The Relational Construction of Whiteness and Racial Hierarchy

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Reginald Oh

The thesis of Professor Solangel Maldonado’s important book, The Architecture of Desire: How The Law Shapes Interracial Intimacy and Perpetuates Inequality, is that law shapes and influences “choices of long-term intimate partners in ways that perpetuate racial hierarchy and societal inequality.” (p. 6) She makes the persuasive case that racialized intimacy patterns reinforce a “gendered racial hierarchy with significant economic, social, and political consequences.” (p. 8)

i.

I see two distinct parts to her thesis. The first part is her contention that racialized intimacy patterns reinforce gendered racial hierarchy. The link between racialized relationships and gendered-racial hierarchy cannot be understated, and Professor Maldonado’s centering of racialized relationships in a discussion of race deepens our understanding of race as a social construction. I take one of her central arguments to be that race is socially constructed through relationships. Race is relationally constructed.

For example, the construction of whiteness starts with intimate relationships between whites. A white person marrying another white person and having white children produces a white family, who, when living together with other white families in a neighborhood, constructs white neighborhoods and white schools, which then gives rise to the belief that good white neighborhoods and schools are good because of whiteness. In this manner, as Professor Maldonado argues, racial relationship patterns act as the foundation of racial hierarchy, with whites as the superior race at the top. The relational construction of race may arguably be the central mechanism for the social construction of race.

The insightful way in which Professor Maldonado connects racialized relationships with racial hierarchy finds support in the social theory of sociologist Max Weber, who argued that for any social or racial caste system to work, the high status, dominant caste must strictly practice endogamy, the practice of marrying within one’s class. If members of the dominant caste routinely married members of the lower castes, Weber argued that the caste system would break down entirely.

Why? Because the inter-caste family would not easily fit in one caste or another. Does the lower caste spouse now become a member of the dominant caste? Which caste would the children belong to? Inter-caste relationships would destabilize the integrity and identities of castes and ultimately make the system unworkable. The same dynamic applies to a system of racial hierarchy. The normalization and proliferation of interracial families via marriage would destabilize whiteness. Is an interracial family white, black, or something else? How could white neighborhoods and schools and whiteness be maintained in the midst of countless racially integrated/mixed families moving in?

Not to mention, if racially integrated/mixed families become a much larger percentage of the U.S. population, it would mean a massive racial redistribution of wealth over time. White families no longer could maintain intergenerational wealth by keeping it within the white race. Instead, much of that wealth would be redistributed by inheritance to non-white, mixed race descendants. Interracial families, then, are a threat to both racial hierarchy and white control over economic resources.

The second part of Professor Maldonado’s thesis pertains to the law’s role in shaping and producing racialized intimacy patterns. Professor Maldonado asserts that, in the past, “[t]he law directly shaped preferences for partners of certain races through anti-miscegenation laws, segregation, and structural barriers to interracial intimacy, and those preferences contributed to and continue to perpetuate racial and social inequality.” (p 10) By law, Professor Maldonado refers not just to the law “on the books,” but to the institutions established by law. Thus, the law of racial segregation is not just the statute requiring that schools be racially separated, but the separate white and black schools operating pursuant to that legal directive.

I am particularly excited that Professor Maldonado interrogates the role that segregation plays in obstructing the formation of interracial relationships, because it aligns with my own work on the issue, and it is an incredibly significant point that needs more attention. Segregation is a brutally effective mechanism for preventing interracial relationships for a simple reason--an interracial meeting has to occur for there to be any possibility of an intimate relationship forming, and segregation is designed and functions to eliminate those opportunities. As Professor Maldonado asserts, “We are unlikely to partner interracially if we do not have the opportunity to meet and develop relationships with people of different races where we live, work, go to school, or play.” (p 111)

And shifting to the present, chapter 11 is devoted to legalized segregation’s ongoing role in producing racialized intimacy patterns. Professor Maldonado discusses uncontroverted evidence that through legal mechanisms such as exclusionary zoning and neighborhood school assignments, the law reinforces de facto housing and school racial segregation. “The majority of White individuals do not have any African American friends….” (p 91) She also cites statistics showing that “public schools in many states are as segregated today as they were in 1954.” 75% of African American students attend schools where the majority of students are not White, and 15% attend “apartheid schools” in which racial minorities are 99-100% non-White. (p. 101) In conjunction with segregated neighborhoods, in 2024, segregation is functioning in a similar way to how segregation functioned under Jim Crow.

The connection between segregation and low rates of interracial marriage between whites and other racial minorities, but particularly with African Americans, is one that I believe needs to be better understood and interrogated, and Professor Maldonado’s book points us in that direction.

ii.

Now I want to raise a critique of Professor Maldonado’s argument, and then provide a response. The critique is that the thesis is overstated--the law does not significantly shape or influence racial intimacy patterns in 2024. Racial segregation’s role in producing racialized intimacy patterns is inconsequential, and the proof is in chapter 2’s in depth discussion of race and online dating apps.

Simply, the argument is that the internet has liberated people from the confines of spatial racial segregation. People transcend geography every day through their phones and computers, and can meet people of all races at any time from all over the world in cyberspace. While chapter 2 focuses on racial dating patterns on online dating apps, dating apps are only a small aspect of the internet. Social media platforms such as “X,” YouTube, Instagram, Facebook, Threads, and countless other message boards and chatrooms provide unlimited opportunities for interracial encounters.

In light of the internet, the argument contends that low rates of interracial dating and marriage actually disprove Professor Maldonado’s thesis. If people of different races have multiple opportunities everyday to meet people of a different race, yet they ultimately choose to date and marry someone of their own race, that suggests that individual romantic preferences are the proximate cause of racial intimacy patterns, not the law. And race preference is simply human nature. People are attracted to people who are like them. There’s nothing morally wrong with this universal practice.

In addition, Professor Maldonado’s argument that past discriminatory laws restricting interracial intimacy still influence people today is problematic. That may be accurate for people who were alive when those laws were still on the books, but how do such past laws influence young people who were born decades after Loving v. Virginia in 1967? Moreover, the “effects of past discrimination” argument loses salience as this nation moves further away from its admittedly racist past. Any influence is inexorably fading away.

Ultimately, because the proximate cause of racial intimacy patterns is the free marketplace of romance, none of Professor Maldonado’s suggested legal reforms, such as eliminating racial sorting mechanisms on dating apps or racially integrating high schools through magnet schools, will have any significant effect on those patterns.

iii.

The critique just laid out, while logical, is flawed, and Professor Maldonado is right. The law in 2024 plays virtually the same role the law played before 1967 in shaping and influencing racial intimacy patterns, not just by eliminating opportunities for interracial encounters, but by actually constructing white race preferences in dating and relationships. And the people who knew this better than anyone else are the white supremacists who designed and maintained the social system of racial segregation during Jim Crow.

Southern author Herbert Sass wrote an essay defending school segregation in the Atlantic Monthly in 1955, the year after Brown v. Board of Education was decided. His defense centered around the core purpose and function of school segregation--to prevent interracial marriages from transforming the nation, over time, into a majority mixed-race population. School segregation eliminated opportunities for interracial encounters, but, more importantly for Sass, it instilled “race preference” in young white children. He explained that race “preference is a natural reaction to facts and conditions observed or experienced, and through the action of heredity generation after generation it becomes instinctive.” (emphasis added) Race preference, then, is a natural, instinctual human desire to be with members of one’s own race, precisely the same romantic racial preference that Professor Maldonado interrogates in her book.

What Sass does in his article is to explain how people acquire race preference, for he believes that race preference, while a natural instinct, is not innate or inborne. He writes that “race preference…is one of those instincts which develop gradually as the mind develops and which, if taken in hand early enough, can be prevented from developing at all.” Sass writes further, that “although it is a nearly universal instinct, race preference is not active in the very young.” In other words, children are born without the instinct. Race is not salient for young children. In fact, depending on the age of a child, she may not even know or realize that she has a race.

Race preference is analogous to the acquisition of language. No child is born with a preference for a particular language. A child acquires her first and dominant language by absorbing and listening to people speaking around her. Language acquisition is a social process, and the hardwiring of language into a person begins virtually from the moment of birth.

And that’s precisely Sass’s thinking with respect to race preference. While children are not born with race preference, it becomes a natural instinct through socialization that must start at a very young age. And that is why Sass was emphatic that it was “the elementary public school [that] is the most critical of those areas of activity where the South must and will at all costs maintain separateness of the races.”

Massive resistance to desegregation, then, was about control over the public school’s socializing function.  Segregation was the key to instilling white race preference in young white children, while integration was an existential threat to that process. For Sass, integration would socialize children to rob them of race preference.

How so? By socializing (brainwashing for Sass) young children into developing a preference for relationships with any race. He explains that “if the small children of the two races…were brought together intimately and constantly and grew up in close association in integrated schools under teachers necessarily committed to the gospel of racial integration, there would be many in whom race preference would not develop.” (emphasis added)

Why not? Tom P. Brady, a Mississippi Circuit Judge, explains. He wrote a pamphlet in 1955 arguing that integrated schools would result in something that would end whiteness and white supremacy--young white and black children playing together. He wrote, “You cannot place little white and negro children in classrooms and not have integration. They will sing together, dance together, eat together, and play together. They will grow up together and the sensitivity of the white children will be dulled. Constantly the negro will be endeavoring to usurp every right and privilege which will lead to intermarriage.” (emphasis added) In other words, in integrated schools, young white and black students would be encouraged to and actually develop friendships with each other, and in the process, develop an instinct for the human race, not just the white race. And that would spell the end of white supremacy.

The racial segregation of elementary schools, on the other hand, hardwired race preference in young white children. To see this point, take Brady’s quote and adapt it to racially segregated schools: When you place just little white children in schools together, you will have segregation. Little white children will sing together, dance together, eat together, and play together. They will grow up together and the sensitivity of the white children to race will become second nature, an instinct, which will lead to white marriages.”

Flashforward to 2024, and as Professor Maldonado documents in her book, the scenario just described is occurring over and over again throughout the nation’s elementary schools. Little white children are playing and dancing with each other in exclusive white schools (and neighborhoods) and with each game of dodgeball, with each dance, race preference for whites is being hardwired into them. With that racial hardwiring, when they grow up and go off to more racially diverse settings such as college, the workplace, and the internet, their racial instinct kicks in, and they “naturally” become friends and romantic partners with other whites, while rejecting or ignoring opportunities to relate with non-whites. In that process, they are engaging in the systematic relational construction of race and entrenching white racial hierarchy.

Ultimately, Professor Maldonado is right, and it is the law of de facto racial segregation and exclusionary zoning, not just influencing racial intimacy patterns, but actually bringing them into being. And for that reason, “the law should address the inequities stemming from its actions.” (p 10)

iv.

Where do we go from here? We go right back to Brown and the need to dismantle racially segregated schools. This nation is still operating under the shadow of the separate and unequal regime of Plessy v. Ferguson. To overrule Plessy for good, it is necessary for another Brown decision to declare that separate is inherently unequal, whether or not racial separation was intentional.

However, since we may be waiting a long time for Brown 2.0, all the legal remedies and policies offered by Professor Maldonado should be actively pursued. However, greater emphasis is needed on legislative or school district measures to racially integrate elementary and middle schools. Some of the proposed high school integration measures like magnet schools may be far too late in the process, for racial hardwiring will likely direct most white teens in one relational direction.

Legal and policy solutions should also focus on creating racially inclusive recreational centers, playgrounds, public swimming pools, amusement parks, and youth sports leagues geared for young children. Taking it one step further, Professor Maldonado may want to examine whether and how daycare and preschool operate to hardwire race preference in white babies, toddlers, and preschoolers.

A final note for thinking about Professor Maldonado’s book. For each time in her book that she talks about intimacy, relationships and marriage, consider or incorporate love. Would, for example, any new insights or alternative avenues for research and analysis develop if we altered the book’s title to “The Architect of Love: How the Law Shapes Interracial Love and Perpetuates Inequality?” Or if we changed the title for chapter 4 to “How Law Shapes Opportunity for Interracial Love?” I would love for Professor Maldonado to try this thought experiment, and then let us know what she learns about law and its role in shaping interracial love.

Reginald Oh is the Professor Alan Miles Ruben and Judge Betty Willis Ruben Professor of Law at Cleveland State University College of Law. He can be reached at r.oh@csuohio.edu.