LMartin
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 Posted: Sun 12 Mar 2006 19:37 Post subject: Rearguing the Phipps case |
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| Quote: | REARGUING THE PHIPPS CASE
by Liam Martin
If injustice is real, then it can be shown to violate universal principles of justice.
1. The one drop of blood rule
2. Plessy v. Ferguson parallels
3. Brown v. Board of Education example
4. The Phipps challenge
- - Discriminatory nature of the one-drop rule
……..Reality of multiracial heritage
……..History of the one-drop rule
……..Denial of multiracial heritage
- - Unconstitutionality of the one-drop rule
……..The first amendment
……..The fourth and fifth
amendments
……..The fourteenth amendment
- - Summary of reargument
5. Conclusion
1. The one drop of blood rule
The account of the Susie Guillory Phipps case (Jane Doe v. the State of Louisiana, 1983) never fails to move me. How is it that I see a social injustice done, but others see an unflattering bid for prestige? Even the U.S. Supreme Court saw the case as trivial, not having “a substantial federal question.”
The Phipps case was the motivation for the second essay in my latest book, A Brief History of Social Identity: From Kinship to Multirace. This essay, entitled “Racism and multirace,” is in general a rearguing of this case. It is difficult for a multiracial identified person not to see the Phipps case as also trying a multiracial identity. Mrs. Phipps’ desire that her white racial descent be duly noted on a document that recorded racial data, had to contend with the same ideology --the one-drop (of blood) rule--that a multiracial identity must in seeking to gain legitimacy.
2. Plessy v. Ferguson parallels
One may see the Phipps case as doing for the multiracial community what the 1896 Plessy v. Ferguson did for the black community. The Plessy case legalized “separate but equal” treatment in public accommodations. The Phipps case legalized the segregation of white and black ancestries in individuals. Just as the intention of segregation was to deny access to white used accommodations by blacks, so the point of the one-drop rule is to deny access to white ancestry by multiracials with black ancestry.
Both the Plessy and Phipps case had argued on the grounds of white racial status for multiracial individuals. One of the arguments used in Plessy was that being seven-eighths white, the plaintiff Plessy should be treated as white in public accommodations which then segregated blacks. Similarly, the Phipps case had argued that Mrs. Phipps, being twenty-nine thirty-seconds white, should have her and her parents’ racial designation changed to white on a re-issued birth certificate.
The Phipps case marked the point at which the one-drop rule became literally true. It was the motivation for removing one legal version of Louisiana’s one-drop rule--the “one thirty-second” statute--which had defined discretely how much black ancestry was needed to deny one a white identity, and saw established in its stead another and more stringent.
With the one thirty-second statute there was a point at which the traced amount of black ancestry, though real, became immaterial, a point at which it was seen to lose its believed properties of essence and determinism. Now, if it is shown that one’s black ancestry is less than one thirty-second, one would not be able to change a “colored” designation on a birth certificate--as Mrs. Phipps desired--since by law there is no point at which whiteness escapes blackness.
The “preponderance of the evidence” now “required” to change a racial designation on a birth certificate was not a new legal criterion. What was new was the rule that this evidence applied to. Before, this was the one thirty-second statute, which allowed one to possess known black ancestry less than one thirty-second and still change to “white” a “colored” designation on a birth certificate. Now, with the removal of the one thirty-second statute, the rule that the evidence is applied to is, by default, the literal one drop of blood rule.
Paradoxically, removing the one thirty-second statute from the books brought the one-drop rule to its logical extreme. The defense had expressed “embarrassment” at the one thirty-second statute, suspecting it to be “unconstitutional” and wishing it removed, yet in victory merely restated and reinforced the one-drop rule. Clearly, the embarrassment was not at the literal one-drop rule, but at the little extent to which the one thirty-second statute had rejected the one-drop rule. In other words, what embarrassed the defense was a recognition of mixed race, as muted as it was, in the one thirty-second statute.
3. Brown v. Board of Education example
Both Plessy and Phipps lost their case. But not quite sixty years after the Plessy decision, Brown v. Board of Education struck down the “separate but equal” ruling of 1896. The Brown decision did not argue for rights on the basis of racial status, but sought to show an inherent inequality in the “separate but equal” policy, thereby to prove that the Plessy decision was in violation of the equal protection requirement of the Fourteenth Amendment. Importantly, the inequality demonstrated was an “intangible” one, specifically a “sense of inferiority,” the same sense of inferiority which in 1896 the Plessy decision had denied was caused by segregation. Brown had challenged segregation on the same Fourteenth Amendment that Plessy had, so what had changed to justify desegregation?
For us today, the Plessy decision may seem intuitively wrong, yet in overturning it many critics agree that a convincing legal argument was not given. The Plessy decision was difficult to argue against because it did grant equality to blacks. Inequality could be shown in any particular instance, but the state could always achieve equality by improving school facilities and faculty. To prove inequality one needed to escape this cycle of particulars, and so the Brown decision took an imaginative leap to social science. It cited a study which showed that black children more frequently chose a white doll as beautiful over a black doll. Brown lamented the “sense of inferiority” that this implied and claimed that the underlying cause was segregation. This turned out to be flawed because the study had shown that in the North, which did not have the history of segregation that the South did, the percentage of white dolls chosen as more beautiful was greater. It is also true that for the age group studied, segregation would have had the least impact. The real reason for the children’s alienation and contradiction of themselves was, of course, the one-drop rule which claims that blacks come in all colors, including white. None could bring themselves to admit this because the black community had inculcated this rule--more so in the North--and so were equally guilty of the self-contradiction and self-alienation observed in the children.
The Plessy decision did not violate the Fourteenth Amendment because it did not deny blacks equal protection of the law. The Brown decision, however, was myopic in insisting that it was inequality that had to be proved. Brown also assumed that the amendments specifically written with blacks in mind were the ones that would naturally apply. In hindsight, we can see that the failure in Plessy to bring a successful legal argument against segregation forced the framers of the Brown decision to adopt non-legal arguments. What the framers of this decision did not know was that Brown’s handicap was the particular amendment on which it challenged segregation. It turns out that the Plessy decision was so impenetrable because it violated an amendment which historically had nothing to do with race: the First Amendment.
The logical choice of amendments in challenging the Plessy decision--not looking through the prism of race--would have been one that dealt with assemblage. As it happens, this is the First Amendment. Freedom of association underpins the First Amendment, and it was freedom of association that the Plessy decision restricted. This decision had come out of a dispute over travel accommodations which then required separate train cars for blacks and whites. One can imagine the legal challenge being set up as two clergymen of the same congregation--one white, one mixed race--traveling through Louisiana on church related work, and demanding to sit in the same car. Or two lawyers of the same firm--again one white and one mixed race--traveling through Louisiana on casework, and also demanding to sit in the same car. The first scenario would rely on the freedom of association that was indispensable to the freedom of worship. The second would rely on the more secular concerns of the First Amendment which allows “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This approach would mirror the 1967 Loving v. Virginia case which legalized interracial marriage and which had argued for marriage as a fundamental personal right. In this challenge to the Plessy decision, the fundamental right would be the freedom of association that is intrinsic to the First Amendment.
The First Amendment is concerned with the right of groups--both religious and secular--to exist, their right to have a voice, and the right of individuals to dissent from groups, in other words, with a free marketplace of alliances. The free exercise of religion presupposes alliances of individuals in longstanding groups. So too does the right to assemble and petition. If individuals were able only to assemble in momentary alliances, the right to petition the government would be of little value. The right to form long lasting alliances is fundamental to the First Amendment which recognizes that humans are social beings, that society itself is an alliance of individuals, and that the interests of individuals are often best served in groups, especially in transactions with their government, which is, after society itself, the most important alliance. And so the First Amendment expressly prohibits the government from impeding individuals in their forming of alliances and groups.
Because the First Amendment guarantees a free marketplace of alliances, segregation is automatically precluded. On the other hand, since in principle separation will preserve equality, the Fourteenth Amendment, which grants equality, is on its own a weak--even futile--argument against segregation. The role of the Fourteenth Amendment in the argument against Plessy is to give blacks and multiracials access to the First Amendment through citizenship. Challenged on the Fourteenth Amendment, the Plessy decision confidently rejected the charge that it was denying equality. Challenged on the First Amendment it would not have been able to deny that it was restricting the right to form associations, but would have had to say why it needed to curtail a constitutional right. The answer, and the primary argument in Plessy, was that legislation was helpless in the face of social prejudice and could only accommodate to it.
To reject this argument is not to impose personal morality (as the Plessy decision asserted), but to uphold the First Amendment. The public space is a neutral meeting ground, and to allow within it freedom of association does not amount to “enforced commingling.” Norms of civil conduct and respect for each individual’s person are incumbent on everyone. When these are breached then one may resort to the police power of the state, but to universally deny a constitutional right before any legal violation has occurred cannot be justified. It was irrelevant, as the Plessy decision insisted, that whites (and blacks) did not want the association. Equal denial of a fundamental right may not violate the equal protection requirement of the Fourteenth Amendment, but (as Loving v. Virginia would indicate) it does deny the root of the Fourteenth Amendment which grants these rights on the sole condition of citizenship.
The freedom of association that the First Amendment depends upon is unrestricted enough to extend across any racial divide--natural or man-made, and unrestricted enough to resist any coerced association within any race--natural or man-made. To let stand the Plessy decision is to deny to every citizen this first of personal freedoms. One may not preclude freedom of association for everyone. One cannot assume the personal prejudices of some or even many to be the lot of all. The Plessy decision made that choice not only for every Louisianan, but for every citizen of the United States who may travel to Louisiana, and for every generation of citizens. Where else may “the two races … meet upon terms of social equality, …the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals” except in the public space? Yet in the Plessy decision, the freedom of association is precluded everywhere and forever.
To separate the public space on so arbitrary a basis as ancestry that at times cannot even be discerned makes a mockery of that “unalienable liberty” so central to the Declaration of Independence and secured to every citizen by the Constitution, and made available by the Fourteenth Amendment to all who are born in this country. That the Fourteenth Amendment was passed by the same court which passed laws supporting segregation was never an argument in favor of segregation since it was the First Amendment, and not the Fourteenth, that segregation violated. It was just these laws supporting segregation that the Plessy decision would use as legal precedents. But these precedents were never grounded in first legal premises--the Constitution and the first intentions in the Declaration of Independence. Though any system of legal premises does not necessarily contain the justification for every social ideal, there is no doubt that the premise of the First Amendment justifies a nonsectarian public space.
As it is, the Brown decision seems gratuitous, not deriving (with any certainty) the inclusion of the one group from the general principles that define the humanity of the other group. Thirteen years later, Loving v. Virginia would show the confidence and directness that many would have liked to see in Brown. In resorting to social science, the Brown decision essentially sidestepped the issue of race that Loving v. Virginia looked squarely in the face with its verdict that racial classification is too unsupported a basis on which to deprive someone of so fundamental a right as marriage. The Brown decision--in resorting to social science--missed the opportunity to base all of the subsequent opening of the society (including the Civil Rights Act) directly on Constitutional law and legal precedent in a verdict as incontrovertible as that of Loving, namely that racial classification is too unsupported a basis on which to restrict the freedom of association so fundamental to the First Amendment.
4. The Phipps challenge
Segregation was the legacy of slavery. It had sought to preserve as much of the alienation of slavery as was possible. Segregation would find in the one-drop rule the means to achieving its goal. But strangely enough, as intolerant as the one-drop rule was, it did not come out of slavery or out of segregation, or even out of the South. It had come out of the abolitionist movement in the North.
Segregation was the central concern of the Plessy and Brown cases. Plessy had established it, Briwn had reversed it. With segregation removed, the one-drop rule was exposed. Where once this rule had been the means to an end, now it was seen to be an end in itself. It turned out that many saw it as necessary to a black identity, much as before many had seen segregation as necessary to a white identity. This strange bedfellow of segregation would be the central concern of the Phipps case. Thirty years after Brown, it would be challenged openly in court.
The Phipps case and its appeals occurred a generation ago (1983-1986). How would it be argued differently today, especially in light of Brown v. Board of Education and the rise of the multiracial movement?
The demand of Mrs. Phipps was that her birth certificate be changed to show her parents’ and her race as white. It had been recorded as “colored” in 1934 when Mrs. Phipps was born.
The opposing argument was that Mrs. Phipps’ birth certificate was a historical record and as such could not be altered--unless it was shown to have been in error. The defense strategy was to investigate Mrs. Phipps’ genealogy and show that she did in fact have “Negro” ancestry--actually three thirty-seconds, which is more than the one thirty-second established by a 1970 Louisiana statute.
This rearguing of the Phipps case will prove error in the original designation by showing that the one-drop and one thirty-second rules are violations of constitutional freedoms.
Discriminatory nature of the one-drop rule
Reality of multiracial heritage
The major shortcoming in Mrs. Phipps’ counsel was not to see that her multiracial heritage was the foundation for her white identity; that she was a multiracial person with claims to a white identity, and not a white person who was denied a white identity.
The presiding judge had conceded that Mrs. Phipps was multiracial. This was an acknowledgement, though casual, of her white ancestry. Mrs. Phipps needed to have seized upon this concession and not let the court retreat from it. She needed to have built upon it--pursue the question, How did persons accepted by the court as multiracial acquire a black identity?
The genealogical record gathered by the defense did not prove that Mrs. Phipps was black, but that she was multiracial. Yet the one-drop rule dictates that a multiracial person can reclaim her racial integrity only through a black identity. How did this rule come about, and why?
History of the one-drop rule
With the slaves freed, and their humanity recognized, the status of blacks was thus raised. To preserve its own status, the former slave-owning class sought to create greater distance between itself and blacks. Social segregation was the result.
The goal of segregation could not be accomplished without a means of determining who exactly was to be segregated. The latter was important because of the existence of mixed individuals. Though the South had its own tradition of the color line, which was based largely on physical appearance, it would end up with a much more indiscriminate treatment of black ancestry: the one-drop rule.
The Phipps case is significant because it marked an instance where the one-drop rule replaced the color line. This struggle between the older color line and the one-drop rule had been going on since the end of slavery. The one-drop rule embraced the extent to which the color line had segregated black ancestry, but went much further. Where the color line--as its name suggests--was based largely on appearance, the one-drop rule--again, as its name suggests--demanded that even imperceptible amounts of black ancestry must alienate individuals forever from white ancestry. The color line had been enforced by whites, the one-drop rule would be enforced by blacks. The Phipps case marked, literally, a changing of the guards, the handing over of responsibility for racial segregation from whites to blacks.
This victory of the one-drop rule was an important milestone in the balance of power between blacks and whites. The two populations had been in conflict with each other since their fateful encounter. Each demonized the other’s ancestry, one socially, the other morally, producing two sides to the “one-drop rule.” On one end, whites viewed black ancestry as socially degrading. This is the traditional “one-drop rule” or color line. But there was a black backlash to complement this.
Blacks saw any acknowledgement of white ancestry as morally reprehensible. They could not help receiving the mixed race who were rejected by the color line, but they could denounce those who acknowledged white ancestry. In other words, blacks made a claim of moral superiority against the white claim of social superiority. It is this latter version, the black form of the “one-drop rule,” that would prevail, displacing the color line based on appearance that had been used by whites.
The color line was not a new invention of American slavery. Before the Civil War, the attitude in the New World toward blacks was similar to that toward other subjugated populations throughout history. Like Africans in Arab and Boer Africa, like aborigines in Australia, and like Dravidians in ancient India, black ancestry was accepted into the ruling class, but not blacks themselves.
What was unprecedented in history was the moral backlash to slavery that occurred in North America. The defense of the lowest level of society surpassed what had occurred earlier in Buddhism, Christianity and Islam. It would stamp black ancestry with a moral authority that has remained to this day, imbuing it with such moral force that, in essence, it gave it a soul. This moral authority would inspire one of the great military campaigns in history: the American Civil War. It would ride with the Union Army south, and be just as victorious.
The abolitionist movement made a claim of moral superiority against the white claim of social superiority. Just as at the time the Federal government was conscripting citizens to fight in the Union Army, so the abolitionist movement was conscripting multiracials by appealing to racial conscience. Here also was laid the foundation for the later popular literary theme of the “tragic mulatto” who always met with misfortune when identifying as white. The one-drop rule did not have an obscure origin, but came out of this very public sermonizing against slavery.
The one-drop rule was a claim of moral superiority because it demanded moral authority from all black ancestry without exception, and denied it to all white ancestry without exception. The result was that white ancestry was cast as so morally depraved, it could no longer hold its own in the proximity of black ancestry.
There is definitely a moral authority to the black struggle in America. That cannot be denied in itself, or as a reason why the one-drop rule gained nationwide acceptance. Black identity, even employing the one-drop rule, was as convinced of its rightness as white identity was convinced of its social superiority. Multiracials were drawn to it as much from appeal as from the fear of denouncement.
The one-drop rule was simply on the winning side of the Civil War. Before the war, multiracials were either black or white. But the war was fought to vindicate those whose black ancestry had assigned them the same fate as blacks. Those who carried a white identity were defeated. It is this victory of the black identified multiracial that lies at the foundation of the present day one-drop rule.
In legally implementing the one-drop rule, the South was surrendering to the North and accepting its conditions. Where before black ancestry had been impotent, now it had become the symbol of a great victory and a victorious army, and a reminder to the South of it’s defeat, a defeat it would not be able to live down for generations.
It was inevitable that the lines along which the South erected social segregation was the one-drop rule with which the North had enshrined black ancestry. The Union Army had pillaged and burned the South in the name of abolition. It was this which cowed the South into accepting the one-drop rule.
The one-drop rule was the conscience left behind by the Union Army when it retreated. It remained to spook the South, to have it purge itself of black ancestry (real and imagined), and thereby its compassion.
The South would stubbornly continue to resist the North’s integrationist demands. Even after Brown v. Board of Education when segregation was removed, the one-drop rule did not disappear, but revealed its true home in the black community, and its motivation in claims of moral superiority.
Denial of multiracial heritage
In refusing to see Mrs. Phipps as a victim of Jim Crow, the defense was asserting that the one-drop rule was not a product of the tradition of white discrimination, but of the black liberation movement.
Unlike the color line which was based in social status considerations, the one-drop rule is based in moral considerations. But this does not redeem it. The commitment to the one-drop rule has made the black liberation movement intolerant of the very diversity it demands of the white tradition. Its use of the one-drop rule recalls the way Christians once imposed their identity on Jews during the Spanish Inquisition.
The fact that blacks think such intolerance of diversity is justifiable, shows the extent to which the black tradition has been democratized. While this and other minority traditions have demanded inclusion into the mainstream society--and so have forced democratization upon it--they themselves have not had to open up their own traditions.
Whites have been sensitized to diversity much more than blacks, and are more likely to refrain from applying the one-drop rule once it is pointed out to them. Those that continue to apply it, almost always do so in deference to blacks. Of course, those who readily become sensitized to the one-drop rule may be welcoming the lifting of the moral sanction that has been placed on white ancestry. But while whites have had to give ground on their traditional claims to social superiority, blacks have not had to similarly give ground on their own claims to moral superiority.
The one-drop rule is a claim of superiority as intolerant in the moral realm of white ancestry, as white claims of superiority was intolerant in the social realm of black ancestry. The result is that citizens of a modern democracy are compelled to obey the mores of a minority tradition that lacks the sensitivity and sensibility that come with a democratic heritage.
Unconstitutionality of the one-drop rule
The second major shortcoming of Mrs. Phipps’ counsel was not to identify a specific civil right or constitutional guarantee that was denied her. Without this, her counsel could level only the abstract charge of racism, rather than speak to actual discrimination.
The First Amendment
The First Amendment is not only the most logical choice on which to challenge segregation because both concern freedom of association, it is also the most logical choice on which to challenge the one-drop rule because both concern ideology--its imposition and the freedom from it.
The First Amendment grants to Mrs. Phipps the freedom to express the most basic social truths about herself--her heritage, her family and her body. Not even the U.S. Government may suppress such basic realities about a person, yet that is exactly what was done.
The original intent of the First Amendment is clear. It was because religion had a tendency to limit speech that congress was not allowed to endorse it. Religion itself limited speech because its truth was revealed, and did not allow the reason that doubt, debate and dissent brought, which was the way that congress was to arrive at its laws.
It was the irrational--embraced through faith and belief--that congress needed to avoid. This, however, is the nature of the one-drop rule. This rule makes claims that can only be embraced on faith. Not only is there no evidence for its claims that black ancestry exists as an essence, is incompatible with every other ancestry, and is deterministic in behavior and psychology, but all the evidence that science has accumulated positively disproves them.
The argument that race is social and cultural perceptions that need not be grounded in any evidence automatically qualifies it as an ideology akin to religious notions like creationism. The First Amendment is circumvented when the state seeks to pass off as factual truth what is so clearly moral allegiance to a belief system.
For the state to wield this distorting ideology means that ordinary citizens are hopelessly overruled in expressing primary truths about themselves and their society, and this can only be seen as an undue restriction on their First Amendment freedoms.
Mrs. Phipps’ counsel was right in that Mrs. Phipps’ race was what it appeared to be, white, and that it was the defense, who assumed it was something beyond appearances, who needed to prove otherwise; that what is seen does not have to be proven, but what is unseen and believed to exist that must be proven. It was the defense who needed to prove that this deep-race, which defied appearances, exists, and how it came to be through the one-drop rule, of which one version was the 1970 one thirty-second statute.
Whatever science may say about race, it is certain that the deep-race produced by the one-drop rule does not exist, that all its properties are false: that there is no genetic essence to any human population, that there is no incompatibility among human genetic inheritance, and that there is no determinism to this inheritance that differentiates human populations.
Multiracials are no more a part of the black race than they are a part of the white race. Social and cultural perceptions that deny basic realities, and the First Amendment guarantees to these realities, amount to a social program of disinformation, and must not be indulged in by any level of the government.
The actual original birth certificate is a historical record and should not be altered, but as such it belongs in a museum. For the state which gives Mrs. Phipps the right to express her conscience and preserve her person in so reasonable a way by designating herself as white, to then issue her a working document that undermines that right and continues the ignorance of a repudiated era, is a gross contradiction.
The Fourth and Fifth Amendments
The segregation of racial ancestries, or in other words, the one-drop rule, may seem trivial to many (including the U.S. Supreme Court), but they must remember that this segregation applies to real individuals, to people who must acknowledge it in themselves.
It is the neighborhood of one’s own body, the institution of one’s own family, and the society of one’s own heritage that one must suffer the indignity and even inhumanity of being evicted from because it is deemed too excusive, too high-born and too cultured. For such persons, Fourth and Fifth Amendments’ concerns of right to privacy cannot but become powerful and undeniable, for it is one’s own person, one’s very self that one is deprived of and made insecure in.
How can you be secure in your person when nine-tenths of what you are are taken without permission and for no crime committed? How can you be secure in your papers when your very first paper, the one that recorded your birth, is a deliberate untruth? How can you be secure in your house when nine-tenths of your inheritance are taken because you are deemed by illegitimate birth to deserve only one-tenth? How can you be secure in your effects when nine-tenths of what you identify with are denied you, and you are told to compensate by loving the remaining one-tenth nine times as much? How is your person respected when you are compelled to alienate and contradict yourself?
One may object that these are ancestral considerations and do not pertain to the immediate context of the Fourth and Fifth Amendments--to one’s physical person, house and material possessions. The response must be that too much of what a person is, both physically and culturally, comes through ancestry to deny that ancestry is an inseparable part of one’s person; too much of what is termed “way of life” for any government to be contradicting and alienating ancestry.
There can be no doubt that it is one’s person that is invaded. There can be no doubt that it is one’s private possessions that are seized. And though these searches and seizures are psychological in nature, make no mistake about it, they are searches and seizures, and they are unreasonable, and no less destroy the security in one’s person.
The white parentage of the multiracial community is a simple fact. Denying it is the error recorded on the original birth certificate and that needed to be corrected. To claim that the racial character of the child is important enough to be recorded--that it is the clearest indicator of genetically determined medical conditions-- and then claim that that character is so whimsical (so “subjective”) that it can be alienated and contradicted is not only nonsensical, but injurious to the person of Mrs. Phipps. To claim to record the racial birth of a child on, of all things, a birth certificate, but to deny the child’s racial paternity is error of the first degree.
This contradiction in the defense argument concerning the central notion of race--that race is both real and not real, both objective and subjective--this alone must undermine the defense case. If the court wished to preserve racial data as a legitimate record, it could only do so on the basis of biological inheritance. In that case, a white identity for Mrs. Phipps and her parents on her birth certificate would have been appropriate.
The Fourteenth Amendment
The legal enforcement of the one-drop rule, as in the Phipps case, defers to black interests. What are the advantages for blacks in advocating the one-drop rule? First of all, the one-drop rule neutralizes a lot of whiteness that could potentially be used against blacks. And secondly, it gains a lot of human capital to promote and defend black interests. The problem with using the one-drop rule to gain these advantages is that it violates individual freedoms.
In the first instance--in neutralizing whiteness--you are using a methodology to combat discrimination in multiracials that is different from the one--the law--that is used to combat discrimination in whites; you are presuming multiracials guilty before they act. That is a violation of the Due Process Clause of the Fourteenth Amendment.
In the second instance--gaining human capital--you are deciding that some people, and not others, are obligated to support a particular cause. However noble the cause, this has no legal justification. In this instance it is a violation of the Equal Protection Clause of the Fourteenth Amendment.
The designation “colored” denies and suppresses the reality of multiracial heritage. White identity reflected the greater truth of Mrs. Phipps and her parents’ social reality; and it made sense for purposes of tracing genetically determined medical conditions, white being their overwhelming genetic inheritance. This last would be lost to a medical researcher looking at birth records. It would lead to unequal access to medical treatment not because of personal bias on the part of medical practitioners but because of a policy of the state, thereby violating the Fourteenth Amendment’s equal protection requirement.
Even if one assumes the best of intentions on the part of the defense, that race denotes vulnerability to the discrimination that mere knowledge of an unseen ancestry can bring, that would not change the fact that First, Fourth and Fifth, and Fourteenth Amendments freedoms are denied. In that case, one would be asking the multiracial person to give up some rights in order to gain others. It does not take much to see that that, also, runs contrary to the Equal Protection Clause of the Fourteenth Amendment.
The problem of classification with respect to discrimination is not difficult at all to resolve. Because the one-drop rule denies constitutional freedoms, it cannot be used as a basis for classification. But there is no need to look any further than the term “multiracial.” This term would play the same role for Mrs. Phipps as any ethnic term does for whites (Irish, Italian, Semitic, etc.). Sub-sections of the white community are no strangers to discrimination from the mainstream, yet their ethnic ancestries (which are the reason for discrimination) are not seen as being incompatible with white identity, nor is it seen as the necessary basis for an identity that would ensure Fourteenth Amendment protection.
Summary of reargument
Error, then, has been shown as distortion and even outright denial of irrefutable realities, leading to the violation of as many as Four Amendments--the First, Fourth and Fifth, and Fourteenth--and three classes of rights: freedom of conscience and expression, the right to privacy, and equal protection and due process of the law.
Very specifically, there are three constitutional objections to the one-drop rule and the identities derived from it:
1) They define a demonstrably nonfactual ideology and violate the First Amendment’s requirement that, as such, they can only be voluntary.
2) They are an unreasonable invasion and expropriation of one’s person, denying the minimal independence and autonomy granted by the Fourth and Fifth Amendments.
3) They are a non-legal means to achieve legal ends--curtailing discrimination, and so violate the Due Process and Equal Protection clauses of the Fourteenth Amendment.
By falsifying biological inheritance they create unequal access to medical information and ultimately to medical treatment, thereby denying the Fourteenth Amendment’s equal protection of the laws.
None of these violations are any less an injury to an individual’s psychological constitution than the segregation from others of a different race that Brown v. Board of Education asserted. Nor are these four Amendments any less critical to an individual’s success in our society than the education that was the subject of Brown. To be alienated from one’s own self, to be contradicted in the most intuitive understanding of one’s self, to be denied a coherent language of identity, all by the state--for all other groups this is seen as a serious injury to the individual’s sense of wholeness, and so to her success in life. Only with regard to multiracials does this alienation and contradiction of one’s self not elicit sympathy, but merely hardens the hearts of everyone. Yet, how could this not be rejected by the constitution’s guarantee of security in one’s person?
5. Conclusion
Four ideas were argued in this essay. 1) that the origins of the literal one-drop rule is in the black liberation movement, rather than the white tradition of discrimination; 2) that the ancestry segregation of the one-drop rule and social segregation are based equally in claims of superiority; 3) that the Plessy decision and social segregation are most convincingly rejected on the basis of the First Amendment; and 4) that the legal application of the one-drop rule is an explicit violation of constitutional freedoms, in particular the First Amendment.
This line of reasoning, I believe, would have allowed the court to see the discriminatory nature of the one-drop rule. Mrs. Phipps’ counsel did argue that the one-drop rule was racist, but this did not impress itself on the court. I believe that that is because the court instinctively understood the one-drop rule to be a product of the black liberation movement, while Mrs. Phipps counsel saw it as a product of the tradition of white discrimination.
The charge of racism held no weight with the court because racism is judged relative to blacks, and the court knew that the one-drop rule is endorsed by the black community. What Mrs. Phipps’ counsel needed to argue against was the general intolerance to multiracial heritage--exemplified by the “colored” designation on the birth certificate--and which is a violation of the freedom of conscience and freedom of expression guaranteed by the First Amendment.
Notes
A Brief History of Social Identity: From Kinship to Multirace (New York, iUniverse Inc., 2005).
Phipps case article
The section on the history of the one-drop rule was revised--to reflect the distinction between a color line and one-drop rule--after reading Frank W. Sweet’s essays ”Why Did Virginia’s Rulers Invent a Color Line?” and “Why Did One-Drop Become Nationwide Tradition?” The perspective expressed in this revision owes much to A. D. Powell’s--which I have been reading for many years now, that it is “liberals and blacks” who enforce the one-drop rule-- but projected back to an earlier and more formative period in the history of the one-drop rule. The debt to Frank W. Sweet is not only in the distinction between the color line and one-drop rule. Frank’s citing of Nat Turner’s rebellion and the fear it created in whites allowed me to cite the Civil War as a greater cause of that fear. In general, Frank’s essays forced me to refine my understanding of the one-drop rule. The result (somewhat contrary to the essays), is that I now find the ultimate origins of the one-drop rule in the fact that this rule is exactly a claim of moral superiority as intolerant of whiteness in the moral realm as white claims to social superiority was intolerant of blackness in the social realm.
The First Amendment--
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances.
The Fourth Amendment--
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fifth Amendment--
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Thirteenth Amendment--
Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The Fourteenth Amendment--
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The “fractional” statement of the constitution--
Article I, Section 2.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Plessy v. Ferguson
Brown v. Board of Education
Brown criticisms:
The Brown Decision
by Paul Craig Roberts and Lawrence M. Stratton
The Road Not Taken: Brown v. Board of Education at 50
By Michael M. Uhlmann
How Brown v. Board of Education Throttled Black Schooling
by Sheldon Richman, Posted November 17, 2004
Loving v. Virginia
Constitution of the United States (including Bill of Rights and Amendments)
Basic Readings in U.S. Democracy
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