Racial purity laws in the United States and Nazi Germany: The targeting process

Human Rights Quarterly

Volumn 23, Issue 2, 2001, Pages 259-307

  Scales Trent, Judy ^a  

^a UNIVERSITY AT BUFFALO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CITIZENSHIP; COMPARATIVE STUDY; RACISM; TARGETING;

GERMANY; UNITED STATES;

EID: 0034966147     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2001.0023     Document Type: Review

References (313)

1. JAMES BALDWIN, THS PRICE OF THE TICKET 355 (1985).
2. See 59 Fed. Reg. 29831-29835 (1994)
3. RICHARD LAWRENCE MILLER, NAZI JUSTIZ: LAW OF THE HOLOCAUST 9 (1995).
4. AMERICAN JEWISH COMMITTEE, THE JEWS IN NAZI GERMANY: THE FACTUAL RECORD OF THEIR PERSECUTION BY THE NATIONAL SOCIALISTS 2 (1933).
5. Id.
6. JANE PURCELL GUILD, BLACK LAWS OF VIRGINIA 33, 170 (1969).
7. Id. at 33. Although the legislature spoke in terms of "blood," this was not a biological concept, but, instead, referred to a person with at least one Negro grandparent. The first statutory definition of a racial group in Virginia was a 1785 definition of "mulatto." Id. at 29. I chose the 1866 statute for purposes of comparison because the larger focus of my paper is US treatment of black Americans. Virginia enacted laws limiting the rights of "Negroes" and "mulattoes" before it enacted this 1866 statute. See generally id. at 24-33. Thus, states do sometimes enact oppressive legislation against a group before creating a statutory definition of the group itself. Some scholars think that it was the very dangerous fluidity within Southern society after the Civil War that led to the creation of many state definitions. See A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEORGETOWN L. J. 1967, 1968 (1989); F. JAMES DAVIS, WHO IS BLACK: ONE NATION'S DEFINITION 55 (1991). Before the war, of course, white Southerners could easily control the status of most African-Americans through the definition of "slave."
8. Id. at 33. Although the legislature spoke in terms of "blood," this was not a biological concept, but, instead, referred to a person with at least one Negro grandparent. The first statutory definition of a racial group in Virginia was a 1785 definition of "mulatto." Id. at 29. I chose the 1866 statute for purposes of comparison because the larger focus of my paper is US treatment of black Americans. Virginia enacted laws limiting the rights of "Negroes" and "mulattoes" before it enacted this 1866 statute. See generally id. at 24-33. Thus, states do sometimes enact oppressive legislation against a group before creating a statutory definition of the group itself. Some scholars think that it was the very dangerous fluidity within Southern society after the Civil War that led to the creation of many state definitions. See A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEORGETOWN L. J. 1967, 1968 (1989); F. JAMES DAVIS, WHO IS BLACK: ONE NATION'S DEFINITION 55 (1991). Before the war, of course, white Southerners could easily control the status of most African-Americans through the definition of "slave."
9. AMERICAN JEWISH COMMITTEE, supra note 4, at 2.
10. RAUL HILBERG, THE DESTRUCTION OF THE EUROPEAN JEWS 72 (1985).
11. GUILD, supra note 6, at 35.
12. MILLER, supra note 3, at 18.
13. Brian William Thomson, Racism and Racial Classification: A Case Study in the Virginia Racial Integrity Classification 156-57 (1978) (unpublished Ph.D. dissertation, University of California (Riverside)) (on file with author).
14. Ozawa v. United States, 260 U.S. 178, 197 (1922).
15. MILLER, supra note 3, at 16 (Nazi Germany); FOSTER RHEA DULLES, THE AMERICAN RED CROSS: A HISTORY 419-20 (1971).
16. MILLER, supra note 3, at 16 (Nazi Germany); FOSTER RHEA DULLES, THE AMERICAN RED CROSS: A HISTORY 419-20 (1971).
17. HILBERG, supra note 9, at 73.
18. See Thomson, supra note 12, at 202-03.
19. 7. See OSCAR J. JANOWSKY & MELVIN M. FAGEN, INTERNATIONAL ASPECTS OF GERMAN RACIAL POLICIES 150-52 (1937).
20. Thomson, supra note 12, at 144, 229.
21. SAUL FRIEDLANDER, NAZI GERMANY AND THE JEWS: THE YEARS OF PERSECUTION, 1933-1939 (Vol. I) 152-53 (1997).
22. See NORMAN RICH, HITLER'S WAR AIMS: IDEOLOGY, THE NAZI STATE, AND THE COURSE OF EXPANSION 57 (1973).
23. See GUILD, supra note 6, at 32.
24. Paul A. Lombardo, Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia, 21 U.C. DAVIS L. REV. 421, 449 (1988).
25. See KARL A. SCHLEUNES, THE TWISTED ROAD TO AUSCHWITZ: NAZI POLICY TOWARD GERMAN JEWS 1933-1939, at 116 (1970).
26. MARION A. KAPLAN, BETWEEN DIGNITY AND DESPAIR: JEWISH LIFE IN NAZI GERMANY 149 (1998). "Mischlinge" means "mixed," and refers to the Nazi classification of those people who were not full Jews. "First-degree Mischlinge" had two Jewish grandparents, no Jewish spouse, and did not belong to the Jewish faith; "second-degree Mischlinge" had only one Jewish grandparent. Id. at 77. Although the 1940 decree said that Mischlinge were supposed to leave the army, many stayed due to confusion, subterfuge, and mixed signals from above. See John M. Steiner & Jobst Freiherr von Cornberg, Willkhr in der Willkhr: Befreungen von den antisemitischen Nürnberger Gesetzen, 46 VIERTELJAHRESHEFTE FUR ZEITGESCHICHTE 170-71 (1998).
27. MARION A. KAPLAN, BETWEEN DIGNITY AND DESPAIR: JEWISH LIFE IN NAZI GERMANY 149 (1998). "Mischlinge" means "mixed," and refers to the Nazi classification of those people who were not full Jews. "First-degree Mischlinge" had two Jewish grandparents, no Jewish spouse, and did not belong to the Jewish faith; "second-degree Mischlinge" had only one Jewish grandparent. Id. at 77. Although the 1940 decree said that Mischlinge were supposed to leave the army, many stayed due to confusion, subterfuge, and mixed signals from above. See John M. Steiner & Jobst Freiherr von Cornberg, Willkhr in der Willkhr: Befreungen von den antisemitischen Nürnberger Gesetzen, 46 VIERTELJAHRESHEFTE FUR ZEITGESCHICHTE 170-71 (1998).
28. See Steiner & von Cornberg, supra note 25, at 170.
29. William D. Montalbano, Stories Bared of Jews who Served in Nazi Army, N.Y. TIMES, 29 Dec. 1996, at A12.
30. IAN HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSEQUENCES OF RACE 1 (1996). Congress amended this statute in 1790 after the Fifteenth Amendment was ratified, to include "persons of African nativity, or African descent." However, of the fifty-two published decisions involving plaintiffs seeking to naturalize under this statute, only one involved a plaintiff who claimed citizenship because of his "African descent." Id. at 49. This is not surprising. Clearly there was no point in becoming a citizen of the United States if all one could expect was the rights granted black Americans. Congress did not remove this requirement until 1952. Id. at 43.
31. See id.
32. Charles Gordon, The Racial Barrier to American Citizenship, 93 U. PA. L. REV. 237, 248 (1945).
33. See Otto Klineberg, Racialism in Nazi Germany, in THE THIRD REICH 859 (Int'l Council for Philosophy & Humanistic Stud. eds., 1955).
34. MILLER, supra note 3, at 18-19.
35. GUILD, supra note 6, at 35.
36. Id. (referring to the 1910 statute).
37. Lombardo, supra note 23, at 434 n.60.
38. GUILD, supra note 6, at 33.
39. Id. at 35.
40. Id.
41. HILBERG, supra note 9, at 66.
42. See id. at 72.
43. See SCHLEUNES, supra note 24, at 106-07.
44. Id. at 112; see generally GERALD L. POSNER & JOHN WARE, MENGELE: THE COMPLETE STORY 13, 15 (1986).
45. See SCHLEUNES, supra note 24, at 130.
46. POSNER & WARE, supra note 42, at 15-16.
47. DONNA F. RYAN, THE HOLOCAUST AND THE JEWS OF MARSEILLES: THE ENFORCEMENT OF ANTI-SEMITIC POLICIES IN VICHY FRANCE 38 (1996).
48. See id. at 34. These groups were the Karaites, from Russia, and the Tugutis, from Central Asia. See id.
49. See infra text accompanying notes 123-24.
50. See SCHLEUNES, supra note 24, at 118.
51. GUILD, supra note 6, at 21.
52. VA. CODE ANN. §20-54 (Repl. Vol. 1960).
53. See Gabriele Czarnowski, Hereditary and Racial Welfare (Erb-und Rassenpflege): The Politics of Sexuality and Reproduction in Nazi Germany, SOCIAL POLITICS 125 (1997).
54. See KAPLAN, supra note 25, at 81.
55. Czarnowski, supra note 51, at 125.
56. See INGO MÜLLER, HITLER'S JUSTICE: THE COURTS OF THE THIRD REICH 115 (1991).
57. KAPLAN, supra note 25, at 80.
58. GUILD, supra note 6, at 24-25.
59. Id.
60. See id.
61. See id.
62. See id. at 26.
63. See id. at 32.
64. See id. at 34.
65. See id.
66. See id. at 36.
67. Throughout the country, white citizens of the US lynched at least 1,111 African-Americans between 1890 and 1900; there were at least 1,354 lynchings between 1900 and 1920. A commonly alleged justification was the rape or attempted rape of a white woman. Law enforcement officers often joined those who engaged in these and other acts of terrorism. See DAVIS, supra note 7, at 53-54. For one example where the Supreme Court found that a sheriff and other law enforcement officers facilitated, and participated in, the lynching of a black prisoner, see MARK CURRIDEN & LEROY PHILLIPS, JR., CONTEMPT OF COURT: THE TURN-OF-THE-CENTURY LYNCHING THAT LAUNCHED 100 YEARS OF FEDERALISM (1999). There were 100 recorded lynchings in Virginia between 1882 and 1968. Of that number, eighty-three were African-Americans. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950, at 5 (1980).
68. Throughout the country, white citizens of the US lynched at least 1,111 African-Americans between 1890 and 1900; there were at least 1,354 lynchings between 1900 and 1920. A commonly alleged justification was the rape or attempted rape of a white woman. Law enforcement officers often joined those who engaged in these and other acts of terrorism. See DAVIS, supra note 7, at 53-54. For one example where the Supreme Court found that a sheriff and other law enforcement officers facilitated, and participated in, the lynching of a black prisoner, see MARK CURRIDEN & LEROY PHILLIPS, JR., CONTEMPT OF COURT: THE TURN-OF-THE-CENTURY LYNCHING THAT LAUNCHED 100 YEARS OF FEDERALISM (1999). There were 100 recorded lynchings in Virginia between 1882 and 1968. Of that number, eighty-three were African-Americans. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950, at 5 (1980).
69. Throughout the country, white citizens of the US lynched at least 1,111 African-Americans between 1890 and 1900; there were at least 1,354 lynchings between 1900 and 1920. A commonly alleged justification was the rape or attempted rape of a white woman. Law enforcement officers often joined those who engaged in these and other acts of terrorism. See DAVIS, supra note 7, at 53-54. For one example where the Supreme Court found that a sheriff and other law enforcement officers facilitated, and participated in, the lynching of a black prisoner, see MARK CURRIDEN & LEROY PHILLIPS, JR., CONTEMPT OF COURT: THE TURN-OF-THE-CENTURY LYNCHING THAT LAUNCHED 100 YEARS OF FEDERALISM (1999). There were 100 recorded lynchings in Virginia between 1882 and 1968. Of that number, eighty-three were African-Americans. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950, at 5 (1980).
70. ROBERT N. PROCTOR, RACIAL HYGIENE: MEDICINE UNDER THE NAZIS 136 (1988); DAVIS, supra note 7, at 25.
71. ROBERT N. PROCTOR, RACIAL HYGIENE: MEDICINE UNDER THE NAZIS 136 (1988); DAVIS, supra note 7, at 25.
72. Lombardo, supra note 23, at 426 n.18.
73. Naim v. Naim, 197 Va. 80, 90 (1955).
74. MILLER, supra note 3, at 35.
75. HILBERG, supra note 9, at 72. The definitions appeared in the First Regulation to the Reich Citizenship Law. The designation "Mischlinge" was not in this decree, but was added later by the Ministry of Interior. Id. 71. See id. at 78.
76. LEON POLIAKOV, HARVEST OF HATE: THE NAZI PROGRAM FOR THE DESTRUCTION OF THE JEWS OF EUROPE 61 (1954). See KAPLAN, supra note 25, at 83-84; FRIEDLÄNDER, supra note 19, at 157 (for further discussion on how the status of these Mischlinge changed over time).
77. LEON POLIAKOV, HARVEST OF HATE: THE NAZI PROGRAM FOR THE DESTRUCTION OF THE JEWS OF EUROPE 61 (1954). See KAPLAN, supra note 25, at 83-84; FRIEDLÄNDER, supra note 19, at 157 (for further discussion on how the status of these Mischlinge changed over time).
78. LEON POLIAKOV, HARVEST OF HATE: THE NAZI PROGRAM FOR THE DESTRUCTION OF THE JEWS OF EUROPE 61 (1954). See KAPLAN, supra note 25, at 83-84; FRIEDLÄNDER, supra note 19, at 157 (for further discussion on how the status of these Mischlinge changed over time).
79. GUILD, supra note 6, at 29. Note that the word "mulatto" refers to a mule, the sterile offspring of a horse and donkey. For further reflection on the use of this word, see JUDY SCALES-TRENT, NOTES OF A WHITE BLACK WOMAN: RACE COLOR, COMMUNITY 99-103 (1995).
80. GUILD, supra note 6, at 29. Note that the word "mulatto" refers to a mule, the sterile offspring of a horse and donkey. For further reflection on the use of this word, see JUDY SCALES-TRENT, NOTES OF A WHITE BLACK WOMAN: RACE COLOR, COMMUNITY 99-103 (1995).
81. GUILD, supra note 6, at 30 n.7.
82. See HIGGINBOTHAM & KOPYTOFF, supra note 7, at 1977.
83. JOAN FERRANTE & PRINCE BROWN, JR., THE SOCIAL CONSTRLICTION OF RACE AND ETHNICITY IN THE UNITED STATES 113 (1998).
84. In 1890 there were four census categories for African-Americans: black, mulatto, quadroon, and octoroon. See id. at 11 3. Several states accorded "white" legal standing to certain mulattos with light skin. Id. at 125. For a summary of the various state rules on the middle group, see DAVIS, supra note 7, at 31-50.
85. Mary Lynn Washington, White, Black, or Mulatto: A Sociological Exploration of the Meaning of Racial Classification in the United States Census of 1880, at 207 (1997) (unpublished Ph.D. dissertation, Johns Hopkins University) (on file with author).
86. See Michael Hughes & Bradley R. Hertel, The Significance of Color Remains: A Study of Lite Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 69 Soc. FORCES 1105 (1990); Verna M. Keith & Cedric Herring, Skin Tone and Stratification in the Black Community, 97 AM J. Soc. 760, 775 (1991); Taunya Lovell Banks, Colorism: A Darker Shade of Pale, 47 U.C.L.A. L. REV. 1705 (2000).
87. See Michael Hughes & Bradley R. Hertel, The Significance of Color Remains: A Study of Lite Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 69 Soc. FORCES 1105 (1990); Verna M. Keith & Cedric Herring, Skin Tone and Stratification in the Black Community, 97 AM J. Soc. 760, 775 (1991); Taunya Lovell Banks, Colorism: A Darker Shade of Pale, 47 U.C.L.A. L. REV. 1705 (2000).
88. See Michael Hughes & Bradley R. Hertel, The Significance of Color Remains: A Study of Lite Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 69 Soc. FORCES 1105 (1990); Verna M. Keith & Cedric Herring, Skin Tone and Stratification in the Black Community, 97 AM J. Soc. 760, 775 (1991); Taunya Lovell Banks, Colorism: A Darker Shade of Pale, 47 U.C.L.A. L. REV. 1705 (2000).
89. James H. Johnson, Jr. & Walter C. Farrell, Jr., Race Still Matters, CHRON. HIGHER EDU. 7 July 1995, at A48. Medical researchers are beginning to notice the derivative effect of color on the health of black Americans. See, e.g., Michael J. Klaget al., The Association of Skin Color with Blood Pressure in US Blacks with Low Socioeconomic Status, 265 J.A.M.A. 599 (1991); Robert F. Murray, Jr., Skin Color and Blood Pressure: Genetics or Environment?, 265 J.A.M.A. 639 (1991).
90. James H. Johnson, Jr. & Walter C. Farrell, Jr., Race Still Matters, CHRON. HIGHER EDU. 7 July 1995, at A48. Medical researchers are beginning to notice the derivative effect of color on the health of black Americans. See, e.g., Michael J. Klaget al., The Association of Skin Color with Blood Pressure in US Blacks with Low Socioeconomic Status, 265 J.A.M.A. 599 (1991); Robert F. Murray, Jr., Skin Color and Blood Pressure: Genetics or Environment?, 265 J.A.M.A. 639 (1991).
91. James H. Johnson, Jr. & Walter C. Farrell, Jr., Race Still Matters, CHRON. HIGHER EDU. 7 July 1995, at A48. Medical researchers are beginning to notice the derivative effect of color on the health of black Americans. See, e.g., Michael J. Klaget al., The Association of Skin Color with Blood Pressure in US Blacks with Low Socioeconomic Status, 265 J.A.M.A. 599 (1991); Robert F. Murray, Jr., Skin Color and Blood Pressure: Genetics or Environment?, 265 J.A.M.A. 639 (1991).
92. Georg Lilienthal, Anthropology and National Socialism, in ENCYCLOPEDIA OF THE HOLOCAUST 48-49 (Israel Gutman ed., 1990).
93. See id. at 49.
94. See id.
95. Id.
96. See id. at 48-49.
97. HILBERG, supra note 9, at 78.
98. Id.
99. See id.
100. Id.
101. See id. at 78-79.
102. Id.
103. Montalbano, supra note 27.
104. GUILD, supra note 6, at 32.
105. Id.
106. See Thomson, supra note 12.
107. See id.
108. See id. at 227.
109. See id. at 229.
110. See id.
111. See ed. at 228.
112. See id.
113. See id.
114. GUILD, supra note 6, at 32.
115. See supra text accompanying notes 33-35.
116. See MILLER, supra note 3, at 13.
117. POSNER & WARE, supra note 42, at 10.
118. See PROCTOR, supra note 66, at 150.
119. See id. at 110-11.
120. POLIAKOV, supra note 72, at 270.
121. PROCTOR, supra note 66, at 110.
122. Thomson, supra note 12, at 297. As the Supreme Court stated in 1922, "the test afforded by the mere color of the skin of each individual is impracticable, as that differs greatly among persons of the same race." Ozawa v. United States, 260 U.S. at 197.
123. Other body parts were also considered markers of "race." For example, one Georgia court had plaintiffs show their feet to the jury, since expert medical testimony had indicated that feet were one of the distinguishing markers of race. Brief for Plaintiff in Error Homer A. Plessy at 40, Plessy v. Ferguson, 163 U.S. 537 (1896).
124. See KAPLAN, supra note 25, at 201-12, 218-23.
125. See DAVIS, supra note 7, at 55-57.
126. See MILLER, supra note 3, at 73-74.
127. See Philip Friedman, The Jewish Badge and the Yellow Star in the Nazi Era, in ROADS TO EXTINCTION: ESSAYS ON THE HOLOCAUST 12-13 (Ada June Friedman ed., 1980). In a sense, the Germans were merely reworking a European custom that dated back to 1215, when Pope Innocent III decreed that Jews had to wear different clothes than Christians. The garment marker varied from, for example, a special hat in the German Empire to a cloth circle, sometimes red (Austria), sometimes yellow (France). See L. POLIAKOV, L'ETOILE JAUNE 14-15 (1949).
128. See Philip Friedman, The Jewish Badge and the Yellow Star in the Nazi Era, in ROADS TO EXTINCTION: ESSAYS ON THE HOLOCAUST 12-13 (Ada June Friedman ed., 1980). In a sense, the Germans were merely reworking a European custom that dated back to 1215, when Pope Innocent III decreed that Jews had to wear different clothes than Christians. The garment marker varied from, for example, a special hat in the German Empire to a cloth circle, sometimes red (Austria), sometimes yellow (France). See L. POLIAKOV, L'ETOILE JAUNE 14-15 (1949).
129. According to Police Chief Ronald Neubauer, all states used to mark race openly on drivers' licenses; now some of them use bar codes to do the same. Telephone interview with Ronald Neubauer, Police Chief and former past President of the International Association of Chiefs of Police (11 May 2000).
130. See, e.g., Alice Dunbar-Nelson, Brass Ankles Speaks, in THE WORKS OF ALICE DUNBAR-NELSON (VOL. II) 311 (Gloria T. Hull ed., 1988); Adrian Piper, Passing for White, Passing for Black, in NEW FEMINIST CRITICISM: ART, IDENTITY, ACTION (Joanna Frueh et al. eds., 1994); GREGORY HOWARD WILLIAMS, LIFE ON THE COLOR LINE: THE TRUE STORY OF A WHITE BOY WHO DISCOVERED HE WAS BLACK (1995); SCALES-TRENT, supra note 73.
131. See, e.g., Alice Dunbar-Nelson, Brass Ankles Speaks, in THE WORKS OF ALICE DUNBAR-NELSON (VOL. II) 311 (Gloria T. Hull ed., 1988); Adrian Piper, Passing for White, Passing for Black, in NEW FEMINIST CRITICISM: ART, IDENTITY, ACTION (Joanna Frueh et al. eds., 1994); GREGORY HOWARD WILLIAMS, LIFE ON THE COLOR LINE: THE TRUE STORY OF A WHITE BOY WHO DISCOVERED HE WAS BLACK (1995); SCALES-TRENT, supra note 73.
132. See, e.g., Alice Dunbar-Nelson, Brass Ankles Speaks, in THE WORKS OF ALICE DUNBAR-NELSON (VOL. II) 311 (Gloria T. Hull ed., 1988); Adrian Piper, Passing for White, Passing for Black, in NEW FEMINIST CRITICISM: ART, IDENTITY, ACTION (Joanna Frueh et al. eds., 1994); GREGORY HOWARD WILLIAMS, LIFE ON THE COLOR LINE: THE TRUE STORY OF A WHITE BOY WHO DISCOVERED HE WAS BLACK (1995); SCALES-TRENT, supra note 73.
133. See, e.g., Alice Dunbar-Nelson, Brass Ankles Speaks, in THE WORKS OF ALICE DUNBAR-NELSON (VOL. II) 311 (Gloria T. Hull ed., 1988); Adrian Piper, Passing for White, Passing for Black, in NEW FEMINIST CRITICISM: ART, IDENTITY, ACTION (Joanna Frueh et al. eds., 1994); GREGORY HOWARD WILLIAMS, LIFE ON THE COLOR LINE: THE TRUE STORY OF A WHITE BOY WHO DISCOVERED HE WAS BLACK (1995); SCALES-TRENT, supra note 73.
134. Friedman, supra note 116, at 13.
135. Id.
136. POLIAKOV, supra note 72, at 55.
137. Lilienthal, supra note 81, at 51.
138. Plessy v. Ferguson, 163 U.S. at 552.
139. Id.
140. See generally PAULI MURRAY, STATES' LAWS ON RACE AND COLOR (1951). For a discussion of how Louisiana used its legal, judicial, and administrative systems to maintain racial purity, see generally VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986).
141. See generally PAULI MURRAY, STATES' LAWS ON RACE AND COLOR (1951). For a discussion of how Louisiana used its legal, judicial, and administrative systems to maintain racial purity, see generally VIRGINIA R. DOMÍNGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986).
142. See Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2112, n.248. (1993).
143. See Paul Knepper, The Prohibition of Biracial Legal Identity in the States and the Nation: An Historical Overview, 5 STATE CONST. COMMENTARIES & NOTES 14, 15 (1994).
144. See John Roy Squibb, Roads to Plessy: Blacks and the Law in the Old Northwest: 1860-1896, at 75-76 (1992) (unpublished Ph.D. dissertation, University of Wisconsin (Madison)) (on file with author).
145. See ROBERT J. SICKELS, RACE, MARRIAGE AND THE LAW 71 (1972).
146. In those nineteen states with no laws, the black population was 5 percent or less of the population, and in seven of them, it was less than 1 percent ot the population. INURMARRIAGE WITH NEGROES - A SURVEY OF STATE STATUTES, 36 YALE L.J. 858, 59 (1927).
147. See generally MURRAY, supra note 125.
148. See SICKELS, supra note 129, at 72. Hence, "mulattos" would indeed become, like mules, "sterile hybrids."
149. MILTON R. KONVITZ, THE ALIEN AND THE ASIATIC IN AMERICAN LAW 231 (1946).
150. Id. at 231-32.
151. Id. at 232.
152. Id.
153. Id. at 231.
154. Id. at 232.
155. See SICKELS, supra note 129, at 72.
156. See Brown v. Board of Education, 347 U.S. 483 (1954).
157. See Loving v. Virginia, 388 U.S. 1, 6, n.5 (1967).
158. See Washington, supra note 78, at 75.
159. Id. at 101.
160. Sharon M. Lee, Racial Classifications in the US Census: 1890-1990, 16 ETHNIC & RACIAL STUD. 75, 81 (1993). Note, however, that Lee erroneously conflates race and color, thus suggesting a biological basis for "race," despite her careful analysis of the federal government's creation of racial categories.
161. See Washington, supra note 78, at 77.
162. Lee, supra note 144, at 79.
163. Id. at 81.
164. FERRANTE & BROWN, supra note 76, at 3-4.
165. Id. at 111. If the person had mixed Native American/Negro ancestry, that person was to be designated "Negro." Id. at 4. For a more thoughtful look at those with ancestry from both Africa and Native America, see generally JACK D. FORBES, AFRICANS AND NATIVE AMERICANS: THE LANGUAGE OF RACE AND THE EVOLUTION OF RED-BLACK PEOPLES (1993).
166. Office of Management and Budget, "Standards for the Classification of Federal Data on Race and Ethnicity; Notice," 60 Fed. Reg. 44674, 44692 (1995). It is this directive that was under discussion for possible changes for the year 2000 census. See supra note 2.
167. See id.
168. Id.
169. Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CAL. L. REV. 1231, 1257 (1994).
170. Id. NCHS changed this regulation in 1989. The new rule states that the race of the child is the same as the race of the mother. See FERRANTE & BROWN, supra note 76, at 111.
171. M. Annette Jaimes, Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in North America, in NATIVE AMERICANS AND PUBLIC POLICY 116-17 (Fremont J. Lyden & Lyman H. Legters eds., 1992).
172. Id.
173. See id. at 117.
174. See id. Similarly, in 1920 the federal government imposed a "blood quantum" test to define "Native Hawaiians" for purposes of land distribution. The United States took ownership of all public land in Hawaii through the Annexation Act of 1898. See Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 YALE L. J. 537, 551-53 (1996). The Supreme Court recently decided that Hawaii's use of this criterion in a state election used ancestry as a proxy for race, thereby violating the Fifteenth Amendment. Rice v. Cayetano, 120 S. Ct. 1044, 1048 (2000).
175. See generally PROCTOR, supra note 66.
176. Id. at 106, 108, 132.
177. LOPEZ, supra note 28, at 1.
178. See, e.g., Plessy v. Ferguson, 163 U.S. at 537 (segregation of public accommodations held constitutional); Gong Lum v. Rice, 275 U.S. 78 (1927) (segregation of public schools held constitutional); Guinn v. United States, 238 U.S. 347 (1915) (literacy tests for voting held constitutional). The Supreme Court did not hold poll taxes unconstitutional until 1966. Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966).
179. See generally LOPEZ, supra note 28.
180. 260 U.S. at 197.
181. United States v. Bhagat Singh Thind, 261 U.S. 204, 214-15 (1923).
182. Id. at 209, 211.
183. In much the same context, Walter Rosenberg, head of the Department of Socialist Affairs of the National Socialist Party, stated; "Law is what the Aryan man deems to be right; legal wrong is what he rejects." JANOWSKY & FAGEN, supra note 17, at 193.
184. United States v. Bhagat Singh Thind, 261 U.S. at 215.
185. Gordon, supra note 30, at 251.
186. See KAPLAN, supra note 25, at 150 (in Nazi Germany); LOPEZ, supra note 28, at 46-47 (in the United States).
187. See KAPLAN, supra note 25, at 150 (in Nazi Germany); LOPEZ, supra note 28, at 46-47 (in the United States).
188. See LOPEZ, supra note 28, at 37.
189. See id. at 37-38.
190. See id. at 38.
191. See id.
192. See MICHAEL C. LEMAY, FROM OPEN DOOR TO DUTCH DOOR: AN ANALYSIS OF U.S. IMMIGRATION POLICY SINCE 1820, at 81 (Ku Klux Klan supports bill), 84 (House Committee majority wants immigrants like "Aryan" forbears) (1987). Although President Coolidge could have vetoed this law, it clearly did not go against his beliefs. A few years earlier, in an article exploring which groups should be allowed to immigrate to the United States, he wrote: "There are racial considerations too grave to be brushed aside. . . . Biological laws tell us that certain divergent people will not mix or blend. The Nordics propagate themselves successfully. With other races, the outcome shows deterioration." ALLAN CHASE, THE LEGACY OF MALTHUS: THE SOCIAL COSTS OF THE NEW SCIENTIFIC RACISM 175 (1977).
193. See MICHAEL C. LEMAY, FROM OPEN DOOR TO DUTCH DOOR: AN ANALYSIS OF U.S. IMMIGRATION POLICY SINCE 1820, at 81 (Ku Klux Klan supports bill), 84 (House Committee majority wants immigrants like "Aryan" forbears) (1987). Although President Coolidge could have vetoed this law, it clearly did not go against his beliefs. A few years earlier, in an article exploring which groups should be allowed to immigrate to the United States, he wrote: "There are racial considerations too grave to be brushed aside. . . . Biological laws tell us that certain divergent people will not mix or blend. The Nordics propagate themselves successfully. With other races, the outcome shows deterioration." ALLAN CHASE, THE LEGACY OF MALTHUS: THE SOCIAL COSTS OF THE NEW SCIENTIFIC RACISM 175 (1977).
194. See LEMAY, supra note 175, at 86.
195. See id. at 91.
196. Frances Hassencahl, Harry T. Laughlin: Expert Eugenics Agent for the House Committee on Immigration and Naturalization 1921-1931, at 228 (1970) (unpublished Ph.D. dissertation, Case Western University) (on file with author).
197. Id. That quota was lifted in 1965. See LOPEZ, supra note 28, at 38.
198. See LEMAY, supra note 175, at 91. The quotas allotted to all of Asia, Africa, and Oceania increased during this period from less than one thousand in 1921 to 3,233 in 1929. See id. However, this higher number represents only 2.14 percent of the total immigrant population allowed into the United States in 1929. See id.
199. ADOLF HITLER, MEIN KAMPF 439-40 (1927).
200. PROCTOR, supra note 66, at 173.
201. See id.
202. See id. at 100.
203. See id. at 97.
204. See EDWARD J. LARSON, SEX, RACE, AND SCIENCE: EUGENICS IN THE DEEP SOUTH 121 (1995).
205. See id.
206. See id. at 119.
207. See PROCTOR, supra note 66, at 99-100.
208. See id. at 16.
209. See id. at 99.
210. Id. at 101.
211. See id. at 50, 58.
212. See LARSON, supra note 186, at 146.
213. See PROCTOR, supra note 66, at 349 n.115.
214. See Hassencahl, supra note 178, at 179, 190, 227.
215. See id. at 350.
216. Id. at 353. Although two European universities that were invited to the ceremony refused to send representatives, all twenty US colleges and universities which received invitations accepted, including Harvard and Columbia. Id. at 352-53.
217. See PROCTOR, supra note 66, at 212.
218. See May Opitz, The Germans in the Colonies, in SHOWING OUR COLORS: AFRO-GERMAN WOMEN SPEAK OUT 21 (May Opitz et al. eds., 1986).
219. Id. at 25.
220. See ADAM HOCHSCHILD, KING LEOPOLD'S GHOST 282 (1998).
221. See Donald G. McNeil, Jr., Its Past on Its Sleeve, Tribe Seeks Bonn's Apology, N.Y. TIMES, 31 May 1998, § 1, at 3.
222. Jon Swan, The Final Solution in Southwest Africa, 3 MHQ: Q. J. MIL. HIST. 36, 54 (1991).
223. See Keith L. Nelson, The "Black Horror on the Rhine": Race as a Factor in Post-World War I Diplomacy, 42 J. MODERN HIST. 606, 611 (1970).
224. See Sally Marks, Black Watch on the Rhine: A Study in Propaganda. Prejudice and Prurience, 13 EUR. STUD. REV. 297, 298 (1983).
225. Nelson, supra note 205, at 615-16.
226. Marks, supra note 206, at 301.
227. See id. at 314-16.
228. Id. at 302. Both US and German investigators discovered that, in fact, German women were chasing the African soldiers; many of the latter complained to their superiors about this harassment. See id.
229. See Opitz, supra note 200, at 47, for a picture of the medal.
230. Nelson, supra note 205, at 623.
231. There were other Afro-Germans besides these children. See, e.g., HANS J. MASSAQUOI, DESTINED TO WITNESS: GROWING UP BLACK IN NAZI GERMANY (1999) (child of German woman and African diplomat in Germany). Others were African immigrant workers and their children. See generally Opitz, supra note 200.
232. There were other Afro-Germans besides these children. See, e.g., HANS J. MASSAQUOI, DESTINED TO WITNESS: GROWING UP BLACK IN NAZI GERMANY (1999) (child of German woman and African diplomat in Germany). Others were African immigrant workers and their children. See generally Opitz, supra note 200.
233. PROCTOR, supra note 66, at 197.
234. See HITLER, supra note 181, at 325.
235. ADOLF HITLER, SECRET CONVERSATIONS: 1941-1944, at 527 (1953).
236. ADOLF HITLER, HITLER'S SECRET BOOK 105 (1961).
237. HITLER, SECRET CONVERSATIONS, supra note 216, at 510.
238. MILLER, supra note 3, at 15.
239. See Karl Loewenstein, Law in the Third Reich, 45 YALE L. J. 779, 799 (1936).
240. PROCTOR, supra note 66, at 114.
241. See Czarnowski, supra note 51, at 119.
242. FRIEDLANDER, supra note 19, at 152-53.
243. Id.
244. See Doris Reiprich & Erika Ngambi Ul Kuo, Our Father was Cameroonian, Our Mother, East Prussian, We Are Mulattoes, in SHOWING OUR COLORS: AFRO-GERMAN WOMEN SPEAK OUT 66 (May Opitz et al. eds., 1986).
245. See id. at 58-64.
246. See MICHAEL BURLEIGH & WOLFGANG WIPPERMANN, THE RACIAL STATE: GERMANY 1933-1945, at 130 (1991).
247. See generally MASSAQUOI, supra note 213.
248. See BURLEIGH & WIPPERMANN, supra note 227, at 130.
249. See PROCTOR, supra note 66, at 114.
250. See Reiprich & Ngambi Ul Kuo, supra note 225, at 66-68.
251. Magupye Kassj, Fremdwahrnehmung Deutschland: Afrika im Kontext des Nationalsozialismus 10 (Africans held in Mauthausen, Ravensbrhck, Dachau, Neuengamme) (unpublished article on file with author).
252. ROBERT JAY LIFTON, THE NAZI DOCTORS: MEDICAL KILLING AND THE PSYCHOLOGY OF GENOCIDE 62-68 (1986).
253. MASSAQUOI, supra note 213, at 261.
254. See id.
255. See PROCTOR, supra note 66, at 117.
256. See ARTHUR D. MORSE, WHILE Six MILLION DIED: A CHRONICLE OF AMERICAN APATHY 94 (1968).
257. See id. at 134-35.
258. See id.
259. Id. at 135-37.
260. See id. at 130-31.
261. Id. at 145.
262. See LOPEZ, supra note 28, at 203-08 (list of racial prerequisite cases between 1878 and 1944).
263. See KAREN BRODKIN, HOW JEWS BECAME WHITE FOLKS AND WHAT THAT SAYS ABOUT RACE IN AMERICA 27-28 (1998).
264. See id. at 30-34.
265. See James R. Barrett & David Roediger, Inbetween Peoples: Race, Nationality and the New Immigrant Working Class, in AMERICAN EXCEPTIONALISM?: US WORKING.-CLASS FORMATION IN AN INTERNATIONAL CONTEXT 199 (Rick Halpern & Jonathan Morris eds., 1997).
266. See BRODKIN, supra note 243, at 36-51.
267. See id. for an explanation of how the federal government denied these same education and housing benefits to African-American veterans. Brodkin suggests that the progress of lews in the US has been the rise from "off white" to "white." Id. at 1. To the extent she is talking about public creation of racial identity, she is right. She is not addressing, however, state-created identity, which has always considered Jews as "white."
268. See Estelle T. Lau, Can Money Whiten? Exploring Race Practice in Colonial Venezuela and its Implications for Contemporary Race Discourse, 3 MICH. J. RACE & L. 417, 451-54 (1998).
269. See 62 FR 58782, 58786 (1997).
270. See, e.g., MILLER, supra note 3, at 24; PROCTOR, supra note 66, at 204.
271. See, e.g., MILLER, supra note 3, at 24; PROCTOR, supra note 66, at 204.
272. See, e.g., MILLER, supra note 3, at 24;
273. PROCTOR, supra note 66, at 204.
274. See, e.g., MILLER, supra note 3, at 26-28.
275. See, e.g., id. at 40. One German newspaper told its readers that "for the first time in centuries, the Jew has been forced to change his lifestyle; for the first time, he is required to work. For this purpose, Jews have been organized into forced labor brigades." PROCTOR, supra note 66, at 205.
276. STEFAN KÜHL, THE NAZI CONNECTION: EUGENICS, AMERICAN RACISM, AND GERMAN NATIONAL SOCIALISM 98-99 (1994).
277. See PROCTOR, supra note 66, at 117.
278. Johnpeter Horst Grill & Robert L. Jenkins, The Nazis and the American South in the 1930s: A Mirror Image? 58 J.S. HIST. 693 n.66 (1992).
279. See id. at 688-89. The black press also noticed, and criticized, Nazi oppression of Africans and Afro-Germans. See id. at 690.
280. However, as lames Baldwin suggested, it was white listeners who were surprised and upset, not African-Americans. See BALDWIN, supra note 1.
281. See, e.g., NOEL ICNATIEV, HOW THE IRISH BECAME WHITE (1995).
282. JAMES W. LOEWEN, THE MISSISSIPPI CHINESE: BETWEEN BLACK AND WHITE 59, 96 (1971).
283. See id. at 96.
284. Barbara Jeanne Fields, Slavery, Race and Ideology in the United States of America, 181 NEW LEFT REV. 95, 117 (May/June 1990).
285. MILLER, supra note 3, at 3.
286. Id.
287. See Johnson & Farrell, supra note 80.
288. See BRODKIN, supra note 243, at 74-75.
289. DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 33 (1993).
290. See id. at 33, 49.
291. See id. at 223.
292. See id. at 17-57.
293. Id. at 132.
294. See MARC MAUER, RACE TO INCARCERATE: THE SENTENCING PROJECT 124 (1999).
295. See id. at 124-25.
296. See id. at 125.
297. See id. at 118-19. In 1990, only 12.1 percent of the US population was black. See Claudette E. Bennett, Selected Tables from "The Black Population in the United States: March 1994 and 1993" (U.S. Department of Commerce, Economics and Statistics Administration, Bureau of the Census) (visited 13 Aug. 2000) 〈http://www.thuban.com /census/index〉 (on file with author).
298. See id. at 118-19. In 1990, only 12.1 percent of the US population was black. See Claudette E. Bennett, Selected Tables from "The Black Population in the United States: March 1994 and 1993" (U.S. Department of Commerce, Economics and Statistics Administration, Bureau of the Census) (visited 13 Aug. 2000) 〈http://www.thuban.com /census/index〉 (on file with author).
299. See MAUER, supra note 272, at 186.
300. See id.
301. See Jamie Fellner & Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 8 (The Sentencing Project, Washington D.C., and Human Rights Watch, New York 1998).
302. See MAUER, supra note 272, at 118-70. A recent study of minority youth in California shows differential treatment in the criminal justice system at every stage of the process. For example, a comparison of white and black youth charged with the same offense, and with no prior admission to jail, showed that black youth were six times more likely to be jailed than white youth. In drug offense cases, so many more black youth were referred from juvenile to adult court than similarly situated white youth and that black youth had a 24 percent "waiver disadvantage," compared to a 24 percent "waiver advantage" for white youth. These disadvantages accumulate over time. As a result, black youth are the largest proportion of any racial or ethnic group that is locked up. Eileen Poe-Yamagata & Michael A. Jones, And Justice for Some: Differential Treatment of Minority Youth in the Justice System 1-3 (Youth Law Center, Washington D.C., April 2000).
303. See MAUER, supra note 272, at 118-70. A recent study of minority youth in California shows differential treatment in the criminal justice system at every stage of the process. For example, a comparison of white and black youth charged with the same offense, and with no prior admission to jail, showed that black youth were six times more likely to be jailed than white youth. In drug offense cases, so many more black youth were referred from juvenile to adult court than similarly situated white youth and that black youth had a 24 percent "waiver disadvantage," compared to a 24 percent "waiver advantage" for white youth. These disadvantages accumulate over time. As a result, black youth are the largest proportion of any racial or ethnic group that is locked up. Eileen Poe-Yamagata & Michael A. Jones, And Justice for Some: Differential Treatment of Minority Youth in the Justice System 1-3 (Youth Law Center, Washington D.C., April 2000).
304. Fields, supra note 262, at 100.
305. LOPEZ, supra note 28, at 133.
306. For Native Americans, of course, the destruction process is pretty much over. Since Europeans arrived on this continent, their population has been reduced by 98 percent. Before the arrival of Europeans, there were approximately 14 million Native Americans in what are now the United States and Canada; by 1880, that number was reduced to 250,000. See JAMES W. LOEWEN, LIES MY TEACHER TOLD ME: EVERYTHING YOUR AMERICAN HISTORY TEXTBOOK GOT WRONG 74 (1995). See also WARD CHURCHILL, A LITTLE MATTER OF GENOCIDE: HOLOCAUST AND DENIAL IN THE AMERICAS 1492 TO THE PRESENT (1997).
307. For Native Americans, of course, the destruction process is pretty much over. Since Europeans arrived on this continent, their population has been reduced by 98 percent. Before the arrival of Europeans, there were approximately 14 million Native Americans in what are now the United States and Canada; by 1880, that number was reduced to 250,000. See JAMES W. LOEWEN, LIES MY TEACHER TOLD ME: EVERYTHING YOUR AMERICAN HISTORY TEXTBOOK GOT WRONG 74 (1995). See also WARD CHURCHILL, A LITTLE MATTER OF GENOCIDE: HOLOCAUST AND DENIAL IN THE AMERICAS 1492 TO THE PRESENT (1997).
308. William Powers, Oh My!, NEW REPUBLIC, 11 & 18 Aug. 1997,
309. Harry Blauvelt, Begay: New Face of Golf, USA Today, 6 Jan. 2000, at 1C ("full-blooded Native American"); Larry Muhammad, Duplicity, Originality and Questions of Race Leaven "Cookie Cutter," USA Today, 6 Jan. 2000, at 6D ("mulatto . . . butchering blacks"). In an astonishing blend of twentieth century technology and racist delusion, the federal government recently solicited bids for the creation of a "customizable commercial off-the-shelf tribal enrollment data management system" which will produce "automated blood calculations" - software which will provide tribal identification through an "auto-reducing fractional display of blood quantum." "Customizable Commercial Off-The-Shelf Tribal Enrollment Data Management System," U.S. Department of the Interior, Albuquerque, NM (Solicitation No.: SOL K00992300051). Commerce Business Daily, 16 Feb. 1999 (page unavailable online) (on file with author). My thanks to Paul Prasarn, University of Buffalo Law School Class of 2000 for this reference.
310. Harry Blauvelt, Begay: New Face of Golf, USA Today, 6 Jan. 2000, at 1C ("full-blooded Native American"); Larry Muhammad, Duplicity, Originality and Questions of Race Leaven "Cookie Cutter," USA Today, 6 Jan. 2000, at 6D ("mulatto . . . butchering blacks"). In an astonishing blend of twentieth century technology and racist delusion, the federal government recently solicited bids for the creation of a "customizable commercial off-the-shelf tribal enrollment data management system" which will produce "automated blood calculations" - software which will provide tribal identification through an "auto-reducing fractional display of blood quantum." "Customizable Commercial Off-The-Shelf Tribal Enrollment Data Management System," U.S. Department of the Interior, Albuquerque, NM (Solicitation No.: SOL K00992300051). Commerce Business Daily, 16 Feb. 1999 (page unavailable online) (on file with author). My thanks to Paul Prasarn, University of Buffalo Law School Class of 2000 for this reference.
311. Felicia R. Lee, Bracing Views From a Man ot Mysteries, N.Y. TIMES, 20 Mar. 2000, at E1.
312. MILLER, supra note 3, at 9.
313. Id. at 3-4.