Mixed Race Studies

Of Mongrels and Men: The Shared Ideology of Anti-Miscegenation Law, Chinese Exclusion, and Contemporary American Neo-Nativism

bepress Legal Series
Working Paper 458
2005-02-16

Geoffrey A. Neri, Associate
Miller Barondess, LLP

Table of Contents

• I. INTRODUCTION
• II. BIRTH OF THE “ABOMINATION”: THE DEVELOPMENT OF ANTI-MISCEGENATION LAW
  • A. Origins and Early History
  • B. Anti-Miscegenation Ideology
    • 1. Monogenism and Christian Fundamentalism
    • 2. Polygenism and Pseudoscience
    • 3. Social Darwinism
    • 4. A Beacon of Light in the Dark Age of Racist Ideology
• III. THE “YELLOW PERIL”: ANTI-MISCEGENATION LAW AND CHINESE EXCLUSION
  • A. Chinese Migration to the United States in the 19th Century
    • 1. Pull Factors
    • 2. Push Factors
  • B. Anti-Chinese Immigration Legislation
  • C. The “Chinese Exclusion Case” and Plenary Power Doctrine
  • D. “Negroes or Mulattoes . . . and Mongolians”: The Anti-Miscegenation Expands to Include the Chinese
  • E. Effects of Anti-Miscegenation Law and Chinese Exclusion on Chinese Transnational Movement
• IV.MORE WHIMPER THAN BANG: THE END OF CHINESE EXCLUSION AND THE ANTI MISCEGENATION STATUTE
  • A. The End of Chinese Exclusion
  • B. The Demise of the Anti-Miscegenation Statute
    • 1. Early Challenges
    • 2. Loving
• V. THE CONTEMPORARY RELEVANCE OF ANTI-MISCEGENATION LAW AND THE PERIOD OF CHINESE EXCLUSION
  • A. The Good News . . . More Progressive Racial Norms in the Modern Era
  • B. The Bad News . . . Neo-Nativism Serves up “Old Poison in New Bottles”
• VI.CONCLUSION

“We want no more mixture of races. . . . No strong nation was ever born of mongrel races of men.”
—U.S. Senator La Fayette Grover (addressing the “Chinese Problem”), June 30, 1872

I. INTRODUCTION

A complex interaction of push and pull factors created a substantial wave of Asian migration to the United States in the 19th century. In brief, acute political and economic instability and dislocation in China arising from European imperialism, internal conflict, and famine “pushed” Chinese laborers to the United States, while a demand for cheap, reliable labor brought on by burgeoning industrialization in the American West, the construction of the Transcontinental Railroad, and the 1849 California gold strike at Sutter’s Creek “pulled” them. Due to America’s historic policy of open borders, this migration was virtually unrestricted and the rapid influx of Chinese immigrants into the American West almost immediately provoked “widespread concerns about the relationship between race and national identity” in the United States. The Chinese were perceived as possessing characteristics that amounted to unbridgeable racial differences and “fears of hybridity” proliferated, prompting one California legislator to warn that “were the Chinese to amalgamate at all with our people, it would be a hybrid of the most despicable, a mongrel of the most detestable that has ever afflicted the earth.

Anti-miscegenation laws, state laws prohibiting sex and/or marriage between individuals of different “races” originally crafted to prevent the mixing of whites and blacks, were quickly extended to regulate the interaction between whites and the Chinese, the new “other” race. In a process dubbed “Negroization” by historian Dan Caldwell, the Chinese were charged with the same negative racial qualities—“[h]eathen, morally inferior, savage, and childlike . . . lustful, sensual”—that had previously been hoisted on blacks and the rhetoric of anti-black racism became the rhetoric of anti-Chinese racism. This process of reassignment occurred a number of times as subsequent groups of Asian immigrants came to the United States and anti-miscegenation laws were extended further to apply to them: Japanese, Koreans, Indians, Filipinos and eventually all Asian immigrants were subject to the prohibition against commingling with whites.

This Article will examine the anti-miscegenation statute as well as other exclusionary laws specifically applied to the Chinese diaspora in America throughout the 19th and 20th century, describing the impact these racially restrictive laws had on Chinese transnational migration during the period. It will present the anti-miscegenation statute as an emblem of the broader concern of American nativism—a concern with defining and policing American political and civic culture, with protecting American republicanism from the perceived threat posed by foreigners deemed “unassimilable.” This Article will then situate the anti-miscegenation statute within the larger framework of the xenophobic ideology animating exclusionary laws in general—an ideology in which amalgamation between white and nonwhite persons is assumed to threaten the purity of the white American body politic as much as the white American body.

Viewed in this manner, the anti-miscegenation statute, far from being a relic of America’s racist past, is especially relevant to contemporary arguments regarding immigration. For although the primary thesis of anti-miscegenation law—the assertion that nonwhites are incompatible with whites physically—has been disproven (or at least driven underground) by modern science, a dangerous corollary to that thesis—the notion that certain classes of immigrants, by virtue of their race and/or country of origin, are incompatible with American civic and political culture—endures. The modern nativist revival, this Article will conclude, invokes the specter of anti-miscegenation law and Chinese exclusion in charging that the most recent wave of migration to the United States, comprised mostly of Latinos and Asians, “cannot or will not assimilate” and threaten to degrade and undermine “national identity”…

Read the entire paper here.

The Barber of Natchez

National Park Service
Natchez: National Historical Park, Mississippi
2012-07-19

Timothy Van Cleave, Park Ranger
Natchez National Historical Park

The Life of William Johnson

Known as the “barber” of Natchez, William Johnson began his life as a slave. His freedom at age eleven followed that of his mother Amy and his sister Adelia. After working as an apprentice to his brother-in-law James Miller, Johnson bought the barber shop in 1830 for three hundred dollars and taught the trade to free black boys. It was shortly after he established a barber shop in downtown Natchez that he began to keep a diary. The diary was a mainstay in Johnson’s life until his death in 1851.

As a young prominent citizen in the free black community of Natchez, Johnson’s interest in marriage and starting a family was strengthened by his thriving business. By 1835, his initial investment of three hundred dollars had grown to almost three thousand. His dress was impeccable and he was confident in his future. So confident that he caught the eye of twenty year old Ann Battles. Battles, also a free black married Johnson in 1835. Their eleventh child was born in 1851 at the time of Johnson’s death…

…In 1851 a boundary dispute with his neighbor Baylor Winn found the two men in court. Although, the judge ruled in Johnson’s favor, Winn was not satisfied. Winn, also a free black ambushed Johnson returning from his farm and shot him. Johnson lived long enough to name Winn as the guilty party. Through strange circumstances, Winn was never convicted of the killing. Winn and his defense argued that he was actually white and not a free person of color because of his Indian ancestry in Virginia. Therefore, the “mulatto” boy who accompanied Johnson on that fateful day could not testify against Winn. Mississippi law allowed for blacks to testify against whites in civil cases, but not in criminal cases. Two hung juries could not decide if he was white or black, so Johnson’s killer walked free…

Read the entire article here.

The Perils of Passing: The McCarys of Omaha

Nebraska History
Volume 71, Number 2 (Summer 1990)
pages 64-70

Willard B. Gatewood, Jr. (1931-2011), Former Chancellor and Emeritus Alumni Distinguished Professor of History (1931-2011)
University of Arkansas, Fayetteville

This article presents various aspects of light-skinned black people “passing” for whites by examining the 1919 case of Francis Patrick Dwyer’s suit to annul his marriage to Clara McCary Dwyer after becoming suspicious that their new baby boy had Negro blood. While Dwyer was correct, he failed to win his suit, and his wife was able to divorce him and receive child support in 1923.

A strikingly handsome young woman and her three-year-old son, both fairhaired and blue-eyed, were the star attractions in a sensational court case in Omaha, Nebraska, in the summer of 1919. Her name was Clara McCary Dwyer, whose husband, Francis Patrick Dwyer, had filed suit to have their marriage annulled on the grounds that she had “negro blood in her veins.”· Until 1913 Nebraska law prohibited marriage between whites and persons possessing one-fourth or more Negro blood. In that year the legislature changed the law to ban marriages between white persons and those having “one-eighth or more negro, Japanese or Chinese blood.”

The courtroom drama, which occurred during the Red summer of 1919 when twenty-five race riots occurred in the United States, epitomized the prevailing white attitudes toward race and color. Throughout the spring and summer of that year, the denunciation of blacks as criminals, especially rapists, by the press and trade unions in Omaha undoubtedly had heightened racial tension in the city that ultimately erupted in a riot there late in September 1919. A complicating factor in the Dwyer case was that it involved the phenomenon of “passing,” a process by which fair-complexioned people of Negro ancestry “crossed over the color line” into the white world.

Several forms of “passing” existed among blacks in the United States. One was temporary or convenience passing by which fair-complexioned Negroes occasionally crossed the color line in order to secure decent hotel, travel, and restaurant accommodations or to attend the theater without having to sit in the Jim Crow balcony. Another form was known as “professional passing,” where by a person passed for white in order to hold jobs open only to whites but continued to maintain “a Negro social life.” The third form was passing permanently for white, which involved blotting out the past and severing all contacts with the black community. Among other risks was that of exposure. Because of the secretive nature of permanent passing, it is impossible to ascertain how many black Americans actually passed. Estimates ranged from a few hundred to many thousands annually.

Francis Dwyer, a clerk in a jewelry and leather goods store owned by his brother-in-law, assumed his wife was white until the birth of their son in 1916, when the attending physician, for reasons that are unclear, raised the possibility of Negro ancestry. Once Dwyer became suspicious of his wife’s racial heritage, he apparently refused to live with her and their son. He joined the army in 1917 and upon being mustered out of military service, decided to end the marriage legally on the grounds that he had been deceived by his wife. Because he was Catholic and had been married in the Catholic church, he insisted upon an annulment rather than a divorce…

Read the entire article here.

Judicial Erasure of Mixed-Race Discrimination

American University Law Review
Volume 59, Number 3
February 2010
pages 469-555

Nancy Leong, Associate Professor of Law
Sturm College of Law, Denver University

Table of Contents

• Introduction
• I. “What Are You?”: Cueing Perception of Racial Mixing
• II. “A Mongrel Breed of Citizens”: Animus Against Multiracial People
  • A. Historical Origins
  • B. Contemporary Attitudes
• III. “Discrete and Insular”: The Problem with Categories
  • A. Categorical Foundations
  • B. Judicial Treatment of Multiracial Plaintiffs
    • 1. Categorical reformulation of multiracial identification
    • 2. Limited acknowledgment of mixed-race discrimination
    • 3. Discrimination against interracial couples: related but distinct
  • C. Academic Omission
• IV. “Invisible People”: The Erasure of Multiracial Discrimination
  • A. Causes of Unacknowledged Multiracial Discrimination
  • B. Consequences of Unacknowledged Multiracial Discrimination
    • 1. Damage to individual narratives of discrimination
    • 2. Inhospitality to claims of multiracial discrimination
    • 3. Instantiation of racial categories and associated stereotypes
• V. “The Eye of the Beholder”: Reconciling Antidiscrimination Law and Multiracial Identification
• Conclusion

Introduction

The ideal of America as a racial and ethnic melting pot is a fundamental archetype in our national mythology. But discomfort with the idea of miscegenation and with the individuals born to parents of different races is equally fundamental to the American story. Indeed, one historian documents the punishment of Captain Daniel Elfrye for “too freely entertaining a mulatto” in 1632. Since then, racial mixing has engendered a continuously evolving social unease, troubling different groups for different reasons at different times. But the underlying inquietude has persisted. At times, this discomfort has manifested itself through legal mechanisms—for example, as a statutory scheme designed to police the boundaries of racial classification based on blood quantum. At other times, the discomfort has emerged through direct social interaction—for example, as violence directed at interracial couples and at individuals viewed as racially mixed.

Despite the historical and ongoing hostility to racial mixing, our legal system consistently fails to recognize racism directed at those seen as racially mixed. Race discrimination jurisprudence relies heavily on a familiar set of racial categories that David Hollinger has termed the “ethno-racial pentagon” of Asian, Latino/a, White, Black, and Native American. Science has largely demonstrated that the boundaries of these crude categories are arbitrary and that the categories themselves are social constructs rather than biological realities. Nonetheless, the categories constitute the paradigm through which we view race. And antidiscrimination jurisprudence continues to reflect and reify those categories in recognizing and remedying claims of racial discrimination.

This Article aims to expose the shortcomings of the prevailing crude racial categories as a means to implement the core provisions of antidiscrimination law—constitutional and statutory provisions such as the Equal Protection Clause and Title VII, and the jurisprudence that has developed around these provisions. Such provisions are designed to address racial discrimination by prohibiting inequitable treatment of individuals based on race and by punishing such inequitable treatment when it occurs. The provisions are not intended to protect specific racial categories. Rather, categories are simply the mechanism that the judiciary has adopted for implementing the goals of our antidiscrimination regime…

Read the entire article here.

A House Divided: The Invisibility of the Multiracial Family

Harvard Civil Rights-Civil Liberties Law Review
Volume 44, Number 1
2009
pages 231-253

University of Iowa Legal Studies Research Paper No. 09-26

Angela Onwuachi-Willig, Professor of Law, Charles M. and Marion J. Kierscht Scholar
University of Iowa College of Law

Jacob Willig-Onwuachi, Assistant Professor of Physics
Grinnell College

This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial.

This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, for such couples. It also uses Professor Kimberlé Crenshaw‘s theory of intersectionality to explicate how couples in general may experience societal benefits and disadvantages differently based upon various intersections of identity categories.

Second, this Article examines housing discrimination law to demonstrate the connection between the daily social disadvantages of interracial, heterosexual couples and families and the lack of legal recognition for interracial couples and families. Specifically, Part III of this Article utilizes housing discrimination law to show how law can ignore the existence of interracial, heterosexual couples, thereby reinforcing an ideal of marriage and family as monoracial. In so doing, this Part explains how housing discrimination statutes assume that plaintiffs will be monoracial, heterosexual couples, and fail to fully address the harms to interracial, heterosexual couples who are subjected to discrimination in housing and rental searches because of their interraciality (i.e., because they have engaged in race-mixing). Part III.A describes the legal framework for evaluating housing discrimination cases, including the means for analyzing discrimination by association cases in court.  Part III.B details the categories of plaintiffs who can allege discriminatory action “because of” race, familial status, or marital status under housing discrimination statutes. It then explicates how interracial couples who are victims of discrimination in housing because of their status as an interracial couple alone do not neatly fit within any of these categories.

Third, this Article calls for housing discrimination statutes to explicitly recognize interracial couples and families, thereby filling this hole in anti-discrimination law. Specifically, Part IV proposes that legislators add a new protected class category for “interraciality” to housing discrimination statutes. The Article argues that such an addition is the only means by which the law can address the “expressive harms” or lack of dignity that result from the current framing of family in housing discrimination statutes as monoracial.

This Article concludes with a call for statutes and rights to be legally framed in a manner that is inclusive, rather than exclusive.

Read the entire article here.

What Comes Naturally: Miscegenation Law and the Making of Race in America

Oxford University Press
December 2008
404 pages
ISBN13: 9780195094633
ISBN10: 0195094638

Peggy Pascoe (1954-2010), Beekman Professor of Northwest and Pacific History
University of Oregon

• Winner of the Ellis W. Hawley Prize of the Organization of American Historians (2009)
• Winner of the Lawrence W. Levine Award of the Organization of American Historians (2009)
• Winner of the William H. Dunning Prize of the American Historical Association
• Winner of the James Willard Hurst Prize of the Law and Society Association
• Winner of the Joan Kelly Memorial Prize of the American Historical Association
• Finalist, John Hope Franklin Prize of the American Studies Association

A long-awaited history that promises to dramatically change our understanding of race in America, What Comes Naturally traces the origins, spread, and demise of miscegenation laws in the United States–laws that banned interracial marriage and sex, most often between whites and members of other races. Peggy Pascoe demonstrates how these laws were enacted and applied not just in the South but throughout most of the country, in the West, the North, and the Midwest.  Beginning in the Reconstruction era, when the term miscegenation first was coined, she traces the creation of a racial hierarchy that bolstered white supremacy and banned the marriage of Whites to Chinese, Japanese, Filipinos, and American Indians as well as the marriage of Whites to Blacks.  She ends not simply with the landmark 1967 case of Loving v. Virginia, in which the Supreme Court finally struck down miscegenation laws throughout the country, but looks at the implications of ideas of colorblindness that replaced them. What Comes Naturally is both accessible to the general reader and informative to the specialist, a rare feat for an original work of history based on archival research.

Table of Contents

• Introduction
• Part I: Miscegenation Law and Constitutional Equality, 1863-1883
  • 1. Engendering Miscegenation
  • 2. Sexualizing Miscegenation Law
• Part II: Miscegenation Law and Race Classification, 1860-1948
  • 3. Configuring Race in the American West
  • 4. The Facts of Race in the Courtroom
  • 5. Seeing Like a Racial State
• Part III: Miscegenation Law and Its Opponents, 1913-1967
  • 6. Between a Rock and a Hard Place
  • 7. Interracial Marriage as a Natural Right
  • 8. Interracial Marriage as a Civil Right
• Part IV: Miscegenation Law, Civil Rights, and Colorblindness, 1964-2000
  • 9. Lionizing Loving
  • Conclusion: The Ghost of the Past

Won’t Somebody Think of the Children

Slate
2013-03-27

Brian Palmer, Slate’s Chief Explainer

Do opponents of marriage equality always claim that they’re merely worried about the kids?

During yesterday’s oral arguments over the constitutionality of California’s ban on gay marriage, Justice Antonin Scalia claimed that there is “considerable disagreement among sociologists” as to whether being raised by a same-sex couple is “harmful to the child.” The lawyers arguing the case repeatedly brought up the landmark 1967 decision Loving v. Virginia, which struck down interracial marriage bans. Did supporters of the ban argue that interracial marriage was harmful to children in that case, too?

Absolutely. The state of Virginia presented two arguments in support of its interracial marriage ban in 1967. The first was that the authors of the 14th Amendment to the Constitution explicitly stated that they did not intend to strike down anti-miscegenation laws, which were common in the 19th century. The second argument was that interracial marriages were uniquely prone to divorce and placed undue psychological stress on children…

Read the entire article here.

Clearly Invisible: Racial Passing and the Color of Cultural Identity

Baylor University Press
2012-08-01
285 pages
9in x 6in
5 b/w images
Hardback ISBN: 9781602583122

Marcia Alesan Dawkins, Clinical Assistant Professor of Communications and Journalism
University of Southern California

Everybody passes. Not just racial minorities. As Marcia Dawkins explains, passing has been occurring for millennia, since intercultural and interracial contact began. And with this profound new study, she explores its old limits and new possibilities: from women passing as men and able-bodied persons passing as disabled to black classics professors passing as Jewish and white supremacists passing as white.

Clearly Invisible journeys to sometimes uncomfortable but unfailingly enlightening places as Dawkins retells the contemporary expressions and historical experiences of individuals called passers. Along the way these passers become people—people whose stories sound familiar but take subtle turns to reveal racial and other tensions lurking beneath the surface, people who ultimately expose as much about our culture and society as they conceal about themselves.

Both an updated take on the history of passing and a practical account of passing’s effects on the rhetoric of multiracial identities, Clearly Invisible traces passing’s legal, political, and literary manifestations, questioning whether passing can be a form of empowerment (even while implying secrecy) and suggesting that passing could be one of the first expressions of multiracial identity in the U.S. as it seeks its own social standing.

Certain to be hailed as a pioneering work in the study of race and culture, Clearly Invisible offers powerful testimony to the fact that individual identities are never fully self-determined—and that race is far more a matter of sociology than of biology.

Contents

• Preface
• Introduction: Passing as Passé?
• 1. Passing as Persuasion
• 2. Passing as Power
• 3. Passing as Property
• 4. Passing as Principle
• 5. Passing as Pastime
• 6. Passing as Paradox
• Conclusion: Passing as Progress?
• Appendix
• Notes
• Bibliography
• Index

Appo Will Serve Six Months

The Brooklyn Daily Eagle
Thursday, 1895-10-03
page 12, column 2
Source: Brooklyn Public Library’s Brooklyn Collection

George Appo, the Chinese half-bred, who obtained notoriety especially through his testimony before the Lexow senate investigating committee, and who pleaded guilty to assault in the third degree in the stabbing of Policeman Michael J. Rein of the West Thirtieth street station on April 9, was this morning sentenced to six months in the penitentiary by Judge Cowing in Part II, New York general sessions.

The Urban Underworld in Late Nineteenth-Century New York: The Autobiography of George Appo

Bedford/St. Martin’s
2013
208 pages
Paper ISBN-10: 0-312-60762-8; ISBN-13: 978-0-312-60762-3

George Appo (1856-1930)

Edited with an Introduction by:

Timothy J. Gilfoyle, Professor of History
Loyola University, Chicago

Through the colorful autobiography of pickpocket and con man George Appo, Timothy Gilfoyle brings to life the opium dens, organized criminals, and prisons that comprised the rapidly changing criminal underworld of late nineteenth-century America. The book’s introduction and supporting documents, which include investigative reports and descriptions of Appo and his world, connect Appo’s memoir to the larger story of urban New York and how and why crime changed during this period. It also explores factors of race and class that led some to a life of crime, the experience of criminal justice and incarceration, and the masculine codes of honor that marked the emergence of the nation’s criminal subculture. Document headnotes, a chronology, questions for consideration, and a selected bibliography offer additional pedagogical support.