Preachers, pundits, performers, moralists and late-night humorists have rightly found much grist for righteous commentary, cartoon and comedy arising from the North Carolina General Assembly’s lightning speed enactment of House Bill 2 – “the bathroom law.”
The state’s assembly worked six months past its constitutional mandate of July 2015 to pass an annual budget. Yet the state’s legislators and Gov. Pat McCrory needed just one day to enact a law that made dramatic determinations about what is contained in both citizens’ genes and their jeans.
But the truth is that North Carolina – and for that matter most other states – has been speculating about what is in people’s genes and jeans for hundreds of years.
Every slave society, including North Carolina’s, found cause to castrate male slaves who were charged with getting too close to plantation mistresses (but apparently not for masters who exacted intimacies with their slave women). Virtually every state in the American Union by the 1830s aided and abetted the displacement and removal of those residents east of the Mississippi whose veins coursed with Indian blood. After the Civil War, many states, including North Carolina, enacted “grandfather” laws ejecting from voter rolls any man whose grandfathers (usually slaves) had not been eligible to vote. In the 20th century, many states, including North Carolina, enacted laws establishing vigorous eugenics programs to sterilize women declared to be too mentally deficient to participate in the expansion of the nation’s gene pool.
Yet in addition to joining other states and even nations in seeking to manage reproduction and curtail the ability of certain men and women to produce offspring, North Carolina was an avid pioneer in the realm of genetic marking long before the state’s most recent project to link personal opportunities and rights to the accidents of birth. One of the most remarkable actions of its General Assembly occurred in 1885.
With little warning then as well, the state legislature determined that one of the Indian groups who eluded the forced removal of the 1830s contained certain genealogical traits that made its members a unique public treasure to the State of North Carolina. Based on the historical, linguistic and cultural researches of one of its own members, the General Assembly declared that the Croatan (now Lumbee) Indians living mainly in the state’s Robeson County were descendants of Sir Walter Raleigh’s “lost colony” of 1587.
Since the Croatan people were believed to hold the genetic seeds of Raleigh’s heroic all-white colony, the State of North Carolina gave legal recognition to the Croatan Nation. It also declared that these unique Indians would have their own school system and a college separate from the segregated schools and colleges already provided for whites and blacks.
But North Carolina’s most notable and historic excursion into the realm of genetic calculations occurred in 1835. During the same decade of Andrew Jackson’s Indian removal campaign known popularly as the “trail of tears,” many of the American states held constitutional conventions to determine once and for all who would be permitted to vote in state and national elections. American Indians were deleted from participation through the removal process. Most blacks in Southern states were excluded since they were held as slave property by white masters. The largest remaining body of residents both North and South whose eligibility to vote needed to be determined were those thousands of persons who were variously categorized as free Negroes, free blacks or free people of color.
By 1835 nearly all states North and South had determined that only white males would be awarded the right to vote. The only undecided state in the South was North Carolina. The only major undecided state in the North was Pennsylvania, though three New England states made no determinations. When North Carolina’s constitutional convention met in the summer of 1835 to revise many aspects of its 1776 constitution, a genetically inspired criterion for determining voting eligibility arose out of the blue – much as did the language for HB2 in 2016.
The proposed wording was as follows: “No free Negro, free mulatto, or free person of mixed blood, descended from negro ancestors to the fourth generation inclusive (though one ancestor of each generation may have been a white person), shall vote.” In other words, if any one of your 16 great-great grandparents, eight great-grandparents, four grandparents or parents had any mixed blood whatsoever, your citizenship and voting rights were thus excised.
DNA testing was a century and a half in the future. But such was not needed because North Carolina’s constitution makers were confident that in the state’s cozy communities and small towns, the pedigree of every person would be virtual public knowledge. Moreover, the wording chosen for the 1835 revision was adapted from hoary legal precedents intended to convey the message that, if challenged, no one could prove the absence of some inherited mixed-race heritage. The bar was too high for anyone to prove the negative.
Two years later Pennsylvania became the last state to address this issue prior to the Civil War in its own constitutional convention. Some delegates making note of the North Carolina precedent thought it was fraught with legal and practical complications that could not be unraveled. Rather than tread in the muddy waters of a person’s racial genetics, a wise Pennsylvania delegate proposed that the Keystone state follow the example of most other states North and South. His solution was to restrict voting to “white” men only. Yet, one delegate known for his dark olive complexion asked how the determination of whiteness would be made in his case and others. After much disputation on a proper definition for the term “white,” the Pennsylvanians adopted an approach just as simplistic as the one embraced in North Carolina. Everyone knew a white person when they saw one – no matter how dark the skin!
There are lessons to be learned from these deep historical experiences. Laws, however well-intentioned at the moment they are adopted, must always pass muster with the most fundamental tenet of our Founding Fathers that all men are born equal and have an equal right to life, liberty and the pursuit of happiness. We’ve spent almost 2.5 centuries since the American Revolution working out the meaning of that declaration of equality.
Despite periodic efforts by eager politicians on the state or national level to exclude from equal treatment certain people because of what’s in their genes or their jeans, we can only hope that our elected leaders, our judges and our presidents will avoid some of the egregious detours from liberty that have pockmarked our past and threaten to divert us once again from our central devotion to life, liberty and equality for all.
Dr. Larry Tise, born and educated in North Carolina, is a historian living and working in Philadelphia. He served as North Carolina’s State Historian from 1975 to 1981 and Pennsylvania’s from 1981 to 1987.