Mixed Race Studies

Never a Neutral State: American Race Relations and Government Power

Cato Journal
Volume 29, Number 3 (Fall 2009)
Pages 417-453

Jason Kuznicki, Research Fellow and Managing Editor, Cato Unbound
Cato Institute

Economics tells us that racial discrimination is expensive. Yet social psychology suggests that humans nonetheless tend to mistrust those whom they identify as outsiders. As a result, governments can exacerbate this mistrust and thereby encourage costly discrimination by creating or maintaining official race-based definitions of outgroups and differential outcomes based on race.

This article reviews evidence from economic and legal history to argue that not only did U.S. governments incentivize and even mandate racial discrimination, but these acts tended to reinforce racial mistrust as time went by. Segregation became more strict, not less, from the end of Reconstruction until the mid-20th century, largely because of growing and self-perpetuating state action. Discrimination created its own constituency.

Some skeptics of the civil rights movement have viewed racial discrimination as an essentially private matter that did not warrant the extensive state intervention. This view is untenable. Although certain measures passed in the name of black civil rights still raise serious legal issues in light of strict constitutional construction, the civil rights movement also dismantled a wide variety of even more troubling measures. Most of these can be characterized as straightforward impediments to the freedoms of movement, trade, and association.

Although, if given a free market and a neutral state, economic incentives will tend to work against racial discrimination, American history has never witnessed a neutral state. Instead, and until the mid-20th century, the market incentives that might have worked against discrimination were repeatedly frustrated. Recent historical scholarship, notably from left-leaning scholars, has done much to
show the depth and surprising recentness of state support for discrimination…

…Consider the American experience with legal definitions of race. From the earliest English settlements to the present, governments have worked to establish and refine definitions of race, almost always for invidious purposes, and frequently with tighter and tighter standards as to who received racial privileges and who did not. This behavior is indeed similar to that observed in guilds, occupational licensure, and professional organizations, in which membership requirements tend to grow more stringent over time and new areas are brought under the restrictive umbrella (Gelhorn 1976, Young 1991, Dorsey 1983).

Legal definitions based on genealogy arrived very early. Although mixed-race individuals were born shortly after the first importation of African slaves, 17th century legislatures nonetheless criminalized sex between Africans and Europeans (Jordan 1968: 139–44). These punishments did little to stop interracial sex, however, as both demographics and ever-stricter laws would seem to demonstrate. A 1705 statute from Virginia declared that the “child, grand child or great grand child of a negro”—that is, anyone of one-eighth or more African descent—would also be classified as black. Colonial North Carolina went further, to one sixteenth (Jordan 1968: 168).

In general, the legal scrutiny applied to one’s ancestors tended to increase rather than decrease over time. By the 1830s, U.S. courts were occasionally encountering the argument that, regardless of what the law said, a person with any degree of racial mixing would have to be considered black, and these arguments gradually spread through the 19th century legal system. Yet it may surprise today’s readers that the first legislated statewide “one-drop” policy only arrived in 1910, following a series of court cases in the late 19th century that had adopted this rule either out of a perceived necessity or, sometimes, at the requests of black litigants. Prior to 1910, and as recently as the South Carolina Constitutional Convention of 1895, whites had generally rejected the one-drop rule for fear that their own mixed-race ancestries—and liaisons—would be called into question (Sweet 2005: 299–316).

The year 1910 saw the heyday of both Jim Crow and the eugenics movement. Many state legislators were eager to preserve white racial purity, then understood as a scientifically validated goal, and interested parties in the white population increasingly viewed “racial hygiene” as a legitimate state aim (Cynkar 1981). The creators and defenders of anti-miscegenation and one-drop laws believed that their efforts went hand in hand with forced sterilization and the eugenics movement more generally; all were seen as prudent measures to prevent degradation of white America’s genetic stock. Virginia’s Racial Integrity Act, which both established the one-drop rule and reiterated the state’s longstanding ban on miscegenation, was signed into law on March 20, 1924, the same day as its sterilization act. Both were understood at the time to be part of a coherent agenda (Sherman 1988: 69).

There is little evidence, however, that this law initially enjoyed significant popular support. On the contrary, outside the legislature and the few interested parties that lobbied for it, the populace appears to have been well aware of (though certainly uncomfortable with) its racially mixed ancestry. As historian Richard B. Sherman writes, “The campaign for racial integrity in Virginia was not the product of a great popular ground swell. Rather, it was primarily the work of [a] dedicated coterie of extremists who played effectively on the fears and prejudices of many whites” (Sherman 1988: 71–72). Sherman argues for the crucial importance of a small and not very well-attended group of “Anglo-Saxon Clubs of America” in drafting and lobbying for Virginia’s one-drop statute. Although the phrase had not yet been made infamous, these clubs called for a “final solution” to “the Negro problem,” terms that even stripped of their Nazi associations are still deeply disturbing (Sherman 1988: 74–75).

Virginia newspapers were among the proposed law’s early supporters, perhaps because they recognized the shock value of a moral panic that combined sex, secrecy, and many readers’ private anxieties. Predictably, another supporter was the director of the Virginia Bureau of Vital Statistics, Dr. Walter Ashby Plecker, who would see a significant increase in his own power and prestige as the bill became a law. His bureau was charged with classifying the race of all births in the state and with certifying the racial purity of every marriage between Virginia residents, an extraordinary new addition to government power (Sherman 1988: 75–77)…

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