Mixed Race Studies

Understanding Race: The Evolution of the Meaning of Race in American Law and the Impact of DNA Technology on its Meaning in the Future

Albany Law Review
Volume 72, Issue 4 (2009)
Pages 1113-1143

William Q. Lowe
Albany Law School

Race has played a decisive role in nearly all aspects of American society, yet its meaning in various contexts remains unclear.  Throughout history, individuals have struggled to define “race” as it pertains to science, society, and the law in particular. Although race became a part of the English language in the mid-sixteenth century, it did not take on its modern definition until the early nineteenth century. Scientific, social, and political interpretations of race have gone through an evolutionary process as well. After over two-hundred years of trying to understand its meaning, “[t]he word ‘race’ defies precise definition in American law.” Countless competing theories exist as to the definition and meaning of race, and the inability for one to earn universal support poses a significant problem to the American legal system. Despite the fact that numerous statutes have been enacted to prohibit racial discrimination throughout all aspects of American society, “the law has provided no consistent definition of race and no logical way to distinguish members of different races from one another.”

It has been argued that “race” was first used as a tool to classify individuals during the age of colonial exploration; however, this use was maintained for centuries. Today, classifications based on race are still present in America, and have been found to be permissible in some instances, such as when used to remedy instances of past discrimination. With the predominant role race continues to play in American society, to ensure that all are treated fairly under the law, it is imperative that a single definition of race is applied universally to all Americans. It is foreseeable that advances in science, particularly in DNA testing, will allow for a uniform method of determining one’s race.

This note will discuss the current lack of a settled definition of race in American Law, and the potential role DNA technology can play in remedying the problems associated with it. Part II of this Note will explore the concept of race by examining various definitions of race and how they have evolved into the modern definition. This section will additionally look at the historical understanding of the meaning of race, and the recent divergence from traditional thought. Part III of this Note will analyze the role of race throughout American legal history. This portion of the Note will address historical notions of race in America, the origin of the need to define race, and the treatment of race by the legislature and the courts. Part IV of this Note will discuss current DNA technology and the potential impact it may have of on modern concepts of race, particularly with regard to the law. It is foreseeable that advances in DNA technology will allow scientists to identify and classify individuals through an analysis of their genetic information.

The first legislative attempt at defining race took place in Virginia, nearly one-hundred years before America gained its independence from England, and it was enacted in response to the “uncertain status” of children born with parents of mixed race. The statute was concerned only with the status of mulatto children who were born to a black woman, and stated that the race of the mother would be used to determine the race of the child. This policy reflected the biological definition of race, as the skin color of the individual in question was determinative. This statute was in contrast to that of English law, where inheritance followed the paternal line. Ultimately, under the Virginia statute, children born of a free white man and his slave could potentially be considered to be slaves themselves.

The presence of many free blacks residing in Virginia quickly made this statute unworkable, because it was not easy to determine if a child’s black ancestry came from his or her mother’s side or his or her father’s side. The possibility that a white woman could have a child with a black man, whether he was a slave or a free man, resulted in mulatto children being exiled from Virginia, and ultimately led to the creation of “one-drop rules.” Such rules held that an individual would be classified as black, despite the fact that his or her genetic makeup was primarily white…

Subsequently, Virginia, as well as other states, passed similar laws aimed at the prevention of interracial marriages. Pursuant to such laws, any white person who married a non-white would be exiled from Virginia. The language used in the statute is striking, as interracial marriage is referred to as “that abominable mixture and spurious issue which hereafter may encrease in this dominion.” This serves as yet another example of the hierarchical system of classification based on race at this time in American history.

Later statutes based on the “one-drop rule” departed from the 1662 Virginia statute in the sense that they did not take a “physical appearance approach.” Such “[f]ormula-based definitions of race” became increasingly popular in the South, and Booker T. Washington provided an accurate description of what they entailed: “[I]f a person is known to have one percent of African blood in his veins, he ceases to be a white man. The ninety-nine percent of Caucasian blood does not weigh by the side of the one-percent of African blood. . . . The person is a Negro every time.” In practice, most states with race-based statutes formed under the “one-drop rule” held that individuals who had at least one black grandparent were legally black. It should be noted, however, that “as the likelihood that more biracial people could be classified as white… the laws became more restrictive… finally culminating in the one-drop rule…

Read the entire article here.

“They Call It Marriage”: the Louisiana Interracial Family and the Making of American Legitimacy

Book Manuscript In Progress

Diana Irene Williams, Assistant Professor of History, Law and Gender Studies
University of Southern California

Winner of the 2008 William Nelson Cromwell Dissertation Prize in Legal History.

“They Call it Marriage” examines interracial marriage between black women and white men in nineteenth-century Louisiana. It explores how broad political and social struggles affected the ways white men and black women related to each other. And it considers why mid-nineteenth-century Louisiana was such an important setting for national struggles over race, gender, legitimacy, and power.

After the Civil War, Louisiana authorities repealed the interracial marriage prohibition and permitted retroactive legitimation of “private religious” marriages. In doing so, they exposed an obscure past in which many had refused to submit to the law as authoritatively given. Some people laid claim to the language of legitimate matrimony in defiance of state law, demanding justice on their own terms and with a keen awareness of competing regional, religious, and civil jurisdictions. In highlighting the perspective of those outside the legal profession, I focus on law as a terrain of struggle rather than a fixed set of rules.

The use of interracial marriage laws to regulate the inheritance of both property and social status dated back to Louisiana’s earliest French colonial government. Mandating that mixed-race children inherit the status of their (black) mother only, these regulations established the parameters of enslaved and racialized populations. Because legal kinship affected titles to household property in Louisiana, these laws encouraged distant kin and creditors to monitor interracial families’ internal affairs…

…The disputed illegitimate past of Louisiana interracial families had significance beyond the state’s borders. This manuscript traces the rhetoric of interracial genealogy and racial indeterminacy in antecedents of Plessy v. Ferguson. Louisiana authorities’ persistence in invoking racial fluidity well into the 1890s complicates historians’ efforts to locate a transition point at which the region exchanged a fluid Latin racial system for a strictly binary American one. In this regard, “They Call it Marriage” explores the gendered history of private life in order to offer a means of reconsidering the nature of Jim Crow segregation.

Chapters

1. Licensing Marriage in Early Louisiana
2. “Religion Law” vs. Civil Law
3. Quadroon Balls, Plaçage, and Consensus Narratives
4. Concubinage and Legal Narratives
5. Forced Heirs and Family Drama
6. Interracial Marriage and the Law in Post-emancipation Louisiana
7. “Bastards Begat by their Masters”

Read the entire description here.

Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans, 1910-1950

Berkeley Asian Law Journal
Volume 9, Number 1 (2002)
pages 1-40

Gabriel J. Chin
University of Arizona James E. Rogers College of Law; University of Arizona School of Government and Public Policy

Hrishi Karthikeyan
New York University School of Law

This essay explores the relationship between Asian American population and applicability of anti-miscegenation laws to that group in the first half of the 20th Century, testing legal scholar Gilbert Thomas Stephenson‘s theory that racial restrictions would arise whenever non-whites of any race exist in considerable numbers. Several states prohibited Asian-white intermarriage even though the Asian American numbers failed even remotely to approach those of the white population in those states. These anti-miscegenation statutes were unique in the Jim Crow regime in the degree of specificity with which they defined the racial categories subject to the restrictions, using precise terms like Japanese or Mongolians, rather than broad terms like colored. Further, the number of statutes applicable to Asians more than doubled between 1910 and 1950, even though census data shows that the proportion of Asian population was stable or declining in these states, and in any event tiny.

The proliferation of anti-Asian miscegenation laws raises important questions about the racial landscape of our country during this period. Correlating census data with the development of anti-miscegenation statutes suggests that population does have an impact on whether states would restrict Asian marriage, but in a more complex way than Stephenson proposed. In all states in which Asian-white marriage was restricted by race, so too was African American-white intermarriage; no statutes targeted Asians alone. But in virtually all states restricting African American intermarriage where there was a discernable Asian population – 1/2000th or more – Asian intermarriage was also regulated. The combination of a state’s inclination to segregate, plus a visible Asian population, reliably predicts when Asians would be covered by a statute. This suggests that in the states where racially diverse populations were seen as threats appropriately subject to legal regulation, the nature of the problems presented by the various races was the same.

Read the entire article here.

Mixing Bodies and Beliefs: The Predicament of Tribes

Columbia Law Review
Volume 101, Number 4 (May 2001)

L. Scott Gould

This Article considers a dilemma faced by tribes in a post-inherent sovereignty world. Tribes have increasingly come to be defined through the use of blood quanta as racial entities. This practice raises the legal question whether and to what extent Congress can confer benefits on tribes pursuant to the Indian Commerce Clause without violating the equal protection component of the Due Process Clause. Professor Gould explores the current dilemma from legal, historical, and demographic perspectives. He concludes that a recent Supreme Court decision involving Native Hawaiians portends growing judicial hostility to groups that base their memberships on common ancestry. Based on recent demographic trends, the Article observes that tribes are already multi-racially diverse. In conclusion, Professor Gould urges tribes to redefine their membership criteria, risking change in order to regain sovereignty and ultimately preserve tribal cultures.

Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia

University of California, Davis Law Review
Volume 21, Number 2 (1988)
pages 421-452

Paul A. Lombardo, Bobby Lee Cook Professor of Law
Georgia State University

This Essay explores private correspondence contained in a restricted manuscript collection along with contemporary news accounts and government documents to explain how eugenics—a popular “scientific” movement during the 1920’s—was used to bolster the arguments in favor of the Virginia Racial Integrity Act of 1924 that was struck down in Loving v. Virginia.  The genesis of the Act is described with reference to the private correspondence of the two Virginians [Walter Plecker and John Powell] who lobbied for its passage.  Their involvement with the white supremacist Anglo-Saxon Clubs of America is revealed as an aid to understanding the true motives behind the anti-miscegenation law.

Read the entire article here.

Race – The Power of an Illusion

California Newsreel – Film and video for social change since 1968
2003
3 Episodes, 56 minutes each
DVD and VHS

The division of the world’s peoples into distinct groups – “red,” “black,” “white” or “yellow” peoples – has became so deeply imbedded in our psyches, so widely accepted, many would promptly dismiss as crazy any suggestion of its falsity. Yet, that’s exactly what this provocative, new three-hour series by California Newsreel claims. Race – The Power of an Illusion questions the very idea of race as biology, suggesting that a belief in race is no more sound than believing that the sun revolves around the earth.

Yet race still matters. Just because race doesn’t exist in biology doesn’t mean it isn’t very real, helping shape life chances and opportunities.

Episode 1– The Difference Between Us [transcript] examines the contemporary science – including genetics – that challenges our common sense assumptions that human beings can be bundled into three or four fundamentally different groups according to their physical traits.

Episode 2– The Story We Tell [transcript] uncovers the roots of the race concept in North America, the 19th century science that legitimated it, and how it came to be held so fiercely in the western imagination. The episode is an eye-opening tale of how race served to rationalize, even justify, American social inequalities as “natural.”

Episode 3– The House We Live [transcript] In asks, If race is not biology, what is it? This episode uncovers how race resides not in nature but in politics, economics and culture. It reveals how our social institutions “make” race by disproportionately channeling resources, power, status and wealth to white people.

By asking, What is this thing called ‘race’?, a question so basic it is rarely asked, Race – The Power of an Illusion helps set the terms that any further discussion of race must first take into account. Ideal for human biology, anthropology, sociology, American studies, and cultural studies.

Read the online transcript here.
Visit the facilitator guide website here.

Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and Transgendered Experience

San Diego Law Review
Volume 39, Number 3 (2002)
pages 917-942

Julie A. Greenberg, Professor of Law
Thomas Jefferson School of Law, San Diego

This Article explores the potential difficulties that exist as legal institutions develop a classification of transgendered people, and suggests that an examination of how legal institutions have classified race and sex in the past can help shape the way that legal institutions shape transgendered classifications in the future. The article summarizes the development of race classifications for multiracial people. The author then examines the development of sex classifications for various legal purposes like marriage, identity, and the right to pursue discrimination claims. The author also examines how the medical community contributes to the stereotypical definitions of sex as binary and biologically determinable. The author then proceeds to evaluate some of the challenges that face the development of multiracial classifications, and how those challenges may affect the development of transgendered classifications. The author argues that in developing sex classification systems, legal institutions should be aware of the problems that can arise when seeking to adopt a single unified standard for determining sex, because where in some instances the acceptance of sex as a sociopolitical construct can promote greater acceptance of sexual minorities, it might also further contribute to discrimination.

Read the entire article here.

The Idea of Race in Latin America, 1870-1940

University of Texas Press
1990
143 pages
10 b&w illus.
6 x 9 in.
ISBN: 978-0-292-73857-7

Edited by

Richard Graham, Emeritus Frances Higginbotham Nalle Centennial Professor of History
University of Texas, Austin

With chapters by Thomas E. Skidmore, Aline Helg, and Alan Knight

From the mid-nineteenth century until the 1930s, many Latin American leaders faced a difficult dilemma regarding the idea of race. On the one hand, they aspired to an ever-closer connection to Europe and North America, where, during much of this period, “scientific” thought condemned nonwhite races to an inferior category. Yet, with the heterogeneous racial makeup of their societies clearly before them and a growing sense of national identity impelling consideration of national futures, Latin American leaders hesitated. What to do? Whom to believe?

Latin American political and intellectual leaders’ sometimes anguished responses to these dilemmas form the subject of The Idea of Race in Latin America. Thomas Skidmore, Aline Helg, and Alan Knight have each contributed chapters that succinctly explore various aspects of the story in Brazil, Argentina, Cuba, and Mexico. While keenly alert to the social and economic differences that distinguish one Latin American society from another, each author has also addressed common issues that Richard Graham ably draws together in a brief introduction. Written in a style that will make it accessible to the undergraduate, this book will appeal as well to the sophisticated scholar.

Table of Contents

• Preface
• 1. Introduction (Richard Graham)
• 2. Racial Ideas and Social Policy in Brazil, 1870-1940 (Thomas E. Skidmore)
• 3. Race in Argentina and Cuba, 1880-1930: Theory, Policies, and Popular Reaction (Aline Helg)
• 4. Racism, Revolution, and Indigenismo: Mexico, 1910-1940 (Alan Knight)
• Bibliography
• Index

Read the intrduction here.

Couple finds a more than a century old gravestone

Beaumont Enterprise
2009-12-13

Kyle Peveto

Beneath a tool shed behind her house, Mallary Sanders and her fiance found a 118-year-old piece of history they are begging someone to take.

Last weekend, Sanders’ fiance, Justin Trusty, 24, was cleaning beneath the pier-and-beam shed when he came across the intact gravestone of a woman who died in 1891.

He told Sanders, 23, he found something that “will scare you.”

“I wasn’t at all scared,” Sanders said. “I didn’t think there was a grave under there. Now, if I had felt weird about the house….”

The couple had no idea what to do with the stone.

“I just wanted it to go back to where it belongs,” Trusty said.

The gravestone stands about 2-feet tall and is specked with mud from lying flat on the ground. Carved marble reads: in memory of DELIEDE, wife of Wm Ashworth. Deliede died June 27, 1891, at 85, according to the gravestone…

…The Ashworth family name has a well-recorded history in Jefferson and Orange counties. During the Republic of Texas and after statehood, the mixed-race Ashworth family owned thousands of acres of land and large cattle herds in an area that did not welcome free people of color.

“What I thought was interesting was their ability to prosper in a place like Texas that made it illegal to be a free black,” said Jason Gillmer, a professor of law at Texas Wesleyan University who has studied the family…

Read the entire article here.

Shades of Gray: The Life and Times of a Free Family of Color in Antebellum Texas

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

2009-08-13
64 pages

The history of race and slavery is often told from the perspective of either the oppressors or the oppressed. This Article takes a different tact, unpacking the rich and textured story of the Ashworths, an obscure yet prosperous free family of color who came to Texas beginning in the early 1830s. It is undoubtedly an unusual story; indeed in the history of the time there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which–despite legal rules and conventional thinking – life was not so black and white. Drawing on local records rather than canonical cases, and listening to the voices from the community rather than the legislatures, this Article emphasizes the importance of looking to the margins of society to demonstrate how racial relations and ideological notions in the antebellum South were far more intricate than we had previously imagined. The Ashworths never took a stand against slavery; to the contrary, they amassed a fortune on its back. But their racial identity also created complications and fissures in the social order, and their story ultimately tells us as much about them as it does about the times in which they lived.

Read the entire article here.