Motherhood and the Invention of Race

by Steve Martinot

This article (previously published in Hypatia 22(2), Spring 2007) attempts to do two things: reveal a continuity of structure in white supremacy in the U.S. between its initial invention in the seventeenth-century English colonies and the present, and advance a specific analysis of a moment in the process of that invention that involved the domination and redefinition of women. That moment was provided by the matrilineal servitude statute passed in Virginia in 1662. 

An article in The Nation from December 3, 2003, entitled "Criminalizing Motherhood," tells an old story. It is the story of a prosecution, now considered by the state as a precedent; yet it reveals a social logic that has long inhabited U.S. jurisprudence and which the state continues to rehearse and perform. In the cold clang of its historically practiced procedure, that logic is at once recalled and forgotten as a principle governing the United States since its inception.

Regina McKnight is doing twelve years in prison for a stillbirth, carving out a dangerous intersection between the drug war and the anti-choice movement. In the eyes of the South Carolina Attorney General’s office, McKnight committed murder.

Her crime? Giving birth to a five-pound, stillborn baby. As McKnight grieved and held her third daughter Mercedes’s lifeless body, she could never have imagined that she was about to become the first woman in America convicted of murder by using cocaine while pregnant.

The absence of any scientific research linking cocaine use to stillbirth didn’t matter. Nor did it matter that the state couldn’t conclusively prove that McKnight’s cocaine use actually caused Mercedes’s stillbirth. What mattered was that South Carolina prosecutors were hellbent on using McKnight as an example.

Thanks largely to the efforts of the former Republican Attorney General, Charlie Condon, now running for U.S. Senate, South Carolina is the only state in the nation with a child-abuse law that can be applied to "viable fetuses." . . . McKnight, now 26, was the first to be imprisoned on a murder conviction under the "viable fetuses" law. In October McKnight lost her best shot at release when the Supreme Court decided not to review the case, allowing the conviction to stand by default. (Talvi 2003, 4)

The article only allusively suggests that McKnight is black, but it does mention that she is a seasonal tobacco worker, homeless, and at the time of her pregnancy, grieving the death of her own mother, who was run over by a truck. For white jurisprudence, it is neither her homeless exposure to the elements, nor the malnutrition attendant upon underpaid agricultural labor, nor the exhaustion of long work hours, that took her baby’s life, but a toke in an unguarded moment. It is not the health of the mother that the state is concerned with; the provision of better labor protections and conditions would have directly enhanced the baby’s biological well being. And neither is it McKnight’s misery, since that is precisely what the state uses against her by prosecuting her for drug use rather than providing her with prenatal medical care. Whatever defense she might have wished to offer concerning her homelessness, her bereavement, or the duress of her daily toil, were discounted in advance. McKnight’s health is an extraneous concern and her humanity irrelevant.

Yet insofar as the state has shown no interest in the health or viability of either mother or child, its juridical concept of ‘viable fetus’ becomes simply a rhetorical device to deliver women into the thrall of its control, to render them functions of the state. In prosecuting McKnight, the state’s agenda is to use motherhood to control women and to mark the difference of race.

The state’s control of women’s pregnant bodies has a strong racial component—black women’s bodies are, and have always been, used in the United States as a mechanism to reconstitute the state as white. In Killing the Black Body, Dorothy Roberts offers a meticulous history of the control of black childbearing imposed by various forms of white power throughout the history of the United States (slavery, Jim Crow, sterilization campaigns, the war on drugs, and so on). Roberts lists a number of cases where the state’s discovery of a pregnant black woman’s drug use becomes an excuse to demand abortion by threatening the mother with a jail sentence.[1] She argues that, with a few exceptions, black pregnant women were drug tested and reported to the district attorney by hospitals, while white pregnant women were not (1997, 158). And these cases serve as a precedent for all women: what the state does to black women it can do to all women.

For Roberts, reproductive rights are a question of social justice, not simply of individual rights (1997, 6). Reproductive rights are double edged: people have the right to bear children as equally as they have the right not to. Social justice locates these rights in a woman’s relation to herself: in her body and her social and economic well being. Where and when the law seeks to control motherhood, it doubly derogates those rights. In McKnight’s case, social justice is withheld twice, in the state’s abrogation of responsibility for her health as a person and a pregnant woman, and in her prosecution as a black woman with a lost pregnancy in the face of the state’s failure to protect her.

At the end of the trial, a black woman sits in prison, a white prosecutor self-righteously proclaims an important precedent to have been set, and a committee in New York loses an attempt to rectify this miscarriage of justice. Yet for the state to consider McKnight’s prosecution as a precedent, it has to commit an act of historical amnesia. Far from a precedent, it reenacts a scene that for three hundred years has seen the sacrifice of thousands of men and women who remain unnamed, the "strange fruit" of a "manifest destiny," to that same state sanctity. McKnight’s conviction is entirely in keeping with the legacy of the history of black agricultural labor—from plantation bond labor to the debt servitude enforced by Jim Crow chain gangs to a contemporary migratory labor force facing a highly racialized prison industry. An entire history of segregation and wanton racialized violence is retold in this small legal act. Black people are criminalized through their blackness for the purposes of decriminalizing and valorizing not only the state’s abrogation of responsibility to them as citizens but also its imposition of dehumanizing conditions upon them. In McKnight’s case, the statements of a white state embodied in the prosecution’s arguments are given value and intelligibility by that same history and the history of black agricultural labor.

What I refer to as historical amnesia does not erase the history it forgets; it transforms that history into a cultural logic, a means of valorizing its actions and truth claims as natural.

As amnesia it disguises its historical antecedents in order to obviate recognition of former injustices, such as social structures called slavery or segregation, in order to open space to set legal precedents. Thus, it reduces history to a background template by which to establish a sense of familiarity for its injustices, to make them appear acceptable. But at the same time, it reveals the historical sources of its own structure of thought, its sense of the permissible, the internal cultural logic of the white mind that understands these injustices as acceptable. In discounting McKnight’s arguments, her condition, her very being beyond the scope of argument, data, or morality, the state renders her an instrument for itself. The cultural logic of its operations takes on a proprietary value. No amount of data or argumentation for the rights of black mothers and other women of color will challenge this structure or prevent its reenactment. Indeed, it is only by erasing or dismissing data that might challenge the state’s claims that the state bestows validity on its indictment, and its unobstructed call to an unspoken historical logic.

Here, I want to investigate the nature and meaning of the structures that make the injustices against McKnight both recognizable and permissible to the white state. McKnight must be criminalized in order to decriminalize the state’s maintenance of brutal labor conditions. What I wish to investigate is the relation of the hegemonic white male mind to history, in order to reveal what lies behind its self-valorization, its ability to dispense with argument, and to reside in the emptiest of statements while discounting (through criminalization) any defense against itself. The state is not white by fiat; it is white as a cultural condition given by events that reconstitute its history in the present. To fully understand the structure of the relation between the state’s actions and the devaluation and criminalization of black bodies, we must revisit not only the historical legacy these contemporary actions repeat but also the cultural logic that historical legacy created and maintained.

We are not speaking of the historical repetition of racism here, but of something more profound. The fact that the state picks out black people to victimize is a pragmatic use of racism. However, for the state to decriminalize itself through the criminalization of its victims becomes a question of social identity, and of a certain social sanctity acquired through that identity. It is the construction of a sanctity for whiteness, and for white racialized consciousness that goes beyond racism, and empowers it. In the eyes of that consciousness, a sense of justice or humanity toward McKnight as a black woman would be an unrecognizable act. What gives the state’s injustice familiarity is a structure of racialization, whereby the state renders itself white by its acts against black people in general and black women in particular. This structure of racialization threads its way through U.S. history against people of color as a cultural norm. The modes of impunity and the form of criminalization of the victims may change, but the underlying structure remains the same.

To grasp the inner construction of this specific structure of racialization, we must return to the seventeenth-century English colony in Virginia, to the evolution of the slave system, and, as I will argue, to the invention of race, whiteness, and white supremacy. Of particular import will be a law passed in 1662 establishing matrilineal servitude status. In a strange reversal of English law, where the status of the children followed the status of the father, this new law declared that the children’s social status followed the servitude status of the mother. This law constituted an important step in the evolution of a structure of racialization in the colony, as it groped its way toward a system of slavery and an identification with whiteness. The victimization of McKnight reveals the re-racializing project of the state; but to see this, we must understand the history that first discloses the raw evolution of racialization.

English Colonial Structure in Virginia

When the English first arrived in Jamestown in 1606, they did not think of themselves as white, nor did they consider slavery a part of English law. They did not develop a sociocultural concept of whiteness until the 1690s, almost a century later—the same period during which their system of slavery evolved. [2] The first concern of an English colony was profitability. Settling North America was a corporate endeavor whose purpose was to generate a healthy return on English investments. And Virginia was no exception. Its members, from aristocratic landowners to bond laborers, were employees of the corporation, and the Colonial Council of Virginia served as an on-site board of directors. The council’s functions were to insure a steady supply of labor for the plantations, to arrange access to foreign and domestic markets, to guarantee internal social order, and to provide for the general enrichment of the colony. A person’s social status unquestionably accrued to their position in this stratified administrative structure, to their allegiance to the corporate endeavor, and to their identity as English and Christian. For instance, settlers who tried to escape the colony’s hardships by joining the surrounding indigenous societies were recaptured and publicly tortured, often to death (Zinn 1980, 24).

The first profitable cash crop for the Virginia Company was tobacco, which required a substantial amount of time and hard labor. The first laborers in the colony were English subjects who enlisted as "chattel," that is, in exchange for passage to the colonies, they contracted into the company as property that could be sold, assigned, transferred, inherited, or used for payment of debt (Allen 1996, 98). The indenture contract included a release date, at which time the laborer was emancipated and given a small sum and a plot of land to work. Slavery simply meant the extension of indenture to perpetual servitude. The first Africans conscripted into the colony in 1619 were originally held in conditions of servitude comparable to the English: fourteen years’ service with a land grant upon release. What socially differentiated them from the English bond laborers was not their color or origin, but a juridical artifact of being African. Not being English, they were considered without status under English law, and thus ineligible to make contracts. Non-English Europeans, who came to the colony with diplomatic or mercantile papers, did not face this problem. At first, only a few Africans were brought to the colony. But after 1650, as the colonies developed and spread, the Colonial Council decided to shift to primarily African bond-labor because Africans’ skin color made escape more difficult. [3] 

The possibility of perpetual servitude for African bond-laborers was a contested issue for several decades. Plantation owners initially resisted the implications of such a policy, but the economic dynamics of the colony eventually drove them to embrace perpetual servitude for Africans. A primary consideration was transferability. Whereas English bond-laborers could be transferred through sale of the contract, the transfer of Africans required a different mechanism. Without contracts, their sale or trade required an open marketplace in which their actual bodies could be presented (Martinot 2003, 50). Auction facilities developed and were quickly institutionalized. As a result, African persons came to have a different economic character. As proxy for the contract, the African body became both laborer and legal instrument, acquiring a form of commodity status. The black body’s exchange value became standardized through the price levels determined in the auction markets. Those values could then be included as wealth in estate accounts. Ultimately, the African bond-laborer became a financial entity, acquiring the status of capital for the colonial elite.

To become capital, however, the African bond-laborer had to be subjected to perpetual servitude. The indentured bond-laborer lost transferable value as his/her contractual release date approached. A bond-laborer’s transferable value could be maintained only by dispensing with the idea of a release date altogether. Since political influence in the colony accrued directly to wealth, the capitalization of African bond-laborers became an important factor for upward mobility in the colony’s corporate structure. The colony gradually established permanent servitude for Africans through court cases, enhanced punishments for escape (Boskin 1979, 43), and eventually direct legal codification of slavery in 1682 and again in 1705.

The cultural and linguistic transformation required to carry out, and then morally justify this shift in servitude status took considerable time. Both aspects required a process of social categorization that differentiated between English and African bond-laborers. And the legal construction of such categorizations could become culturally meaningful only to the extent they could be defined through visible personal characteristics to which a vocabulary could be attached that simultaneously referred to socially invented generalities (Martinot 2003, 64-66). An important step in this process was provided by the 1662 act that established matrilinearity, effectively instrumentalizing motherhood. To understand the import of this event, however, I must first return to the story of the invention of race itself.

The Structure of Racialization

A critical moment in the evolution of the concept of race happened in 1676 with Bacon’s Rebellion. The rebellion did not itself produce a concept of race, but provided a political exigency for the elite to move in that direction. Nathaniel Bacon was a young plantation owner who set about organizing the small farmers at the periphery of the colony. The Colonial Council had given land in outlying areas to these farmers (most of them formerly indentured) in hopes that the settlements would act as buffers between the colony and indigenous communities. Since wealth depended on land, these farmers were condemned to inferior economic and political status as long as extension of their holdings beyond the colony’s boundaries was prohibited. Bacon led bands of farmers on unprovoked assaults against the Algonquin, and then attacked the Colonial Council for insufficiently protecting them against the Algonquin counterattacks (Breen 1976, 200). The ensuing war between Bacon and the council brought both English and African bond-laborers together under arms in his ranks. Traditionally, and likely because labor organization was at that time considered sedition and brutally suppressed, these groups built alliances by running away not organized rebellion .

The English and African armed alliances panicked the Colonial Council, and to protect itself, it proceeded at a psychological and ideological level to restructure colonial culture (Zinn 1980, 55; Allen 1996, 242). The council began by initiating a fear campaign among the English against the alleged threat of "Negro insurrection" and fomented this fear by making reference to the disruptions and hardships suffered during Bacon’s revolt (Hening 1809, 492). By blatantly shifting the burden for future disruption to African bond-laborers, it "Africanized" the concept of rebellion, and made Africans the focus of a gratuitous English social anxiety. The council could have alleviated the hardships of bond-labor generally, or given the Africans liberty as laborers, obviating the potential for rebellion. Instead, it chose to increase the numbers of Africans forced into servitude and to require plantation owners to augment the severity of their labor conditions. The council’s strategy was to instigate fear among the English, not to enhance the security of the colony. The effect was social paranoia among the English and a subsequent call for social solidarity and allegiance against the "enemy within."

The resulting siege mentality prepared the colony to accept codification of permanent servitude for all Africans in 1682. Free Africans and Afro-Americans were ordered to leave the colony or face enslavement, and manumission was permitted only if bonded (Breen 1976, 36). The slave codes placed the Africans in social alterity, concretizing the hiatus between the two groups established through fear and the new ethic of solidarity around which the English rallied. This new alliance initiated a transformation of English social identity; they began to see themselves as "white" in contrast to "Negro" bond-laborers. Organized systems of violence and slave patrols completed the process (Martinot 2003, 67). The patrols, composed of conscripted poor whites, farmers and laborers, were charged with stopping runaway slaves and disrupting any sign of organization or autonomy among them. Discovering that the "suppression" of real or imagined resistance gained them the approval and gratitude of the elite, these patrols rapidly developed forms of gratuitous brutality against bond-laborers. Indeed, more than approval, patrol violence brought about actual integration of poorer English farmers into a society of landed elites, completing the consolidation of that society as white. Violence against bond-laborers was not only an expression of English fearfulness; it also justified the social paranoia engendered by slavery and rationalized future violence. The conjunction of these factors provided a cultural sanctification for having instituted slavery in the first place, enabling the English to feel "civilized" and genteel about having imposed barbaric labor conditions on the Africans.

This cycle of paranoia and violence unfolded endlessly at the heart of Virginia. Social paranoia toward the slave produced a demand for solidarity among the English, and the demand for English solidarity and allegiance against the slaves made that violence more acceptable. In the context of corporate administrative stratification, this self-perpetuating cycle produced a cultural consensus around a new social identity as white, setting the conditions for a future national identity. This cycle articulates the structure of racialization that has given rise to the modern American concept of "race" That is, this new white cultural identity, constructed through and on an imposed social category differential between the English and the Africans as wholly "other," then formed the basis for the modern concept of racialization. In other words, racialization is a system of social categorization constituted to sustain a sense of white racialized identity as dominant.

At the same time, in creating for themselves this alternate cultural identity of whiteness, the colonists superseded their sense of being English. This subsequently formed the basis for an independence movement (Zinn 1980, 68). The colonists did not reject their English origins in becoming white, but they shifted their allegiance to a different sociocultural framework of identification. Their project for independence did not imply any social or political change; for them, the capitalist structure of plantation agribusiness and slavery was satisfactory. But they sought, for both cultural and politico-economic reasons, to take control of the slave system through which the structure of racialization and their white identity had been constructed. This is reflected in the Declaration of Independence, which opens with the words, "When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another"—the colonists had indeed come to consider themselves a different people from the English. And the republic they founded was to be a white nation, a fact written into one of Congress’s first major pieces of legislation, the Naturalization Act of 1790, which provided citizenship only for white immigrants.

Ultimately, it is this same (founding) cycle of paranoia, solidarity, and violence that is played out in the McKnight case. The state, the prosecutor, the jury, and the Supreme Court, agreed that this black woman was a criminal who had wantonly killed her child, and was thus a threat to society—to which they violently responded by incarcerating her. [4]  That McKnight’s conviction could occur without the slightest reference to any actual causal relation between cocaine and stillbirth testifies to the state’s desperate need for a sense of menace (Roberts 1997, 158). Paranoia needs no substance. One sees the need for a new source of paranoia and a new kind of violence against black personhood in the wake of the civil rights movements, for instance, through which black people achieved self-valorization together with exposing white supremacy’s endless criminality, weakening the structure of racialization. To reconstitute white racialized identity, a general campaign to criminalize black people was engendered through racially focused anti-drug arrests and an expanded category of victimless crime laws with discriminatory sentencing (which has produced the largest prison population in the world in absolute numbers, 75 percent of whom are of color). A renewed alterity has been imposed upon black and brown communities, whose effect has been to regenerate a white social solidarity against it. The injustice against McKnight is not simply a racial prejudice against her blackness on the part of the state’s agents. Her blackness was there to be used as a social "threat," to open an avenue of legal violence designed to reconstitute white social cohesion. W. E. B. DuBois notes a similar process promulgated in the wake of Reconstruction: Jim Crow, chain gangs, debt servitude, and mob rule were all instituted to reconstitute white identity in the wake of the shocks it suffered from the abolition of slavery (1935/1975, 700). 

The Redefinition of Gender

Let us return to the moment in 1662 when the matrilineal servitude statute and the first prohibition of sexual relations between English and African persons, two laws solidifying the differential categorization of English and African peoples, were passed. The title of the act was Negro Women’s Children to Serve according to the Condition of the Mother and it read:

WHEREAS some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shall be held bond or free only according to the condition of the mother. And that if any christian shall commit fornication with a negro man or woman, he or she so offending shall pay double the fines imposed by the former act. (Hening 1809, 2:170) 

The second part, the ban on what we now call miscegenation, clearly failed in its purpose, since a long series of ever more severe similar statutes followed it. Prior to 1662, though there were religious bans, there were no secular restrictions on (heterosexual) marriage; however, longer servitude was imposed on both men and women bond-laborers who married. Making intimacy between Africans and English a crime implied that such relations were all too common for elite taste or interest. Otherwise, why bother? The colony was not a democracy; law was used to create social norms, not to express them. Winthrop Jordan has argued that the English brought an antipathy to people of color with them when they crossed the ocean, which the prohibition on mixed marriage reflected (1977, 4). However, a cultural antipathy would have minimized mixed marriage, rendering official prohibition unnecessary; yet even this law did not stop the practice. Broader laws and enhanced punishments followed. Indeed, a 1681 statute shifted the punishment for bond-laborer intermarriage to the plantation owner who allowed it, thereby increasing the social pressure against such mixed relationships by aiming higher on the social scale to curtail them.

The act’s first part, which established matrilinearity and stipulated that children of indentured English would follow their mother’ s contractual release date, symbolized the Colonial Council’s decision to shift its plantation labor force to Africans and move swiftly toward perpetual servitude for Africans. The law’s focus was clear: it was designed both to enhance plantation wealth through the potential childbearing capacity of African women and to extend the commodification of the African people through sexuality deployed in the interests of wealth. English bond-laborers working alongside Africans did not benefit from this measure and they could not escape its effects. The differentiation imposed on motherhood initiated an extension of the juridical difference between bond-labor and free labor to a definition of African and English as social categories, through the categorization of women.

The statute violated the fundamental English legal principle of patriarchal descent. In this respect, it represented a severe identity crisis in the colony posed by the presence of Africans to English society. In order to remain purely English, colonial society had been, from the beginning, insular with respect to indigenous communities, excluding them after failing to enslave them. The decision to shift the labor force to Africans not only disturbed that insularity but also created a dilemma between the colony’s desire to hold people in perpetual servitude as capital and its desire to preserve its moral stature (as civilized). Reversing the English common law of descent, in which children had inherited the status of the father, freed the plantation owners somewhat from this dilemma. Servitude could be considered under the heading of patriarchal domination rather than in conflict with patriarchal right. The English could abjure any release date for African bond-laborers and still feel good about themselves. Thus, the law both nudged the colony toward a slaveholding system and opened a fracture of identification between the colony and England.

Yet the identity crisis this moral dilemma posed had already made an earlier appearance in the colony. In 1630, an Englishman named Hugh Davis was whipped for having sexual relations with a "negro" (Hening 1809, 146). At the time, his act violated no prohibitory law. The record states that Davis was whipped "before an assembly of Negroes and others," though the number of African bond-laborers held in the colony was still small. His offense, "defiling his body" by "lying with a Negro woman," only violated religious doctrine ("bodily self-defilement"), though his punishment occurred under secular authority. The case thus resides at the interface between religious and secular governance.

The report’s prioritization of the "Negro" contingent in the audience is puzzling. If the general purpose of punishment was were deterrence, then the report would imply that the Africans were its target. But how would punishing the Englishman accomplish that? Were the Africans being instructed in the Christian concept of bodily defilement by witnessing the damaging of a Christian body? Perhaps the Africans were using sexuality as a way of transforming or alleviating their condition, just as the settlers had told them they should use baptism and conversion to Christianity as a means to freedom. If the purpose of the punishment was to dissuade the Africans from sleeping with the English, why whip the English partner? Perhaps Davis had raped the woman and her compatriots filled the audience to see him punished, but nothing suggests this. Also, in the seventeenth century, the assaulted woman was generally the one punished for presumably having misused her sexuality. Nothing in this case was reported about what happened to the woman. If she was punished, it was probably with greater severity; but the council minutes do not mention it. Indeed, had Davis sexually assaulted her, he would probably have been commended for having thus kept a woman in her place. On the contrary, given the colony’s subsequent failure to write an antimiscegenation statute that worked, the encounter between this English man and the unnamed African woman can be construed as one of mutual attraction.

We are left to conclude that the punishment was primarily designed to create fear among English men against sleeping with African women. In light of the elite’s apparent intention to disassociate English and Africans, the report’s terseness must have been strategic. Though the Africans were to be prohibited as a site of sexual desire (the actual content of Davis’s punishment), that focus was to be disguised by emphasizing the African component of the audience in punishing the Englishman. The punishment’s purpose then was an instrumentalization of Africans for the purpose of keeping the English in line, reconstituting English social identity as a form of social control. That is, the arcane politics of this event, occurring without authorization of law, revealed a political crisis, the elite’s inability to rule traditionally in the face of the social heterogeneity African presence posed; this ad hoc differential categorization of English and Africans was the elite’s primary response. In this sense, the matrilineal servitude statute’s explicit focus on African women was a direct continuation of this process of identity creation. And the structure of politico-cultural identity that is revealed in this process would be repeated not only in the promulgation of matrilineal servitude status but also in the criminalization of Regina McKnight’s personhood.

Because the mixed children of free women would be free, the focus on African women had to be augmented by an antimiscegenation provision regulating the sexuality of free English women. Any children of free English women by African men would be free, and thus in conflict with the elite desire to hold all Africans in bond-labor. Thus, English women were to be carefully monitored to insure against this possibility and punished for transgression. The penalty was only a fine, but the inability to pay it resulted in indentured servitude.

In effect, this law not only renarrativized (and redefined) African motherhood as economic production to enhance plantation wealth but also renarrativized English motherhood as "cultural production." That is, English women were disciplined to embody the social purity of the colonial project. The overall effect of this double renarrativization was a category division between English and African mothers. African women were more directly imprisoned as property by the profitability of their labor and their childbearing capacity (Roberts 1997, 24). They were both robbed of their womanness as persons, and robbed of their personhood as women, dismembered by sexuality turned against motherhood and motherhood turned against sexuality. And though all bond-labor women were vulnerable to sexual assault, the matrilinearity statute invited assault against African women by legitimizing it in advance as an augmentation of plantation wealth. Indeed, according to Kenneth Stampp, breeding farms for African women were later created at considerable profit (1956, 245). Furthermore, under fully codified slavery, motherhood would again be turned against bond-labor women as a control mechanism: less supervision was required for women with small children to care for or nurse.

Roberts explains how contemporary campaigns to turn mother and fetus against one another reflect a direct inversion of what slavery instituted. Whereas under slavery African women were punished for not producing children, recent policies toward women of color, such as forced sterilization or forced abortion, punish women of color for producing children (1997, 40). Roberts cites cases of positive drug tests used to charge the pregnant woman with child abuse rather than drug abuse in order to force her to choose between aborting or going to jail (181). Both policies, although decreed three hundred years apart, reflect white patriarchal claims on the fetus. But they are deployed differently in pitting a woman’s childbearing capacity against her own personhood (152). While in the seventeenth century, black women were instrumentalized for the production of children as a stage in the construction of a white racialized identity, in the twenty-first century, they are to be rendered nonproductive for the same purposes. As a black woman, Regina McKnight is of no concern to a state focused on her reproductive capacity; her children are similarly of no concern to the state except as instruments for controlling McKnight as a black woman. In both cases, black women’s biological generativity is denigrated to a form of political instrumentality indexed not by sex but by race, and in which their children are to be used against them. What threads its way from the founding of slavery to the "war on drugs" is a structuring of white male instrumentalization of women that varies in content but exhibits the same form—a form contrived in the seventeenth century that resurfaces even up to the present.

For nominally free English women threatened with punishment for bearing free Afro-English children, an obligation was imposed to aspire to a social status defined by female sexual discretion. Their comportment was thus given iconic (rather than economic) value in requiring that they not be sexual beings, while still bearing children that the colony could certify as wholly "English." This narrative of propriety exists for white "southern womanhood" (at least as male mythology) well into the present era (Dollard 1949, 136). [5] The colony’s demand for black women’s obeisance also rendered them a different form of property across the category differential established between English and African women. Both English and African women were reduced in different ways to controlled breeding stock: one the producers of property and the other the producers of heirs to that property. While matrilineal statutes legitimized the sexual violation of some, antimiscegenation law violated the legitimacy of sexuality for all (Roberts 1997, 41).

In summary, in order for English women’s bodies to become sites of sexual purity, African women’s bodies had to become culturally hypersexualized. English women became the desexualized site of validated motherhood through the reduction of African motherhood to the status of capital. Sexuality and motherhood were thrown against each other in opposite ways, marking a disparate fracturing of the being of English and African women. In short, women and womanly being were deployed to shift a prior juridical distinction between the English and the Africans to a bio-economic plane. And through this fracturing of women, society was divided categorically; English and African were rendered socially incommensurable with one another. Herein was born the incommensurability that the concept of "race" sought to naturalize, revealed in full relationality. Yet contrary to the myth of "naturalized" race, it is the hegemonic group that remains dependent on those it dominates for its ability to define and redefine itself through them.

The birth of American whiteness and national identity converge across and through the race-marked bodies of women. Ultimately, the embodiment of sexuality in women of color in order to withhold sexuality from English women rendered sexuality as such an extension of the market, and the bond-labor market an extension of sexuality. The "color coding" of sexuality produced a sexualization of color, which augmented the emerging "color coding" of labor.

While the matrilineal servitude statute’s explicit purpose was to reduce women to different forms of productive resource, it also transformed the gender identity of men. On the one hand, African men and women were reduced to different forms of capital, that is, people held as productive resources for the benefit of plantation profitability. English men, on the other hand, found themselves conscripted to guard English women’s chastity. If masculinity’s definition of itself is contingent upon its own definition of femininity, then any attempt to redefine female identity will shift the definition of male identity. In trapping themselves in the role of holding English women to racialized standards for sexual purity and propriety, the English men’s sexual choices were severely reduced, precisely because it reduced them to policing and surveillance functions. That is, the reduction of English women to chaste breeders of a pure race at the same time reduced the possibilities for English men. An English man found himself having to marry the desexed signifier for propriety and the cold purity of ancestry, rather than a warm woman. And it was in these terms that the dissevering of all women, race-marked through specularized black women as forbidden objects of desire, incited a history of white male sexual transgression.

In sum, Africans and African Americans were transformed into mediations of the property relations between English men, while all women (English and African) were conscripted to mediate the relation between English men and their property. Property relations were rendered inseparable from gender relations, not simply with respect to inheritance or a division of labor, but as a proprietary categorization of people that would later be canonized as "race" and nation.

In the McKnight case, the state’s proprietary relation to motherhood was inseparable from the poor labor conditions it fostered, as well as its racialized instrumentalization of women. Its formal instrumentalization of black women, and thus of black people in general, through an imposed criminalization, remains as essential today for the social coherence of white society as it was in the seventeenth-century colony. It is not just that pragmatic racism allows the white state to discipline black women’s bodies in ways that Roberts documents. Black women’s suffering is immaterial to the state. Instead, it acts to instrumentalize black women as the mark of propriety for the reconstructed coherence of white society and white racialized identity.

On the Role of Anti-miscegenation Laws

Another element of the 1662 statute needs to be fleshed out. For the colony of Virginia, a historical gap still had to be traversed between the social differentiation of women and the concept of race. A second step across this space was provided by the antimiscegenation law passed at the same time as the matrilinearity statute. As Eva Saks argues, this antimiscegenation law represents the "power of legal language to construct, criminalize, and appropriate the human body itself" (1988, 39). Not only is the law consistent with the ethos of slavery but it is also essential to it. The principle that heritage is definable by statute means that it forms part of the system of entitlements characteristic of property. In codifying sexuality, antimiscegenation law politically links the forcible control of bond-labor bodies with the morality and social identity implicated in the codification of slavery. It thus serves a political purpose beyond the merely economic interests of the elite. On the one hand, as we have seen, an allegiance among English men was demanded by the prohibitions on interracial relations. On the other hand, antimiscegenation law served to prevent intimacy between African women and English men that might lead an English man to take a protective stance toward an African woman. In both respects, matters of property trumped matters of personal relationship.

A similar cultural norm was imposed on English women. In 1664, the Maryland colony published a denunciation of "freeborn English women [who] forgetful of their free condition and to the disgrace of our nation do intermarry with Negro slaves" (Alpert 1970, 195). English women were thereby instructed to embody allegiance to the colony ("nation"), and its evolving system of slavery. If a "freeborn" condition can be "forgotten," of course, then it must be other than innate; instead, it is granted by male governance as a privilege and open to future review. With a discursive sleight of hand, Maryland conflated the "natural" condition of being freeborn with the social separations invented by the statute. U.S. history is rife with this same conflation. The Declaration of Independence performs it in its delimitation of universal "inalienable rights" to "white men" by failing to proclaim the abolition of slavery. When the U.S. Constitution says "We, the people of the United States," it presupposes the natural preexistence of a people who can so identify themselves by property, race, sexuality, and gender, though they exist only as defined by that constitution. In effect, the definition of a socially defined condition as "natural" exhibits continuity in U.S. society.

Ultimately, this conflation would appear in the eighteenth century in the definition of race as biological. Through the original division of women along color lines, a boundary was constructed within plantation culture between desexualized English propriety and African-American sexualized productivity. Sociopolitical control of bodies was then "naturalized" in the cultural evolution of a concept of race; that is, the underlying biology of motherhood, seized and denatured juridically by the colonial state, was renaturalized as a different hierarchical (racial) "biology" by eighteenth-century naturalism and codified in the newly emerging biologically based human sciences as race. Through this extended process, the ever-intensified bans on mixed relationships after 1662 (that did not express a "racism" which had not yet been conceptualized) were integral to the eventual invention of race, the production of racism, and the subsequent construction of "American" as a national identity. Eventually traversing the complicated cycle of paranoia, social solidarity, and normalization of violence, this division of women was a critical aspect of the English arriving at a self-identification as white.

Race does not exist as a biologically determined natural hierarchy of peoples; whites invented racial hierarchy and, as white, made themselves supreme and hegemonic. But before society could be racialized, it had first to be transformed through the instrumentalization of women. In particular, before race could become race, it had first to become a property of property (Saks 1988, 50). And today, the ever increasing state control over black motherhood can be understood as a reracialization of state and society.

Yet what disguises the false naturalization of this process is the fact that language itself is racialized. In particular, its descriptive terms for color are transformed into symbols for arbitrary social categorizations. When the English produced a sense of whiteness for themselves through their racialization of Africans as black ("negro"), neither term described human appearance. They referred to a structure of social organization, which they functioned to sustain. This function is nowhere more evident than in the purity condition that is indispensable to the definition of whiteness. Following the so-called one-drop rule, a person is white if and only if all his or her ancestors are white, and antimiscegenation laws became essential to that end. Any mixing of parentage had to be defined as nonwhite. Under this definition, a single black ancestor will make a person black, while a single white ancestor will not make a person white. Far from any natural condition, the distinction remains purely conceptual. Though the "purity condition" pretends that whiteness had separate original group standing, only the definition of others as nonwhite enables the defining group to define itself as white relationally through those others. Under the aegis of that interest, in the Virginia colony, the purity of white womanhood became a metonym for slavery, and the sexuality of African-American women became a metaphor for white racialized consensus. 

Plus Ça Change

The creation of matrilineal servitude status, the insidious division of women against one another in the interests of wealth and property, expressed nothing more actual or exigent than colonial greed. Antmiscegenation statutes extended racial categories to the human body as property. Together, the legislation of motherhood and sexuality transformed property by extending the body as property to the body as production. The two coalesced as slavery and a structure of racialization, by which the English derogated people of color and defined themselves as white.

Structurally, these enactments together engendered a cyclic process. Sexuality, seized as property in Africans and desexualized as propriety for the English, extended the body as production to commodified personhood. Commodified personhood formed the grounds for the codification of slavery and the transformation of colonial allegiance (through paranoia and enforced social solidarity) into a structure of racialization whose ultimate product was white social identity. Slavery, the ultimate extension of the body as property, gives all interpersonal relations a commodified character that through racialization renders all forms of personhood a matter of property. This cycle continually reproduces race, whiteness, and white supremacy, in which political enactment, paramilitary activity, the use of economic and financial power, and the instrumentalization of women have always been deployed together. Throughout their many redefinitions, race, sexuality, gender, and nation have been mutually conditioning in the production of American whiteness and in the construction of a white nation. As Roberts argues, at the confluence of motherhood, race, and white supremacy, the state’s persecution of a black woman will not only extend its control over childbearing, but reinstate the biologization of race at the same time (1997, 20).

What colonial white society did to African women through matrilineal statues (to construct structures of racialization), contemporary white society does to Regina McKnight through charges of murder. Her personhood and motherhood are not violently divided against each other legally because the state is rehearsing or reconstituting a form of matrilinearity; the violence done to her is in the service of reenacting the structures of white supremacy that emerged from matrilinearity. For the state to have provided medical care or humane labor conditions would have been unintelligible for it. Instead, the state imprints outlaw status and servitude on McKnight’s body to sanctify its withholding of humane conditions, as the reconstitution of a white social consensus.

Because the state could repeat this cycle with respect to McKnight, it could use her and other black women (through the instrumentalization of black motherhood) to reinscribe social racialization and its own white identity. In this sense, the McKnight case is the direct legacy of the seventeenth-century invention of race itself. Repeating the redefinition of gender and sexuality of three hundred years earlier, the condemnation of McKnight echoes the colonial condemnation of the black pregnant body—restructuring race through a paranoia (the threat of criminalized black people), white solidarity (allegiance to the law), and practices of arbitrary and gratuitous violence.

At no time did the invention of race or the redefinition of women occur without the intervention of the state. All have reflected the state’s power to define race, sexuality, and gender. The inner meaning of Regina McKnight’s sitting in prison is to justify that power to define—in this case, the power to define cocaine rather than hunger and fatigue as the instrument of fetal death. The state’s need to sanctify itself, to decriminalize its abrogation of responsibility, had already defined McKnight as an instrumentality whereby her criminalization could be deployed to set a new legal precedent for itself. But what is new only marks a recapitulation in yet another form of a historical structure reappearing in the present that requires the condemnation and sacrifice of black bodies and black personhood in the service of the purity of whiteness.


1. Once a woman entered the justice system through detected drug use, she was given the choice by the courts either to use Norplant or to be incarcerated (this was true at the time Roberts was writing; Norplant was taken off the market in 2002). Roberts argues that this is a continuation of earlier sterilization programs, under which medical care was withheld unless the women agreed to be sterilized (1997, 176). 

2. The major elements of this account are condensed from my The Rule of Racialization (2003), where I rely extensively on Allen 1996; DuBois 1935/1975; and Zinn 1980. I diverge from Allen’s and Zinn’s accounts of the colonial period because I do not center class relations as they do. 

3. It is also worth noting here that when the first Africans appeared on a Dutch slave ship at the port of Jamestown in 1619, they were purchased by the Colonial Council and distributed to various plantations. The number of Africans remained insignificant until the 1660s (Boskin 1979, 14). In 1650, there were only three hundred Africans within a total bond-labor population of several thousand. 

4. "Black criminal conduct" labels anything that threatens white supremacy. This includes things like autonomous organizational activity and mass gatherings. Black social events must jump through the proper police hoops to assure the state that the people involved will not be questioning white hegemony (Roberts 1997, 186).

5. Oliver Cox (1970, 387) pointed out that the "honor and sanctity of white womanhood" is but another cover for an absolute white refusal of peer status or equality for black people through black men. Yet interracial marriage would remain insufficient to resolve the racial dichotomy, because an entire cultural framework, involving intraracial gender relations and the structure of property, are products of the structure of racialization, of which sexuality and marriage are only one dimension.


Allen, Theodore. 1996. The Invention of the White Race. Volume 2. New York: Verso.

Alpert, Jonathan. 1970. The origin of slavery in the United States—the Maryland precedent. American Journal of Legal History 14: 189-221.

Boskin, Joseph. 1979. Into slavery: Racial decisions in the Virginia Colony. Washington, D.C.: University Press of America.

Breen, T. H. 1976. A changing labor force and race relations in Virginia, 1660-1710. In Shaping Southern Society, ed. T. H. Breen. New York: Oxford University Press.

Cox, Oliver. 1970. Caste, class, and race. New York: Monthly Review Press.

Dollard, John. 1949. Caste and Class in a Southern Town. New York: Doubleday Anchor.

DuBois, William E. B. 1935/1975. Black Reconstruction. New York: Atheneum.

Hening, William W., ed. 1809. Statutes at large: A collection of all the laws of Virginia. Richmond, Va.: Samuel Pleasants, Junior.

Jordan, Winthrop. 1977. White over Black: American Attitudes toward the Negro, 1550-1812. New York: Norton.

Martinot, Steve. 2003. The Rule of Racialization. Philadelphia: Temple University Press.

Massey, Douglas, and Nancy Denton. 1993. American Apartheid. Cambridge, Mass.: Harvard University Press.

Roberts, Dorothy. 1997. Killing the Black Body. New York: Pantheon Books.

Rosen, Harry, and David Rosen. 1962. But not next door. New York: Avon.

Saks, Eva. 1988. Representing miscegenation law. Raritan 8 (2): 39-69.

Stampp, Kenneth. 1956. The Peculiar Institution. New York: Vintage.

Talvi, Silja J.A. 2003. Criminalizing Motherhood. The Nation, Dec. 3.

Zinn, Howard. 1980. The People’s History of the United States. New York: Harper and Row.