Are you white enough?

From Jim Crow laws to workplace discrimination, the history of race and the American courtroom is incendiary.

By Laura Miller

Published November 10, 2008 11:46AM (EST)

 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?

  Although judges and juries often took appearance into account -- examining not only skin color, but hair texture and, curiously, the arches of the feet, which were said to be "hollow" in whites -- reputation and behavior were if anything more important. A demure, chaste, ladylike female was surely white, as was an educated, responsible, "genteel" man with managerial skills. (One defendant's "very graceful" and widely admired dancing was cited as proof of his whiteness -- a reversal of the contemporary stereotype about black men being the better dancers.) These things might seem to the modern readers to be mere manners, easy enough for anyone to learn regardless of their ancestry, but the people making these judgments were deeply invested in the belief that blacks were incapable of such "civilized" behavior, and thus justified relegating them to second-rate citizenship.

The notion of the "blood quantum," a meticulous accounting of the racial make-up of one's parents, grandparents and great-grandparents, arose under Jim Crow. A person might look pale enough, but if they had one black great-grandparent, provided that this ancestor was "pure blood" African, they could be classified as black. As a result, crucial aspects of a person's life -- who they could marry, where they could live, what property they might own, where their children could go to school, and so on -- might hang on the question of whether or not surviving witnesses thought their great-grandmother had kinky or straight hair or went to a certain church.

Most often questions came up as the result of disputes and grievances. Men trying to ditch their wives, relatives quarreling over inheritances, families feuding with their neighbors -- all were liable to zero in the ambiguous racial identity of an opponent as a tempting vulnerability. Mixed-race marriages, legal in many states before the War (the term "miscegenation" was itself coined in 1864), could be declared invalid and their offspring illegitimate. Called upon to testify, neighbors would often offer wildly conflicting accounts: he thought of her as black; she saw her visiting with white folks; someone else regarded her as belonging to a group that was simply "a mixture," but of what, no one was ever quite sure.

Scientists and cultural anthropologists eventually wormed their way into such trials, testifying as expert witnesses (though not, Gross maintains, ever quite displacing the authority of "common sense"). Elaborate theories of the various races and their supposedly innate characteristics were used to justify a panoply of risible policies. Often, a sort of Catch-22 applied: In early 20th-century Texas, Mexican-Americans were treated much like blacks, but were officially classified as "Caucasian." Though they somehow never could get their kids into white schools or serve on juries themselves, complaints about bias were met with the argument that since Mexican-Americans weren't a race, they couldn't be the targets of racial prejudice. Furthermore, since they were technically white, they had no reason to object to having their cases tried before all-white juries.

Latinos were denied the full rights of American citizenship, the argument often went, not because of their race, but because of cultural factors, such as their presumed deficiency in English as well as and having "customs and ways different to ours," in the words of one local sheriff. ("What Blood Won't Tell" is rich in such quotes from original sources, and an often jaw-dropping survey of unabashedly racist remarks from the past, both distant and all too near.) Here Gross brings the narrative up to the present day and hits upon the latest knot in the tangled skein of race in America. If we believe, as almost all authorities now do, that racial differences are a matter of culture rather than biology, how should that effect our understanding of racial discrimination?

For example, if a black employee is fired on account of an assortment of traits -- a manner of speaking or dressing or cornrowed hair -- deemed "unprofessional" by her boss, is she the target of racial bias? Is "professional" simply a code word for "white," and are we expecting everyone to "act white" in order secure a decent job? Gross seems to think as much, referring to "employers and governments" who "use their power to coerce racial performances -- to force people of color to perform whiteness -- in order to gain access to political institutions or employment." The idea of simply saying we'll be "colorblind" doesn't work. "Because racism has expressed itself in cultural terms" -- that is, by defining people of different races as behaving in innately different ways -- "race and culture cannot be disaggregated without ignoring vast realms of reinforcement of racial hierarchy." And there is, after all, no reason why cornrowed hair should impair anyone's "professionalism."

Gross goes on to refer to the phenomenon of "covering," as defined by Yale law professor Kenji Yoshino (though she does not mention him by name), in which members of disfavored minorities are accepted as long as they behave exactly like the favored majority. But when Gross insists that "we should formulate antidiscrimination law to encompass discrimination law to encompass discrimination not only on the basis of race understood as 'skin color' but on the basis of racial performance as well," she naively ventures into territory where Yoshino is too wise to tread. If courts have had so much difficulty determining what race people are, then how can they reasonably be expected to rule on which race behaviors and appearances belong to?

Much of what makes a group of people a society is a shared body of cultural behaviors -- a language, a set of manners, ethics, and customs. It doesn't even make sense to speak of a "society" in which the people are expected to share little more than geographic proximity. As pie-in-the-sky social engineering projects go, few can match the impracticality of deciding that we need to evaluate each and every one of those shared practices to make sure that it is not unduly imposing "white" behavior on people of color, and that this is an ideal job for our legal system. Yet even this pipe dream is insufficient for Gross, who deplores recent rulings by the Supreme Court as having moved away from the goal of affirmative action, which is to "restructure society in a nonhierarchical way."

For better or worse, human societies are hierarchical -- it's hard to see how any large and complex one could even function if it weren't. The real question is, on what do we base our hierarchy? How do we decide who leads us, who runs things, how resources get distributed and wrongs addressed? This is a matter for all of us together to decide, on the basis of standards a lot more meaningful and reliable than old ones like race. A book like "What Blood Won't Tell" -- which is, after all, a history, not a prescription -- may not offer much that's usable as a guide to the future. But it does provide us with plenty of evidence of how badly we can and have screwed up, and how much imagination and determination it will take to do it better.

Laura Miller

Laura Miller is the author of "The Magician's Book: A Skeptic's Adventures in Narnia."

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