“In the name of racially regulating behavior, laws CREATED racial identities” — Tennessee use of “mulattoes, mestizos, and their descendants” (Haney Lopez)

Second, positive law has created the racial meanings that attach to physical features. In a sense, this is the heart of the prerequisite cases, which at root embody the efforts of the courts to inscribe on the bodies of individual applicants the term “White” or “non-White.” These cases established as legal precedent the racial identities of the various faces and nationalities entering the United States at the turn of the century. Again, however, the racial prerequisites to naturalization are not the only laws that explicitly defined racial identities. Almost every state with racially discriminatory legislation also established legal definitions of race. It is no accident that the first legal ban on interracial marriage, a 1705 Virginia act, also constituted the first statutory effort to define who was Black.[6] Regulating or criminalizing behavior in racial terms required legal definitions of race.[7] Thus, in the years leading up to Brown, most states that made racial distinctions in their laws provided statutory racial definitions, almost always focusing on the boundaries of Black identity. Alabama and Arkansas defined anyone with one drop of “Negro” blood as Black; Florida had a one-eighth rule; Georgia referred to “ascertainable” non-White blood; Indiana used a one-eighth rule; Kentucky relied on a combination of any “appreciable admixture” of Black ancestry and a one-sixteenth rule; Louisiana did not statutorily define Blackness but did adopt via its Supreme Court an “appreciable mixture of negro blood” standard; Maryland used a “person of negro descent to the third generation” test; Mississippi combined an “appreciable amount of Negro blood” and a one-eighth rule; Missouri used a one-eighth test, as did Nebraska, North Carolina, and North Dakota; Oklahoma referred to “all persons of African descent,” [119] adding that the “term ‘white race’ shall include all other persons”; Oregon promulgated a one-fourth rule; South Carolina had a one-eighth standard; Tennessee defined Blacks in terms of “mulattoes, mestizos, and their descendants, having any blood of the African race in their veins”; Texas used an “all persons of mixed blood descended from negro ancestry” standard; Utah law referred to mulattos, quadroons, or octoroons; and Virginia defined Blacks as those in whom there was “ascertainable any Negro blood” with not more than one-sixteenth Native American ancestry.[8]

The very practice of legally defining Black identity demonstrates the social, rather than the natural basis of race. Moreover, these competing definitions demonstrate that the many laws that discriminated on the basis of race more often than not defined, and thus helped to create, the categories they claimed only to elucidate. In defining Black and White, statutory and case law assisted in fashioning the racial significance that by themselves drops of blood, ascertainable amounts, and fractions never could have. In the name of racially regulating behavior, they created racial identities.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 118-119.
  1. [6]Finkelman, supra, at 2088. According to Finkelman, “This act also made the first stab at defining who was actually black. The law declared that anyone who was a child, grandchild, or great grandchild of a black was a mulatto under the statute. this meant that persons who were of one-eighth African ancestry were black for purposes of Virginia law.” See generally A. Leon Higginbotham, Jr., and Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L. J. 1967 (1989).
  2. [7]See Raymond T. Diamond and Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classification Scheme and the Fourteenth Amendment, 29 LOY. L. REV. 255, 265 (1983) They argue that “[s]tate supported or initiated discrimination required racial definitions. The law could not separate what it failed to categorize.”
  3. [8]Paul Finkelman, The Color of Law, 87 NW. U. L. REV. 937, 955 n. 96 (citing PAUL MURRAY, STATES’ LAWS ON RACE AND COLOR [1950]).

“the doctor put me in charge as overseer of the plantation … because it was necessary to have some White person on location” (Tafolla)

Dr. F.T. Matthews had a plantation about five miles from town, and he had about fifteen Negroes working there. That year, the plantation overseer [mayordomo], a White man [hombre blanco], quit his position. (All the plantations that had slaves had White overseers.) Since school was on summer vacation, I was at home, and the doctor put me in charge as overseer of the plantation. There was an elderly Negro who supervised all the work so my only duties were to see that the workers were properly supplied with food every week and to maintain order because it was necessary to have some White person [alguna persona blanca] on location, to monitor what was happening. I acted in this capacity for about three months.

During the time I was there, I would go out every day with a double-barreled shotgun and walk around the fence of the field, a circumference of about two miles. I would shoot at the squirrels and kill several every day, and the Negro cook would prepare them in a stew for me. One day as I was making my usual rounds about the field, I got an urge to jump over the fence.  [… gun goes off accidentally, God did not permit him to be killed…]

After leaving the plantation that year, it occurred to me that it would be a good idea to learn some kind of trade….

Santiago Tafolla, A Life Crossing Borders: Memoir of a Mexican-American Confederate. Houston, Tex.: Arte Público Press. Edited by Carmen Tafolla and Laura Tafolla. Translated by Fidel L. Tafolla. 25-26.

“Mama, is Mexican Jim sure enough White?” (Tafolla)

When the townspeople heard that there was a Mexican boy in town, they came to see me out of curiosity and everyone was talking about “the Mexican boy.” Dr. F.T. Matthews was a fine Christian gentleman and a member of the Methodist Episcopal Church South. He taught a Sunday school class and was a real gentleman in every sense of the word. Some of the people who came to see me expressed surprise and would say, “He is nearly White” [sic. in original] while others would say, “He’s as White as anybody.” The doctor would reply to them, “Of course, he is White.” Since there [24] was still slavery at the time, the Whites would not associate at all with the Blacks and considered it a degradation to even sympathize with the Negroes. I remember that Mrs. Matthews’ daughter asked her mother one day, “Mama, is Mexican Jim sure enough White?” and her mother answered, “Daughter, James’ blood is as free from Negro blood as yours is.”

Santiago Tafolla, A Life Crossing Borders: Memoir of a Mexican-American Confederate. Houston, Tex.: Arte Público Press. Edited by Carmen Tafolla and Laura Tafolla. Translated by Fidel L. Tafolla. 23ff.

Context: Tafolla is still young, looking for odd jobs in Columbus and Talbotton, Georgia.