Mixed Race and the Law: A Reader

Mixed Race America: A Critical Reader focuses on the law concerning racial mixture in the United States. The book will take the reader on a journey through the legal intricacies posed by racial mixture and offer the historical, social, and political context surrounding the evolution of the law. Ironically, the general subject of this book - racial mixture - violates a fundamental tenet of much law over the course of U.S. history. Until the Supreme Court intervened in 1967, laws enforced by many states barred interracial marriage and thus discouraged marriages that might result in mixed race children. Important books have been written on the mixed race experience. Many, such as James McBride, The Color of Water: A Black Man's Tribute to His White Mother (1996); Gregory Howard Williams: Life on the Color Line: The True Story of a White Boy Who Discovered He was Black (1995); Judy Scales-Trent, Notes of a White Black Woman: Race, Color, Community (1995), focused on the experiences of mixed African American and white people. My own contribution, How Did You Get to Be Mexican?: A White/Brown Man's Search for Identity (1999), sought to expand the dialogue to consider the mixed Anglo/Latinos experience. Consistent with the goal of that book, this anthology studies the law's impact on a wide variety of mixed race people. This focus is consistent with the general trajectory of civil rights scholarship, which has expanded in scope to encompass the great diversity of racial minorities in the United States. Such mixture will shape the future study of race and civil rights in the United States. As minorities of many different types intermarry, combined with continuing high rates of immigration of diverse peoples to this country, more racial mixtures and mixed race peoples emerge. This anthology also attempts to build a bridge scholarship on the mixed race experience and the law. To this point, the legal relevance of racial mixture in the United States has received scant attention. This book hopefully will commence scholarly inquiry in this rich area. Organized into twelve parts, this anthology includes excerpts of readings on a particular legal topic, provides review questions, and provides a list of suggested readings. The selection of excerpts was difficult. By necessity, space limitations made it impossible to include many excellent scholarly works. To direct the reader to some of this scholarship I have included a list of suggested readings at the end of each part. Part I outlines the history of the anti-miscegenation laws, which sought to limit interracial marriages between Blacks and Whites and thus mixed race offspring. Extralegal means, namely, "lynch law" and this nation's sordid history of lynching African American men accused (often wrongly) of crossing the color line, powerfully buttressed the legal prohibition. The readings document the slow demise of the anti-miscegenation laws in the courts. Part II considers racial formation and mixed race identity and outlines the legal definition of African American identity - the "one drop" rule, that is, the legal rule that "one drop" of African American blood made a person African American. By operation of this rule of law, many mixed race people were deemed to be African American. The readings also discuss the legal definitions of Latina/os, Asians, and Native Americans and reveal how legal definitions often fail to comport with the complexities of race and racial mixture in the modern United States. Part III discusses the phenomenon of mixed race people "passing" as white because of the benefits attached to whiteness in our society. An individual's physical appearance, which varies dramatically among the mixed race population, affects ones ability to "pass." The readings focus on the legal ramifications of this passing, as well as efforts of whites to "pass" as minorities for affirmative action and related benefits. Part IV considers the heated controversy over racial classifications used by the U.S. Bureau of the Census in the 2000 Census and the counting of multiracial people. The arguments pro and con for the proposed multiracial category, as well as the fears of change are analyzed in detail. The legal impacts of the new scheme for counting "multiracial" people are the focal point of this section. Part V considers the inheritance rights of the offspring of interracial marriages. History, because such marriages violated the anti-miscegenation laws, the mixed race children were deemed illegitimate and lost nights to inherit assets, with enduring social impacts. Denied the ability to accumulate assets as others could, African American women denied the inheritance rights afforded legally - recognized wives and mixed race children were disparately affected by the operation of the law in this way. Part VI analyzes the discrimination against mixed race people. At times, whites have preferentially treated lighter complected African Americans. Mixed race people can experience discrimination within minority communities because of their skin color, sometimes referred to as "colorism." This part discusses the law's treatment of discrimination against mixed race people under the array of civil rights statutes designed to prohibit racial discrimination. Part VII analyzes the difficult question of how mixed race people should classify themselves for purposes of affirmative action in higher education and employment. This issue demonstrates the fault lines in defining "race." Like the racial classifications for the 2000 Census, racial categorization for employment, public contracting, and higher education necessarily reflect a certain arbitrariness. In Part VIII, we study the heated debate over the consideration of race in child custody and transracial adoption. Should the race of a parent affect whether he or she should have custody of a mixed race child? Should a white couple be able to adopt an African American or an Indian child? These controversial questions poses conflicts between minority communities as a group and individual rights of parents and children. Part IX analyzes the treatment of mixed race people under the immigration and nationality laws, which have a long history of racial discrimination. Generally treated as racial minorities, mixed race immigrants were subject to racial exclusion from immigration and naturalization. Moreover, serving as a deterrent to interracial marriages, the nationality laws stripped U.S. citizen women of their citizenship if they married an immigrant ineligible to citizenship, a law that excluded most non-whites from becoming citizens. Part X offers a comparative look at the law's treatment of racial mixture in other countries. South Africa and Latin America have long histories with racial mixture that offer important insights in evaluating the legal treatment of mixed race peoples in the United States. Such comparisons offer many lessons for the United States, which is not the first country attempting to address the legal issues arising from the emergence of a mixed race population. Part XI provides preliminary thoughts on what an increasingly mixed race society will bring to the United States. While some commentators predict that racism will evaporate with increasing intermarriage, others envision new, perhaps more virulent, racisms flowing from the demographic changes. Finally, Part XII considers the future trajectory of mixed race studies. It discusses how mixed race fits into Critical Race Theory and other theoretical developments in law and related disciplines. As the above outline reveals, the early sections of the anthology focus on policing racial boundaries, the middle on racial classifications, and the end on the impact of the growing mixed race population. Increasing racial mixture raises the question of the future of races and racism in the United States. Will mixed race people take us to a place of racial peace and tranquility? Or, will new racisms and social conflict emerge in the coming decades? One theme ties this anthology together. Modern commentators today consider "race" to be a concept constructed be people, a so-called "social construct," rather than something based in biological fact. Biological rationales for racial difference popular in the scientific literature in the nineteenth and early twentieth century has waned, although they have not disappeared entirely. Mixed race people effectively puts the proverbial nail in the coffin of the view that race is a biological reality. The changing, fluid boundaries exemplified by racial mixture demonstrates how society constructs people differently based on physical appearance, cultural, class, religious, and other traits. For example, even if the fundamental biological make-up of siblings is virtually identical, they may be treated as of different races in certain social contexts if they do not look alike physically. Society constructs each person in different ways. Moreover, different societies may construct the same person differently. The law surrounding mixed race people, the one drop rule itself, demonstrates that race is a construction of the minds of people, something that people make up a figment of the collective imagination. Law otherwise would in large part be unnecessary to enforce racial boundaries. Rigid racial classifications embedded in law bear little reality to the fluid racial boundaries in everyday social life. As in other areas, law finds it difficult to keep up with changing racial constructions and modern realities.