Anti-Miscegenation Laws in the United States

Posted in Articles, Law, Media Archive, Social Science, United States on 2013-03-01 05:06Z by Steven

Anti-Miscegenation Laws in the United States

Duke Bar Journal (Duke Law Journal)
Volume 1, Issue 1 (1951)
pages 26-41

James R. Browning (1918-2012)

The word “miscegenation” is not included in the everyday vocabulary of a large part of our citizenry, but there are nonetheless laws in twenty-nine states prohibiting miscegenation. Etymologically, the term means intermarriage of persons of different races; when used in this paper, however, the word has reference to marriage between whites and non-whites.

Without suggesting an opinion on the desirability of anti-miscegenation laws, the writer proposes to sketch the provisions and effects of the present statutes on the subject. Various questions then arise: what is the purpose of such statutes and how effectively are they accomplishing that purpose? Also, what are the legal problems created in applying these laws?…

I. Provisions and Effects of Present Laws

The preceding chart presents a panorama of the statutory law of the twenty-nine states that have taken steps to prevent miscegenation. As one will note, the laws are about as varied as they are numerous; they disclose differing definitions of those in the prohibited class, the emphasis as to persons in this class significantly shifting with the geographical location of the states. All these states prohibit Negro-white marriages. Fourteen states, chiefly west of the Mississippi, forbid intermarriage of white and Mongoloid persons. Three states, Louisiana, North Carolina, and Oklahoma prohibit Negro-Indian intermarriage. Four states forbid Indian-white marriages. Six states consider racial intermarriage with such abhorrence that its prohibition is provided for in their Constitutions.

In contrast to the common law rule that issue of a void marriage are illegitimate, many states have statutes legitimating such issue. However, some legitimation statutes have been interpreted not to apply to children of miscegenous marriages; others, as indicated on the chart, have not been construed as to this point. Although the status of the issue is uncertain in many states, the marriages themselves seem generally to be void ab initio and not merely voidable…

The passing of the frontier, which provided one method of escape for the minority groups, and the ever increasing occasion for social contact in our present mobile society, serve as catalysts to the inter-group reaction and increase the awareness of the fact that some groups have not assimilated in certain areas. The opportunity of assimilation, which in the ultimate sense must include amalgamation, has been extended to Jewish, Italian and other white minorities; but colored groups-Black, Brown, Yellow and to a lesser extent Red-are considered unassimilable, and are denied intermarriage with whites.

The underlying animosity to colored minorities can be partially attributed to a desire in white groups to maintain economic and social advantages. Independent of this desire is a wish to avoid the physical consequences which are thought to flow from racial inter-marriage. Thus, as one court put it in upholding the constitutionality of an antimiscegenation statute:

“The amalgamation of the races is not only unnatural but is always productive of deplorable results.”

…The intimate relationship between the marital institution and the basic welfare of the States has been relied upon to justify close supervision by it of the matrimonial ventures of its domiciliaries. Without speculating as to the physical consequences of racial intermarriage, the writer suggests that the sociological effects upon the offspring must be considered. It may well be argued that the state, as parens patriae, has a privilege to bar marriage which would produce problem progeny. To apply this principle one can consider the situation of the child, of a mixed marriage.

If white and Negro intermarry, any children will normally be shunned by other whites if the child’s parentage is known; and the white parent may not be fully accepted by his child’s colored companions. Thus, a gap may develop in the home. More important, under the state segregation laws in many states the white parent will be barred by law from associating with his child in restaurants, theaters, and other public places. Will not the deprivation of the parent’s full companionship react adversely upon the child? This suggestion emphasizes that regulation of the family must take account of conditions of society with a view to producing normal children…

Read the entire article here.

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The Origins and Authors of the Code Noir

Posted in Articles, Caribbean/Latin America, Europe, History, Law, Media Archive, Slavery, United States on 2013-02-28 01:39Z by Steven

The Origins and Authors of the Code Noir

Louisiana Law Review
Volume 56, Number 2 (Winter 1996)
pages 363-407

Vernon Valentine Palmer, Thomas Pickles Professor of Law
Tulane University, New Orleans

I. Introduction

The Code Noir marked France’s historic rendezvous with slavery in the Americas. It was one of the most important codes in the history of French codes. First promulgated by Louis XIV in 1685 for his possessions in the Antilles, then introduced in Louisiana in 1724, this code was, unlike the Custom of Paris, the only comprehensive legislation which applied to the whole population, both black and white. In these colonies where slaves vastly outnumbered Europeans and slave labor was the engine of the economy as well as its greatest capital investment, the Code was a law affecting social, religious and property relationships between all classes.

The Code was also an important sociological portrait, for no legislation better revealed the belief system of European society including its fears, values and moral blind spots. No legislation was more frequently amended and regularly adapted to adjust to France’s evolving experience with slavery. Furthermore, perhaps no aspect of the Code—whether one refers to its motives and aims, compares it to other slave systems, or questions its enforcement—is free of contemporary controversy.

However, no set of issues is more important than the Code’s antecedents and origins. Who were its authors and what sources did they use in drafting the Code? And what difference does it make? Some have claimed that the Code Noir derives from Roman law and that once again we have an example of legislation from the civil law which contrasts with slave legislation in the English colonies. But to what extent is this conclusion justified? Indeed, the claims about Roman sources usually include the argument that slave laws like those of France and Spain were susceptible of being codified because the Roman reservoir of rules was available, whereas English law developed ad hoc experientially, and could not be codified at the outset2 Some even argue that Rome’s legal influence improved the quality of life of slaves in the New World. France and Spain’s laws, they argue, were relatively more “humane” or less dehumanizing than slavery rules developed by English colonies, and Spanish slavery regulation was milder than that of France because of the greater degree to which Spain absorbed Roman law into its law of slavery…

…II. THE INSTRUCTIONS

The first document is the King’s Mémoire to his Intendant, dated April 30, 1681. This Mémoire is a statement of reasons or motifs why a slavery code is desired, and it contains a set of instructions for the preparation of an “ordonnance” in the Antilles. The King entrusted the task to Jean-Baptiste Patoulet and the Comte de Blénac, his two top officials in the Antilles…

…III. The Drafters’ Rough Notes

On December 3, 1681, de Blénac and Patoulet compiled what is essentially a set of notes comparing their views and seeking consensus on specific problems and topics relating to slavery. Two vertical columns divide each page. The right-hand column reads, “Advice of M. de Blénac on several issues in the Isles of America” and the left-hand column carries the heading “Response of Sieur Patoulet.” De Blénac took the initiative in the drafting, organizing his thoughts into nine articles. Article one deals with convening sessions of the Sovereign Councils, article two with matters of taxation, article three with the problem of the diminishing number of Europeans in the islands, article four with criminal and civil trials, procedures and punishments of slaves, article five with questions arising out of racial mixing (status of offspring, marriage, customs in Martinique and Guadeloupe, etc.), article six with the desirability of introducing feudal fiefs in the islands, article seven with establishing an inspectorate to monitor the treatment of slaves on each island, and article eight with police control (passes, runaways, etc.). Article nine contains a miscellany. De Blénac wrote these sections of the memorandum and then sent the papers on to Patoulet for his response or comments. Patoulet completed his “Response” three days later, and returned the entire document to de Blénac who then added a postscript stating that he would appear the following Monday at Patoulet’s office to work further on the drafting.

De Blénac’s procedure in this memorandum was to pose a general problem at the beginning of each paragraph within an article and then to list possible solutions by shorthand annotation. Patoulet’s responses either approved, disapproved, or supplemented these solutions. These agreements and disagreements formed the basis of their subsequent working session.

These notes allow glimpses into the formative stage of the redaction. They also illuminate aspects of the personalities of the authors and the sources at their disposition. The notes first reveal that the authors took quite seriously the obligation to collaborate with the three Sovereign Councils. De Blénac outlined a procedure in article one, whereby the Councils of all the islands were to meet every two months and to remain in continuous session where matters required it. The authors apparently interpreted their instructions as permitting some parts of the slave code to arise out of the deliberations of these assemblies. This was a sensible interpretation. Since the Intendant served as first president of these Councils with responsibility to take the votes, draw up and sign and promulgate the regulations, and since the Governor-General had full rights of audience and was expected to attend, these sessions would have been the most convenient means by which the authors might comply with their duty to seek consensus and collaboration. Yet this shows that they built the Code not merely out of previously established laws and customs, but from on-going legislative activity during the redaction period itself. Thus, to Patoulet and de Blénac “collaboration” did not exclude the passage of new legislation by the local representative institutions which they led. This was the antithesis of an “artificial” process of discovering rules by the light of Roman sources in faraway Paris.

Second, the notes give hints as to the personalities and motives of the codifiers. De Blénac appears the more humanitarian and racially tolerant of the two. He called for inspectors to be placed on each island to monitor the treatment of slaves, and he wanted to outlaw the use of cruel punishments like “la brimballe” and “le hamac.” Patoulet, however, did not find these practices “too rude” to be employed. Patoulet believed in strict separation of the races. He was scandalized by concubinage between Europeans and Africans, whereas de Blénac considered miscegenation a normal, even inevitable, phenomenon in the colonial context.

Though the drafters may have had somewhat differing outlooks, we should guard against the tendency to contuse their motives with our own views. Judging by these notes, some allegedly “protective” rules may have had a completely different motive than to protect slaves. For example, de Blénac and Patoulet reached the conclusion that the law should require owners to provide their slaves with minimum food and clothing allotments, and this rule passed into the Code Noir. They did not originally discuss this measure as a matter of decency or humanity toward slaves (as might be supposed), but as a means of halting the diminishing white population in the islands. The drafters’ notes argued that when slaves were not properly fed, they had a tendency to run away in search of food and steal from the petit blancs, causing these whites to sell their lands and leave the islands. Readers of the Code may search for higher motives behind the rations provision, but the Mémoire provides evidence that cold-eyed efficiency primed every other consideration.

Finally, the drafters’ notes contain important references to the existence of customs and usages about slavery which had already taken root in the Caribbean islands. These practices were a vital part of the dynamic by which indigenous slave law developed. De Blénac tells us, for example, that there was a usage on the isle of Martinique regarding the manumission of mulattoes: the men are freed automatically when they become twenty years old, the women when they reach fifteen years. The father of a mulatto child was obliged to pay a fine to the Church as a penalty, and if he claimed the child for himself from the owner of the mother he had to pay the owner a similar sum. On Guadeloupe and St. Christophe, however, de Blénac outlines the development of other laws and customs. De Blénac takes all of these rules and practices into account in stating his position to Patoulet. As mentioned earlier, the presence of these diverse legal elements and sources shows that the picture of French slave law drawn by Professor Watson is quite misleading. Professor Watson assumed that France would have turned inevitably to Roman sources because there was a legal vacuum existing with respect to local law and custom. This took no account, however, of the speed and diversity with which law and custom incubated on small isolated islands separated by great distances. None of this development could have been visible from Paris, nor would it have depended upon Rome…

Read the entire article here.

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Japanese Officer Slain

Posted in Articles, Asian Diaspora, Law, Media Archive, United States on 2013-02-25 04:10Z by Steven

Japanese Officer Slain

San Francisco Call
Volume 113, Number 107
1913-03-17
page 3, column 4
Source: California Digital Newspaper Collection

Los Angeles Half-caste Policeman Is Murdered in “Little Tokyo”

LOS ANGELES, March 16.—Tom Fushiyama White, a half-caste Japanese, who had been connected with the Los Angeles police force for half a dozen years, was found murdered early today in an alley in “Little Tokyo.” the Japanese quarter of the city. He had been struck on the head with a blackjack and there was a “bullet hole through his head.

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Mingling of Races Becoming Too Common

Posted in Articles, Law, Media Archive, United States on 2013-02-24 04:53Z by Steven

Mingling of Races Becoming Too Common

Stark County Democrat
1902-02-18 (Weekly Edition)
page 3, columns 4-5
Source: Library of Congress: Chronicling America

Staff Correspondent

Ohio Legislator Will Introduce a New Law Against Miscegenation–More Canal Legislation Is Proposed

Columbus. Feb. 17.—A bill which will prevent miscegenation will shortly be introduced in the legislature by Representative Denune, of Franklin county. It is claimed that marriages of this kind are entirely too prevalent in Ohio and as the present law does not restrict the practice, according to the view of the author, the propagation of a race of moral degenerates is threatened.

One per cent of the marriages in Ohio during the past year were between whites and blacks, most of the white persons being women.

In no other city in Ohio is the marriage of whites and blacks more common that in Columbus.

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The Color Question Like Banquo’s Ghost

Posted in Articles, Law, Louisiana, Media Archive, United States on 2013-02-24 00:32Z by Steven

The Color Question Like Banquo’s Ghost

The Indianapolis Recorder: A Weekly Newspaper Devoted the to Best Interest of the Negroes
Saturday, 1910-05-07
page 1, column 3
Source: Indiana University-Purdue University, Indianapolis: University Library: Program of Digital Scholarship

There Is Virtue In Being a Full Blood Negro—Louisiana Supreme Court Makes Important Ruling.

According to a decision handed down by the Louisiana supreme court on Monday, April 25, when the law says “Negroes” it designates people of full African descent and does not include “persons of color”—octoroons, quadroons or even mulattoes. In holding thus the court puts an end to several prosecutions of men accused of violating state laws, passed after a long educational campaign, for the purpose of preventing miscegenation and the consequent deterioration of the white race. The decision will therefore be regarded as of great importance as well as of great interest not only in Louisiana, but all through the south, in every part of which the disastrous results of racial mingling, in and out of marriage, have of late been the subject of much and serious attention.

The decision of the court is, of course, a practical repeal or making void of such legislation as has already been passed with a view to keeping the white and  black  races apart, and equally, of course. It is in direct contradiction of the long established theory that any recognizable fraction of Negro blood fixes the status of the person in whose veins it flows. This was the invariable rule in slavery days, and it has survived emancipation in the drawing of social lines no less in the north than in the south. It is indeed a little humiliating to Caucasian pride that an eighth, a quarter or a half of black blood should count for more than a half, three-quarters or seven-eighths of white blood.

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John C. Minkins on Race Purity

Posted in Articles, Law, Media Archive, Politics/Public Policy, Social Science, United States on 2013-02-23 23:00Z by Steven

John C. Minkins on Race Purity

The Indianapolis Recorder: A Weekly Newspaper Devoted the to Best Interest of the Negroes
Saturday, 1910-05-07
page 1, columns 4-5
Source: Indiana University-Purdue University, Indianapolis: University Library: Program of Digital Scholarship

No Objection to Prohibitive Laws Against Miscegenation.

EDUCATION IS THE REMEDY.

Mixed Bloods Praised For Their Loyalty to tho Race—Eighty-one Percent of All the Mixed Blood Negroes In the Country Are In the South. Where There Is No Intermarriage.

A large and representative audience was present at the recent meeting of the Boston Literary and Historical association to hear an address by John C. Minkins, editor of the Providence (R. I.) Evening News, on miscegenation and the fight for race purity.  His address was enthusiastically received. William Monroe Trotter, the president, introduced the speaker. A piano solo was contributed by Miss Ester Francis, a contralto solo by Miss Mae Smith and a tenor solo by Mr. Robert M. Johnson, each being encored. A resultion was unanimously adopted against the report of the Brownsville board, thanking Senator Foraker, Attorney Dagget and N. B. Marshal for their good work in behalf of the discharged soldiers. The resolution calls for a bill in congress to reinstate the discharged soldiers.

Mr. Minkins discussed “Miscegenation and the fight for Race Purity,” treating the subject broadly and answering especially magazine articles that have appeared recently on the subject. He declared whtat the American Negro was the victim, not the enemy of the white man. He declared that the “Negro problem,” the problem of miscegenation, was the white man’s problem, the Negro being the clay and the nation the potter; that as the hybridization process began under slaver and continued for 240 years it was not difficult to place the blame for the original attacks upon racial purity, as in 1790 there were hardly any mulattoes, quadroons and octoroons, white in 1890, 100 years later, the black had increased but 400 per cent and the mixed Negroes so much so that is was impossible to approximate it mathematically. After pointing out that hardly two southern states prohibit white intermarriage with a person who has some Negro blood, he said: “Few indeed of the states flatly prohibit intermarriage of the races, as they would do were their legislators genuinely in earnest in their abhorrence of Negro blood. If they had the courage of their convictions they would bar one drop of Negro blood. They leave us instead to infer that they believe there is a point at which intermixture of Negro and white blood is beneficial or they have other, to them, good an sufficient reasons for compromising and deciding to lower the legal bar sinister, such, for instance, as South Carolina had when she desired to protect some of the leading white families who were known to be ‘tainted.'”

He said the Negro need have no objection to absolutely prohibitive laws against miscegenation, as they would give him a far wider range of matrimonial choice than any other race on earth, since he could have all the thirty-second degree Negroes and more than 1,100,000 others, ranging from half white to thirty-one thirty-seconds white, from which to choose, adding, “The range is wide enough and attractive enough to satisfy the most adventurous and exacting among us.” He was not disposed to be disturbed by legitimate miscegenation and its ultimate effects, as they would take care of themselves as they had done ever since the present European Caucasian races sprang from the Negro’s ancestors, the Euro-Africans.

He asserted emphatically that the mulatto had increased faster than either white or black from 1850 to 1890. the increase being 92 per cent, the black increase 65 per cent and the white Increase, excluding about 13,000,000 immigrants, only 52 per cent. He accounted for the larger proportionate number of mulattoes In the north by immigration of mulattoes from the south, by intermarriage and by the counting of many octoroons at the south as white and asserted that more than 81 per cent of all the mixed Negroes in the country are in the south, where there is no intermarriage, the proportion to the whites in South Carolina. Louisiana and Mississippi being larger than it bears to the Negro population of those states. He praised the bulk of the mixed bloods for showing unalterable loyalty to their race and emphatically denied that the Negro was responsible for the “great black plague,” asserting that it was and always had been “a concomitant of the white man’s civilization” while he charged the white man also with responsibility for the “white slave” traffic.

Referring more particularly to Louisiana, where the anti-miscegenation crusade is under way, he said the intelligent Negroes of that state heartily endorsed the movement and accounted for the prevalence of the practice by so much ignorance among both white and black, asserting that Louisiana Negroes and Louisiana whites were the most illiterate In the country, Louisiana having twenty-one out of the thirty counties in the country in which more than two-thirds of all the Negroes were illiterate. He added that education decreases the desire for amalgamation. He deplored the fact that white men, who make the laws, had erected every conceivable defense around the white woman, but up to the time of the Louisiana crusade had interposed no barrier at all around the black woman, simply stipulating that there should be no intermarriage. Thousands of Negroes had been lynched for crimes, attempted and alleged, against white women, but no white man had ever been lynched for a like crime against a Negro woman.

In conclusion he denied that the Negro woman was immoral and insisted that the concurrent testimony of unprejudiced investigators proved “the most marvelous advancement in history” had been made by the Negro “along every conceivable line.” He advocated better protection through education and the unwritten law by both Negroes and whites for the Negro woman and the Negro home as the most effective means of making the Negro safer and the white woman also, as “the well being of the white race in this country is inseparably bound up with that of its fellow citizens in black,” adding that “the sooner this is realized tbe better it will be for both races, even though they are destined to live, as some people believe, as united as the hand, as separate as the fingers.”

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The Invisible Line: Three American Families and the Secret Journey from Black to White [Review]

Posted in Articles, Book/Video Reviews, History, Law, Media Archive, My Articles/Point of View/Activities, Passing, Slavery, United States on 2013-02-13 15:30Z by Steven

Daniel J. Sharfstein. The Invisible Line: Three American Families and the Secret Journey from Black to White. New York: Penguin Press, 2011. 415 pp. Hardcover ISBN: 9781594202827.

Steven F. Riley
2011-02-28

“This is the decade of Tiger Woods and Barack Obama, where we talked about race combinations,” Robert Groves, director of the federal agency, said about forthcoming 2010 Census data in an interview on Bloomberg Television’s “Political Capital with Al Hunt”. “I can’t wait to see the pattern of responses on multiple races. That’ll be a neat indicator to watch.”

The Toronto Star
December 13, 2010

While it is tempting to be as excited as Mr. Groves is in waiting for the census results of the racial makeup of the United States, I would suggest that the so-called “race combinations” that he speaks of have been occurring for quite some time. Much has been written in recent years about the “changing face” of America that foretells that we will become a “mixed-race” country, or as Marcia A. Dawkins states, a “Miscege-Nation.”  Yet, this is not wholly true, for we are not becoming a multiracial society, we already are a multiracial society.  We have been multiracial not for years, or even decades, but for centuries.

So while many may proclaim that an increasing number of self-identified mixed-race individuals will usher in a new era of racial reconciliation, we are fortunate to benefit from the excellent scholarship of Daniel J. Sharfstein, Associate Professor of Law at Vanderbilt University, who points out to us that racial mixture is as old as the nation and it has not—in and by itself—led to racial reconciliation.  In fact, his portrayal of three families over a span of three centuries in his new book The Invisible Line: Three American Families and the Secret Journey from Black to White, shows that under the specter of white supremacy, racial mixture was—and may still be—a way-station on the road to a white racial identity.  These racial journeys occurred so frequently in American history they should be considered one of  the great mass movements of people such as the settlement of North America, the westward expansion, and immigration. Furthermore, these journeys from black to white did not necessarily involve a change of venue, but could occur in the same community over a generation or more.

Unlike the stories of the Hemmings and Hairstons that explore the white roots of black families, The Invisible Line is an important work that explores the “black” roots of white familes. Though “race” as we know it today is a social—not biological—construct,  Sharfstein reminds us that it was and still is a very salient social construct.  In fact, for the families portrayed in the book, “race” becomes a form of wealth/property, obtained (by “passing” if necessary) and inherited by future generations.  In The Invisible Line, Sharfstein avoids casting a pejorative gaze upon these “passers” and their occasional accusers and instead casts blame squarely on the shoulders white supremacy.  Early in the introduction, Sharfstein points out that…

African Americans began to migrate from black to white as soon as slaves arrived on American shores.  In seventeenth-century Virginia, social distinctions such as class and race were fluid, but the consequences of being black or white were enormous.  It often meant the difference between slavery and freedom, poverty and prosperity, persecution and power.  Even so, dozens of European women had children by African men, and together they established the first free black communities in the colonies.  With every incentive to become white—it would give them better land and jobs, lower taxes, and less risk of being enslaved—many free blacks assimilated into white communities over time…

After researching hundreds of families, court cases, government records, histories, scholarly works, newspaper accounts, memoirs and family papers, Sharfstein chose to focus on three families: the Gibsons, the Spencers and the Walls.  Each of these families left the bondage of slavery and took different trajectories on the path towards a white identity.

The Gibsons

The Gibson story begins in 1672 in colonial Virginia when a free woman named Elizabeth Chavis successfully sued for the freedom of a boy of color named Gibson Gibson… who was also her son. In a reversal of English law where the status of the child followed that of the father, the colonies in a bid to codify slavery enacted laws that set the status of the child to follow the mother, or as the saying went, “birth follows the belly.” Contrary to popular belief, the laws did little to restrict interracial unions—especially between white men and black women—but rather, channeled these unions for the benefit of the institution of slavery. For Gibby Gibson and his brother Hubbard, harsh laws against people of color encouraged them to marry whites. Sharfstein states:

Whites in the family gave their spouses and children stronger claims to freedom and had immediate economic advantages—while black women were subject to heavy taxes, white women were not.  Increasingly harsh laws did not separate Africans and Europeans.  To the contrary, they spurred some people of African descent to try to escape their classification.

The Gibsons took what I shall describe as a fast-track to whiteness.  After Gibby Gibson’s freedom he and his brother spent the next 50 years amassing land and, yes… slaves.  After moving to South Carolina in the 1730s as planters they were granted hundreds of acres. By the time of the Civil War they were part of the Southern aristocracy.  Two brothers, Randall Lee and Hart Gibson, again took the spotlight and became standout students at Yale University and later ,officers in the Confederate Army.  Randall was promoted to brigadier general in 1864.  Despite the Confederate defeat at the end of the war, Randall would be a successful New Orleans lawyer, a founder of Tulane University, and would eventually be elected to represent Louisiana for four terms in the House of Representatives and for nine years in the U.S. Senate.

Randall Gibson’s white identity went unchallenged until January 27, 1877, when James Madison Wells wrote in an article that, “This colored Democratic Representative seems to claim a right to assail the white race because he feels boastingly proud of the commingling of the African with Caucasian blood in his veins.”  This accusation was grounds for libel, but Gibson did not sue Wells.  He did not need to.  As Sharfstein deftly points out frequently throughout the Invisible Line, white communities were very much aware of “mixture in their midst,” yet chose to believe these individuals were white.  Even if a person believed that his or her whiteness was secure, accusing ones neighbor of being black could have unintended consequences, especially if your children had offspring with the neighbor.  “Race” became a socially agreed upon arrangement.   Thus, as Sharfstein wrote in a 2007 article:

“…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.”

Yet this contradiction was not the same of acceptance, especially in Louisiana, where Sharfstein says…

“the existence of a large, traditionally free mixed-race class meant that whites had long competed with people of color for jobs, land, and status…  …On the streets of New Orleans, it was famously difficult to distinguish one race from the other at a glance—many whites were dark, and many blacks were light.  Every day people witnessed the color line bending and breaking.  The result was that whites believed all the more deeply in their racial supremacy.  They organized their entire political life around it…. …Believing in racial difference—enough to kill for it—was what kept whites separate from blacks.  For white Louisianans, knowing that blacks could look like them did not discount the importance of blood purity.  Rather, they were as likely as anyone in the South to consider a person with traceable African ancestry, no matter how remote, to be black.  The porous nature of the color line required eternal vigilance.”

The Spencers

The Spencers took an inconspicuous path towards a white identity.  George Freeman, possibly the son of his owner Joseph Spencer, was emancipated at twenty-four years of age around 1814 in Clay County, Kentucky.  Through hard work and a large family, Freeman was able to raise a profitable farm, enough so that he could provide loans to other farmers.  By 1840, Freeman’s wife had died, but by then eleven people lived with him including his grown daughters with children of their own.  In 1841, the  Freeman farm would make room for another resident; a twenty-five year-old pioneer white woman from South Carolina named Clarissa “Clarsy” Centers, who was pregnant with his child.  Freeman and Centers were not married, and could not if they had wanted to because of Kentucky’s anti-miscegenation laws.  Sharfstein points out:

“Freeman and Centers were not the only ones in Clay County breaching the color line.  Several free black women were living with white men.  It was less common, however for black men to have families with white women, and their relationships were perceived as a far greater threat to the social and racial order.  After all, the mixed-race children of black women, more often than not, [became] pieces of property, markers of wealth, for their owners.  But the children of slave men and white women were free under Kentucky law, and they blurred the physical distinctions that made racial status conceivable and enforceable.  As a result, all such relationships were subversive, even those involving free men.

Moreover, the control that white men had over their families, something that approached ownership under the law, helped maintain the idea that all white men were equal citizens in a country increasingly stratified by wealth…  …That control was undermined when white women had children with black men…

At the same time white communities did not always respond to these relationships with reflexive deadly violence.  They were capable of tolerating difference or pretending it did not exist.  Across the South in the early decades of the nineteenth century, black men and white women were forming families and living in peace.”

In 1845, George Freeman and Clarsy Centers’ daughter Malinda was pregnant by Jordan Spencer, Freeman’s son or brother.  After three years and three children, Jordan and Malinda’s family was part of a clan of twenty people within three generations living on fifty acres on Freeman’s farm; that was to small to sustain them all.

By 1855, Freeman was dead, forced to mortgage his farm to fight a fornication charge because he could not marry Clarsy Centers. The family of Jordan and Malinda was forced to move 100 miles away within rural Johnson County, Kentucky.  When they got there they called themselves Jordan and Malinda Spencer and their new neighbors welcomed them into their community… and called them white. As Sharfstein states:

“In Johnson County and elsewhere, being white did not require exclusively European ancestry.  Many whites did not hesitate to claim Native American decent.  While Melungeons in Tennessee often lived apart and married among themselves, the Collins and Ratliff families in Johnson County were considerably less isolated.  Half of the worshippers at the Rockhouse Methodist meeting had white faces, and light and dark families were neighbors along the nearby creeks.  Many of the families themselves were mixed, like Jordan and Malinda Spencer’s.  Their community offered them a path to assimilation.  Although the Spencers were listed as “mulatto” in the 1860 census, dozens of Collins and Ratliff men and women were, at a glance, regarded as white.  Jordan Spencer may have been dark, but there was such a thing as a dark white man.”

The Walls

For the Wall family, the path to becoming white was a reluctant and painful one.  Orindatus Simon Bolivar (O.S.B.) Wall and his siblings were freed by their owner (and father) in the 1830s and 1840s and sent from their plantation in North Carolina to be raised by radical Quakers in Ohio.  O.S.B. Wall eventually ended up in Oberlin, Ohio.  With the passage of the Fugitive Slave Act of 1850, slave catchers could now demand assistance from federal and local officials in any state (including free-states) in locating and apprehending runaway slaves.  Sharfstein notes that,

“The act also permitted slave-owners to kidnap people and force them into federal court.  After a short hearing, a commissioner would determine the status of the person in custody.  Commissioners were paid ten dollars upon ruling that a person was a slave, but only five dollars if they determined that he or she was free.”

Thus even free and freed blacks lived in constant fear that they and their families could be kidnapped and enslaved.  Fortunately, there was no place more hostile to slave catchers than Oberlin.  A generation earlier, New England Puritans had built the college and the town in the northern Ohio forest, dedicating themselves to bringing “our perishing world… under the entire influence of the blessed gospel of peace.”  Oberlin Collegiate Institute, founded in 1832 was a school that educated both sexes and within three years took the then-radical step of admitting students “irrespective of color.” Oberlin did not just give blacks the opportunity to do business on equal terms with whites—it offered blacks the unheard-of possibility of real political power.   In 1857 the town voted John Mercer Langston to be its clerk and appointed him a manager of the public schools.  He was the first black elected official in the United States.

After the end of the Civil War, Wall was detached to South Carolina to the Bureau of Refugees, Freedman and Abandoned Lands, a new federal agency devoted to integrating former slaves into civil society, (otherwise known as the Freedman’s Bureau.)  His hope was “to do justice to freedmen” while “do[ing] no injustice to white persons.”  It would appear that his hopes would become a reality in the fall of 1865 when the Bureau had begun redistributing thousands of acres of confiscated property to freed-people, but President Andrew Johnson ordered almost all the land returned to its previous owners.  By the fall of 1865 former slaves found themselves no better than indentured servants.  As the hope of Reconstruction began to fade, he realized that to serve the righteous cause, he would need more than a title and a responsibility, more than the sanction of law.  He needed power. Wall would move to Washington D.C.

By 1877 Federal troops had abandoned the South, and as Sharfstein writes:

“Democrats had carte blanche to ‘encourage violence and crime, elevate to office the men whose hands are reddest with innocent blood; force the Negroes out of Southern politics by the shotgun and the bulldozer’s whip; cheat them out of the elective franchise; suppress the Republican vote; kill off their white Republican leaders and keep the South solid.  Countless thousands of Negroes in the South lived in conditions approximating slavery, shackled by sharecropping contracts, arrested on trumped-up charges, and sold as convict labor.  Every few days a Negro was lynched: burned, shot, castrated or hacked to pieces.”

Summary

The Invisible Line reveals that the trajectory of history is never a straight line.  The promise of the Reconstruction became the repression of Jim Crow. The Democrats of the past that sought defend slavery before and during the Civil War and deny basic freedoms to blacks afterwards are now the Republicans of the present who deny these events have any impact on the lives of black Americans today. Up became down, and black became white.

Perhaps the most emphatic paragraph in the book is on page 236, where Sharfstein describes the everyday pain in the lives of black Americans.

“The harder whites made it for blacks to earn a living, educate their children, and just make it through a single day without threat or insult, the greater the incentives grew for light-skinned blacks to leave their communities and establish themselves as white.  If anything, the drumbeat of racial purity, the insistence that any African ancestry—a single drop of blood—tainted a person’s very existence, accelerated the migration to new identities and lives.  The difference between white and black seemed obvious, an iron-clad rule, a biological fact.  But the Walls knew that blacks could be as good as whites and as bad, as smart and as stupid.  Blacks had just as much claim to schooling and jobs and love and family, to common courtesies each day.  The Walls knew that blacks could be every bit the equal to whites—and that their skins could be equally light.  As the United States veered from slavery to Jim Crow, O.S.B. Wall’s children did not stand up and fight. They faded away.”

This paragraph for me, offers a clear rationale why individuals chose to identify as white.  More importantly though, Sharfstein like all good historians, shows us how events in the past can be repeated in the present and in the future.  For the Spencers, becoming white meant fitting in.  For the Gibsons, becoming white allowed them to amass great wealth, to lose it (after the Civil War), and reclaim it. O.S.B. Wall lived his entire life working towards the goal that people of African descent could be free, prosperous, American and black.  For the Wall children, becoming white (even at the loss of financial status) was an escape from the indignities of being black.  The chains of oppression do not always result in resistance.  Sometimes the result is denial, surrender and assimilation.  Furthermore, Sharfstein, without saying so, reasserts the importance of influence of law and power upon the lives of his subjects.  Though it is now popular for contempary novelists and cursory historians to recount, reframe, and reimagine the stories of the individual lives without acknowledging the legal and social forces shaping those lives, this is simply unacceptable.  Fortunately, the works of Daniel Sharfstein and the late Peggy Pascoe remind us, as I like to put it, not to allow the history of experiences to obscure the experience of history.

Though The Invisible Line is about past racial migrations, the book says little if anything about present-day racial migrations.  Persistent economic and social disparity among racialized groups in the United States may lead to more Gibsons, Spencers and Walls in the future.  Just over a half-century ago, in 1947, N.A.A.C.P. Secretary Walter White said:

“Every year approximately 12,000 white-skinned Negroes disappear—people whose absence cannot be explained by death or emigration. Nearly every one of the 14 million discernible Negroes in the United States knows at least one member of his race who is ‘passing’—the magic word which means that some Negroes can get by as whites…  Often these emigrants achieve success in business, the professions, the arts and sciences. Many of them have married white people…  Sometimes they tell their husbands or wives of their Negro blood, sometimes not…”

Thus according to sociologist George A. Yancey, white Americans—despite demographic projections—will not lose their numerical majority status in 40 years or so.  For scholars like Yancey, Sharfstein’s secret journey to whiteness, may become a public parade.  Despite the increasing numbers and acceptance of interracial relationships and mixed-race births, intermarriage among non-blacks with whites far outpaces intermarriage between blacks and whites.  The future for Yancey and others is not a white/non-white divide, but rather a black/non-black divide.

With the increasing enactment of harsh anti-immigration legislation, it is indeed conceivable that many Asians and Latinos—particularly those with mixed European ancestry—may opt for a white identity through intermarriage with whites as a balm against increased anti-immigrant sentiment.  As sociologists Jennifer Lee and Frank D. Bean point out, “Asian and Latinos may be next in line to be white, with multiracial Asian whites and Latino whites at the head of the queue.”  If the notion that Asians and Latinos can become white seems implausible, sociologist Charles A. Gallagher points out in his 2010 essay “In-between racial status, mobility, and the promise of assimilation: Irish, Italians yesterday, Latinos and Asians today,”  “If you were Italian or Irish in the mid- to late- nineteenth century it was likely that, as a matter of common understanding and perception, you were on the ‘margins of whiteness.'”

While The Invisible Line is a remarkable book that should be read by anyone interested in the complicated racial history of the United States, it is not a book that trumpets a so-called “post-racial” era.   Sharfstein does an excellent job shattering the notion of racial difference and shows us that the African American experience is integral to the American experience as a whole.  Yet in doing so, he does not—and perhaps he should not—suggest that not only is the notion of  “difference” a fallacy, but the notion of “race” is too.  After all, shouldn’t the Gibsons, Spencers, Walls and their descendents transcend race at this point in time?  Race—or as Rainier Spencer suggests—the belief in race, has been, and still is such a potent force in American life, it may take three more centuries to dispense with it. For all of the current discourses on a utopian future filled with mixed or blended identities, these identities are still defined within same outdated and hierarchical social topology of the past 400 years.  Thus the consequences of the memberships within this multi-tiered topology still has the life altering outcomes—though not as extreme—as in the seventeenth century Virginia that Sharfstein describes.  Without a drastic altering or the elimination of this topology, individuals and families who can, will continue to make the journey from a lower tiered racialized status to a higher one and heap misery and scorn upon those who cannot.  In the end, Daniel J. Sharfstein’s Invisible Line, may not only be a window to the past, but also a glance at the future.

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François Hollande’s misguided move: taking ‘race’ out of the constitution

Posted in Articles, Europe, Law, Media Archive, Politics/Public Policy, Social Science on 2013-02-12 18:31Z by Steven

François Hollande’s misguided move: taking ‘race’ out of the constitution

The Guardian
2013-02-12

Alana Lentin, Senior Lecturer in Cultural and Social Analysis
University of Western Sydney

Valérie Amiraux, Professor of Sociology
University of Montreal

Not talking about races does not lead naturally to the demise of ‘race thinking’ – it just obscures the persistent inequalities

It’s become something of a commonplace to speak of the US as having entered a post-racial age. Both the right and the left have heralded the end of race, either triumphantly or as a way of dismissing talk of racism as so much political correctness. However, in Europe, the debate about race – post- or otherwise – is virtually non-existent compared with North America, where race never really goes away as a topic no matter how much people wish it would. Which is why it is surprising that the issue has become a significant part of François Hollande’s term in office. During the French presidential elections last spring, the Socialist candidate pledged to remove the word “race” from the French constitution. Currently, it states that “France shall be an indivisible, secular, democratic and social republic. It guarantees equality before the law for all citizens without distinction of origin, race or religion.” He is promising to effect that change before the summer…

…If ending racism were as simple as banning the one word, racism would be a thing of the past in Europe where, following the Holocaust, “race” was rightly declared a scientifically bogus term and officially dismissed as adding nothing to the understanding of human difference. However, racism did not simply melt away, as the French anthropologist Claude Lévi-Strauss, whose participation in the UNESCO anti-racist project which led the charge against race from the early 1950s, admitted later…

Read the entire article here.

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Recent Decisions: Constitutional Law: Miscegenation Laws

Posted in Articles, Law, Media Archive, United States on 2013-01-31 01:26Z by Steven

Recent Decisions: Constitutional Law: Miscegenation Laws

Marquette Law Review
Volume 48, Issue 4 (Spring 1965)
pages 616-620

C. Michael Conter

Constitutional Law: Miscegenation Laws: The defendants were convicted under section 798.05 of the Florida statutes, which prohibited nighttime cohabitation of the same room by a Negro and a white of different sexes.

On appeal, their conviction was affirmed by the Florida Supreme Court in McLaughlin v. Florida because it felt bound by the decision of the United States Supreme Court in Pace v. Alabama and the decisions of many state courts upholding similar statutes. Both Pace and McLaughlin involve nearly corresponding statutory schemes. The Alabama statutes applicable in the Pace decision not only contained a statute which prohibited fornication by persons of different races, but also a general non-racial fornication statute. Similarly, the Florida statutes, aside from prohibiting interracial cohabitation, held adultery and fornication by people of the same race a crime.

Due to the established precedent and the similarities of the two situations, the Florida court adopted the Pace reasoning that the statute, although it contained racial classifications, was not discriminatory because both the Negro and the white received the same punishment. Secondly, the court viewed the offense committed by persons of different racial descent as an entirely distinct offense from one committed by persons of the same race, and one to which the general sections of the statutes are applicable. Therefore, the Florida court found that both the statutes are necessary in order to enforce the legislative purposes involved…

..The validity of the antimiscegenation law itself could also be questioned under the fourteenth amendment by requiring the showing of a reasonable legislative purpose for its enactment. There is serious doubt that any valid reason could be shown for this type of statute. In fact, the three basic arguments which are often advanced to support these statutes; namely, that the children of these marriages would be inferior, that social tensions and domestic problems are lessened, and that psychological hardships to the offspring are avoided, have been discredited. Therefore the application of a reasonable legislative purpose test would most likely lead to a finding of unconstitutionality under the equal protection clause of the fourteenth amendment, especially since the usual presumption of a valid legislative purpose is not applied to cases dealing with racial classifications.

However, a better approach might be to recognize that the right of the individual to marry is a fundamental right, protected under the clear and present danger test. Surely it is a right which can be considered as important to the individual as is his right to own property or his freedom of speech. The United States Supreme Court has acknowledged that marriage and procreation are fundamental to the very existence and survival of the race.

This test has been applied to the right of the individual to own property, mentioned in the first part of the fourteenth amendment. Another right mentioned in this part of the amendment is the right to liberty, to which the clear and present danger test has also been applied. The right to marry has been recognized as being embodied in the concept of liberty under the fourteenth amendment…

Read the entire article here.

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Harry L. Carrico, Virginia Supreme Court justice, dies at 96

Posted in Articles, Barack Obama, Law, Media Archive, United States, Virginia on 2013-01-29 19:33Z by Steven

Harry L. Carrico, Virginia Supreme Court justice, dies at 96

The Washington Post
2013-01-28

Martin Weil

Harry L. Carrico, who sat for 42 years on the Virginia Supreme Court and wrote a decision on interracial marriage that was overruled by the U.S. Supreme Court in what was regarded as a civil rights milestone, died Sunday in Richmond. He was 96.

A family spokeswoman said his health had declined after a fall while on a cruise in December. He was a Richmond resident and died at the Virginia Commonwealth University medical center.

His tenure as a justice was among the longest in the history of the state. Even after he formally retired, he continued to hear cases as a senior judge and had been on the bench as recently as December…

…Justice Carrico’s best known opinion came in 1966. He wrote the ruling by which the Virginia Supreme Court unanimously upheld the state law against interracial marriage. The case became known as Loving v. Virginia and was named for the mixed-race couple, Richard and Mildred Jeter Loving.

The Lovings had married in Washington in June 1958 but soon returned to their native Caroline County, a rural area between Richmond and Fredericksburg. At the time, about two dozen states, including Virginia, prohibited interracial marriage.

The Caroline County sheriff burst into the Lovings’ home that July, roused the couple from their bed and told them the District’s marriage certificate was invalid in Virginia. The Lovings were subsequently charged and prosecuted…

Read the entire obituary here.

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