Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860
Minnesota Law Review
Volume 91, Number 3 (February 2007)
pages 592-656
Daniel J. Sharfstein, Professor of Law
Vanderbilt University
“It ain’t no lie, it’s a natural fact, / You could have been colored without being so black…”
—Sung by deck hands, Auburn, Alabama, 1915–161
“They are our enemies; we marry them.”
—African Proverb
In 1819 a Scotsman named James Flint crossed the Atlantic Ocean, made his way from New York to Pittsburgh, sailed down the Ohio, and settled for eighteen months in Jeffersonville, Indiana, just opposite Louisville, Kentucky. His letters home described everything from native trees and shrubs to the “taciturnity” of American speech, “adapted to business more than to intellectual enjoyment.” Soon after arriving in Jeffersonville, Flint recounted the time when a “negro man and a white woman came before the squire of a neighbouring township, for the purpose of being married.” The official refused, citing a prohibition on “all sexual intercourse between white and coloured people, under a penalty for each offence.” Then he thought the better of it. He “suggested, that if the woman could be qualified to swear that there was black blood in her, the law would not apply. The hint was taken,” Flint wrote, “and the lancet was immediately applied to the Negro’s arm. The loving bride drank the blood, made the necessary oath, and his honour joined their hands, to the great satisfaction of all parties.”…
Ideologies of racial purity and pollution are as old as America, and so is interracial mixing. Yet the one-drop rule did not, as many have suggested, make all mixed-race people black. From the beginning, African Americans assimilated into white communities across the South. Often, becoming white did not require the deception normally associated with racial “passing”; whites knew that certain people were different and let them cross the color line anyway. These communities were not islands of racial tolerance. They could be as committed to slavery, segregation, and white supremacy as anywhere else, and so could their newest members—it was one of the things that made them white. The history of the color line is one in which people have lived quite comfortably with contradiction.
This continual process of “racial migration” upends some of the most basic assumptions about race in the United States. When Southern colonies, and later states, restricted the civil rights and livelihoods of African Americans, such measures did not simply widen the gap between white and black. Rather, these obstacles to life and liberty pushed people across the color line into whiteness. At the same time, courts and communities made it increasingly difficult to reclassify people as black after they had been living as white. With an exponentially increasing number of people who were vulnerable to reclassification, the stability of Southern communities depended on what was in essence a massive grandfathering of white people with African ancestry. This racial amnesty was accomplished through court decisions that discouraged overzealous policing of the color line; through scientific theories and popular beliefs that African ancestry would always be visible on people’s bodies; and most importantly, through small-town Southern traditions of acceptance, secrecy, and denial.
This Article reconstructs the meaning and purpose of the one-drop rule, setting it within a larger history of racial migration. Most legal scholars casually describe the rule as the American regime of race without considering its history. Other scholars have attempted to trace the rule’s origin to the emergence of the cotton economy in the 1830s, the sectional crisis of the 1850s, or Reconstruction. Still others emphasize that most Southern state legislatures did not formally adopt one-drop racial definitions until the 1910s and 1920s. Like an aging movie star, the rule depends on soft focus to maintain its allure. Amid the vagaries of origin, few suggest anything but that people followed the one-drop rule, as they would any other bright-line rule. But the reality of racial migration reveals that the one-drop rule did not keep whites racially pure; rather, it enabled them to believe that they were.
The Article proceeds in two parts. Part I examines the one drop rule in colonial North America and the early American republic. Theories of innate racial difference transmitted through “blood” existed well before Jamestown, leading influential scholars to interpret almost reflexively early laws defining race and slave status to be synonymous with the one-drop rule. But the rhetoric of purity was always undermined by the realities of European, African, and Native American mixture and of a permeable color line. To the extent that legislators and judges showed confidence in the salience of race, the assumption of an impassable racial divide actually made it easier for some people of African descent to become white.
Southern courts and communities did not strictly define the color line because there was little reason to go beyond slavery’s proxy of racial boundaries, and an inflexible racial regime only threatened to interfere with the smooth functioning of a slave society. The one-drop rule’s transformation from ideological current to legal bright line and presumed social reality is in essence a story of freedom. Part II examines the thirty years preceding the Civil War. The prospect of freedom for people of African descent hastened the one-drop rule’s rise as whites attempted to preserve social hierarchies and property relations in the absence of slavery. While legal scholars identify this period as a time when tightening definitions fixed the status of mixedrace people as black, I contend that rather than establish or enforce a one-drop rule, efforts to tighten the color line pushed many mixed-race people into whiteness, sometimes with the full knowledge of their communities and often in spite of court rulings or publicity. Even as this racial migration continued, however, the rule’s growing ideological prevalence in the free North would presage its eventual codification in the South after slavery’s demise. During this period of ascendancy, the rule’s ostensible opponents played an important part in propagating it. Abolitionists seldom questioned white racial purity, instead relying on the one-drop rule as a symbol of Southern cruelty and of the threats that slavery posed to Northern whites. One might argue that today’s legal scholars depend on the rule in much the same way….
The practical consequences of this history lie in the fact that every area of the law that engages with race has a foundation in the one-drop rule. The rule acts as a metric for defining group membership, allocating race-based entitlements, awarding child custody, determining the existence of discrimination and monitoring the progress of remedial measures, and theorizing racial and other group identities. If the one-drop rule functioned differently from what its unambiguous terms suggest—if, as I argue, it expressed only a superficial commitment to racial purity, all the while fostering racial migration—then we have to rethink what race means. The magnitude of racial migration is beginning to emerge through the field of population genetics, with scientists estimating that millions of Americans who identify as white have African ancestors within recent historic memory. As people identifying as white begin to claim minority status in college admissions and employment settings, African “blood” is losing its ability to define race, determine civil rights violations, and fashion remedies. The already formidable tasks of measuring disparate racial impact or minority vote dilution risk becoming impossible when group boundaries blur.
Although the history of racial migration and the one-drop rule appears to threaten civil rights policies, ultimately it may strengthen them by forcing definitions of minority status to shift from blood to a shared history of discrimination. “African blood” is not unique to blacks. Centuries of racial migration reveal that more than anything, what fixed African Americans as a discrete group was the fact that they were discriminated against. In 1940 W. E. B. Du Bois wrote, “I recognize [black] quite easily and with full legal sanction; the black man is a person who must ride ‘Jim Crow’ in Georgia.” Many people of African descent could and did avoid racial oppression by becoming white. When we regard the legal category of “African American” through the lens of a shared history of discrimination, the tidy parallel that “color-blind constitutionalism” draws between race-based discrimination and remediation falters. While discrimination against African Americans was premised on innate blood-borne inferiority and the preservation of racial purity, measures designed to benefit them are much more inherently remedial than many, including the Supreme Court, have been willing to suppose. Remedial measures acknowledge a specific history, not blood.
Today we inhabit a legal regime that is the accretion of centuries of myth and amnesia. Unexamined and unchallenged, the one-drop rule remains a fixture of the civil rights landscape. The rule’s stark language carries the appearance of unassailable authority. Its sheer inhumanity has made it an easy foil for people committed to uprooting racism, so there has been little reason to examine its history. But assuming the rule’s efficacy has only continued to spread the idea of white racial purity without undermining it. Just beyond the one-drop rule’s rhetoric is a reality of mixture and migration. It is hidden in plain sight…
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