The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of my most enduringly controversial VC posts has been Sorry, but the Irish were always 'white' (and so were Italians, Jews and so on, in which I took on the popular notion, now mainstream in historical circles, that various European ethnic groups were historically considered to be nonwhite in the U.S. until they assimilated sufficiently to have sufficient "whiteness" to be considered white. I wrote,
But what the relevant authors mean by white is ahistorical. They are referring to a stylized, sociological or anthropological understanding of "whiteness," which means either "fully socially accepted as the equals of Americans of Anglo-Saxon and Germanic stock," or, in the more politicized version, "an accepted part of the dominant ruling class in the United States." Those may be interesting sociological and anthropological angles to pursue, but it has nothing to do with whether the relevant groups were considered to be white.
I still get the occasional outraged email telling me what an idiot I am for not recognizing that my correspondent's Irish/Italian/Polish/Jewish/etc. ancestors were not considered white.
In any event, as a result of my post I interacted with several historians who referred me to what they considered the best, most nuanced work in the "whiteness" genre, Matthew Frye Jacobson's "Whiteness of a Different Color." I am unimpressed and unpersuaded.
For example, right in the beginning of the book, on page 4, Jacobson discusses the case of Rollins v. Alabama (1922). Here's what he writes:
An Alabama circuit Court of Appeals reversed the conviction of one Jim Rollins, a black man convicted of the crime of miscegenation, on the grounds that the state had produced "no competent evidence to show the woman in question, Edith Labue, was a white woman." Labue was a Sicilian immigrant, a fact that, this court held, "can in no sense be taken as conclusive that she was therefore a white woman, or that she was not a Negro or a descendent of the Negro." Although it is important to underscore this court did not find that Sicilian was necessarily nonwhite, its finding that Sicilian was inconclusively white does speak volumes about whiteness in 1920s Alabama. If the court left room for the possibility that Labue may have been white, the ruling also made clear that she was not the sort of white woman who security was to be "protected" by that bulwark of white to supremacism, the miscegenation statute.
What the court actually said was that to convict someone of miscegenation, the prosecutor has to prove all elements of the crime beyond a reasonable doubt, including that one of the parties was white. The court stated that the prosecutor failed to present any competent evidence that Labue was white, beyond that she was from Sicily, which was not sufficient to prove that she wasn't a "negro" or of discernable "negro" ancestry. After all, Sicily is a place, not a racial category. In other words, the court wasn't suggesting that Sicilians in general may not be white, but that merely being from Sicily cannot be deemed evidence beyond a reasonable doubt that someone has no discernable African ancestry.
Here is the court's exact language:
There was no competent evidence to show that the woman in question, Edith Labue, was a white woman, or that she did not have negro blood in her veins and was not the descendant of a negro. This fact was essential to a conviction in this case, and, like any other material ingredient of the offense must be proven by the evidence beyond a reasonable doubt and to a moral certainty. The mere fact that the testimony showed this woman came from Sicily can in no sense be taken as conclusive that she was therefore a white woman, or that she was not a negro or a descendant of a negro.
To read into that language the meaning that Jacobson attributes to it is at best highly aggressive, but it may also suggests a certain tendentiousness, or perhaps a lack of understanding of how aggressively courts sometimes strictly require the black-letter elements of the statute to be proven beyond a reasonable doubt. The latter factor was especially likely to play a role in this case. Rollins didn't marry Labue, but allegedly 'lived in sin' with her in a state of marriage. The primary evidence was Rollins' confession, a confession that likely explains why no additional evidence of Labue's race was adduced. But the judge who wrote the opinion noted that the defendant, an "aged negro man," provided "a confession at the point of a pistol, and is clearly evident it was given through fear and constraint superinduced by this means and no other." So the court's seeming reluctance to enforce the miscegenation statute in this case seems to have less to do with the fact that Labue was from Sicily, and more with the fact that defendant Rollins had been coerced into a confession of "miscegenation" at the point of a gun.
Thanks to Jacobson, the Rollins case seems to have become an important example of Italians or at least Sicilians having only "provisional" whiteness in the United States. I don't think anything remotely approaching that dramatic conclusion can be discerned from this case.
UPDATE: Commenter TwelveInchPianist sums it up succinctly:
But of course the case actually proves the opposite of what Jacobson says. Alabama claimed that Labue's status as a Sicilian immigrant was proof that she was indeed entitled to be "protected" [as white person] by the miscegenation statute. The court simply pointed out that the fact that she was from Sicily didn't prove [beyond a reasonable doubt] that she wasn't black [i.e., of African or partial African descent].