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The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census

The Devil and the One Drop Rule: Racial Categories, African Americans, and the U.S. Census Author(s): Christine B. Hickman Source: Michigan Law Review, Vol. 95, No. 5 (Mar., 1997), pp. 1161-1265 Published by: The Michigan Law Review Association

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THE DEVIL AND THE ONE DROP RULE:

RACIAL CATEGORIES, AFRICAN AMERICANS, AND THE U.S. CENSUS

Christine B. Hickman*

TABLE

OF CONTENTS

Introduction

I. Treatmentof Mixed-Race Record

.

People:

The Early Legal

A. The FirstAfricanAmericansand the First Race

by

B. Mulattoes: Black

Mixing

Law

C. Study from De Crevecoeur's"New Race of Men"

D. The Census and the

A

in Contrasts:Exclusionof Mulattoes

Mulatto Category,

1850-

1910

II.

Proposals

the Discourse

A.

for a

Multiracial Category: Critiquing

Rule: The

Misapprehension of

the One Drop Rule:

The One

Drop the HistoricalContext

1. Misperceptions of

Gotanda'sTheoriesof Racial

Purity, Objectivity and Subordinationin Recognition

2. The One Drop Rule and

System

"Buying

into the

of Racial Domination"

3. Lessons from the South African

Experience

1163

1171

1172

1174

1180

1182

1187

1188

1188

1196

1197

* AssociateProfessorof Law, CaliforniaWesternSchoolof Law. A.B. 1971, Yale Uni- versity; J.D. 1974, HarvardLawSchool. - Ed.

Belknap,Floralynn Einesman

and LindaMortonfor their thoughtful commentson draftsof this article. I am

especially

grateful to HowardBermanandBarbaraCoxfortheir encouragement as well as theircareful

reading and helpful commentson successivedrafts.Thisarticlewouldnot

havebeen possible

withoutthe researchassistanceof Abena

aunts, Izella HickmanVincentand

KatherineBush Mason, and my Jones cousins, who lived throughmany of the events dis-

cussedin the

the legal normsthat I explore in this work.

husband, DennisA. Ragen, whose insight,suggestions and editing

made an invaluablecontributionto this article.

I

would like to thank my colleagues Tom Barton, Michal

Kwakye-Berko and SuchiSharma.

I thank

my mother,Emily Mason Hickman, and my

followingpages

andwho have always remindedme of the realworldeffectsof

Mostof all, I thank my

1161

1162

Michigan Law Review

[Vol. 95:1161

B. Rebiologizing Race

1. The Collapse of Biological Race

2. Proposals

3.

4.

5.

6.

for a

Broad Genetically Based

for a

Majoritarian

Multiracial Category

The

Classification System

Biological Passing for Black The HarlemRenaissanceand Cultural Suicide Race, Biology and the Law: The Racial

CredentialCases

Proposal

C. The Dangers of Redefining Black: Distancing.

1. Finding

the Race

Solutionsfor the Lighter Part of

2. Sanitizing our Attacks on Racism

3.

III. Fromthe One

Conclusion

Drop

Rule to the Discourse on

Race

A. There is Race

B. Race as a Metaphor

C. Essentialvs. Cultural Concepts of Race

D. Race as a Choice

1. Appiah, Lee, and the Choice of Our Racial

Identity

2. Choice Today

3. The Choice of Our Race Actions

by Daily

IV. A Proposal for the Census

1202

1203

1203

1206

1208

1209

1222

1231

1231

1233

1235

1235

1236

1240

1242

1244

1244

1250

1251

1254

A. The Broad, Blood-basedMultiracial

Category

B. CountingLoving's Childrenon the Race Line.

1. MultiracialStatusas Race

2. The False Choice Between Race and Multirace

3. The Multiracial Category on the "Race" Line: Guaranteed Inaccuracy

C. A Line of TheirOwn

Conclusion

1255

1256

1256

1259

1261

1262

1264

March

1997]

One Drop

Rule

1163

"Mygrandmother was her master's daughter; and my

black

whetherbecauseI owe a shilling, I ought

motherwas her

master's son; so you see I han't got but

master's daughter; andI was my

one-eighthof the blood. Now, admitting it's right to makea slave of a

full

nigger, I want to ask gentlemenacquainted with business,

to be madeto pay a dollar?"

-Lewis

Clarke, fugitive slave, 18421

"If the old reversedto

biracialsstill

Black' were

say one drop of Whiteblood makes you White, would the

saying

'one

drop

of Black blood makes

you

be seeking a separateclassification?"

- Letter to the Editor, Ebony Magazine, November 19952

INTRODUCTION

For generations, the boundariesof the African-Americanrace

by a rule, informally

Black. In

the same:

drop

of

more formal, sociological

known as the "one

formof "hypodescent"3 andits mean-

anyone generations, this rulehas not only

countless lives, it has createdthe African-Americanrace as

and it has definednot just the history of this race

with a known Black ances-

remains

basically

today,

of the history of America.

have been formed

rule,"which, in its colloquialdefinition,provides that one drop

person circles, the rule is knownas a

ing

Black blood makes a

tor is consideredBlack. Overthe

shaped

we know it

but a large part

Now as the millennium approaches, social forces require some

rethinking

of this

right

important, old rule.

Plessy v. Ferguson,4 which

affirmedthe

modations"for White and "colored"train

of states to mandate "equal but separate accom-

passengers, is a century

old.

Brown v. Board of Education,5 which effectively

overruled

Plessy and institutedthe end of de jure discrimination, was decided

over a generation ago. Nearly thirty years

SupremeCourt, in Loving v. Virginia,6 invalidated any prohibition

against interracial marriage

Loving

have passed since the

unconstitutional. Since the 1967

decision, the number of interracial marriages has nearly

as

1. JOHNW. BLASSINGAME,SLAVETESTIMONY152 (1977).

2. Mary Smith,

3. Hypodescent is the practice by which "racially mixed persons are assigned

Letter to the Editor, EBONY, Nov. 1995, at 298.

F.

JAMES DAVIS, WHO IS

to the status

of the subordinate group."

HARRIS,PATTERNSOFRACEIN THEAMERICAS56 (1964)).

BLACK?5 (1991) (citing MELVIN

4. 163 U.S. 537 (1896).

347 U.S. 483 (1954).

5. In Brown, the United States

Supreme Court distinguished Plessy

'separate but equal' has no

all state

holding that, "in the field of public

place."

authorized segregation and the Supreme Court regularly affirmed such rulings. See ALFRED

H. KELLYET AL., THE AMERICANCONSTITUTION591

education, the doctrine of

347 U.S. at 495. However, lower

federal courts interpreted it as prohibiting

(1991).

6. 388 U.S. 1 (1967).

1164

Michigan Law Review

[Vol. 95:1161

quadrupled.7

couples,8

that of other racialand ethnic

This trend has even extended to

Black-White

whose

intermarriage rate has traditionallylagged behind

groups.9 For the first time, opinion

polls indicatethat more Americans approve

of dif-

ferent raceshas increased

of these interracial marriages have assumed prominent roles in

American popular culture.12

of interracial marriage

parents

than disapprove.10 The numberof childrenborn to

dramatically,11 and some of the offspring

Some of these childrenof interracial marriages are now

arguing

cogently for a reappraisal of hypodescent.

sprung to public

Their movement13has

consciousnesswith the recent bid by multiracial

7. In 1970,

there were 310,000 mixed race

couples. By 1992, there were 1,161,000 such

LivingArrangements: March 1992,

in U.S.

couples. SeeArleneF. Saluter, MaritalStatusand

DEPT.

OF COMMERCE,

CURRENT

POPULATION

REPORTS,

POPULATION

CHARACTERISTICS,

X

(Dec. 1992).

8. The numberof intermarriages betweenWhitesand Blackshas

Between 1980and 1990,

increased significantly

since Loving.

1992, therewere 246,000 such couples.

marriages. See id. at XI.

Census figures indicatethattherewere 65,000 Black-White couples in 1970. In

This represented an increasefrom0.1%to 0.5%of all

Black-Whiteinterracial marriages increasedover 50%.

For a fuller discussion of intermarriage

trends, see E. Porterfield, Black-American Inter-

marriage in the United States, 5 MARRIAGE& FAM.REV. 17 (1984); M. Belinda Tucker &

ClaudiaMitchell-Kernan, New Trendsin

BlackAmericanInterracial Marriage: The Social

(1990); see also Steven A. Holmes,

Structural Context, 52 J. OFMARRIAGE& THEFAM.209

Study Finds

Rising Number of Black-White Marriages, N.Y. TIMES,July 4, 1996, at A16.

9. TheAfrican-American intermarriage ratehoversat about7%. SeeSaluter,supra note

7, at XI. In contrast, interracial marriage in some Asian-Americancommunitiesis normal.

while the currentChinese-

American/White intermarriage rateis at 40%. See Interracial Marriages Blur Social, Ethnic

The Japanese-American/Whiteintermarriage rate is at 55%,

Lines, ROCKYMOUNTAIN NEWS,Aug. 13, 1995, at 44A.

10. A 1991 Gallup Pollindicatedthat48%of

marriage between

disapprove.Apparently the rateof approval var-

allAmericans approve of

AfricanAmericansandWhites, while42%

ies by race. While71%of AfricanAmericans approve of interracial marriage,only 44% of

Whites approve. Significantly, 64%of Americansbetweenthe ages of 18 and29 approve of

marriage betweenAfricanAmericansand Whites. See Mostin

Poll Approveof

Interracial

Marriage,

ST. LOUISPOST-DISPATCH,Aug.

16, 1991, at 16A.

showedthat 14.7%of WhiteAmericansstill favora law

making interracial marriageillegal. See Up From Separatism, ECONOMIST, Oct. 21, 1995at
30.

parents of differ-

TIMES, Jan. 9, 1996, at Al.

It also is estimatedthat nearly two millionchildrenhave parents

that identify withdifferentracial groups. See Linda

ent races. See Jane Gross, UC Berkeley at Crux of

On the other hand, a 1994 poll

11. In 1991alone, it is estimatedthatover 128,000 childrenwere born to

New MultiracialConsciousness,L.A.

Mathews, MoreThan Identity Rideson

New Racial Category, N.Y. TIMES,July6, 1996, at Al.

For example, playwrightAugust Wilson,mystery authorWalter Mosely, Olympic

Gold MedalistDan O'Brien,golferTigerWoods, Kravitzare all "biracial."

Some cite the genesis of the "movement"as the 1992 Loving Conference, held in

recognition of the twenty-fifthanniversary of the

ginia. The primarypurpose of the conferencewas to organize a federal lobbying effort to

modifyexisting

way

racialclassificationsandto put "theAmerican government on notice that a

new multiracialmovement had found its

Gilanshah, MultiracialMinorities: Erasing theColorLine, 12LAW& INEQ.J. 183, 184 (1993).

political stage." Bijan

Supreme Courtdecisionin Loving v. Vir-

actressHalle Berry, and musician Lenny

12.

13.

on to the national

March 1997]

One Drop Rule

1165

rightsgroups,14 to put a

"multiracial" category in the "race"section of the formsthatwill be

used when the next decennialcensusis conductedin the year 2000.

This proposal has immense practicalimportance becausethe census

provides

For

Voting Rights Act of 1972 all

nity

from the census, and the additionof a new

organizations, over the objections

of civil

the nation with its main source of racialand ethnic data.

the Civil Rights Act of 1964, the

example, implementation of

Act of 1965, and the

depend

Equal EmploymentOpportu- on racial and ethnic statistics culled

category could change

the count of the existing racial groups and alter the way these laws

are implemented.15

One wing of this new multiracialmovement argues that a new

"multiracialbox"shouldbe made availablefor the

growing number

of this move-

of children of interracial

ment, in books andlaw review

this category shouldbe part

identities of most Americans. The thinking of both

by and the "one drop rule." To date, the

have

multiracialmovementis informed

marriages. Another wing

articles,suggests

their

that the additionof

of

of a wholesaleredefinitionof the racial

wings of the hypodescent

discourse

participants in this

rejection

emphasized rise to the one

this old rule are

doning it will be mainlygood. Based in part on such reasoning, the

more activist wing of this movement has proposed several neat,

symmetrical, Under one such

identity.

proposed definition, any Black person

and radicalredefinitionsof African-Americanracial

mainly evil and that the consequences of aban-

the racistnotions of White racial purity that gave

rule. They have concludedthat the effects of

drop

with White or Native American

racial."16Under

origins in the originalpeoples of Europe" wouldbecome European

American.17

"majority of [his]

ancestry

would become "multi-

another,any Black person with a

My purpose in this articleis to critique this discourse. I agree

drop rule had its origins

in racistnotions of White

pu-

that the one

14. Organizations that

expressed reservationsaboutthe additionof a multiculturalcate-

Pacific Islanders, the

Census, Statistics,

and Postal Personnel of the Comm. on the Post

Cong.93-101,171-82, 229-39 (1993)

[hereinafterHearings].

at Congressionalhearings includethe MexicanAmerican Legal Defense andEducation

gory

Fund, the National Coalitionfor an AccurateCount of Asians and

National Urban League, and the National Congress of AmericanIndians. See Hearings

Before the Subcomm. on the

Office and CivilService,103d

15. See U.S.

GENERAL ACCOUNTING OFFICE, CENSUS REFORM: EARLY OUTREACH AND

DECISIONS

NEEDED

ON THE

RACE

AND

ETHNIC

QUESTIONS

12-13

(1993).

16. For a discussion of this proposal, see infra note 167 and accompanying text.

17. Luther Wright,

Reconceptualiz-

ing the United States's Definition of Race and Racial Classifications, 48 VAND. L. REV. 513,

563 (1995).

Jr., Note, Who's Black, Who's White, and Who Cares:

1166

Michigan Law Review

[Vol. 95:1161

rity. However,many scholarshave misunderstoodthe

thatthis

rule has

new multiracialcate-

gory on the censusforms. As we examinethe one drop rule andits

importance in the current discourse, we should recall the famous

exchange

experience in America, and this misun-

derstanding has

way

shaped

the Black

distortedtheir proposals for a

between Faustand Goethe's Devil:

at

least, who you are?

Faust:

Say

Mephistopheles: I

am part of that power whicheverwillsevil yet

ever accomplishesgood.18

So it was with the one drop rule. The Devil fashioned it out of

racism,malice, greed, lust, and

accomplishedgood:

we know it today, and while this race has its origins in the

of three continentsand its memberscan look one another, over the centuriesthe Devil's one

race as a people in the fightagainstslavery,segregation, and racial injustice.

differentfrom

ignorance,

but in so

doing

he also

His rule createdthe African-Americanrace as

very

drop

peoples

ruleunitedthis

However valid the multiracial viewpoint

hypodescent in order to forge

bring

be in some con-

may

texts, it has tended to overlook the

rule of

rule

to the

and to question the proposals

tions to

States has created over the last four hundred years. This article

proposal

way social history of the African-Americanrace.

racial Americanson the census in a

concludeswith a

there-

fore is intendedto

drop new multiracial category

good the Devil did in using the

a

people.

This

paper

a more balancedview of the one

discourse surrounding the proposed

replace the categories

for

to invent neat new racial classifica-

that the social

history

of the United

counting the new generations

that will not

of bi-

ignore the

I noted above that the one

"place

drop rule has shaped

discussion,here, my greatuncles,

countless lives,

and as

from two such lives: those of

the 1944 volume of the PacificReporter, the

markers"in the

I will use incidents one documentedin

other chronicledin a

1956 issue of Time Magazine.

My

Uncle ClarenceJoneswas a Los Angeles

days

when Black

lawyers

lawyer who prac-

bar

ticed law in the

associationsor be

could not

join county

consideredfor governmentemployment but

were

18. JOHANNWOLFGANGVON GOETHE, Faust, in GOETHES WERKE, Part I, Lines 1334-36

English

translation.The original Germanreadsas

(Erich Trunz ed., Hamburg, Christian WegnerVerlag1949) (1808). I would like to thank

VeraPardeefor her assistancewiththe

follows:

Faust:Nun

gut, Mephistopheles: Ein Teilvon jener Kraft, Die stets das Bose will und stets das Gute schafft.

wer bist du denn?

March

1997]

One

Drop

Rule

1167

and real estate servicesto

limited to providingprobate,familylaw,

an

workedas Black but his ratherfair

family to live in a neighborhood

Despite the ambiguity of their light-brownskin, the Jones

in the eyes of their White neighbors -

Black: Uncle Clarencewas a

ated from Ohio State Law School in the

were all attending U.C.L.A., and his wife's skin was nearly white.

So for years,

he lived with his family in a home that he loved in a

exclusively

Blackclientele. Reversing the norm, Uncle Clarence

allowedhim andhis

complexion without reference to their race.

family

-

could not really have been

who had

gradu-

hardworkinglawyer

teens, his three daughters

pretty neighborhood. The home, however, was subject

to a restrictivecovenant that

prohibited occupancyby any

race."19 Refusing to acknowledge the

tion, Uncle Clarencehad

daughter married, she

decidedon a home

training undeniably Black. A law-

suit was brought to enforcethe restrictivecovenantand to force the

Jones family out of its home.

neighbors them see before - the Jones

"persons other than the Caucasian

of this racistrestric-

validity the covenantand moved his fam-

guests arrived, the had not let

ignored when his eldest

ily in. Some years later,

wedding.

And as the various

were forced to see what their social

family

was

Whenhe receivedthe summons,Uncle Clarencemade two deci-

this eviction to the highest court in the

sions. First, he would

state. Second, he would not

that his

skin made him

him his home. He retainedtwo of his

lawyers

Loren Miller and Willis

fight

deny

any

his

identity;

he would not claim

even if it cost representhim, Los

light

less of a Negro -

colleagues

to

who are

legends among Black lawyers in

O. Tyler.20

Angeles,

Miller and Tyler made all the

Court

rightarguments to the California

In

affirming the trial

Superior

court'sdecision to evict the

summarilyrejected

and refused to reach the question of whetherit

and, quite predictably, lost.

family, the CaliforniaCourtof Appeal

the constitutional challenge to the covenants21

was appropriate to

19. Stone v. Jones, 152P.2d 19, 19 (Cal. Ct. App.

1944).

20.

LorenMillerbecamea

judge

andleaderof the civil rights movement. He wasone of

Educationand an authorof a

legal history

on the racial

Willis O.

Tyler,

the counselin Brownv. Board

struggle

in the United States.

in additionto

lawyer in Los Angeles

of

See LOREN MILLER, THEPETITIONERS (1966).

of criminaland

family

law

cases,

handling a wide variety

to servein

was the firstBlack

anyjudicialcapacity whenhe was appointed to serve as a

(May 10, 1996).

judge pro tempore.

See Telephone Interviewwith KatherineBush Mason

21.

See Stone, 152 P.2d at 22. The Courtof Appeal held

Lofton[146 P.2d720 (1994)]

that "[t]he same proposition

[that the enforcementof racial housing restrictionsviolated the U.S. Constitution] was

presented in Burkhardtv.

sion is supportedby abundant authority." Stone,152 P.2dat 23.

andtherehelduntenable;the discus-

1168

Michigan Law Review

[Vol. 95:1161

restrict residency on the basisof

the case to "involveissues that are the direct

product tual relation,"22 and it held that the restrictivecovenant was con-

appeal, Uncle

tractually valid.

Clarence's attorneys filed a Petitionfor Hearing with the California

Supreme Court. Of the seven justices,

Traynor voted to grant a hearing.23

race. Instead, the courtconsidered

of a contrac-

After losing in the court of

only Justice Roger J.

under the

twisted

could own his house but he could not live in it. Still, as

quished their home, the family

with no

now all in their seventies, visited my house, I passed arounda copy

mad all over

again," one of them

good fight when

they were sure

relin-

high and

So in the end, the

logic by

family

was forced to move -

which racismis reified into law, Uncle Clarence

they

left with their heads held

when Uncle Clarence's

daughters,

"Makes

you

regrets. Just recently,

of the old court of

appeal opinion.

commented, these fifty-twoyears later. Mad,

but also proud that their family had fought the

to lose.

A decade later, in Detroit, a second uncle (my grandmother's

path. According

to

family lore, my

Uncle Jack

photo in the April

26, 1956editionof Time

white skin, snowy straighthair, and aquiline fea-

he looks White. Time reports that in early April 1956, at

pale

69, Uncle Jackhad decided to move to a new home "on De-

class Robson Avenue."25

neighbors

Shortly

discoveredthat he was a Ne-

the neighbors were throwing from the

neighbor-

brotheron the otherside of the family) faced a similarsituationbut

chose a different

"couldn'tfind work as a Black man"so he crossed the color line

with his fair skinned wife.24 Across the decades, Uncle Jack now

looks out at me fromhis

and with his

tures -

age

after

he moved in, however, the

grandchild, who met the moving van, had

gro, perhaps

darker skin and curlier hair. Soon

rocks through the windows and a delegation

hood "improvement association"arrivedat his door with the offer

to

cle Jackhad paid for it. Whilethese "salesdiscussions"were under-

troit's comfortably middle

becausehis

purchase the

home for $18,500, whichwas $2,000 more than Un-

22. 152 P.2dat 23.

23. See 152P.2dat 23. Four years later,Justice Traynor wouldwritethe landmark plural-

ity opinion in Perezv. Lippold, 198 P.2d17 (1948), the

antimiscegenation law as

the U.S.

unconstitutional.See Shelly v. Kraemer, 334 U.S. 1 (1948).

first judicialopinionoverturning an

years

afterthe Stonev. Jones decision,

unconstitutional.Also four

Supreme

Courtheld that enforcementof such racially restrictivecovenantsto be

24. Interviewwith IzellaHickman Davenport Vincent, Dec. 1, 1995. Notes on file with

Author.

25. BuyerBeware,TIME,Apr. 16, 1956, at 24.

March

1997]

One

Drop

Rule

1169

"a crowd of 500 milled outside,"recruitedto emphasize the

way,

consequences of any failure to sell.26

In

dealing

with this

appalling

telling

situation, Uncle Jackchose a dif-

the reporter from Timethat he

out his

Canadian,"leaving

when he made

ferent course than the one Uncle Clarencehad taken: he

implicitly

denied that he was Black,

was "half Cherokee and half French

African-American

this denial of his Black

forced to move.27 Of course, it would not be fair to find fault with Uncle Jack's

denial. As ProfessorKarst notes, undercircumstancessuchas these

ancestry. But, Time reported,

heritage, "nobody listened," and he was

"it is hard to locate

authenticity in an individual's'choice' to

any

repudiate the disfavored label."28 In addition, Uncle Jack had

fewer

options was not a lawyer; he was a retired bodyguard with a mob outside of

his house. But still, these

articlewith a touch of sadnessand a

mob did not

cause Uncle Jackdenied who he was, and the

even listen. In a different way thanUncle Clarence, Uncle Jacklost

his home. These two incidentsare relevantto

in this article, and I will returnto themfrom time to time. PartI of

this article

system

of racial classification, whichhas roots that are deep and old. This

Partthen

legislationdealing

by deliberate design

and by operation

beginning,

pean-Native

I turn

cation of African Americans through the

to an analysis of the

race

from 1850untilthe CensusBureau's

people formal adoption of the one drop rule in 1920.

availableto himthandid Uncle Clarence:Uncle Jack

forty-twoyears

later, we read the Time

twinge of disappointment, be-

milling

many of the topics I discuss

of the American

begins by discussing the origins

analyzes with racial intermixture, which indicate that

some of the earliestcases and

of law the African-Americanrace was, from the

constructed to include those of mixed African-Euro-

-

Americandescent. After

brieflysketching the classifi-

previousattemptby

"mulattoes" -

ensuingcenturies,

the censusto countmixed-

new ra-

cial

cles and

analysis rule andits "asymmetry,"they have ignored how the ruleworkedin

of the

rule.

Section II.A examineshow recent law review arti-

PartII critiques the discourse surrounding the proposed

categories.

essays by

historianshave

misperceived

the

one drop

Because these commentatorshavefocusedon formal

26. Id.

27. Id.

28. Karst,Mythsof Identity: Individualand Group Portraits of Race and

KennethL.

Sexual Orientation,43 UCLA

L.

REV. 263, 323 (1995).

1170

Michigan Law Review

[Vol. 95:1161

practice, and they

ence

tators overlook the

community that has More

surprisingly,they would have been better, without ever

those other systems. I

have not examinedthe African-American experi-

thatthe Devil did. These commen-

sufficiently to see the good

way that this rule has forged a unified Black

been an effective force

in

battling racism.

systems

assume that other classification

comparinghypodescent

by making

to

such a

conclude this discussion

comparison -

with the system in South Africa -

which is formally

more

South Africa,

system

subordinationof Black South Africans.

found in recent law review

commentsfor a broadmultiracial category that would include any-

one with "mixedblood." While the

all

proponents of such a category

pleasing and symmetrical than hypodescent. I argue that in

this symmetrical, White-Colored-Blackclassification

one drop rule in ensuring the

was more effective than the

Section II.B analyzes the proposals

correctlydeny thatthereis anybiological

basisfor race, the cate-

gory that they suggest would, ironically, "rebiologize"race, by

a line between those AfricanAmericanswho have White

of this rebio-

logization

Renaissancewas a form of "culturalsuicide"because writerssuch

as

theirmixed-race identity. Using incidentsfromHurston'slife as an

example, I argue

tage" was a biologicalone, and that history

identity forged in actual experience made her -

other AfricanAmericanslike her with White

concludethis discussionof the

ing certainold "racialcredentialcases,"in whichcourts

to

previousexperience with treating race as biology. Section II.C turnsto one of the

standing

that Hurston's only tie to her "mixedrace heri-

and Zora Neale Hurston failed to embrace

of race, I examineone critic's argument that the Harlem

drawing

"blood"andthose who do not.

Turning to an example

Langston Hughes

and a

powerful

-

sense of

Black. I

and the many

ancestry "rebiologization" of race by analyz-

attempted

our legal system's

adjudicate

"who is Black,"as a reminderof

drop

consequences

rule and the

distinctionsbetween

of the misunder-

an

of the one

pernicious

rebiologization of race -

which is the creation of unneces-

and dark- of this dis-

effect known as "distancing" -

sary

skinnedAfricanAmericans. I

tancing in recent legal journals. PartIII examineshow the lessonsfromthe one

the debate over the natureof raceitself. I

rience of mixed-race people in America to

Anthony Appiah's

concludethatthe African-American experience showsthatracesdo

I

and

light-skinned identify several examples

drop

ruleinform

begin by using the expe-

respond to philosopher

now-famous argument that there is no race.

March

1997]

One Drop Rule

1171

exist;history creates races from people

phology and genealogy. I then brieflycritique recent suggestions in

law reviewsthat raceis a

turnto the issue that has the most relevance to

essence. Finally, the census (where Americansare asked whetherrace is a choice. I note that for

and for us now, race, at least African-American race, is not

matter

by our daily actions holds special dangers for African Americans.

that the 2000 Census should contain a

multiracial inquiry directed at the growing number of Americans

with

and that this inquiry

parents shouldbe on a line of its own and not

date, the proposals for adding

all have calledfor

on the same line of the census form. Part V

rangement would set

racial

could lead to a profoundly inaccuratecount of Americanswith

ents from two differentraces, since it will

omit all biracial

people who are identified

(these people

American"insteadof "multiracial") andit will

the multiracial inquiry

its own line on the censusformwill avoidthese conflictsandinaccu-

racies and lead to the firstreliablecount of the new

Americanswho have parents from differentracial groups.

membersof traditionalracial

who share a common mor-

metaphor,

a "metonym" for culture, or an

to "self-identify"),namely, uncles

my

forty years ago,

just

a

I

of choice and that the argument that we "choose"our race

Finally, Part V argues

from two differentracial

groups

part

of the race

question.

To

a multiracial category to the census

competition that this ar-

racialand multi-

children. Worse, it

falsely

par-

groups. Giving

falsely include many

generations of

placing "Black"and "multiracial"in

up a no-win

allegiance

argues

rivalry between

of

Loving's

for the

groups

strongly with the race of one parent

will check "Black,""White,""Asian," or "Native

I.

TREATMENT

OF MIXED-RACE

PEOPLE:

RECORD

THE EARLY

LEGAL

Race mixing between Whitesand Blacksin Americais not new.

almost immediately afterthe firstAfricansarrived

nineteenth-century historian Robert

of the two

out-startof the vile slave trade that

dramaticallyclaimed, "[t]he crossing

very

Rather, it began

in the United States. As

Shufeldt rather

races commenced at the

brought [African slaves] thither

negress was landed

one of

upon

. indeed in those days many a

alreadyimpregnatedby some-

Winthrop

our shores

the demoniac crew that brought her over."29

29.

quoted

R.W.

SHUFELDT, THE NEGRO:

A

in JAMES

HUGO

JOHNSTON,

RACE

THESOUTH 1760-1860, at 165-66 (1970).

MENACE TO AMERICAN CIVILIZATION60 (1907),

RELATIONS

IN VIRGINIA

AND

MISCEGENATION

IN

1172

Michigan Law Review

[Vol. 95:1161

Jordanwrites that "it seems during the eighteenthcentury

likely there was more [intermixture] than at any time since."30

The unique American definitionof "Black"has roots that are

mixing

on thiscontinent. ThisPartwill briefly

and

guided

any

recordillustratesthatfrom the

by operation of law, anyone

beginning,

with

towardthe African-American

early

almostas old as race

also the

people

offspring

of

deliberate

design

illustratehow of mixed race

Americanrace to include not

only union between these arrivals and the

White settlers.

by

argue that the three

cases and stat-

and resilient African-American people and

and racism and

that multiracialtheoriststend to overlook this aspect of the Black

experience in America. ThisPartconcludeswitha reviewof the

the

previousattemptby censusto count "mulattoes"andhow that effortended in 1920with the formal adoption of the one drop rule.

gave

any sig-

nificantAfrican

race. In later Parts of this

hundred years utes created a

early legislatures and courtsdealt with the presence

the formation of the African- the recent African arrivalsbut

The legal

and

ancestry was pulled

of history

that

article, I will with these

began

strong them the tools to

fight slavery,segregation,

A. The First African Americans and the First Race Mixing

The roots of AfricanAmericanson this continentare deep and

was in 1619, a year before the Pilgrims landed on Plymouth

quickly.

As

a Dutch man-of-warwere to have

begun

mixing appears

early as 1632, a mere

fourteen years after the

was

repri-

mulatto."32

Jamestown,Captain Daniel Elfrye

for "too

freely entertaining a

old. It

Rock, that twenty "Negars"arriving on sold to British colonists.31 Race

rather

firstBlacks arrivedin

manded by his employer

The

legal

records are few and not a model of

almost

judicial explica- documents: inter-

was

officially

tion,33 but certainthemes emerge fromthe

racial mating began

early immediately and

30. WINTHROPD. JORDAN, WHITEOVERBLACK137 (1968).

31. John Rolfe, whohimselfwasintermarriedto the PowhatanPocahontas, was

Virginiacolony.

Secretary

andRecorderof the

August 1619therecameto Virginia "a dutchmanof warrethatsold

An apparenteyewitness, he recordedthatat the end of

us twentyNegars." Id.

at 73 (quoting 2 TRAVELSAND WORKSOF CAPTAINJOHNSMITH541 (Edward Arber ed.,

1910)).

enslaved.

The

"Negars"probably were

captured from Spaniardsby whom they had been

32. Id. at 166.

33. The fragmented recordmakesa definitiveBlack history of the

difficult.Helen

of Virginia in the seven-

period

Catterallhas noted the

teenth century is like

difficulty: "Towritethe history of slavery

reconstructing a Greek vase from a few shards."

1 HELENCATTER-

ALL,

JUDICIAL

CASES

CONCERNING

AMERICAN

SLAVERY

AND

THE

NEGRO

53

(1926).

March 1997]

One Drop Rule

1173

disapproved; a mulatto was consideredto

her White parent and was excluded from the White race and ab-

sorbed into the Black race. Race

men and Black women, persisteddespite legal disapproval.

between White

be of lower status than

mixing,especially

While formal

statutes prohibiting interracial mating would be

early as 1664,34judicial and legislative

the colonies almost immedi-

person. Significantly, it is

decision to

reportedjudicial

colonist Hugh Davis

of ne-

assembly

introducedin Maryland as

commentary on race mixingbegan in

ately. Eleven

ginia, there is

fornicationbetween a Whiteand a Black this interracialsex case that is the first

allude to Blacksin

was sentenced to be and others for

groes

shame of Christianityby defiling his body in lying with a negro."35

From the sparse record available, it is unclearwhether the grava-

men of Davis's offense was the act of fornicationitself or the fact

that the

that the court deemed it

gro" and designate as a punishment that Davis be whipped

an assembly of Negroes suggests, at the very

of the racialdifferencesand that such racialdifferenceswere rele-

vant enough to be noted in the legal record.

years after the first

"twentyNegars" arrivedin Vir-

a reported opinion ordering punishment for

any way. In this 1630 case,

soundly whipped

abusing

"before an

himself to the dishonor of God and

object

of his

affectionwas a "negro."36However,

necessary to specify

the fact

the race of the "ne-

before

least, a consciousness

A decade later, in 1640, Robert

punishment,

record,

that of

Sweatwas required to do public

womanservant."37

race but is given a

penance for having"begotten with childa negro

The "negro woman"is not only identified by

harsher

From the

being "whipt at the whippingpost."38

it is unclearwhetherthe harshersentence is due

34. See DAVID FOWLER, NORTHERN ATTITUDES TOWARD INTERRACIAL MARRIAGE 41

(1987).

35. In re Davis, McIlwaine 479 (1630), reported in 1 CATrERALL, supra note 33,