08 Obama and Ozawa

Jerry Kang / Special to The National Law Journal
March 31, 2008

Next to his 2004 convention speech, Barack Obama's speech on race was his most important. It was the most honest and complex analysis of race made by a candidate seeking political office I have ever heard. He did what he needed to do €” meet head-on the hardest criticisms, with substance, context, humility and analytical clarity.  

As a legal academic who studies race, I was delighted to see Obama reject simplistic tales. He discussed both individual and structural causes of how things came to be. In other words, he spoke of individual choices (both good and bad) but reminded folks that they are always made within a historically and materially situated menu of options. He rejected demonizing one side as racists and making virtuous victims of the other, and instead identified core similarities and basic human needs. He spoke of the young white woman, Ashley, and the elderly black man who realized that he was working beside her on the campaign "because of Ashley."  

The greatest challenge, of course, was addressing Jeremiah Wright, Obama's pastor who spewed fire and brimstone against American racism. Obama once again denounced these comments, but still refused to disown him. As Obama explained, it would be like disowning the black community or his white grandmother, in all their complexity and imperfection.  

The relevance of 'Ozawa' 

As I listened to his speech, I could not help but recall the case of Takao Ozawa, decided by the U.S. Supreme Court in 1922. From 1790, federal law permitted only "free white persons" to naturalize into U.S. citizens. After the Civil War, that statute was amended to permit people of African descent to naturalize. (Indeed, few Americans know that this racial bar was not lifted generally until 1952.) In  Ozawa v. U.S., the question was how this law should be applied to the Japanese.  

In his brief, Ozawa pleaded: "In name, General Benedict Arnold was an American, but at heart he was a traitor. In name, I am not an American, but at heart I am a true American." He stated the "facts" to make his case. He had no contact with Japanese churches, schools or organizations; he spoke English at home "so that my children cannot speak the Japanese language." He married a Japanese woman educated in America, not Japan. In short, to become American, Ozawa publicly disowned his culture and his past.  

This did not suffice. The Supreme Court rejected the idea that whiteness should be tested by the "mere color of the skin" since "even among Anglo-Saxons . . . [there are] swarthy brunette[s who are] . . . darker than many of the lighter hued persons of the brown or yellow races." Ozawa's total assimilation also did not matter. Instead, relying on "numerous scientific authorities," the court held that "white" should be understood as "Caucasian" — and Ozawa was certainly no Caucasian. In other words, he could not belong.  

America has changed radically since the 1920s on matters of race. Yet, oddly enough, in the past few weeks, Obama was being wedged into the same difficult position in which Ozawa found himself. Talking heads were demanding that Obama disown not only his pastor's words but also his very ability to comprehend where such anger might come from — as if such righteous indignation were sheer madness. He was being forced to react as if he were white, no different from the rest of "us," as if his race were just a happenstance of complexion. The price of acceptance was that he publicly disown his culture, his people and his past.  

But in his speech, he did not. He rejected unequivocally what he needed to reject. But he would not disown what he could not disown: the knowledge and understanding that comes from his lived experience as a man born of a black father and a white mother.  

One more piece of legal history is worth sharing. Just one year after  Ozawa, in  U.S. v. Thind, the Supreme Court addressed whether a "high caste Hindu of full Indian blood" should be considered "a white person." Bhagat Singh Thind, who was actually a Sikh and not Hindu, relied on Ozawa's equation of "White = Caucasian" to make his case. After all, the scientists of the time viewed Indians as Caucasians. This should have been an open-and-shut case. When confronted with this logical but undesirable consequence of its prior holding, the high court simply changed the rules midstream. The court backtracked and said that "white" really should be understood in plain terms, not according to any scientific discourse. And the legislature that passed the naturalization statute would have instinctively rejected Thind as nonwhite, as someone not "bone of their bone, flesh of their flesh." Race, belonging, disowning, being subject to changing rules: Apparently, the past isn't even the past.

In the end, when Obama refused to disown what he could not disown, he spoke not what was most politically expedient but what was most honest. He took a chance on America. For that honesty, for that public leap of faith, I will always be grateful.  

Jerry Kang is professor of law at the University of California at Los Angeles School of Law and faculty director of its Critical Race Studies Program.