Mixed Race Studies

Shades of Brown: The Law of Skin Color

Duke Law Journal
Volume 49, Number 6 (April 2000)
pages 1487-1557

Trina Jones, Professor of Law
Duke University

Because antidiscrimination efforts have focused primarily on race, courts have largely ignored discrimination within racial classifications on the basis of skin color. In this Article, Professor Jones brings light to this area by examining the historical and contemporary significance of skin color in the United States. She argues that discrimination based on skin color, or colorism, is a present reality and predicts that this form of discrimination will assume increasing significance in the future as current understandings of race and racial classifications disintegrate. She maintains that the legal system must develop a firm understanding of colorism in order for the quest for equality of opportunity to succeed.

TABLE OF CONTENTS

• INTRODUCTION
• I. DISTINGUISHING RACE AND SKIN COLOR
  • II. COLOR DISTINCTIONS THROUGH THE LENS OF TIME
  • A. Before the Civil War: 1607-1861
  • B. After the Civil War: 1865-2000
  • C. The Social Psychology of Contemporary Black-White Colorism
• III. COLOR IN CONTEMPORARY LAW
  • A. Statutory Support for Color Claims
  • B. Substantive Content of Color Claims
  • C. Race, Color, Mixed Racial Identity and Employment Discrimination Law
  • D. Colorism and the Quest for Equality of Opportunity
• CONCLUSION
• FOOTNOTES

INTRODUCTION

On the Saturday evening following my mother’s recent marriage, old friends and new gathered at a local restaurant to celebrate the occasion. While standing in the buffet line, I turned to introduce my new step-niece, Aaliyah (age 4), to the son of a family friend, LaShaun (age 5). Immediately following the introduction, LaShaun, who is clearly outgoing and charismatic, looked up at me with the innocent honesty of a child and said, “I know another Aaliyah at my school, but she’s brown.”

The first thing LaShaun, whose skin is a rich Michael Jordan chocolate, noticed about Aaliyah was her light golden brown skin. LaShaun did not create or invent these differences. Without deliberate or conscious design, his statement merely reflects the fact that he operates in a social context where people learn early on that color is significant. Although some people may claim that color differences [*pg 1489] within racial groups are without meaning and that people do not notice or care about fine differences in skin pigmentation, the observations of a five-year-old child belie these statements. And so does history.

This Article examines the prejudicial treatment of individuals falling within the same racial group on the basis of skin color in the context of antidiscrimination law. In a 1982 essay, Alice Walker called this prejudicial treatment “colorism.” Although this terminology appears to be relatively new, colorism is not a recent invention. In the United States, this form of discrimination dates back at least as far as the colonial era. Yet, notwithstanding its long existence, colorism is often overshadowed by, or subsumed within, racism. As a result, courts are either unaware of the practice or tend to minimize its importance.  This state of affairs is unfortunate because, as I demonstrate in this Article, color differences are still frequently used as a basis for discrimination independently of racial categorization.

The analysis proceeds in three parts. Part I distinguishes colorism from racism. Because the ultimate result of race-mixing was the creation of tone or hue variations within racial groups, Part II explores the history of miscegenation in this country in order to demonstrate how society has used skin color to demarcate lines between racial groups and to determine the relative position and treatment of individuals within racial categories. This history illuminates contemporary discrimination on the basis of color. Part III examines the judicial response to contemporary claims based on color and explains why courts can and should permit color claims in the context of antidiscrimination law. Part III also investigates the suggestion that racial classification may become increasingly difficult in the future as the acceptability of the one-drop rule declines and as race-mixing increases. Assuming that there is merit to this suggestion, Part III probes whether legal recognition of claims based upon skin color will provide suitable redress for discrimination against persons who are neither visibly White nor visibly Black.

My hope is that this Article will assist in the development of a more nuanced understanding of the intricate ways in which people discriminate in this country. More specifically, by engaging in this investigation, I seek to prevent the law from becoming a source of injustice by showing how progress towards equality of opportunity may be overstated if colorism is ignored. Briefly, in the aftermath of the civil rights movement, employers have hired increasing numbers of Blacks into positions not previously available to them. The increasing number of Blacks in these positions suggests racial progress. Studies show, however, that Blacks in positions of prominence and authority tend to be lighter-skinned. Thus, some employers may be hiring only a subset of the Black population, a subset selected, in part, based on skin color. Because some Blacks are being denied access to employment opportunities due to colorism, the appearance of progress is more limited than we might assume. Legal recognition of color claims is one way to begin redressing this situation.

It is important to note that the analysis contained herein focuses on color dynamics among Black Americans. Although some scholars have criticized the tendency to analyze racial issues in terms of a Black/White dichotomy, I have chosen to concentrate on the Black community in order to limit the magnitude of this project without sacrificing its utility. In addition, this focus allows me to probe more directly the peculiar symbolism of black and white as colors. This symbolism suggests that although colorism is an important element of racism, it is equally its own distinct phenomenon. Finally, although I do not wish to endorse the reduction of race relations to a Black/White paradigm, I have chosen to focus on the dynamics of the racial group with which I am most familiar. I recognize that similar issues concerning skin color exist within Native American, Asian-American, and Latino communities, and believe that issues peculiar to those communities merit detailed study. Although such analysis is beyond the scope of this initial project, I hope this Article will nonetheless be of assistance to scholars in future investigations involving questions specific to other racial groups…

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Crossing borders, erasing boundaries: Interethnic marriages in Tucson, 1854-1930

University of Arizona
392 pages
Publication Number: AAT 3398995
ISBN: 9781109735864

Salvador Acosta

A Dissertation Submitted to the Faculty of the Department of History In Partial Fulfillment of the Requirements For the Degree of Doctor of Philosophy in the Graduate College The University of Arizona

This dissertation examines the interethnic marriages of Mexicans in Tucson, Arizona, between 1854 and 1930. Arizona’s miscegenation law (1864-1962) prohibited the marriages of whites with blacks, Chinese, and Indians—and eventually those with Asian Indians and Filipinos. Mexicans, legally white, could intermarry with whites, but the anti-Mexican rhetoric of manifest destiny suggests that these unions represented social transgressions. Opponents and proponents of expansionism frequently warned against the purported dangers of racial amalgamation with Mexicans. The explanation to the apparent disjuncture between this rhetoric and the high incidence of Mexican-white marriages in Tucson lies in the difference between two groups: the men who denigrated Mexicans were usually middle- and upper-class men who never visited Mexico or the American Southwest, while those who married Mexicans were primarily working-class westering men. The typical American man chose to pursue his own happiness rather than adhere to a national, racial project.

This study provides the largest quantitative analysis of intermarriages in the West. The great majority of these intermarriages occurred between whites and Mexicans. Though significantly lower in total numbers, Mexican women accounted for large percentages of all marriages for black and Chinese men. The children of these couples almost always married Mexicans. All of these marriages were illegal in Arizona, but local officials frequently disregarded the law. Their passive acceptance underscores their racial ambiguity of Mexicans. Their legal whiteness allowed them to marry whites, and their social non-whiteness facilitated their marriages with blacks and Chinese.

The dissertation suggests the need to reassess two predominant claims in American historiography: first, that Mexican-white intermarriages in the nineteenth-century Southwest occurred primarily between the daughters of Mexican elites and enterprising white men; and second, that the arrival of white women led to decreases in intermarriages. Working-class whites and Mexicans in fact accounted for the majority of intermarriages between 1860 and 1930. The number of intermarriages as total numbers always increased, and the percentage of white men who had the option to marry—i.e., those who lived in Arizona as bachelors—continued to intermarry at rates that rivaled the high percentages of the 1860s and 1870s.

TABLE OF CONTENTS

• LIST OF FIGURES
• LIST OF TABLES
• ABSTRACT
• INTRODUCTION
• CHAPTER 1: ARIZONA’S MISCEGENATION LAW AND THE VULNERABILITY OF ILLICIT MARRIAGES
• CHAPTER 2: THE DISCOURSE OF MANIFEST DESTINY AND THE MEXICAN QUESTION
• CHAPTER 3: UNDERMINING MANIFEST DESTINY: AMERICAN TRAVEL NARRATIVES
• CHAPTER 4: THE MEXICAN QUESTION REACHES ARIZONA
• CHAPTER 5: INTERMARRIAGES IN TUCSON, 1860-1930
• CHAPTER 6: MARRIAGES BETWEEN MEXICANS AND NON-WHITES
• CHAPTER 7: MARITAL EXPECTATIONS: PROPERTY, NETWORKS, AND VIOLENCE AMONG INTERETHNIC COUPLES
• CONCLUSION
• APPENDIX A
• APPENDIX B
• REFERENCES

LIST OF FIGURES

• Figure 5.1. Interethnic unions for men and women of white ancestry and men and women of Mexican ancestry, Tucson, 1860-1930
• Figure 5.2. Average number of years by which men were older than their interethnic partners, Tucson, 1860-1930
• Figure 5.3. Occupations of men involved in interethnic relationships, excluding those listed as retired or with no occupation, Tucson, 1860-1930
• Figure 5.4. White man-Mexican woman couples versus other kinds of interethnic unions between whites and Mexicans, Tucson, 1860-1930
• Figure 5.5. Interethnic unions involving white, Mexican, and mixed (white-Mexican) men and women, 1930. N=279
• Figure 5.6. Ethnic background of the spouses of men of white-Mexican ancestry, Tucson, 1900-1930
• Figure 5.7. Ethnic background of the spouses of women of white-Mexican ancestry, Tucson, 1900-1930
• Figure 5.8. Mexican (M) and white (W) households as a percentage of total households in each census district, Tucson, 1920 (citywide: white 53.6%, Mexican 36.7%)
• Figure 5.9. Interethnic couples as a percentage of all couples in each census district, Tucson, 1920 (citywide: 7%; 228 of the 236 couples were between Mexicans and whites)
• Figure 5.10. Mexican-white couples as a percentage of all couples involving people of white ancestry in each census district, Tucson, 1920 (citywide: 12%)
• Figure 5.11. Mexican-white couples as a percentage of all couples involving people of Mexican ancestry in each census district, Tucson, 1920 (citywide: 18.2%)
• Figure 5.12. Geographic distribution of Mexican households, 1930. N=2304
• Figure 5.13. Single white women as percentage of the total population, United States and Tucson, 1870-1930
• Figure 5.14. Single white women sixteen years and over as a percentage of the total population in each census district, Tucson, 1920 (citywide: n=574 or 2.8%, average age=26.6 years; nationwide for whites: 4.9%)
• Figure 5.15. Probable marital status of white men in endogamous relationships, Tucson, 1910. N=927
• Figure 5.16. Percentage of interethnic unions for white men according to probable marital status when residing in Arizona, Tucson, 1910
• Figure 5.17. Probable marital status of foreign white men involved in endogamous relationships, Tucson, 1910. N=166
• Figure 5.18. Percentage of interethnic unions for foreign white men according to probable marital status when residing in Arizona, Tucson, 1910
• Figure 6.1. Distribution of black and Chinese residents per census district, Tucson, 1930. Citywide: 484 black men (BM), 477 black women (BW), 152 Chinese men (CM), and 60 Chinese women (CW)
• Figure 7.1. Charges cited in divorce petitions of intermarried couples, Pima County, 1873-1930

LIST OF TABLES

• Table 1.1 Interethnic unions involving blacks, Chinese, Mexicans, and descendants of these combinations, Pima County, 1860-1930
• Table 5.1. Population, couples, and single men and women, Tucson, 1860-1880
• Table 5.2. Interethnic couples as percentages of all couples, Tucson, 1860-1880
• Table 5.3. Population, households, and single white women, Tucson, 1900-1930
• Table 6.1. Black men and women and interethnic couples, Tucson, 1860-1930
• Table 6.2. Chinese immigrants to the United States by decade, and Chinese residents in Tucson by census year, 1870-1930
• Table 6.3. Chinese adult residents and interethnic couples, Tucson, 1860-1930
• Table 6.4. Chinese men sixteen years old and over, Tucson, 1880-1930
• Table 6.5. Racial classification for people of Mexican ancestry, Tucson, 1930
• Table 7.1. Intermarriages and divorce cases among intermarried couples, Pima County, 1873-1930

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The Shifting Race-Consciousness Matrix and the Multiracial Category Movement: A Critical Reply to Professor Hernandez

Boston College Third World Law Journal
Volume 20, Number 2 (Spring 2000)
pages 231-290

Reginald L. Robinson, Professor of Law
Howard University

In this article, the author posits that race as an idea begins with consciousness that reinforces that race is real and immutable. The Multiracial Category Movement can shift our race consciousness away from traditional ways of thinking, talking, and using race. The Movement moves us beyond binary race thinking, and this new thinking shifts the extant race consciousness matrix. It also frees our consciousness so that we can personally and politically acknowledge our biracial and multiracial identities, and it perforce alters the traditional political meaning of race. Legal scholars like Professor Tanya Hernandez argue for the political meaning of race against a remediating balm against the color-blind jurisprudence, weakening of civil right protections, and pigmentocracy. While these new identities can promote color-blind jurisprudence by conservatives and pigmentocracy by those fleeing the oppressive constraints of traditional racial categories, the author argues against Hernandez and for the Movement’s paradigm shifting possibilities.

Introduction

Although we socially, historically, and psychologically co-create racism and white supremacy, race is not biologically factual. It is not real. As such, race does not have any meaning that survives its social and historical context. Race exists, if ever, in our individual and cultural consciousness. If we do not constantly and consciously meditate on it, race cannot exist. Unfortunately, we fuel this social construct with our mental kindling and intellectual logs. Race, racism, and white supremacy exist because we—individually and collectively—create it, enforce it, and sustain it. Thus, it is our race consciousness and its attendant behavior that remain the apt locus for racism and white supremacy. We consciously create race by externalizing what we think about, for example, blacks. This race-thinking—or externalizing—constructs our liberal world, and this world in turn constructs us. As Jerome Bruner would perhaps argue, race for all of us is the “out there” that first exists “in here.” In this way, race is not only constructed but is also a consciousness matrix.

Basically, if race arises from a consciousness matrix, does race necessarily have an essential meaning outside of how we think, use and talk about race? I think not! Thinking, talking, and using give race its life force, content, and meaning (e.g., racism). Without our thinking, talking, and using, race loses its practical, social function, and we need never experience the individual and collective pain that follows consciously or otherwise when we force people to separate unnaturally from each other. Unfortunately, if we continue to think, talk, and use race, we—blacks, whites, and others—co-create these venal experiences. And then we become drunk and sickened by the nasty mead we have created, and in this drunken stupor, we forget that we originated race and racism, proclaiming instead that race and racism not only reside in a great unreachable beyond but also remain external, objective, and real.

We rarely ask if race’s meaning exists beyond our consciousness, and we rarely ponder how absolutely central our role is in race’s oppressive meaning. Ultimately, then, it is as if we—blacks, whites, and others—walk into a well-lit room, turn out the lights, forget about the light switch, and then curse the darkness. Because we turned out the light, the idea of darkness must already have existed within our consciousness. By dimming the light, we sought the dark. After we create darkness, then we alienate ourselves from each other by becoming vested in our racialized roles, all the while blaming the liberal state for solely creating race and for deliberately giving race its particularly venal content. Hardly! For dark, fearful reasons, blacks and whites prefer a race consciousness. Why? I think blacks and whites prefer thinking, talking, and using race and race consciousness because each group seeks power, innocence, control, irresponsibility, etc. Worst of all, we foolishly believe that “blackness” or “whiteness” represents our true, spiritual identity and our true beingness.

What nonsense! Again, blacks and whites act as if they cannot respond to how they have allowed themselves to think, talk, and use race. In the end, we become the “blackness” or “whiteness” and its venal content. If we account for a given culture’s collective consciousness, no great, oppressive force exists beyond our own consciousness. Perhaps Pogo was right: we have met the racists, bigots, and fools, and they are us. In this way, race’s meaning is always first “in here” (i.e., matrix consciousness).25

This matrix of race consciousness—race thinking and its meaning—comes under direct attack from the Multiracial Category Movement (MCM). With this MCM, we can weaken our narrow fixation on a singular racial identity, and by broadening our racial lenses, we can achieve at least five goals. First, we can shift our race consciousness. Second, we can destabilize racial categories completely. Third, we can think, talk, and use “race” categories toward a higher, Spiritual end. Fourth, we can eradicate all racial categories. Fifth, we can begin to relate to each other as Spirit beings, despite the different “color” garb we may choose in a given lifetime. In this critical essay, I evaluate Professor Tanya Katerí Hernández’s article, “Multiracial” Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, and I proceed in the following way. First, I briefly flesh out the problem of a race-consciousness matrix. Then, I argue that the MCM does not in and of itself privilege white over black. Third, the MCM creates a challenge and an opportunity for perhaps yet unimagined social liberty and legal equality. Fourth, the MCM does not perforce invigorate color-blind jurisprudence and thus white supremacy…

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The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them

Cardozo Law Review
Volume 32, Number 3 (2011)
pages 756-791

Nathaniel Persily, Charles Keller Beekman Professor of Law and Professor of Political Science
Columbia Law School

The 2010 Census, like its predecessors, represented a momentous logistical and technological undertaking with far reaching consequences for political representation and allocation of public resources. It also promised to spawn a series of legal controversies over how to count people, what information the government should gather, which individuals truly “count” for purposes of the census, and where they should be counted. This Article explores these present and past controversies surrounding the census. The issues of “sampling” and “statistical adjustment” pervaded much of the legal commentary and case law concerning the census for the past twenty years. The undercount will continue to be a common theme, although given new found ideological opposition to filling out the census form, it is unclear at this stage who is less likely to be counted. The 2010 Census raises new issues of relevance to redistricting claims under the Voting Rights Act, concerning the counting and distribution of data on both the non-citizen and prisoner population. At the same time, recent developments in voting rights law, which place a premium on the size of a minority community, have raised the legal stakes for this census. Despite the technical nature of many census related controversies, one’s position on how, what, whom, and where to count cannot be separated from the larger questions of how easy or difficult it should be for plaintiffs to bring and win civil rights claims, particularly with respect to the redistricting process.

The Framers of the American Constitution viewed the decennial census as providing a certain rhythm to American politics. Every ten years a state’s tax burdens and representation in the House of Representatives would change to reflect its share of the national population as revealed in the “actual enumeration,” the manner of which Congress “shall by law direct.” Much has changed since the first census, but the rhythm still remains. Perhaps unintended and unimagined by the Framers, however, is the rhythmic and ritualistic dance to the courtroom every ten years to argue over the census numbers themselves and the methods used to construct apportionment totals.

Just as its rhythm has remained true to the Framers’ intent, so too the controversies surrounding the census have remained linked to the unique place of the census in the constitutional design. In the Constitution itself, the census is “about” representation, money, and race, so we should not be surprised to learn that courtroom controversies over the census have persisted with respect to these three themes. By tying both representation in the House and taxation to the census, the Constitution provided cross-incentives and an internal political check that might guard against manipulation of the census to overrepresent a state’s population. Today, dickering over the census numbers represents a critical stage in arguments states and localities make for more representation (concerning either apportionment among states of seats in the House of Representatives or within states with respect to redistricting) or for more money (given that funding for many federal and state programs is tied to the census). In addition, just as the first census necessarily had to categorize the population according to race in order to determine which people were “Indians not taxed” or “other persons” subject to the three-fifths rule, so too today the racial categories of the census and the racial implications of census counts become fodder for litigation over representation and funding.

This Article examines the law of the census: specifically, how to count, what to count, whom to count, and where to count them. For the most part this Article draws on my experience and research concerning the use of census data in the redistricting process; however, many of the topics discussed apply to federal funding decisions as well. The Article begins by describing the most recent legal controversies involving census methods, particularly imputation and statistical adjustment. When one thinks of the “law of the census,” these high-profile disputes probably come first to mind. In cases that have arrived at the Supreme Court at the beginning of each of the last three census cycles, undercounted cities and states have argued that census methods were deficient in that the procedures missed some people, double-counted others, or counted people that did not exist.

Second, this Article explores the legal implications of the decisions concerning what to include on the census form, paying particular attention to the topics of race and citizenship. For the second time, the 2010 Census allows respondents to check off more than one race, raising a host of interesting questions concerning the legal implications of alternative methods for categorizing the multiracial population. More significantly for the 2010 Census, the long form, which was previously asked of one sixth of the population, has been replaced by the yearly American Community Survey (ACS), distributed to 2.5% of households. The ACS is the only source for citizenship data from the census, raising questions about the reliability of citizenship estimates for purposes of VRA litigation.

Finally, this Article examines the related issues of who should be included in the census and where they should be counted. The section deals with special populations such as soldiers and other Americans living abroad, college students, the homeless, and prisoners. Prisoners, in particular, present an important case, as some have argued that the wholesale involuntary transfer of convicted criminals away from their communities toward more rural and often whiter areas has allowed for the padding of legislative districts in one part of a state at the expense of districts in other parts of a state. For the first time in 2011, the census will make data available in time for redistricting about the number of prisoners in each census block. Jurisdictions will now be able to subtract out prisoners from the census redistricting data file. Some states have even gone further and have reallocated prisoners to their pre-incarceration address for purposes of redistricting…

…The race question on the 2000 Census was the first to allow respondents to check off more than one race. In 1997, the Office of Management and Budget (OMB) issued “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity,” a directive that changed the way federal agencies, including the Census Bureau, would categorize people according to race. By moving to a format that allowed respondents to check off any and all of the six principal racial groups on the census, the form effectively created one hundred and twenty six possible combinations of racial and ethnic categories. Although many social scientists worried about the policy implications at the time the OMB and the Census made these decisions, the actual political and legal effects of this change have been minimal. Even so, with each census, the share of the population identifying with more than one racial group will undoubtedly increase. At some point, the confusion caused by the data format, let alone the actual politics of multiracial identity, will present real political and legal challenges.

The first problem to recognize is a logistical one: How does one use the data with its 126 combinations in the process of redistricting? The short answer is that it is not easy unless one reaggregates the data into some more usable format. The OMB therefore promulgated a directive to do just that in the context of civil rights enforcement. The OMB issued Bulletin No. 00-02, which provides the following rules of aggregation:

“Federal agencies will use the following rules to allocate multiple race responses for use in civil rights monitoring and enforcement.

• Responses in the five single race categories are not allocated.
• Responses that combine one minority race and white are allocated to the minority race.
• Response that include two or more minority races are allocated as follows:
  • If the enforcement action is in response to a complaint, allocate to the race that the complainant alleges the discrimination was based on.
  • If the enforcement action requires assessing disparate impact or discriminatory patterns, analyze the patterns based on alternative allocations to each of the minority groups.”

The OMB approach maximizes the numbers for racial minority groups by recategorizing some multiracial respondents as some category other than white. Critics of the OMB guidelines have therefore described them as a modern version of the “One Drop Rule”—the Jim Crow-era law where one drop of black blood made someone black. Defenders, however, would point out that the reaggregation rules merely create a presumption for purposes of civil rights enforcement. That presumption places the data in the light most favorable for the civil rights plaintiff (usually non-white). The reaggregation rules, while smacking of the same racial essentialism that often follows from any categorization scheme, simply try to provide rules of thumb that prevent such plaintiffs from being disadvantaged by the new census format…

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Long Way Home: The Loving Story

Augusta Films
2010

Director and Producer: Nancy Buirski
Producer and Editor: Elisabeth Haviland James

Richard and Mildred Loving, Circa 1967

This documentary feature film, currently in production, tells the dramatic story of Mildred and Richard Loving, a black and Cherokee woman married to a white man (against the law in 1958-Virginia) and of their famous anti-miscegenation case argued in the Supreme Court in 1967. Thrown into rat-infested jails and exiled from their hometown for 25 years, the Lovings fought back and changed history. Using rare archival footage, home movies, photographs, interviews with witnesses, friends and family, and poetic visual and narrative sequences, the documentary will build a complex portrait of the couple at the heart of marriage equality in this country. It will also do something rare in storytelling—look at the story itself as it has mutated over the years, with the understanding that history is only as reliable as those who tell it.

Both of the attorneys, Bernie Cohen and Philip Hirschkop, who represented Mildred and Richard Loving in the 1967 Supreme Court case Loving v. Virginia have agreed to participate in the project as consultants and as on-camera interviews.  In addition, Peggy Loving Fortune and Sidney Jeter Loving, the surviving children of Mildred and Richard have agreed to be on-camera participants. This is notable because, like their mother, they have guarded their privacy and avoided media attention for most of their lives.

For more information, click here. To donate to the project, click here.

The Secret History of Race in the United States

The Yale Law Journal
Volume 112, Issue 6 (March 2003)
pages 1473-1509

Daniel J. Sharfstein, Associate Professor of Law
Vanderbilt University

In the beginning, there was a man named Looney. George Looney’s world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, Looney owned a mill and a store. He had a thriving family. His home was near Looney’s Creek.

But Looney’s world was changing. Outsiders were moving to Appalachia to chop, saw, dynamite, and chisel the countryside. Among them were black people, never a common sight in Buchanan, “one of the whitest counties, not only in Virginia, but in the entire South.” The locals proved hostile to the newcomers. Although southwestern Virginia had an extremely small African-American population, more lynchings occurred there between 1880 and 1930 than in any other part of the state. The violence was most common in the more industrialized counties immediately to the east. Even so, in early 1893, after mobs lynched five blacks in neighboring Tazewell, vigilantes and rioters rode through Buchanan, declaring it “altogether a white county.”

About five years after the mob violence in Buchanan, a young man named George Spencer crossed the Kentucky line into Virginia. Over the next decade, he married a local woman, had six children, and settled near the Looneys. Spencer, a farmer, worked for Looney at times, and the families often ate together, stayed over at each other’s houses, and sent their children to the same schools. Their community was small; the local teacher was a third cousin to the Looneys and kin by marriage to the Spencers.

However, when Spencer’s brother was accused of killing Looney’s brother, the families stopped talking. And then Looney started talking, to just about anyone who would listen: “[The Spencers] are nothing but God damned negroes, and I can prove they are God damned negroes.” Adopting these words as a mantra, Looney—”thoroughly addicted to the abominable habit” of profanity—uttered them at the mill, at his store, at home, and in town. In the summer of 1911, his words flowed down the branches and forks and creeks wrinkling through Buchanan. Before the local school opened for the fall term, Looney approached his cousin, the teacher, told him to tell the Spencers that he called them “damned niggers,” and declared that he would take his children out of school. “They shan’t go with negroes,” he said.

Then Looney sharpened his attack. He traveled to nearby Johnson County, Kentucky. “[T]hrough strenuous efforts, involving costs and expenses,” Looney found men who knew Spencer’s grandfather—old men, on either side of eighty, who lived in places with names like Paintsville, Jennies Creek, Burnt Cabin, and Lick Fork, and knew Jordan Spencer, Sr., “[e]ver since the war, and before too.” These men remembered his thin lips, blue eyes, and “tolerably straight,” long red hair, quite possibly “painted,” with “a kind of a slick rim where his hat went.” One recalled that “a wild, drinking kind of a dissipated man” named Letcher Davis used to tell the Johnson County locals that Spencer had mixed blood, and others talked about nagging rumors that would pop up every now and then. Looney paid for a school official to accompany him on his expeditions. With affidavits in hand, Looney convinced the Rock Lick School District to expel Melvin Spencer from the third grade. George Spencer then sued Looney for slander, seeking damages of ten thousand dollars.

Spencer v. Looney was one of dozens of cases decided in the eras of slavery and segregation that hinged on the question of whether a plaintiff or defendant was white or black. During the past decade, legal historians have begun to excavate these bygone disputes, which involved wills, marriage and divorce, transportation, immigration and naturalization, and libel and slander. With few exceptions, two goals have motivated recent scholarship: proving that race is a social construction and showing how courts in the nineteenth and early twentieth centuries helped build America’s racial infrastructure.

This Essay presents a more complex picture of race in the post-Reconstruction South in an attempt to develop a richer understanding of how the law of race worked. Cases that required a determination of a plaintiff’s or defendant’s racial identity provide rare glimpses into the private lives and worldviews of real people. Although contained within the conventions of briefs, legal opinions, and direct and cross examination, their voices vividly express a largely unexplored degree of self-consciousness about what race does and does not mean. Making sense of the private beliefs aired in courtrooms is an essential task of the legal history of race. Cases like Spencer v. Looney show people who exercised a surprising degree of tolerance in their everyday lives at a time of massive racial hysteria and who had a basic awareness that racial identity was something that could be disputed and creatively argued, at least in the courtroom.

After surveying the legal historiography, I explore what current scholars, with a few notable exceptions, have missed: that many of the historical actors understood that race is a social construction. For most legal historians, the actors in cases such as Spencer v. Looney—parties, lawyers, witnesses, judges, spectators, and contemporaneous commentators—have been useful only to the extent that their doings, presumably unconscious or unintentional, reveal inconsistencies about, and thus the socially constructed nature of, race. In fact, at the turn of the twentieth century, there was widespread discussion of the artificiality of the color line, in courtrooms, legal commentary, social science literature, journalism, and fiction. It is no exaggeration to say that at the height of Jim Crow, people—even and perhaps especially the most rabid of racists—understood what a legal fiction was.

At the root of at least some of this self-consciousness is a phenomenon in American social history that the law, as a forum where family secrets were uttered aloud, is uniquely positioned to reveal. Over the course of the nineteenth century, the United States shifted from an identity regime that recognized “mulattoes” as a distinct racial category to one that divided the world strictly into black and white. Although this transition has been generally regarded as a time when mulattoes were absorbed into a black world, it was also a time when many established themselves as white. That is to say, across the South at the turn of the twentieth century, ostensibly white people who were socially accepted as white had African ancestry.This racially porous status quo was at odds with the extreme and often violent politics of segregation. While the most paranoid ideologies of “racial integrity” sought to classify every person with any African ancestry as black, this “one-drop rule” had the broad potential to be destabilizing for the white South. If no one’s racial status was secure without an exhaustive genealogy, the governmental apparatus of segregation and white supremacy would be perpetually threatening to whites. Instead, statutory definitions of race reflected the status quo, defining as white those people who had as much as one-fourth or one-eighth “Negro blood.” Formalistic judicial enforcement of the color line preserved this status quo, making it difficult to prove that people who were accepted as white were in fact black and encouraging actions for damages such as Spencer v. Looney.

As a result, extreme segregationists sought to push the color line toward a one-drop rule by arguing that the more generous statutory definitions of race were absurd, illogical, and socially constructed—an ironic contrast to quite similar observations made by progressive scholars today. This complicated picture of race in the turn-of-the-century South has been absent from legal scholarship. At the heart of this Essay is an attempt to take race beyond conventional legal history and view cases about the color line as portals into a world of secret histories—whispered gossip, unstated understandings, and stories purposely forgotten.  

Read the entire article here.

Brief History: Loving Day

Time Magazine
2010-06-11

Christopher Shay

In February 1961, Barack Obama’s parents did something that was illegal in 22 states and that 96% of the population disapproved of: they got married. In fact, interracial marriage, sex and cohabitation would remain illegal in much of the U.S. for another six years. Then on June 12, 1967, in the case Loving v. Virginia, the Supreme Court unanimously struck down the country’s anti-miscegenation laws, allowing interracial couples across the country to marry. Thirteen years after Brown v. Board of Education, the court took the last legal teeth out of the Jim Crow era, ridding the U.S. of its last major piece of state-sanctioned segregation. June 12 has since become a grass-roots holiday in the U.S., especially for multiracial couples and families. Known as Loving Day, the celebration commemorates the 1967 case and fights prejudice against mixed-race couples, and is a reason to throw an awesome, inclusive party…

Read the entire article here.

“A blood mixture which experience has shown furnishes the very highest grade of citizen-material”: Selective Assimilation in a Polynesian Case of Naturalization to U.S. Citzenship

American Studies (ISSN: ISSN 0026-3079)
Volume 45, Number 3 (Fall 2004)
pages 33-48

J. Kēhaulani Kauanui, Associate Professor of American Studies and Anthropology
Wesleyan University

On the 11th of July, 1928, the front page of the Honolulu Pacific Advertiser read: “75 per cent white blood satisfies U.S.” The article reported what seems to be the landmark decision of U.S. District Court Judge William Lymer to allow a racially mixed Pacific Islander—Alfred Milner Stephen—to naturalize to U.S. citizenship. While the discussion focused on naturalization and citizenship, in Stephen’s case, blood racialization also played a key role. By blood quantum logic, Stephen was identified as three-quarters English and one-quarter Polynesian, the latter inherited from his mother, who was referred to as “half English and half Polynesian.” Judge Lymer argued that Stephen’s “predominance” of “white blood” qualified him for citizenship.

In 1790, when Congress passed a law to establish a uniform standard for naturalization—the Nationality Act—it was limited to “all free white persons.” Although Congress amended the Nationality Act in 1870, it did so only to conform to the intent of the Reconstruction amendments by expanding eligibility for naturalization only to “aliens of African nativity and persons of African descent” (Ancheta 1998, 23). Judge Lymer, who made clear that he was determining whether Stephen was a “white person” within the meaning of the 1870 nationality law, made him, in the words of Ian Haney Lopez, “white by law” (1996)…

…However, the justifications for racial prerequisites changed. For over thirty years in the late nineteenth and early twentieth centuries courts assumed that scientific evidence and common knowledge were consistent in defining who was “white.” But, as contradictions between scientific evidence and common knowledge became more pronounced (e.g. as when anthropologists classified some dark-skinned people as Caucasians), courts increasingly came to rely on common knowledge justifications alone (Lopez 1996, 7).

The Stephen case revealed the confusion surrounding the “scientific” and “common knowledge” definitions of whiteness. In petitioning for naturalization, Stephen was challenging longstanding legal precedent based on “scientific evidence” and “common knowledge,” but, as courts increasingly relied on the latter, it became apparent that the two definitions could no longer be reconciled. Judge Lymer reflected this problem when he remarked that the Stephen case was the first time a federal court had considered status of a person with “more than half white blood” and “less than one half Polynesian, Malay, or Oriental blood.” The Stephen case reveals the complicated intersections of race and nation in early twentieth-century American culture.

This essay discusses the rationales that guided the judge’s decision. It was the “predominance” of whiteness mixed with Stephen’s “Polynesian blood” that made the difference in the court’s decision. But that factor alone did not motivate Judge Lymer’s decision. Pervasive notions about the potential for Hawaiians to assimilate and to fulfill the requirements of American citizenship were also crucial in this ruling. Although the court recognized Stephen as Polynesian, it deemed him white enough to become American. Stephen could be de-racialized as a legal subject in the courtroom because of racial logic that assumed the easy assimilation of Polynesians based on the historical treatment of racially mixed Hawaiians. Hawaiians and some other Pacific Islanders—in this case Stephen was identified as a Polynesian who came from “Neuru Island”—were inconsistently incorporated into whiteness through a process of selective assimilation. That is, they were selectively incorporated as whites when racially mixed (depending on degree), where white “blood”—in relation to indigenous “blood”—has been figured as a solvent…

Read the entire article here.

Dangerous Liaisons: Sex and Love in the Segregated South

The University of Arkansas Press
2003
160 pages
6″x9″
Paper: 1-55728–833-X (978-1-55728-833-2)
Cloth: 1-55728-755-4 (978-1-55728-755-7)

Charles F. Robinson II, Associate Professor of History, Vice Provost for Diversity, and Director of African American Studies program
University of Arkansas

In the tumultuous decades after the Civil War, as the southern white elite reclaimed power, “racial mixing” was the central concern of segregationists who strove to maintain “racial purity.” Segregation—and race itself—was based on the idea that interracial sex posed a biological threat to the white race. In this groundbreaking study, Charles Robinson examines how white southerners enforced anti-miscegenation laws. His findings challenge conventional wisdom, documenting a pattern of selective prosecution under which interracial domestic relationships were punished even more harshly than transient sexual encounters. Robinson shows that the real crime was to suggest that black and white individuals might be equals, a notion which undermined the legitimacy of the economic, political, and social structure of white male supremacy.

Robinson examines legal cases from across the South, considering both criminal prosecutions brought by states and civil disputes over marital and family assets. He also looks at U.S. Supreme Court decisions, debates in state legislatures, comments in the U.S. Congressional Record, and newspaper editorials. He not only shows the hardening of racial categories but assesses the attitudes of African Americans about anti-miscegenation laws and intermarriage.

Dangerous Liaisons vividly documents the regulation of intimacy and its fundamental role in the construction of race.

Les Enfants de la colonie: Les métis de l’Empire français entre sujétion et citoyenneté [Book Review]

H-France Review (Society for French Historical Studies)
Volume 8, Number 162 (November 2008)
pages 654-657

Marie-Paule Ha
The University of Hong Kong

Emmanuelle Saada, Les Enfants de la colonie: Les métis de l’Empire français entre sujétion et citoyenneté. Paris: Editions de la Découverte, 2007. 335 pp. Notes and bibliography. 24€. ISBN 978-2-7071-3982-5.

While the question of métissage has in the last two decades generated a significant volume of scholarly works from a diverse range of disciplinary and interdisciplinary perspectives, Emmanuelle Saada’s monograph, which grew out of her 2001 doctoral dissertation at the École des Hautes Études en Sciences Sociales, is quite unique in that it provides the first systematic and in-depth investigation of the judicial aspects of what was referred to as “la question métisse.”[1] Drawing on a wide array of materials ranging from archival and juridical sources to works from legal studies, history, anthropology and sociology, the author reconstructs the highly complex and tortuous trajectory that transformed the legal status of the empire’s métis from that of native subjects to being French citizens during the first quarter of the twentieth century. Given the book’s focus, the term “métis” in Les Enfants de la colonie is used to refer not to mixed-race children in general, but to the métis non reconnus, that is, those born out of wedlock that had not been legally recognized by their European fathers and were abandoned by them. As a result, this group of métis was given by default the status of native subjects. It was the plight of this particular category of illegitimate and racially mixed progeny of European men that became the object of the interventions of administrators, philanthropists and legal professionals in the colonies.

The starting point of Saada’s investigation of “the métis problem” is the 8 November 1928 decree which made it possible for the métis non reconnus born in Indochina to be granted French citizenship if one of their parents, legally unknown, could be presumed to be of “French race.” According to the decree, this presumption could be established “par tous les moyens,” which include “le nom que porte l’enfant, le fait qu’il a reçu une formation, une éducation et une culture françaises, sa situation dans la société” (p.13). The momentous interest of this legal text was twofold. On the one hand, it constituted the first occurrence of the word “race” in French legislation. On the other hand, the term was deployed not for an exclusive purpose, but rather to justify the integration of certain subjects of the empire in French citizenry…

Read the entire review here.