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Thursday, Jan 8, 2009
From Jim Crow laws to workplace discrimination, the history of race and the American courtroom is incendiary.
By Laura Miller
Read more: Books, Law, Laura Miller, Race, History, Discrimination, Reviews, Book reviews
Nov. 10, 2008 | Come January, Barack Obama will be sworn in as either the first black president of the United States or the 44th white one, or both, or neither, depending on how you interpret his race. Race is such a monumental force in American culture and politics that the idea that it has to be interpreted may strike many people as bizarre. Of course Obama is black, some might argue, judging by his appearance, or by his self-identification as an African-American or even by his marriage and important relationships with other African-Americans. Yet more than one commentator has complained that he isn't "black enough," by which they may mean that his complexion isn't dark enough, or that he was raised by whites, or that his African father provided him with no heritage in North American slavery, or that he doesn't sufficiently align himself with the policies of a certain portion of African-American political leadership.
The problem with race as Americans understand it is that it doesn't really exist. It is a brutal fact of life for millions of citizens, and an inescapable problem for the rest, but it is also, as Ariela J. Gross writes in her densely researched "What Blood Won't Tell: A History of Race on Trial in America," a "moving target," whose definition and meaning is always in flux. Many of us can avoid encountering this strange truth in the imprecise realms of cultural and social life, but when it comes to the law, imprecision just doesn't cut it. Gross' book, a history of cases in which people have challenged their official racial designation, eloquently demonstrates just how difficult it can be to say what race -- mine, yours, anybody's -- actually consists of.
The earliest racial identity trials in America involved people who maintained that because they were white rather than black, they could not be held in slavery. In one case, a woman named Alexina Morrison was so successful at convincing the populace of a Louisiana town that she had been kidnapped into slavery that a mob attempted to lynch her master on the steps of the courthouse. The famous Sally Miller claimed to be an orphaned German immigrant who had been scooped up from the docks in New Orleans at the age of 4 and sold as a "mulatto" to a local restaurateur. Whether or not these women's stories were true (and they probably weren't), they were arguments founded on the notion that white people, solely by virtue of being white, could not be enslaved.
It wasn't always so. In early America, as Gross tells it, African slaves, free people of color, white indentured servants (whose situation in many ways resembled that of slaves) and other people of varying statuses made up a workforce and a population that mingled freely with European settlers and Native Americans. "During the colonial era," she writes, "and even in the early republic, race had rarely provided the explicit justification for slavery. The founders of the republic perceived slavery as a necessary evil that they professed hope would wither away." The cotton gin, and with it the entrenchment of a plantation economy in the South, made slavery seem essential to landowners there, and for the indefinite future. As a result, Southerners developed "a race-based ideology" that declared enslavement to be a condition to which "negroes" (a relatively new concept that lumped together a whole slew of tribes and peoples) were supposed to be "uniquely suited" and in which no white person could rightfully be held.
Although "What Blood Won't Tell" also details the changing landscape of race for Indians, Asian immigrants, native Hawaiians, Filipinos and Mexican-Americans, to one degree or another the division between black and white has shaped the way Americans understand race in all its permutations. To be Indian, for example, was once a national identity, rather than a racial one; Indians were viewed as members of particular tribes much as Frenchmen were citizens of France, even when they were of mixed racial backgrounds. As the growing nation devoured the Indians' territories (increasingly justified by the argument that Indians, like blacks, couldn't properly manage owning land), these former foreign nationals were "racialized" when they became American citizens. Their status and rights, while not equal to that of whites, were still somewhat better than those of blacks. If you couldn't convince people that you were white, it was preferable to be Indian, and many of the racial identity trials Gross covers involve people trying to prove as much. Entire pocket communities in the South -- probably "tri-racial" in origin and known as Red-Bones, Melungeons or Croatans, among other names -- went to great lengths to insist that they were Indian, Portuguese, "Black Dutch" or some other ambiguous combination: anything but black.
"What Blood Won't Tell" is largely a catalog of delusions and the strategies by which Americans tried to prop up those delusions in courts of law. After the Civil War, Gross notes, with the legal racial divide destabilized by emancipation, state and local governments established Jim Crow laws to maintain a strict separation of blacks from whites. They tried to convince themselves that the two races had always been kept rigorously apart. (In truth, as Gross points out, blacks and whites often lived and socialized together in intimate proximity before the war.) The very fact that some people with African "blood" (not a biologically valid concept, but a common term, then and now) could pass themselves off as white betrayed the reality; blacks, whites and Indians had been marrying, having sex and producing mixed-race children from the very beginning.
Nevertheless, it was crucial to the mirage of white supremacy to insist that a true Southerner could detect the presence of a drop of African blood the way (as one witness put it) "the alligator knows three days in advance that a storm is brewing." Even if they couldn't tell you how they knew, they just knew, appealing to what Gross refers to as "common sense" notions of race. At a time when public records were nonexistent, inconclusive and highly disputable, authorities often relied on the fact that the person in question socialized with whites, behaved properly, went to white churches, and, if male, successfully performed such civic responsibilities as jury duty, voting and service in the militia -- all activities reserved for white men. The rationale behind this was that if all the white people in the community thought this individual was white, how could they possibly be mistaken? If it was impossible to tell the difference, how significant could the difference really be?
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