Mixed Race Studies

A Reappraisal of the Constitutionality of Miscegenation Statutes

Cornell Law Quarterly
Volume 42, Issue 2 (Winter 1957)
pages 208-222

Andrew D. Weinberger, LL.B., D. HUM, Member of the New York Bar, New York City & Visiting Professor of Law
Nationzal University of Mexico

Today [in 1957], 21 States of the Union by statute forbid marriages on racial grounds. These statutes are neither uniform in the racial groups against whom the ban is applicable, nor in defining membership in the various ethnic groups. Thus, while in Utah white-Mongolian marriages are illegal and void, in North Carolina they are permitted. In Arkansas, where white-Negro marriages are void, a Negro is defined as “any person who has in his or her veins any Negro blood whatever.” In Florida, one ceases to be a Negro when he has less than “one-eighth of . . . African or Negro blood”; and in Oklahoma, anyone not of “African descent” is miraculously transmuted into a member of the white race.

The racial groups affected by such statutes include Mongolians, Malays, Hindus, Chinese, Japanese, Ethiopians, American Indians, Cherokees, Mestizos, Halfbreeds, and “the brown race.” The sole racial group (other than white persons) affected by all twenty-one statutes is the Negro…

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Half + Half: Writers on Growing Up Biracial and Bicultural

Pantheon an imprint of Random House
1998-06-09
288 pages
ISBN: 978-0-375-70011-8 (0-375-70011-0)

Edited by Claudine C. O’Hearn

As we approach the twenty-first century, biracialism and biculturalism are becoming increasingly common.  Skin color and place of birth are no longer reliable signifiers of one’s identity or origin.  Simple questions like What are you? and Where are you from? aren’t answered—they are discussed.  These eighteen essays, joined by a shared sense of duality, address the difficulties of not fitting into and the benefits of being part of two worlds.  Through the lens of personal experience, they offer a broader spectrum of meaning for race and culture.  And in the process, they map a new ethnic terrain that transcends racial and cultural division.

Table of Contents

• Introduction by Claudine Chiawei O’Hearn
• LOST IN PLACE by Garrett Hongo
• THE MULATTO MILLENNIUM by Danzy Senna
• THE DOUBLE HELIX by Roxane Farmanfarmaian
• CALIFORNIA PALMS by le thi diem thuy
• MORO LIKE ME by Francisco Goldman
• THE ROAD FROM BALLYGUNGE by Bharati Mukherjee
• REFLECTIONS ON MY DAUGHTER by David Mura
• LIFE AS AN ALIEN by Meri Nana-Ama Danquah
• LOST IN THE MIDDLE by Malcolm Gladwell
• THE FUNERAL BANQUET by Lisa See
• A WHITE WOMAN OF COLOR by Julia Alvarez
• A MIDDLE PASSAGE by Philippe Wamba
• FOOD AND THE IMMIGRANT by Indira Ganesan
• WHAT COLOR IS JESUS? by James McBride
• POSTCARDS FROM “HOME” by Lori Tsang
• FROM HERE TO POLAND by Nina Mehta
• TECHNICOLOR by Ruben Martinez
• AN ETHNIC  TRUMP by Gish Jen
• About the Authors

Legal Transplants: Slavery and the Civil Law in Louisiana

University of Southern California Legal Studies Working Paper Series
Working Paper 32
May 2009
37 pages

Ariela J. Gross, Professor of Law and History
University of Southern California Law School

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction “transplanted” in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a “Black Code,” first adopted in 1806, which owed a great deal to both French and Spanish law. Comparisons of Louisiana with other slave states tend to emphasize the uniqueness of New Orleans’ three-tier caste system, with a significant population of gens de couleur libre (free people of color), and the ameliorative influence of Spanish law. This reflects more general assumptions about comparative race and slavery in the Americas, based on the work of Frank Tannenbaum and other historians of an earlier generation, who drew sharp contrasts between slavery in British and Spanish America. How does the comparison shift if we turn our attention away from slave codes, where Tannenbaum focused, to the “law in action”? At the local level, one can see the way slaves took advantage of the gap between rules and enforcement, and to fathom racial meanings at the level of day-to-day interactions rather than comparisions of formal rules. This essay surveys three areas of law involving slaves – manumission, racial identity, and “redhibition” (breach of warranty) – to compare Louisiana to other jurisdictions, and particularly to its common-law neighbors.

…The first major slave codes in the North American colonies date to 1680-82. They draw numerous distinctions on the basis of race rather than status, including laws against carrying arms and against leaving the owner’s plantations without a certificate. A penalty of thirty lashes met “any Negro” who “lift up his hand against any Christian.” In 1691, English women were fined for having a bastard child with a negro. In 1705, all mulatto children were made servants to the age of 31 in Virginia; Maryland and North Carolina adopted the same rule within the next several decades.

By the time the U.S. became a republic, only those of African descent were slaves, and all whites were free. Yet there were a significant number of individuals and entire communities of mixed ancestry with ambiguous racial identity along the Eastern seaboard. In the southeast, Indian tribes both absorbed runaway slaves and, in the late eighteenth century, adopted African slavery. In addition to the 12,000 people designated in the Census as “free people of color” in Virginia, there were 8000 in Maryland in 1790, 5000 in North Carolina, 1800 in South Carolina, and 400 in Georgia…

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“The Caucasian Cloak”: Mexican Americans and the Politics of Whiteness in the Twentieth-Century Southwest

The Georgetown Law Journal
Volume 95, Issue 2
Pages 337-392

Ariela J. Gross, Professor of Law and History
University of Southern California Law School

The history of Mexican Americans and Jim Crow in the Southwest suggests the danger of allowing state actors or private entities to discriminate on the basis of language or cultural practice. Race in the Southwest was produced through the practices of Jim Crow, which were not based explicitly on race, but rather on language and culture inextricably tied to race. This Article looks at three sets of encounters between Mexican Americans and the state in mid-twentieth-century Texas and California—trials involving miscegenation, school desegregation, and jury exclusion—to see the way in which state actors used Mexican Americans’ nominal white identity under the law to create and protect Jim Crow practices. First, it argues that whiteness operated primarily as a “Caucasian cloak” to obscure the practices of Jim Crow and to make them appear benign, whether in the jury or school context. If Mexican Americans were white, then they were represented so long as whites were represented. Second, it demonstrates that Mexican-American civil rights leaders as well as ordinary individuals in the courtroom did not simply identify as white; some showed a more complex understanding of “Mexican” as a mestizo race, and others pointed to the idea of race as a status produced by racist practice. Mexicans were nonwhite if they were treated as nonwhite under Jim Crow. Finally, it argues that, at least in twentieth-century Texas and California, cultural discrimination was racial discrimination, and that continuing discrimination on the basis of language ability and other cultural attributes should be scrutinized carefully under antidiscrimination law…

Table of Contents

INTRODUCTION
MEXICAN-AMERICAN WHITENESS BEFORE 1930
A. THE NINETEENTH CENTURY
B. WHITE BY TREATY—IN RE RODRIGUEZ
C. SEX ACROSS RACIAL BORDERS: POPULAR AND LEGAL IDEAS OF THE “MEXICAN RACE”

II. THE POLITICS OF WHITENESS IN THE 1930S AND 1940S
A. JIM CROW IN THE SOUTHWEST
B. MEXICAN-AMERICAN ORGANIZATIONS AND POLITICS

III. LITIGATING MEXICAN-AMERICAN WHITENESS
A. THE 1930S SCHOOL AND JURY CASES
B. THE 1940S SCHOOL AND JURY CASES

IV. AFTER HERNANDEZ V. TEXAS: LIFTING THE CAUCASIAN CLOAK
A. FROM HERNANDEZ V. TEXAS TO CISNEROS
B. LA RAZA COSMICA

CONCLUSION

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