Mixed Race Studies

The Author Speaks: Interview With Daniel J. Sharfstein

AARP Bulletin
American Association of Retired Persons
2011-02-17

Julia M. Klein

His powerful new book examines how three American families became white

Before Daniel J. Sharfstein’s senior year at Harvard, he spent the summer of 1993 in South Africa as a volunteer for a voter education project. There, one of his fellow workers told him she had been categorized as “colored,” or mixed-race, because a constable doing the classification appreciated her father’s service as a police officer.

“As a result of that one simple act, she had led a very different life from her colleagues,” recalls Sharfstein, now associate professor of law at Vanderbilt University in Nashville, Tenn. “That was a revelation to me, that something that could seem as natural and inevitable as race could bend because of a personal relationship or community ties or even just individual whim.”

He returned to the United States wondering whether the same kind of thing had happened here.

Sharfstein’s South African experience, followed by a stint as a journalist, Yale Law School and years of archival research and interviews, led to The Invisible Line: Three American Families and the Secret Journey From Black to White. The book interweaves the story of three families with African ancestry—the Gibsons, the Spencers and the Walls—who, over time and in different ways, became identified as white. The color line in America, Sharfstein learned, has been surprisingly permeable. The AARP Bulletin talked to Sharfstein by phone.

Q. Throughout American history, how important was physical appearance in defining whiteness?

A. To a certain degree it was important. We have to remember that, for a long time, the United States was a rural society and almost everybody worked outside. There was a really broad range of complexions that could be considered white…

…Q. What was the legal standard for defining whiteness in the 19th century?

A. There really was no standard. Virginia for more than a century had a one-quarter rule. If you had one African American grandparent, that made someone legally black. Other states, like North Carolina, had a one-eighth rule, while South Carolina didn’t have any specific fraction. One South Carolina court held in the 1830s that “a man of worth, honesty, industry and respectability should have the rank of a white man, while a vagabond of the same degree of blood should be confined to the inferior caste.”…

…Q. In slavery’s absence, you write, “preserving white privilege seemed to require new, less flexible rules about race and constant aggressive action to enforce them.” Why?

A. What really mattered in the South, in the antebellum period, was not who was black and who was white, but who was slave and who was free. The prospect of freedom for African Americans was a motivating force getting people to think about what racial categories themselves meant. In the last days of slavery, because slavery as an institution was under such attack, white Southerners were countering with race-based justifications, and that survived the demise of slavery. After the Civil War, as black freedom was taking root, right alongside it were modern forms of racism that persist to this day.

Q. You suggest that rigid rules about race only increased the number of people transitioning from black to white. Why was that?

A. When rules became more rigid, they were almost always accompanied by rules that subjected African Americans to higher taxes, made it harder for them to own land and increased fear that free African Americans would be returned to slavery. The harder these laws made it to live and to provide for their children, the greater the incentives were to make the move from black to white. Because these lines were being drawn in a way that essentially separated people who looked white from [other] people who looked white, it was impossible to make the line between black and white impregnable…

Read the entire article here.

The Invisible Line Between Black and White

Smithsonian.com
2011-02-18

T. A. Frail

Vanderbilt professor Daniel Sharfstein discusses the history of the imprecise definition of race in America

For much of their history, Americans dealt with racial differences by drawing a strict line between white people and black people. But Daniel J. Sharfstein, an associate professor of law at Vanderbilt University, notes that even while racial categories were rigidly defined, they were also flexibly understood—and the color line was more porous than it might seem. His new book, The Invisible Line: Three American Families and the Secret Journey from Black to White, traces the experience of three families—the Gibsons, the Spencers and the Walls—beginning in the 17th century. Smithsonian magazine’s T.A. Frail spoke with Sharfstein about his new book:

People might assume that those who crossed the line from black to white had to cover their tracks pretty thoroughly, which would certainly complicate any research into their backgrounds. But does that assumption hold?

That’s the typical account of passing for white—that it involved wholesale masquerade. But what I found was, plenty of people became recognized as white in areas where their families were well known and had lived for generations, and many could cross the line even when they looked different. Many Southern communities accepted individuals even when they knew those individuals were racially ambiguous—and that happened even while those communities supported slavery, segregation and very hard-line definitions of race.

So how did you find the three families you wrote about?

It was a long process. I began by trying to find as many of these families as I could in the historical record. That involved reading a lot of histories and memoirs, and then moving from there to dozens and dozens of court cases where courts had to determine whether people were black or white, and from there to property records and census records and draft records and newspaper accounts. And I developed a list of dozens, even hundreds of families that I could be writing about, and then narrowed it down. The three families that I chose represent the diversity of this process of crossing the color line and assimilating into white communities. I chose families that lived in different parts of the South that became white at different points in American history and from different social positions.

And how did those families come to know about their ancestry?

For many generations, members of these three families tried to forget that they had ever been African-American—and yet when I traced the families to the present and began contacting the descendants almost everyone I contacted knew about their history. It seems that the secrets of many generations are no match for the Internet. In many families, people would talk about going to the library and seeing that it had, say, a searchable 1850 census. One woman described the experience of typing in her great-grandfather’s name, finding him, and then having to call over the librarian to go through the handwritten enumeration form with her—she had to ask the librarian what “MUL” meant, not knowing it meant he was mulatto, or of mixed race. Every family seemed to have a story like this…

Read the entire article here.

Shades of White

The New York Times
2011-02-25

Raymond Arsenault, Visiting Scholar, Florida State University Study Center in London
and John Hope Franklin Professor of Southern History, University of South Florida

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.

Racial passing is one of America’s deeply hidden traditions, a largely unacknowledged and unstudied aspect of national life. Historically, African-Americans with identifiably dark skin have had only two choices when confronting racial discrimination and oppression: either they could try to ease their burden through accommodation, making the best of a bad situation, or they could engage in protest and active resistance. The situation was often quite different, however, for light-skinned African-Americans of mixed parentage. For them, there was a tempting third option of trying to pass as white.

In an illuminating and aptly titled book, “The Invisible Line,” Daniel J. Sharfstein demonstrates that African-Americans of mixed ancestry have been crossing the boundaries of color and racial identity since the early colonial era. An associate professor of law at Vanderbilt University and an author with a literary flair, Sharfstein documents this persistent racial fluidity by painstakingly reconstructing the history of three families. In a dizzying array of alternating chapters, he presents the personal and racial stories of the Gibsons, the Spencers and the Walls. The result is an astonishingly detailed rendering of the variety and complexity of racial experience in an evolving national culture moving from slavery to segregation to civil rights…

Read the entire review here.

Tracing lives of three ‘white’ families and their black forebears

The Boston Globe
2011-02-20

Dan Cryer, Globe Correspondent

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.

Randall Lee Gibson, an urbane, Yale-educated Confederate general, mocked black people as “the most degraded of all races of men.’’ Later, as a US senator from Louisiana, he helped broker the end of Reconstruction, freeing the South to harass and lynch blacks virtually at will.

In the 20th century, his orphaned son, Preston, was raised by an aunt and her husband, who had been a justice on the US Supreme Court that legitimated racial segregation in the infamous case of Plessy v. Ferguson.

At the beginning of the 21st century, a rent-a-car employee and genealogy buff dubbed himself Sir Thomas Murphy after tracing his mother’s lineage to English aristocracy. His father’s line remained a mystery.

None of these white people knew that they had African-American ancestors who had “passed for white.’’

Race has always been an inherently unstable construct of nature, culture, and law. Should one be considered black if one grandparent or great-grandparent was black? Or does the “one-drop’’ rule hold, that a single black forebear makes one black? Does “race’’ exist in the eye of the beholder, or solely in the mind of the beheld. In today’s age of mixed-race chic—in which Mariah Carey and Derek Jeter are hailed as beautiful royalty—such questions may seem quaint. But throughout American history, the consequences have been deadly.

“The Invisible Line,’’ Daniel J. Sharfstein’s spellbinding chronicle of racial passing in America, reminds us that the phenomenon has existed since our Colonial beginnings—as escape from oppression, enhancement in status, and path to economic opportunity. However well defined in law, the racial line has always remained porous, breachable under the right conditions…

Read the entire review 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.

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.

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.

Daniel J. Sharfstein. “Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860,” Minnesota Law Review (Volume 91, Number 3, 2007): 592-656.

Passing Fancy

Legal Affairs – The Magazine at the Intersection of Law and Life
September/October 2003

Daniel J. Sharfstein, Professor of Law
Vanderbilt University

In the Jim Crow South, courts understood that rigidly enforcing the rules against mixed marriage would have been a disaster—for whites.

In 1903, a Young North Carolina farmer named Frank Ferrell went a-courting. Nineteen years old and working on his father’s farm in the town of Zebulon, Frank settled his attentions on Susie Patterson, a quiet woman in her early 20s whose family had lived in nearby Riley since the 1880s. Riley was a town on two borders, smack on the line separating Franklin and Wake counties, in the rolling hills where the Atlantic Coastal Plain meets the Piedmont Plateau.

Evidently, a third boundary ran through Riley as well. While Frank wooed her, rumors circulated that she had some Indian or Portuguese ancestry—and some suggested that her blood ran a few shades darker. Perhaps because she feared the rumors would one day bring trouble, Susie refused Frank’s marriage proposal. But her suitor persisted and won her over. The couple married in January 1904 at the home of a justice of the peace on the Wake County side.

By April of the following year, the couple had a daughter, and Frank had become a drunk. He beat his wife, stopped providing for her and their baby, and in early 1907 abandoned them entirely. Soon after, he hired a lawyer and filed a complaint alleging that he had unwittingly married a black woman…

…During the South Carolina Constitutional Convention in 1895, Congressman George Dionysus Tillman, older brother of the notorious segregationist politician “Pitchfork Ben” Tillman, argued strenuously against a proposal to prohibit marriage between whites and people who had “any” African ancestry. Tillman said that the provision would affect “at least 100” families in his district that had sent their boys to fight for the Confederacy—and that no delegate on the floor could claim to be a “full-blooded Caucasian.” The convention adopted a one-eighth rule. Such actions prompted Charles Chesnutt to muse, “I could almost write a book about these laws, their variations, their applications and curious stories that one hears continually concerning them.” The color line is palpably present in many of the short stories that he published in The Atlantic Monthly at the turn of the century. And a character in one of Chesnutt’s novels became white simply by moving to a state with a more forgiving definition…

Read the entire article here.

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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