Social Identity and the Law

Race, Sexuality and Intersectionality

Barbara L. Graham

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351067096
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Social Identity and the Law: Race, Sexuality and Intersectionality is an important resource for inquiry into the relationship between law and social identity in the contexts of race, sexuality and intersectionality in the United States.

The book provides a systematic legal treatment of selected historical and contemporary civil rights and social justice issues in areas affecting African Americans, Latinos/as, Asian Americans and LGBTQ persons from a law and politics perspective. It covers topics such as the legal and social construction of social identity, slavery and the rise of Jim Crow, discrimination based on national origin and citizenship, educational equity, voting rights, workplace discrimination, discrimination in private and public spaces, regulation of intimate relationships, marriage and reproductive justice, and criminal justice.

Lecturers will benefit from:

• Fifty-seven excerpted cases accompanied with engaging questions presented at the beginning of each case to stimulate class discussion.
• An eResource including 129 supplemental case excerpts and case briefs for all excerpted cases appearing in the book.
• Suggested reading lists at the end of each chapter recommending key articles and books to help students survey the academic literature on the topics.

With a logical chapter structure and accessible writing style, this textbook is an essential companion for use on undergraduate courses on American constitutional law, civil liberties and civil rights, social justice, and race and law.

Chapter 1

Social Identity and the Law

Introduction

In 1857, A New Orleans slave trader, James White, purchased fifteen-year-old Jane Morrison on the slave market in Louisiana. Jane ran away shortly after the sale but she reemerged after filing a freedom suit in Jefferson Parish, Louisiana. In her legal petition, Morrison claimed that her name was Alexina, not Jane, and that she was born to free white parents in Arkansas. White argued that Morrison was a slave and he purchased her with full warranty of title from Haliburton.¹ Whether Alexina could win her freedom was dependent on Louisiana statutes and the Supreme Court of Louisiana’s interpretation of those laws based on three possible outcomes in the case: (1) Alexina was entitled to her freedom if she could prove that she was white, (2) the slave trader James White would prevail if he could prove that Alexina was a slave, and (3) if Alexina could not prove that she was white, then the Court would decide the matter based on Louisiana’s mulatto freedom law. Louisiana determined who was black based on “fractions of blood” or whether the person of color was born to an enslaved woman. Three separate trials were held over a five-year period before Alexina Morrison obtained her freedom.

Alexina’s attorneys made the simple argument that she was white because she looked white and acted white. If Alexina had any “black blood,” then it would show in her physical appearance. Alexina was described as having blond hair, blue eyes and good manners. Her legal claim rested on the fact that white persons could not be enslaved. Both parties used the language of “racial science” to determine whether Alexina was white. The witnesses who testified on Alexina’s behalf claimed that she had physical characteristics of some whites. White’s attorneys argued that Alexina’s “African blood” could be determined by her physical appearance. Witnesses for White claimed that her cheek bones, nose and lips were indicative of “African features.” Alexina was publicly exhibited in an open courtroom and at a hotel on several occasions—she was stripped naked to the waist and physically examined by witnesses who were looking for signs of her “African features.” Alexina Morrison’s first trial ended in a mistrial but the jury ruled in her favor in the second and third trials. She finally won her freedom based on her white appearance and how she behaved in society.²

In the context of racial formation, Morrison v. White (1857) is significant historically, politically and legally. Historically, the case represents one of several lawsuits where a person of color won her freedom in the proslavery South by claiming that she was white. From a socio-political perspective, Morrison signifies the paradigm of white supremacy, the economic system of slavery and the nature of racial hierarchy in the antebellum South. From a legal perspective, Morrison demonstrates that the law and the courts shape the meaning of race in the United States.

The Social and Legal Constructions of Race

Scholars Michael Omi and Howard Winant advance the theory that “race is a master category—a fundamental concept that has profoundly shaped, and continues to shape, the history, polity, economic structure, and culture of the United States.”³ The authors argue that race plays a unique role in the formation and historical development of the United States. Concepts of domination, difference, hierarchy, inequality and marginalization can be explained by race and race-making. Framing race as a master category helps us understand the political, social and legal trajectory of race in America.

Race is defined as a “concept, a representation of signification of identity that refers to different types of human bodies, to the perceived corporeal and phenotypic markers of difference and the meanings and social practices that are ascribed to those differences.”⁴ Omi and Howard refer to the process of race-making as racial formation—“the sociohistorical process by which racial identities are created, lived out, transformed and destroyed.”⁵ Racial formation has a dual aspect. First, race can be conceptualized as a way of “making people up.” The government, for example, formally establishes racial classifications by enacting statutes. The so-called “one-drop” rule which purports to legally define who is black based on fractions of black ancestry is an illustration of race-making in the United States. Government agencies such as the Bureau of the Census have shaped racial formation and identity politics in the United States. However, racial identity trials reveal how problematic and unreliable racial classifications are when persons of color challenge binary categories of race. Second, race-making is a process of “othering”, that is, defining groups of people as “other” with distinctions based on race. In the United States, social identities are often set up as a binary—white and other. The concept of otherness is key to understanding racial hierarchy; certain racial groups, such as whites, are established as superior to the other groups. Otherness is not limited to race; it also includes distinctions based on gender, nationality and LGBTQ status. Otherness explains in a systematic way how existing power relationships and structures of inequality and differential treatment operate in the American context.

Is race a biological and scientifically observable characteristic? Or, is race socially and legally defined by those in power whose intent was to structure racial dominance and subordination in society? Legal scholar Ian Haney López advances another approach to understanding how race is defined—that race is a socially constructed concept and that law creates races.⁶ At its core, the social construction of race suggests that concepts like race, racial identity, racial hierarchy, or racial classifications are best understood as a function of societal factors, not scientific ones. Understanding race through the lens of social construction rejects the construct of biological or a scientific basis of race. A biological construction of race suggests that race is an objective category that sorts out people into essential classes based on skin color like “white,” “black” or “yellow” or the use of obsolete naming conventions like “Caucasoid,” “Negroid” and “Mongoloid.” Biological race is rooted in ancestry and physical characteristics such as skin color, hair texture, facial features, nose size, jaw size and stature. The problem is that races do not exist in nature—racial categories are created in response to historical, political, and social processes.

As Haney López argues, “races exist as powerful social phenomena.”⁷ In the American context, the “black race” was created by African slavery based on notions of biological race and white supremacist ideology.⁸ The cases examined in this chapter reveal that race is contestable in court. In addition, racial categories and group names are fluid and shifting. Court cases indicate that formal attempts to define race have, over time, been subject to expansion and retrenchment. For example, at one point in time, the Irish, Jews, Southern and Eastern Europeans were not considered white. Court cases also reveal that racial characteristics that were assigned to blacks were also assigned to the Chinese, Mexicans and Indians.

Hudgins v. Wright (1806) is an early case example of how race is defined. In Hudgins, an enslaved woman sought her freedom based on her claim that she was a descendant of a free Indian woman. Because American Indians could not be held as slaves, slaves who could prove they were descendants of Indians based on their maternal line could be set free. Does it necessarily follow that Jackey Wright was a descendant of Indians because of her “long black hair,” “copper color complexion,” and the lack of any discernible “African features?” How much has American society’s conception of who is black advanced beyond Judge Tucker’s views?

Hudgins v. Wright 11 Va. 134 (1806)

Background: In 1806, Jackey Wright, on behalf of herself and her children, filed a freedom suit against Houlder Hudgins in a Richmond, Virginia Court of Chancery. Wright claimed that she was a direct descendant, through her maternal line, of an Indian woman named Butterwood Nan. Wright claimed that she and her children had no black descendants and that they appeared white. Hudgins claimed that Wright’s mother had always been a slave. Witnesses testified that Hannah, Wright’s grandmother, was called “Indian Hannah” and she had long black hair and a copper color complexion. The judge ruled that Wright was a descendant of free white men and Indian women and freed Wright and her children. Hudgins appealed his case to the Virginia Court of Appeals. Vote: 5–0.

Judge Tucker

From the first settlement of the colony of Virginia to the year 1778, all negroes, Moors, and mulattoes, except Turks and Moors in amity with Great Britain, brought into this country by sea, or by land, were slaves. And by the uniform declarations of our laws, the descendants of the females remain slaves, to this day, unless they can prove a right to freedom, by actual emancipation, or by descent in the maternal line from an emancipated female. …

Consequently I draw this conclusion, that all American Indians are prima facie free: and that where the fact of their nativity and descent, in a maternal line, is satisfactorily established, the burthen of proof thereafter lies upon the party claiming to hold them as slaves. To effect which, according to my opinion, he must prove the progenitrix of the party claiming to be free, to have been brought into Virginia, and made a slave between the passage of the act of 1679, and its repeal in 1691.

All white persons are and ever have been free in this country. If one evidently white, be notwithstanding claimed as a slave, the proof lies on the party claiming to make the other his slave.

Though I profess not an intimate acquaintance with the natural history of the human species, I shall add a few words on the subject as connected with the preceding laws.

Nature has stampt upon the African and his descendants two characteristic marks, besides the difference of complexion, which often remain visible long after the characteristic distinction of colour either disappears or becomes doubtful; a flat nose and woolly head of hair. The latter of these characteristics disappears the last of all: and so strong an ingredient in the African constitution is this latter character, that it predominates uniformly where the party is in equal degree descended from parents of different complexions, whether white or Indians; giving to the jet black lank hair of the Indian a degree of flexure, which never fails to betray that the party distinguished by it, cannot trace his lineage purely from the race of native Americans. Its operation is still more powerful where the mixture happens between persons descended equally from European and African parents. So pointed is this distinction between the natives of Africa and the aborigines of America, that a man might as easily mistake the glossy, jetty cloathing of an American bear for the wool of a black sheep, as the hair of an American Indian for that of an African, or the descendant of an African. Upon these distinctions as connected with our laws, the burden of proof depends. Upon these distinctions not unfrequently does the evidence given upon trials of such questions depend; as in the present case, where the witnesses concur in assigning to the hair of Hannah, the daughter of Butterwood Nan, the long, straight, black hair of the native aborigines of this country. That such evidence is both admissible and proper, I cannot doubt. That it may at sometimes be necessary for a Judge to decide upon his own view, I think the following case will evince. …

Hudgins v. Wright establishes that, by default, Indians were presumed to be free persons and persons of African ancestry were presumed to be slaves. No proof existed that the Wrights were descendants of Indians, nor could the Hudgins, the slave master, prove otherwise. Judge Tucker, in his application of a racial test based on the physical characteristics of Jackey Wright, constructed race legally and reinforced racial hierarchy and social prejudice in his opinion.

Physical attributes were not the only factors judges considered in determining whether a person was white or black. In an antebellum South Carolina case, evidence that a person of ambiguous racial identity had exercised the privileges of a white man was admissible to prove that he was white. In State v. Cantey (1835), the Court had to determine whether two racially indeterminate witnesses could testify at a larceny trial. Were Judge Harper’s reasons for disregarding the witnesses’ “dark complexion” persuasive? Are juries more likely to rely on physical attributes or community reputation in deciding who is white?

State v. Cantey 20 S.C.L. 614 (1835)

Background: In 1834, Vincent Cantey was indicted for larceny. During the trial, two of the principal witnesses for the prosecution were objected to on the grounds that they were one-sixteenth black. The record indicated that the maternal grandfather of the witnesses, although of dark complexion, had been recognized as a white man, received into society and exercised political privileges. The trial judge gave the following instruction to the jury: “that if there be a clear visible admixture evidenced by the color of the skin, the hair or features, the person is to be regarded as of the degraded class; but if these distinctive characteristics be wanting, and the person has been received and treated as white, although there may be proof of some admixture derived from a remote ancestor, yet such person is to be accounted white, and entitled to privileges as such.” The jury found that the witnesses were not persons of color and Cantey was found guilty. The correctness of the jury instruction was appealed to the Court of Appeals of South Carolina. Vote: 3–0.

Harper, J.

We feel no disposition to depart from the rule laid down in The State v. Davis and Hannah [1831]. The ground of that decision is, that neither of the several statutes which speak of “negroes, mulattoes and persons of color,” nor the constitution of the State, which restricts political privileges to “free white men,” give any definition of those terms, nor is there any known t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication Page
• Brief Contents
• Detailed Contents
• List of Tables and Boxes
• Preface
• Acknowledgements
• Chapter 1 Social Identity and the Law
• Chapter 2 Slavery, Reconstruction and the Rise of Jim Crow
• Chapter 3 Discrimination Based on National Origin and Citizenship
• Chapter 4 Equity in Education
• Chapter 5 Making Democracy More Inclusive
• Chapter 6 Workplace Discrimination
• Chapter 7 Discrimination in Private and Public Spaces
• Chapter 8 Intimate Relationships, Marriage and Reproductive Justice
• Chapter 9 Criminal Injustice
• Online Supplemental Case Index
• Case Index
• Subject Index