The Powerful Social and Legal Construction of Race
Photo Illustration: Humanizing History Visuals. Photos: United States Census Bureau, Library of Congress, National Archives
Welcome to Humanizing History™! Every month, we feature a central theme. Each week, we dive into different areas of focus.
This month’s theme: Race Isn’t Biologically Real, But It Is Socially Powerful
This week’s focus: Racial Literacy 101, or facts we should know about race or culture, but likely weren’t taught.
Today’s edition of Humanizing History™ is around 1,900 words, an estimated 8-minute read.
The Why for This Week’s Topic
For our theme this month, we’re examining the “both/and” of race, or how race is both a biological fallacy and a powerful social reality.
Last week, we briefly reviewed the false biologization of race, including campaigns of pseudoscientific racism.
For this week’s topic, we’ll examine the powerful social reality of race. To break this huge category into a more manageable concept, we’ll highlight key historical moments where race was written into colonial and U.S. laws and policies — an essential framework to begin unpacking how the past informs the present.
Race Is a Social Construct
There are many ways to define and describe race. At its most basic, we may say that race is a social construct.
As a social construct — often swayed by politicized, economic goals of people in power — race has evolved over the centuries, including the categories for racial groups, and the “criteria” used to assign race.
For centuries, race has been used as a way to group people based on phenotype, or perceived physical similarities and differences, like skin color, facial features, and hair texture, as well as other ideas like citizenship, language, religion, nationality, culture.
To get a sense of how race has changed over time, this video may provide a helpful introduction. To understand how racial categories have fluctuated, we can also examine the U.S. Census. Pew Research Center has an engaging, interactive timeline that depicts racial categories in the U.S. Census, as well as a static PDF, which may be of interest.
Race Transformed from a Folk, to a Legal, to a (Pseudo)Scientific Idea
In their book, Racism, not Race, biologist Joseph Graves and biological anthropologist Alan Goodman, describe how race went from a folk, to a legal, to a pseudoscientific idea.
They discuss how race first emerged in Europe during the era of colonization as a “folk idea” — a commonly spread concept that reinforced in-group and out-group status for different groups of people, which was applied to ideas of kinship and lineage as well as religion, expanding to phenotype and physical appearance. It wouldn't be the first time in world history that people noted differences, or applied “in-group” and “out-group” thinking, but it would mark an indelible transition: “This folk idea of race slowly emerged over centuries and millennia. By 1492, it had become clear that a shift was in process, from seeing out-groups not as just culturally different but as something more inherent and biologically different.”
Graves and Goodman note how race then became a legal construction: “Fast-forward two hundred years after Columbus’s voyages, and economies throughout the Americas became increasingly dependent on slavery and indentured servitude for labor. To stabilize these systems of oppression, race became legal.” Race was penned into laws, from the colonial era, through the founding of the U.S. and the centuries that followed.
Once race was a legal concept, pseudoscientific campaigns emerged — as we mentioned in last week’s newsletter — to falsely biologize race. They state: “Racist science and theology made the case that races could be classified in a repeatable way and that those innate racial differences were based on biological differences in skin and hair and thought to extend to the inner body and brain. Races became inherent, universal, biological, and hierarchical.”
As we’ve noted, though race is not a biological or genetic truth, for centuries, it has had a monumental impact on human lives.
After Bacon’s Rebellion of 1676, Race Is Baked Into Colonial Laws
Long before the United States was founded, colonial governments of the late 1600s drafted laws that would grant or deny basic rights based on the concept of race.
While there is much historical debate over when race truly emerged in the land that would become the United States, many historians, such as Edmund Morgan and James D. Rice, point to a chapter of colonial Virginia’s history, Bacon’s Rebellion of 1676, as a turning point for the legal consequences of race, race relations, and racial division.
Considered to be the “first popular revolt” in the British Colonies, Bacon’s Rebellion is an event that is often described as a “power struggle” between two leaders: a colonist, Nathaniel Bacon, and the governor of the colony, Sir William Berkely. Bacon led an uprising of hundreds of colonial settlers who faced falling prices for their commodities, like tobacco, and increased taxes. What made the militia unique to historians was how it included European indentured servants and enslaved Africans, and negatively entangled nearby Native communities.
Over the course of months, Bacon and his militia pushed into and raided local Indigenous communities, such as the Pamunkey and Occaneecheee, and eventually razed the capital of Jamestown. The Governor responded with British military reinforcement.
Bacon eventually died from dysentery, and the rebellion dissipated, but, as many historians note, what remained was fear by those who held positions of power: “Bacon's Rebellion demonstrated that poor whites and poor blacks could be united in a cause. This was a great fear of the ruling class — what would prevent the poor from uniting to fight them? This fear hastened the transition to racial slavery.”
After Bacon’s Rebellion, colonial governments began to pass laws that denied or granted basic rights based on the idea of race. According to historian Ira Berlin, “Soon after Bacon's Rebellion they increasingly distinguish between people of African descent and people of European descent. They enact laws which say that people of African descent are hereditary slaves.”
For example, in 1680, the colony of Virginia forbade “Black” people from bearing arms, congregating in large groups, and mandated harsh punishments for enslaved people who assaulted “White” Christian people or attempted to escape. In 1682, Virignia declared that Black people, or people of African descent, were enslaved for life. In 1684, the colony of New York made it illegal for enslaved people to sell their own goods. In 1691, the first “anti-miscegnation” law was passed, which banned interracial marriage, specifically denying marriages between White and Native American people, and White and Black people. (Bans on interracial marriage would be in effect in the state of Virginia until 1967.)
Similar race-based laws would sweep across the British colonies, effectively creating a society that — from this point on, and across centuries — would either grant or deny human rights to individuals, families, and groups of people, based on the fledgling concept of race.
For Centuries, U.S. Laws and Policies Deny or Grant Rights Based on Race
After the United States was founded in the late 1700s, the government continued to pass laws that granted or denied access to civil and human rights based on the social construct of race. There are countless laws and policies, we’ll highlight a few.
In regard to race, there were limits for who was viewed as a full person. According to Article 1, Section 2 of the Constitution, [Black] enslaved people would count as “three-fifths” of a person when tallying the population. (And were considered “zero-fifths” legally.).
In regard to race, there were limits on who could become a citizen. The 1790 Naturalization Act stated that a foreign born person could be a U.S. citizen only if they lived in the U.S. for two years, and were “free and white” and of “good character.”
In regard to race, there were limits on who could vote. In 1789, only “white,” male, property-owning citizens were eligible to vote. This group represented about 6% of the U.S. population at that time.
In regard to race, there were limits on who could immigrate as the borders of the U.S. expanded. For example, even though the Central Pacific Railroad company recruited thousands of Chinese immigrants to build the western portion of the Transcontinental Railroad, the Chinese Exclusion Act of 1882 was passed years later (after the railroads were complete) by the U.S. government, banning immigration of Chinese laborers. This was the first law to ban immigrants based on nationality or “race.” This act endured until 1943, as a new immigration quota was set for China — of about 105 visas per year.
While there are numerous laws we may point to, what becomes clear is that race was baked into the U.S. legal system, and was constructed in such a way that some people were granted rights and others were denied basic rights based on race, or a combination of oscillating factors, from skin color and hair texture, to facial features, to nationality, language, and citizenship.
Race and Housing, The Impact of the Government’s Redlining Policies
Consequential laws and policies, which denied or granted rights based on one’s race, were passed in the 1900s as well. As part of FDR’s New Deal programming during the Great Depression, Congress passed acts that granted or denied access to housing based on one’s perceived race.
In 1933, the Home Owners’ Loan Corporation aimed to “rescue” households that would likely default on current mortgages. In order to assess the “risk” of insuring new mortgage loans, the HOLC created color-coded maps of nearly every major metropolitan area in the U.S. The “safest” area of a neighborhood was colored green, and “riskiest” was colored red, which is why this practice has become known as redlining. As outlined by these acts, only White Americans were allowed to live in green neighborhoods, which, by design, had more access to parks, greenery and water sources, cleaner air, and necessities like grocery stores.
A year later, in 1934, the Federal Housing Authority was created to provide opportunities for “middle class” renters to purchase single-family homes for the first time. These FHA insured bank mortgages often covered 80% of the purchase price, with 20 year terms. However, once again, these loans were primarily granted to White Americans, as the government declared that “incompatible racial groups” were not permitted to live in the same neighborhoods as White Americans. In fact, as described by Richard Rothstein in The Color of Law, to separate neighborhoods by race, the government recommended the use of “natural” and/or “artificial” barriers, such as walls that were a minimum six-foot tall and multi-lane highways.
There was a staggering impact from these unequal housing policies. Between 1934 and 1962, the federal government backed $120 billion of home loans. Of this $120 billion dollars, by design, more than 98 percent went to White Americans only. Home ownership is how the majority of people in the U.S. gain wealth. By systemically denying Black Americans, other People of Color, and low-income White Americnas equal access to housing, the U.S. government also denied equal access to institutions connected to housing, such as local education options and healthy living environments.
Highlighting the resilience of people, even though countless U.S. citizens and residents were denied access to equal housing, it can be noted that against oppressive odds, many still created a sense of home and cultivated their own successful, tight-knit, multigenerational communities.
Resistance and Resilience
It’s important to note that while dehumanizing laws were being passed, there were people who resisted — some took everyday action to preserve dignity, some organized large-scale multiracial movements for Civil Rights.
As a result of such efforts, in regard to racial equality, some of the most consequential laws and policies were passed in the 1960s, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
But we can’t take them for granted. Expected to undo centuries of systemic racism, a handful of laws are holding a lot of weight, and they are actively being chipped away in this country’s highest court — reminding us that Civil Rights are not something that is automatically guaranteed, but something we have to be mindful of and continually advocate for.
In tomorrow’s Special Send, we’re going to highlight someone who devoted their life to campaigning for Civil Rights. We’re confident that you know their name, but you may not know the larger story.
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