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“It is crucial to note that, in constructing race, legal rules operate through violence” (Haney Lopez)

It is crucial to note that, in constructing race, legal rules operate through violence. The legal system enforces rules occasionally through rewards but most often through the threat of application of harm. Such potential or actual harm is often difficult to see. For example, the prerequisite cases seem at first glance to be nothing more than dry exegetical readings of ambiguous legal texts in which it is impossible to find even obscure allusions to coercive force. Nevertheless, violence is there. “A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life,” Robert Cover correctly insists, adding, “[w]hen [judges] have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”[11] In the prerequisite cases, we may assume violence, probably literally in the corporeal forms of immigration officers and border guards, certainly figuratively in the form of constrained lives and truncated hopes, and occasionally obviously in the form of suicide. [122] In the law of race more generally, violence is manifest in slavery, in Jim Crow segregation, in police brutality, in the discriminatory enforcement of criminal laws, in the dispossession of Native American land rights, in the internment of people of Japanese descent, in the failures of the law to provide equal justice or to protect against discrimination. In all of this violence, the law not only relied on but also constructed racial distinctions. To say that law constructs races is also to say that races are the product of, not just the excuse for, violence. James Baldwin remarks that “no one was white before he/she came to America. It took generations, and a vast amount of coercion, before this became a white country.”[12] Courts may have been the principal institutional forum for that vast coercion, and laws its principal form of civilized expression.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 121ff.

 

Law as coercion creates racial categories in three chief ways (Haney López)

According to Haney López, pp. 116-123, “Law as Coercion,” in its coercive aspect law serves to create racial categories in three chief ways:

  1. Legal rules have shaped physical appearances
  2. Positive law has created the racial meanings that attach to physical features
  3. Positive law establishes the material conditions which often code for race.

[WBL p. 119]

“In the name of racially regulating behavior, laws CREATED racial identities” — Tennessee use of “mulattoes, mestizos, and their descendants” (Haney Lopez)

Second, positive law has created the racial meanings that attach to physical features. In a sense, this is the heart of the prerequisite cases, which at root embody the efforts of the courts to inscribe on the bodies of individual applicants the term “White” or “non-White.” These cases established as legal precedent the racial identities of the various faces and nationalities entering the United States at the turn of the century. Again, however, the racial prerequisites to naturalization are not the only laws that explicitly defined racial identities. Almost every state with racially discriminatory legislation also established legal definitions of race. It is no accident that the first legal ban on interracial marriage, a 1705 Virginia act, also constituted the first statutory effort to define who was Black.[6] Regulating or criminalizing behavior in racial terms required legal definitions of race.[7] Thus, in the years leading up to Brown, most states that made racial distinctions in their laws provided statutory racial definitions, almost always focusing on the boundaries of Black identity. Alabama and Arkansas defined anyone with one drop of “Negro” blood as Black; Florida had a one-eighth rule; Georgia referred to “ascertainable” non-White blood; Indiana used a one-eighth rule; Kentucky relied on a combination of any “appreciable admixture” of Black ancestry and a one-sixteenth rule; Louisiana did not statutorily define Blackness but did adopt via its Supreme Court an “appreciable mixture of negro blood” standard; Maryland used a “person of negro descent to the third generation” test; Mississippi combined an “appreciable amount of Negro blood” and a one-eighth rule; Missouri used a one-eighth test, as did Nebraska, North Carolina, and North Dakota; Oklahoma referred to “all persons of African descent,” [119] adding that the “term ‘white race’ shall include all other persons”; Oregon promulgated a one-fourth rule; South Carolina had a one-eighth standard; Tennessee defined Blacks in terms of “mulattoes, mestizos, and their descendants, having any blood of the African race in their veins”; Texas used an “all persons of mixed blood descended from negro ancestry” standard; Utah law referred to mulattos, quadroons, or octoroons; and Virginia defined Blacks as those in whom there was “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.[8]

The very practice of legally defining Black identity demonstrates the social, rather than the natural basis of race. Moreover, these competing definitions demonstrate that the many laws that discriminated on the basis of race more often than not defined, and thus helped to create, the categories they claimed only to elucidate. In defining Black and White, statutory and case law assisted in fashioning the racial significance that by themselves drops of blood, ascertainable amounts, and fractions never could have. In the name of racially regulating behavior, they created racial identities.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 118-119.
  1. [6]Finkelman, supra, at 2088. According to Finkelman, “This act also made the first stab at defining who was actually black. The law declared that anyone who was a child, grandchild, or great grandchild of a black was a mulatto under the statute. this meant that persons who were of one-eighth African ancestry were black for purposes of Virginia law.” See generally A. Leon Higginbotham, Jr., and Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L. J. 1967 (1989).
  2. [7]See Raymond T. Diamond and Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 265 (1983) They argue that “[s]tate supported or initiated discrimination required racial definitions. The law could not separate what it failed to categorize.”
  3. [8]Paul Finkelman, The Color of Law, 87 NW. U. L. REV. 937, 955 n. 96 (citing PAUL MURRAY, STATES’ LAWS ON RACE AND COLOR [1950]).

“Antimiscegenation laws… sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social dominance” (Haney Lopez)

Naturalization and immigration laws are not, however, the only or even the most important laws that have influenced the appearance of this country’s populace. More significant may be the antimiscegenation laws, which appeared in the statutes of almost every state in the union until they were struck down by the Supreme Court in 1967.[3] These laws purported merely to separate the races. In reality, they did much more than this: they acted to prevent intermixture between peoples of diverse origins so that morphological differences that code as race might be more neatly maintained.[4] Antimiscegenation laws, like lynch laws more generally, sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social domination. As Martha Hodes argues, “racial hierarchy could be maintained primarily through the development of a rigid color line: if blacks and whites did not have children together, then racial categories could be preserved.”[5] Cross-racial procreation erodes racial differences by producing people whose faces, skin, and hair blur presumed racial boundaries. Forestalling such intermixture is an exercise in racial domination and subordination. It is also, however, an effort to forestall racial blurring. Antimiscegenation laws [118] maintained the races they ostensibly merely separated by insuring the continuation of “pure” physical types on which notions of race are based in the United States.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 117ff.
  1. [3]The Supreme Court declared antimiscegenation laws unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). See generally ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW (1972).
  2. [4]See VIRGINIA DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA, 56-62 (1986); Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2081-87 (1993).
  3. [5]Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War, 3 J. OF THE HIST. OF SEXUALITY 402, 415 (1993).

“Without exception, every Mexican in the county was implicated…” (Scraps of Newspaper, Olmsted)

Contemplated Servile Rising in Texas.

The Galveston News publishes the following in relation to the late contemplated negro insurrection in Colorado county:

Columbus, Colorado Co., Sept. 9, 1856

The object of this communication is to state to you all the facts of any importance connected with a recent intended insurrection.

Our suspicions were aroused about two weeks ago, when a meeting of the citizens of the county was called, and a committee of investigation appointed to ferret out the whole matter, and lay the facts before the people of the county for their consideration. The committee entered upon their duties, and in a short time, they were in full possession of the facts of a well-organized and systematized plan for the murder of our entire white population, with the exception of the young ladies, who were to be taken captives, and made the wives of the diabolical murderers of their parents and friends. The committee found in their possession a number of pistols, bowie-knives, guns, and ammunition. Their passwords of organization were adopted, and their motto, “Leave not a shadow behind.”

Last Saturday, the 6th inst., was the time agreed upon for the execution of their damning designs. At a late hour at night, all were to make one simultaneous, desperate effort, with from two to ten apportioned to nearly every house in the county, kill all the whites, save the above exception, plunder their homes, take their horses and arms, and fight their way on to a “free State” (Mexico).

[504] Notwithstanding the intense excitement which moved every member of our community, and the desperate measures to which men are liable to be led on by such impending danger to which we have been exposed by our indulgence and lenity to our slaves, we must say the people acted with more caution and deliberation than ever before characterized the action of any people under similar circumstances.

More than two hundred negroes had violated the law, the penalty of which is death. But, by unanimous consent, the law was withheld, and their lives spared, with the exception of three of the ringleaders, who were, on last Friday, the 5th inst., at 2 o’clock P.M., hung, in compliance with the unanimous voice of the citizens of the county.

Without exception, every Mexican in the county was implicated. They were arrested, and ordered to leave the county within five days, and never again to return, under the penalty of death. There is one, however, by the name of Frank, who is proven to be one of the prime movers of the affair, that was not arrested; but we hope that he may yet be, and have meted out to him such reward as his black deed demands.

We are satisfied that the lower class of the Mexican population are incendiaries in any country where slaves are held, and should be dealt with accordingly. And for the benefit of the Mexican population, we would here state, that a resolution was passed by the unanimous voice of the county, forever forbidding any Mexican from coming within the limits of the county.

Peace, quiet, and good order are again restored, and, by the watchful care of our Vigilance Committee, a well-organized patrol, and good discipline among our planters, we are persuaded that there will never again occur the necessity of a communication of the character of this.

Yours respectfully,

John H. Robson,
H.A. Tatum,
J.H. Hicks.
} Cor. Com.

The Galveston News, of the 11th nst. has also the following paragraph:

“We learn, from the Columbian Planter, of the 9th, that two of the negroes engaged in the insurrection at Columbus were whipped to death; three more were hung last Friday, and the Mexicans who were implicated were ordered to leave the country. There was no proof against these last beyond surmises. The band had a deposit of arms and ammunition in the bottom. They had quite a number of guns, and a large lot of knives, manufactured by one of their number. It was their intention to fight their way to Mexico.”

[From the True Issue, Sept. 5]

We noticed last week the rumor that a large number of slaves, of Colorado county, had combined and armed themselves for the purpose of fighting their way into Mexico. Developments have since been made of a much more serious nature than our information then indicated. It is ascertained that a secret combination had been formed, embracing most of the negroes of the county, for the purpose of not fleeing to Mexico, but of murdering the inhabitants–men, women, and children promiscuously. To carry out their hellish purposes, they had organized into companies of various sizes, had adopted secret signs and passwords, sworn never to divulge the plot under the penalty of death, and had elected captains and subordinate officers to command the respective companies. They had provided themselves with some fire-arms and home-made bowie-knives, and had appointed the time for a simultaneous movement. Some two hundred, we learn, have been severely punished under the lash, and several are now in jail awaiting the more serious punishment of death, which is to be inflicted to-day. One of the principal instigators of the movement is a free negro, or one who had been permitted to control his own time as a free man.

Frederick Law Olmsted, A Journey Through Texas; or, a Saddle-Trip on the Southwestern Frontier (New York: Dix, Edwards & Co, 1857), 503-504.

 

“the lower class or ‘Peon’ Mexicans… taking the likeliest negro girls for wives” and “a greaser” (Scraps of Newspaper, Olmsted)

“the lower class or ‘Peon’ Mexicans… taking the likeliest negro girls for wives” (Matagorda Co.) ‘a greaser’ / JTT p. 502

MATAGORDA.–The people of Matagorda county have held a meeting and ordered every Mexican to leave the county. To strangers this may seem wrong, but we hold it to be perfectly right and highly necessary; but a word of explanation should be given. In the first place, then, there are none but the lower class or “Peon” Mexicans in the county; secondly, they have no fixed domicile but hang around the plantations, taking the likeliest negro girls for wives; and, thirdly, they often steal horses, and these girls, too, and endeavor to run them to Mexico. We should rather have anticipated Lynch law, than the mild course which has been adopted.


A VOTER.–As an evidence of the capacity of the Mexican population to discriminate in matters of State importance, it may be mentioned that at one of the polls held in this city, a greaser, who was challenged, was asked incidentally by a bystander, “who he voted for, for Governor?”

“Sublett,” was the reply.

“Who for Lieutenant-Governor?”

“Sublett,” rejoined the Mexican.

“Who for Representative?”

“Sublett,” again muttered this bombshell freeman.

Voters like that swelled the Anti American majority in Bexar. Boast of your triumphs, gentleman Bombshells.

Frederick Law Olmsted, A Journey Through Texas; or, a Saddle-Trip on the Southwestern Frontier (New York: Dix, Edwards & Co, 1857), 502.

Over My Shoulder # 49: Sic Semper

Here’s the rules.

  1. Pick a quote of one or more paragraphs from something you’ve read, in print, over the course of the past week. (It should be something you’ve actually read, and not something that you’ve read a page of just in order to be able to post your favorite quote.)

  2. Avoid commentary above and beyond a couple sentences, more as context-setting or a sort of caption for the text than as a discussion.

  3. Quoting a passage doesn’t entail endorsement of what’s said in it. You may agree or you may not. Whether you do isn’t really the point of the exercise anyway.

Here’s the quote. This is from my class readings, Herodotus (c. 449 BCE), The Histories (trans. G.C. Macaulay and Donald Lateiner); I read it during one of my study jags over at The Coffee Cat. It’s Herodotus’s version of the end of the life of Cyrus the Great, the first King of Kings of the Persian Empire. At this time in his life, Cyrus had gained supreme power over the Persians, taken power over the old Median Empire, and set out on decades of large-scale conquest, subjugating nearly all of the peoples in Asia Minor, the Levant, and Mesopotamia. He then went with his army to the river Aras, in the hopes of expanding his conquest onto the Central Asian plains.

201. When [Babylon] also had been subdued by Cyrus, he desired to bring the Massagetai into subjection to himself. This nation is reputed to be both great and warlike, and to dwell towards the East and the sunrise, beyond the river Araxes and over against the Issedonians. Some say that this nation is of the Scythian race.

. . . 205. Now the ruler of the Massagetai was a woman, who was queen after the death of her husband, and her name was Tomyris. To her Cyrus sent and wooed her, pretending that he desired to have her for his wife. Tomyris, understanding that he was wooing not herself but rather the kingdom of the Massagetai, rejected his approaches. Cyrus after this, as he made no progress by craft, marched to the Araxes and campaigned openly against the Massagetai, forming bridges of boats over the river for his army to cross, and building towers upon the vessels which gave them safe passage across the river.

[. . . The captive king Croesus advised Cyrus to leave behind part of his army, along with preparations for a feast with strong wine, as a snare for the Massagetai warriors, who had no experience with Persian drinks.]

211. . . . After this when Cyrus and the sound part of the army of the Persians had marched back to the Araxes, and those unfit for fighting had been left behind, then one-third of the army of the Massagetai attacked and proceeded to kill, not without resistance, those whom the army of Cyrus had left behind. Seeing the feast that was set forth, when they had overcome their enemies they lay down and feasted, and being satiated with food and wine they went to sleep. Then the Persians came upon them and slew many of them, and took alive many more even than they slew, and among these the son of the queen Tomyris, who was leading the army of the Massagetai; and his name was Sparagapises.

212. She then, when she heard that which had come to pass with the army and also the things concerning her son, sent a herald to Cyrus and said: Cyrus, insatiable of blood, do not celebrate too much what has come to pass, namely because with that fruit of the vine, with which you fill yourselves and become so mad that as the wine descends into your bodies, wicked words float up upon its stream,—because setting a snare, I say, with such a drug as this you overcame my son and not by valor in fight. Now therefore hear this my word, giving you good advice:—Restore to me my son and depart from this land without penalty, triumphant over a third part of the army of the Massagetai. If you shall not do so, I swear to you by the Sun, who is lord of the Massagetai, that surely I will give you your fill of blood, blood-thirsty though you are.

213. These words were reported to him, but Cyrus disregarded them; and the son of the queen Tomyris, Sparagapises, when he sobered up and he realized his plight, entreated Cyrus that he might be loosed from his chains and gained his request. So soon as his hands were free, he put himself to death. 214. He then ended his life in this manner; but Tomyris, as Cyrus did not listen to her, gathered together all her power and joined battle with Cyrus. This battle I judge to have been the fiercest of all the battles fought by Barbarians,[1] and I am informed that it happened thus:—first, it is said, they stood apart and shot at one another, and afterwards when their arrows were all shot away, they fell upon one another and engaged in close combat with their spears and daggers; and so they continued their fight with one another for a long time, and neither side would flee; but at last the Massagetai got the better in the fight. The greater part of the Persian army was destroyed there upon the spot, and Cyrus himself died there, after he had reigned twenty-nine years. Then Tomyris filled a skin with human blood and had search made among the Persian dead for the corpse of Cyrus. When she found it, she let his head down into the skin and doing outrage to the corpse she said this over it: Though I yet live and have overcome you in fight, nevertheless you have destroyed me by taking my son with craft. I nevertheless according to my threat will give you your fill of blood. There are many tales told about the end of Cyrus, but this one is to my mind the most worthy of belief.

— Herodotus (c. 449 BCE), The Histories, Book I §§ 212-213. (Trans. G.C. Macaulay and Donald Lateiner.)

  1. [1] [Sic. By Barbarians, Herodotus simply means nations that do not speak Greek. —CJ]

Us, the Unnoticed

This is from Bernardo Soares’s (or Fernando Pessoa’s, as you like)[1] Book of Disquiet, text 24. In the context of the book, the passage is contextually even more striking because it contains only the second time (after dozens of pages) that anything appears in the text that was said by another human voice besides the narrator’s. And the first that what someone else said is actually breaks through, or alters Soares’s train of thought.

Today, feeling almost physically ill because of that age-old anxiety which sometimes wells up, I ate and drank rather less than usual in the first-floor dining room of the restaurant responsible for perpetuating my existence. And as I was leaving, the waiter, having note that the bottle of wine was still half full, turned to me and said: So long, Senhor Soares, and I hope you feel better.

The trumpet blast of this simple phrase relieved my soul like a sudden wind clearing the sky of clouds. And I realized something I had never really thought about: with these café and restaurant waiters, with barbers and with the delivery boys on street corners I enjoy a natural, spontaneous rapport that I can’t say I have with those I supposedly know more intimately.

Camaraderie has its subtleties.

Some govern the world, others are the world. Between an American millionaire, a Caesar or Napoleon, or Lenin, and the Socialist leader of a small town, there’s a difference in quantity but not of quality. Below them there’s us, the unnoticed: the reckless playwright William Shakespeare, John Milton the schoolteacher, Dante Alighieri the tramp, the delivery boy who ran an errand for me yesterday, the barber who tells me jokes, and the waiter who just now demonstrated his camaraderie by wishing me well, after noticing I’d drunk only half the wine.

— Bernardo Soares, The Book of Disquiet text 24 (pp. 27-28)
New York: Penguin. trans. Richard Zenith.

  1. [1] Pessoa wrote almost all of his mature literary work under a number of heteronyms, that is, signatures that represented not only an alternate name, but actually a complex set of interacting characters that Pessoa invented and set into the Portuguese literary scene of his day.

Right and Individual Rights.

Now available thanks to Benjamin Sojda at Transcribing Liberty:

Vol. I, No. 12
January 7, 1882

Until someone shall have formulated and demonstrated a correct science of justice, the way is ever open to constant confusion as regards the subject of right and rights. The columns of a newspaper are not the place to develop such a science; nevertheless, the matter is so important that we have determined, reconsidering our previously-announced purpose to drop it, to once more re-state our position. On several occasions our editorials have been sharply criticized by parties who are supposed to know something of the principles of Liberty; not that they would differ from us, if they carried in mind the distinction that must necessarily be kept in view in discussing the bearing of Liberty upon human acts, but simply that they have got into the habit of carelessly defining acts without reference to the sphere of the individuals acting.

The right to do a thing and the abstract right of a thing involve two essential different principles. For instance, we have defended the right of individuals to make contracts stipulating the payment of usury, and should strike at the very essence of Liberty if we did not; but this defense of individual right by no means carries with it the defense of usury as an equitable transaction per se. In defending the right to take usury, we do not defend the right of usury. He who cannot see this has not mastered the A B C of social analysis. One of our critics, who has twice challenged our defense of individuals who voluntarily choose to be parties to usury, strenuously defends "free rum." Would he like to be accused of saying thereby that it is right, as a matter of principle, to drink rum inordinately? No, he is a sever believer in ...

Read the whole thing at Transcribing Liberty.

The Philosophy of Right and Wrong.

Now available thanks to Benjamin Sojda at Transcribing Liberty:

Liberty Vol. I, No. 7
October 29, 1881

The most serious calamity attendant upon false premises in the realm of thought is that the avowed and conscientious enemies of despotism are made to be persistent advocates and defenders of the pivotal agencies upon which it hinges. We do not make this assertion in a spirit of self-sufficiency and conceit, and are aware that those who differ from us will, of course, turn it against ourselves. Naturally, we feel very positive that the philosophy which shapes the teachings of Liberty is correct and unanswerable; but we are fallible, and, if the history of human opinions reaches anything, it is that nothing in this world is a finality.

But upon one thing all school of sociology will agree, - namely, that the very first step in all reasoning looking to human well-being is to fix upon a correct scientific basis of right and wrong. These terms are upon everybody's lips, from the prattling stripling to the hoary theologian and moralist, and yet the average man has no fixed conception of what it is that constitutes an action as right or wrong. At every step we find people disputing and arguing over the right and wrong of a thing, but arrest them in any instance, and ask them what constitutes right and wrong in nature and practice, and they are totally unable to answer. And yet the whole argument in every case is useless and worthless until this point is settled.

The chief mischief attending this lamentable absence of a true scientific standard of right grows out of the universally accepted inference that, as soon as one is convinced that a practice is what he calls wrong, it is his next and imperative duty to set about to interdict that practice by force. ...

Read the whole thing at Transcribing Liberty.