Mixed Race Studies

Why Obama is Black: Language, Law and Structures of Power

Columbia Journal of Race and Law
Volume 1, Issue 3
pages 468-481

SpearIt, Assistant Professor of Law
Saint Louis University

[W]ords are our tools, and, as a minimum we should use clean tools: we should know what we mean and what we do not, and we must forearm ourselves against the traps that language sets us. –J. L. Austin

When he filled out the race section of the 2010 U.S. Census survey, President Barack Obama checked the “Black, African Am., or Negro” box despite the fact that Obama is of both European-American and African ancestry. This simple fact raises a number of complicated questions and challenges the idea that race, or more properly, racism, is a thing of the past or “post” as used in “post-racial.” “Post-racial” is rhetoric for an ideology that promotes “a larger national and legal consensus that ignores the bulk of racial disparities, inequities, and imbalances in society, and pursues race-neutral remedies as a fundamental, a priori value.” Ironically, the ideology garners support from Obama’s presidential election in 2008, which launched widespread reports that the country elected its first “black” president. For many, the election provided concrete proof of improved race relations. Such believers epitomized Obama’s election as fulfilling the American promise; for others, however, he symbolized a formidable challenge to the “post-racial” posture. Hence, although the term “post” intends to point to the past, it is really about the future, a destination that has yet to be achieved. It is a way of wishing away the present and supplanting it with an idealized future. Under such pretentions, “post-racial” reflects a desire to identify with something more sublime than the status quo.

Framing Obama as a poster for “post-racial” suffers from various defects. The most fundamental is the assumption that he is “black” in the first place. Although the decision that the president indeed is “black” is practically unanimous, such a conclusion neglects his “white” heritage. President Obama could have checked black and white on the census survey, but he passed on the option. This decision raises unsettling questions for post-racial ideologues. Rather than signal arrival into the post-racial age, however, his choice on the survey could be read as a denial of whiteness or an unfair response given the survey’s purposes, which imply an obligation to represent oneself based on parental lineage as opposed to racial ideology. But what if Obama’s logic led him to identify as “white”? For many this proposition would not ring true. Yet Obama’s self-identification as “black” raises no protest. Why the double standard? Of course the question itself is rhetorical—because a rigorous baseline logic is already at play.

Although Obama’s story is not the only forceful challenge to the “post racial” concept, it affords a solid frame to consider the merits and myths. A sober read of Tea Party rhetoric and the Henry Louis Gates episode indicate that talk of “post-racial” is premature, a point further exclaimed by the resignation of Shirley Sherrod. Far from relegating racism to the back burner, events since Obama’s election have stoked racial flames and revealed that race still matters. His presidential victory might have ignited widespread faith in a “post-racial” era, but a more pessimistic read would render it a backlash from the country’s collective guilt over the Bush regime that moved voters to “reject the party of an unpopular president.” The election may have helped herald in an era of wishful thinking called “post-racial,” yet its logic, paradoxically enough, was governed by the rule of hypodescent, which can drown an oceanic man in the tide of one drop.

What follows is a critique of the “post-racial” ideology. It begins with “Language and Law,” which provides a theoretical backdrop to map how law influences common language, and more importantly, how concepts rooted in racism maintain in the American lexicon through the force of law. The next section, “White by Law,” analyzes the legal and social constructions of whiteness, a historical survey that arrives at constructions in the American context. Building from the previous parts, “Structures of Racism,” outlines how racial language and ideals of white superiority work in tandem to produce structural racism, that is, racism beyond individual bigotry. Today’s racism is not simply the aggregate of individual interactions; rather, the discrimination resides in the institutions and polity of American society, particularly in the language of law. The last section, “Beyond Binaries and Reinscribed Racism,” is a normative venture that offers ideas for stemming the force of these linguistic and conceptual burdens. Centuries of racial sedimentation have made some aspects of racism invisible to the eye, yet an analysis of the post-racial concept shows that debates on race and color are fundamentally flawed. This Essay exposes the concept as a type of wishful thinking, and more critically, how the law prevents this wish from being fulfilled.

Read the entire article here.

Signifying on Passing: (Post) Post-Racialism, (Post) Post-Modernism, and (Post) Post-Marxism

Columbia Journal of Race and Law
Volume 1, Issue 3 (July 2012)
pages 482-489

Christian B. Sundquist, Associate Professor of Law
Albany Law School

The social and legal relevance of racial passing appears to be fading as we ostensibly enter a color-blind, post-race era. During the “Age of Obama,” the notion of passing in our multi-racial society seems to many to be antiquated and unnecessary. As the nation has moved beyond state-sanctioned racial discrimination, many believe that the country also has moved beyond the need for a legal dialogue on racial passing and ambiguity. This “retreat from race,” exemplified in part by the apparent declining significance of racial passing, proclaims that the state no longer should consider race when interpreting the law or incorporating democratic values of equality and opportunity. This Essay, however, argues that the continued phenomenon of racial passing can be utilized as a conceptual vehicle to destabilize and de-legitimatize the post-racial agenda.

The continuing relevance of racial passing also underscores the significance of the lessons of Marxism. After all, the concept of “race,” and therefore the existence of racial passing, traces its lineage to the capitalist condition of racialized class distinctions and cultural hegemony (e.g., the white cultural norm). The post-racial agenda seeks to mask the commodification of persons, obscuring the salience of race and discrimination. Thus, the cry for a post-racial America is the latest attempt to lure society into a false sense of class and racial transformation. The continued presence of racial passing may lift the veil from our eyes to the conditions of racial and class exploitation that govern everyday life.

This Essay will proceed in three parts. The first section argues that the particular weltanschauung of post-racialism has obfuscated the continuing relevance of racial difference and conflict. The post-racial model seeks to skew the proletariat perception of social reality by imposing a false-consciousness that conceals existing relations of racial subordination and exploitation. In so doing, post-racialism strives to reject its theoretical Other: Marxism. However, the failings of post-racialism as a worldview are traced directly to its inability to refute the continuing salience of class and racial conflict. The second part of the Essay explores the similarities and differences between the post-racial model and the classic liberal colorblind model. The third part of the Essay concludes that the continuing relevance of racial passing should be utilized to reveal and disrupt the post-racial agenda…

Read the entire article here.

The Meaning of Race in the DNA Era: Science, History and the Law

The Temple Journal of Science, Technology & Environmental Law
Volume 27, Number 2 (Fall 2008)
pages 231-265

Christian B. Sundquist, Associate Professor of Law
Albany Law School

INTRODUCTION

What is “race”? Does the concept of race represent a natural and inevitable understanding of human difference? Does race have any biological meaning, or is it merely an artificial construct employed by society and political bodies? If race is the former, then how can modern society avoid a rebirth of racial eugenics? And yet if race is an arbitrary tool of social organization without genetic content, then how should we interpret purported forensic racial determinations based on DNA analyses?

Race is biology. Race is ancestry. Race is genetic.

The meaning of “race” is constantly questioned yet rarely understood. Early theories of race assigned social, intellectual, and moral values to perceived differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the eighteenth and nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-“white” persons.

Part I of this article thus examines the provenance of the “race” concept. The categorization of humans into “racial” groups was neither natural nor inevitable. The initial separation of humans into “racial” categories was understood to simply reflect inherent biological differences between groups of people. These differences supposedly accounted for natural variances in intelligence, morality, and physical and sexual prowess. As such, these pseudo-biological differences were used to justify and explain power differentials between “races” of people.

Race is constructed. Race is biologically meaningless. Race is power.

The pseudo-scientific understandings of race supplied by nineteenth-century geneticists and biologists were applied by Nazi Germany in a manner that shocked the world. As a result, the concept of race following World War II increasingly was understood as a socio-political construction with no biological meaning. Modern sociological theories thus uniformly understand race as a social grouping of persons necessary to preserve unbalanced relationships of power. Part II of this article examines this post-war refutation of nineteenth-century “race science,” as well as the core assumptions underlying modern racial theory.

Race is phenotype. Race is color. Race is language. Race is citizenship. Race is class. Race is culture. Race is assimilation. Race is law.

Reducing race to a single critical “essence” is an impossible endeavor. While one’s phenotype and color may contribute to racial categorization, so can one’s national origin, social class and language. As a result, race has a complex social meaning that depends in part on the prevailing “common understanding and meaning” of society. Not-so-antiquated notions of race once deemed Italian, Irish and Southern European immigrants and their descendants as “non-white” and cursed with inferior genetic stock. These groups eventually obtained “Whiteness” based on changing social understandings of their assimilatory potential, and the formation of a racial identity defined in opposition to “Blackness.” The elusive nature of race is similarly illustrated by the conflict between the legal racialization of Middle Eastern and Mexican persons as “white” during certain historical periods, and the social racialization of these persons as “non-white” and racially distinct during other times.

Race is subjective. Race is objective. Race is whiteness. Race is blackness. Race is fixed. Race is malleable. Race is performance.

Race is constantly in flux depending on one’s baseline understanding of the nature of race. I am black according to certain understandings of race, while other interpretations may render me white. I am Latino, Creole, Egyptian, and “other” according to some outsider interpretations of race, yet I can also be reduced to “mixed” by utilizing an alternative understanding of race. Outsider perceptions of race in turn may change according to my performance of race, and how race is performed around me.
Race is biology.

Race is ancestry. Race is genetic.

Notwithstanding the post-war rejection of a biological interpretation of race, modern genetic science has increasingly claimed the ability to identify “race” through the biological analysis of DNA samples. Law enforcement agencies in the United States and elsewhere analyze individual DNA samples to identify the likely “race” of a criminal suspect, while courts in the United States increasingly admit expert testimony stating the statistical probability that a criminal suspect belongs to a specific race based on such DNA analyses. Such a re-biologicalization of race clearly contradicts the classical post-war theory of race as a social construct. Part III of this article examines the contemporary re-interpretation of race as having some biologically traceable genetic essence.

Race is constructed. Race is biologically meaningless. Race is power.

The claims of modern genetics notwithstanding, race remains a biologically meaningless concept of human categorization. Race simply has no traceable genetic essence, and the proliferation of racial DNA testing represents a fundamental misunderstanding of the nature of race rather than the neutral application of scientific principles. Part IV of this article argues that contemporary genetics has misapprehended the elusive nature of race in a manner strikingly similar to that of the nineteenth-century race science…

Read the entire article here.

The Sexualization of Difference: A Comparison of Mixed-Race and Same-Gender Marriage

Harvard Civil Rights-Civil Liberties Law Review
Volume 37, Number 2, Summer 2002
pages 255-288

Josephine Ross, Associate Professor of Law; Supervisor, Criminal Justice Clinic
Howard University, Washington, D.C.

I. Introduction: Mixed-Race Love as a Sexual Orientation

The past prohibition of mixed-race marriages in many U.S. states is often cited by those who support civil recognition of same-sex marriages. Advocates and scholars reason that just as it is no longer legal to deny marriage licenses on the basis of race, it should be illegal to deny marriage licenses on the basis of sex. Unfortunately, the comparison usually stops there. No effort has been made by the legal community to examine the actual lives of these two groups of outsider couples to see if the comparison holds together descriptively as well as formalistically. Nor have contemporary attitudes towards same-sex couples been compared to historical data detailing attitudes towards mixed-race sexuality during the time that mixed-race relationships were illicit. This Article will compare heterosexual mixed-race and same-sex unions (both mixed-race and monorace) in the context of history, both legal and cultural. The historical treatment of mixed-race marriages in this country supplies important information regarding the way society marginalizes certain relationships, and the connection between deprivation of marriage rights and the sexualization of relationships.

To say that a relationship is “sexualized,” means it is viewed as essentially sexual, and is not seen to be about commitment, communication or love. To understand what I mean by the word “sexualized,” consider certain reactions to an elementary school teacher who came out to his class in Newton, Massachusetts. When asked if he was married, the teacher responded that he was not, but that if he were to live with someone, he would live with a man that he would “love the way your mom and dad love each other.” This response gave rise to a parent’s complaint that the teacher had talked inappropriately about “sex;’ That story nicely encapsulates what I mean by the sexualization of same-sex love. If the teacher had answered that he would like to marry a woman whom he would “love the way your mom and dad love each other,” no one would have sexualized his response.

My argument is that the sexualization of gay relationships is similar to the way interracial relationships were sexualized in the past. For both, sexualization is a cause as well as a symptom of disempowerment. In the 1970s, social scientists began to describe the continued sexualization of black-white relationships in the United States from the time of slavery through the decade following the Supreme Court’s 1967 decision in Loving v. Virginia. They noted that narrative discourse around mixed-race couples was sexualized, and that mixed-race love was viewed as something pornographic and essentially different from mono-race love. Social scientists uncovered attitudes towards mixed-race couples by family members and society at large that I believe mirror attitudes towards same-sex couples.

Part II of this Article provides clues to the link between the sexualization of relationships that trespass on societal norms, and the deprivation of power and rights. Section A explores how mixed-race relationships were sexualized in the past, while Section B examines how the law has been used to restrict both mixed-race and gay couples. Section B also explores the cases that predate Loving and the reasons for denying recognition to mixed-race marriages. Those reasons are compared to arguments made by marriage opponents in same-sex marriage cases today.

Part III considers similarities in the lives of gay couples and mixed-race couples in order to demonstrate that analogizing the issue of marriage as it relates to each group is not merely a trick of logic. Section A examines the analogy between Loving v. Virginia and same-sex marriage cases. Section B reviews recent social science data that illustrates many parallel experiences of outsider couples, including the reactions of family members and society, the ways non-traditional couples cope with those negative reactions, and the reasons couples commit to one another despite adversity. By comparing mixed-race and same-sex couples, one can learn a good deal about the way society grants status and safety to certain relationships while marginalizing others.

Part IV asks whether the term “sexual orientation” should be expanded to include those in mixed-race, heterosexual relationships. How one answers this question will shed light on whether the phrase “sexual orientation” is a useful or accurate term when applied to those in gay relationships.

In the Conclusion to this Article, I urge scholars to desist from sexualizing gay relationships. Like mixed-race couples, same-sex partners are not necessarily any more sexual than their heterosexual counterparts. Gay couples, like mixed-race couples, are different not because of what they do or do not do in the bedroom, but because of the meaning ascribed to these couples in supermarkets, in dance halls, and in PTA meetings. Advocates and scholars should learn from past sexualization of mixed-race love and consider more accurate and less sexualized means to characterize same-sex love and relationships…

…The ban on mixed-race marriage did not eliminate sexual activity, but affected the nature of the sexuality, making it secret, closeted and sinful. In the case of white men and black women, the taboo distorted their relationships, suppressing affection or the appearance of affection, rendering them sexual liaisons only. As sociologist [Calvin C.] Hernton wrote, a white man “can sleep with [a black lover] discreetly, give her mulatto babies, but in all of this he must never act as if he loves her.”

Although the apartheid system in this country was intended to prevent access to white women by black men, the system was not completely successful. Hernton documented in his personal life and in his work a great deal of sexual activity between white women and black men in this era. In his opinion, women were often the aggressors because they were the ones with power during segregation. Jim Crow laws could even be said to aid the women’s conquest because although there were dreadful consequences for black men who consented and were discovered, men were sometimes more afraid to resist for fear they would be framed as rapists and face mob violence. As with white men’s liaisons with black women, the interracial sex taboo served to make liaisons between white women and black men purely sexual and clandestine…

Read the entire article here.

Barbosa made Brazil’s first black Supreme Court leader

BBC News
2012-10-10

The judge overseeing a major corruption trial in Brazil has been appointed president of the Supreme Court, the first black person to hold the post.

Judge Joaquim Barbosa, who was born into a poor family, has been praised for his judicial independence.

He will take over the post once the “Mensalao” corruption trial ends.

Brazil has the largest black population after Nigeria, many of them descendants of African slaves, but black people rarely achieve high office.

Judge Barbosa, who is 58, has been appointed by other judges, following the Court’s tradition of nominating its most senior member…

…In 2003, he became a household name in Brazil when he was appointed by then President Luiz Inacio Lula da Silva to the Supreme Court.

Two mixed-race judges had previously been members of the court, but Mr Barbosa said he was the first one who could be “widely recognised as a black man”.

“This act has great significance, as it indicates to society the end of certain visible and invisible barriers,” he said at the time…

Read the entire article here.

American Dilemma: The Negro problem and Modern Democracy

Harper and Brothers Publishing
1944
822 pages

Gunnar Myrdal (1898-1987)

With the Assistance of

Richard Sterner and Arnold Rose

This landmark effort to understand African-American people in the New World provides deep insight into the contradictions of American democracy as well as a study of a people within a people. The touchstone of this classic is the jarring discrepancy between the American creed of respect for the inalienable rights to freedom, justice, and opportunity for all and the pervasive violations of the dignity of blacks.

CONTENTS

• Foreword, by Frederick P. Keppel
• Author’s Preface
• Introduction
  1. The Negro Problem as a Moral Issue
  2. Valuations and Beliefs
  3. A White Man’s Problem
  4. Not an Isolated Problem
  5. Some Further Notes on the Scope and Direction of This Study
  6. A Warning to the Reader
• PART I. THE APPROACH
  • Chapter 1. American Ideals and the American Conscience
    1. Unity of Ideals and Diversity of Culture
    2. American Nationalism
    3. Some Historical Reflections
    4. The Roots of the American Creed in the Philosophy of Enlightenment
    5. The Roots in Christianity
    6. The Roots in English Law
    7. American Conservatism
    8. The American Conception of Law and Order
    9. Natural Law and American Puritanism
    10. The Faltering Judicial Order
    11. Intellectual Defeatism
    12. “Lip-Service”
    13. Value Premises in This Study
  • Chapter 2. Encountering the Negro Problem
    1. On the Minds of the Whites
    2. To the Negroes Themselves
    3. Explaining the Problem Away
    4. Explorations in Escape
    5. The Etiquette of Discussion
    6. The Convenience of Ignorance
    7. Negro and White Voices
    8. The North and the South
  • Chapter 3. Facets of the Negro Problem
    1. American Minority Problems
    2. The Anti-Amalgamation Doctrine
    3. The White Man’s Theory of Color Caste
    4. The “Rank Order of Discriminations”
    5. Relationships between Lower Class Groups
    6. The Manifoldness and the Unity of the Negro Problem
    7. The Theory of the Vicious Circle
    8. A Theory of Democracy
• PART II. RACE
  • Chapter 4. Racial Beliefs
    1. Biology and Moral Equalitarianism
    2. The Ideological Clash in America
    3. The Ideological Compromise
    4. Reflections in Science
    5. The Position of the Negro Writers
    6. The Racial Beliefs of the Unsophisticated
    7. Beliefs with a Purpose
    8. Specific Rationalization Needs
    9. Rectifying Beliefs
    10. The Study of Beliefs
  • Chapter 5. Race and Ancestry
    1. The American Definition of “Negro”
    2. African Ancestry
    3. Changes in Physical Appearance
    4. Early Miscegenation
    5. Ante-Bellum Miscegenation
    6. Miscegenation in Recent Times
    7. “Passing”
    8. Social and Biological Selection
    9. Present and Future Genetic Composition Trends
  • Chapter 6. Racial Characteristics
    1. Physical Traits
    2. Biological Susceptibility to Disease
    3. Psychic Traits
    4. Frontiers of Constructive Research
• PART III. POPULATION AND MIGRATION
  • Chapter 7. Population
    1. The Growth of the Negro Population
    2. Births and Deaths
    3. Summary
    4. Ends and Means of Population Policy
    5. Controlling the Death Rate
    6. The Case for Controlling the Negro Birth Rate
    7. Birth Control Facilities Tor Negroes
  • Chapter 8. Migration
    1. Overview
    2. A Closer View
    3. The Great Migration to the Urban North
    4. Continued Northward Migration
    5. The Future of Negro Migration
• PART IV. ECONOMICS
  • Chapter 9. Economic Inequality
    1. Negro Poverty
    2. Our Main Hypothesis: The Vicious Circle
    3. The Value Premises
    4. The Conflict of Valuations
  • Chapter 10. The Tradition of Slavery
    1. Economic Exploitation
    2. Slavery and Caste
    3. The Land Problem
    4. The Tenancy Problem
  • Chapter 11. The Southern Plantation Economy and the Negro Farmer
    1. Southern Agriculture as a Problem
    2. Overpopulation and Soil Erosion
    3. Tenancy, Credit and Cotton
    4. The Boll Weevil
    5. Main Agricultural Classes
    6. The Negro Landowner
    7. Historical Reasons for the Relative Lack of Negro Farm Owners
    8. Tenants and Wage Laborers
    9. The Plantation Tenant
  • Chapter 12. New Blows to Southern Agriculture During the Thirties: Trends and Policies
    1. Agricultural Trends during the ‘Thirties
    2. The Disappearing Sharecropper
    3. The Role of the A.A.A. in Regard to Cotton
    4. A.A.A. and the Negro
    5. The Local Administration of the A.A.A.
    6. Mechanization
    7. Labor Organizations
    8. The Dilemma of Agricultural Policy
    9. Economic Evaluation of the A.A.A.
    10. Social Evaluation of the A.A.A.
    11. Constructive Measures
    12. Farm Security Programs
  • Chapter 13. Seeking Jobs Outside Agriculture
    1. Perspective on the Urbanization of the Negro People
    2. In the South
    3. A Closer View
    4. Southern Trends during the Thirties
    5. In the North
    6. A Closer View on Northern Trends
    7. The Employment Hazards of Unskilled Work
    8. The Size of the Negro Labor Force and Negro Employment
    9. Negro and White Unemployment
  • Chapter 14. The Negro in Business, the Professions, Public Service and Other White Collar Occupations
    1. Overview
    2. The Negro in Business
    3. Negro Finance
    4. The Negro Teacher
    5. The Negro Minister
    6. The Negro in Medical Professions
    7. Other Negro Professionals
    8. Negro Officials and White Collar Workers in Public Service
    9. Negro Professionals on the Stage, Screen and Orchestra
    10. Note on Shady Occupations
  • Chapter 15. The Negro in the Public Economy
    1. The Public Budget
    2. Discrimination in Public Service
    3. Education
    4. Public Health
    5. Recreational Facilities
    6. Public Housing Policies
    7. Social Security and Public Assistance
    8. Specialized Social Welfare Programs during the Period After
    9. The Social Security Program
    10. Assistance to Special Groups
    11. Work Relief
    12. Assistance to Youth
    13. General Relief and Assistance in Kind
  • Chapter 16. Income, Consumption and Housing
    1. Family Income
    2. Income and Family Size
    3. The Family Budget
    4. Budget Items
    5. Food Consumption
    6. Housing Conditions
  • Chapter 17. The Mechanics of Economic Discrimination as a Practical Problem
    1. The Practical Problem
    2. The Ignorance and Lack of Concern of Northern Whites
    3. Migration Policy
    4. The Regular Industrial Labor Market in the North
    5. The Problem of Vocational Training
    6. The Self-Perpetuating Color Bar
    7. A Position or “Indifferent Equilibrium”
    8. In the South
  • Chapter 18. Pre-War Labor Market Controls and Their Consequences for the Negro
    1. The Wages and Hours Law and the Dilemma of the Marginal Worker
    2. Other Economic Policies
    3. Labor Unions and the Negro
    4. A Weak Movement Getting Strong Powers
  • Chapter 19. The War Boom—and Thereafter
    1. The Negro Wage Earner and the War Boom
    2. A Closer View
    3. Government Policy in Regard to the Negro in War Production
    4. The Negro in the Armed Forces
    5. …And Afterwards?
• PART V. POLITICS
  • Chapter 20. Underlying Factors
    1. The Negro in American Politics and as a Political Issue
    2. The Wave of Democracy and the Need for Bureaucracy
    3. The North and the South
    4. The Southern Defense Ideology
    5. The Reconstruction Amendments
    6. Memories of Reconstruction
    7. The Tradition of Illegality
  • Chapter 21. Southern Conservatism and Liberalism
    1. The “Solid South”
    2. Southern Conservatism
    3. Is the South Fascist?
    4. The Changing South
    5. Southern Liberalism
  • Chapter 22. Political Practices Today
    1. The Southern Political Scene
    2. Southern Techniques for Disfranchising the Negroes
    3. The Negro Vote m the South
    4. The Negro in Northern Politics
    5. What the Negro Gets Out of Politics
  • Chapter 23. Trends and Possibilities
    1. The Negro’s Political Bargaining Power
    2. The Negro’s Party Allegiance
    3. Negro Suffrage in the South as an Issue
    4. An Unstable Situation
    5. The Stake of the North
    6. Practical Conclusions
• PART VI. JUSTICE
  • Chapter 24. Inequality of Justice
    1. Democracy and Justice
    2. Relative Equality in the North
    3. The Southern Heritage
  • Chapter 25. The Police and Other Public Contacts
    1. Local Petty Officials
    2. The Southern Policeman
    3. The Policeman in the Negro Neighborhood
    4. Trends and Outlook
    5. Another Type of Public Contact
  • Chapter 26. Courts, Sentences and Prisons
    1. The Southern Courts
    2. Discrimination in Court
    3. Sentences and Prisons
    4. Trends and Outlook
  • Chapter 27. Violence and Intimidation
    1. The Pattern of Violence
    2. Lynching
    3. The Psychopathology of Lynching
    4. Trends and Outlook
    5. Riots
• PART VII. SOCIAL INEQUALITY
  • Chapter 28. The Basis of Social Inequality
    1. The Value Premise
    2. a. The One-Sidedness of the System of Segregation
    3. The Beginning in Slavery
    4. The Jim Crow Laws
    5. Beliefs Supporting Social Inequality
    6. The Popular Theory of “No Social Equality”
    7. Critical Evaluation of the “No Social Equality” Theory
    8. Attitudes among Different Classes of Whites in the South
    9. Social Segregation and Discrimination in the North
  • Chapter 29. Patterns of Social Segregation and Discrimination
    1. Facts and Beliefs Regarding Segregation and Discrimination
    2. Segregation and Discrimination in interpersonal Relations
    3. Housing Segregation
    4. Sanctions for Residential Segregation
    5. The General Character of Institutional Segregation
    6. Segregation in Specific Types of Institutions
  • Chapter 30. Effects of Social Inequality
    1. The Incidence of Social Inequality
    2. Increasing Isolation
    3. Interracial Contacts
    4. The Factor of Ignorance
    5. Present Dynamics
• PART VIII. SOCIAL STRATIFICATION
  • Chapter 31. Caste and Class
    1. The Concepts “Caste” and “Class”
    2. The “Meaning” of the Concepts “Caste” and “Class”
    3. The Caste Struggle
    4. Crossing the Caste Line
  • Chapter 32. The Negro Class Structure
    1. The Negro Class Order in the American Caste System
    2. Caste Determines Class
    3. Color and Class
    4. The Classes in the Negro Community
• PART IX. LEADERSHIP AND CONCERTED ACTION
  • Chapter 33. The American Pattern of Individual Leadership and Mass Passivity
    1. “Intelligent Leadership”
    2. “Community Leaders”
    3. Mass Passivity
    4. The Patterns Exemplified in Politics and throughout the American Social Structure
  • Chapter 34. Accommodating Leadership
    1. Leadership and Caste
    2. The Interests of Whites and Negroes with Respect to Negro leadership
    3. In the North and on the National Scene
    4. The “Glass Plate”
    5. Accommodating Leadership and Class
    6. Several Qualifications
    7. Accommodating Leaders in the North
    8. The Glamour Personalities
  • Chapter 35. The Negro Protest
    1. The Slave Revolts
    2. The Negro Abolitionists and Reconstruction Politicians
    3. The Tuskegee Compromise
    4. The Spirit of Niagara and Harper’s Ferry
    5. The Protest Is Still Rising
    6. The Shock of the First World War and the Post-War Crisis
    7. The Garvey Movement
    8. Post-War Radicalism among Negro Intellectuals
    9. Negro History and Culture
    10. The Great Depression and the Second World War
  • Chapter 36. The Protest Motive and Negro Personality
    1. A Mental Reservation
    2. The Struggle Against Defeatism
    3. The Struggle for Balance
    4. Negro Sensitiveness
    5. Negro Aggression
    6. Upper Class Reactions
    7. The “Function” of Racial Solidarity
  • Chapter 37. Compromise Leadership
    1. The Daily Compromise
    2. The Vulnerability of the Negro Leader
    3. Impersonal Motives
    4. The Protest Motive
    5. The Double Role
    6. Negro Leadership Techniques
    7. Moral Consequences
    8. Leadership Rivalry
    9. Qualifications
    10. In Southern Cities
    11. In the North
    12. On the National Scene
  • Chapter 38. Negro Popular Theories
    1. Instability
    2. Negro Provincialism
    3. The Thinking on the Negro Problem
    4. Courting the “Best People Among the Whites”
    5. The Doctrine of Labor Solidarity
    6. Some Critical Observations
    7. The Pragmatic “Truth” of the Labor Solidarity Doctrine
    8. “The Advantages of the Disadvantages”
    9. Condoning Segregation
    10. Boosting Negro Business
    11. Criticism of Negro Business Chauvinism
    12. “Back to Africa”
    13. Miscellaneous Ideologies
  • Chapter 39. Negro Improvement and Protest Organizations
    1. A General American Pattern
    2. Nationalist Movements
    3. Business and Professional Organizations
    4. The National Negro Congress Movement
    5. The National Association for the Advancement of Colored People
    6. The N.A.A.C.P. Branches
    7. The N.A.A.C.P. National Office
    8. The Strategy of the N.A.A.C.P.
    9. Critique of the N.A.A.C.P.
    10. The Urban League
    11. The Commission on Interracial Cooperation
    12. The Negro Organizations during the War
    13. Negro Strategy
  • Chapter 40. The Negro Church
    1. Non-Political Agencies for Negro Concerted Action
    2. Some Historical Notes
    3. The Negro Church and the General American Pattern of
    4. Religious Activity
    5. A Segregated Church
    6. Its Weakness
    7. Trends and Outlook
  • Chapter 41. The Negro School
    1. Negro Education as Concerted Action
    2. Education in American Thought and Life
    3. The Development of Negro Education in the South
    4. The Whites’ Attitudes toward Negro Education
    5. “Industrial” versus “Classical” Education of Negroes
    6. Negro Attitudes
    7. Trends and Problems
  • Chapter 42. The Negro Press
    1. An Organ for the Negro Protest
    2. The Growth of the Negro Press
    3. Characteristics of the Negro Press
    4. The Controls of the Negro Press
    5. Outlook
• PART X. THE NEGRO COMMUNITY
  • Chapter 43. Institutions
    1. The Negro Community as a Pathological Form of an American Community
    2. The Negro Family
    3. The Negro Church in the Negro Community
    4. The Negro School and Negro Education
    5. Voluntary Associations
  • Chapter 44. Non-Institutional Aspects of the Negro Community
    1. “Peculiarities” of Negro Culture and Personality
    2. Crime
    3. Mental Disorders and Suicide
    4. Recreation
    5. Negro Achievements
• PART XI. AN AMERICAN DILEMMA
  • Chapter 45. America Again at the Crossroads in the Negro Problem
    1. The Negro Problem and the War
    2. Social Trends
    3. The Decay of the Caste Theory
    4. Negroes in the War Crisis
    5. The War and the Whites
    6. The North Moves Toward Equality
    7. Tension in the South
    8. International Aspects
    9. Making the Peace
    10. America’s Opportunity
• Appendix 1. A Methodological Note on Valuations and Beliefs
  1. The Mechanism of Rationalization
  2. Theoretical Critique of the Concept “Mores”
  3. Valuation Dynamics
• Appendix 2. A Methodological Note on Facts and Valuations in Social Science
  1. Biases in the Research on the American Negro Problem
  2. Methods of Mitigating Biases in Social Science
  3. The History and Logic of the Hidden Valuations in Social Science
  4. The Points of View Adopted in This Book
• Appendix 3. A Methodological Note on the Principle of Accumulation
• Appendix 4. Note on the Meaning of Regional Terms as Used in This Book
• Appendix 5. A Parallel to the Negro Problem
• Appendix 6. Pre-War Conditions of the Negro Wage Earner in Selected Industries and Occupations
  1. General Characteristics of Negro Jobs
  2. Domestic Service
  3. Other Service Occupations
  4. Turpentine Farms
  5. Lumber
  6. The Fertilizer Industry
  7. Longshore Work.
  8. Building Workers
  9. Railroad Workers
  10. Tobacco Workers
  11. Textile Workers
  12. Coal Miners
  13. Iron and Steel Workers
  14. Automobile Workers
  15. The Slaughtering and Meat Packing Industry
• Appendix 7. Distribution of Negro Residences in Selected Cities
• Appendix 8. Research on Caste and Class in a Negro Community
• Appendix 9. Research on Negro Leadership
• Appendix 10. Quantitative Studies of Race Attitudes
  1. Existing Studies of Race Attitudes
  2. The Empirical Study of Valuations and Beliefs
  3. “Personal” and “Political” Opinions
  4. The Practical Study of Race Prejudice
• List of Books, Pamphlets, Periodicals, and Other Material Referred to in This Book
• Numbered Footnotes
• Index

From pages 102-106

If white Americans can believe that Negro Americans belong to a lower biological species than they themselves, this provides a motivation for their doctrine that the white race should be kept pure and that amalgamation should, by all means, be prevented. The theory of the inborn inferiority of the Negro people is, accordingly, used as an argument for the antiamalgamation doctrine. This doctrine, in its turn, has, as we have seen, a central position in the American system of color caste. The belief in biological inferiority is thus another basic support, in addition to the no-social-equality, anti-amalgamation doctrine, of the system of segregation and discrimination. Whereas the anti-amalgamation doctrine has its main importance in the “social” field, the belief in the Negro’s biological inferiority is basic to discrimination in all fields. White Americans have an interest in deprecating the Negro race in so far as they identify themselves with the prevailing system of color caste. They have such an interest, though in a lower degree, even if their only attachment to the caste order is that they do not stand up energetically as individuals and citizens to eradicate it…

…In adhering to this biological rationalization, specified in the six points stated above, the white man meets certain difficulties. A factual difficulty to begin with is that individual Negroes and even larger groups of Negroes often, in spite of the handicaps they encounter, show themselves to be better than they ought to be according to the popular theory. A whole defense system serves to minimize this disturbance of the racial dogma, which insists that all Negroes are inferior. From one point of view, segregation of the Negro people fulfills a function in this defense system. It is, of course, not consciously devised for this purpose, and it serves other purposes as well, but this does not make its defense function less important. Segregation isolates in particular the middle and upper class Negroes,” and thus permits the ordinary white man in America to avoid meeting an educated Negro. The systematic tendency to leave the Negro out when discussing public affairs and to avoid mentioning anything about Negroes in the press except their crimes also serves this purpose. The aggressive and derogatory altitude toward “uppity” Negroes and, in particular, the tendency to relegate all educated Negroes to this group also belongs to the defense system.

Since he has a psychological need to believe the popular theory of Negro racial inferiority, it is understandable why the ordinary white man is disincline to hear about good qualities or achievements of Negroes. ‘The merits of Negro soldiers should not be too warmly praised, especially in the presence of Americans,” reads one of the advices which the French Military Mission, stationed with the American Expeditionary Army during the First World War, circulated but later withdrew. It should be added that white people who work to help the Negro people and to improve race relations see the strategic importance of this factor and direct their work toward spreading information about Negroes of quality among the whites.

Another difficulty has always been the mulatto. White Americans want to keep biological distance from the out-race and will, therefore, be tempted to discount the proportion of mulattoes and believe that a greater part of the Negro people is pure bred than is warranted by the facts. A sort of collective guilt on the part of white people for the large-scale miscegenation, which has so apparently changed the racial character of the Negro people enforces this interest.

The literature on the Negro problem strengthens this hypothesis. Only some exceptional authors, usually Negroes, gave more adequate estimates of the proportion of mixed breeds, and it was left to Hrdlicka and Herskovits in the late ‘twenties to set this whole problem on a more scientific basis. The under-enumeration of mulattoes by the census takers decade after decade and also, until recently, the rather uncritical utilization of this material, indicate a tendency toward bias. The observations of the present author have, practically without exception, indicated that the nonexpert white population shows a systematic tendency grossly to underestimate the number of mulattoes in the Negro population.

It may, of course, be said against this assumption of a hidden purpose that one should not assume the ability of uninformed and untrained persons to distinguish a mulatto from a pure bred Negro. But the facts of historical and actual miscegenation are fairly well known, at least in the South, and are discussed with interest everywhere. And if a wrong estimate systematical goes in the same direction, there is reason to ask for a cause. It has also been observed that the ordinary white American gets disturbed when encountering the new scientific estimates that the great majority of American Negroes are not of pure African descent. Similarly, the ordinary white American is disturbed when he hears that Negroes sometimes pass for white. He wants, and he must want, to keep biological distance.

But the mulatto is a disturbance to the popular race theory not only because of his numbers. The question is also raised: Is the mulatto a deteriorated or an improved Negro? In fact, there seems never to have been popular agreement among white Americans whether the mulatto is worse than the pure bred Negro, or whether he is better because of his partially white ancestry. The former belief should per se strengthen the anti-amalgamation doctrine, in fact, make adherence to it to the interest of the entire society. The second belief can serve a purpose of explaining away Negro accomplishments which are, with few exceptions, made by mulattoes and which then could be ascribed to the white blood. Actually, I have often heard the same man use both arguments…

Read the entire book here.

Constitutionality Of Miscegenation Statutes: McLaughlin v. Florida

Maryland Law Review
Volume 25, Issue 1 (1965)
pages 41-48

Lee M. Miller

The appellants, a Negro man and a white woman, were convicted of violating a Florida statute which proscribed cohabitation between Negro and white persons who are not married to each other. The Florida Supreme Court upheld the conviction. On appeal to the Supreme Court of the United States, the appellants claimed: (1) The statute was invalid as a denial of equal protection of the laws since it applied only to members of certain races, and (2) they were denied due process and equal protection of the laws because a Florida law prohibiting interracial marriage prevented them from establishing the defense of common law marriage. The appellants thus hoped to reach the issue of whether the state’s prohibition of interracial marriage contravened the fourteenth amendment. The Supreme Court, basing its decision on the single issue of equal protection (appellants’ first claim), set aside the conviction and invalidated the cohabitation statute. Finding this claim to be dispositive of the case, the Court refrained from expressing any view as to the constitutionality of the law prohibiting interracial marriages.

The provisions of state statutes banning interracial marriage, often called miscegenation statutes, vary considerably, but today all states which have such statutes ban Negro-white marriages, and all declare the proscribed interracial marriages void. Most statutes provide criminal penalties, thus making race an element of a crime. The Maryland statute, for example, proscribes Negro-white and Malay-white marriages and has a mandatory penitentiary sentence.

At one time or another, over half the states had miscegenation statutes. Although these statutes have been repealed by twenty state legislatures, they remain in effect in nineteen other states. Six states have included miscegenation prohibitions in their state constitutions. The highest courts of only two states have held their miscegenationn statutes unconstitutional. Alabama declared its statute unconstitutional in 1872 but reversed itself five years later; California declared its statute unconstitutional in 1948. State courts and lower federal courts have upheld the constitutionality of such statutes. The Supreme Court of the United States has never ruled on the issue. In two cases reaching that Court in recent years, certiorari was denied in one and the issue bypassed in the other.”…

Read the entire article here.

The Color of Change: Voting Rights in the 21st Century and the California Voting Rights Act

Harvard Latino Law Review
Volume 15 (2012)
pages 184-231

Joanna E. Cuevas Ingram
University of California, Davis

Table of Contents

• INTRODUCTION
• I. THE VOTING RIGHTS ACT OF 1965 AND THE CALIFORNIA VOTING RIGHTS ACT
• II. U.S. SUPREME COURT DECISIONS ON FEDERAL VRA STANDARDS
  • A. Heightened Burdens of Proof for Potential Plaintiffs
  • B. Post-Racial Penumbras
  • C. The Politics of Containment: Post-Racial Opposition to Voting Rights Remedies
  • D. The Full Spectrum of Voter Discrimination: “Multiracial” Identities and Multiethnic Members of Protected Voting Rights Classes
• III. FEDERAL VRA STANDARDS: CIRCUIT COURT DECISIONS ADDRESSING MULTIETHNIC/MULTILINGUAL COALITIONS
  • A. The Majority View: Recognition of Coalition Plaintiffs
  • B. The Minority View: Non-Recognition of Coalition Plaintiffs
• IV. MULTIETHNIC/MULTILINGUAL COALITIONS IN CALIFORNIA AND THE CVRA
  • A. Multiethnic/Multilingual Coalition Voting Blocs in California
  • B. Impediments and Rewards for Compliance
• V. CONCLUSION

INTRODUCTION

“Once social change begins, it cannot be reversed. You cannot uneducate the person who has learned to read. You cannot humiliate the person who feels pride. You cannot oppress the people who are not afraid anymore. We have seen the future, and the future is ours.”

— César Chávez, Address to the Commonwealth Club of California (November 9, 1984).

In the twenty-first century, we have witnessed the rise of a post-racial national political narrative, particularly as the population in the United States has become increasingly multilingual and multiethnic. This narrative has been fashionably employed by cultural critics, media personalities, elected officials, attorneys, and even courts in an attempt to check the unprecedented surge in the political power of the diverse demographic, allowing these public figures and institutions to gloss over statistically sound cases of voter disenfranchisement in an attempt to dilute or contain what are fast becoming “minority-majority” voting districts.  Under Section 2 of the federal Voting Rights Act (“VRA”) of 1965, illegal vote dilution can be found where an electoral standard, practice, or procedure results in a denial or abridgement of the right to vote on account of race or color, including those instances where it can be demonstrated that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a protected class of citizens under the VRA…

…D. The Full Spectrum of Voter Discrimination: “Multiracial” Identities and Multiethnic Members of Protected Voting Rights Classes

Opponents of minority coalition claims under Section 2 seem to make another secondary, and offensive, intimation: the idea that multiracial identity itself could frustrate the purpose and practical application of the VRA.

This argument rings hollow after the Bartlett decision, however, particularly given the fact that the U.S. Census Bureau had established clear guidelines in 2000 for data interpretation based on responses that included one or more, two or more, and four or more race/ethnicity selections. Over the last decade, the Census Bureau has developed some incredibly advanced digital statistics on racial demographics by census tract The Bureau continues to maintain relatively accurate analyses of voting patterns and polls for individual groups as well as aggregate groups; data that is readily available online to any inquiring mind.

While more young Americans today do identify as multiethnic, multiracial, or mixed race, self-identification alone does not mean that individuals who so identify believe that they live in a presently post-racial society, nor does it mean that multiethnic or multicultural individuals do not experience any discriminatory treatment. Furthermore, nor does it signify that they are no longer considered members of a protected class or minority group. In fact, many individuals who identify as multiethnic and multiracial speak to the diversity of experiences each person may encounter in equal access to employment, education, housing, health care, insurance, business loans, and other social indicators of discrimination, including access to the political franchise. Increasingly, several scholars who identify as multiethnic and multiracial have worked to craft a discourse of resistance, encouraging individuals, regardless of how they identify, to embrace the complexity of their experiences and heritage by challenging the dominant social, cultural, and political structures that perpetuate white supremacy and racial segregation.

Further, opponents’ arguments that the 2000 Census would complicate litigation projections for local jurisdictions ring hollow; the standards set forth by the Office of Management and Budget (“OMB”) in March 2000 established a coherent framework for the Department of Justice (“DOJ”) in evaluating claims for the purpose of the Voting Rights Act and other remedies designed to address both systemic racial discrimination and individual discriminatory treatment. The 2000 OMB standards, although arguably problematic in dealing with social constructs such as race, have sought to provide a clear framework to respond to systemic discrimination and to accommodate the groundbreaking transformation that the 2000 and 2010 Census have taken in allowing respondents to check more than one ethnicity/race. The rules set forth by the OMB and applied by the DOJ would in fact alleviate any perceived difficulties in meeting the Gingles requirements:

Pursuant to those rules, DOJ will allocate any multiple-race response in which “White” and one of the five other basic categories were checked to the minority race that was checked. Thus, the numbers for each minority race will consist of the total of (i) the single-race responses in which only that minority race was checked; and (ii) the multiple-race responses in which only that minority race and “White” were checked. DOJ will allocate the remaining multiple-race responses—those in which two or more minority races were checked, either along with “White” or without it—to a category called “Other Multiple-Race.” If it finds that a jurisdiction’s “Other Multiple-Race” category contains a significant number of responses that reflect a particular multiple-race combination, it will allocate those responses alternatively to each of the minority races in that combination.”

When it comes to the question of Hispanic or Latino identity, the DOJ has expressed its intention to continue to treat individuals who identify as Hispanic or Latino as members of a distinct minority group for the purpose of enforcing the Voting Rights Act. If the DOJ finds that a significant number of the individuals in the jurisdiction have identified as members of this ethnic category and one or more minority racial groups, it will allocate those responses alternatively to the Hispanic or Latino category and the minority race(s) checked. For example, if the DOJ finds that a significant number of responses checked both Hispanic or Latino and Black or African-American, it will allocate the first of those responses to the Hispanic or Latino category, the second to the Black or African-American category, and so on. While other scholars have confirmed that the DOJ will also have to use the OMB allocation rules in enforcing Section 2 of the Voting Rights Act, they have also posited that the courts are not bound to follow the guidelines as established by the executive branch…

Read the entire article here.

Void and Voidable Marriages in Maryland and Their Annulment

Maryland Law Review
Volume 2, Issue 3 (1938)
Article 2
pages 211-259

John S. Strahorn Jr., Professor of Law
University of Maryland

The essential task of this article will be to classify invalid or defective marriages in Maryland into those which are totally void and hence subject to collateral attack and those which are only voidable by appropriate steps of direct attack taken during the joint lifetime of the spouses. But, as investigation of this question requires a survey of all the local law concerning the requirements of and impediments to a valid marriage, and, as well, an inquiry into the procedural aspects of annulment, the article will be, in effect, one on the broader questions of validity of marriage and annulment in Maryland.

THE GENERAL DIFFERENCE BETWEEN TOTAL VOIDNESS AND VOIDABILITY

Terminology presents the first problem. The phrase “totally void” will be used herein to express the idea of a marriage’s possessing some defect rendering it susceptible to collateral attack, even after the death of one or both of the spouses. For such marriages no direct step or proceeding to annul is necessary, although the latter may be desirable. “Voidable” will be used to express the idea that the defect, at most, permits the validity of the marriage to be directly attacked by appropriate steps during the joint lifetime of the spouses, although without that the invalidity may not be asserted collaterally in any other proceeding. “Valid” and “completely valid” will be used interchangeably in the sense that the marriage meets all the requirements and encounters none of the impediments so that it can withstand both direct and collateral attack.

In addition to the question of total voidness or mere voidability, there must be considered whether, if the marriage be only voidable, it may be avoided by simple private act, or a judicial proceeding is necessary. Related to this is the matter of ratification, which is possible for some, though not all, voidable marriages and which is considered by some writers to be possible for certain marriages which are otherwise totally void. Whether such a latter class exists in Maryland law will be one of the inquiries of this article.’ A certain confusion exists between a marriage’s being totally void although capable of ratification, and its being voidable by private act without judicial proceeding…

…C. Race (Miscegenation).

White persons and Malayans are forbidden to intermarry and both are forbidden to marry Negroes or persons of Negro descent to the third generation. The statutory mode of expression to cover persons of mixed white and Negro blood is an awkward one and makes doubtful just what proportion of Negro blood will disqualify one from marrying a pure white person or Malayan. It is suggested that if the person in question has some non-Negro blood and that if all of his parents and grand-parents also had some, he is eligible for purposes of the statute, even though he is predominantly Negro.

Is a marriage which is definitely under the statutory ban totally void or only voidable? While no Maryland case has ever dealt directly with either the prohibition generally or the specific problem, a strong dictum in Jackson v. Jackson has indicated that such a marriage, forbidden by our statute, is so totally void that it cannot be recognized even when performed in a state sanctioning such marriages. As has been suggested, this should also determine the issue of total voidness or voidability for the purpose of internal law. This is particularly so in view of the fact that the Jackson case dictum put this type of marriage under the part of the exception to the conflicts rule for those marriages which “the local law making power has declared shall not have
any validity.

Granting such marriages to be totally void, what procedures are available for directly declaring that quality. The statutory procedure does not apply. No doubt, a divorce on the ground of marriage void ab initio could be procured. It is doubtful that an annulment under the general equity practice could be secured. A successful criminal prosecution for entering into the unlawful marriage (if the ceremony occurred in Maryland) or for illicit cohabitation s in Maryland under such an invalid marriage might accomplish the result of a judicial declaration of nullity, even though this does not come under the statutory method, which makes specific mention of criminal prosecution as an annulment device…

Read the entire article here.

Race Treason: The Untold Story of America’s Ban on Polygamy

Columbia Journal of Gender and Law
Volume 19, Number 2 (2010)
pages 287-366

Martha M. Ertman, Carole & Hanan Sibel Research Professor of Law
University of Maryland

Today’s ban on polygamy grew out of nineteenth century Americans’ view that Mormons committed two types of treason. First, antipolygamists charged Mormons with political treason by establishing a separatist theocracy in Utah. Second, they saw a social treason against the nation of White citizens when Mormons adopted a supposedly barbaric marital form, one that was natural for “Asiatic and African” people, but so unnatural for Whites as to produce a new, degenerate species that threatened the project of white supremacy. This Article reveals how both kinds of treason provided the foundation of polygamy law through the discourse of legal, political and medical “experts, ” as well as, most vividly, cartoons of the day. This discourse designated the overwhelmingly White Mormons as non-White to justify depriving them of citizenship rights such as voting, holding office, and sitting on juries. Paralleling the Mormon question to miscegenation disputes also raging in the decades after the Civil War, the Article suggests two theoretical perspectives to understand the “blackening” of Mormons. First, postcolonial theorist Edward Said’s concept of Orientalism helps explain how designating Mormons a subject race rendered their subjection inevitable. Second, Sir Henry Maine’s 1864 observation that progressive societies move from status to contract reveals the visceral defense of status embedded in antipolygamy discourse. That defense of status may also have implicated other ways status was giving way to contract, such as wage labor replacing slavery and the partnership theory of marriage beginning to displace coverture. In either case, the Article contends, the racial foundations of American antipolygamy law require us to rethink our own often reflexive condemnation of the practice. It concludes by suggesting three questions to help us frame that inquiry, asking: (1) whether we need to rethink this rarely-enforced ban; (2) whether current antipolygamy law’ associates polygamy with barbarism, foreignness, and people of color; and (3) whether it is coincidental that the plain language of the Defense of Marriage Act prohibits both polygamy and same-sex marriage.

INTRODUCTION

Race is at the center of all of American history.
— Ken Burns

Many people think that American law bans polygamy to ensure women’s equality and shield teenage girls from marrying old men. But that notion is largely wrong, at least if we interpret the relevant cases and statutes in light of the intentions of the lawmakers who enacted four federal statutes and the courts that upheld them in a line of cases that are still cited as good law. They were hardly concerned with gender equality or protecting children’s safety. Instead, the statutes went far beyond criminalizing polygamy, depriving Mormon men and women of voting and other citizenship rights to achieve the larger goal of preventing the traitorous establishment of a separatist theocracy in Utah. Polygamy was merely a symptom, fascinatingly salacious and easily ridiculed, of the pathology that most Americans saw in Mormonism. However, knowing the treason-based genesis of antipolygamy law need not force us to rethink the ban on polygamy. Treason remains unlawful, making it a permissible justification for the law today.

But race is also at the center of antipolygamy law, in a way that forces us to rethink the ban itself. Many Americans, from the highest levels of government to political cartoonists, viewed the Mormons’ political treason as part of a larger, even more sinister offense that I call race treason. According to this view, polygamy was natural for people of color, but unnatural for White Americans of Northern European descent. When Whites engaged in this unnatural practice, antipolygamists contended, they produced a “peculiar race.”  Antipolygamists linked this physical degeneration to Mormons’ submission to despotism, reasoning that their primitive form of government was common among supposedly backward races. The Supreme Court accepted this argument in the leading antipolygamy case, Reynolds v. United States, in which it rejected Mormon claims that polygamy was protected as the free exercise of religion. The Court reasoned that polygamy was “odious among the northern and western nations of Europe,” “almost exclusively a feature of the life of Asiatic and of African people,” and ultimately “fetters the people in stationary despotism.” Well into the twentieth century, many Americans continued to associate White Mormons with people of color, as evidenced by a character’s quip in Jack London’s 1914 novel, “They ain’t whites; they’re Mormons.”

This racialization requires us to ask whether the polygamy ban today continues to import those white supremacist values. In another context, states criminalized cocaine and marijuana in the early twentieth century to police and generally demonize Chinese and Mexican immigrants as well as African Americans. By the late twentieth century, that policy, though officially rejected, found expression in federal sentencing guidelines that penalized offenses related to crack cocaine (more common in African American communities), more harshly than powder cocaine (more common in White communities). There, as here, virulent racial motivations that animated a legal rule requires us to examine the law’s current incarnation to ensure it has shed the taint of its origin.

Casting overwhelmingly White Mormons as non-White required rhetorical slights of hand. While Mormons’ distinctive theology and social organization were politically unsettling in many ways, the practice of polygamy justified the larger culture’s demotion of Mormons from full citizenship on the grounds of racial inferiority. This Article tells the story of race in polygamy law through the words of government actors and scholars, using political cartoons to literally illustrate the widespread view of Mormons as race traitors.

It then offers two theoretical frames through which to view nineteenth century perceptions of polygamy as race treason: Orientalism and jurisprudential insights about the tensions between status and contract. Edward Said’s work on Orientalism offer some clues as to why cartoonists might have portrayed Mormon polygamists as Black and Asian. Viewing the discourse as Orientalist—essentially an “us/them” rubric that primarily underpins colonialism—shows that antipolygamy discourse also spoke of Mormon polygamy in “us/them” terms, treating polygamists not as people, but as problems to be solved. The most valuable insight Orientalism offers here is that framing a group as Oriental—an inherently backward, sensual, and therefore subordinated Other—makes its subjection inevitable. Thus the public imagination’s construction of Mormons as members of subject racial groups (Asian and Black, mainly) played a crucial role in subjecting Mormons to federal control…

…This Article uses political cartoons of the day to demonstrate how viscerally the American polity fought against the Mormons’ attempt at private ordering, deploying images of domestic and governmental disorder to rail against the chaotic consequences of abandoning status in marriage. In the cartoons, race and gender served as shorthand for status, the notion of assigned, inherent and unchanging roles. Because marriage was deeply raced and gendered, and not coincidentally defined citizenship, antipolygamists’ equation of polygamy with Asian and Black foreignness reaffirmed the centrality of Whiteness to full citizenship. Equating Whiteness with citizenship mattered enormously in the time of which we speak. Abolitionists and Freedmen pushed hard for full civic membership for the freed slaves. The cartoons here oppose it, using polygamy to beat back African Americans’ claims to civil membership in the wake of the Civil War…

…The cartoon depicts a fierce eagle, stars and stripes on its wings representing the United States, protecting its nest, which is labeled “union.” Inside the nest are eaglets, all White, each labeled for a state. A “carrion crow” labeled “Utah” rises up in their midst, clutching a bone labeled “Mormonism.” Three things bear mentioning. First, the cartoon appeared less than a generation after the end of the Civil War, when most viewers would situate its imagery within the national catastrophe of Confederate Secession. Second, it labeled the bird representing Utah as “Carrion Crow.” This crow gets its name from its habit of eating dead animals, making its presence in the caption depict Mormonism as a harbinger of death. Moreover, the birds representing the other states seem to be eaglets, the same species as the eagle, while the crow represents a new species, black, holding its own bone and defiantly turning its back on the mother. In contrast, the eaglets either beg for food or look out as if guarding the nest.

Integrating these elements, we can interpret the single Black crow White eaglets as signaling political defiance against the Union, racial grounds for denying Utah statehood, and miscegenation. In the decades after Civil War, intense legal, political, and social battles raged over the citizenship of African Americans, generally resulting in severely limited social and political rights for the freed slaves. Consequently, this cartoon, published in that climate, seems to reference both the Civil War and the place of Blacks in America in the wake of emancipation. The Black crow symbolizing Utah, nestled among White eaglets symbolizing the other states, is akin to the Confederacy seceding to protect its own peculiar domestic institution. In this view, depicting Utah as a carrion crow would justify denying “black” Utah membership in the Union just as the Black Codes and other measures denied African Americans full citizenship. The mix of white and black baby birds in the cartoon also raises the specter of miscegenation, which animated the Black Codes.

The nation was struggling over the constitutionality of miscegenation laws at the very moment that Mormon polygamy attracted intense debate and regulation. Many southern states repealed their miscegenation statutes shortly after the Civil War, reasoning that the Civil Rights Act of 1866 and the 14th Amendment to the Constitution allowed African Americans to contract marriages just like White citizens. However, they reinstated miscegenation laws in the 1880s and 1890s, claiming that the ban on interracial marriage did not violate principles of equal protection, since it prevented both Blacks and Whites from marrying outside their race. Indeed, in 1883, a year after “The Carrion Crow,” the U.S. Supreme Court used this rationale to uphold miscegenation laws in Pace v. Alabama. As the sole Black child among White siblings, the crow signifies multiracial families produced by race-mixing. By linking Mormon polygamy with political treason and racialized political and familial degeneration, the cartoon triggers explosive issues far beyond polygamy as a marital variation…

Read the entire article here.