New book examines racial identity trials in America
—By Gilien Silsby
USC Law Professor Ariela J. Gross spent years unearthing the legal history of racial identity.
In her new book, What Blood Won’t Tell: A History of Race on Trial in America (Harvard University Press, 2008), Gross recounts stories of racial identity trials in American courts, from the early republic well into the 20th century. The racial identity trials — court cases that determined a person's “race” as well as their rights and privileges — help explain the history of race and racism in America. “One of the most compelling cases I examined involved a woman named Alexina Morrison, a blond-haired, blue-eyed slave in Louisiana in the 1850s,” says Gross, the John B. and Alice R. Sharp Professor of Law and History. After running away from her master and surrendering herself to the parish jail for protection, Morrison successfully convinced white society that she was one of them. When she sued for her freedom, witnesses assured the jury that she was white, and that they would have known if she had a drop of African blood. “Over the past two centuries, people have fought to establish their whiteness in order to lay claim to full citizenship in local courtrooms, administrative and legislative hearings, and the U.S. Supreme Court,” Gross said. “Like Morrison’s case, these trials have often turned less on legal definitions of race as percentages of blood or ancestry than on the way people presented themselves to society and demonstrated their moral and civic character.” Gross discusses her book, the history of racism, and the state of race relations in America today. She also will talk about her book during a lunchtime event on Oct. 21 in Room 130. 1. What is your book, What Blood Won’t Tell, about? This is a book about the history of race and racism through the stories of racial identity trials. Today, racial identity trials may seem bizarre, but they were common occurrences in local American courts from the early republic well into the 20th century. 2. What difference did these individual stories make? These stories show the power and limits of individual action in the history of race and racism. Some individuals could, through their efforts to “pass” as white, for example, win freedom, convince others of a new identity, and shape narratives that were used in the struggle for abolition; at the same time, the very act of proving whiteness to win citizenship or freedom reinforced the idea that only whites were worthy of citizenship or freedom. Law is not made from above. Ordinary people confronted the state in local courts, and those confrontations shaped the law. Race did not just happen, and law was not imposed on us. We made race, and we continue to make it every day. We can’t unmake it by pretending it doesn’t exist. We need to confront and dismantle racial hierarchies as they exist now, head-on, to affirmatively undo exclusion in employment, politics, education and public life. 3. What is race, anyway? We tend to believe race is a fact of nature, a property of blood, that we know it when we see it. But race is a powerful ideology that came into being and changed forms at particular historical moments as the product of social, economic, and psychological conditions. Fundamental to race is a hierarchy of power, and this story is about determining racial identity for particular purposes: enslaving some people to free others; taking land from some to give to others; robbing people of their dignity to give others a sense of supremacy. 4. Why draw racial lines after slavery? After slavery, Southerners redoubled their efforts to maintain white supremacy through policing the color line. Northerners and Westerners, too, sought to exclude African Americans and other people of color from public life, and even expel them from towns and cities. Across the country, strict bans on interracial marriage led to sensational trials of racial identity, as did cases about school admission and cases of racial slander, in which one neighbor sued another for calling him a negro. Why so much effort to determine racial boundaries? To uphold white privilege: enslave blacks, appropriate Indian lands, exclude immigrants from citizenship. 5. Was Jim Crow just about black and white? This book also tells the story of peoples who were neither black nor white. For example, in Indian Territory, when the federal government started drawing up Indian rolls and allotting land to Indians, they did so in a Jim Crow process, separating those they considered Indians and negroes onto segregated rolls and giving them different rights, making all the multiracial Indians fall on one side of the line. Those so-called “Freedmen” are today in battles with their nations — especially the Seminole and Cherokee — over citizenship claims. Even as far away as Hawaii, the allotment of land coincided with the introduction of notions of blood quantum, defining the Hawaiian people racially for the first time. 6. What about immigrants? Blacks, Indians and Hawaiians became formal U.S. citizens, but were excluded from full participation in social and political life. Yet large numbers of immigrants were excluded from formal citizenship by legal determinations that they were not white, especially those who came from China, Japan and India. 7. Were Mexican Americans white? Mexican Americans, on the other hand, were nominally recognized as white under immigration law, but their white status was hardly clear or uncontested. They were excluded from schools, political institutions, and public accommodations. When they protested discrimination, state officials cynically used their whiteness as a “Caucasian cloak” to mask segregation. 8. Has society moved beyond the concept of race and racist ideology? Today, race and racism are still with us. If it were true that racism in the past was based only on a now-discredited biological understanding of race — on blood — it would have been relatively easy to eradicate racism with colorblind policies. But despite the hard-won victories of 20th century civil rights struggles — and even the milestone of an African American presidential candidate — racism has survived, in part because its bases are shifting and mobile. For so long as many still believe that differing life chances do and should correlate with one’s performance of identity, one’s ability to achieve citizenship through “blood,” or one’s cultural practices, racism will persist. 9. Do courts today still litigate racial identity? Courts rarely litigate racial identity explicitly today. But courts and other legal institutions continue to shape narratives about the meaning of racial identity and its connections to citizenship. The equation of whiteness with citizenship is still with us today in the figure of the Latino or Muslim “alien” and the African American felon, put outside America’s civic boundaries. The trials that established this equation no longer take place today, but their legacy is ingrained in our thought, our legal system, our cultural practice, and our racial common sense. We continue to reproduce racial hierarchy through seemingly neutral practices that perpetuate established patterns of power and privilege. The changing nature of racism has made it harder, not easier, to undo racial hierarchy. 10. Doesn’t this just show how absurd “race” is? Should we just stop classifying by race completely — including for “benign” purposes like affirmative action? The tragedy of this history is not that law did not work because of its logical failures — the absurdity of categorization — but that it worked too well. By regulating citizenship according to racial categories while simultaneously producing those categories through the performance of citizenship, law helped to establish race. Some advocates of colorblindness believe that if we refuse to recognize race, it will automatically cease being an informal prerequisite to the enjoyment of full civic participation as well. Others are less clear about what they think the result will be. Some conservatives suggest that it’s acceptable if inequality remains so long as that inequality is based on culture and performance rather than blood. I think we need to be very suspicious of this approach. We need to see race in order to undo the harms it has done. 11. Wasn’t race defined by a “one drop of blood” rule? Many people portray the history of race in the United States as the rise of the “one drop of blood” rule. We have made too much of this. It was not the one-drop rule that kept the edifice of Jim Crow so strong. Racism could work through many different rules about ancestry, and it did. It could work even with a great deal of racial mixture. Just because more people are marrying across color lines today, doesn’t mean race or racism are things of the past. 12. What can we do? I argue against several approaches to redressing inequality: Colorblind policies are not the answer. Cultural discrimination is often racial discrimination in sheep’s clothing. Identity politics and diversity policies can’t bring us to a more equal, integrated future. Instead, we need to fight racism in all of its forms, including discrimination on the basis of identity performance. Courts now recognize that it’s a violation of equal rights to discriminate against women who don’t perform their identity in certain ways; the same should be true of discrimination on the basis of racial performance, culture or language. Today, we've come a long way in certain ways, and in other ways things are worse than ever. Blacks and whites live separately, are extremely unlikely to marry one another (although they both may marry Asian Americans or Latinos), and attend different schools. The income and wealth gap between blacks and whites is as great as ever. Yet there have been surprising changes too, including the Presidential candidacy of Barack Obama. As Obama's candidacy reminds us, there is great potential for individuals and communities to make a difference, even to shape the law and create new identities ... but only if we understand and take account of our history.
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