Tuesday, January 21, 2020



Excerpted from: Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-century South, 108 Yale Law Journal 109 (October 1998) (321 Footnotes) (Full Document)


ArielaJGrossIn April of 1855, Abby Guy sued William Daniel in the Circuit Court for Ashley County, Arkansas, complaining that he held her and her children unfairly in slavery despite the fact that she was white. The trial was held in the small town of Hamburg's brand-new courthouse, no doubt drawing spectators from all over the county to witness the dramatic determination of Guy's racial status. After Guy won her case, William Daniel appealed it to the state supreme court, and it was tried again in a neighboring county before she finally prevailed in the Arkansas Supreme Court on the eve of the Civil War. At the two trials, jurors watched Guy and her children display themselves for inspection, read documents of sale and a will, and listened to the opinions and descriptions of medical experts and witnesses from several counties. Witnesses testified about Guy's appearance, her reception in society, her conduct, her self-presentation, and her inherited status. In each case, the judge left the question of “race” for the jury to decide, because the jury represented the community consensus.

Trials like Abby Guy's, at which the central issue became the determination of a person's racial identity, were a regular occurrence in Southern county courts in the nineteenth century. While nineteenth-century white Southerners may have believed in a racial “essence” inhering in one's blood, there was no agreement about how to discover it. Legal determinations of race could not simply reflect community consensus, because there was no consensus to reflect. Despite the efforts of legislatures to reduce racial identities to a binary system, and of judges to insist that determining race was a matter of common sense, Southern communities harbored disagreement, suspicion, and conflict--not only over who was black and who was white, but over how to make such determinations at all.

By examining the kinds of evidence witnesses and litigants brought forth at trial, I hope to suggest that law, broadly defined, played an important role in constituting the cultural meaning of racial identities. In this Article, I argue that, over the course of the antebellum period, law made the “performance” of whiteness increasingly important to the determination of racial status. Doing the things a white man or woman did became the law's working definition of what it meant to be white. This definition of race as performance operated in a law-like fashion, prescribing certain rules of behavior for people of different races. Furthermore, one of the most important ways in which men in particular could perform whiteness was, paradoxically, through the exercise of legal rights. Witnesses at trial frequently proved a man's whiteness by reporting on his performance of acts of citizenship--voting, mustering for the militia, sitting on a jury--that made rightsholding part of the definition of whiteness for men. The trials thus reveal the implications of a racial ideology that decreed that “negro blood” made a person inferior in virtue, competency and behavior--that “blood” made a person act in certain ways. The “laws” of race could be subverted by people who followed all the rules of whiteness but “hid” their intrinsic blackness. Law, which provided the forum for these challenges, made a discourse of race as performance especially salient.

Recognizing that this discourse of performance rose together with “scientific” ways of thinking about race may unsettle the comfortable certainty that race was “that way then, and this way now.” Many contemporary arguments about race on both sides of the political spectrum depend on a view of racism in the past as biological essentialism. Peggy Pascoe has identified “modernist” or “color-blind” racial ideology with two views, analytically distinct but sometimes conflated: one in which “race” is culturally constructed, with no biological basis, and one in which race is biologically based but culturally irrelevant. Academic opinion has adhered to the first vision, whereas American courts have tended to accept the second. Both of these views depend on an understanding of a past in which race once meant simply biology, and racism was something “hard,” scientifically based, and natural.

I will say a few words about where this study fits into the cluttered landscape of writing about race. There is an enormous literature on the social construction of race, in a variety of disciplines, and I want neither to reproduce nor to critique that literature here. Historians of race and racial ideology often cite legal rules defining race in terms of fractions of “blood” as evidence of race's “social construction.” The fact that these statutory definitions of race changed over time and varied across place-- especially the fact that our contemporary definition of black by a one-drop standard developed only in the last 130 years--has suggested to scholars that what “race” means is historically contingent, dependent on political and social circumstances. There are a number of claims included in the “social construction” argument. First, and probably least controversial, is the claim that whether or not there is some inner, “real” essence to race, whether or not racial designations have a biological or anthropological basis in fact, the social meaning of race--which cultural attributes are attached to racial designations, which rights and disabilities accompany racial status, and so on--has changed over time and varied across space. Second, most of the work on the social construction of race seeks to pinpoint a moment at which race was “invented” or when it “originated.” Thus, historical writing in this area has a “chicken-and-egg” quality because it has revolved around a debate over which came first: racism or slavery. Those who emphasize the social construction of race argue that racism, defined basically as meaningful social recognition of racial difference, developed out of the relations of slavery, which arose from primarily economic causes. At its most extreme, some scholars have claimed that race is an “illusion”--that there is no basis in science, culture, or shared history to group human beings by “race.” Under this view, race is pure ideology.

The debate over constructivism only with respect to race but also in relation to a variety of aspects of human identity an important one. For the purposes of this Article, however, I want to assume at least the weaker version of the social construction of race, in order to open certain questions about how that construction might have taken place in the courtroom.

One way of understanding the relationship of law and race in the South is to read formal expressions of law, such as statutes and common law rules regarding racial definition, as evidence of changing social beliefs about race. Implicit in this approach is a functionalist view of law: Law changes in response to the needs and “interests” of society, or of the class with power in society. Of course, this view makes the most sense when one focuses on legislation, the legislative branch of government being the most susceptible to the pressures of public opinion and “interest groups.” By contrast, some critical race scholars insist on the importance of law in the process of racial construction. Ian Haney López, one of the few legal scholars to go beyond the study of statutes to look at the case law on racial determination, subtitled his study, “The Legal Construction of Race,” suggesting a powerful role for courts in the creation of racial identity. Legal scholars and historians, however, have paid scant attention to the records of trials in local courts.

This relative inattention is perplexing, given that ancestry rules were often insufficient to decide actual cases. Juries made the racial determinations in the great majority of cases in the nineteenth century. Indeed, courts consistently held that juries should be allowed to see and hear the widest array of evidence and should have great discretion in finding the “facts” of race. Particularly in the antebellum period, the realms of “law” and “fact” were far from distinct; although the nineteenth-century trend was towards greater power for the judge, vigorous popular efforts to limit judicial power, and strong customary traditions of juries deciding “law” questions, meant that the battle was far from won. Juries received instructions about the “legal” definition of “negro” and “mulatto” in these trials, but such instructions did not settle the question of racial determination. In some cases, the judge did not specify a definition of “negro” or “white.” Instead, the judge simply charged the jury that if they found the person to be negro, it would lead to one result, and if they found her to be white, it would lead to another. In other cases, the judge instructed the jury about the kinds of evidence they could consider in making their determination but said nothing more about the nature of what they were determining. In still other cases, the jury instructions specified some fraction of African ancestry as the definition of “negro” or “mulatto.” Regardless of the instructions, however, most of the testimony in court traveled far afield from questions of ancestry.

This Article will spotlight the trials themselves in order to suggest a more complex interplay between legal and cultural meanings of race. Trial testimony provided glimpses of ordinary people's, as well as lower-level legal actors', legal understandings of racial categories and of their own places in the racial hierarchy. Trials brought to the surface conflicting understandings of identity latent in the culture; people who had lived lives on the “middle ground” of ambiguous status for years now had to fall on one side of the line. Trials required a confrontation between everyday ways of understanding race and definitions that fit into the “official,” well-articulated racial ideology that supported the maintenance of slavery and postwar racial hierarchy. That is, legal rules based on “blood” had to be translated into practical action “on the ground,” where people were more likely to describe someone's race in terms of how they looked and behaved than in terms of their fractional ancestry. By exploring Abby Guy's story, and others like it, one can learn how witnesses, lawyers, and litigants in the courtroom attempted to make the leap from what was knowable about a person to what was unknowable, or at least only imperfectly ascertainable--from social and physical “facts” about the person to the blood that ran in her veins. This quintessentially legal process--providing evidence of unseen acts or identities to prove that certain persons or things should be placed in one formal category or another--was an important part of nineteenth-century Southern society's ideological fashioning of “race” as a potent force in social life.

Thus, trials of racial determination were important not only to the litigants themselves, whose personal freedom, property holdings, and status as masters and slaves hung in the balance, but also to the neighbors who participated in the trials as witnesses and jurors, as well as to those who learned its lessons through gossip, newspaper accounts, and literary narratives. The courtroom conclusions about how to decide whether someone was black or white, whether this was seen as the essence of race or simply as the best available evidence of race, reverberated throughout Southern culture because of the importance of the courtroom as a cultural arena. Even a relatively small number of cases could have had a far greater cultural impact than a much larger number of cases today, because cases in the nineteenth century were public events, many of them notorious, and they took place at the central meeting-place of towns and rural areas: the county courthouses.

This Article is based on a reading of all of the surviving trial records that I have been able to locate for the sixty-eight cases of racial determination appealed to state supreme courts in the nineteenth-century South. More than half of these (thirty-six) took place in the last years of slavery--between 1845 and 1861--and the majority involved men. These cases arose from a variety of circumstances. Certain criminal statutes specified that a crime was particular to persons of color or “negroes,” so that one might raise the defense of whiteness to an indictment. Nearly all of these cases involved men. In inheritance disputes, one claimant to the estate sometimes claimed that another claimant, or the testator himself, was black and therefore could not inherit or devise property. In other inheritance disputes, racial determination often arose in litigating questions of legitimacy: one party might attempt to overcome the presumption of paternity with evidence that the child was mulatto. In the only kind of case in which women were disproportionately the subject of racial determination, slaves sued for their freedom by claiming whiteness. In suits for slander, a man who held himself out as white sued for lost status or property because another person impugned his whiteness. The circumstances of these cases included scuttled weddings, economic disputes between neighboring grocers, and blackballing from clubs or militia units. There were also a few criminal cases in which defendants sought to disqualify witnesses by claiming that they had “colored” blood. Finally, slaveholders sued steamboats and railroad companies that carried runaway slaves “passing” as white; the transportation companies usually defended by arguing that the slaves were, for all intents and purposes, white.

Of course, courtroom battles were not the routine mechanism for knowing a person's racial status in Southern society. For Southerners whose appearance seemed clearly to mark them as “black,” the vast majority of whom were enslaved before 1863 or 1864, racial status was over-determined. The confluence of dark skin, degraded status, reputation, and ancestry rendered the possibility of litigation over racial identity impossible for those African Americans. Yet litigated cases of racial determination are important to the understanding of the creation of racial meanings for a number of reasons. First, there was a substantial and growing number of people of mixed racial ancestry for whom racial presumptions based on appearance could not settle the question of identity. Second, the presence of Indians in the population complicated the equation of dark skin with “negro” identity or slave status. Even dark skin and curly hair did not automatically consign one to the “negro” race if one could trace one's color to “Indian blood.” But even more importantly, the possibility of ambiguity created by people of contested racial identity was a source of great anxiety to white Southerners, who expended a great deal of energy trying to foreclose the possibility of white slaves, “passing” blacks, and the interracial sex that lay behind both. If we take their anxiety seriously as a clue to what mattered to white Southerners in their struggle to define racial categories, we cannot simply dismiss the litigated cases as odd or freakish.

Part II of this Article will examine the various bases on which litigants, witnesses, jurors, and judges relied to make their arguments and decisions about a person's racial status. This Part discusses the lack of consensus in the courtroom and the tension between common sense and different kinds of “expertise” as a basis for racial knowledge. It looks at the tremendous profusion and confusion of criteria for whiteness within any given moment or particular case, as well as the rise, over the course of the antebellum period, of two discourses of “race,” one of science and another of performance. Part III explores the performative, prescriptive aspects of race: the way that people whose racial status was at issue had to perform white womanhood or white manhood, both within the courtroom and without, and the way that race depended on understandings of identity that were essentially social and legal in nature. Finally, Part IV concludes with a discussion of the contemporary uses of the history of the social and legal construction of race.

[. . .]

The insight that law has played a crucial role in producing the racial categories used to enforce racial hierarchy may engender a sense of helplessness about the hegemonic function of law. On the other hand, recognizing the existence of different lawmakers reveals more room for the “contestability” of racial definition under the law than is suggested by some contemporary accounts of the law's role in racial construction. Because “race” was a question for the jury, trials of racial determination were fora for heated contests over individuals' identities. During a period when lawyers and judges were self-consciously involved in making law into a science, trials remained unruly arenas for juries to exercise wide discretion. Furthermore, the discourse of race as performance allowed some individuals who inhabited the constantly shifting “middle ground” of race to challenge their own place in the hierarchy though claims of whiteness.

By this, I do not mean to suggest that the nineteenth-century South was a free-wheeling world in which people could “try on” racial identities as they pleased with plenty of room for experimentation. Nor do I wish to minimize the tremendous consequences attendant on these racial determinations, which the law made once and for all. And raising a whiteness claim was a double-edged sword. The discourse of performance confirmed to a wide audience the ideological connections between degradation and blackness on the one hand and among morality, virtue, civic ability, and whiteness on the other. As Eve Kosofsky Sedgwick has pointed out, recent academic writing about performativity tends to become stuck on the question of whether certain performances, like “passing,” did or did not reinforce the status quo. “The bottom line,” she writes, “is generally the same: kinda subversive, kinda hegemonic.” Yet legal studies from within the legal academy have been surprisingly ready to concede law's hegemony without acknowledging that a variety of actors--litigants, jurors, witnesses, lawyers, and the community at large--played a role in creating the law. The unpredictability of courtroom battles over “race” allowed Phoebe, Abby Guy, Sally Miller, Alexina Morrison, and their lawyers to fashion performances--and narratives about performance--that they used to win their freedom and that abolitionists used as weapons in the battle to bring freedom to all Southern slaves.

The legal discourse of prescriptive whiteness challenges the notion that the social or legal “construction of race” was solely about the invention of a pseudo-scientific basis for essential racial difference. This point may have unsettling implications for contemporary political and legal discourse. Despite tremendous normative differences, contemporary narratives about race emerging from debates about affirmative action and other policy questions share certain common historical assumptions about racism and “race” in the past. Both the colorblind constitutionalism of the Rehnquist Court and various “conservative” commentators, and the race-conscious ideology of supporters of race-based remediation premise their views on understandings of how “race” and racism today differ from “race” and racism in the past, usually the nineteenth-century past. Likewise, the anthropologist Ann Stoler has shown that much contemporary “antiracist” scholarship on race depends on the assumption that “race” was once “as constant as a southern star.” By contrasting the present with a past in which there was “hard,” essentialist, scientific racism, it becomes easier for society to distance itself from that past, and, as a result, important truths about racial meanings in modern times and the role of law in creating racial meanings remain unnoticed.

As George Fredrickson explains, “[S]cience-based concepts of race may lose credibility as the result of new discoveries and shifting paradigms, but concepts of race based on the cultural differences associated with descent groups may have greater durability.” On the contemporary scene, Fredrickson compares Charles Murray and Richard Herrnstein's “old-fashioned biological determinism” to Dinesh D'Souza's “cultural determinism which does much the same work.” In The End of Racism, D'Souza argues that it is appropriate in a society that does not “see” race, in which all racial classifications are eliminated, for members of certain racial groups to end up at the bottom of the social, political, and economic hierarchy in much higher numbers than members of other groups, based on their inferior “cultural,” moral, and civic attributes. Thus, D'Souza suggests that “culture” may justly provide a basis for social discrimination that, on average, produces racial inequality. As Fredrickson notes, “[t]his 'new racism’ is not really unprecedented. . . . It recalls the rationale for black enslavement and subordination that preceded the growth of scientific racist doctrines.”

The history of racial determination litigation, however, suggests that nineteenth-century racism, even racial essentialism, was marked not only by the rise of scientific discourse but by the rise of a discourse of race as social and civic performance. If racial categories were defined not only by “blood” but by and through the performance of moral and civic virtues, then racism in the nineteenth century was not so very distant from the racial ideology of today. Indeed, the idea that moral and civic performances can and should determine one's place in the social hierarchy, and that they may be related to one's racial identity, is similar in important ways to D'Souza's view.

To recognize the contestability of law is only to see how much work still lies ahead. For if “race” in the past was more mobile and more contested than previously thought, yet still remained the basis for the thoroughgoing social, legal, and political subordination of African Americans, it should not surprise us that current efforts to “destabilize” race, to break down or refuse to recognize racial categories, have failed to topple the existing racial hierarchy. In important ways, our society is not as distant from our past as we imagine and hope.



These abbreviations represent the following categories: BAS (bastardy); CRI (criminal); CT (in wrong court); INH (inheritance); MAN (manumission); MAR (interracial marriage or fornication; NA (not available); RR (carrying off of runaway slave by railroad or steamboat); SCH (school); SLA (slander); TAX (taxation of person of color) and WIT (witness disqualification).


These abbreviations represent the following categories: A (affirmed); R (reversed or remanded (not necessarily overturning finding on color)); C (of color); and W (white).


These abbreviations represent the following categories: Anc (discussion of ancestry); Doc (documents); Ins (physical inspection in court); Lks (physical descriptions); Perf (social performance); Rep (reputation and ascriptive identity); Rts (rights exercised); and Sci (scientific evidence).

Associate Professor of Law, University of Southern California.

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