Mixed Race Studies

Passing Fancy

Legal Affairs – The Magazine at the Intersection of Law and Life
September/October 2003

Daniel J. Sharfstein, Professor of Law
Vanderbilt University

In the Jim Crow South, courts understood that rigidly enforcing the rules against mixed marriage would have been a disaster—for whites.

In 1903, a Young North Carolina farmer named Frank Ferrell went a-courting. Nineteen years old and working on his father’s farm in the town of Zebulon, Frank settled his attentions on Susie Patterson, a quiet woman in her early 20s whose family had lived in nearby Riley since the 1880s. Riley was a town on two borders, smack on the line separating Franklin and Wake counties, in the rolling hills where the Atlantic Coastal Plain meets the Piedmont Plateau.

Evidently, a third boundary ran through Riley as well. While Frank wooed her, rumors circulated that she had some Indian or Portuguese ancestry—and some suggested that her blood ran a few shades darker. Perhaps because she feared the rumors would one day bring trouble, Susie refused Frank’s marriage proposal. But her suitor persisted and won her over. The couple married in January 1904 at the home of a justice of the peace on the Wake County side.

By April of the following year, the couple had a daughter, and Frank had become a drunk. He beat his wife, stopped providing for her and their baby, and in early 1907 abandoned them entirely. Soon after, he hired a lawyer and filed a complaint alleging that he had unwittingly married a black woman…

…During the South Carolina Constitutional Convention in 1895, Congressman George Dionysus Tillman, older brother of the notorious segregationist politician “Pitchfork Ben” Tillman, argued strenuously against a proposal to prohibit marriage between whites and people who had “any” African ancestry. Tillman said that the provision would affect “at least 100” families in his district that had sent their boys to fight for the Confederacy—and that no delegate on the floor could claim to be a “full-blooded Caucasian.” The convention adopted a one-eighth rule. Such actions prompted Charles Chesnutt to muse, “I could almost write a book about these laws, their variations, their applications and curious stories that one hears continually concerning them.” The color line is palpably present in many of the short stories that he published in The Atlantic Monthly at the turn of the century. And a character in one of Chesnutt’s novels became white simply by moving to a state with a more forgiving definition…

Read the entire article here.

Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860

Minnesota Law Review
Volume 91, Number 3 (February 2007)
pages 592-656

Daniel J. Sharfstein, Professor of Law
Vanderbilt University

“It ain’t no lie, it’s a natural fact, / You could have been colored without being so black…”
—Sung by deck hands, Auburn, Alabama, 1915–161

“They are our enemies; we marry them.”
—African Proverb

In 1819 a Scotsman named James Flint crossed the Atlantic Ocean, made his way from New York to Pittsburgh, sailed down the Ohio, and settled for eighteen months in Jeffersonville, Indiana, just opposite Louisville, Kentucky. His letters home described everything from native trees and shrubs to the “taciturnity” of American speech, “adapted to business more than to intellectual enjoyment.” Soon after arriving in Jeffersonville, Flint recounted the time when a “negro man and a white woman came before the squire of a neighbouring township, for the purpose of being married.” The official refused, citing a prohibition on “all sexual intercourse between white and coloured people, under a penalty for each offence.” Then he thought the better of it. He “suggested, that if the woman could be qualified to swear that there was black blood in her, the law would not apply. The hint was taken,” Flint wrote, “and the lancet was immediately applied to the Negro’s arm. The loving bride drank the blood, made the necessary oath, and his honour joined their hands, to the great satisfaction of all parties.”…

Ideologies of racial purity and pollution are as old as America, and so is interracial mixing. Yet the one-drop rule did not, as many have suggested, make all mixed-race people black. From the beginning, African Americans assimilated into white communities across the South. Often, becoming white did not require the deception normally associated with racial “passing”; whites knew that certain people were different and let them cross the color line anyway. These communities were not islands of racial tolerance. They could be as committed to slavery, segregation, and white supremacy as anywhere else, and so could their newest members—it was one of the things that made them white. The history of the color line is one in which people have lived quite comfortably with contradiction.

This continual process of “racial migration” upends some of the most basic assumptions about race in the United States. When Southern colonies, and later states, restricted the civil rights and livelihoods of African Americans, such measures did not simply widen the gap between white and black. Rather, these obstacles to life and liberty pushed people across the color line into whiteness. At the same time, courts and communities made it increasingly difficult to reclassify people as black after they had been living as white. With an exponentially increasing number of people who were vulnerable to reclassification, the stability of Southern communities depended on what was in essence a massive grandfathering of white people with African ancestry. This racial amnesty was accomplished through court decisions that discouraged overzealous policing of the color line; through scientific theories and popular beliefs that African ancestry would always be visible on people’s bodies; and most importantly, through small-town Southern traditions of acceptance, secrecy, and denial.

This Article reconstructs the meaning and purpose of the one-drop rule, setting it within a larger history of racial migration. Most legal scholars casually describe the rule as the American regime of race without considering its history. Other scholars have attempted to trace the rule’s origin to the emergence of the cotton economy in the 1830s, the sectional crisis of the 1850s, or Reconstruction. Still others emphasize that most Southern state legislatures did not formally adopt one-drop racial definitions until the 1910s and 1920s.  Like an aging movie star, the rule depends on soft focus to maintain its allure. Amid the vagaries of origin, few suggest anything but that people followed the one-drop rule, as they would any other bright-line rule. But the reality of racial migration reveals that the one-drop rule did not keep whites racially pure; rather, it enabled them to believe that they were.

The Article proceeds in two parts. Part I examines the one drop rule in colonial North America and the early American republic.  Theories of innate racial difference transmitted through “blood” existed well before Jamestown, leading influential scholars to interpret almost reflexively early laws defining race and slave status to be synonymous with the one-drop rule. But the rhetoric of purity was always undermined by the realities of European, African, and Native American mixture and of a permeable color line. To the extent that legislators and judges showed confidence in the salience of race, the assumption of an impassable racial divide actually made it easier for some people of African descent to become white.

Southern courts and communities did not strictly define the color line because there was little reason to go beyond slavery’s proxy of racial boundaries, and an inflexible racial regime only threatened to interfere with the smooth functioning of a slave society. The one-drop rule’s transformation from ideological current to legal bright line and presumed social reality is in essence a story of freedom. Part II examines the thirty years preceding the Civil War. The prospect of freedom for people of African descent hastened the one-drop rule’s rise as whites attempted to preserve social hierarchies and property relations in the absence of slavery. While legal scholars identify this period as a time when tightening definitions fixed the status of mixedrace people as black, I contend that rather than establish or enforce a one-drop rule, efforts to tighten the color line pushed many mixed-race people into whiteness, sometimes with the full knowledge of their communities and often in spite of court rulings or publicity. Even as this racial migration continued, however, the rule’s growing ideological prevalence in the free North would presage its eventual codification in the South after slavery’s demise. During this period of ascendancy, the rule’s ostensible opponents played an important part in propagating it. Abolitionists seldom questioned white racial purity, instead relying on the one-drop rule as a symbol of Southern cruelty and of the threats that slavery posed to Northern whites. One might argue that today’s legal scholars depend on the rule in much the same way….

The practical consequences of this history lie in the fact that every area of the law that engages with race has a foundation in the one-drop rule. The rule acts as a metric for defining group membership, allocating race-based entitlements, awarding child custody, determining the existence of discrimination and monitoring the progress of remedial measures, and theorizing racial and other group identities. If the one-drop rule functioned differently from what its unambiguous terms suggest—if, as I argue, it expressed only a superficial commitment to racial purity, all the while fostering racial migration—then we have to rethink what race means. The magnitude of racial migration is beginning to emerge through the field of population genetics, with scientists estimating that millions of Americans who identify as white have African ancestors within recent historic memory. As people identifying as white begin to claim minority status in college admissions and employment settings, African “blood” is losing its ability to define race, determine civil rights violations, and fashion remedies. The already formidable tasks of measuring disparate racial impact or minority vote dilution risk becoming impossible when group boundaries blur.

Although the history of racial migration and the one-drop rule appears to threaten civil rights policies, ultimately it may strengthen them by forcing definitions of minority status to shift from blood to a shared history of discrimination. “African blood” is not unique to blacks. Centuries of racial migration reveal that more than anything, what fixed African Americans as a discrete group was the fact that they were discriminated against. In 1940 W. E.  B. Du Bois wrote, “I recognize [black] quite easily and with full legal sanction; the black man is a person who must ride ‘Jim Crow’ in Georgia.” Many people of African descent could and did avoid racial oppression by becoming white. When we regard the legal category of “African American” through the lens of a shared history of discrimination, the tidy parallel that “color-blind constitutionalism” draws between race-based discrimination and remediation falters. While discrimination against African Americans was premised on innate blood-borne inferiority and the preservation of racial purity, measures designed to benefit them are much more inherently remedial than many, including the Supreme Court, have been willing to suppose. Remedial measures acknowledge a specific history, not blood.

Today we inhabit a legal regime that is the accretion of centuries of myth and amnesia. Unexamined and unchallenged, the one-drop rule remains a fixture of the civil rights landscape. The rule’s stark language carries the appearance of unassailable authority. Its sheer inhumanity has made it an easy foil for people committed to uprooting racism, so there has been little reason to examine its history. But assuming the rule’s efficacy has only continued to spread the idea of white racial purity without undermining it. Just beyond the one-drop rule’s rhetoric is a reality of mixture and migration. It is hidden in plain sight…

Read the entire article here.

“Tell the Court I Love My [Indian] Wife” Interrogating Race and Self-Identity in Loving v. Virginia

Souls: A Critical Journal of Black Politics, Culture, and Society
Volume 8, Issue 1 (April 2006)
pages 67-80
DOI: 10.1080/10999940500516983

Arica L. Coleman, Assistant Professor of Black American Studies
Unverisity of Delaware

The article reexamines the Loving V. Virginia case by focusing on their tri-racial community of Central Point, Virginia and Mildred Loving‘s self identity as an Indian woman. Loving’s self identity was informed by the twentieth-century politics of racial purity, which resulted in a community-wide denial of African ancestry. I argue that Mildred Loving’s marriage to a white man was not an affirmation of Black/white intermarriage, but rather adhered to the code of racial purity as defined by the state of Virginia, a legacy which continues in the post-Civil Rights era.

The 1967 case of Loving v. Virginia, in which the Supreme Court declared anti-miscegenation laws unconstitutional, has garnered far less scholarly attention than its 1954 predecessor. Brown v. the Board of Education, which overturned legalized segregation. What little appeared in the way of scholarship has focused on analysis the history the history of anti-miscegenation legislation, the events which led up to the case presentation before the nine justices, the legal precedents regarding the arguments presented before the court, and the unanimous decision delivered by Chief Justice Earl Warren. Until recently with the exception of an article which appeared in Ebony magazine several months after the Supreme Court decision, writers have given little attention to the personal lives of the actual plaintiffs now enshrined in American history, as “the couple that rocked the courts.”…

Read or purchase the article here.

Understanding Race: The Evolution of the Meaning of Race in American Law and the Impact of DNA Technology on its Meaning in the Future

Albany Law Review
Volume 72, Issue 4 (2009)
Pages 1113-1143

William Q. Lowe
Albany Law School

Race has played a decisive role in nearly all aspects of American society, yet its meaning in various contexts remains unclear.  Throughout history, individuals have struggled to define “race” as it pertains to science, society, and the law in particular. Although race became a part of the English language in the mid-sixteenth century, it did not take on its modern definition until the early nineteenth century. Scientific, social, and political interpretations of race have gone through an evolutionary process as well. After over two-hundred years of trying to understand its meaning, “[t]he word ‘race’ defies precise definition in American law.” Countless competing theories exist as to the definition and meaning of race, and the inability for one to earn universal support poses a significant problem to the American legal system. Despite the fact that numerous statutes have been enacted to prohibit racial discrimination throughout all aspects of American society, “the law has provided no consistent definition of race and no logical way to distinguish members of different races from one another.”

It has been argued that “race” was first used as a tool to classify individuals during the age of colonial exploration; however, this use was maintained for centuries. Today, classifications based on race are still present in America, and have been found to be permissible in some instances, such as when used to remedy instances of past discrimination. With the predominant role race continues to play in American society, to ensure that all are treated fairly under the law, it is imperative that a single definition of race is applied universally to all Americans. It is foreseeable that advances in science, particularly in DNA testing, will allow for a uniform method of determining one’s race.

This note will discuss the current lack of a settled definition of race in American Law, and the potential role DNA technology can play in remedying the problems associated with it. Part II of this Note will explore the concept of race by examining various definitions of race and how they have evolved into the modern definition. This section will additionally look at the historical understanding of the meaning of race, and the recent divergence from traditional thought. Part III of this Note will analyze the role of race throughout American legal history. This portion of the Note will address historical notions of race in America, the origin of the need to define race, and the treatment of race by the legislature and the courts. Part IV of this Note will discuss current DNA technology and the potential impact it may have of on modern concepts of race, particularly with regard to the law. It is foreseeable that advances in DNA technology will allow scientists to identify and classify individuals through an analysis of their genetic information.

The first legislative attempt at defining race took place in Virginia, nearly one-hundred years before America gained its independence from England, and it was enacted in response to the “uncertain status” of children born with parents of mixed race. The statute was concerned only with the status of mulatto children who were born to a black woman, and stated that the race of the mother would be used to determine the race of the child. This policy reflected the biological definition of race, as the skin color of the individual in question was determinative. This statute was in contrast to that of English law, where inheritance followed the paternal line. Ultimately, under the Virginia statute, children born of a free white man and his slave could potentially be considered to be slaves themselves.

The presence of many free blacks residing in Virginia quickly made this statute unworkable, because it was not easy to determine if a child’s black ancestry came from his or her mother’s side or his or her father’s side. The possibility that a white woman could have a child with a black man, whether he was a slave or a free man, resulted in mulatto children being exiled from Virginia, and ultimately led to the creation of “one-drop rules.” Such rules held that an individual would be classified as black, despite the fact that his or her genetic makeup was primarily white…

Subsequently, Virginia, as well as other states, passed similar laws aimed at the prevention of interracial marriages. Pursuant to such laws, any white person who married a non-white would be exiled from Virginia. The language used in the statute is striking, as interracial marriage is referred to as “that abominable mixture and spurious issue which hereafter may encrease in this dominion.” This serves as yet another example of the hierarchical system of classification based on race at this time in American history.

Later statutes based on the “one-drop rule” departed from the 1662 Virginia statute in the sense that they did not take a “physical appearance approach.” Such “[f]ormula-based definitions of race” became increasingly popular in the South, and Booker T. Washington provided an accurate description of what they entailed: “[I]f a person is known to have one percent of African blood in his veins, he ceases to be a white man. The ninety-nine percent of Caucasian blood does not weigh by the side of the one-percent of African blood. . . . The person is a Negro every time.” In practice, most states with race-based statutes formed under the “one-drop rule” held that individuals who had at least one black grandparent were legally black. It should be noted, however, that “as the likelihood that more biracial people could be classified as white… the laws became more restrictive… finally culminating in the one-drop rule…

Read the entire article here.

“They Call It Marriage”: the Louisiana Interracial Family and the Making of American Legitimacy

Book Manuscript In Progress

Diana Irene Williams, Assistant Professor of History, Law and Gender Studies
University of Southern California

Winner of the 2008 William Nelson Cromwell Dissertation Prize in Legal History.

“They Call it Marriage” examines interracial marriage between black women and white men in nineteenth-century Louisiana. It explores how broad political and social struggles affected the ways white men and black women related to each other. And it considers why mid-nineteenth-century Louisiana was such an important setting for national struggles over race, gender, legitimacy, and power.

After the Civil War, Louisiana authorities repealed the interracial marriage prohibition and permitted retroactive legitimation of “private religious” marriages. In doing so, they exposed an obscure past in which many had refused to submit to the law as authoritatively given. Some people laid claim to the language of legitimate matrimony in defiance of state law, demanding justice on their own terms and with a keen awareness of competing regional, religious, and civil jurisdictions. In highlighting the perspective of those outside the legal profession, I focus on law as a terrain of struggle rather than a fixed set of rules.

The use of interracial marriage laws to regulate the inheritance of both property and social status dated back to Louisiana’s earliest French colonial government. Mandating that mixed-race children inherit the status of their (black) mother only, these regulations established the parameters of enslaved and racialized populations. Because legal kinship affected titles to household property in Louisiana, these laws encouraged distant kin and creditors to monitor interracial families’ internal affairs…

…The disputed illegitimate past of Louisiana interracial families had significance beyond the state’s borders. This manuscript traces the rhetoric of interracial genealogy and racial indeterminacy in antecedents of Plessy v. Ferguson. Louisiana authorities’ persistence in invoking racial fluidity well into the 1890s complicates historians’ efforts to locate a transition point at which the region exchanged a fluid Latin racial system for a strictly binary American one. In this regard, “They Call it Marriage” explores the gendered history of private life in order to offer a means of reconsidering the nature of Jim Crow segregation.

Chapters

1. Licensing Marriage in Early Louisiana
2. “Religion Law” vs. Civil Law
3. Quadroon Balls, Plaçage, and Consensus Narratives
4. Concubinage and Legal Narratives
5. Forced Heirs and Family Drama
6. Interracial Marriage and the Law in Post-emancipation Louisiana
7. “Bastards Begat by their Masters”

Read the entire description here.

Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans, 1910-1950

Berkeley Asian Law Journal
Volume 9, Number 1 (2002)
pages 1-40

Gabriel J. Chin
University of Arizona James E. Rogers College of Law; University of Arizona School of Government and Public Policy

Hrishi Karthikeyan
New York University School of Law

This essay explores the relationship between Asian American population and applicability of anti-miscegenation laws to that group in the first half of the 20th Century, testing legal scholar Gilbert Thomas Stephenson‘s theory that racial restrictions would arise whenever non-whites of any race exist in considerable numbers. Several states prohibited Asian-white intermarriage even though the Asian American numbers failed even remotely to approach those of the white population in those states. These anti-miscegenation statutes were unique in the Jim Crow regime in the degree of specificity with which they defined the racial categories subject to the restrictions, using precise terms like Japanese or Mongolians, rather than broad terms like colored. Further, the number of statutes applicable to Asians more than doubled between 1910 and 1950, even though census data shows that the proportion of Asian population was stable or declining in these states, and in any event tiny.

The proliferation of anti-Asian miscegenation laws raises important questions about the racial landscape of our country during this period. Correlating census data with the development of anti-miscegenation statutes suggests that population does have an impact on whether states would restrict Asian marriage, but in a more complex way than Stephenson proposed. In all states in which Asian-white marriage was restricted by race, so too was African American-white intermarriage; no statutes targeted Asians alone. But in virtually all states restricting African American intermarriage where there was a discernable Asian population – 1/2000th or more – Asian intermarriage was also regulated. The combination of a state’s inclination to segregate, plus a visible Asian population, reliably predicts when Asians would be covered by a statute. This suggests that in the states where racially diverse populations were seen as threats appropriately subject to legal regulation, the nature of the problems presented by the various races was the same.

Read the entire article here.

Mixing Bodies and Beliefs: The Predicament of Tribes

Columbia Law Review
Volume 101, Number 4 (May 2001)

L. Scott Gould

This Article considers a dilemma faced by tribes in a post-inherent sovereignty world. Tribes have increasingly come to be defined through the use of blood quanta as racial entities. This practice raises the legal question whether and to what extent Congress can confer benefits on tribes pursuant to the Indian Commerce Clause without violating the equal protection component of the Due Process Clause. Professor Gould explores the current dilemma from legal, historical, and demographic perspectives. He concludes that a recent Supreme Court decision involving Native Hawaiians portends growing judicial hostility to groups that base their memberships on common ancestry. Based on recent demographic trends, the Article observes that tribes are already multi-racially diverse. In conclusion, Professor Gould urges tribes to redefine their membership criteria, risking change in order to regain sovereignty and ultimately preserve tribal cultures.

Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia

University of California, Davis Law Review
Volume 21, Number 2 (1988)
pages 421-452

Paul A. Lombardo, Bobby Lee Cook Professor of Law
Georgia State University

This Essay explores private correspondence contained in a restricted manuscript collection along with contemporary news accounts and government documents to explain how eugenics—a popular “scientific” movement during the 1920’s—was used to bolster the arguments in favor of the Virginia Racial Integrity Act of 1924 that was struck down in Loving v. Virginia.  The genesis of the Act is described with reference to the private correspondence of the two Virginians [Walter Plecker and John Powell] who lobbied for its passage.  Their involvement with the white supremacist Anglo-Saxon Clubs of America is revealed as an aid to understanding the true motives behind the anti-miscegenation law.

Read the entire article here.

Race – The Power of an Illusion

California Newsreel – Film and video for social change since 1968
2003
3 Episodes, 56 minutes each
DVD and VHS

The division of the world’s peoples into distinct groups – “red,” “black,” “white” or “yellow” peoples – has became so deeply imbedded in our psyches, so widely accepted, many would promptly dismiss as crazy any suggestion of its falsity. Yet, that’s exactly what this provocative, new three-hour series by California Newsreel claims. Race – The Power of an Illusion questions the very idea of race as biology, suggesting that a belief in race is no more sound than believing that the sun revolves around the earth.

Yet race still matters. Just because race doesn’t exist in biology doesn’t mean it isn’t very real, helping shape life chances and opportunities.

Episode 1– The Difference Between Us [transcript] examines the contemporary science – including genetics – that challenges our common sense assumptions that human beings can be bundled into three or four fundamentally different groups according to their physical traits.

Episode 2– The Story We Tell [transcript] uncovers the roots of the race concept in North America, the 19th century science that legitimated it, and how it came to be held so fiercely in the western imagination. The episode is an eye-opening tale of how race served to rationalize, even justify, American social inequalities as “natural.”

Episode 3– The House We Live [transcript] In asks, If race is not biology, what is it? This episode uncovers how race resides not in nature but in politics, economics and culture. It reveals how our social institutions “make” race by disproportionately channeling resources, power, status and wealth to white people.

By asking, What is this thing called ‘race’?, a question so basic it is rarely asked, Race – The Power of an Illusion helps set the terms that any further discussion of race must first take into account. Ideal for human biology, anthropology, sociology, American studies, and cultural studies.

Read the online transcript here.
Visit the facilitator guide website here.

Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and Transgendered Experience

San Diego Law Review
Volume 39, Number 3 (2002)
pages 917-942

Julie A. Greenberg, Professor of Law
Thomas Jefferson School of Law, San Diego

This Article explores the potential difficulties that exist as legal institutions develop a classification of transgendered people, and suggests that an examination of how legal institutions have classified race and sex in the past can help shape the way that legal institutions shape transgendered classifications in the future. The article summarizes the development of race classifications for multiracial people. The author then examines the development of sex classifications for various legal purposes like marriage, identity, and the right to pursue discrimination claims. The author also examines how the medical community contributes to the stereotypical definitions of sex as binary and biologically determinable. The author then proceeds to evaluate some of the challenges that face the development of multiracial classifications, and how those challenges may affect the development of transgendered classifications. The author argues that in developing sex classification systems, legal institutions should be aware of the problems that can arise when seeking to adopt a single unified standard for determining sex, because where in some instances the acceptance of sex as a sociopolitical construct can promote greater acceptance of sexual minorities, it might also further contribute to discrimination.

Read the entire article here.