Mixed Race Studies

Deciding on Doctrine: Anti-Miscegenation Statutes and the Development of Equal Protection Analysis

Virginia Law Review
Number 95, Issue 3 (May 2009)
pages 627-665

Rebecca Schoff
University of Virginia School of Law

In 1967, the Justices of the Supreme Court of the United States were in complete agreement that the statutory scheme before them in Loving v. Virginia, which criminalized interracial marriage, should be invalidated. They did not, however, agree on which legal doctrines justified the invalidation. Eight Justices signed on to an opinion that carefully hedged the question with arguments related to both the equal protection and the due process clauses. Justice Potter Stewart authored a terse concurring opinion asserting that there could be no valid state law “which makes the criminality of an act depend upon the race of the actor.” Although no other member of the Court was willing to sign on to this concurrence, it gave voice to a doctrine that had been a central argument of civil rights litigation, articulated as early as Justice [John Marshall] Harlan’s famed dissent in Plessy v. Ferguson.

This Note will explore why the Warren Court chose the path it did to invalidate anti-miscegenation laws. More generally, it will analyze the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: assuming that Justices are in agreement as to which party should prevail, what factors, legal and non-legal, can influence the Court’s preference for one doctrine over another? In Loving, the decision to reject Justice Stewart’s rationale had far-reaching consequences. Had the Court followed Justice Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. It might be argued that the Court was simply seeking the narrowest grounds on which to decide the case and that Justice Stewart’s reasoning was simply too broad. Loving’s now-controversial place as a precedent supporting substantive due process analysis in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated, by Justice Stewart’s approach. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction be-tween equal protection, due process, and fundamental rights. Ultimately, this Note will argue that the Warren Court showed a preference for a less rule-like approach to equal protection analysis, in part because the conditions surrounding desegregation exacer-bated the difficulty of analyzing the scope of rules. Dissecting the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to under-stand how and why the Court resolves such problems in particular ways…

Read the entire article here.

Caught Between Cultures: Women, Writing & Subjectivities

Rodopi
2002
152 pages
Hardback: 978-90-420-1378-0 / 90-420-1378-8
Paperback: 978-90-420-1368-1 / 90-420-1368-0

Edited by:

Elizabeth Russell, Professor of Womens Studies and British Literature
University Rovira i Virgili, Tarragona

The essays in this collection (on Canada, the USA, Australia and the UK) question and discuss the issues of cross-cultural identities and the crossing of boundaries, both geographical and conceptual. All of the authors have experienced cross-culturalism directly and are conscious that positions of ‘double vision’, which allow the / to participate positively in two or more cultures, are privileges that only a few can celebrate. Most women find themselves “caught between cultures”. They become involved in a day-to-day struggle, in an attempt to negotiate identities which can affirm the self and, at the same time, strengthen the ties which unites the self with others. Theoretical issues on cross-culturalism, therefore, can either liberate or constrict the /. The essays here illustrate how women’s writing negotiates this dualism through a colourful and complex weaving of words – thoughts and experiences both pleasurable and painful – into texts, quilts, rainbows. The metaphors abound. The connecting thread through their writing and, indeed, in these essays, is the concept of ‘belonging’, a theoretical/emotional composite of be-ing and longing. ‘Home’, too, assumes a variety of meanings; it is no longer a static geographical place, but many places. It is also a place elsewhere in the imagination, a mythic place of desire linked to origin.

Policies of multiculturalism can throw up more problems than they solve. In Canada, the difficulties surrounding the cross-cultural debate have given rise to a state of “messy imbroglio”. Notions of authenticity move dangerously close to essentialist identities. ‘Double vision’ is characteristic of peoples who have been uprooted and displaced, such as Australian Aboriginal writers of mixed race abducted during childhood. ‘Passing for’ black or white is full of complications, as in the case of Pauline Johnson, who passed as an authentic Indian. People with hyphenated citizenship (such as Japanese-Canadian) can be either free of national ties or trapped in subordination to the dominant culture; in these ‘visible minorities’, it is the status of being female (or coloured female) that is so often ultimately rendered invisible.

Examination of Canadian anthologies on cross-cultural writing by women reveals a crossing of boundaries of gender and genre, race and ethnicity, and, in some cases, national boundaries, in an attempt to connect with a diasporic consciousness. Cross-cultural women writers in the USA may stress experience and unique collective history, while others prefer to focus on aesthetic links and literary connections which ultimately silence difference. Journeying from the personal space of the / into the collective space of the we is exemplified in a reading of texts by June Jordan and Minnie Bruce Pratt. For these writers identity is in process. It is a painful negotiation but one which can transform knowledge into action.

Contributors
Isabel Carrera Suárez
Dolors Collellmir
Mary Eagleton
Teresa Gómez Reus
Aritha van Herk
Elizabeth Russell
María Socorro Suárez Lafuente

Table of Contents

• Preface
• Acknowledgements
• ELIZABETH RUSSELL: Introduction
• ARITHA VAN HERK: Cross-Dressed Writing in Canada
• ISABEL CARRERA SUÁREZ: Hyphens, Hybridities and Mixed-Race Identities: Gendered Readings in Contemporary Canadian Women’s Texts
• MARÍA SOCORRO SUÁREZ LAFUENTE: Creating Women’s Identity in Australian Civilization
• DOLORS COLLELLMIR: Australian Aboriginal Women Writers and the Process of Defining and Articulating Aboriginality
• ELIZABETH RUSSELL: Cross-Cultural Subjectivities: Indian Women Theorizing in the Diaspora
• TERESA GÓMEZ REUS: Weaving / Framing / Crossing Difference: Reflections on Gender and Ethnicity in American Literary and Art Practices
• MARY EAGLETON: Working Across Difference: Examples from Minnie Bruce Pratt and June Jordan
• List of Contributors

What Comes Naturally: Miscegenation Law and the Making of Race in America (Review)

Law and Politics Book Review
American Political Science Association
2009-03-23
pp. 218-220

Mark Kessler, Chair of the Department of History & Government and Professor of Government
Texas Woman’s Univeristy

What Comes Naturally: Miscegenation Law and the Making of Race in America. By Peggy Pascoe. (New York and London: Oxford University Press, 2009. 404 pages. Cloth ISBN13: 9780195094633, ISBN10: 0195094638)

In this highly original and important book, Peggy Pascoe describes and analyzes three centuries of laws in the United States prohibiting interracial marriages and sexual relations. In perhaps the most comprehensive and systematic study of legal marriage and sex prohibitions to date, Pascoe argues that these laws were central ideological tools used in constituting and reproducing white supremacy in the United States. Placing her study in its broadest context, she argues that examining the rise and decline of these laws “provides a locus for studying the history of race in America” (p.2). Pascoe’s study demonstrates how historical research, combined with critical cultural theory and analysis, may shed new light on significant questions regarding the power of law and legal interpretation in constructing and reconstructing social reality.

Throughout this work, the writing is admirably accessible, while the analyses and arguments are deeply nuanced. Pascoe begins many of the eleven chapters with stories describing the people and circumstances involved in miscegenation cases throughout history. These stories are carefully selected to show the great variation in characteristics of participants, laws, and regions of the country in which the cases arose, and to help address the broader questions of nation-building and nation-formation that emerge from this study. Pascoe uses these very human stories, along with landmark appellate court decisions and local legal practices, to explore the many and varied ways in which social and political relations based on race, gender, and sexuality illuminate the rise and fall of miscegenation law in the United States.

Pascoe’s narrative begins in the Reconstruction era, when the term “miscegenation” was first invented and applied to interracial marriage and sex. Her discussion focuses on the ways in which judges, legislators, and lawyers employed notions of what is “natural” and “unnatural” in conventional cultural discourses about sex, gender, and sexuality to create and apply laws prohibiting interracial marriage and sex. Such laws emerged first in the South and North and typically applied exclusively to relations between those categorized racially as “white” and as “black.”…

Read the entire review here.

Dangerous Woman: Elizabeth Key’s Freedom Suit – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia

Akron Law Review
University of Akron
Volume 41, Number 3 (2007-2008)
pages 799-837

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence and Francis & Harriet Iglehart Research Professor of Law
University of Maryland School of Law

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude – slavery in the mid seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry – English; her religion, Christian; and the inability to be enslaved for life that stems from the first two statuses. These factors, I argue, determined who was the equivalent of white in seventeenth century Virginia.

I. Introduction

Elizabeth Key, an Afro-Anglo woman, was born around 1630 in the Virginia Colony. Twenty-five years later she sued for her freedom after the overseers of her late master’s estate classified her and her infant son as negroes (Africans or descendants of Africans) rather than as an indentured servant with a free-born child.  Unwilling to accept permanent servitude, Elizabeth sued for their freedom, and after protracted litigation she and her son were set free.

A few historians and legal scholars mention her case in passing as proof that by the mid seventeenth century people of African ancestry were held as slaves in Virginia.  Only feminist historian Kathleen Brown even mentions that Elizabeth’s lawsuit involved not only her freedom, but that of her son. To the rest of the historians she was simply a slave, her gender, son and mixed ancestry were irrelevant. None looked closely at the significance of her three interlinking legal arguments: (1) that she was a practicing Christian; (2) who was the daughter of a free Englishman; (3) who bound her out as an indentured servant for nine years which period had expired.

Arguably Elizabeth’s pleadings might be an early example of what Kenji Yoshino characterizes as “covering,” downplaying aspects of one’s identity. In crafting her legal argument around her father’s ancestry and subjecthood Elizabeth downplayed the African ancestry of her enslaved mother. Her argument also might be an example of “racial performance” where the extent one does things that English women and men did during the period becomes an important determinant of one’s legal status.  But as I explain in this article other cases decided during this period suggest otherwise…

Read the entire article here or here.

Mixed Race America and the Law: A Reader (Review)

Law and Politics Book Review
American Political Science Association
Volume 13,  Number 4 (April 2003)

Barbara L. Graham, Professor of Political Science,
University of Missouri, St. Louis

Mixed Race America and the Law: A Reader. By Kevin R. Johnson (Editor). (New York and London: New York University Press, 2003. 505 pages. Cloth ISBN: 0-8147-4256-4. Paper ISBN: 0-8147-4257-2)

In Mixed Race America and the Law: A Reader, Kevin R. Johnson has edited one of the most important and timely anthologies on the general topic of race mixture and the law. The anthology addresses a range of provocative issues concerning the mixed race experience and the law and its impact on mixed race peoples. For readers who are unfamiliar with the vast literature on the mixed race experience, I am confident that they will find this book’s interdisciplinary approach indispensable in its grappling with issues raised by multiracialism and the law. Johnson’s book, part of the Critical America Series published by New York University Press, takes critical race theory into another direction in its emphasis on mixed race scholarship.  As with many of the writings of critical race theorists, Johnson’s book has seriously challenged the conventional wisdom of the black-white paradigm. The writings persuasively demonstrate that America has always been a mixed race society, that the law has played a major role in shaping racial categories, classification schemes, intermarriage, immigration and trans-racial adoption issues to name a few. Race is addressed as a social construct and Johnson – as well as the other contributors – acknowledges how law has not kept up with the fluid racial boundaries in the American context. This book covers the diversity of the mixed race experience in America, including African American, Indian, Latina(o) and Asian populations. Johnson argues in the introduction that “racial mixture will undoubtedly shape the future study of race and civil rights in the United States. As minorities of many different types intermarry and rates of immigration of diverse peoples to this country remain high, more racial mixtures and mixed race peoples will emerge.”  The writings in the anthology take the reader on a journey in an effort to understand the complexities of racial mixture in the United States and abroad.

Johnson has carefully selected eighty-seven edited scholarly writings, primarily law review articles published in the 1990s and a few court cases.  The reader is divided into twelve parts in an attempt to examine the complexities of racial categories and what they mean for a mixed race society.  Part I addresses the history and slow demise of anti-miscegenation laws. The edited selections cover issues such as an historical overview of these laws, the history of racial identification and the regulation of interracial sex in colonial Virginia, and the relationship between lynchings and interracial relationships.  As expected, Johnson includes writings on an analysis of Loving v. Virginia (1967) and its impact.  Readers may be unfamiliar with an important precursor to Loving, Perez v. Sharp (1948), where the California Supreme Court held that the state anti-miscegenation law violated the Constitution.  Going beyond the white-black context, the other writings in Part I cover attempts to regulate intermarriage between Indians and whites and Asians and whites…

Read the entire review here.

White Enough to Be American? Race Mixing, Indigenous People, and the Boundaries of State and Nation (Review)

Law and Politics Book Review
American Political Science Association
Vol. 18 No.9 (2008-09-15)
pp. 788-791

Daniel Lipson, Professor of Political Science
State University of New York, New Paltz

White Enough to Be American? Race Mixing, Indigenous People, and the Boundaries of State and Nation. By Lauren L. Basson. (Chapel Hill, North Carolina: The University of North Carolina Press, 2008. 256 pages.)

At a moment in United States history when Barack Obama is inspiring millions in his presidential bid, the reality of mixed-race Americans is becoming increasingly salient in a nation long obsessed with dichotomous black and white racial categories. With the population of people of color in the United States accelerating at rates unmatched by any other country in the world, racial discourse in the US has gradually come to accommodate the full cast of official minorities, moving beyond the limited focus on blacks and whites. Yet the historical precedent in the United States has been to leave little space for mixed-raced Americans, instead preserving the racial order by forcing them into monoracial categories. As Lauren Basson explains in White Enough to Be American? Race Mixing, Indigenous People, and the Boundaries of State and Nation, the turn of the 20th century proved to be a highly dynamic period that left a major imprint on the distinctive American model of racial categorizations…

Read the entire review here.

Art Showcase Seeks to Study Racial Identity

Daily Nexus
University of California, Santa Barbara
2010-02-02
Issue 70, Volume 90

Julie Epstein, Staff Writer

The UCSB Women’s Center is currently hosting a multicultural art exhibit featuring work from students and professional artists.

The art on display ranges from paintings to photography, and even includes a work consisting of human hair on canvas. The show, entitled “Mixed Like Me,” will run until April 16. Third-year art major and show curator Lillian Edwards said the exhibit explores racial identity through an artistic lens.

“The theme of the show is to explore what it means to have a multiracial background,” Edwards said. “The goal is to bring an awareness and discussion about race through art.”

Read the entire article here.

The Monticello Mystery-Case Continued

William and Mary Quarterly
Volume LVIII, Number 4 (October 2001)
Reviews of Books

Alexander O. Boulton, Professor of History
Stevenson University (formerly Villa Julie College)

The Jefferson-Hemings Myth: An American Travesty. Edited by Eyler Robert Coates, Sr. (Charlottesville, Va.: Thomas Jefferson Heritage Society, 2001. Pp. 207.)

A President in the Family: Thomas Jefferson, Sally Hemings, and Thomas Woodson. By Byron W. Woodson, Sr. (Westport, Conn.: Praeger, 2001. Pp. xviii, 271.)

Free Some Day: The African American Families of Monticello, By Lucia Stanton. Monticello Monograph Series. (Charlottesville, Va.: Thomas Jefferson Foundation, 2000. Pp. 192.)

In October 1998 the announcement that DNA analysis identified Thomas Jefferson as the most likely father of a child by his slave Sally Hemings seemed to bring to a conclusion a historical debate that had been waging for years. Any remaining doubts about Jefferson’s paternity were apparently removed when the Thomas Jefferson Foundation, the organization that owns and operates Jefferson’s historic Charlottesville, Virginia, home Monticello, issued a report soon afterward declaring that “the best evidence available suggests the strong likelihood that Thomas Jefferson and Sally Hemings had a relationship over time that led to the birth of one, and perhaps all, of the known children of Sally Hemings.” Several notable scholars of Jefferson quickly reversed their previous denials of the affair. A book on the subject issued by the University Press of Virginia and a Forum in the William and Mary Quarterly, both containing articles by leading historians, presented the new consensus “that virtually all professional historians will accept that Jefferson was the father of at least one of Sally Hemings’s children.”

Now, two new books have shattered the illusion that a kind of historical finality had been achieved…

Read the entire article here.

Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina (Review)

William and Mary Quarterly
Volume LX, Number 1 (January 2003)
Reviews of Books

Richard Godbeer, Professor of History
University of Miami

Suspect Relations: Sex, Race, and Resistance in Colonial North Carolina. By Kirsten Fischer. (Ithaca, N. Y.: Cornell University Press, 2002. Pp. xiv, 265.)

Kirsten Fischer’s compelling new book explores the interplay between sexual relations and racial attitudes in colonial North Carolina. In common with other recent scholars, Fischer sees evolving conceptions of race, sex, gender, and social status as closely intertwined in the early South. Unlike those who argue for a shift in emphasis from gender or class to race, Fischer stresses instead “the continual contestation, reassertion, and reconfiguration” of these categories as “assumptions of gender, race, and class difference propped each other up in the developing social hierarchy” (p. 5). Fischer identifies a gradual movement away from somewhat fluid notions of race toward an ideology in which racial difference figured as permanent and inherent. Sexual regulation played a crucial role in official attempts to affirm and police racial boundaries in southern society. This in turn “made race seem as corporeal as sex” and so “bolstered the notion that race was a physical fact” (pp. 10-11).

In colonial society, the establishment of slavery and racial subordination required careful regulation of European as well as African residents and especially of white women. Legislation that prohibited marriage between servants, outlawed interracial sex, and prescribed lengthy apprenticeships for the mixed-race children of white women made marriage and sex integral to the imposition of racial as well as class and gender ideologies. Yet sexual unions in North Carolina embodied the contestedness of racial relations in the early South: as “men and women made personal choices based on many contingencies, of which racial or ethnic identity was only one” (p. 7), they often challenged emerging proscriptive codes. The widespread incidence of unauthorized unions bespoke the resilience of alternative popular codes and the willingness of ordinary colonists, women and men, to ignore or self-consciously resist official norms….

Read the entire review here.

I’m Color-blind But What Are You, Anyway?

Electronic Journal of Sociology (2007)
ISSN: 1198 3655

Kathleen Korgen, Professor of Sociology
William Paterson University

Eileen O’Brien, Assistant Professor of Sociology
Christopher Newport University

Using primary data from interviews conducted with 1) close black-white friends and 2) biracial Americans, we examine the relationship between the traditional fixation on racial categorizations and the current emphasis on color-blindness. In doing so, we reveal that, instead of indicating a decline in the importance of race, the color-blind ideology acts as both a cover for the obsession with race in U.S. society and a subtle but effective reinforcement for it.

Read the entire article here.