The legal construct of race in the United States

In 1654, mixed-race Elizabeth Key legally challenged her enslavement on the basis of three points: (1) British law barred the enslavement of British citizens; (2) British common law established the citizenship of the child through the status of the father; and (3) British law barred the enslavement of baptized Christians. Key argued that her father was a British citizen, thus she too was a British citizen. Her father had recognized her as his own and had baptized her as a young girl. Therefore, Key must be set free. She won her case and opened the door for several more enslaved people in Virginia to win their freedom on the same basis in subsequent years. 

The Virginia House of Burgesses was threatened by the prospect of losing legal claim to generations of free labor and incalculable wealth. So it moved to close the loopholes that Key’s case revealed. It passed legislation in 1662 that was modeled after the Roman law of partus sequitur ventrem, which determined the citizenship status of the child according to the status of the mother, not the father. This shift allowed White slaveholders to continue raping enslaved Black women and producing mixed-race free labor with absolute impunity. British masters no longer had to acknowledge their children before the law, so their children had no claim to citizenship under British law. This single law laid the foundation for the legal construct of race in the US. 

From “Fortune: How Race Broke My Family and the World–and How to Repair It All” by Lisa Sharon Harper