1930: U.S. Census guidelines on counting “Mexicans” as “not definitely white, negro, Indian, Chinese, or Japanese” (Foley)

Third, the U.S. Census had always counted persons of Mexican descent as whites, except in 1930, when a special category was created for “Mexicans.” The question of Mexican racial identity became especially acute during the immigration restriction debates of the 1920s. This broad exemption from immigration quotas led to the historic congressional debates in the 1920s by restrictionists determined to close the door to Mexicans. The Bureau of the Census decided that beginning with 1930 it would establish a new category to determine how many persons of Mexican descent resided in the United States, legally or illegally. Before 1930 all Mexican-descent people were counted simply as white persons, because the racial categories at that time included Negro, White, Indian, Chinese, and Japanese. The 1930 census [130] created, for the first time in U.S. history, the separate category of “Mexican,” which stipulated that “all persons born in Mexico, or having parents born in Mexico, who are not definitely white, negro, Indian, Chinese, or Japanese, should be returned as Mexican.” This meant that census workers determined whether to record a particular Mexican household as “white” or “Mexican.” About ninety-six percent of Mexican-descent people were counted under this new category of mexican; only four percent were counted as white.[13] Mexicans had, for the first time in U.S. history, been counted as a nonwhite group. The government of Mexico as well as numerous Mexican Americans protested this new classification. Bowing to pressure, the U.S. government abandoned the category of Mexican in the 1940 census but sought other means of identifying the Latino population, by identifying those with Spanish surnames or households whose dominant language was Spanish.

Neil Foley, "Partly Colored or Other White: Mexican Americans and Their Problem with the Color Line," in Beyond Black and White: Race, Ethnicity, and Gender in the U.S. South and Southwest, ed. Stephanie Cole and Alison M. Parker, 123-144 (College Station: Texas A&M University Press, 204), 129-130.
  1. [13]

“The role of nonlegal actors in the legal construction of race can be understood as a question about whether people obey or acquiesce to the law.” (Haney Lopez)

Non-Whites

Judges and legislators continue to participate in the legal construction of race, if for some only through the internalization [147] of socially prevalent racist beliefs. But what of non-legal actors? The role of nonlegal actors in the legal construction of race can be understood as a question about whether people obey or acquiesce to the law. To obey suggests a rational, considered relation to law in which the law coerces through threats and rewards that are evaluated and form the basis for decisions about how to act. Acquiescence suggests a more complex relationship with law, one in which the actor accepts the norms and assumptions underlying law as legitimate or at least binding, leading to behavior conditioned, not just through a rational calculus of rsisk and rewards, but through subscription to the normative world of the legal regime.[67] This question of obedience or acquiescence among nonlegal actors is central to assessing the intractability of existing racial categories. If people merely obey the law, then altering laws might promise quick changes in racial construction; however, change might be more difficult if through a lifetime of acquiescence people have fully embraced the assumptions about races embedded in current laws. Questioning whether people obey or acquiesce to law takes on a significantly different character, however, when posed in a discussion about the role of people of color in the legal construction of race. In this context, the question becomes one of complicity: If rather than simply obeying the law we have acquiesced to it, are we complicitous in our own oppression?

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 146-147.

 

“this sociohistorical boundary crossing is normal to law” (Haney Lopez)

Evolution of ‘white’ from 1790s to 1890s – ‘sociohistorical boundary crossing’ of legal terms. / WBL 126-7.

In addition to legitimating race, legal rules operate as an idea-system to construct races in a second way. Though race as a social concept has some autonomy, it is always bounded in its meanings by the local setting. Laws help racial categories to transcend the sociohistorical contexts in which they develop. For example, the original prerequisite statute was written in 1790, when popular conceptions of race on the eastern seaboard of North America encompassed only Whites, Native Americans, and Blacks. As a legal restriction on naturalization, however, the “white person” prerequisite of 1790 was imposed on Bhagat Singh Thind on the West Coast of the United States in 1920. It is most unlikely that those who wrote the first prerequisite law intended either to include or to exclude South Asians, for that group almost certainly existed outside the realm of their world knowledge. […] Nevertheless, partially by its institutionalization in law, the category of ‘white persons’ transcended the local boundaries of time, place, and imagination in which it had one meaning, persisting and expanding into [127] remarkably different locales, where, though with a facade of continuity, it took on various new definitions.

This sociohistorical boundary crossing is normal to law.. One of the defining elements of law is its universal aspiration, its will to apply equally in all cases and across all situations. However, the pursuit of universality in law can make it a profoundly conservative force in racial construction. Here, the role of precedent is particularly important. Racial lines are prevented from shifting to the extent that past racial definitions control decisions about race in the present. “Reasoning by analogy to precedent cases creates a false historicity in that it perpetually reclaims the past for the present: in theory a dispute in 1989 can be resolved by reference to cases from 1889 or 1389.”[23] Of course, the dead hand of the past does not completely control the present; precedent is often manipulated, and such manipulation is central to legal change. Nevertheless, by giving great weight to superannuated racial definitions, precedent keeps alive restrictive notions of race.

Consider the Mashphee Indian case. [… difficulty of proving they were a “tribe” according to Supreme Court standards from 1901…] [128] In this way the use of precedent in law provides a conserving, stabilizing force in racial construction by preserving the relevance of past racial definitions, thereby allowing such categories to transcend their local settings.

Law frees racial categories from their local settings in another, quite distinct sense, as well: it occasionally provides new language with which to construct racial differences. Legal terms that do not refer explicitly to race may nevertheless come to serve as racial synonyms, thus expanding in often unpredictable ways the form and range of racial categorization. This possibility is evident in the prerequisite cases, though it is much more relevant to the legal construction of race today. The prerequisite laws spawned a new vocabulary by which to mark racial difference, the phrase “alien ineligible to citizenship.” Congress and a number of states used this phrase to avoid the Fourteenth Amendment’s bar against invidious race-based discrimination. In 1922 Congress proscribed the marriage of U.S. citizen women to non-White aliens by providing that “any woman citizen who marries an alien ineligible to [129] citizenship shall cease to be a citizen of the United States.[28] Two years later Congress relied on the same phrase to ban unwanted races from the country, mandating that “[n]o alien ineligible to citizenship shall be admitted to the United States” except under restrictive circumstances.[29] [… use in alien land laws, struck down eventually in Oyama …] Legal language can allow ideas of race to transcend their historical context through precedent, and also can contribute to the construction of race by providing a new vocabulary with which to take note of, stigmatize, and penalize putative racial differences. Law thus frees racial categories not only from contextual bounds, but also from the bounds society places on the use of race. […] As will be emphasized later, the law’s ability to provide seemingly neutral synonyms for race may be one [130] of the most important legal mechanisms in current processes of racial construction.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 126-130.

 

  1. [23]Carol Greenhouse, Just in Time: Temporality and the Cultural Legitimation of Law, 98 YALE L.J. 1631, 1640 (1989).
  2. [28]Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.
  3. [29]Act of May 26, 1924, ch. 190, § 13(c), 43 Stat. 153.

“some may suggest that legal rules patrol only the borders between races” — “construct races only at the margins” (Haney Lopez)

Irrespective of the use of violence, however, it may seem that at this coercive level laws construct races only at the margins. Granting that races are social constructions, some may suggest that legal rules patrol only the borders between races, resolving just those rare cases not already clearly defined within the underlying social systems of racial division. Arguably, only the person not clearly White or Black has her race determined in a prerequisite case or by her neighborhood. However, a focus on the coercive aspect of law seems to explain more than just the legal construction of race at the margins. Certainly the prerequisite cases legally established the legal identity of groups we now regard as firmly at the core of racial categories, for example the Japanese, and Jim Crow laws were indispensable in maintaining and even extending the social differentiation established through the slave codes and threatened during Reconstruction. Nevertheless, the explanatory power of this model should be questioned. How does law-as-coercion explain the continuing significance of race in a [123] postsegregation era? If races have been created through coercion, why hasn’t the end to the legal enforcement of racial differences been followed by a collapse in racial systems? Or, what can such a model tell us about the prevalent belief that races are legally fashioned? If races have been imposed, why is it that the vast majority of people embrace race so willingly? And why do these same people so vigorously deny that they have been coerced into a racial identity? Races are much more deeply embedded in our society than a theory of law-as-coercion would seem to explain. If law is a full participant in the construction of races, it must fashion races through some additional mechanism besides simple direct behavioral control.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 122ff.

“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]).

“All Negroes and Indians … shall be incapable of being a witness in any case whatever, except for or against each other” (Oldham and White, 1859)

Art. 448 [65] from Oldham and White (1859), 120, also gives a standard for racial definition.

Witnesses, who are incompetent.

Art. 448. [65] All Negroes and Indians, and all persons of mixed blood, descended from negro ancestry, to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be incapable of being a witness in any case whatever, except for or against each other.[b]

George W. White and Williamson S. Oldham, eds. A Digest of the General Statute Laws of the State of Texas (Austin, Tex.: Printed by J. Marshall & Co., 1859), 120 (link).

 

 

  1. [b]Negro testimony is inadmissible in all cases, except for and against each other. Rice v. Lemon, 16 Tex. Rep. 593.

“If any white person shall, within this state, knowingly marry a negro, or a person of mixed blood, descended from negro ancestry …” (Texas Penal Code Revision of 1858)

[156/1028] An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas, approved 28th August, 1856.

Article 1. Be it enacted by the Legislature of the State of Texas, That the following Chapters and Articles of the act above recited, commonly known as the Penal Code, be, and they are hereby so amended as that the same shall hereafter respectively read as follows–that is to say:

[…]

[164/1036]

TITLE 12.

CHAPTER 1.

Unlawful Marriage.

Article 386 shall hereafter read as follows:

If any white person shall, within this state, knowingly marry a negro, or a person of mixed blood, descended from [165/1037] negro ancestry, to the third generation inclusive, though one ancestor of each generation may have been a white person, or having so married in or out of this State, shall continue within this State to cohabit with such negro, or such descendant of a negro, he or she shall be punished by confinement in the Penitentiary, not less than two nor more than five years.

[…]

CHAPTER 2.

Article 392 shall hereafter read as follows:

Every man and woman who shall live together in adultery, or fornication, shall be punished by fine, not less than one hundred, nor more than one thousand dollars.

Article 395a. Every white person who shall live in adultery or fornication with a negro, or a person of mixed blood, descended from negro ancestry, to the third generation inclusive, though one ancestor of each generation may have been a white person, shall be punished by fine, of not less than one hundred nor more than one thousand dollars.

“An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas, approved 28th August, 1856” (February 12, 1858). H. P. N. Gammel, The Laws of Texas, 1822-1897, Vol. 4 (Austin, Texas: Gammel's Book Store, 1898), 164-165 (link).