PANEL: Policing Whiteness: Intersections of Race and Sexuality in Legal History
Friday, October 23, 1:30-3:00

Chair: Ariela J. Gross, University of Southern California School of Law

Race, Law and Time: Writing Legal History from a Local Perspective
Walter Johnson, Department of History, New York University

This is a paper about race, law, and time. It begins from the idea that many historians have taken legal history as the best way into the messy question of racial definition at any given moment. This is especially true of scholars who have participated in the discussion of the origins of racial thinking in seventeenth-century Virginian (most notably Edmund Morgan and most recently Kathleen Brown and Thomas Morris) but also true of many who have worked on racial definition in the nineteenth century (Ira Berlin, Martha Hodes, Morris again, Ariela Gross, myself). The paper does not dispute the idea that courtrooms and congresses were important arenas in which racial ideologies were articulated and promulgated. It does, however, dispute the idea that legal decisions (particularly those made by courts of appeals) can be used to index popular ideas about race. The broad historical changes that can be traced through comparing judges' decisions - the effort to effect a more perfect congruence between blackness and slavery in the 1850s by curtailing manumission and, in many states, attempting to enslave free people of color, for example - obscure a continual ferment that was evident in the (local) courts from which racial determination suits originated.

Centering on an 1857 Louisiana case (Morrison v. White, No. 442, 16 La. Ann. 100 (1861)) in which a woman escaped from a slave trader and sued him on the basis that she was white, the paper will contrast the legal effects of cases of racial determination to their local effects. While the Supreme Court decisions (there were three) in Morrison v. White fall in with the broad legal trend which sought a greater congruence between the categories of race and slavery, the local effects of the case were quite the opposite; the notions of race which were broached in the courtroom were so various and so contradictory that no one could argue that the case contributed to any clarification of the legal definition of race; the slave trader who was being sued was at one point mobbed by an angry mob of whites who supported his slave's claim to whiteness; and the juries in the local courthouse continually decided the case in a way that ran against prevailing legal notions of how such cases should be decided. In short, the local history of Morrison v. White stands in direct contradiction to its legal history; the relations of race and law over time - the legal history of race - had a different shape depending upon whether you were sitting in a courtroom in Jefferson Parish or a Supreme Court chamber only a few miles away in New Orleans.

Configuring the National Body through Antimiscegenation Law, Lynch Law, and Immigration Restriction
Robert S. Chang, Loyola Law School, Los Angeles

This paper examines multiracialism in light of the ways in which anti-miscegenation law, lynch law, and immigration restriction have worked separately and in tandem to police the national body, or "We the People."

Multiracialism is not a new phenomenon. Interracial heterosexual sex and marriage, which can produce multiracial persons, has been policed and monitored legally and extra-legally. Racial-sexual policing took place legally through anti-miscegenation laws and extra-legally through lynch law. Immigration restrictions were urged to prevent the threat that certain alien bodies posed to the purity of white womanhood. The success and failure of these measures could be monitored, in part, through the U.S. Census which counted certain multiracial persons at various times, with 1920 as the last year that "mulattoes" existed as a category. Soon, multiracial persons may be counted again by the Census. Is this an acknowledgment of the ultimate failure of anti-miscegenation laws and racist immigration restrictions to maintain the racial composition/purity of the national body? How does multiracialism figure in the debate over color-blindness and race-consciousness?

This paper examines these questions by comparing the present to the early part of this century when it was undergoing what might be termed a national identity crisis precipitated by changing demographics. During this period, national identity became reconceptualized in terms of familial relations. Racial-sexual policing and immigration restriction were about policing the family that is America, and both played prominent roles in helping America negotiate its identity crisis during this period. Understanding this earlier identity crisis provides a context for understanding our current national identity crisis. Although anti-miscegenation laws are no longer valid, their residue remains. In 1986, 99% of White Americans were married to White Americans. Further, extralegal forms of racial-sexual policing still take place, and thinly veiled racist immigration restrictions remain possible. the struggle over the family that is America, over the national body, is not yet over. This paper explores the ways in which multiracialism has been and continues to be a part of this struggle.

Comment:
Adrienne Davis, Washington College of Law, American University
Annette Gordon-Reed, New York Law School

 
agen and Albert Osborn. How did document examiners delineate their sphere of expertise--how much did they claim to know and with what degree of certainty? What strategies did they use to acquire and maintain legitimacy?

The rise of the professional document examiner is particularly interesting because it marks the first genuinely forensic science to receive legal sanction * that is, it was the first kind of expertise which existed almost exclusively for forensic purposes. Unlike surgeons, chemists, engineers, physicians, microscopists, alienists, and the myriad other scientific experts commonplace in the courtroom in this period, whose activities were not primarily forensic, but who might on occasion, bring their expertise to bear in the courtroom, document examination was, first, and foremost, a forensic activity. This paper will also try, quite explicitly, to bring to bear recent perspectives from the history and sociology of science while exploring the rise of document examination as a court-sanctioned science.

Reluctant Heroes: Psychiatrists, Sexual Psychopath Statutes and the Production of Expertise in the United States, 1930-1970
Stephen Robertson, Department of History, George Mason University

A panic about sex crime swept the United States between 1937 and 1940 and then again in the decade after World War Two. A series of sex murders of young children precipitated the panic in 1937; another series in 1949 rekindled the panic and took it to new heights. Extensive coverage of sex crime in local newspapers, national magazines and radio broadcasts, the campaigns of citizen's groups and the comments of law enforcement officials such as FBI Director J. Edgar Hoover generated anxiety that the incidence of sex crime had increased and evoked the specter of men being released or paroled to reoffend, perhaps even to kill. When journalists and politicians cast about for answers to the problem of sex crime, they turned primarily to psychiatrists. At a conference of judges, social workers, psychiatrists and public officials on sex crimes in New York City in 1937, in an oft-repeated scene, "most of the day was spent in an effort to draw out from the eminent psychiatrists present some advice as to how to treat the ingrained offenders brought to the courts for overt acts of sexual immorality."

The press and public officials seized on the psychiatric concept "sexual psychopath" to characterize men who committed sex crimes and employed it to cast them as mentally ill but not legally insane. State legislatures crafted their response to the sex crime panic in these terms: in the late 1930s, five states enacted 'sexual psychopath' statutes; another twenty-one states enacted such laws in the late 1940s and early 1950s. The statutes targeted not specific acts but a particular personality or identity -- someone who lacked any ability to control his sexual impulses -- that only psychiatrists could identify. They allowed any man convicted of a sex crime and diagnosed as a psychopath to be held indefinitely, until psychiatrists declared him cured.

Although some psychiatrists promoted the concept of sexual psychopath, most regarded it and laws that relied on it with distinct ambivalence. They attacked definitions of sexual psychopathy as vague and controversial, challenged the premise on which the state relied, namely, that minor sex crime heralded a propensity for more serious sexual violence or murder, and questioned their ability to cure sex criminals. Most psychiatrists were reluctant heroes in the fight against sex crime, largely pulled into the criminal justice system and granted authority as a result of the media and politicians' appropriation and construction of psychiatric expertise.

This paper will examine the relationship between psychiatrists and the sexual pyschopath statutes. I will focus on psychiatrists response to the drafting and enactment of the laws, their role in the limited application of the laws and, finally, their contribution to the repeal of the statutes in the 1960s and 1970s. These topics raise questions about the nature of expertise in the mid-twentieth century United States, the relationship between experts and the knowledge they generate and the role that cultural forces rather than ambitious practitioners play in the construction of expertise. These questions are particularly timely in the aftermath of the Supreme Court's 1997 decision in Kansas v. Hendricks, which has opened the way for 'sexual predator' laws that echo sexual psychopath statutes in their appropriation of controversial psychiatric expertise as a means of enacting harsher punishment of sex offenders.

Comment:
The Chair, Randall McGowen, Department of History, University of Oregon