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Historicizing Law Making

The Scope of Jim Crow in Virginia: Then and Now

“Jim Crow” is the term used to describe the post-Civil War to civil rights movement time of legalized racial segregation and white supremacy in the United States, derived from the title of a minstrel performance from the mid-19th Century. It is hard to assign a set starting and ending date of the Jim Crow period, but in Virginia it could be argued to cover from the implementation of Black Codes in 1866 immediately after the Civil War1 through the end of Virginia’s campaign of Massive Resistance to school desegregation in approximately 19682. That timeline corresponds with the 1865-1968 corpus of Virginia legislation we have made publicly available in this project.

As with the University of North Carolina’s project, On The Books: Jim Crow and Algorithms of Resistance, we were inspired by the work of Pauli Murray in their3book, States’ Laws on Race and Color (1950). Murray’s groundbreaking work collected 20th-century state laws that either prohibited racial discrimination or segregation, or enacted or authorized racial discrimination up through 1949. Murray identified and reprinted 113 such laws for that time period in Virginia, most of which enforced Virginia’s particular system of racial segregation and discrimination. The Virginia laws Murray cataloged included those with clearly racially discriminatory language, such as a law initially enacted in 1902 that allowed the State Corporation Commission to require transportation companies to have “Separate waiting rooms for white and colored races.”4 Murray also exposed laws that did not have clearly racist language, but were intended to have racist effect, such as a 1946 law that prohibited “Riotous or disorderly conduct” in “public places” or “public conveyance.”5 Although that law was not expressly racist in its language, Murray notes that it was used “in cases where Negroes have contested segregation practice of public carriers in Virginia.”6

Expanding on Murray’s work, the Commission to Examine Racial Inequity in Virginia Law embarked on a two-year study to find racist Virginia legislation that remained “on the books” as it was never repealed even if no longer enforced. The Commission found 98 pieces of still “on the books” legislation that it recommended be repealed because they were “racist or discriminatory on their face” or “appear[ed] neutral but which, when read in historical context, demonstrate[d] their discriminatory intent.”7 Those racist laws encompassed aspects of life including voting, education, health, transportation, housing, and criminal law. The Commission then reviewed the ongoing effects of the decades of racist legislation in Virginia, finding that the intended discriminatory effects of the legislation persist to this day: “many people of color in Virginia still live in segregated communities, attend segregated schools, have disparately negative health, economic, and educational outcomes, and represent a disproportionately large share of the Commonwealth’s prison population.”8 The Commission concluded that the ongoing inequity should surprise no-one as “this is what structural racism looks like. Virginia policymakers and other leaders spent centuries building legal and other structures to comprehensively segregate and oppress people of color. While the laws have gone away, the impact of what they built, has not.”9

The scope of Jim Crow legislating in Virginia, then and now, is deep, pernicious and insidious. Hundreds of racist laws built upon one another for decades to enforce a racist structure of apartheid that encompassed all aspects of life. Known as the “Virginia Way,” the state’s system of segregation rested on a false and pernicious narrative of paternalism and of racial separation by consent. Based on this falsehood, the state positioned itself as a model of eugenics and “racial integrity” movements, voting rights restrictions, and Massive Resistance to school integration. 

In 1866, shortly after the end of the Civil War, the Virginia General Assembly passed a law essentially recodifying forced labor: “Whereas, there has lately been an increase of idle and disorderly persons, it is enacted that vagrants may be ordered to be employed for a term not exceeding three months, and to be hired out for the best wages that can be procured.”10 By 1902, Virginia had enshrined segregated schools in its constitution and required local governments to keep track of who had paid poll taxes.11 In the 1920s, the General Assembly passed a series of “racial integrity” laws, solidifying not just segregation and separation, but the concept of white supremacy itself within the states’ laws.12 Virginia’s infamous laws prohibiting “miscegenation,” or marriage between a white person and a “colored person,” were first passed in 1887, but were strengthened during this 1920s time period.13 After the Brown v. Board of Education decision in 1954, Virginia led the Massive Resistance movement by passing a series of laws to evade the order to desegregate. The General Assembly intentionally worded those laws to make it appear that they were not racist, such as by using vague language providing state funds to white parents moving their children to private segregation academies if there was “no adequate public school available” or “the welfare of the child would be best served.”14

In the Modeling a Racial Caste System project, we have tried to address the scope of Jim Crow laws in Virginia with the spirit of Pauli Murray’s work in mind. Murray was well aware that legislatures routinely hid racist intent behind vague or facially race neutral language. In analyzing the scope of Jim Crow in Virginia, it is crucial to be true to that awareness—racist systems are often perpetuated through legal language that does not carry the appearance of racism. It is our hope that this project will help researchers assess the extent to which current legislation may have race-neutral language hiding racist effect or intention. We also want to keep in mind the lessons from the Commission to Examine Racial Inequity in Virginia Law: uncovering the full extent of the language of Jim Crow legislation is only part of the work; correcting the ongoing inequitable effects of that language is also necessary. As the Commission pointed out, the 1902 Virginia Constitution or the other Jim Crow legislation may no longer be in legal effect, but the racist systems they enforced and propped up continue to have serious inequitable effects on Black people and people of color living in Virginia.

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