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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]).↩

This is from Chapter 8, The Most Daring of [Our] Leaders, in Freedom's Daughters, Lynne Olson's history of women organizers' role in the black Freedom struggle, in which she tells the story of Diane Nash, the campaign in 1960 to desegregate downtown Nashville through a direct-action campaign of nonviolent sit-ins and economic boycotts, and the protests that it helped inspire across the South.

[Diane] Nash's moment of epiphany came at the Tennessee State Fair in 1959. She had gone to the fair on a date, and wanted to use the ladies' room. She found two--one marked White Women, the other Colored Women--and for the first time in her life suffered the degradation of Jim Crow. This was no longer an intellectual exercise: She was being told in the most searing way imaginable that she was beyond the pale, unfit to use the same facilities as white women. Outraged by the experience, she was even more upset that her date, a Southerner, did not share her fury. Neither did most of her fellow Fisk students. They did not seem to care that they could shop at downtown stores but not eat the stores' lunch counters, or that they had to sit in the balcony to see a movie. The more Nash found out about segregation in Nashville, the more she felt stifled and boxed in. In the rest of the country, Nashville had the reputation of being more racially progressive than most Southern cities. Blacks could vote in Nashville. The city's schools and buses were integrated. Blacks served on the police force, fire department, City Council, and Board of Education. But segregation still firmly ruled in theaters, restaurants, hotels, and libraries, and Diane Nash, a deep-dyed moralist, decided then and there that Nashville was in a stage of sin. She couldn't believe that the children of my classmates would have to be born into a society where they had to believe that they were inferior. Above all, she could not believe that her classmates were willing to let that happen.

Since they did not seem to share her anger, she looked elsewhere for support. Paul LaPrad, a white exchange student at Fisk, told her about a black minister named James Lawson, who was training college students in the use of nonviolence as the framework for an all-out attack on segregation. For Lawson, who had spent three years in India studying the principles of Gandhi, nonviolence was more than just a protest technique: It was the means by which he ordered his life. The young minister talked about the power of nonviolent confrontation with evil, about overcoming the forces of hate and transforming society through love and forgiveness. At first, Nash was skeptical. How could such high-flown idealism be harnessed as a weapon against gun-toting sheriffs and club-swinging racists? Even after attending several of Lawson's workshops, she still was sure this stuff is never going to work. But since, as she said, it was the only game in town, she kept going back, and after weeks of studying theology and philosophy, of reading Thoreau and other advocates of passive resistance, of discussion and arguments with the workshop's other participants, the intense young woman from Chicago was finally captured by Lawson's vision. She was particularly drawn to his belief that to be effective, these young would-be activists would have to transcend self-hatred and a sense of inferiority, that they would have to learn to love themselves. Having been raised in a milieu that downplayed her blackness, she now found herself part of a group suddenly proud to be called black. Within the movement... we came to a realization of our own worth...

Many students at the workshops did not know what to make of Nash. She was one of only a handful who attended from Fisk, where the notion of protest was antithetical. So what was this beautiful, light-skinned, quintessentially Fisk type doing at the workshops? Whatever the reason for her being there, her presence entranced virtually every man in the group. Plenty of fellows attending those sessions gave a go at hitting on Diane, said John Lewis, an American Baptist College student who was one of the participants. You saw some resentment among some guys because they thought another guy was making an inroad with her. Several women in the group were jealous of the attention she was getting. Even so, sexual and romantic undercurrents remained generally in the background of the Nashville movement. In time, Lewis said, Nash came to be seen more as our sister than as an object of lust.... We all became brothers and sisters, a family.

In the late fall of 1959, the students at Lawson's workshops formed a a central committee to act as the decision-making body for the group. Nash, who had impressed everyone with her clear-eyed thinking and the intensity of her developing commitment to nonviolence, was named to the committee. More and more, the students were turning to her as one of their main leaders.

The commitee had chosen the lunch counters and restaurants of Nashville's downtown stores as the target of the students' first protest, scheduled for February 1960. For the next several months, the students underwent rigorous training to prepare for the upcoming sit-ins, and on February 13, 124 students left a Nashville church and made their way to the lunch counters of several downtown stores. There, they took their seats and asked for service. The men wore suits and ties, the women, dresses, stockings, and high heels. They were poised and polite and gave little outward sign of the fear many of them felt. Diane Nash, for one, was terrified--a terror that would never leave her, no matter how many sit-ins and protests she would participate in afterward.

As frightened as the students were during that first sit-in, however, they had to struggle to keep from laughing at the stunned, panicky reactions of white store workers and patrons, who acted, Nash recalled, as if these well-dressed young people were some dreadful monster... about to devour them all. Waitresses dropped dishes, cashiers broke down in tears, an elderly white woman almost had a seizure when she opened the door of a store's white ladies' room and found two young black women inside. Throwing up her hands, she screamed, Oh! Nigras everywhere!

There were no arrests and no violence. After a couple of hours, the students left the stores, jubilant that their first foray had gone without a hitch. A second sit-in was planned for the following week. In the meantime, several members of the students' Central Committee came to Nash and asked her to head the group. She was hardworking and outwardly fearless, and she did not seem to have the ego problems that a lot of the men had. Because she was a woman and not a man, I think Diane never had to go around and do any posturing, said Bernard Lafayette, an American Baptist College student and one of the Nashville movement's leaders. But Nash had no desire to become the recognized head of this movement. Like most young women of that time, she had been raised to stay in the background. The men pressured her into accepting, however, and when she returned to her dorm room, she was so frightened by what she had done that she could hardly keep her legs from collapsing under her. This is Tennessee, and white people down here are mean, she told herself. Not only that, but we are going to be coming up against ... white Southern men who are forty and fifty and sixty years old, who are politicians and judges and owners of businesses, and I am twenty-two years old. What am I doing? And how is this little group of students my age going to stand up to these powerful people?

Once again, she managed to damp down her fear. She joined the other students in the second sit-in, which was as quietly successful as the first. Nevertheless, the city was losing its patience. Nashville officials, deluged by complaints from store owners that the sit-ins were causing whites to stay away from downtown, warned the students not to continue. If the warning wasn't heeded, they made clear, the kids could forget about being treated with kid gloves any longer. Worried about the possibility of violence and arrests, the ministers connected with the movement urged the students to reconsider their plans for another demonstration on February 27.

With their numbers swelling, the young people refused. In the middle of another snowstorm, more than three hundred of them poured into downtown Nashville. No sooner had some of them sat down at the Woolworth's lunch counter than the ministers' fears proved justified. The demonstrators were met with an opposing force of cursing young white toughs, who yanked them from their stools and threw them to the floor, beat them with fists and clubs, kicked them, spat on them, extinguished lighted cigarettes on their backs and in their hair. The police were nowhere in sight, and when they finally arrived, they approached not the white attackers, but the bruised and shaken demonstrators, who were spattered with mustard and ketchup, spit and blood. Okay, all you nigras, get up from the lunch counter or we're going to arrest you, one of the cops barked. When no one obeyed, the students were ordered to their feet, arrested for disorderly conduct, and marched out, through a guantlet of hostile whites, to police paddy wagons. When they looked over their shoulders at the lunch counter, they saw a new wave of students quietly moving in to take their place.

As the police wagons pulled away, the demonstrators inside steeled themselves for an experience for which there was no adequate preparation. They had rehearsed the sit-ins, had tried to get a sense of what they would be like, how it would feel when someone beat them or called them nigger. But it was impossible to simulate how it felt to go to jail for the first time, to give themselves up voluntarily to this dreaded system, to risk incurring a stigma that would mark them forever. Like others in the wagons, Diane Nash was wrestling with an almost paralyzing fear. Only bad people went to jail, she had been taught, and bad things happened to them once they were there.

The eighty-one arrested students were released on bail that evening. Monday morning, they reported to the city courthouse for their trials. Nashville's black community had been shocked by the arrests, and more than 2,500 blacks surged around the courthouse in an impressive show of solidarity. Inside the courtroom, the trials proceeded with bureaucratic efficiency--one after another, the students stood, were found guilty of disorderly conduct, and given fifty-five dollar fines. Then, suddenly, Diane Nash threw a monkey wrench into the works. Nash told the judge that she, John Lewis, and fourteen others had decided to go to jail instead of paying the fines. Drawing on the principles of Gandhi, Nash declared, We feel that if we pay these fines we would be contributing to and supporting injustice and immoral practices that have been performed in the arrest and conviction of the defendants. Stunned by Nash's announcement, the students who already had agreed to pay their fines declared that they, too, would go to jail.

Until then, most students arrested in sit-ins nationwide had spent little, if any, time behind bars. The idea that young people who had done nothing more than politely demand their rights would be sentenced to jail for thirty-three days electrified Nashville's blacks and touched off protests throughout the country. The city put the demonstrators to work, and the sight of the men shoveling snow and cleaning city streets and the women polishing the marble staircases of the courthouse threw the black community into even more of an uproar.

The jailing of the students had clearly backfired. Nashville's mayor, Ben West, a political moderate who had courted black votes in his last election, proposed a compromise: He would let the jailed students go and appoint a biracial commission to consider steps to desegregate the downtown stores if the demonstrations stopped. Nash and the others agreed and were released. Nash, however, was not content to sit around and wait for the committee's report. Two days after her release, she and three other students sat in at the city's Greyhound bus terminal, which was not covered by the demonstration cease-fire that the mayor had arranged. To the astonishment of everyone, including the demonstrators themselves, they were served at the bus station without any problem. It was one of the first sit-in victories in the South.

But there was little time for celebration. When the mayor's biracial committee failed to make any serious recommendations for desegregating downtown lunch counters and restaurants, the students resumed their sit-ins. At the same time they launched a boycott of downtown stores and picketed the city's central square and courthouse. Racial tensions escalated, and this time the mayor seemed powerless to do anything about it.

On April 19, just two weeks after Nash and the other leaders of the Nashville movement attended SNCC's organizing conference in Raleigh, a tremendous explosion ripped through the home of Alexander Looby, the students' lawyer. The early-morning bombing was so powerful that it shattered more than a hundred windows in nearby Meharry Medical College, yet, miraculously, Looby and his wife were not injured. Outraged, the students called for a mass march to City Hall and sent a telegram to Mayor West, asking him to meet them. When the marchers, now numbering more than three thousand, reached City Hall, the mayor was waiting for them at the top of the steps. An activist minister named C. T. Vivian made a short speech, and the mayor began to reply, pointing out all that he had done for Nashville's blacks and reminding them that he was mayor of all the community. Listening to him, Nash grew increasingly frustrated: He was making a political speech, and I remember feeling like, This is not getting us anywhere. What can I do? What can I say?

What she did was ask a simple question, one that would have far-reaching consequences in the city of Nashville. Mayor West, she said, do you feel it is wrong to discriminate against a person solely on the basis of their race or color? The question went to the heart of nonviolence, bypassing all the political boilerplate and appealing directly to West's conscience. The mayor did not disappoint. He nodded--and then said yes. They asked me some pretty soul-searching questions--and one that was addressed to me as a man, West said years later. And I found that I had to answer it frankly and honestly--that I did not agree that it was morally right for someone to sell them merchandise and refuse them service. And I had to answer it just exactly like that.

Stunned by West's honesty, the marchers burst into thunderous applause, and the next day, the Nashville Tennesseean ran a huge headline: Integrate Counters--Mayor. Three weeks later, six downtown stores targeted by demonstrators opened their lunch counters to blacks.

It was an enormous victory for the fledgling movement. The day after the march, Martin Luther King came to Nashville to honor the students. Calling their campaign the best organized and the most disciplined in the South, he said he had come not to bring inspiration but to gain inspiration from the great movement that has taken place in this community.

The Nashville students would become models for thousands of young people in the burgeoning Southern civil rights movement, and the Nashville leaders, including John Lewis, James Bevel, Bernard Lafayette, and Marion Barry, would be among the movement's foremost activists. But in the early days, at least, no one was better known or more awe-inspiring than the intrepid Diane Nash. Lewis called her the most daring of [our] leaders. Demonstrators on trial in Nashville were often asked, Do you know Diane Nash? Suddenly, she was everywhere--on the cover of Jet, on television, on the front pages of the Nashville newspapers. Her fame was not much to her liking--she was not fond of personal publicity, and she was often singled out by racists who recognized her from her picture in the paper. Once, at a sit-in, she was terrified when one of the toughs surrounding the students spotted her and yelled, That's Diane Nash! She's the one to get!

But if that was the price that had to be paid, so be it. She had been transformed by her experiences, and now she was true believer, surrendering her heart and soul, in a way few people ever would, to nonviolence and the fight for freedom. In early 1961, her reputation as one of the most daring young firebrands in the movement would be burnished even further by a monthlong stint in jail. At the request of local college students, Nash and three other SNCC activists, including a Spelman College sophomore named Ruby Doris Smith, had joined a sit-in at a drugstore in Rock Hill, South Carolina. They were promptly arrested, but rather than post bond, they opted to go to jail for thirty days.

Not long after the four were released, Nash dropped out of Fisk. The Chaucer classes, she said, became unbearable after Rock Hill. She was hired by both SNCC and the local SCLC affiliate. Her combined salary was about twenty-five dollars a week, and she rented a room at Nashville's [YWCA][]. When Jet magazine asked about her plans for the future, she said, I'll be doing this for the rest of my life.

--Lynne Olson (2001). Freedom's Daughters: The Unsung Heroines of the Civil Rights Movement from 1830 to 1970. 154-160.

Prior to the 1980s, most social science research on rape was concentrated on stranger rape -- in which a man assaults a woman who is unknown to him, who is targeted at random or opportunistically, in the midst of another crime (such as mugging or burglary). At the time, there little reliable research on date rape and other forms of acquaintance rape. Later research found that acquaintance rape was far more prevalent than previously realized, and far more common than stranger rape -- that 90% or more of all rapes were committed by a date, an intimate partner, or another man known to the victim. This passage, from New York radical feminist Susan Brownmiller's groundbreaking 1975 study Against Our Will: Men, Women and Rape, summarizes the data that was available in the mid-1970s, and the limitations of that data, which feminists were beginning to investigate and reveal.

According to the task force of the National Commission on the Causes and Prevention of Violence, half of all rape victims (53 percent) were total strangers to their attackers; another 30 percent were slightly acquainted. Seven percent had a family relationship to their rapists (daughter, sister, niece or cousin) and 3 percent were not related but had a previous close association. (As with most percentage distributions concerning crime, there is always a category called unknown or other.) The task force concluded, If a woman is attacked, then, considerable justification does appear to exist for the fear that the offender will be a stranger.

As I mentioned in Chapter 6, The Police-Blotter Rapist, the statistical profile of rape falls midway between the profiles for assault and robbery. In keeping with this pattern, when interpersonal relationships in these three crimes of violence are compared side by side, we find that strangers commit 21 percent of all assaults, 53 percent of all rapes and 79 percent of all robberies.

Testimony: About five years ago when I lived in Chicago I awoke one night gagged with my hands pinned down by someone who was wearing leather gloves and holding a razor to my throat. I wasn't quite sure I was awake. I thought I must be in the middle of a nightmare that seemed much more realistic than usual and I couldn't break it up. I was trying to establish if there really was a person there. And then I did get my wrist cut slightly, so I realized it was real and that I was risking my life and that I'd better hold still and let the man have intercourse with me. He was very fast. He wasn't wearing any clothes on the bottom half of his body and he ran out the window in that position, just like Romeo on the balcony, onto the fire escape and down.

I got up, turned on the lights and took a bath in alcohol. I was living alone. I had to get out of the apartment. I set off with my coat on and then I realized the man had gotten in my purse and left me without a penny. Apparently he had been in the apartment for some time before I woke up because I saw he had gagged me with my own dishtowel. It was then that I thought to call the police.

Stranger-rape has clearly been the preferred category from the point of view of the police precinct, the category most likely to win the determination of founded. When a woman is raped by a total stranger, her status as victim is clean and untranished in the station-house mentality. In Brenda Brown's 1973 Memphis study, 73 percent of all founded rapes were committed by strangers, and Brown reported, The closeness of the relationship was a frequently used reason for categorizing cases as unfounded. According to the Uniform Crime Reports, unfounded cases are frequently complicated by a prior relationship between victim and offender.

For this reason it remains difficult to assess the true percentage of rapes committed by strangers. As the women's movement continues to press a greater understanding of the crime of rape on the general public, women who have been assaulted by men they know will feel freer to report the crime and these reports will begin to be treated with the seriousness they deserve. At the present time, police precincts still operate from the assumption that a woman who has been raped by a man she knows is a woman who changed her mind afterwards.

Susan Brownmiller (1975), Against Our Will: Men, Women and Rape. 351–352.