Making Race, Preserving Power: a Historical Case Study

By Dr. Judith Perera

Introduction

Historian Marcus Rediker describes the race-making that took place aboard the slave-ship: “At the beginning of the voyage, captains hired a motley crew of sailors, who would, on the coast of Africa become ‘white men.’ At the beginning of the Middle Passage, captains loaded on board the vessel a multiethnic collection of Africans, who would, in the American port, become ‘black people’ or a ‘negro race.’”[1] Rediker’s analysis of the construction of race along the African coast, in the Middle Passage, and in the American ports conveys the importance of the slave trade as a starting point when discussing the social construction of American racial thought. His description also highlights an important underlying theme: race-making was related to power. In his human history of the slave trade, Rediker notes the importance of power in how captains, sailors, and slaves negotiated their surroundings and their relationships with each other.

A key factor anchoring the development of racial thought in America is that race was constructed as a means to preserve power. Because of the existence of African chattel slavery since at least the seventeenth century in North America, this preservation of power has been intricately connected to the fortification and expansion of slavery. One primary avenue through which race was thus constructed was through the law. From early racial codes dictating what could be done to punish slaves, to laws regulating personal relationships, to laws compelling the capture and return of fugitive slaves, American legal precedent bears witness to a tragic story of the ways in which race was constructed in the law and how it perpetuated power and slavery. Even after slavery was legally abolished (except as punishment for a crime) in the 1860s, the race-making project continued by attempts to fortify power and exploit supposed racial differences through the law such as with the spread of miscegenation laws and the rise of Jim Crow laws. Ultimately, race was constructed through the law to preserve power.

What is Race?

“Race” is a concept created to describe or categorize people into various social groups based on characteristics like skin color, hair color and type, eye color, other physical features, or genes. Historian Matthew Frye Jacobson poses a question that gets at the arbitrariness of what race really is, “Why is it that in the United States a white woman can have black children but a black woman cannot have white children?”[2] Race is a social construction, meaning it gives or denies benefits and privileges to certain groups of people depending on the above characteristics.

Race has played an instrumental role in shaping the course of American history as an instrument of power. As historian Kathleen Brown notes, race is a “historically produced technology of power.” As Brown points out, stemming from “older Christian associations of blackness with evil, literary constructions of racial difference acquired new importance with the rise of the European slave trade.”[3] Historian Robin Blackburn affirms this religious strand by looking at the importance of “darker pigmentation” and arguing that it provided the “baseline for this system of racial classification,” where every black person in the New World could be treated like a slave unless they could prove their free status. As Blackburn argues, Europeans found a “sacred” justification for the permanent enslavement of blacks with Noah’s curse and blackness as a symbol of that curse.[4] The combination of religious doctrine with economic profits and the law proved to be an enduring justification for racial classifications in American racial thinking.

What is Racism?

Racism then stems from this legacy of the exploitation of power. Historian Edward Baptist analyzes the role of right-handed and left-handed power in the making of slavery and capitalism. Baptist identifies right-handed power as “the power of domination, kings, weapons, and the letter of the law.” On the other hand, Baptist argues that left-handed power (adopting Protestant reformer Martin Luther’s notion here) is “the strength of the poor and the weak, the secret way of seemingly passive resistance to evil.” However, in the course of the development of slavery during the second Middle Passage, Baptist argues that something “profoundly new” happened when enslavers found “ways to turn the left hand against the enslaved.” So, when slaves broke tools, filled picking bags with rocks, or escaped, enslavers re-directed these efforts at resistance by measuring work, implementing continuous surveillance of labor, and calibrating time and torture.”[5]

This interplay between right-handed and left-handed power can be helpful when defining racism, a legacy of this race-based slavery. If race-making and the subsequent imposition of power through the legal structure is the result of right-handed power where enslavers used the law to perpetuate and expand their domination, then the resistance of those who suffered under that system when they used the law for relief in the post-emancipation world can be considered left-handed power. Racism could then be considered the resurgence of righthanded power in response to the resistance of left-handed power. Historian Gerald Horne has a more succinct and elaborate definition of racism as the “collective political (and economic) persecution based on a refusal to accept passively the proclamation of a slaveholders’ regime, then a Jim Crow regime, then massive inequalities stemming from the two.”[6] This racism, the legacy of a racially-constructed legal system of enslavement, continues to affect the lives of many today.

Roots in the 17th and 18th Centuries

The racial construction project and its influence in solidifying power and slavery can be traced to legal precedent from the seventeenth century. In American Slavery, American Freedom, historian Edmund Morgan discusses an act passed in 1661 that could be the “first official recognition of slavery in Virginia.” In an attempt to dissuade runaways, the act made “any English servant” who ran away with “any negroes” responsible for the loss incurred by the master.[7] Despite being arbitrarily and tenuously subject to English master-servant laws, early slaves nevertheless endured “longer and more intense terms of service” than their English servant counterparts.[8] As Horne has pointed out, by the 1660s the terms “Negro” and “slave” were “becoming synonymous on the mainland, and this equivalence may have emerged even earlier on Providence Island.”[9] Moreover, in Virginia, eight years after the 1661 law, the assembly passed a law entitled “An act about the casuall killing of slaves.” As Morgan argues, this law was thought necessary to protect masters who needed to use beatings to get their slaves to work as hard as the servants. Since slaves could not be threatened with the loss of liberty, they had to be threatened with the loss of their lives. Thus, the 1669 law addressed the issue of masters who killed their slaves, or as the law put it, if a slave “by the extremity of the correction should chance to die,” the masters could not be held under a felony murder charge. According to the law’s rationale, intentional malice (which would have turned the crime into felony murder) cannot be presumed since it was not reasonable that such intent could “induce any man to destroy his own estate.”[10]

Race-making also took place within the context of the regulation of labor during this early period. A Virginia tax law in 1643 played an instrumental role in crafting the productive capability of African women into a legal fiction that had profound consequences. Brown identifies this statute as the “earliest distinctive and clearly unfavorable treatment of African people to be enshrined in law” in the colony. Under the law, African women were included in the category of male tithables, essentially classifying them as having a productive capability equivalent to men. While English women, children, and old men were categorized as “too weak to produce” and thus became “dependents,” English men, African men, and African women were “judged capable of making their own living based on the market value of the tobacco they cultivated.” This then meant that landowners would be responsible for paying taxes on their workers which now included African women. As Brown notes, this created a legal fiction that African women were capable of producing as much as men and purposefully cast notions of English gender divisions of labor as not applying to Africans.[11]

The result of this law had terrible consequences for subsequent generations who would be prevented from marrying, purchasing freedom, and establishing families and independent households. For instance, in order to enjoy the same privileges as English women, free black women had to show they had a physical disability that demonstrated their dependent status. Additionally, unlike the fact that female agricultural labor was highly prized in the context of West Africa, female labor bore a stigma of “servility and low status” in Virginia. Moreover, the lack of tax-exempt status meant that marrying an African woman would be more of a financial burden on a free man who would have to pay extra taxes on her because of her status as a taxable worker. As Brown argues, these circumstances may have “decreased a free black woman’s chances of marriage and membership in the kin networks that enhanced social and economic status.”[12] The race-based tax on the labor of African women thus highlights the ways in which race was constructed to create legal obstacles for Africans and Afro-Virginians in early colonial society.

Moreover, seventeenth and eighteenth century laws also constructed race by proscribing and regulating personal and family relationships. For example, Virginia passed a law in 1662 that made slavery inheritable from mothers and prohibited “fornication” between any Christian and a “negro man or woman.” In Maryland, a 1664 law prohibited marriage between free English women and black slaves. By 1691, Virginia passed a law prohibiting “marriage and bastardy between any ‘English or other white man or woman’ and any ‘negroe, mulatto, or Indian man or woman bond or free.’” As historian Peggy Pascoe has noted, other colonies soon followed this trend by passing similar laws in the early to mid-eighteenth century. Laws against interracial marriage were passed in Massachusetts in 1705, in North Carolina in 1715, in Pennsylvania in 1726, in Georgia in 1750, and in the French colony of Louisiana in 1724. Pascoe notes that these early laws had two central characteristics: they proscribed and regulated interracial sexual behavior and “placed special emphasis” on regulating the sexual and reproductive avenues of white women.[13]

Race was also constructed in early America within the context of citizenship law. In 1790, Congress passed the country’s first federal law dealing with naturalization. The law stated, “That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen.”[14] According to Jacobson, the 1790 naturalization law “demonstrates the republican convergence of race and ‘fitness for self-government’” where the “law’s wording denotes an unconflicted view of the presumed character and unambiguous boundaries of whiteness.” The language of “white” in connection to citizenship was hardly a new phenomenon by the time of the 1790 naturalization law. As Jacobson points out, early American laws regulating marriage, participation in the militia, voting, holding office, governing contracts, indentured servitude, and slavery were littered with references to those deemed “white.” Ideas about citizenship and whiteness (male) were deeply entrenched because as one scholar points out “what a citizen really was, at bottom, was someone who could help put down a slave rebellion or participate in Indian wars.”[15]

The 1790 law laid the groundwork for racialized understandings of citizenship for decades to come. More than a century later, courts were still struggling to define which ethnic groups counted as “white” to be granted American citizenship. In Takao Ozawa v. U.S. (1922), the Supreme Court held that a Japanese man was ineligible for citizenship because “white” is the same as “Caucasian” and Japanese could not be “white” because they were “clearly of a race which is not Caucasian.” This racially-based convoluted logic was furthered in a decision the next year. In U.S. v. Bhagat Singh Thind (1923), the Supreme Court said that Asian Indians, while they were “Caucasian” since anthropologists deemed them of the same race as “white” Americans, were nevertheless ineligible for U.S. citizenship because of the “unmistakable and profound differences” between Asian Indians and whites.[16]

Fugitive Slave Laws

The development of racial thought along supposed visible appearance can be seen clearly through the evolution of fugitive slave laws. The fugitive slave clause detailed in the U.S. Constitution states: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”[17] Despite its seemingly neutral language, the clause was anything but racially-neutral. As one judge argued in 1806, “[i]n the case of a person visibly appearing to be a negro, the presumption is, in this country, that he is a slave, and it is incumbent on him to make out his right to freedom; but in the case of a person visibly appearing to be a white man, or an Indian, the presumption is that he is free, and it is necessary for his adversary to shew [sic] that he is a slave.”[18] Since the clause did not specify how it should be enforced, however, Congress passed the Fugitive Slave Act of 1793 to institute a removal process for slaves who were seized or arrested further codifying this particular strand in the race-making project. Under the 1793 law, fugitive slaves were not granted habeas corpus protections, had no right to a trial by jury, and could not testify on their behalf.[19] Moreover, there was no statute of limitations so slaves who escaped to freedom would perpetually have to live in fear of being caught and sent back.

After some northern states (like Pennsylvania) responded by passing personal liberty laws that sought to protect blacks from the Fugitive Slave Act, the Supreme Court stepped in to resolve the federal-state conflict. In 1842, the Court held in Prigg v. Pennsylvania that while states had no right to legislate on fugitive slaves since the federal government had exclusive jurisdiction, the federal government also could not force states to enforce the Fugitive Slave Act.[20] The lack of a federal bureaucracy to enforce the law was solved by Congress a few years later when they passed a second Fugitive Slave Act in 1850 (as part of the Compromise of 1850). In addition to appointing a federal administrative body, the law set up a procedure for the deportation of slaves, including search and arrest warrants, and the deputization of citizens to help administer the system. As Baptist notes, this act “put teeth into Prigg, making the federal government the servant of enslavers by helping them to control their property in human beings.” Or, put another way, “white people and their federal government were now obligated to pursue runaways from one end of the country to another.”[21]

The Dred Scott Case

The project of race-making culminated in an influential Supreme Court case on the eve of the American Civil War. Chief Justice Taney’s opinion denying Dred Scott his humanity and status as a citizen in 1857 summarized the extent of influence of the fictitious racial categories that power had created. Taney describes in detail what he calls “historical facts” to demonstrate the “fixed opinions concerning race.”[22] Taney writes, “They had for more than a century before been regarded as being of an inferior order, and altogether unfit to associate with the white race… and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery.” He continues by observing that since the Founding a “perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes… no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.”[23] Ultimately, the Civil War would attempt to break this barrier of race-based classifications culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments restoring personhood to African Americans and citizenship rights to African American men.

After Emancipation

African Americans during the Civil War and Reconstruction era then used the law in numerous ways displaying what Baptist (and earlier Martin Luther) calls “left-handed power” in the form of resistance to the imposition of this race-based hierarchical order. In the post-emancipation period, African Americans increasingly turned to the law. However, the use of the law was not a foregone conclusion. As historian Laura F. Edwards points out, just because African Americans “could use the legal system does not explain why they did.” As Edwards argues, “freedmen and freedwomen involved themselves in the legal system, even when they could not claim individual rights, because neither they nor other southerners understood the political terrain exclusively in those terms.” Focusing on the slave South, Edwards notes that while having a hierarchically-structured legal order, much of the law also took place at the very local level whereby the “legal system was everywhere and nowhere.”[24] When people had a complaint, they went to find a magistrate, who may have been working in the fields or asleep in his house. Hearings were held in convenient locations like taverns, stores, porches, or rooms in houses.

While engulfed in informality, this localized system “pushed law physically into the community and into the lives of the people there.” But informality and physical proximity did not make the system equitable since it was ultimately “designed to maintain a rigid social order based on stark inequalities.” In fact, white men from “middling ranks of society” were the most likely to use the system as “[t]heir rights gave them access to it, while their social status brought the process within easy reach.” Nevertheless, freedpeople made increasing use of the legal system and argued for everything from individual rights to “economic justice, racial equality, and political democracy” because changes in the era had shown them that the system could potentially be “a more reliable ally.” As Edwards notes in the post-emancipation period, freed people “had every reason to think that they could assume more active roles in defining the public order, even when their claims to individual rights were tenuous.”[25]

However, right-handed power once again used the law in the post-Reconstruction period to undermine the gains made by freedpeople. In this way, this third stage of the drama occurred deeply rooted in racist ideology as a type of reactionary “persecution,” to echo Horne. For instance, the law provided an important loophole for the rise of Jim Crow laws. Under the Thirteenth Amendment, slavery could continue “as a punishment for crime whereof the party shall have been duly convicted.”[26] In historian Michael Vorenberg’s analysis of the Thirteenth Amendment, he states that the clause “was indeed an unfortunate flaw, for it allowed involuntary servitude to survive the war in the form of peonage and convict labor.”[27] Whether its inclusion was intentional or accidental, the effect of the law was the same: it would allow officials to force those convicted of “an ostensible” crime to work as part of their punishment.[28] Thereafter, from the late 1860s onward, and especially after 1877, every southern state passed “an array of interlocking laws intended to criminalize black life.”

Despite many of these laws being struck down in courts, they were quickly replaced by newer laws intending to have the same effect. While no longer specifying their application along race-based lines, there was an understanding that these laws would “rarely if ever be enforced on whites.” A Mississippi law in 1865 required African American workers to enter into labor contracts with white farmers. Four other states required African Americans to get a discharge paper from their previous employer before being hired at a different job which essentially prevented them from leaving the plantation owned by a white landowner. In the 1880s, laws in Alabama, North Carolina, and Florida made it a criminal violation to change employers without permission. The punishment in many cases for violating these laws was to be sold into forced labor. By the end of the 1880s, thousands of black men across the South were imprisoned in work camps for violations of completely subjective crimes (if they were even charged) or for no crimes at all. Among these “crimes,” were bigamy, homosexuality, miscegenation, illegal voting, false pretense, using obscene language, selling whiskey, violating contracts, vagrancy, selling cotton after sunset, carrying a concealed weapon, bastardy, and gambling.[29]

Finally, in the 1880s, the Supreme Court stepped in to affirm this racist persecution of freed black people. In two instrumental decisions, the Court ensured that the deeply racist, deeply segregated system would continue for the next half century. First, as part of the Civil Rights Cases in 1883, the Supreme Court struck down the Civil Rights Act of 1875 and established the State Action Doctrine. The Civil Rights Act had outlawed racial discrimination in juries, transportation, and public accommodations. The Court found that the Constitution did not extend to private businesses and so the Act was deemed unconstitutional thus legalizing private acts of discrimination. Second, in 1896, the Court found that segregation was legal as long as it was “equal” in the landmark case Plessy v. Ferguson. The role of race seemed instrumental in this preservation of the power structure. The Court ruled that “legislation is powerless to eradicate racial instincts” while legitimating the doctrine of separate but equal. Historian Edward Ayers argues, “The decision turned less on constitutional principles than on assumptions about the natural course of race relations, the reasonableness of segregation.” While Ayers argues that most of the nation “paid little attention” when the decision was announced, Douglas Blackmon nevertheless notes the contemporary significance of the outcome.[30] Blackmon writes that the Supreme Court’s endorsement of racial segregation “represented a resignation of America’s white institutions to the conclusion that the emancipation of black slaves had been folly.” Most agreed that slavery’s end was “an adequate remedy to the past abuses of blacks.” There was no further need to endanger the stability of the country by forcing southern states to fully free or enfranchise their former slaves. As Blackmon notes, “Black Americans were exchanged for a sense of white security.”[31]

Conclusion

American racial thought commenced and proceeded along the lines of slavery and power. Using religious justifications initially to adhere and protect an economic system that was rooted in the exploitation and enslavement of millions of black Americans, the race-making project in colonial and later antebellum America developed with the assistance and complacency of the legal system. Time and time again, century after century, American legal precedent described, fortified, and expanded definitions and consequences along supposedly concrete and self-evident racial classifications meant to preserve and expand right-handed power. When freedpeople attempted to cast off these historical shackles in the post-emancipation period, they were met by the resurgence of a brutal Jim Crow regime supported again by a legal structure that sought to suppress and counter the legal gains they had made. Thus, the fiction of race that power had created not only held entire groups of people in legal physical bondage for nearly two centuries but also forced them to confront legalized systems of segregation and discrimination in the postemancipation period. The racist legacy of this early period is still being felt today.

Essay compiled from excerpts of comprehensive exam submission to the School of Historical, Philosophical and Religious Studies at Arizona State University during author's graduate program in August 2016. The exam submission earned pass with distinction.

Works Cited

[1] Marcus Rediker, The Slave Ship: A Human History (New York: Penguin Books, 2007), 10.

[2] Matthew Frye Jacobson, Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Cambridge: Harvard University Press, 1998), 1-2.

[3] Kathleen M. Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996), 110.

[4] Robin Blackburn, The Making of New World Slavery: From the Baroque to the Modern, 1492-1800 (New York: Verso, 1997), 14, 312.

[5] Edward Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (New York: Basic Books, 2014), 90, 112, 113.

[6] Gerald Horne, The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America (New York: New York University Press, 2014), 262n85.

[7] Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W.W. Norton, 1975), 311.

[8] Brown, 109.

[9] Horne, 31.

[10] Morgan, 312.

[11] Brown, 116, 118-19.

[12] Brown, 125, 125-26.

[13] Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford: Oxford University Press, 2009), 19-20, 20.

[14] Naturalization Act (An Act to establish an uniform Rule of Naturalization), 1 Stat. 103 (Mar. 26, 1790).

[15] Jacobson, 7, 25.

[16] Takao Ozawa v. United States, 260 U.S. 178 (1922); United States v. Bhagat Singh Thind, 261 U.S. 204 (1923).

[17] U.S. Constitution, Article IV, Section 2, Clause 3.

[18] Quoted in Catherine Clinton and Michele Gillespie, The Devil’s Lane: Sex and Race in the Early South (Oxford: Oxford University Press, 1997), 66.

[19] James McPherson, Battle Cry of Freedom: The Civil War Era (Oxford: Oxford University Press, 1988), 78.

[20] McPherson, 78-79.

[21] Baptist, 338, 347.

[22] Quoted in Paul Finkelman, Dred Scott v. Sandford: A Brief History with Documents (New York: Bedford Books, 1997), 63.

[23] Finkelman, 61, 62.

[24] Laura F. Edwards, “Status without Rights: African Americans and the Tangled History of Law and Governance in the Nineteenth-Century U.S. South,” American Historical Review, Vol. 112, No. 2 (April, 2007), 366, 368, 368-71.

[25] Edwards, 372, 373, 390, 391.

[26] U.S. Constitution, Amendment XIII, Clause 1.

[27] Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (New York: Cambridge University Press, 2001), 56.

[28] Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (New York: Anchor Books, 2008), 53.

[29] Blackmon, 53, 53-54, 54, 99.

[30] Quoted in Edward L. Ayers, The Promise of the New South: Life After Reconstruction (New York: Oxford University Press, 1992), 327.

[31] Blackmon, 110-11.

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