Mixed Race Studies

Racial Paradox and Eclipse: Obama as a Balm for What Ails Us

Denver University Law Review
Volume 86, Special Issue (Obama Phenomena: A Special Issue on the Election of President Barack Obama (2009)
pages 743-783

Camille A. Nelson, Dean and Professor of Law
Suffolk University, Boston, Massachusetts

I. Introduction

The 2008 political season provided us with sublime political spectacle. The contest for presidential nominee of the Democratic National party was an exciting and historic race. The subsequent presidential race whipped Americans, and indeed many throughout the world, into a frenzy. Never before did two white women and a black man exemplify the dreams and aspirations of so many. People the world over hoped and sought to change the course of history through the selection of the President and Vice President of the United States of America. There appearedto be a captivating yet ironic handwringing around identitarian politics at the same time that this elephant in the room was downplayed. The contest elevated, yet simultaneously sublimated, Americans’ struggle with race, gender, religion and national origin. As everyone was well aware of the monumental contests for symbolic firsts1 the 2008 Presidential race took on added momentum. With the designation of “First black President of the United States of America” looming within sight, supporters and detractors of Barack Obama were plagued by the weighty history of America. This racist history was cast as both past and prologue. With so many “firsts” at stake—either the potential for the first woman President and Vice President or the first black President—both crude and subtle identity politics were revealed which challenged claims that the citizenry of the United States had moved beyond identity politics, or race more specifically.

However, transcendent colorblind theories have been echoed in recent U.S. Supreme Court jurisprudence—they buttress a disconnect from our racialized past and present. In 2003, Justice O’Connor in Grutter v. Bollinger remarked that in twenty-five years we should no longer require affirmative action initiatives, presumably because we will have reached a post-racial epoch of cultural colorblindness. A few years later Chief Justice Roberts in Parents Involved in Community Schools v. Seattle School Dist. No. 15—a case addressing affirmative action initiatives undertaken by school districts—similarly asserted that the best way to stop racial discrimination is to stop discriminating. Cases such as these encode a normative boundary between public and private. They establish a terrain of identity schizophrenia on which we are often deluded by our perceptions of reality—no longer can we tell what is real from what is fiction.

This is the terrain on which I would like to examine the Obama phenomenon to reveal Barack Obama as somewhat of a paradox, black but white, manly but feminist, alien yet familiar, foreign but quintessentially American, and of course dubiously Christian. Accordingly, this essay will explore what might be described as the disordered identity politics revealed at the site of Obama’s ascendance. I will focus largely upon racial dynamics while recognizing the work of other identity constructs in constituting and reinforcing each other. Admittedly, race and racial politicking are the focus of this essay, but gender (specifically masculinity), religion, class and national origin also occupied the political landscape in meaningful ways. Essential to this exploration, therefore, is the intersecting identity of Barack Obama as not only a man, but a heterosexual black man of mixed racial, cultural and religious heritage. This multifaceted identity nexus carries incredible baggage in America—it complicates the desire for simplified identitarian politics but does not eliminate its force.

While to some people Barack Obama, as a mixed-race man who is Black identified, holds within him the specter of a post-racial America, it is my sense that we have not yet achieved this lofty goal, despite his election. Instead, America remains deeply invested in identitarian politics and race more specifically. No doubt some citizens cast a vote for Obama because of his race and others refused to do so for the same reason.  Rather than being irrelevant, the visibility and salience of race in America is starkly demonstrated by Obama mania—Obamania—the frenzy, excitement and furor surrounding his candidacy for President of the United States. Obama supporters and detractors alike have seized specifically upon race, consciously or unconsciously, to reveal deepseated identity-based paranoia. Thus, contrary to what the Supreme Court of the United States proclaims, race is not irrelevant in America, especially when politics and power are concerned.

This essay will explore some of the disordered permutations of race, specifically racial construction and deconstruction, as publicly demonstrated through Obamania. In Part I, particular emphasis will be placed upon the mixed-race rhetoric surrounding Obama—this framework casts Obama as racially transcendent and celebrates public American postracialism.  Curiously, though, despite this philosophy that dismisses the centrality of race in America, Obama himself acknowledges that he has had to make private race-based identity choices. Obama asserts that he is a black man in America—it is unlikely that he could assert that he is a white man and be legitimated and embraced as such. U.S. Representative G. K. Butterfield states, “Obama has chosen the heritage he feels comfortable with. His physical appearance is black. I don’t know how he could have chosen to be any other race. Let’s just say [if] he decided to be white people would have laughed at him.” Indeed, it is folly to believe that those who see him in dark, distrustful hues would embrace his white-half identity thereby seeing themselves in him to overcome their perception of his troublesome blackness. American public progressivity is out of step with our private racial ordering. Ironically, many in America can publicly celebrate the incredible reality of our first black President, yet self-righteously return to markedly and intentionally segregated private lives.

Part II will explore the racial tightrope that Obama skillfully crossed. Of all the major political candidates, only Obama was asked to be all things to all people. At times, he was not seen as black enough. At other times, Obama was too black. Yet on other occasions, Obama’s Christianity was questioned with the post-9/11 weightiness of an ascribed Muslim identity. There were other occasions on which his masculinity was questioned, even as he undoubtedly felt the historical burden of hyper-masculinized black manhood. Identity politics were cast upon Obama with a furor seldom demonstrated in national politics. Skillful as ever, however, Obama emerged victorious and relatively unscathed. To my mind, navigating the swath of identitarian complaints and politics thrown only his way was one of his greatest accomplishments.

Ultimately, Part III will conclude with an exploration of the ways in which the political contest for the Democratic Party nominee exposed the primacy of identitarian politics, specifically of race, in America. In conclusion, this essay will assert that, in keeping with America’s schizophrenic socio-legal history, race remains a challenging concept and its persistent relevance indicates that we have not yet achieved the racial healing or transcendence which Obama’s public ascendancy proclaims. Obama, therefore, is not the balm for our racial ailments. Instead, Obama’s ascendancy reveals our racial disorder. At the same time that Obama’s eclipsing blackness comforts many of us in the knowledge that we have finally elected a black President, others are equally disappointed by this fact. Moreover, Obama’s public trajectory to the forefront of the political super strata eclipses the pervasive reality that private prejudices remain steadfast throughout the social landscape and we remain more racially segregated than ever…

…To many people Obama’s mixed-race heritage indicates the triumph of colorblindness over racism. That colorblindness, as opposed to colorconsciousness without negative ascription, is seen as the sine qua non of racial progress is itself revealing of our racial disorder. For many in America the only way to overcome racism is to deny the consequences of race and colorism. Instead I suggest that we think about eliminating the negative connotations and consequences tethered to racialization rather than seeking to avoid any recognition of the socio-cultural concept of race itself. In the political landscape Obama was paradoxically wedged between these two competing viewpoints. [Shelby] Steele summarized these perspectives as follows:

There is the unspoken hope that his mixed-race freshness carries a broader political originality. And, in fact, he does embody something that no other presidential candidate possibly can: the idealism that race is but a negligible human difference. Here is the radicalism, innate to his pedigree, which automatically casts him as the perfect antidote to America’s exhausted racial politics. This is the radicalism by which Martin Luther King Jr. put Americans in touch—if only briefly—with their human universality. Barack Obama is the progeny of this idealism. As such, he is a living rebuke to both racism and racialism, to both segregation and identity politics—any form of collective chauvinism.

I read the identitarian discourses surrounding Obama differently. The posing of these questions around identity betrays our subconscious recognition that we are not there yet—we remain burdened by a default racial calculus. Even the semantics of being post-racial reveals the persistence of race and racial constructions. We do not even have terminology, let alone the ideological substance, to take us beyond racial fixity. These questions further indicate our quest for a racial healing that we know has not yet been achieved. Hence the racial schizophrenia. We aredeeply conflicted. It is unclear what is reality versus what is merely our distorted perception. It is my ultimate conclusion that our distorted racial perception is our reality…

Read the entire article here.

A conversation with Daniel J. Sharfstein (Author of  The Invisible Line: Three American Families and the Secret Journey from Black to White)

The Penguin Press
January 2011

Lauren Hodapp, Senior Publicist
The Penguin Press

Daniel J. Sharfstein, Professor of Law
Vanderbilt University

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

What is “race” in America?

This is a question that has never had a single answer.  The idea that human beings can be classified, ordered, and assigned superior and inferior status is much older than this country.  In America racial classifications were initially justified on religious grounds, but they evolved into something biological, transmitted through blood from one generation to the next.  At the same time, race was also about how people acted and the rights that they exercised.  During slavery and Jim Crow, each state had its own rules for what made someone white and what made someone black.  Some people who were black in North Carolina, for instance, were white in South Carolina.  Even when there seemed to be some public consensus about what race was, it has always meant something different behind closed doors. 

Once we understand that African Americans were continually crossing the color line and establishing themselves as white, we have to rethink what the categories of “black” and “white” mean.  This is a history that has touched the lives of millions of Americans.  Biology—“black blood”—cannot be what makes a person black.  After all, plenty of white people have black blood, too.  In The Invisible Line I try to strip away centuries of shifting justifications for race and suggest instead that the category of “black” has always functioned as little more than a marker of discrimination.  W. E. B. Du Bois said it best: black means the “person who must ride ‘Jim Crow’ in Georgia.”

THE INVISIBLE LINE shares the stories of three families over two centuries.  How did you select these particular families?

I chose to focus on the Gibsons, Spencers, and Walls because they epitomize how individuals and families changed racial identities from black to white in different periods of American history and in different parts of the South.  They challenge our conventional wisdom about racial identity and the color line.  I initially researched hundreds of families after years of looking through court cases, government records, histories and other scholarly works, newspaper accounts, memoirs, and family papers from manuscript collections in eighteen states and the District of Columbia. I wound up selecting the Gibsons, Spencers, and Walls because they were typical, but also extraordinary.  An incredible wealth of material about each family has survived the centuries—letters, trial testimony, speeches, wills, property and census records, and more.  Because of this information, I was able to go beyond just establishing the fact that people migrated across the color line and could explore why they did and what effects the migration had on their lives and on the lives of their descendants.

The fluidity with which many of your subjects approach race seems, in many ways, more sophisticated than the way we envision race today. Why?

Much of what we take for granted about race and its history are actually relatively recent developments.  For example, the “one-drop rule,” or the idea that any African ancestry makes a person black, was not the law of Southern states until the 1910s and 1920s.  Before that, states used a patchwork of fractional rules—one-fourth African “blood” made a person black, one-eighth, etc.  These rules, and the ways that courts interpreted them, reflected a reality in which people were constantly crossing the color line.  If the line were policed too strictly, then virtually no one would be safe from reclassification.  And people knew it.  Many scholars today talk about race as a “social construction,” but you can find eerily similar language from plain folks in small Southern towns one hundred years ago.

What did this mean for individuals and families in the 19^th century?

White communities often knew that people were racially mixed and let them in anyway. The typical accounts of “passing for white” involve wholesale masquerade—abandoning family and moving far away, assuming a new name and identity, and the ever present fear of being found out.  But people could become white in areas where their families had lived for generations, and many could become white even when they looked different.  There was such a thing as a “dark white man.”  But for Southern communities, acceptance of individuals did not translate into tolerance on a larger scale.  In fact, some of the very communities that allowed people of color to assimilate supported slavery, segregation, and even lynching.  There was a collective denial, a capacity for living with intense contradiction that is hard for many of us to grasp today.

What did you discover in your research that particularly surprised you?

Becoming white was not necessarily an upwardly mobile act.  In fact, it could be spectacularly downwardly mobile, especially for the “Negro aristocracy” of the late nineteenth century.  Hundreds—including O.S.B. Wall’s children—traded in lives of distinction and leadership for anonymity and often poverty.  It is easy to think that crossing the color line was a perfectly rational act for people who wanted better opportunities for themselves and their children, but the fact that people would go to great lengths to become white even when it was against their interest shows just how poisonous racism has been in the United States.

Henry Louis Gates and the African American Studies department at Harvard has become a legendary source of fresh thinking about race. When you were studying with Gates was there a sense that he and the students were creating a new vision of race?

Absolutely.  My first year as a student in the department was Gates’s first year at Harvard.  He had come with a mission to reinvent the field.  The seminar I took with him that fall was not only an intense introduction to a series of extraordinary texts, but also a class devoted to rethinking what African American Studies should be and making a case for its centrality to our understanding of the American experience.  It was a very exciting time to be at Harvard, and the discussions we had nearly twenty years ago continue to influence me and my work.

How did your own experiences with and perceptions of race influence your work?

My interest in African American history developed as a child listening to stories about my father’s civil rights activism in the early 1960s—the time as an undergraduate he met Martin Luther King, Jr., his experience attending the [1963] March on Washington.  I also grew up with stories about my grandparents’ experience as the children of Eastern European immigrants living in a racially integrated neighborhood in northwest Baltimore.  They learned English from their black neighbors—it was their first exposure to what it meant to be American.

As a college student in 1993, I volunteered on a voter education project in South Africa before the country’s first free elections.  Our office was in a building with two elevators that were still marked “Europeans Only” and “Non-Europeans and Goods.”  My colleagues were all longtime anti-apartheid activists.  The government had classified them as “African,” they said, except for one, who was “Coloured” or mixed-race.  But, she explained, she was not mixed at all—she would have been classified “African,” except for the fact that her father had been a police officer.  In the 1950s an official responsible for classifying the people in her neighborhood decided to reward her father’s service by listing him as “Coloured.”  As a result of that one simple act—one word—she had led a very different life from her colleagues.  She had grown up in a different kind of township, went to different schools, and only spoke English and Afrikaans.  It was a revelation to me that something that seemed as natural and inevitable as race could bend because of personal relationships, community ties, and individual whim.  I came back to the U.S. wondering if the same kinds of things had happened here, and for the first time, I began reading legal cases from the Jim Crow South in which judges and juries had to determine whether someone was white or black.  The cases presented fascinating portraits of communities that were committed to segregation and white supremacy even as they willed themselves to forget their own ambiguous roots.

 How did your law background impact your understanding of the stories, journals, and documents that you encountered while researching THE INVISIBLE LINE?

 Dozens of court cases have involved people crossing the color line and assimilating into white communities—they are some of the best sources of material on the subject—so having experience working with legal documents really helps in making sense of this history.  From soon after the Revolution until well into the twentieth century, just about every law that distinguished white from black provided occasions where courts were forced to determine someone’s race.  Along with marriage prohibitions and segregated schools and trains, there were different tax rates, gun ownership rules, restrictions on who could testify in court, even libel penalties for falsely accusing someone of being black.  Race in America has always involved a lot of rules, and my legal training has enabled me to recognize both the power of law and its limitations.

Which of the individuals you encountered do you feel most affinity for and why?

I really enjoyed getting to know O.S.B. Wall (1825-1891), the son of a plantation owner and his slave, who was freed and sent north to become educated and learn a trade.  He began as a shoemaker and then became a radical abolitionist, Union Army officer, and eventually a politically active lawyer in Washington, D.C.  He was able to preserve his sense of honor and idealism in terrible times both before and after the Civil War.  Even when he was a humble shoemaker, he was never intimidated by powerful people.  And he had a great sense of humor.

The families that you profile span 200 years of American history. What have we previously overlooked in this time span? 

 We have overlooked one of the great mass migrations in American history: the journey from black to white.  It is a migration that affected large numbers of families and communities.  It contradicted and reinforced slavery and segregation.  It forced people to consider what race means, and changed how they thought about race.  The migration occurred alongside other mass movements in our history—the settlement of North America, our expansion west, the rise of great cities, new waves of immigration, and the industrialization of even our most isolated areas.  In a world defined by change, race could never be a static concept.  Americans have always been in motion and have continually reinvented themselves.  The migration from black to white is a part of this dynamic tradition.

More broadly, we have overlooked the vexed relationship between liberty and equality in our nation’s history.  The prospect of freedom for African Americans has been one of the major forces in the evolution of racism in the United States.  In colonial Virginia, African Americans’ quest for freedom gave rise to black codes.  Even as large numbers of African Americans were being freed during the Revolutionary Era, ideas that blacks were biologically inferior gained widespread currency.  In the decade before the Civil War, white Southerners countered Northern arguments against slavery with race-based justifications for the institution that survived its demise.  After the Civil War, black freedom took root alongside modern forms of racism that persist to this day.  Each advance in liberty gave way to potent new forms of inequality.  Every time the struggle seemed over, it had only begun again.

What about today?

The idea that race is blood-borne and grounded in science still has incredible power over how we think about ourselves and order our worlds.  Even in our “post-racial” era, it is very easy for whites to tune out issues involving African Americans or to regard blacks as fundamentally different from—even opposed to—themselves.  Race remains a potent dividing line and political tool.  I hope to shatter the notion that this line exists and help us to realize that we are all related, that the African American experience is absolutely central to the American experience generally, and that our conventional understanding of racial difference and the persistent legacy of racism are shaped in no small part by the secret history that The Invisible Line explores.

Determining the (In)Determinable: Race in Brazil and the United States

Michigan Journal of Race & Law
Volume 14, Issue 2 (Spring 2009)
pages 143-195

D. Wendy Greene, Assistant Professor of Law
Cumberland School of Law, Samford University, Birmingham, Alabama

Recently, the Brazilian states of Rio de Janeiro, São Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states have established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining “who is Black” has become a complex yet important undertaking in Brazil. Contrary to many scholars’ advancements race in Brazil is skin color or physical appearance, whereas in the United States race is based on ancestry, this Article advances the notion that in both American countries one’s physical appearance is the primary determinant of Blackness. Furthermore, when U.S. courts have been charged with determining Blackness, racial constructs based on physical appearance—not the rule of hypodescent—have steered their legal pronouncement of race. This Article first offers a necessary survey of African slavery in Brazil and the United States. This Article demonstrates that despite the contrasts in demography, slave law, and ensuing racial ideology—“racial democracy” in Brazil and “racial purity” in the United States—the enslavement and subordination of Africans and their descendants spawned a common racial hierarchy and assembly of phenotypes designating Blackness and whiteness. Moreover, this Article surveys historical and contemporary racial determination cases which demonstrate the salience of physical appearance in determining race in the United States and debunks the notion that the hypodescent rule is applied to determine “Blackness”. These cases additionally illuminate the paradoxical nature of race—specifically Blackness and whiteness—in the Americas; race is contextual, subjective, and malleable yet simultaneously fixed, as physical constructs of Blackness and whiteness have transcended geography, time, ideology, and demography. Ultimately, this exploration of racial determination cases imparts insight and guidance to Brazilian arbiters currently determining who is Afro-Brazilian for affirmative action purposes.

Table of Contents

• INTRODUCTION
• I. Slavery, Race, and Racial Ideology in Brazil and the United States Settlement, Slavery, and Demography
  • A. Race, Racial Ideology, and Racial Hierarchy
  • B. Brazil: A “Racial Democracy”
  • C. The United States: A “Racially Pure” Nation
  • D. Brazil and the United States: A Transnational Concept of Race and Racial Hierarchy
• II. Constructing Race: The Role of U.S. Courts
  • A. Race as Physical Appearance and Beyond in the Nineteenth Century: Hudgins v. Wright and White v. Tax Collector
  • B. Racial Determination in the Early Twentieth Century: In Re Cruz
  • C. Moving Toward a New Millennium Yet Mired in the Past: The Malone and Perkins Cases
• III. The Application of U.S. Racial Determination Methods to the Brazilian Case
• CONCLUSION

On January 20, 2009 Barack Obama was inaugurated as the 44th President of the United States. Throughout President Obama’s candidacy and after his victory, one of the primary queries raised by the media revolved around his race: is America “ready” for a Black president? Even though it is publicly known that Obama’s mother is a white American from the Midwest and his father is a native of Kenya, the press as well as most Americans would describe Senator Obama as the first Black president of the United States, rather than the first mixed-race president. The general depiction and acceptance of Senator Obama as Black rather than multiracial generates important questions related to America’s common understanding of race. In the United States, is Obama deemed Black because he has self-identified as Black? Is Obama defined as Black due to his known African ancestry? Or is Obama generally regarded as Black in the United States, despite his known white parentage, because of his physical appearance—one which conforms to a socially constructed image of Blackness?

Since the era of Jim Crow, the rule of hypodescent—the presence of one ancestor of African descent makes an individual’s race Black—has been articulated as the guiding principle for determining one’s “Blackness” and “whiteness” in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one’s physical appearance is determinative. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. Therefore, one’s physical appearance—hair texture, skin color, nose size, eye shape, etc.—determines one’s race in Brazil. Contrary to scholarly opinion “[u]nlike in the United States, race in Brazil refers mostly to skin color or physical appearance rather than to ancestry” and public adherence to this idea, one’s physical appearance is the primary determinant of Blackness in both American countries. Indeed, an individual’s ancestry is necessarily implicated in determining race based on his or her physical appearance, as this method of classifying race is grounded in socially mediated presumptions concerning how an individual’s physical appearance denotes his or her genetic makeup…

…This Article examines the alleged complexity of determining who is Black or Afro-Brazilian for affirmative action purposes in higher education while surveying United States racial determination jurisprudence. This Article is not intended to serve as a dissertation on the legality of race-conscious affirmative action or the efficacy of these programs in the United States and Brazil. Since the United States is considered a global forerunner in the implementation of race-conscious affirmative action in higher education and employment, numerous scholars have debated the validity, constitutionality, and utility of race-conscious affirmative action in Brazil through a U.S./Brazil comparative lens. However, there is a paucity of literature exploring fundamental issues in facilitating race-conscious programs: specifically, who is the proper beneficiary; how should this determination be made; and can Brazilian arbiters adopt U.S. judicial modes of determining race to effectuate their raceconscious affirmative action programs? The objective of this Article is to mitigate this void in comparative scholarship by demonstrating the universality of race and the law’s role in constructing race, racial ideology, and racial hierarchy.

First, this Article discusses African slavery in Brazil and the United States, which is crucial to the understanding of race, racial ideology, and racial hierarchy in the two nations. Part I explores the differences and similarities between the conception of race in Brazil and the United States, specifically focusing on the construction of Black, white, and multi-racial classifications. Part I also considers the influence of slavery and settlement patterns on the contrasting racial ideologies in both American nations—“racial democracy” in Brazil and “racial purity” in the United States. Additionally, this section illustrates that a mutual racial hierarchy constructed around physical appearance developed and endures despite the divergent racial ideologies, settlement patterns and slavery law in Brazil and the United States.

Next, Part II examines a series of racial determination cases decided by American courts historically and contemporarily and the various methods these courts appropriated to determine an individual’s race. This survey of racial determination cases illuminates the salience of physical appearance in determining race as well as the paradoxical nature of race—specifically Blackness and whiteness—in the Americas; race is contextual, subjective, and malleable yet simultaneously fixed, as physical constructs of Blackness and whiteness have transcended geography, time, ideology, and demography. Part III concludes with a consideration of Brazilian arbiters adopting American judicial modes of determining race and the potential consequences of doing so…

Read the entire article here.

Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia

Georgetown Law Review
Volume 77, Number 6 (August 1989)
pages 1967-2029

A. Leon Higginbotham, Jr., Judge (1928-1998)
United States Court of Appeals (3rd Circuit)

Barbara K. Kopytoff, Professor of Law (1938-1999)
University of Pennsylvania

I. Introduction

There is probably no better place than Virginia to examine the origins of the American doctrine of racial purity and the related prohibitions on interracial sex and interracial marriage. Many people applaud Virginia as the “mother of Presidents” (four of the first five Presidents were Virginians) and the “mother of revolutionaries,” such as Thomas Jefferson, George Washington, and Patrick Henry. Yet few stress that colonial Virginia was also the “mother” of American slavery and a leader in the gradual debasement of blacks through its institution of slavery. Virginia was also one of the first colonies to formulate a legal definition of race and to enact prohibitions against interracial marriage and interracial sex. For more than three centuries, the Virginia courts and legislatures advocated and endorsed concepts of racial purity that we would call racist.

While Virginia was a pioneer in these areas of law both before and after the Civil War, the pre-Civil War law was significantly different from that of the early twentieth century. The law of racial purity in the eighteenth century defined “white” as a less exclusive term than did the law of the twentieth century: people some of whose ancestors were known to be African could be legally white. The laws banning interracial sex and marriage were less harsh on blacks before the Civil War than they were afterwards: they did not punish blacks at all for marriage or for voluntary sexual relations with whites…

Read or purchase the article here.

Miscegenation and competing definitions of race in twentieth-century Louisiana

Journal of Southern History
Volume 71, Number 3 (August, 2005)
pages 621-659

Michelle Brattain, Associate Professor of History
Georgia State University

MARCUS BRUCE CHRISTIAN, AN AUTHOR AND PROFESSOR AT DILLARD University, observed in the mid-nineteen-fifties that while New Orleans might be known for “gumbo, jambalaya, lagniappe, poor boy sandwiches, pralines, Mardi Gras and Creoles,” it also has “another claim to distinction which has not been bruited about very loudly. ” New Orleans is a place, he wrote, where family lines “waver back and forth across color-lines like wet wash in a high March wind.” The city has given to America “more ‘passer pour blanches’ [people who pass for white] than any other city in our country.” A poet and scholar of black history, Christian anticipated much of the current academic interest in race as a social construction. (1) His meticulous histories of eighteenth—and nineteenth-century families recreated an era when racial lines were more fluid and southern society accepted—or at least expected—interracial sex. In the latter half of Christian’s career, as a civil rights struggle charged with anxieties about interracial contact swirled around him, his interests broadened to include the progeny of those early families. Among thousands of newspaper clippings that Christian saved over his lifetime—documenting New Orleans history from the protracted fight over school desegregation to the debate over stereotypical and degrading representations of Africans in Mardi Gras–one finds dozens of society photographs, wedding announcements, and obituaries that he compiled, seemingly in an attempt to discover a similar secret interracial history of the twentieth century. In the margins, he sometimes annotated genealogies, alternate spellings, or anecdotes about similar names encountered on the other side of the color line. In 1959, for example, he noted, and documented, the strange coincidence of a death notice for a man he thought was a “Negro,” who had died at an “all white” hospital, and speculated on the dead man’s familial relationship to a realtor listing a “colored” apartment a couple of weeks later. Of the family name in question, he later wrote to himself, “Joubert? What about the white family that says it spells its name ‘Jau’ and not ‘Jou’ [?]” Christian often wrote simply, as he did on a 1960 photograph of a couple cutting their fiftieth-anniversary cake, the word miscegenation. (2) The basis for such judgments was rarely explained. Perhaps it was a distant memory, a rumor, or merely Christian asserting his ability as a black man to spot passer pour blanches. Unfortunately he never published his side of these stories…

…Two striking conclusions emerge from an analysis of these records. First, Louisianans held much more complicated and historically contingent views of race than the statutes and court decisions alone would suggest. The legal adjudication of race in the twentieth century, as Pascoe has argued, historically had a complex, interdependent relationship with popular and scientific beliefs about race. This essay examines one aspect of that tension. By necessity, politics and the courts represented abstract law that could recognize only black and white, but the people who entered the courts worked with a more practical understanding that was also born of necessity. Most noteworthy about the testimony of people brought into Louisiana courts by miscegenation law is the fluidity and contextual nuance with which many people viewed race. In spite of the mid-twentieth century’s increasingly rigid lines of demarcation with regard to race, many ordinary Louisiana citizens instinctively understood and accepted the essentially social nature of racial definitions, and they worked with these definitions in the most private areas of their lives…

…Second, though miscegenation law frequently failed to prevent sex across the race line, it served another equally significant function in the twentieth century: a tool to monitor racial boundaries. Louisiana state law had often been able to tame and contain the contradictions of black and white, but by the mid-twentieth century, the demands of massive resistance increasingly brought about more ideological and less practical applications of jurisprudence. Official public records associated with essentially private and gendered actions such as birth and marriage became a gatekeeping mechanism for maintaining segregation in Louisiana schools, sports, and public conveyances. Government-employed bureaucrats carried out increasingly stringent investigations of once-routine applications for marriage licenses, death certificates, and birth certificates in order to police the boundaries of race and expose those who in the past might have “passed” as white or married across race lines. These private points of individual connection with the state, therefore, took on a substantial burden in the maintenance of racial boundaries, the punishment of miscegenation, and the defense of whiteness. The objective of anti-miscegenation law was ostensibly to discourage and punish sex across the race line, but it also permitted the state to use gender and private life to control the same boundary. In doing so, it made significant contributions to the redefinition of miscegenation and race itself.

Incidents of “race mixture” and white attempts to control such encounters have a long and infamous history in the South. Although prohibition of interracial sex was typically legislators’ stated objective, recent scholarship also underscores the deeply contextual nature of the statutes’ various incarnations. In colonial Virginia, where the earliest legislation on interracial liaisons appeared in 1662, the law reflected first the English conception of broadly defined racial hierarchy and later the social and economic dominance of explicitly racial slavery. At all times, colonial law addressed the reality of ongoing racial mixing, even as it represented what A. Leon Higginbotham Jr. and Barbara K. Kopytoff have aptly described as “attempts to patch holes in the fabric of the system.” (10)

The solution, as Peter W. Bardaglio puts it, was a legal attempt “not so much to eliminate interracial sexual contacts as to channel them” in directions that bolstered the slave system and existing racial and gender hierarchies. (11) While the specific definitions of the crime and punishment varied, as Charles Robinson notes, “In each colony a violation of the law required some party, man, woman, and/or child, to make restitution by sacrificing freedom.” Doubling the fine for interracial fornication, Virginia’s assembly, for example, declared in 1662 that an interracial child’s status would follow that of the mother. This ruling insured that the most common transgression of the color line–between black women and white men–would not undermine a social system increasingly based on a dichotomy between black slaves and free white persons. Maryland’s 1664 anti-miscegenation law did not proscribe marriage, but it declared that a white woman who married a slave would serve that slave’s master for the remainder of the husband’s life and that any offspring would be required to labor for the parish for thirty-one years. After 1692 in Maryland and 1725 in Pennsylvania, free black men who married white women were sentenced to a lifetime of slavery. In the first half of the eighteenth century, Massachusetts, North Carolina, South Carolina, Delaware, and Georgia enacted provisions similar to those of Virginia, Maryland, and Pennsylvania. (12) Colonial officials also singled out white women who had sex with black men for special punishment, a double standard that reflected, among other concerns, a perceived need both to control white female sexuality and to eliminate the threat that interracial offspring posed to the institution of slavery…

…In the early nineteenth century, as moral reformers encouraged the spread of anti-miscegenation laws throughout the United States, Louisiana law continued to reflect a greater preoccupation with racial hierarchy and property than with sex. In 1825, for example, the legislature revised the civil code to outlaw the legitimization of biracial children by white fathers, prohibit children of color from claiming paternity from white fathers, and make it more difficult for biracial children to receive an inheritance by disallowing all but formal legal acknowledgement as a basis for establishing paternity. Through such measures Louisianans eliminated the old French laws governing support of children born within placage and protected the interests of white heirs from siblings of color. Interracial marriage remained illegal in the sense that it was legally invalid, but the law did not prescribe punishment for violators…

Read the entire article here or here.

All Things Being Equal: The Promise of Affirmative Efforts to Eradicate Color-Coded Inequality in the United States and Brazil

National Black Law Journal
Volume 21, Number 3 (2009)
41 pages

Tanya M. Washington, Associate Professor of Law
Georgia State University

The contrasted contexts of the United States and Brazil provide an intellectually fascinating framework for the consideration of race conscious remedies to racial inequality. “Any comparative examination of race relations hinges on the question of racial inequality: in what ways are blacks disadvantaged in relation to whites in each society . . . ?” A casual observer may compare the United State’s insistence on racial assignment and history of de jure and de facto racial discrimination with Brazilian historical aversion to racial classification and history of de facto discrimination and conclude that race and color enjoy more conceptual and legal relevance in the former context than in the latter.

Introduction

The contrasted contexts of the United States and Brazil provide an intellectually fascinating framework for the consideration of race conscious remedies to racial inequality. “Any comparative examination of race relations hinges on the question of racial inequality: in what ways are blacks disadvantaged in relation to whites in each society… ?”1 A casual observer may compare the United State’s insistence on racial assignment and history of de jure and de facto racial discrimination with Brazilian historical aversion to racial classification and history of de facto discrimination and conclude that race and color enjoy more conceptual and legal relevance in the former context than in the latter.  This conclusion, in turn, would inform a judgment as to the relative necessity and efficacy of the administration of affirmative action in both nations. Instead of using the apparent differences between legal definitions of race and color in the two countries as a reference point for comparing the utility of affirmative action as a means of eradicating color-coded inequality, this article uses as its point of departure, the similar ways that racial and color-based inequality have been manufactured in the United States and Brazil.4 “Because they share the same battle against insidious systems of racial hierarchy, it is sensible for both Americas to… focus upon the commonality of the historical legacy of slavery and its outgrowth in the continuing societal efforts to maintain privilege…” “North and South America… share a societal use of segregation for the promotion of supremacy. The segregation of education has been a key to this agenda of privilege.” Within the context of education, this piece treats affirmative action as a crucible, revealing racialized narratives, polarities, hierarchies and constructs, which have created and maintained the color-coded inequality that characterizes both American and Brazilian social, political, and economic realities…

…A substantively different construction of affirmative action, called by the same name, is being implemented in Brazil. Brazil has historically been described as a Racial Democracy, a national ideology that shares with colorblindness a resistance to the legal relevance of race. As this ideology yields to a national narrative that recognizes color-coded realities,16 the Brazilian government is utilizing the most aggressive form of affirmative action, quotas, to both remedy significant racialized social, economic and political disparities and to achieve substantive economic, social and political equality for its citizens. Brazilians opposed to affirmative action practices and policies, echoing objections raised by affirmative action detractors in the United States, charge that racial assignment and classification for the purpose of including some and excluding others (i.e., the legalization of racial classifications) is divisive,17 destabilizing, and impossible in a nation that has existed without categorical racial identities. This article considers whether a diversity focused affirmative action policy would provide a more politically palatable framework for race-conscious governmental action, and offer a justification that is more concentric with the Brazilian orientation towards difference, than a remediation focused policy.

The growing awareness of racial disparities as a catalyst to and justification for efforts to achieve substantive equality in Brazil and the growing reticence in the United States to the use of race conscious means of facilitating substantive equality, provide a unique opportunity for a comparative analysis of the ways in which racism and colorism construct social, economic and political inequality for Afro- Brazilians and Black Americans and the extent to which affirmative action can provide an effective vehicle for reform in both nations. Part I of this article begins with an examination of the history and evolution of the significance and uses of race and color that have informed the current climate of raceblindness in the face of racial inequality in both nations. This section explores the ways in which the legend of Racial Democracy continues to pervade perceptions of race and challenge efforts to remedy racial inequities in Brazil and the ways in which the ideology of colorblindness has provided a jurisprudential framework inherently hostile to race-conscious efforts to achieve substantive equality in America.

Part II of this article highlights racial disparities in both nations and identifies racial polarity, which expresses fixed and diametrically opposed valuations of whiteness and blackness, reflected in white-to-black color hierarchies that operate in both the United States and Brazil, as their chief article contrasts colorblindness in the United States and Racial Democracy in Brazil architect. In keeping with this theme, race and color are considered throughout this piece within a binary (black/white) framework, which underscores the central thesis that black-white racial polarities, in concert with normative whiteness, create substantive social, economic, and political inequality in both countries.

Part III of this article contrasts colorblindness in the United States and Racial Democracy in Brazil and addresses how racial and color-based inequality are both masked and manufactured at the intersection of racial polarity and resistance to an acknowledgement of the legal relevance of race in both nations. This section of the article then focuses on the prospects of a Brazilian affirmative action project based on educational diversity and its transformative possibilities for creating substantive equality. It highlights how Brazil’s Constitution and its affirmative action legislation accommodate and instigate responses to racial inequality that challenge normative whiteness. This article ends on an optimistic note, concluding that an educational diversity focused affirmative action project may be a more effective tool with which to disrupt racial polarity in Brazil and dismantle the consequent color hierarchy that creates and perpetuates substantive inequality.

…The prospect of freedom for the slaves inspired insecurity among white Brazilians, and created the need for structures and policies that would maintain their status as the ruling elite. Responding to this exigency, the Brazilian government engaged in large scale immigration of European whites and encouraged miscegenation in order to improve the racial balance between blacks and whites. The “whitening” of the Brazilian population, through miscegenation, was believed to have a civilizing effect on the Brazilian population of observable African ancestry and reinforced normative whiteness (i.e., whiteness as the value standard). A popular slogan of the day, “Marry White to Improve the Race,” captured the pervasive sentiment.

Gilberto Freyre, credited with popularizing the idea of Racial Democracy in the 1930s and 1940s, studied at Baylor University in Texas in the early 1900s and reacted with horror to the Jim Crow institutions and practices he witnessed during his visit, including a lynching.

The shock of Freyre’s encounter with the racial hostility and segregation of the United States led him to construct a vision of Brazil’s past (and, by extension, its present and future) that proved deeply appealing to many Brazilians. Scientific racism and its Brazilian variant, the whitening thesis, had viewed Brazil’s history of slavery and miscegenation, and the racially mixed population which was its legacy, as shameful obstacles that had to be overcome if Brazil were to enter the community of civilized nations. Freyre… rehabilitated that past, recasting it as the basis of a new national identity independent, for the first time in Brazilian history, of European norms and models…. Freyre’s writings thus became the basis of a new, semi-official ideology propagated in public proclamations, schools, universities, and the national media…

Read the entire article here.

Changing Census, Changing America

Southern Changes: The Journal of the Southern Regional Council
Volume 22, Number 4 (2000)
pages 24-26

Edward Still

Every census is different from the last, but there are some big changes in store with Census 2000. Beginning in early March 2001, the Bureau will publish census data for each state to use in redistricting. What new things can we expect from this census? To begin with, we will have access to census data more easily via computer. The Census Bureau will be posting census data on its website, www.census.gov and a separate site for the American Factfinder, www.factfinder.census.gov. More importantly, the data will be different from past censuses. I want to discuss two changes: the racial data and the sampling controversy.

Reporting One or More Races

For the first time, Census 2000 allowed respondents to identify themselves as a member of more than one race. The census asked, “What is this person’s race? Mark one or more races to indicate what this person considers himself/herself to be.” The races which the Census Bureau will report are: white; black, African American, or Negro; American Indian or Alaska Native; Asian; Native Hawaiian or other Pacific Islander; and, “Some other race.” (In the 1990 Census, the Asian and Native Hawaiian/Pacific Islander groups were combined.)

Because the respondents were allowed to choose more than one race, there are fifty-seven possible combinations of racial groupings-ranging from people who mark two races (ten possible combinations) to people who claim all six racial categories…

Read the entire article here.

Remembering Mildred Loving, Unsung Hero of the Civil Rights Movement

Counterpunch
2008-05-09

Mark A. Huddle, Associate Professor of History
Georgia College and State University

Fighting “Anti-Miscegenation” Laws

On May 2, Mildred Loving died from complications of pneumonia at the age of 68.  The unassuming Mrs. Loving would have scoffed at the notion that she was a hero of the Civil Rights Movement.  But for millions of Americans the Loving v. Virginia (1967) case—which outlawed bans on interracial marriage—has resonated to the present as their declaration of independence. 

The Lovings’ story began in June 1958 when they were married in Washington, DC.  Richard Perry Loving and Mildred Delores Jeter of Central Point, Virginia crossed into the District to evade their state’s Racial Integrity Act, a law that defined the marriage of a white man and African American woman as a felony.  Five weeks later on July 11, the newly-married couple was rousted from their bed by the Caroline County, Virginia sheriff and two deputies and arrested for violating the 1924 law.  In a plea agreement, they pleaded guilty in return for a one-year suspended jail sentence and an agreement not to return to the state together for twenty-five years. 

The couple moved to Washington, started a family, and struggled to make ends meet.  Eventually the isolation from family and friends proved too much.  In 1963 Mildred Loving contacted the American Civil Liberties Union which agreed to take the case.  Eventually Loving v. Virginia was argued before the Supreme Court of the United States on April 10, 1967.  Chief Justice Earl Warren delivered the opinion of the Court on June 12.  Warren put the question succinctly:  did the “statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications” violate the “Equal Protection and Due Process Clauses of the Fourteenth Amendment?”  The Court concluded that the Virginia law directly contradicted the “central meaning” of those constitutional safeguards and was therefore unconstitutional.

The Lovings were always quick to note that while they were glad their case proved so helpful to so many people their main concern was the welfare of their own family.  “We are doing it for us,” Richard Loving told an interviewer in 1966.  But the Loving decision eventually impacted millions. 

So-called “anti-miscegenation laws” were one of the more tenacious vestiges of Jim Crow.  The last state to strike anti-miscegenation statutes from its organic law was Alabama which waited until 2000 to do so.  In the decades since the ruling, there has been a marked increase in mixed race marriages and by the 1990s we were in the midst of an interracial baby-boom.  Also of particular importance to the growth of the mixed-race population was the Immigration Act of 1965 that eliminated many of the racist immigration restrictions from earlier legislation and contributed to the “browning of America.”  Census 2000, the first to allow Americans to check more than one box for racial identity, counted 7.3 million people, about 3 percent of the population, as interracial.  The most striking fact of all from the data is that 41 percent of that mixed race population was under the age of eighteen…

Read the entire article here.

The Devil and the One Drop Rule: Racial Categories, African Americans and the U.S. Census

Michigan Law Review
Volume 95, Number 5 (March 1997)
pages 1161-1265

Christine B. Hickman, Associate Professor of Law
California Western School of Law

Table of Contents

• Introduction
• I. Treatment of Mixed-Race People: The Early Legal Record
  • A. The First African Americans and the First Race Mixing
  • B. Mulattoes: Black by Law
  • C. A Study in Contrasts: Exclusion of Mulattoes from De Crèvecoeur’s “New Race of Men”
  • D. The Census and the Mulatto Category, 1850-1910
• II. Proposals for a Multiracial Category: Critiquing the Discourse
  • A. The One Drop Rule: The Misapprehension of the Historical Context
    1. Misperceptions of the One Drop Rule: Gotanda’s Theories of Racial Purity, Objectivity and Subordination in Recognition
    2. The One Drop Rule and “Buying into the System of Racial Domination”
    3. Lessons from the South African Experience
  • B. Rebiologizing Race
    1. The Collapse of Biological Race
    2. Proposals for a Broad Genetically Based Multiracial Category
    3. The Proposal for a Majoritarian Classification System
    4. Biological Passing for Black
    5. The Harlem Renaissance and Cultural
    6. Race, Biology and the Law: The Racial Credential Cases
  • C. The Dangers of Redefining Black: Distancing.
    1. Finding Solutions for the Lighter Part of the Race
    2. Sanitizing our Attacks on Racism
    3. Conclusion
• III. From the One Drop Rule to the Discourse on Race
  • A. There is Race
  • B. Race as a Metaphor
  • C. Essential vs. Cultural Concepts of Race
  • D. Race as a Choice
    1. Appiah, Lee, and the Choice of Our Racial Identity
    2. Choice Today
    3. The Choice of Our Race by Daily Actions
• IV. A Proposal for the Census
  • A. The Broad, Blood-based Multiracial Category
  • B. Counting Loving’s Children on the Race Line
    1. Multiracial Status as Race
    2. The False Choice Between Race and Multirace
    3. The Multiracial Category on the “Race” Line: Guaranteed Inaccuracy
  • C. A Line of Their Own.
• Conclusion

For generations, the boundaries of the African-American race have been formed by a rule, informally known as the “one drop rule,” which, in its colloquial definition, provides that one drop of Black blood makes a person Black. In more formal, sociological circles, the rule is known as a form of “hypodescent” and its meaning remains basically the same: anyone with a known Black ancestor is considered Black. Over the generations, this rule has not only shaped countless lives, it has created the African-American race as we know it today, and it has defined not just the history of this race but a large part of the history of America.

Now as the millennium approaches, social forces require some rethinking of this important, old rule. Plessy v. Ferguson, which affirmed the right of states to mandate “equal but separate accommodations” for White and “colored” train passengers, is a century old. Brown v. Board of Education, which effectively overruled Plessy and instituted the end of de jure discrimination, was decided over a generation ago. Nearly thirty years have passed since the Supreme Court, in Loving v. Virginia, invalidated any prohibition against interracial marriage as unconstitutional. Since the 1967 Loving decision, the number of interracial marriages has nearly quadrupled. This trend has even extended to Black-White couples, whose intermarriage rate has traditionally lagged behind that of other racial and ethnic groups. For the first time, opinion polls indicate that more Americans approve of interracial marriage than disapprove. The number of children born to parents of different races has increased dramatically, and some of the offspring of these interracial marriages have assumed prominent roles in American popular culture.

Some of these children of interracial marriages are now arguing cogently for a reappraisal of hypodescent. Their movement has sprung to public consciousness with the recent bid by multiracial organizations, over the objections of civil rights groups, to put a “multiracial” category in the “race” section of the forms that will be used when the next decennial census is conducted in the year 2000. This proposal has immense practical importance because the census provides the nation with its main source of racial and ethnic data. For example, implementation of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Equal Employment Opportunity Act of 1972 all depend on racial and ethnic statistics culled from the census, and the addition of a new category could change the count of the existing racial groups and alter the way these laws are implemented.

One wing of this new multiracial movement argues that a new “multiracial box” should be made available for the growing number of children of interracial marriages. Another wing of this movement, in books and law review articles, suggests that the addition of this category should be part of a wholesale redefinition of the racial identities of most Americans. The thinking of both wings of the multiracial movement is informed by their rejection of hypodescent and the “one drop rule.” To date, the participants in this discourse have emphasized the racist notions of White racial purity that gave rise to the one drop rule. They have concluded that the effects of this old rule are mainly evil and that the consequences of abandoning it will be mainly good. Based in part on such reasoning, the more activist wing of this movement has proposed several neat, symmetrical, and radical redefinitions of African-American racial identity. Under one such proposed definition, any Black person with White or Native American ancestry would become “multiracial.” Under another, any Black person with a “majority of [his] origins in the original peoples of Europe” would become European American.

My purpose in this article is to critique this discourse. I agree that the one drop rule had its origins in racist notions of White purity. However, many scholars have misunderstood the way that this rule has shaped the Black experience in America, and this misunderstanding has distorted their proposals for a new multiracial category on the census forms. As we examine the one drop rule and its importance in the current discourse, we should recall the famous exchange between Faust and Goethe’s Devil:

Faust: Say at least, who you are?

Mephistopheles: I am part of that power which ever wills evil yet ever accomplishes good.

So it was with the one drop rule. The Devil fashioned it out of racism, malice, greed, lust, and ignorance, but in so doing he also accomplished good: His rule created the African-American race as we know it today, and while this race has its origins in the peoples of three continents and its members can look very different from one another, over the centuries the Devil’s one drop rule united this race as a people in the fight against slavery, segregation, and racial injustice…

Read the entire article here.

Mestizaje and Law Making in Indigenous Identity Formation in Northeastern Brazil: “After the Conflict Came the History”

American Anthropologist
Volume 106, Issue 4 (December 2004)
pages 663–674
DOI: 10.1525/aa.2004.106.4.663

Jan Hoffman French, Assistant Professor of Anthropology
University of Richmond

In this article, I explore issues of authenticity, legal discourse, and local requirements of belonging by considering the recent surge of indigenous recognitions in northeastern Brazil. I investigate how race and ethnicity are implicated in the recognition process in Brazil on the basis of an analysis of a successful struggle for indigenous identity and access to land by a group of mixed-race, visibly, African-descended rural workers. I propose that the debate over mestizaje (ethnoracial and cultural mixing) in the Spanish-speaking countries of Latin America can be reconfigured and clarified by broadening it to include such Brazilian experiences. I argue that the interaction between two processes—law making and indigenous identity formation—is crucial to understanding how the notion of “mixed heritage” is both reinforced and disentangled. As such, this article is an illustration of the role of legal discourse in the constitution of indigenous identities and it introduces northeastern Brazil into the global discussion of law, indigenous rights, and claims to citizenship.

Read or purchase the article here.