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UC Law Journal of Race and Economic Justice

Abstract

Privacy law scholars have disregarded and under-theorized racial privacy practices, meaning racial/ethnic passing, in the United States of America. This article is a defining first step in conceptualizing racial passing as an indispensable privacy protection practice, that affirmed the following individual and group privacy rights of European immigrants, who became White in America: (1) the right to be let alone, (2) the right to erasure of stigmatized racial identity, and inherent in that right, (3) the right to forget an assigned racial identity, burdened by socio-economic deprivation and predation. Whiteness was required to access citizenship for the vast majority of the nation’s history. Many immigrant Europeans were not viewed or treated as the same race as White Anglo Saxons but were eventually allowed to be classified as Whites socially and by law. These groups were encouraged to suppress their different racial identities to access Whiteness, through assimilationist methods. Their descendants inherited racial Whiteness, many were encouraged to forget their racial backgrounds, and with the assistance and protection of law and governmental policies, throughout the nineteenth and twentieth centuries, they maintained their new racial status as White. However, scholars do not label their racial transformations: White racial-becoming or their descendants’ White racial-inheritance, as racial passing. Yet, the historical record confirms that the most prevalent and consistent forms of racial/ethnic concealment, non-disclosure, and/or obfuscation, pertain to those who became categorized as White or inherited Whiteness from their immigrant European ancestors. The following interdisciplinary analyses excavates and analyzes key historical facts, concerning our Democratic Republic at the intersections of racial passing and American legal history. In doing so this article provides a new framework to consider privacy through the manufacture and reproduction of Whiteness in America.

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