Mixed Race Studies

The Modern Mulatto: A Comparative Analysis of the Social and Legal Positions of Mulattoes in the Antebellum South and the Intersex in Contemporary America

Columbia Journal of Gender and Law
Volume 15, Number 3 (September 2006)

Marie-Amélie George, Associate Lawyer
Paul, Weiss, Rifkind, Wharton & Garrison LLP

Recognizing new social forces working against the “correction” of intersexed children at birth, this article explores the undefined position of the sometimes invisible segment of the population that is intersexed. In examining the similarities between the legal position of mulattoes in the Antebellum south with that of the intersex today, the article takes on the very definition of sex in contemporary society. The author argues that sex, like race, is not binary, but rather constructed so as to reinforce heteronormative patriarchal norms. Through an examination of case law concerning transsexuals, the author demonstrates the ways in which law erroneous relies on a sexual binary, and goes on to provide a guide for understanding how courts would locate intersexuals in contemporary society.

…”This case involves the most basic of questions. When is a man a man, and when is a woman a woman? Every schoolchild, even of tender years, is confident he or she can tell the difference, especially if the person is wearing no clothes.” (1) With this opening statement, Judge Harberger, writing the majority opinion in Littleton v. Prange, quickly goes on to demonstrate that this most basic of questions can be more difficult to answer than appears at first glance. The case at issue, which required the court to determine the legal sex of a post-operative transsexual, questioned the basic notion that male and female are fixed, immutable, and oppositional categories. The very premise of the case is an assault on the foundational assumption that sex is a binary and biological phenomenon, which has been overwhelming accepted in contemporary thought. Importantly, these two concepts once underpinned race theory, but were subsequently rejected by both the academic and legal worlds. (2) The same, while examined and critiqued at length in feminist and sexuality theory, (3) has thus far failed to occur in the realm of legal doctrine and social consciousness.

This Article seeks to add to the scholarship that illustrates the way in which sex can be conceptualized in much the same way as race, and may thus be divested of the presumptions of dichotomy and physiology, by comparing the regulation of race in the antebellum period (4) and sex in the modern day. In doing so, it also aims to undermine objections that sex and race are not in fact parallel socio-physiological categories. (5) Specifically, this Article examines the manner in which antebellum mulattoes, whose mixed race challenged the bases for racial hierarchy, were socially and legally made black so as to be folded within the binary on which slavery depended. It then follows this analysis with a consideration of the ways in which the intersex, who are persons with ambiguously sexed genitals, chromosomes, or phenotypes, are physically forced into one sex or the other so as not to cast doubt on the sexual binary necessary to sustain a patriarchal political and social system. Using this comparison as a framework from which to extend its deconstruction of social categories, this Article then turns to an examination of the role of the law in regulating sexual identity, noting how the law has the potential to be used to create sex in much the same way as it was employed to craft race during the antebellum period.

The importance of this analogy is evident in the implications that flow from it. If sex is as much a construction as is race, the laws and statutes which rely on sexual demarcations, such as whether an individual is protected by Title VII, what penal laws may be applied to a person, in which athletic competitions an individual is permitted to participate, whether a person is subject to a military draft, and who an individual may marry, among others, lose their foundational support, as the premises on which they rely do not exist. (6) The social impact is potentially much greater, as the law is but a shallow reflection of the deep sex-based differences on which society is based. Whether a legal recognition that sex is a construction will have a substantial effect on social norms is unclear, though the possibility does exist. (7) With these ideas in mind, Part I of this Article begins by focusing on race in the American antebellum South, detailing both the cultural factors that resulted in mulattoes joining the disfavored racial category and the legal means by which a binary racial hierarchy was established. This section discusses the attempts at combating miscegenation, as well as the regulations that delineated blackness and established mulattoes’ place as blacks in terms of status, condition, and physicality. In Part II, the analysis turns to theoretical perspectives on sex as a social creation so as to provide a framework from which to develop a better understanding of the ways in which the intersex, as the physical intermediaries between the two established sexes, violate the political and social order. Part III examines the social and legal position of intersex individuals in contemporary American society, drawing attention to the parallels and divergences between the legal status of the intersex today and mulattoes of the antebellum world. It then highlights the ways in which this serves to undermine the basis for different judicial standards of review for race and sex based discrimination. Part IV concludes the Article, evaluating the likelihood for potential change in the law’s treatment of sex as a biological phenomenon.

I. SOCIAL AND LEGAL REGULATION OF MULATTOES IN THE ANTEBELLUM SOUTH

 The constructed nature of race is clearly illustrated by the social perspectives on and the legal regulation of miscegenation in the antebellum South. Interracial sexual relationships, while accepted as standard in some parts of the South during the colonial era, were by the antebellum period uniformly perceived as extremely dangerous to white supremacy. This was due in large part to the mulatto offspring they produced, as mixed-race children blurred the line between the races, thereby upsetting the clear racial hierarchy on which slavery depended. Slavery was defended on the notion that racial stratification was part of a natural order, one in which whites dominated blacks due to their superior physical, mental, and behavioral traits. (8) Racial dilution not only led to a deterioration of these attributes, but also demonstrated immorality and cultural degeneracy. (9) Mulattoes, as evidence of interracial sex, were also “a visible reproach to the white man’s failure to live up to basic moral and social precepts.” (10) Consequently, hybridism was described as “heinous,” and mulattoes became a “spurious” issue requiring legal regulation. (11)

Mulattoes threatened a vision of the natural order as being one of clear, defined categories to one of gradations, a theory upon which the institution of slavery could not stand, as “[s]lavery rest[ed] on the fundamental distinction between human labor and those who own[ed] it, and the total relations between master and slave generate[d] the idea that all relationships … should [have] be[en] total.” (12) Plantation economies required whites to control the labor force in its entirety, a proposition that would have been impossible were it not for the strict bounds of the racial hierarchy. By relegating mulattoes to the status of their pure black contemporaries, the sharpness of racial distinctions would be maintained, and the power relationships that relied on racial purity could be sustained. (13) Such a clear racial divide also provided Southern lawmakers with a means of preventing interracial alliances between white servants and blacks, as giving value to whiteness granted the servant class privileges that they would seek to preserve. (14) Consequently, the white underclass would identify its interests as protected by racial division, as opposed to developing a class-based ideology, which could have undermined the system on which the Southern economy was based.

Given the threats they produced, interracial sexual liaisons had to be deterred and the mixed-race progeny regulated so as not to disturb the political and economic systems that fostered white privilege. Before turning to the legal measures adopted to accomplish these goals, however, it is first instructive to examine the ways in which colonial attitudes on amalgamation formed and developed, as such information will assist in understanding the timing and purpose of the legal regulations.

A. Social Perspectives of Mulattoes in the Colonial Era

The colonial South was not unified in terms of racial divides, attitudes, and mixing, but rather was a bifurcated region with respect to the status of blacks and mulattoes. (15) The upper South, comprised of Delaware, Virginia, Maryland, Kentucky, Tennessee, North Carolina, Missouri, and the District of Columbia, contained a relatively large mulatto population. (16) Often the offspring of white indentured servants and both free and enslaved blacks, a considerable portion were free, but overwhelmingly impoverished. (17) The economically depressed circumstances into which they were born, along with the low status of their parents and their residence in rural, rather than urban, areas, guaranteed mulattoes a place in the social underclass. Mulattoes did tend to rank in the upper echelons of free black society, but this did not alter the ways in which white citizens viewed mixed-race persons. (18) Indeed, whites equated mulattoes with blacks, making few distinctions as to hue or ancestry amongst persons of color. Mulattoes were thus just as socially, economically, and legally marginalized as their fully black brethren.

The lower South, consisting of South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas, (19) had a contrastingly generous view of free mulattoes, and afforded these individuals a status superior to that of blacks, thereby creating a third, intermediate class between black and white. (20) The impetus for this was based on practical as well as cultural influences, many of which were linked to the settlement pattern that emerged in the lower South. Unlike the upper South, many early immigrants to the lower South were from the West Indies, where the pattern of race relations resulted in a multi-tiered racial hierarchy, with mulattoes serving as a variable intermediate class. (21) Further, settlement in the lower South was characterized by a small number of white plantation owners and overseers and a large population of black slaves. (22) The scarcity of white women encouraged amalgamation, both because it increased a sense of sexual license and because it prevented settlers from reestablishing European patterns of domestic life, with its ideal of a monogamous heterosexual couple at its center. (23) Consequently, mulatto children were often the progeny of prosperous fathers and slave women. (24) While the plantation economy discouraged fathers from manumitting their mixed-race children, those who were granted freedom joined the upper strata of society, due in large part to the recognition and largess of their white fathers. (25) The topmost few lived nearly on par with their white neighbors, and mulattoes as a whole dominated the free black community. (26) Avoiding interaction with unmixed blacks, many mulattoes adopted the attitudes of whites toward the lower castes, and took advantage of the social and economic opportunities that their lighter skin afforded. (27) These privileges provided incentives for free mulattoes to support the status quo in the lower South, and thus for mulattoes to ally themselves with the white dominating class. With a high ratio of blacks to whites in the plantation communities of the lower South, whites valued the buffer that the intermediate mulatto category provided. (28)

The three-tier class structure of the lower South disintegrated in the face of increased anxiety and tension due to abolitionist attacks on slavery. (29) Whites were fueled to defend the institution, a difficult endeavor when the line drawn between the two races, a line supposedly signifying a natural distinction between ruler and ruled, (30) was blurred by a significant mulatto population. A movement for society to be divided into two groups, black and white, gained momentum, and the white population of the lower South became less tolerant of miscegenation and the preferential treatment of mulattoes. (31) The potential for insurrection also served to lessen whites’ support for a free class of blacks, regardless of the hue of the individuals at issue. (32) As a result, by the antebellum period, the lower South had become a two-class society like its Northern counterpart.

B. Legal Regulation

While the attitudes concerning mixed-race individuals originally differed in the colonial South, by the antebellum period all of the states had imposed stringent regulations on miscegenation and had relegated mulattoes to the same status as “pure” blacks. These statutes addressed interracial marriage and fornication, so as to deter the production of mulatto children, and also worked to disarm the potential power of a mixed-race class by legislating blackness onto mulattoes.

1. Marriage and Fornication

In order to protect its economic system, as well as the social and political institutions that accompanied slavery, Southern lawmakers attempted to eradicate interracial liaisons by imposing legal sanctions on interracial marriage and fornication. In the early seventeenth century, Virginia began lashing out at miscegenation, declaring sexual intercourse with blacks to be equivalent to bestiality. (33) Courts imposed severe punishments on those found guilty of this trespass; in 1630, Virginian Hugh Davis “was sentenced ‘to be soundly whipped, before an assembly of Negroes and others for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a Negro, which fault he is to acknowledge next Sabbath day.”‘ (34) The penalties became less corporeal in subsequent years, and in 1662, the legislature mandated that “‘if any christian shall commit fornication with a negro man or woman, hee or shee soe offending shall pay double'” the previously imposed fine. (35) This provision, while reducing the punishment from physical to fiscal, was nevertheless important because it was a marked change from the colony’s precedent, which punished all violators, regardless of the sexual makeup of the fornicating couple, equally. (36)

Other colonies imposed even more stringent consequences on the participants of interracial relationships. South Carolina, a colony originally known for its widespread acceptance of interracial unions, punished interracial bastardy by binding out white men and women and free black men as indentured servants for seven years; the child of any such union was forced to serve until adulthood. (37) Maryland’s 1664 anti-miscegenation law provided punishments similar to those imposed in South Carolina. White women who married male slaves were compelled to serve their husbands’ masters for the lifetimes of their husbands, and any children born to the couple were required to labor for the parish for thirty-one years. (38) In 1692, the Maryland Assembly amended the statute by requiring free blacks who married white women to be forced into a lifetime of bondage. (39) Pennsylvania had the same provision, and also permitted courts to impose a sentence of seven years in bondage to all free persons convicted of interracial fornication. (40) Virginia diverged from its contemporaries by choosing banishment from the colony as its foremost penalty for interracial marriage. In 1691, Virginia passed a law prohibiting marriage between blacks and whites, “ordering that any white person marrying a black person be ‘banished and removed from this dominion forever.”‘ (41) This punishment was changed to six months in jail in 1705; the same edict also imposed a fine of up to 10,000 pounds of tobacco against the minister performing the ceremony. (42 Virginia did not punish the black members of the union, presumably because most blacks were slaves, and thus any penalties against these individuals would have deprived masters of their slaves’ labor. (43)

By the time of the Civil War, twenty-one out of thirty-four states had some sort of legislation proscribing and punishing interracial sexual relationships. (44) While these laws diverged in identifying the violators, the specific proscribed offenses, and the punishments meted out for violations, the provisions generally tended to target white female offenders. (45) Indeed, the Maryland legislature, abhorrent of white women’s sexual exploits with black men, described marriages between white women and black men as “always to the Satisfaccon of theire Lascivious & Lustfull desires, & to the disgrace not only of the English butt also of many other Christian Nations.” (46) Virginia, similarly concerned, enacted a bill aimed at addressing miscegenation that provided for banishment within three months of the mixed child’s birth. However, it further declared that any white woman “who gave birth to ‘a bastard child by any Negro or mulatto’ would be heavily fined or subject to five years of servitude and that the child would be bound into servitude until it reached age thirty.” (47) While this regulation may have been enacted due to a concern over the number of mixed-race children born to white women, there were other reasons for colonialists to target white women’s sexuality and regulate it heavily. (48) Bastard children were a problem regardless of color, as the community was then pressured to provide for those children. (49) Furthermore, given the demographic realities of the time, with white men outnumbering white women well into the 1750s, providing disincentives for interracial relationships encouraged intra-racial procreation, thereby ensuring the perpetuation of a racially pure, white dominating class. Also important were the negative perceptions of white female morality, in that white women were seen as being of frail moral character; this was linked to the desire to maintain a paternalistic social order. Finally, this regulation was a way of addressing the fact that mulatto progeny blurred the lines of freedom. “Since the law defined freedom according to the status of mothers, it became imperative for white men to specifically delineate severe punishments for those white women who crossed the sexual color line.” (50)

Importantly, the fact that the mother’s status of slave or free determined whether or not the child would be enslaved was a marked shift from the English common law, whereby children followed the status of the father. (51) However, due to the large numbers of mixed race children born to slave mothers and white fathers, colonies enacted statutes mandating a “status of the mother” rule. As Charles Robinson notes, “most interracial sexual relations involved intercourse between white masters and slave women…. Colonial authorities had real concerns that English common law might in fact undermine the institution of slavery by allowing biracial children to claim freedom on the basis of their paternal heritage.” (52) Under such circumstances, there would have been a large free mulatto population, which could have shifted the balance of power away from the white ruling class. This legal rule thus emerged so as to prevent mulatto freedom, and did not derive from a “natural” identity. In short, social needs trumped what were considered biological realities under the law.

Forcing mulatto children into servitude had the desired effect of propelling mixed race persons as close to slave status as possible:

By the time these men and women reached their freedom, they often…

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Book explores racial identification

The Post and Courier
Charleston, South Carolina
2011-04-24

Karen Spain, legal writer based in Nashville

The Invisible Line: Three American Families and the Secret Journey From Black to White. By Daniel J. Sharfstein. Penguin. 416 pages.

Meticulously researched and beautifully written, “The Invisible Line” is a fascinating history of how three mixed-race families migrated across the color line and changed their racial identification from black to white.

The Gibsons, wealthy mulatto landowners in Colonial South Carolina, were white Southern aristocrats by the time of the Civil War.

The Walls, slave children freed by their white father, became respected members of the black middle class before giving up their prominence to “become” white.

The Spencers, hardworking Appalachian farmers in eastern Kentucky, spent almost a century straddling the color line.

The three intricately woven genealogies reveal an America where race has never been as simple as black or white. In rugged environments where survival meant relying on neighbors for security, commerce and marriage, it was easier to assume everyone was the same than to draw impenetrable distinctions between the races…

Read the entire review here.

The Slave Trader, the White Slave, and the Politics of Racial Determination in the 1850s

Journal of American History
Volume 87, Issue 1 (June 2000)
pages 43-56
DOI: 10.2307/2567914

Walter Johnson, Winthrop Professor of History and Professor of African and African American Studies
Harvard University

In January of 1857 Jane Morrison was sold in the slave market in New Orleans. The man who bought her was James White, a longtime New Orleans slave trader, who had recently sold his slave pen and bought land just up the river from New Orleans, in Jefferson Parish, Louisiana. Morrison, apparently, was to be one of his last speculations as a trader or one of his first investments as a planter. Sometime shortly after her sale, however, Morrison ran away. By the time White saw her again, in October 1857, they were in a courtroom in Jefferson Parish where Morrison had filed suit against him. Before it was settled, that suit would be considered by three different juries, be put before the Louisiana Supreme Court twice, and leave a lasting record of the complicated politics of race and slavery in the South of the 1850s. The reason for the stir would have been obvious to anyone who saw Morrison sitting in court that day: the fifteen-year-old girl whom White claimed as his slave had blond hair and blue eyes.

Morrison began her petition to the Third District Court by asking that William Dennison, the Jefferson Parish jailer, be appointed her legal representative and that she be sequestered in the parish prison to keep White from seizing and selling her. In her petition, Morrison asked that she be declared legally free and white and added a request that the court award her ten thousand dollars damages for the wrong that White had done her by holding her as a slave. She based her case on the claim that her real name was Alexina, not Jane, that she was from Arkansas, and that she had “been born free and of white parentage,” or, as she put it in a later affidavit, “that she is of white blood and free and entitled to her freedom and that on view this is manifest.” Essentially, Alexina Morrison claimed that she was white because she looked that way.

In his response, White claimed that he had purchased Morrison (he still called her Jane) from a man named J. A. Halliburton, a resident of Arkansas. White exhibited an unnotarized bill of sale for Morrison (which would have been legal proof of title in Arkansas, but was not in Louisiana) and offered an alternative explanation of how the young woman had made her way into the courtroom that day. Morrison, he alleged, was a runaway slave. Indeed, he said, he had it on good authority that Morrison had been “induced” to run away from him by a group of self-styled “philanthropists” who were “in reality acting the part of abolitionists.” In particular, White blamed Dennison, whom he accused of having used his position to “incourage” Morrison to run away and of having “afterwards harboured her, well knowing that she was a runaway.” White was drawing his terminology from the criminal laws of the state of Louisiana and accusing Dennison and his shadowy “abolitionist” supporters of committing a crime: stealing and harboring his slave.

The record of the contest that followed is largely contained in the transcription that was made of the records from the lower court hearings of the case when the state supreme court considered Morrison v. White for the final time in 1862. As codified in the statutes of the state of Louisiana and generally interpreted by the Louisiana Supreme Court, the legal issues posed by the case were simple enough: If Alexina Morrison could prove she was white, she was entitled to freedom and perhaps to damages; if James White could prove that her mother had been a slave at the time of Morrison’s birth or that Morrison herself had been a slave (and had not been emancipated), he was entitled to her service; if she was not proved to be either white or enslaved, her fate would be decided by the court on the basis of a legal presumption of “mulattoes’” freedom under Louisiana law. Captured in the neat hand of the legal clerk who prepared the record of the lower court hearings of the case, however, are circumstances that were apparently considerably more complicated than the ones envisioned by those who had made the laws.

Testimony from the lower court hearings of Morrison v. White provides a pathway into the complex history of slavery, class, race, and sexuality in the changing South of the 1850s: particularly into slaveholders’ fantasies about their light-skinned and female slaves; the role of performance in the racial identities of both slaves and slaveholders; the ways anxieties about class and capitalist transformation in the South were experienced and expressed as questions about racial identity; the babel of confusion surrounding the racial ideal on which the antebellum social structure was supposedly grounded; the relationship of the law of slavery as made by legislators and appellate judges to its everyday life in the district courtrooms of the antebellum South; and the disruptive effects of one woman’s effort to make her way to freedom through the tangle of ideology that enslaved her body. In the South of the 1850s, Alexina Morrison’s bid for freedom posed a troubling double question: Could slaves become white? And could white people become slaves?

Whiteness and Slavery

By the time Morrison v. White went to trial, Alexina Morrison would claim that her whiteness made her free, but when Morrison and White first met, in the slave market, it might simply have made her more valuable. It is well known that slaveholders favored light-skinned women such as Morrison to serve in their houses and that those light-skinned women sold at a price premium. What is less often realized is that in the slave market apparent differences in skin tone were daily formalized into racial categories—the traders were not only marketing race but also making it. In the slave market, the whiteness that Alexina Morrison would eventually try to turn against her slavery was daily measured, packaged, and sold at a very high price.

The alchemy by which skin tone and slavery were synthesized into race and profit happened so quickly that it has often gone unnoticed. When people such as Morrison were sold, they were generally advertised by the slave traders with a racial category. Ninety percent of the slaves sold in the New Orleans market were described on the Acts of Sale that transferred their ownership with a word describing their lineage in terms of an imagined blood quantum—such as “Negro,” “Griffe,” “Mulatto,” or “Quadroon.” Those words described pasts that were not visible in the slave pens by referring to parents and grandparents who had been left behind with old owners. In using them, however, the traders depended upon something that was visible in the pens, skin color. When buyers described their slave market choices they often made the same move from the visible to the biological. When, for example, they described slaves as “a griff colored boy,” or “not black, nor Mulatto, but what I believe is usually called a griff color, that is a Brownish Black, or a bright Mulatto,” buyers were seeing color, but they were looking for lineage.6 The words the buyers used—griffe, mulatto, quadroon—preserved a constantly shifting tension between the “blackness” favored by those who bought slaves to till their fields, harvest their crops, and renew their labor forces and the “whiteness” desired by those who went to the slave market in search of people to serve their meals, mend their clothes, and embody their fantasies. They sectioned the restless hybridity, the infinite variety of skin tone that was visible all over the South, into imagined degrees of black and white that, once measured, could be priced and sold…

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When Social Inequality Maps to Demographic Diversity, What Then for Liberal Democracies?

Social Research: An International Quarterly
Volume 77, Number 1 (Spring 2010)
pages 1-20
ISBN: 978-1-933481-20-3

Kenneth Prewitt, Carnegie Professor of Public Affairs
Columbia University in the City of New York

If social inequality results from discriminatory behaviors or policies based on membership in a race and ethnicity, as it certainly has in the U. S., should policy in a liberal society offer group-based benefits? The civil rights era answered positively. Identity politics, diversity rationales, and pressures for color-blind policy are challenging that answer. What and how we measure is in the middle of the argument.

Framing the Issue

Nations vary in the diversity of their population—here using “diversity” to reference some or all of the following: ethnicity, religion, language, race, ancestry, tribe, and caste. The U.S., Canada and Australia are generally cited as more “diverse” than other OECD countries. There is a large literature indicating that governing demographically diverse populations challenges statecraft in ways not experienced in nations with more homogeneous populations. Diverse populations, for example, are generally assumed to be more prone to internal conflict than more homogenous societies, giving rise to research on how to manage conflict rooted in cultural differences. The conflict may pit group against group. Under some conditions, the conflict expresses itself as a demand for more autonomy, even separation, by the aggrieved group—especially where political power is monopolized by a religion or ethnicity that does not adequately serve or protect the aggrieved group. Where separation is impractical or fiercely resisted—apartheid South Africa and Northern Ireland are examples—armed uprising can occur.

Nations vary in the magnitude and patterns of their social inequality—which does bring us nearer to our topic. The U.S. and Europe are, of course, often contrasted in how much inequality they tolerate—more in the U.S., less in Europe.

Here I start with the observation that demographic diversity and social inequalities have to be jointly examined. What policy responses are appropriate in liberal democracies when social inequalities map to demographic diversity? More specifically—how far should the liberal state go in remediation of inequality by providing group rights or group-targeted benefits? My comments offer the U.S. as a case in point…

…Racial Classification in the United States

In the U.S., more than three centuries of racist doctrine planted racially inscribed inequalities deep into the society, polity, and economy. The civil rights movement in the 1960s attempted to end this history through a policy regime that used race to undo racism. Making policy distinctions based on race came to be accepted as the only way to overcome the legacies of a racist history.

Now, nearly a half-century into that policy regime, strong reservations are being voiced. Political arguments echo the “dilemma of recognition”—do race-based policies not defeat their own purpose?…

…More than a century and a half of discriminatory social policy designed to protect the numerical and political supremacy of Americans of European ancestry needed a classification system that assigned everyone to a discrete racial group. Census categories provided this classification, as did vital statistics and, eventually, all administrative records. This measurement system is the basis for presuming that separate and distinct races constitute the true condition of the American population, and can thereby provide the basis for law and public policy. Because there are measurable groups, there are traits that are differently distributed across these groups–including, of course, traits such as intelligence, social worth, moral habits. On this foundation was constructed a race-based legal code and social and economic practices that haunts American history. Ironically, the Civil Rights legislation in the 1960s gave fresh momentum to racial measurement. Laws and policies were still to be based on racial classification, but in a 180-degree policy reversal the task became to ensure civil rights that prior uses of racial classification had denied…

…The classification adopted in 1977 and used in the 1980 and 1990 censuses seemed secure and capable of discharging its civil rights purposes in policy arenas. But by the middle of the 1990s, the political landscape was transformed by demographic changes, by the rise of multiculturalism and by the multiracial movement. New political demands called into question the existing racial and ethnic categories–and also the public purposes they were thought to serve.

The OMB again took up the task of reviewing the nation’s official racial classification system, and adopted two changes. The most commented upon change was to allow census respondents to mark one or more to the race question, finally putting to rest the one-drop rule that had worked so hard to preserve the myth of racial purity. This multirace option expresses the obvious—laws against miscegenation notwithstanding, reproduction across racial lines has been a constant in American history for four centuries.

There was a second change. The prior OMB standard had placed Hawaiians and Pacific Islanders within the more general Asian race. Advocates argued that the census should recognize Hawaiian and Pacific Islanders as a separate racial category. The OMB held public hearings and examined research showing that Hawaiian and Pacific Islanders did differ from Asians more generally; it agreed to the separate category. In the mid-1990s the official primary race groups of the United States went from four to five, unwittingly reproducing the Blumenbachian pentagon from two centuries earlier…

…Classification as the Site of Identity Politics: Multiracial rhetoric came to the fore in the 1990s, when advocates insisted on explicit recognition of multiracialism in federal statistics. What was striking about the debate that erupted is what the advocates wanted—not civil rights, but demands for recognition, choice, and identity. In congressional testimony, the Association of MultiEthnic Americans, though recognizing that the multiple-race option would make it harder to enforce civil rights law, nevertheless insisted on “choice in the matter of who we are, just like any other community.” This testimony found it ironic that “our people are being asked to correct by virtue of how we define ourselves all of the past injustices of other groups of people.”

Of course, correcting past injustices was what the traditional civil rights organizations were all about. Their cause was thus threatened by talk of choice and identity. Self expression, they insisted, was not a good reason to revise the government’s scheme of racial and ethnic categories. In its testimony, the NAACP pointed out that the current racial classification was fashioned “to enhance the enforcement of anti-discrimination and civil rights law,” and warned that “the creation of a multiracial classification might disaggregate the apparent numbers of members of discrete minority groups, diluting benefits to which they are entitled as a protected class under civil rights laws and under the Constitution itself.”…

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Race and Mixed Race

University of Michigan
College of Literature, Science, and the Arts
American Culture
AMCULT 311 –  Topics in Ethnic Studies
Section 001
Fall 2011

Evelyn Azeeza Alsultany, Assistant Professor of American Culture

This course examines how conceptions of race and mixed race have been historically shaped through law, science, and popular culture. In addition to examining the ways in which race has been socially constructed and how its meanings have changed over time, the course also explores the politics of interracial marriage, contemporary mixed race identities, and cross-racial adoption. Through an examination of historical, sociological, and autobiographical texts, the course explores a variety of themes including: census classifications, affirmative action, notions of colorblindness, questions of appearance, “authenticity,” community belonging, and the debates around the mixed race movement. Course requirements include posting a weekly discussion question, two in-class exams, and a final group project.

Base Wretches and Black Wenches: A Story of Sex and Race, Violence and Compassion, During Slavery

Alabama Law Review
Volume 59 (2008)
pages 1501-1555

Jason A. Gillmer, Associate Professor of Law
Texas Wesleyan School of Law

This Article examines in detail the local and trial records of a nineteenth-century Texas case to tell the story of a white slave master who had a thirty-year relationship with a female slave. This is a story of complexities and contradictions, and it is a story designed to add depth and detail to our current assumptions about the content of sex between the races during slavery times. Indeed, through these local records—a source traditionally underused by legal historians—the Article provides us with a pathway into the consciousness of ordinary people, and suggests a world with much more flexibility and fluidity along the lines of race and slavery than traditional accounts allow. The amount of sexual exploitation that took place under slavery will surprise no one; but, to hear the former slaves who lived on this plantation talk about it, this couple, at least, lived together as man and wife. It is this story—the story of the everyday life of slavery—that this Article seeks to tell, illuminating in the process a social order that was predicated on racial domination yet where men and women, white and black, often defied those ideologies. Ultimately, this Article concludes that the master narrative of rape so familiar to students of the subject is inadequate to account for a case like this, and urges us instead to focus on the fissures and blind spots created in the logic of slavery to further our understanding of the South and the relations between the races.

Introduction

In 1861, with the country in the midst of the Civil War, John C. Clark died at his home in Wharton County, Texas. He left a large estate, consisting of lands, slaves, and personal assets, valued at almost a half a million dollars. Ten years later, his three adult children filed suit to maintain what, they claimed, rightfully belonged to them. Their only problem: they were—under the law—black, and John Clark had been white.

What ensued was a lengthy trial, consisting of dozens of witnesses testifying about John Clark, his life, his holdings, and his relationship with a “dark mulatto” woman named Sobrina, Clark’s long-time slave and the mother of the three plaintiffs. For Clark died without a will, and since no heirs came forward in the immediate aftermath of his death, the local court ordered his property sold, and then had the proceeds deposited in the public trust. But with that much money at stake, it did not take long for forgotten relatives from as far away as Virginia to descend on the small community, many claiming that they were entitled to the vast estate despite never having met the man whom they now so eagerly embraced. But for the jury listening to testimony in the case of Clark v. Honey these other filings were of little importance. For them, the question of whether the three persons before them were entitled to take under the laws of intestacy was deceptively simple: were they John Clark’s legitimate children, or, stated differently, were John and Sobrina husband and wife?

The ensuing trial and its aftermath, however, proved to be far more complicated than anyone on that mild December day likely could have anticipated. Indeed, the question of whether Clark’s children were entitled to inherit his property took years to resolve—the case and its offshoots occupied the courts for the next several decades—and the issues it raised remain problematic for scholars interested in questions of race and slavery even today. No one doubted then and no one doubts now that white men were involved sexually with their female slaves. But the question of whether terms like “caring,” “devotion,” and “love” can be used to describe these relations remains controversial. Twenty years ago, in her landmark study, Deborah Gray White turned contemporary analysis of the sexual aspects of slavery on its head when she looked at the subject from the perspective of black women, not white men. Since that time, there has been an impressive outpouring of scholarship, reminding us that there was nothing romantic about planters taking advantage of their slave women. Sex in these circumstances was about power: it was brutal, it was ugly, and it was rape.

But to hear John Clark’s former slaves talk about the couple that occupied the small rustic cabin on the banks of the Colorado River, their relationship, at least, was anything but violent. “Clark and Sobrina lived together as man and wife until their deaths,” said one witness.10 Another agreed: “Sobrina had no other husband and Clark no other wife.” Such testimony throws the master narrative of rape into flux, suggesting the need to reexamine the broad generalizations about the nature of these relationships and the people involved. It is unlikely, in this case or in most others, that the relationship ever evolved into an entirely consensual one—Sobrina, after all, remained Clark’s slave until his death, inevitably tilting the relationship toward power and dominance. But if we listen to Clark’s former slaves—witnesses who arguably knew best—the relationship consisted of something more. How much more is the question, and it is the same question that a jury of twelve men were asked to answer in December of 1871, two years after Sobrina, now free, had passed away.

This Article, through the close examination of John Clark’s relationship with Sobrina, seeks to broaden our understanding of sex between the races by focusing on a case that seems both unusual yet strangely emblematic of the South in the years before the Civil War. This is a story of complexities and contradictions, and it is a story which illustrates the importance of taking into account not just the circumstances of brutal exploitation so familiar to students of the subject, but also the rare case of genuine affection. Indeed, the central argument here is that sex between the races was far more complicated than traditional accounts suggest, as blacks and whites, men and women, intermingled with each other in ways that defied both the legal rules and the social conventions of the time. Reducing these cases to simple descriptions of power and powerlessness misses out on the rich details they have to offer, and risks minimizing the impact they had on both the people around them and on the larger community in which the participants lived.

To that end, this Article seeks to take advantage of a recent trend in slavery scholarship, one that draws on local records—and particularly trial records—to make its essential points. These records, as others have stressed, have been a surprisingly underused source among legal historians, a group who has traditionally spent time mining published appellate decisions and statutory provisions for hints of Southern ideologies. Yet trial records open up doors that these traditional sources can never do, by providing us with a window into the consciousness of ordinary people. Through their lawsuits and their testimony, litigants and witnesses argued about nothing of national significance yet about everything that mattered most to them. They fought over property rights and slave sales, over contested wills and slave hires—and in doing so they reveal a world that involved far less adherence to the bright line rules of race and slavery than previous studies would have allowed. Indeed, when it came to such topics as interracial sex and its consequences, guardians of the Southern social order spoke with a uniform voice. “Hybridism is heinous,” Henry Hughes roared in 1854. “Impurity of races is against the law of nature. Mulattoes are monsters.” But at the local level, these seemingly rigid racial lines broke down with considerable frequency. Men left their entire estates to their former slaves; white women divorced their husbands after losing their affections to their black counterparts; and local prosecutors indicted interracial couples for living together as husband and wife. And the communities’ response—through testimony, through verdicts, through the filings of the cases themselves—tells us much about the substance of life of the ground, and about the complex interplay of slavery, race, sexuality, and power, in shaping people’s views of the world in which they lived.

In the end, then, this Article is about more than just John Clark and Sobrina; it is about a society struggling with its own identity. Far from the official ideologies of the South, men and women, blacks and whites, regularly met in the towns and on the streets—sometimes explosively and sometimes on more considerate terms. Yet, in either case, local communities had to reckon with a social order that never was how it was supposed to be. John Clark’s relationship with Sobrina, in other words, like so many others, forced a confrontation over the ideals white Southerners projected about themselves and the stuff of everyday life…

Read the entire article here.

Suing for Freedom: Interracial Sex, Slave Law, and Racial Identity in the Post-Revolutionary and Antebellum South

North Carolina Law Review
Volume 82, Issue 2 (January 2004)
pages 535-

Jason A. Gillmer, Associate Professor of Law
Texas Wesleyan School of Law

Introduction

A. Two Stories
 
In 1823 in Sumner County, Tennessee, Phebe, a “colored woman” transplanted from Virginia, brought suit against Abraham Vaughan for her freedom. Phebe alleged that she was being wrongly held in slavery because she descended in the maternal line from an American Indian woman named Murene, her great-grandmother.  Murene, Phebe alleged, was free, and since the rule in Tennessee, as in every Southern state, was that a person’s status as free or slave was determined by the status of the mother, Phebe claimed that she also was free. Phebe thus offered little in the way of her appearance (classed as she was as a woman of color), choosing instead to base her claim on evidence of her descent. Both the trial court and the Tennessee Supreme Court of Errors and Appeals proved solicitous of her efforts, allowing her to rely on hearsay testimony to trace herself back to Murene and, also, to establish that Murene was both an Indian and free.  The Tennessee Supreme Court of Errors and Appeals also upheld the decision to permit Phebe to rely on the record from a case involving her maternal aunt, Tab, against her owner. In that case, Tab successfully sued for her freedom based on the same claim at issue here: that she was free because she descended from Murene.  In the end, the jury awarded Phebe her freedom, with the bulk of the evidentiary rulings upheld on appeal…

Read or purchase the article here.

Shades of Difference: Why Skin Color Matters

Stanford University Press
2009
312 pages
11 tables, 15 figures, 16 illustrations
Cloth ISBN: 9780804759984
Paper ISBN: 9780804759991
E-book ISBN: 9780804770996

Edited by:

Evelyn Nakano Glenn, Professor of Asian American Studies
University of California, Berkeley

Shades of Difference addresses the widespread but little studied phenomenon of colorism—the preference for lighter skin and the ranking of individual worth according to skin tone. Examining the social and cultural significance of skin color in a broad range of societies and historical periods, this insightful collection looks at how skin color affects people’s opportunities in Latin America, Asia, Africa, and North America.

Is skin color bias distinct from racial bias? How does skin color preference relate to gender, given the association of lightness with desirability and beauty in women? The authors of this volume explore these and other questions as they take a closer look at the role Western-dominated culture and media have played in disseminating the ideal of light skin globally. With its comparative, international focus, this enlightening book will provide innovative insights and expand the dialogue around race and gender in the social sciences, ethnic studies, African American studies, and gender and women’s studies.

Contents

Contributors
• Introduction: Economies of Color—Angela P. Harris
• Part I The Significance of Skin Color: Transnational Divergences and Convergences
  • 1. The Social Consequences of Skin Color in Brazil—Edward Telles
  • 2. A Colorstruck World: Skin Tone, Achievement, and Self-Esteem Among African American Women—Verna M. Keith
  • 3. The Latin Americanization of U.S. Race Relations: A New Pigmentocracy—Eduardo Bonilla-Silva and David R. Dietrich
• Part II Meanings of Skin Color: Race, Gender, Ethnic Class, and National Identity
  • 4. Filipinos and the Color Complex: Ideal Asian Beauty—Joanne L. Rondilla
  • 5. The Color of an Ideal Negro Beauty Queen: Miss Bronze 1961-1968—Maxine Leeds Craig
  • 6. Caucasian, Coolie, Black, or White? Color and Race in the Indo-Caribbean Diaspora—Aisha Khan
  • 7. Ihe Dynamics of Color: Mestizaje, Racism, and Blackness in Veracruz, Mexico—Christina A. Sue
• Part III Consuming Lightness: Modernity, Transnationalism, and Commodification
  • 8. Skin Tone and the Persistence of Biological Race in Egg Donation for Assisted Reproduction—Charis Thompson
  • 9. Fair Enough? Color and the Commodification of Self in Indian Matrimonials—Jyotsna Vaid
  • 10. Consuming Lightness: Segmented Markets and Global Capital in the Skin-Whitening Trade—Evelyn Nakano Glenn
  • 11. Skin Lighteners in South Africa: Transnational Entanglements and Technologies of the Self—Lynn M. Thomas
• Part IV Countering Colorism: Legal Approaches
  • 12. Multilayered Racism: Courts’ Continued Resistance to Colorism Claims—Taunya Lovell Banks
  • 13. The Case for Legal Recognition of Colorism Claims—Trina Jones
  • 14. Latinos at Work: When Color Discrimination Involves More Than Color—Tanya Katerí Hernandez
• Acknowledgments
• Notes
• Index

Read the Introduction here.

Half-Breed Citizenship Bill, 1857

Oregon State Archives
Echoes of Oregon History Learning Guide

A Bill
 
To enable certain Half Breeds to acquire the rights of citizenship within this Territory.Section1. Be it enacted by the Legislative Assembly of the Territory of Oregon. That any person, being the child of a white father and an Indian mother, and therefore disfranchised by existing laws, may be admitted to the privileges of citizenship, by the District Court, upon satisfactory proof that he is a permanent resident and land owner of the county or district, and can speak read and write the English language, and has in all respects the educatio habits and associations of a white person, and would, if he were a white person, be a citizen of the United States or entitled to admission as such, and is a person of good moral character and in all respects worthy to enjoy the said privileges. The District Court shall make a record of such admission and grant to the applicant a certificate thereof which shall entitle him to enjoy, during the pleasure of the Legislative Assembly, all the rights privileges and immunities of a citizen of the United States within this Territory as fully as it is competent for the Territory to grant the same.

Sec. 2. This act shall take affect from the time of its passage.

Background

American immigrants in Oregon Territory disliked people of mixed Indian-white parentage. In 1855, the territorial government passed a law which prevented mixed race men from becoming citizens. This bill is an attempt to gain these rights for the children of white fathers and Indian mothers, subject to the satisfaction of certain requirements. Many white citizens would have been unable to satisfy these requirements, which included proof of literacy and good moral character. This bill did not pass.

“Abominable Mixture”: Toward the Repudiation of Anglo-Indian Intermarriage in Seventeenth-Century Virginia

The Virginia Magazine of History and Biography
Volume 95, Number 2 (April, 1987)
pages 157-192

David D. Smits, Professor of History
The College of New Jersey

Students of Amerindian-white relations have long ascribed to the English colonists an aversion to race mixing, especially through intermarriage, with the North American natives. To be sure, it is recognized that there was some Indian-white interbreeding, and even marriage, on all Anglo-American frontiers, but proportionately less than in Franco- and Hispanic-America. Virginia’s well-known marriage of John Rolfe to Pocahontas did not establish a widely imitated precedent for Anglo-Indian matrimony in the colony. A 1691 Virginia law prohibiting Anglo-Indian marriage and informal sexual unions surely indicates that they occurred; with a few notable exceptions, however, the Englishman who took a native wife, concubine, or mistress violated the colony’s mores…

Read or purchase the article here.