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Abstract
This article examines the intersectionality of law and race to argue that law, in its broadest understanding, has played a pivotal role in the performative constitution of racial subjects. This disciplinary regulation, which has operated to “fix” an individual within a racial status under law, has augmented the production of the individual as a raced subject. An analysis of Rhinelander v. Rhinelander, however, illuminates that a defiance of racial performative dictates can render “race” hidden in plain sight. This rendering represents an escape from the regulatory mechanisms of law, posing a counter‐power that threatens to disturb hegemonic whiteness.
Notes
Nadine Ehlers is an instructor in the Department of Critical and Cultural Studies and in the Department of Media and Communications at Macquarie University. The author dedicates the essay to the memory of Maria Ehlers. Correspondence to: Nadine Ehlers, Department of Critical and Cultural Studies, Division of Society, Culture, Media, and Philosophy, Macquarie University, Sydney, 2109, Australia. Email: [email protected]
“Rhinelander Annulment Suit Jury Selected,” Amsterdam News, 11 November 1925, 3.
“Rhinelander Sues to Annul Marriage; Alleges Race Deceit,” New York Times, 27 November 1924, 1.
See Sara Ahmed and Jackie Stacey, who claim that racial difference and “truth” is read off the skin. “Introduction: Dermographies,” in Thinking through the Skin, ed. Sara Ahmed and Jackie Stacey (London: Routledge, 2001), 4.
Both The New York Times [“Call Rhinelander Dupe of Girl He Wed,” 10 November 1925, 1] and New York's leading black newspaper, The Amsterdam News [“Rhinelander Annulment Suit Jury Selected,” 11 November 1925, 3] use this common term of the era to describe the alleged deception of Leonard.
Rhinelander v. Rhinelander, New York Supreme Court, Appellate Division—Second Department (1925) (Transcript Vol. 1, pp. 1–756; Vol. 2, pp. 757–1455).
Stuart Hall, “The Spectacle of the “Other,” ” in Representation: Cultural Representation and Signifying Practices, ed. Stuart Hall (London: Sage, 1997), 245.
Let me assert at this point that the term “whiteness” simultaneously encompasses both the process of being white and an ideological systemic social power supported by practices and beliefs. I utilize the notion of “whiteness” to denote an illusory “entity” of whiteness. I employ this concept not to belie the heterogeneity of that which is referred to as “whiteness,” but rather as a critical tool of analysis.
Dreama Moon argues, “If ‘whiteness’ is constructed … then ‘white’ people must be made.” “White Enculturation and Bourgeois Identity: The Discursive Production of ‘Good (White) Girls’,” in Whiteness: The Communication of Social Identity, ed. Thomas K. Nakayama and Judith N. Martin (Thousand Oaks, CA: Sage, 1999), 178. The argument that I put forth is that all racial subjects are made (and remain as particular racial subjects) through the intricate processes of performativity; performativity is the means of constitution.
Judith Butler, Bodies That Matter: On the Discursive Limits of Sex (New York: Routledge, 1993), 225.
Butler, 121.
Louis F. Mirón and Jonathon Xavier Inda, “Race as a Kind of Speech Act,” Cultural Studies: A Research Volume 5 (2000), 99.
As with every discussion that pertains to “the law,” it is important to recognize that law cannot be reified as a fixed or unitary entity. I do not seek to suggest that “law” as an all‐encompassing being, as it were, has functioned as a sole and resolute monolith. The “law” referred to here always exists within conditional/conditioning moments, sites, and in relation to extra‐legal forces, rather than in any abstract sense. Furthermore, it comprises multiple and combative legal and non‐legal actors and discursive repertoires. (See Ariela J. Gross, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth‐Century South,” Yale Law Journal 108 [October 1998] for a comprehensive discussion regarding the multiple “points” of the construction of race within positive law.) Despite these discordant factors, the imperative of legal practice remained that a distinction based on the binarism of black or white be made. In recognizing this imperative, I suggest that “law” does come to wield a form of unified operation in reference to the question of demarcations of race. Without intending to credit law with a static quality, I will be referring to law in general terms as an accumulation of events, institutional practices and discourses (that have sought and functioned to produce racial division) as they have been specifically located in juridical form. This paper offers a Foucauldian analysis that concentrates on the manner in which law functions as a “technology of power” that has contributed to the production or “making” of racial subjects and the possibilities of contestation. See Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (London: Penguin Books, 1991).
Judy Scales‐Trent, “Racial Purity Laws in the United States and Nazi Germany: The Targeting Process,” Human Rights Quarterly 23 (2001): 261. I want to acknowledge and stress that law contributes in various capacities (not simply the ones analyzed in this study) to fabricating racial identities through initiating and enforcing authorized behaviors. As Ian F. Haney López argues, “Naturalization laws governed who was and was not welcome to join the polity, anti‐miscegenation laws regulated sexual relations, and segregation laws told people where they could and could not live and work.” White by Law: The Legal Construction of Race (New York: New York University Press, 1996), 121. Together these laws fashioned race—what racial subjects look like, the meanings that are attached to these looks, and the material conditions/realities that supposedly “affirm” these meanings (Haney López, 113).
See Leonard Higginbotham and Barbara Kopytoff, “Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia,” Georgetown Law Journal 77 (August 1989): 1983.
Peggy Pascoe, “Miscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth Century America,” The Journal of American History 83 (1996): 51.
Higginbotham and Kopytoff, 1994.
Pascoe, 49. Many analyses of anti‐miscegenation laws focus on the demographics of these laws rather than on the mechanics of the legal restrictions that were imposed. For a detailed list of works that pertain to this topic, see Pascoe 49, note 12. Joel Williamson provides a detailed historical analysis of anti‐miscegenation law demographics (New People: Miscegenation and Mulattoes in the United States [Baton Rouge: Louisiana State University Press, 1995]). See also David H. Fowler who chronicles each law enacted in reference to interracial sex between 1780 and 1930 (Northern Attitudes Towards Interracial Marriage—Legislation and Public Opinion in the Middle Atlantic and the States of the Old North‐West, 1780–1930 [New York: Garland, 1987]).
Cheryl Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993): 1725.
Winthrop Jordan, White over Black: American Attitudes toward the Negro, 1550–1812 (Baltimore, MD: Penguin Books, 1969), 165–66.
As Judy Scales‐Trent (266) claims, in the US, “the language of descent [was used within these various laws] in an effort to transform the socio‐legal categories [it was] creating into biological categories.”
For 1705, see Ch. XLIX, 3 Laws of VA. 447, 453 (Hening 1823) (enacted 1705). This law was re‐enacted in 1753 and, again, in 1848. For 1785, see Ch. LXXVIII, 12 Laws of VA. 184, 184 (Hening 1823) (enacted 1785; effective 1787). For 1866, see Act of 27 Feb, 1866, ch. 17, Sec. 1, 1865–1866 Va. Acts 84; see Paul A. Lombardo, “Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia,” U.C. Davis Law Review 21, Winter (1988), 444. For 1910, see Act of 17 March, 1910, ch. 357, 1910 Va. Acts 581. For 1924, see “An Act to Preserve Racial Integrity,” Act of 20 March, 1924, ch. 371, 1924 Va. Acts 534. On the federal level, for example, by the 14th Census of 1920, the notion of the “one‐drop rule” was uniformly instituted. The census enumerators were compelled to become genealogical psychics, whereby they effectively had to guess at the ancestry and, hence, racial status of a subject simply by looking at them. With this census, the counting of “mulattoes” was formally dismissed. For further information, see Bureau of the Census, US Dept. of Commerce, Fourteenth Census of the United States 1920 at 10 (1923). Regarding hypo‐descent, see F. James Davis, Who Is Black: One Nation's Definition (Pennsylvania: The Pennsylvania State University Press, 1998), particularly pp. 4–5 and 47–50.
For further information on the various mechanisms utilized in order to ascertain racial identity in cases of dispute, see Gross.
Scales‐Trent, 280.
Eva Saks, “Representing Miscegenation Law,” in Interracialism: Black–White Intermarriage in American History, Literature, and Law, ed. Werner Sollors (New York: Oxford University Press, 2000), 68.
Gross, 162 (emphasis added).
Judith Butler, “Critically Queer,” GLQ: A Journal of Lesbian and Gay Studies 1 (1993): 22.
Mirón and Inda, 99.
See my “Passing Phantasms/Sanctioning Performatives: (Re)Reading White Masculinity in Rhinelander v. Rhinelander,” Studies in Law, Politics, and Society 27 (2003): 63–91, where this notion is dealt with in more depth.
Butler, Bodies That Matter, 226. Here, Butler (22) also states that “regulatory power produces the subject it controls, [and] that power is not only imposed externally, but works as the regulatory and normative means by which subjects are formed.”
Butler, Bodies That Matter, 232.
Butler, Bodies That Matter, 225.
Butler, Bodies That Matter, 227.
Moya Lloyd, “Performativity, Parody, Politics,” in Performativity and Belonging, ed. Vikki Bell (London: Sage, 1999), 196.
See Judith Butler, The Psychic Life of Power: Theories in Subjection (Stanford, CA: Stanford University Press, 1997).
Butler, Bodies That Matter, 22.
The racial subject is, thereby, produced through constraint, through the foreclosure of certain performative possibilities, and the compelled (re)citation/(re)production of only certain sanctioned performative utterances. As Butler (Psychic Life of Power, 89) notes, this “compulsory production is its own form of regulation.”
Haney López, 117.
Alan Hyde, Bodies of Law (Princeton, New Jersey: Princeton University Press, 1997), 222.
For example, an increasing fear of miscegenation (and the reproduction of ambiguous racial subjects) is evident in the post‐Civil War South's heightened implementation of anti‐miscegenation statutes and efforts to “patrol fractions of blood” (enforced so as to maintain pre‐war divisions between black and white subjects). See Williamson (90–91) and Fowler.
Butler, Bodies That Matter, 122.
“Mrs. L. Kip Rhinelander in the Social Register Despite Race Assertions in Husband's Suit,” New York Times, 11 March 1925, 1.
“Mrs. L. Kip Rhinelander.”
“What the Rhinelander Case Means to Negroes,” Amsterdam News, 9 December 1925, Editorial and Feature page (emphasis added).
For instance, in remarking on the Rhinelander trial, a commentator for The Amsterdam News (“Rising Above Prejudice,” 9 December 1925, Editorial and Feature page) wrote, “NEGROES, generally look with as much disfavor upon interracial marriage as white people—possibly more.”
Reaching back to the 1830s, New York State enacted an annulment statute authorizing annulments for non‐age, physical incapacity, bigamy, insanity, and fraud or force. Grounds for fraud often included misrepresentations regarding religion and ancestry, false promise of chastity, and false promise to bear children. That these issues were considered to go to the essence of the institution of marriage reflects the social mores and concerns of the day. In terms of racial misrepresentation, however, it is interesting to note that New York State law did not define precisely what a “negro” was (that is, supposed “proportions of blood”).
“Rhinelander's Wife Denies She is Negro,” New York Times, 29 November 1924, 15.
“Rhinelander Bride Fears He is Captive,” New York Times, 30 November 1924, 14; Rhinelander, 1106.
The Standard Star, 5 January 1927.
Rhinelander, 300; Rhinelander, 511; “Rhinelander's Wife Cries under the Ordeal,” New York Times, 24 November 1925, 3.
Rhinelander, 695 (emphasis added).
Earl Lewis and Heidi Ardizzone, Love on Trial: An American Scandal in Black and White (New York: W.W. Norton and Co., 2001), 158.
Rhinelander, 696.
Rhinelander, 1242.
Rhinelander, 1429.
Rhinelander, 1431.
Rhinelander, 1333; Rhinelander, 1302.
Rhinelander, 1290.
Rhinelander, 1433–34.
Jamie Wacks, “Reading Race, Rhetoric, and the Female Body in the Rhinelander Case,” in Interracialism: Black–White Intermarriage in American History, Literature, and Law, ed. Werner Sollors (New York: Oxford University Press, 2000), 162–78.
Unfortunately, the scope of this essay does not enable me to explore the complexity of the ways in which Alice was represented and constructed by actors in this case (most particularly, by the counsels). For an analysis that does do this, see Wacks. For more general discussions of representations of black femininity, see bell hooks, “Continued Devaluation of Black Womanhood,” in Ain't I A Woman? (Boston: South End Press, 1981); Patricia Bell Scott, “Debunking Sapphire: Toward a Non‐Racist and Non‐Sexist Social Science,” in All the Women are White, All the Blacks are Men, But Some of Us Are Brave, ed. Gloria Hull, Barbara Smith, and Patricia Bell Scott (New York: Feminist Press, 1982); Patricia Morton, Disfigured Images: The Historical Assault on Afro‐American Women (New York: Praeger, 1991).
Rhinelander, 1101; Rhinelander, 1350.
Michel Foucault, “The Subject and Power,” in Power: The Essential Works of Foucault 1954–1984, Volume 3, ed. James D. Faubion (London: Penguin Books, 2000), 331.
Butler, Bodies That Matter, 137. Here, Butler argues that agency can be gestured towards in acts which are “an appropriation that seeks to make over the terms of domination … a power in and as discourse, in and as performance, which repeats in order to remake—and sometimes succeeds.”
Ellen Messer‐Davidow, “Acting Otherwise,” in Provoking Agents: Gender and Agency in Theory and Practice, ed. Judith Kegan Gardiner (Urbana: University of Illinois Press, 1995), 23–51.
Butler, Psychic Life of Power, 94.
Sara Ahmed, “She'll Wake up One of These Days and Find She's Turned into a Nigger,” in Performativity and Belonging, ed. Vicki Bell (London: Sage, 1999), 87–106.
Ibid., 101 (emphasis added).
Michelle Burnham, “Loopholes of Resistance,” Arizona Quarterly 49, no. 2 (1992): 53–73.
Burnham, 64.
Burnham, 67.
Martha J. Cutter, “Sliding Significations: Passing as a Narrative and Textual Strategy, in Nella Larsen's Fiction,” in Passing and the Fictions of Identity, ed. Elaine K. Ginsberg (Durham & London: Duke University Press, 1996), 99; note 12.
Butler, Bodies That Matter, 171.
For a detailed analysis of Foucauldian notions of counter‐power and counter‐attack, see Ladelle McWhorter, Bodies and Pleasures: Foucault and the Politics of Sexual Normalization (Bloomington: Indiana University Press, 1999).
Foucault, “The Subject and Power,” 331.
Michel Foucault, “The Ethics of the Concern of the Self as a Practice of Freedom,” in Ethics: The Essential Works of Foucault 1954–1984, Volume 1, ed. Paul Rabinow (London: Penguin Books, 2000), 283; Michel Foucault, The History of Sexuality 1: The Will to Knowledge, trans. Robert Hurley (London: Penguin Books, 1998), 95.
McWhorter, 181.
Butler, Bodies That Matter, 122.