In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, (1) Looney owned a mill and a store. He had a thriving family. His home was near Looney's Creek.
But Looney's world was changing. Outsiders were moving to Appalachia to chop, saw, dynamite, and chisel the countryside. (2) Among them were black people, never a common sight in Buchanan, "one of the whitest counties, not only in Virginia, but in the entire South." (3) The locals proved hostile to the newcomers. Although southwestern Virginia had an extremely small African-American population, more lynchings occurred there between 1880 and 1930 than in any other part of the state. (4) The violence was most common in the more industrialized counties immediately to the east. Even so, in early 1893, after mobs lynched five blacks in neighboring Tazewell, vigilantes and rioters rode through Buchanan, declaring it "altogether a white county." (5)
About five years after the mob violence in Buchanan, a young man named George Spencer crossed the Kentucky line into Virginia. Over the next decade, he married a local woman, had six children, and settled near the Looneys. Spencer, a farmer, worked for Looney at times, and the families often ate together, stayed over at each other's houses, and sent their children to the same schools. (6) Their community was small; the local teacher was a third cousin to the Looneys and kin by marriage to the Spencers. (7)
However, when Spencer's brother was accused of killing Looney's brother, the families stopped talking. And then Looney started talking, to just about anyone who would listen: "[The Spencers] are nothing but God damned negroes, and I can prove they are God damned negroes." (8) Adopting these words as a mantra, Looney--"thoroughly addicted to the abominable habit" of profanity (9)--uttered them at the mill, at his store, at home, and in town. In the summer of 1911, his words flowed down the branches and forks and creeks wrinkling through Buchanan. Before the local school opened for the fall term, Looney approached his cousin, the teacher, told him to tell the Spencers that he called them "damned niggers," and declared that he would take his children out of school. (10) "They shan't go with negroes," he said. (11)
Then Looney sharpened his attack. He traveled to nearby Johnson County, Kentucky. "[T]hrough strenuous efforts, involving costs and expenses," (12) Looney found men who knew Spencer's grandfather--old men, on either side of eighty, who lived in places with names like Paintsville, Jennies Creek, Burnt Cabin, and Lick Fork, and knew Jordan Spencer, Sr., "[e]ver since the war, and before too." (13) These men remembered his thin lips, blue eyes, and "tolerably straight," long red hair, (14) quite possibly "painted," with "a kind of a slick rim where his hat went." (15) One recalled that "a wild, drinking kind of a dissipated man" named Letcher Davis used to tell the Johnson County locals that Spencer had mixed blood, (16) and others talked about nagging rumors that would pop up every now and then. Looney paid for a school official to accompany him on his expeditions. (17) With affidavits in hand, Looney convinced the Rock Lick School District to expel Melvin Spencer from the third grade. George Spencer then sued Looney for slander, seeking damages of ten thousand dollars.
Spencer v. Looney (18) was one of dozens of cases decided in the eras of slavery and segregation that hinged on the question of whether a plaintiff or defendant was white or black. During the past decade, legal historians have begun to excavate these bygone disputes, which involved wills, marriage and divorce, transportation, immigration and naturalization, and libel and slander. With few exceptions, two goals have motivated recent scholarship: proving that race is a social construction and showing how courts in the nineteenth and early twentieth centuries helped build America's racial infrastructure.
This Essay presents a more complex picture of race in the post-Reconstruction South in an attempt to develop a richer understanding of how the law of race worked. Cases that required a determination of a plaintiff's or defendant's racial identity provide rare glimpses into the private lives and worldviews of real people. Although contained within the conventions of briefs, legal opinions, and direct and cross examination, (19) their voices vividly express a largely unexplored degree of self-consciousness about what race does and does not mean. Making sense of the private beliefs aired in courtrooms is an essential task of the legal history of race. Cases like Spencer v. Looney show people who exercised a surprising degree of tolerance in their everyday lives at a time of massive racial hysteria and who had a basic awareness that racial identity was something that could be disputed and creatively argued, at least in the courtroom.
After surveying the legal historiography, I explore what current scholars, with a few notable exceptions, have missed: that many of the historical actors understood that race is a social construction. For most legal historians, the actors in cases such as Spencer v. Looney--parties, lawyers, witnesses, judges, spectators, and contemporaneous commentators--have been useful only to the extent that their doings, presumably unconscious or unintentional, reveal inconsistencies about, and thus the socially constructed nature of, race. In fact, at the turn of the twentieth century, there was widespread discussion of the artificiality of the color line, in courtrooms, legal commentary, social science literature, journalism, and fiction. It is no exaggeration to say that at the height of Jim Crow, people--even and perhaps especially the most rabid of racists--understood what a legal fiction was.
At the root of at least some of this self-consciousness is a phenomenon in American social history that the law, as a forum where family secrets were uttered aloud, is uniquely positioned to reveal. Over the course of the nineteenth century, the United States shifted from an identity regime that recognized "mulattoes" as a distinct racial category to one that divided the world strictly into black and white. Although this transition has been generally regarded as a time when mulattoes were absorbed into a black world, it was also a time when many established themselves as white. That is to say, across the South at the turn of the twentieth century, ostensibly white people who were socially accepted as white had African ancestry.
This racially porous status quo was at odds with the extreme and often violent politics of segregation. While the most paranoid ideologies of "racial integrity" sought to classify every person with any African ancestry as black, this "one-drop rule" had the broad potential to be destabilizing for the white South. If no one's racial status was secure without an exhaustive genealogy, the governmental apparatus of segregation and white supremacy would be perpetually threatening to whites. Instead, statutory definitions of race reflected the status quo, defining as white those people who had as much as one-fourth or one-eighth "Negro blood." Formalistic judicial enforcement of the color line preserved this status quo, making it difficult to prove that people who were accepted as white were in fact black and encouraging actions for damages such as Spencer v. Looney.
As a result, extreme segregationists sought to push the color line toward a one-drop rule by arguing that the more generous statutory definitions of race were absurd, illogical, and socially constructed--an ironic contrast to quite similar observations made by progressive scholars today. This complicated picture of race in the turn-of-the-century South has been absent from legal scholarship. At the heart of this Essay is an attempt to take race beyond conventional legal history and view cases about the color line as portals into a world of secret histories--whispered gossip, unstated understandings, and stories purposely forgotten.
RACE IS A SOCIAL CONSTRUCTION
In his 1994 article, The Social Construction of Race, Ian F. Haney Lopez wrote that "[r]ace may be America's single most confounding problem, but the confounding problem of race is that few people seem to know what race is." (20) Although conventional wisdom viewed race as a natural or biological fact, Haney Lopez argued that "[r]ace must be viewed as a social construction. That is, human interaction rather than natural differentiation must be seen as the source and continued basis for racial categorization." (21) This intellectual project of debunking notions of the immutability of race has not been a lonely one. Proving that race is a social construction and showing how race has been socially constructed are stated missions of most legal scholars of race. (22) This Part will survey current scholarship and consider how the issue of social construction has shaped the history of race and of the law's role in its development.
A. A Brief Typology
In the past decade, legal historians have untangled the thickets of rhetoric that courts have used to justify their rulings on the color line as logical, natural, or compelled by science. Through close readings of court decisions and, less often, analyses of legal briefs and trial transcripts, (23) scholars have pointed out discreet contradictions and illogic in judicial reasoning from the earliest nineteenth-century cases onward. (24) Even where the courts have seemed the most certain that they were merely channeling inevitable truths, their decisions in fact reveal race for what it is: a social construction. (25)
For example, two thoughtful articles (26) have discussed how the Supreme Court in Plessy v. Ferguson, the...