing truth about the function of formal racial categories. Toward this end, the Court pointed out that if Plessy was in fact a white man, according to Louisiana’s rules of racial categorization, he could claim money damages for defamation.72 And in this dismissive gesture, we witness the affirmation not only of whiteness as property, but also, the fantasy of a world where it is better to be dead than black. “Under these conditions, is it possible to conclude that the reputation of being white is not property?”73 By answering in the negative (that it is not possible to conclude that whiteness is not property), the Court by implication also affirmed the truth of “these conditions”: that being black is worse than biological death. The black claim invokes the terror of being cast under the sign of blackness as “the thing” that the law protects itself and its subjects against. While the Court acknowledges the possibility of injury to Plessy’s whiteness, it sees the injury of how this property interest materializes over and against the worse-than-death condition of being black, the realness of the fantasy of black life in symbolic death,74 and of a black sociality beyond the boundary of any kind or form of representation.75 Contained in Plessy, as well as in Harris’s focus on this fragment of the case, is the truth of the relation between law and projection, between rule and fantasy: whiteness as property is a shield against symbolic death. In Lawrence, overturning Lawrence’s and Garner’s convictions depends on the representability of same-sex intimacy as either consensual or deviant behavior. In Prigg, overturning Prigg’s conviction pivots on the representability of Morgan as either person or property. In Plessy, upholding the railroad’s segre-