“not definitely white, Negro” and racial intermediacy and ambiguity (1930 Census, qtd. in Cohn)

The 1930 Census race or color instructions for “Mexican” show a clear connection with the theme of racial intermediacy and ambiguity:

all persons born in Mexico, or having parents born in Mexico, who were not definitely White, Negro, Indian, Chinese, or Japanese.

(Instructional language quoted from D’vera Cohn.)

Patrolling the Borders of Whiteness: How the Texas Mexicans Became People of Color (Abstract)

“Patrolling the Borders of Whiteness: How the Texas Mexicans Became People of Color.” Charles W. Johnson (Auburn University)

Submitted and accepted for presentation at the Symposium for History Undergraduate Research (SHUR) conference at Mississippi State University.

ABSTRACT: (393 words)
Latinos are people of color. They are the largest and the fastest-growing non-white population in the United States today. Everybody knows this: it is routinely taken for granted in media, in political polling, and in policymaking. Immigration is a fraught issue in U.S. politics because debates about immigration often tacitly or explicitly become conversations about race, color lines, declining white demographic majorities and the status of non-white Mexican-American and Latino populations in American public life.
But it has not always been so. In 1845, when white Texans met to frame an antebellum state Constitution, formally dedicated to preserving slavery and white supremacy, draft articles followed standard Southern legal practices by defining qualified electors as “free white male persons.” But heated floor debates broke out over whether or not the language excluded Texas Mexicans. In the racial order of the Deep South, mestizo Tejano communities posed an anomaly for the ever-present color line: did Tejanos count as “white persons,” like Anglo Texans and European immigrants, or as non-white, like blacks, Indians, and mixed-race “persons of color?”
I will analyze the evolving legal construction of whiteness in the 1845 Texas state constitution, Texas’s distinctive racial intermarriage law, and the federal racial-prerequisite case In Re Rodriguez (1897), and Texas “white primary” party bylaws. I will show that Tejanos posed a racial problem for the Deep South culture of Anglo Texas. In antebellum Texas, despite brutal, often violent Anglo social prejudice, Anglo and Tejano politicians repeatedly agreed to address the anomaly by categorizing Mexicans as legally white. But after Reconstruction, Anglo majorities moved to push Tejanos out of legal whiteness, to make them subject to disenfranchisement and segregation. This historic reversal — the racial “darkening” of Texas Mexicans — was a political decision and a contested historical process emerging from the racial projects of antebellum slavery and post-Reconstruction Jim Crow. The removal of Tejanos from whiteness, which has so profoundly re-shaped the debate over immigration in U.S. politics, was an act of racial reconstruction, which, unlike the racializing of black and Indian populations, was rooted not in the Deep South settler-plantation system but in a post-Civil War hybrid, integrating the increasingly Deep South economy in Texas with an emerging frontier Western racial order, in a regional borderland within the newly consolidated Continental United States.

“The US Census… had begun to notice Latin Americans in the 1940s” (?) (Painter)

New new immigrants of the post-1965 era, overwhelmingly from outside Europe, were upending American racial conventions. Asians, greatly rising in number, were rapidly being judged to be smarter and, eventually, to be richer than native-born whites. Latinos formed 13 percent of the population by 2000, edging out African Americans as the most numerous minority.

The U.S. census, without peer in scoring the nation’s racial makeup, had begun to notice Latin Americans in the 1940s by counting up heterogeneous peoples with Spanish surnames and hastily lumping them together as “Hispanics.” Though an impossibly crude measurement, it survived until 1977. By that point, the federal government needed more precise racial statistics to enforce civil rights legislation. To this end, the Office of Management and budget issued Statistical Policy Directive no. 15.

Here was a change worth noting: in the racially charged decades of the early twentieth century, governments at all levels had passed laws to separate Americans by race. […] The Civil Rights Act of 1964 and the Voting Rights Act of 1965 began to change all that, so that by the late twentieth century the rationale for counting people by race had morphed into a means of keeping track of civil rights enforcement. Statistical Policy Directive no. 15 set the terms for racial and ethnic classification throughout American society by directing federal agencies–including the U.S. census–to collect data according to four races (black, [385] white, American Indian/Alaskan Native, and Asian/Pacific Islander–Hawaiian was added later as a concession to protests) and one ethnic category (Hispanic/Latino, which is not racial). Elaboration was good for civil rights, but it opened the way to chaos.

Under these guidelines the Hispanic/Latino classification portended enormous turmoil. Now that there was a “non-Hispanic white” category, did there not also exist Hispanic white people? Yes, no, and other. Faced with the given racial choices on the census of 2000, fully 42.2 percent of Latinos checked “some other race,” rather than “black” or “white,” throwing nearly 6 percent of Americans into a kind of racial limbo.[1]

In addition, the U.S. Census of 2000 had to increase a deeper and more personal recognition of multiracial identities. For the first time, respondents were allowed to describe themselves as belonging to one or more of fifteen “racial” identities.

History of White People, 384-385.

(N.B.: But this account seems confused. The Census didn’t start counting Latinos in 1940, it started counting them in 1930 with the “Mexican” racial category and then switched to the surname method when protest killed the category. The 1930 decision wasn’t initially developed to serve civil rights law; it was part of the racial “darkening” of Latinx people following the 1920s-1930s and heralded the age of mass deportation. Etc.)

  1. [1]Victoria Hattam, “Ethnicity and the Boundaries of Race: Rereading Directive 15,” Daedalus 134, no. 1 (Winter 2005): 61-62, 67.

Spanglish creole legal culture: Slave Law and Marriage Law in Anglo-Hispanic Texas

In the close of his chapter on antebellum Texas law, Campbell notes that race and slave law “drew its inspiration and precedents from practices in the southern United States, not from Hispanic America” (114). That might not seem like much of a surprise in Anglo governed antebellum Texas. If Texas lawmakers were predominantly Anglo white Southerners, then why wouldn’t the laws they made follow Anglo-American Southern models? But it wasn’t always the case in antebellum Texas, in areas of the law other than slavery. Texas laws often drew on Spanish colonial and Mexican precedents. In antebellum Texas, for example, community property marriage laws discarded Anglo-American traditions of coverture in favor of an existing Spanish model. Range law for livestock drew from English common law precedents, but innovated to adapt to open-range conditions. Anglo Texans preserved Mexican homestead exemptions in debt laws and Spanish law on water rights. Revolutionizing slave law according to the model of the Deep South U.S. was not a foregone conclusion but a political choice within the context of a Spanglish creole legal culture.

(As I wrote in a note to HOP # 5: “Republic of Texas lawmakers tended to be very emphatic about remaking Texas law along Anglo-American lines when it came to, for example, slave law, but Texas courts tended to be very flexible towards incorporating Spanish and Mexican precedent in the law of marriage; see for example Smith v. Smith, 1 Tex. 621 (1846), in which the judge’s opinion rejects an appeal based on Anglo-American law regarding bigamy and incorporates the Spanish Las siete partidas marriage code as binding.”)


Law as coercion creates racial categories in three chief ways (Haney López)

According to Haney López, pp. 116-123, “Law as Coercion,” in its coercive aspect law serves to create racial categories in three chief ways:

  1. Legal rules have shaped physical appearances
  2. Positive law has created the racial meanings that attach to physical features
  3. Positive law establishes the material conditions which often code for race.

[WBL p. 119]

Conceptual Differences in how to organize Anglo-Tejanx differences

Tejanxs have always been perceived as a distinct outgroup in Texas. But the question is how these differences were organized in rhetoric and law — the logic they obeyed, the axes of difference they marked out. The ingrouping-outgrouping could be done along a variety of distinct axes of difference — differences in religion, of color, of ethne, of nationality, of class, of race, of sides in wartime, etc.