Way Overdue: Cleanse the State Code of Racist Residue

by James A. Bacon

This 1956 law, enshrined in Chapter 59 of the Acts of the General Assembly, is a dead letter, rendered irrelevant by judicial rulings, others laws, and history, but it’s still on the books:

Notwithstanding any other provision of law, no child shall be required to enroll in or attend any school wherein both white and colored children are enrolled.

“The Commission to Examine Racial Inequity in Virginia Law,” commissioned by Governor Ralph Northam, identified this and 97 other Jim Crow-era laws still lurking in the state code. The governor has committed to repeal the racially discriminatory language. You can view the report here.

“If we are going to move forward as a Commonwealth, we must take an honest look at our past,” said Northam in a press statement. “We know that racial discrimination is rooted in many of the laws that have governed our Commonwealth—today represents an important step towards building a more equal, just, and inclusive Virginia.”

States the report:

Though most of these pieces of legislation are outdated and have no legal effect, they remain enshrined in law. The Commission believes that such vestiges of Virginia’s segregationist past should no longer have official status. The Commission also notes that there have been several previous Acts on topics codified in the Code of Virginia that have since been declared unconstitutional or otherwise invalidated. Without repeal, these provisions could be revived with a change of law or interpretation by a different leadership or court. The Commission recommends that they, too, be repealed.

The Commission focused mainly on three periods of the 20th century: 1900-1910, the era in which most states in the former Confederacy adopted new constitutions disenfranchising African Americans; 1918-1920s, coinciding with the resurgence of the Ku Klux Klan; and the mid- to late-1950s during Virginia’s reaction to federally mandated school desegregation.

A selection of some of the laws recommended for repeal:

  • A 1903 law implementing the state poll tax.
  • A 1906 law requiring a separation of white and colored passengers on cars operated by electricity.
  • A 1908 law permitting chain gangs to be used in the Town of Narrows in Giles County for violations of town ordinances.
  • A 1918 law providing for separate sanatoria for white people and colored people.
  • A 1956 law divesting localities of authority over local schools when local officials voluntarily integrated their schools.

Bacon’s bottom line: These laws are an embarrassment and a blight on the Code of Virginia and should be expunged in the 2020 session of the General Assembly. I have criticized Northam for his leftward lurch on social- and racial-justice issues, but I laud his decision to appoint this Commission and fully support his actions to cleanse state laws of any taint of racial discrimination. Ridding the Code of these barbaric remnants will have no practical effect on race relations in Virginia today. But the law is (or should be) color blind, and General Assembly action to make it so is way overdue.

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14 responses to “Way Overdue: Cleanse the State Code of Racist Residue

  1. I agree totally.

  2. I must say it is a bit surprising that the state’s standing Code Commission had not already done this. It makes similar revisions and updates regularly, and the bills are always routine. But why do quietly and routinely something which gains great political benefit when you can call an outraged press conference? Agreed, the bill should pass quickly. I’m also surprised we saw this report after the election rather than before, but of course there weren’t many Republicans in office during Jim Crow. That was part of the reason for Jim Crow.

    • I had the same reaction about the Code Commission that you did. But, if one looks closely at the recommendations, it turns out that a large number of the provisions have actually been repealed. This Commission focused on the Acts of Assembly. Most of those Acts in the early 1900’s amended existing Code sections. The Code of Virginia was recodified in 1950. We are now operating under the provisions of the 1950 Code, which expressly says that any previous Code sections are repealed. Many of the other Acts singled out by the special commission deal with special legislation, which were not codified. Furthermore, many of those relate to entities (streetcar companies, etc.) that no longer exist. Finally, there are what are known as “Section 1 bills”, which also are not codified.

      As a consolidated history of how segregation and bigotry were interwoven in every facet of law, the commission’s work and this document are most valuable. Furthermore, repealing all those old Acts of Assembly may prove to have symbolic value. However, repealing them will not, in all cases, be a matter of getting those old segregationist statutes off the books, because they are no longer on the books.

      • Dear me, virtue signaling? Again? Good catch, Dick. Maybe next they will go through the General Assembly Journals and completely erase the history, as Orwell would predict. What are they going to do, publish new (and redacted) Acts of Assembly for thirty different years?

        • Yes, that is very good catch high on the wall, indeed, Dick. The story as written was too good to be true. And yes, you and Steve are right, those repugnant provisions should be retained so we understand history, how laws evolved, etc. Without that historical perspective, we cannot know where we are today, where we came from, and how to interpret today so as to move best into the future?

          You guys changed my opinion.

  3. Good things happening … and I read that the Confederate White House has changed their exhibit to give an accurate historical picture of the war, removing the old Southern arguments about slavery.

    • No, the Southern argument was “state’s rights.” Slavery is never admitted as a direct or proximate cause….

      • Without deprecating the roll of slavery in Civil, the states rights issue (my only home and families home is being invaded) was the primary moving force for most everyday southern civil war soldiers and everyday southern folk that supported them in the South. That is plain fact. Most of these folks had NEVER been outside the county they were born in, raised in, worked and lived in, for the entire lives, till civil war, if then. Their county and state was all these folks cared about. The Federal Government was another planet. To erase that historical fact is more fake history and cultural genocide intended to demonize these good people, akin to Zinn’s debunked “A people’s history of United States.”

        See https://www.c-span.org/video/?116751-1/stonewall-jackson

  4. Like this one, I guess:

    To answer the three questions I earlier posited above, all via the National Association of Scholars.

    “Was it Good Fortune to be Enslaved by the British Empire?

    By Bruce Gilley

    1619 was a year of terrible cruelty in the world. In Europe, the French king imprisoned his mother in a rural chateau and had her tortured in conditions described as no better than in the Bastille. The horrific Thirty Years’ War began in Central Europe: before it ended, it would take eight million lives and reduce the population of parts of Germany and France by over half. The bubonic plague was sweeping India and millions were dying from famine in Ming China, both places ruled by decadent god-kings that saw mass deaths as a natural part of the cosmic order. In the Americas, the governor of Bermuda was replaced after having a man hanged for stealing a piece of cheese.

    My own Scottish forebears were being rounded up by the Scottish king for duties in New Scotland (Nova Scotia). The king preferred to settle this new colony with ne’er-do-wells, criminals, and “Brownists”—Protestant followers of Robert Browne, the same radicals who would people the Mayflower in 1620. Most died in the 1620s from freezing, starvation, or scurvy. The expedition leader described the latter condition in a 1629 letter as “a nasty and lazy disease with swelling of feet, legs, and thighs, with shoots the colour of the rainbow, with sores falling off the hair, a canine appetite, even til death much discontent.” Further down the North American coast, “20. and odd Negroes” were put ashore at Jamestown, slaves stolen from a Portuguese ship which had loaded them at Angola in southwest Africa.

    For all such groups – Bohemian rebels, Bastille prisoners, Chinese and Indian serfs, Caribbean settlers, Scottish malcontents, and African slaves – life was nasty, brutish, and short around the year 1619. The Reformation was only a century old and had yet to achieve its moral revolution in the world. The Industrial Revolution, through which capitalism generated unprecedented human welfare, was over a century away. None of us would choose to have belonged to any of these groups: canapés and an honest Grenache at Versailles for me, please. But if one were forced to make a choice, a plausible argument could be made for the good fortune of the “20. and odd Negroes”, not just compared to the other unfortunates but also compared to the millions of slaves of African and Arab owners that they left behind.

    The Jamestown 20-odd were likely part of the plunder from a war a year earlier between the dominant Ndongo kingdom in Angola and a Portuguese-led alliance of African rivals, dissidents, and mercenaries. While slaves were always part of war plunder in Africa, most slaves in Africa were a result of market transactions not war. The Jesuit chronicler Pero Rodrigues wrote in 1594 that the number of “slaves taken in war are nothing compared to those bought at feiras [markets], at these feiras the kings and lords and all Ethiopia [i.e. east Africa] sell slaves.” Those who ended up in Jamestown were headed for the Caribbean and would otherwise have ended up in east Africa or the Middle East.

    The Spanish and Portuguese believed they were doing African slaves a favor by rescuing them from cruel local tyrannies, and that they would fare better as slaves under Christian masters, their souls saved. Hence the hasty baptism of slaves about to be shipped from Angola, including probably those who ended up in Jamestown in 1619. The glimmer of a push for equality and emancipation from the ethical resources of Western civilization was already present on those beaches.

    None of this made their enslavement “right.” But then little of what happened to the wretched of the earth in that era was right by contemporary standards. There is a historical bait and switch when contemporary critics charge European colonialists with all sorts of modern crimes: stealing land, owning slaves, shooting lions. These charges appeal to norms and expectations that emerged later from Western civilization itself, and only from Western civilization. Stealing land, owning slaves, and slaying wildlife were, after all, the national sports of pre-European contact African, Arab, and native American cultures.

    In the event, the life chances of those enslaved under the British empire improved markedly compared to what they would have been in Africa even as freemen, and certainly compared to other slave colonies in the Americas. Within a flourishing capitalist system, the value put on slaves meant that slave owners had every interest in keeping them healthy. That is why black slaves in the United States were healthier than British marines or French or Italian peasants. It is also why U.S. slave population expanded more rapidly than elsewhere through natural increase.

    The Jamestown 20-odd were dropped into a particularly idealistic part of the West, where Protestant notions of emancipation and the equality of all men would develop faster than elsewhere. As time passed, the moral revolution against slavery that began in Britain would sweep the United States. From 1619 until the British abolition of the slave trade in 1807, the moral revolution was building. Slave traders were increasingly held accountable for the humane treatment of their slaves and their legal rights. Where else would there have been such a protracted legal process as at Newport, Rhode Island in 1791 for a captain accused of throwing a slave woman overboard because her smallpox threatened to kill everyone on his ship? The case went on for five years before a lengthy opinion acquitted him on the grounds of emergency measures. All this for a single slave woman. Nowhere else in the world was human life treated as so precious.

    The moral awakening against slavery took place in Europe, not in Africa, and certainly not in the Islamic world. Throughout Africa, the British used antislavery treaties as the basis of their influence. A full 10 percent of British naval resources were assigned to anti-slaving duties in the Atlantic and Indian oceans in the 1840s. Brazil and then the U.S. joined in the abolition of slavery, and then in the latter half of the 19th century the abolition spread to Africa. When the British expanded their influence to northern Nigeria, it was experienced as a liberation from native tyranny. “The Europeans don’t like oppression but they found a lot of tyranny and oppression here, people being beaten and killed and sold into slavery,” recalled a woman of the Habe ethnic group of the British advent in 1900. She had grown up in the slave-based Sokoto Caliphate, a creation of the Fulani ethnic group which had defeated and subjugated rival tribes in a series of wars between 1804 and 1808. “We Habe wanted them to come, it was the Fulani who did not like it,” she recalled (her story was published in 1954 as Baba of Karo). “In the old days if the chief liked the look of your daughter he would take her and put her in his house; you could do nothing about it. Now they don’t do that.”

    The greater the moral awakening in the West, the more it came in for criticism. In 1892, the British had persuaded the king of Benin to sign a pledge to eliminate human sacrifice and slave trading. He did not comply and in 1897, when British troops conquered the world’s worst tyrant, the King of Benin, they witnessed an African scene that was one of the accounts used by Conrad for his Heart of Darkness: “Huge pits, forty to fifty feet deep, were found filled with human bodies…everywhere sacrificial trees on which were the corpses of the latest human victims, everywhere, on each path, were newly sacrificed corpses,” a British officer recalled. “On the principal sacrificial tree, facing the main gate of the kings compound, there were two crucified bodies, at the foot of the tree seventeen newly decapitated bodies, and forty-three more in various stages of decomposition.”

    The officer’s account, The Benin Massacre, and another first-hand account, Benin: The City of Blood, were published to wide attention in Britain shortly before Conrad began work on Heart of Darkness in late 1898. But Conrad knew that no one would read a novel about the King of Benin. Scolding passions were reserved for the West. Instead, he made a white trader the center of horrors, successfully stirring the outrage of generations of English professors. The same literary strategy has been used by progressives ever since, especially by the American journalist Adam Hochschild in his bestselling 1998 book King Leopold’s Ghost about the Belgian king’s private estates in pre-colonial Congo. The king’s estate was not a Belgian colony; indeed, that was the problem. And the abuses paled in comparison to those of the nearby African slave lord Tippu Tip. If anything, Leopold’s presence, and then Belgian colonization in 1908, was far better than the likely alternatives. Yet at last count there were only three books on Tippu Tip, but somewhere between 30 and 50 on King Leopold II’s Congo Free State, none of them flattering.

    Some critics discount the British and American efforts to abolish slavery on the grounds of their earlier involvement, arguing, in essence, that it should be compared to burning a fellow’s house down and then volunteering to rebuild it. That is a false analogy because it assumes an intentional and acknowledged wrong is committed in the first place. Slavery was not of that sort – the moral revolution came after, not before. A better analogy would be a slum lord who, having witnessed and indeed caused many people to lose their homes on wholly legal grounds, becomes a major advocate and funder of affordable housing programs and legal reforms to make evictions more difficult and raise standards for low-income housing. The growth of a new moral outlook brings about the change. Is this not to be praised?

    Today, being black in America is one of the best outcomes for a black person globally. If not, more black Americans would own passports and would, over time, have migrated to other places, such as Guyana, Liberia, Haiti, or Sierra Leone. To be black in America is, historically speaking, to have hit the jackpot. For those who came ashore at Jamestown and in the centuries that followed, being enslaved under the British empire was about as good as it got. If your fate was to be African, then being enslaved under the British empire gave you and your descendants a better shot at a decent life than they would have had even without being enslaved.

    There is a third unutterable: to be enslaved within the British empire was to be an agent of moral change because of the inconsistency of slavery with liberal values. Black abolitionists and slaves knew this, which is why they participated so manfully in the American Revolution and the Civil War. With the British empire on the side of anti-slavery, more good was done for the global elimination of the slave trade than would ever have happened had the British themselves not become involved in the trade. In historical perspective, the only thing worse for black lives in general than British and American slavery would have been its absence.

    One wonders then why the projects surrounding 1619 – an invitation to history – have become such a boorish rejection of history. Instead of insight and empowerment, 1619 has become an exercise in Soviet-style historiography. In this version, rather than all history leading to the workers’ paradise, all history leads to eternal and indelible black victimization. It is fake history, propaganda, and utter nonsense. I suspect those involved in it – like Soviet historiographers – know it.

    A significant portion of black America rejects this fake history. Housing secretary Ben Carson’s 20-minute talk on the dust-up over Baltimore in July is a passionate a statement of black freedom and responsibility as there has been. But for too many, a catwalk of supermodels parading the latest fashion in eternal black victimization – from Malcolm X to Ta-Nehisi Coates – continues to set the style.

    The social and psychological crisis of black America is inextricably linked to the absence of historical memory, quite a feat for a group whose radical luminaries espouse attention to history. Distortionary tales of white guilt and black virtue have become a recreational drug for white liberals as well, suggesting that as time goes by historical understanding becomes ever more degraded. The fate of too many of those who followed the Jamestown 20-odd was to be caught in a web of self-pity, apples tied to the branch rather than being allowed to fall freely as Frederick Douglass warned. Perhaps I would have preferred scurvy in Nova Scotia after all.” End Quote

    For more see:
    https://www.nas.org/blogs/dicta/was-it-good-fortune-of-being-enslaved-by-the-british-empire

  5. As part of this “cleansing”, they should require that the names and the party affiliations of those who voted for and against these bills be made public and part of the record.

    • Agree – and point out that GOP / Conservatives could have also done the deed a long time ago AND got credit for it!

      • I think the point is the deed (repealing the laws from the Code of VA) has been done already, long ago, by members of both parties or by judges. What we are doing now is scrubbing the Acts of Assembly, the legal equivalent of beating a dead horse. And I wondered (only half joking) if the next step is to scrub the Journals, in effect the daily record of past sessions. Scrubbing the Journals would be pure Orwell.

        There may still be some things in the Code itself that need to go, but it seems many of these have been repealed and are not printed in the books or the online versions anymore.

  6. It always makes sense to clear a code of obsolete provisions, most especially when many are found offensive by many people. But once again, we see the Governor virtue signaling, rather than accepting responsibility for his unacceptable behavior as an adult. He could have resigned to be replaced by a black man. I guess keeping power is better than repentance for Mr. Northam.

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