Chapter 5 considers how law works to construct race. Prerequisite cases are instructive: They offer a body of decisions in which courts struggled to define the parameters of various racial categories amid shifting scientific and social definitions. In contrast to most other legal cases, the judges in prerequisite cases directly practiced racial categorization, rather than treating race as a phenomenon separate from the law. The cases not only offer a window into the historical relationship between race and law, but provide insights into similar, but more subtle constitutive processes in today’s courts.

Haney López’s approach to the legal construction of race is twofold: First, he examines legal rules and their impact on defining races. Second, he studies the role of legal actors, such as judges and justices, positing that they are both conscious and unwitting participants in constructing race. The legal construction of race operates in varied and sometimes contradictory ways because of the complexity of law and the sheer number of legal institutions and actors.

Law as Coercion

This section presents law as a coercive system, focusing on the rules it creates and enforces. These rules include legislative enactments (statutory law) and judicial decisions (case law). Laws contributing to racializing the American population.