What Blood Won’t Tell: A History of Race on Trial in America tells the history of race and racism in the United States through the lens of trials of racial identity—cases in which courts or administrative bodies determined whether someone was black, white, or Indian. The book is first and foremost a history of the shifting ways Americans have used the law to create “race,” a system of ordering people hierarchically with grave consequences for liberty, property, and rights. While many histories of race and law emphasize the rise of a “one drop of blood rule” as uniquely degrading to African Americans because of its association of “negro” blood with taint, and focus on evidence from statutes and high court pronouncements, my book instead looks at law “on the ground.”
In practice, degree-of-blood rules were not as important as other forms of racial knowledge, especially evidence of racial performances and associations, and certain kinds of racial “science” and expertise. Moreover, the discourse of racial performance rose together with the better-known discourse of science in the mid-nineteenth century, and they were not perceived as opposites or mutually exclusive. My point is not to show that race is legally “constructed”—a starting rather than an endpoint of the narrative—nor that race was contingent, performative, and fluid, but to show that making race depend on performance drew a close connection between whiteness and citizenship in U.S. law. It is this imaginary connection between whiteness and fitness for citizenship that I believe remains a potent force today in debates over immigration, the PATRIOT Act, and innumerable other public questions.
Legal scholars and historians have recognized the rule of hypodescent—that “one drop” of African blood categorized one as Black—as one of the powerful tools that law and society deployed to construct racial identities and deny equal citizenship. Indeed, at least one prominent scholar has suggested that the concept of hypodescent operated as the most determinative method of ascertaining racial identity. Formalistic in its application, the hypodescent rule ensured “[t]hat even Blacks who did not look Black were kept in their place.”
Ariela J. Gross’s new book, What Blood Won’t Tell: A History of Race on Trial in America, boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, What Blood Won’t Tell argues that the legal and social construction of race was far more complex, flexible, and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. Using racial identity trials and local records as sites for examining the legal production of race, What Blood Won’t Tell exposes the various methods that local citizens deployed to define race. “Common sense,” “race performance,” and “race by association” were among the informal and subjective factors that ignored the formalism of blood rules in the prescription of racial identity. Thus, contrary to the general view that blood always determined race, What Blood Won’t Tell illustrates how people were “raced” despite their blood—leading Gross to boldly state that “we have made too much of the ‘hypodescent’ rule.”
This Review explores the story of Floride Norelus—an undocumented Haitian immigrant—her civil rights lawyers, and the judges who did not believe them. The backdrop for Norelus’s story comes out of Ariela J. Gross’s new book, What Blood Won’t Tell: A History of Race on Trial in America. In What Blood Won’t Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. Bridging the study of law and culture, she constructs, or rather reconstructs, identity—both race and gender—from the artifacts of local knowledge expressed in social performance and scientific expertise. Gross points to two “key moments” in American history when racial and gender identity were “particularly fraught”—initially, when “racial identity trials shifted from more routine adjudications of ancestry to intense contests about science and performance,” and subsequently, when jingoist and nativist movements ignited “efforts to define the boundaries of citizenship racially.” During these moments, she notes, the forum for the “determination of racial identity” moved to the local courthouse, “a key arena throughout the nineteenth century for struggles over identity.” At local courthouses, Gross explains, trials of racial and gender identity “reverberated through American culture.” Indeed, for Gross and others, the “cultural arena” of the courthouse and the legal case at stake “could fix the identity of an individual or an entire national group with a conclusiveness that was hard to overturn.”
In What Blood Won’t Tell: A History of Race on Trial in America, Ariela J. Gross provides a compelling and nuanced account of race in America. Through her examination of “racial trials”—litigation in which racial identification plays a crucial role—Gross ties together the personal, social, and political dimensions of racial identity and classification. This discussion provides an important new perspective on the study of race in this country.
Earlier studies of racial classification have focused on the meanings of statutory racial categories. Gross, however, centers her analysis on the formation and reaffirmation of racial categories as a primarily social process. Gross draws from numerous racial trials—spanning slavery in the antebellum South to modern-day Mexican Americans grappling with “whiteness”—in order to survey the origins and history of “black” and “white” as categories in American life.
From the opening pages of Ariela J. Gross’s What Blood Won’t Tell: A History of Race on Trial in America, it is clear that the reader is about to embark on something special. The story begins in a Louisiana courthouse in 1857, with an enslaved woman named Alexina Morrison claiming that she is white. For her contemporaries, the assertion no doubt carried troubling implications. James White, the man who insisted Morrison was black, had papers to prove that he paid good money for her and that she was his property. But her “blue eyes and flaxen hair” told a different story, and her recent appearances at public balls in Jefferson Parish had convinced a number of residents that her graceful mannerisms and affectations were those of a white woman rather than slave. The courtroom was soon bombarded with a dizzying array of evidence for such a simple question—was she white or was she black?—with men eventually stripping her to the waist to examine her body for the tiniest signs of her true identity. Three trials later, the community still had not resolved the issue. But more importantly, from Gross’s view, this case provides an unparalleled opportunity to examine the complex and constantly shifting ground of race and its import for this nation’s history.
When fifteen-year-old Elisa Cazares was not nominated for membership to her high school’s chapter of the National Honor Society, she and her teachers were surprised. As the “brightest student” her math teacher had “seen come through” Tohono O’Odham High School, Cazares was one of four members of the student government, had been on the honor roll for every report period, and was active in a number of student activities. Arguing that the selection committee declined to nominate her because she was pregnant, unwed, and not living with the father of her future child, Cazares claimed that her equal protection rights had been violated and brought suit in federal district court. In holding that Cazares’s exclusion constituted a violation of her equal protection rights, the district court mandated that “no student . . . [could] be inducted into the National Honor Society unless and until Elisa Cazares [was] among them.” To achieve compliance with the district court’s instructions, Tohono O’Odham canceled the induction ceremony, remedying the violation by denying both Cazares and the students the selection committee had already nominated access to the Society.
The Kamehameha Schools are a series of private, nonprofit, nonsectarian campuses interspersed throughout the Hawaiian Islands. Founded in the late nineteenth century, they have operated continuously ever since, fulfilling their mission to provide a “good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women.” With over five thousand students enrolled in kindergarten through grade twelve, the Kamehameha Schools are collectively among the largest independent primary and secondary educational institutions in the United States. Otherwise—apart from their strong academic reputation and champion athletic teams—they might be perceived as fairly typical schools. This perception is deceiving. To the contrary, they are anything but.
In 1990, Congress enacted the Americans with Disabilities Act (the “ADA” or the “Act”) with the goal of eliminating discrimination against disabled Americans by providing clear, strong, consistent, and enforceable standards to combat the type of discrimination people with disabilities face in their everyday lives. The ADA is the force behind the wheelchair ramps so common in American buildings, the wide doors and large bathroom stalls to accommodate the disabled, the talking ATMs to assist individuals who are blind, and the acceptance of service animals in restaurants and shops. Yet the ADA has provided little help to disabled Internet users.
On July 26, 2005, President George W. Bush released a proclamation celebrating the fifteenth anniversary of the Americans with Disabilities Act (“ADA”), signed into law by the former President Bush. In the proclamation, President Bush “call[ed] on all Americans…to fulfill the promise of the ADA [and] to give all people the opportunity to live with dignity, work productively, and achieve their dreams.” At the time of its signing there were more than forty-three million disabled persons in the United States; this number has grown to more than forty-nine million. The purpose of the ADA was to eliminate discrimination against this growing population in a number of areas by providing a “legal recourse to redress such discrimination.”