Mixed Race Studies

A Reappraisal of the Constitutionality of Miscegenation Statutes

Cornell Law Quarterly
Volume 42, Issue 2 (Winter 1957)
pages 208-222

Andrew D. Weinberger, LL.B., D. HUM, Member of the New York Bar, New York City & Visiting Professor of Law
Nationzal University of Mexico

Today [in 1957], 21 States of the Union by statute forbid marriages on racial grounds. These statutes are neither uniform in the racial groups against whom the ban is applicable, nor in defining membership in the various ethnic groups. Thus, while in Utah white-Mongolian marriages are illegal and void, in North Carolina they are permitted. In Arkansas, where white-Negro marriages are void, a Negro is defined as “any person who has in his or her veins any Negro blood whatever.” In Florida, one ceases to be a Negro when he has less than “one-eighth of . . . African or Negro blood”; and in Oklahoma, anyone not of “African descent” is miraculously transmuted into a member of the white race.

The racial groups affected by such statutes include Mongolians, Malays, Hindus, Chinese, Japanese, Ethiopians, American Indians, Cherokees, Mestizos, Halfbreeds, and “the brown race.” The sole racial group (other than white persons) affected by all twenty-one statutes is the Negro…

Read the entire article here.

Legal Transplants: Slavery and the Civil Law in Louisiana

University of Southern California Legal Studies Working Paper Series
Working Paper 32
May 2009
37 pages

Ariela J. Gross, Professor of Law and History
University of Southern California Law School

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction “transplanted” in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a “Black Code,” first adopted in 1806, which owed a great deal to both French and Spanish law. Comparisons of Louisiana with other slave states tend to emphasize the uniqueness of New Orleans’ three-tier caste system, with a significant population of gens de couleur libre (free people of color), and the ameliorative influence of Spanish law. This reflects more general assumptions about comparative race and slavery in the Americas, based on the work of Frank Tannenbaum and other historians of an earlier generation, who drew sharp contrasts between slavery in British and Spanish America. How does the comparison shift if we turn our attention away from slave codes, where Tannenbaum focused, to the “law in action”? At the local level, one can see the way slaves took advantage of the gap between rules and enforcement, and to fathom racial meanings at the level of day-to-day interactions rather than comparisions of formal rules. This essay surveys three areas of law involving slaves – manumission, racial identity, and “redhibition” (breach of warranty) – to compare Louisiana to other jurisdictions, and particularly to its common-law neighbors.

…The first major slave codes in the North American colonies date to 1680-82. They draw numerous distinctions on the basis of race rather than status, including laws against carrying arms and against leaving the owner’s plantations without a certificate. A penalty of thirty lashes met “any Negro” who “lift up his hand against any Christian.” In 1691, English women were fined for having a bastard child with a negro. In 1705, all mulatto children were made servants to the age of 31 in Virginia; Maryland and North Carolina adopted the same rule within the next several decades.

By the time the U.S. became a republic, only those of African descent were slaves, and all whites were free. Yet there were a significant number of individuals and entire communities of mixed ancestry with ambiguous racial identity along the Eastern seaboard. In the southeast, Indian tribes both absorbed runaway slaves and, in the late eighteenth century, adopted African slavery. In addition to the 12,000 people designated in the Census as “free people of color” in Virginia, there were 8000 in Maryland in 1790, 5000 in North Carolina, 1800 in South Carolina, and 400 in Georgia…

Read the entire paper here.

“The Caucasian Cloak”: Mexican Americans and the Politics of Whiteness in the Twentieth-Century Southwest

The Georgetown Law Journal
Volume 95, Issue 2
Pages 337-392

Ariela J. Gross, Professor of Law and History
University of Southern California Law School

The history of Mexican Americans and Jim Crow in the Southwest suggests the danger of allowing state actors or private entities to discriminate on the basis of language or cultural practice. Race in the Southwest was produced through the practices of Jim Crow, which were not based explicitly on race, but rather on language and culture inextricably tied to race. This Article looks at three sets of encounters between Mexican Americans and the state in mid-twentieth-century Texas and California—trials involving miscegenation, school desegregation, and jury exclusion—to see the way in which state actors used Mexican Americans’ nominal white identity under the law to create and protect Jim Crow practices. First, it argues that whiteness operated primarily as a “Caucasian cloak” to obscure the practices of Jim Crow and to make them appear benign, whether in the jury or school context. If Mexican Americans were white, then they were represented so long as whites were represented. Second, it demonstrates that Mexican-American civil rights leaders as well as ordinary individuals in the courtroom did not simply identify as white; some showed a more complex understanding of “Mexican” as a mestizo race, and others pointed to the idea of race as a status produced by racist practice. Mexicans were nonwhite if they were treated as nonwhite under Jim Crow. Finally, it argues that, at least in twentieth-century Texas and California, cultural discrimination was racial discrimination, and that continuing discrimination on the basis of language ability and other cultural attributes should be scrutinized carefully under antidiscrimination law…

Table of Contents

INTRODUCTION
MEXICAN-AMERICAN WHITENESS BEFORE 1930
A. THE NINETEENTH CENTURY
B. WHITE BY TREATY—IN RE RODRIGUEZ
C. SEX ACROSS RACIAL BORDERS: POPULAR AND LEGAL IDEAS OF THE “MEXICAN RACE”

II. THE POLITICS OF WHITENESS IN THE 1930S AND 1940S
A. JIM CROW IN THE SOUTHWEST
B. MEXICAN-AMERICAN ORGANIZATIONS AND POLITICS

III. LITIGATING MEXICAN-AMERICAN WHITENESS
A. THE 1930S SCHOOL AND JURY CASES
B. THE 1940S SCHOOL AND JURY CASES

IV. AFTER HERNANDEZ V. TEXAS: LIFTING THE CAUCASIAN CLOAK
A. FROM HERNANDEZ V. TEXAS TO CISNEROS
B. LA RAZA COSMICA

CONCLUSION

Read the entire article here.

Multiracial Matrix: The Role of Race Ideology in the Enforcement of Anti-Discrimination Laws, a United States – Latin America Comparison

Cornell Law Review
Volume 87, Number 5 (July 2002)
Cornell University Law School

Tanya Katerí Hernández, Professor of Law
Fordham University

This Article examines the role of race ideology in the enforcement of antidiscrimination laws.  Professor Hernández demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America.  The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing on race is itself racist.  Because the multiracial matrix parallels much Latin American race discourse, Professor Hernández conducts a comparative analysis between U.S. and Latin American anti-discrimination law enforcement practices.  Professor Hernández concludes that the new race ideology bolsters the maintenance of race hierarchy in a racially diverse population.  Consequently, an uncritical embrace of the new race ideology will hinder the enforcement of antidiscrimination law in the United States.  Professor Hernández proposes that a greater focus on racism as a global issue that treats race as a political identity formation will assist in the recognition of the civil rights dangers of a multiracial matrix.

Read the entire article here.

Legislating Women’s Sexuality: Cherokee Marriage Laws in the Nineteenth Century

Journal of Social History
Volume 38, Number 2, Winter 2004
E-ISSN: 1527-1897 Print ISSN: 0022-4529
DOI: 10.1353/jsh.2004.0144

Fay A. Yarbrough, Associate Professor of History
University of Oklahoma

During the first half of the nineteenth century, the Cherokee Nation passed many laws to regulate marriage and sex. This essay first contemplates the gendered aspects of such laws by exploring the importance of Cherokee women’s marital choices and official response to those choices. In particular, Cherokee women’s choice of non-Cherokee marital partners, most frequently whites, and the concomitant introduction of outsiders into the Nation forced the Cherokee legislative branch to reformulate Cherokee women’s relationship to the production of new citizens in the Nation. Then the essay turns more explicitly to the laws’ racial implications and examines who could marry in the Cherokee Nation and why by first examining Cherokee laws regulating marriage with people of African descent. Cherokees increasingly excluded people of African descent from membership in the Nation through legislation prohibiting legal marriage between Cherokees and people of African descent. Lastly, this essay considers Cherokee legislative provisions to include whites as marriage partners and citizens in the Cherokee Nation. Ultimately, this essay finds that Cherokee officials were redefining Cherokee Indians racially and used marriage laws to write and reinforce this new definition.

Read or purchase the article here.

Engineering American society: the lesson of eugenics

Nature Reviews Genetics
Volume 1, November 2000
pages 153-158

David Micklos
DNA Learning Centre
Cold Spring Harbor Laboratory, New York

Elof Carlson, Professor Emeritus
State University of New York, Stony Brook

We stand at the threshold of a new century, with the whole human genome stretched out before us. Messages from science, the popular media, and the stock market suggest a world of seemingly limitless opportunities to improve human health and productivity. But at the turn of the last century, science and society faced a similar rush to exploit human genetics.  The story of eugenics—humankind’s first venture into a ‘gene age’ — holds a cautionary lesson for our current preoccupation with genes.

Eugenics was the effort to apply the principles of genetics and agricultural breeding towards improving the human race. The term “eugenics”— meaning well born —was coined in 1883 by Francis Galton, a British scientist who used data from biographical dictionaries and alumni records at Oxford and Cambridge Universities to conclude that superior intelligence and abilities were traits that could be inherited.

Most people equate eugenics with atrocities that were committed in Nazi Germany for the sake of racial purity. In this context, eugenics is easy to dismiss as purely aberrant behaviour. However, the story of eugenics in the United States is, perhaps, more important than that of Nazi Germany as a cautionary tale to take with us into our new century.  Here we describe the tale of the subtle ways in which the science of genetics was, by degrees, transformed from an agricultural experiment into a popular movement to engineer American society. The fact that eugenics flourished in the land of liberty, involved numerous prominent scientists and civic leaders, and made its intellectual home at the forerunner of the now prestigious Cold Spring Harbor Laboratory shows just how far America fell from grace during this period…

…Race mixing. Laws against interracial marriage had existed in some states since colonial times, but their number increased after the Civil War. The idea that race mixing, or miscegenation, causes genetic deterioration was proposed by Joseph Arthur Gobineau and other anthropologists in the late nineteenth century. It is worth noting that eugenicists’ conception of race included the classic divisions by skin colour, as well as differences in national origin.  Most lay-eugenicists subscribed to the Biblical idea of ‘like with like’ and that the ‘half-breed’ offspring of parents from two different races were genetically inferior to the parental stock. Davenport’s compilation in 1913 showed that 29 states had laws forbidding mixed-race marriages.  Although these laws were not always enforced, heavy fines and long prison terms showed how seriously American society considered miscegenation to be at that time.

As in the case of immigration restriction, eugenicists were more than willing to provide a supposed scientific rationale for existing
racial prejudice. In his influential book, The Passing of the Great Race, Madison Grant warned that racial mixing was a social crime that would lead to the demise of white civilization. Eugenicists actively supported strengthening pre-existing laws and enacting of new ones, including the Virginia Racial Integrity Act of 1924. The Virginia Act and all other similar state laws were struck down by the United States Supreme Court in 1967 in Loving versus Commonwealth of Virginia…

Read the entire article here.

Reconstruction, Segregation, and Miscegenation: Interracial Marriage and the Law in the Lower South, 1865-1900

American Nineteenth Century History
Volume 6, Issue 1
March 2005
pages 57-76
DOI: 10.1080/14664650500121827

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

On the eve of Congressional Reconstruction, all seven states of the Lower South had laws against interracial marriage. During the Republican interlude that began in 1867-68, six of the seven states (all but Georgia) suspended those laws, whether through judicial invalidation or legislative repeal. Yet by 1894 all six had restored such bans. The trajectory of miscegenation laws in the Lower South between 1865 and 1900 permits a reconsideration of the range of possibilities the Reconstruction era brought to public policy. More than that, it forces a reconsideration of the origins of the Jim Crow South. Legally mandated segregation in public transit, as C. Vann Woodward observed in 1955, took hold late in the century. But such segregation in public education, as Howard R. Rabinowitz pointed out with his formula ‘from exclusion to segregation,’ originated during the first postwar years. Segregation on the marital front – universal at the start of the period and again at the end, but relaxed in most Lower South states for a time in between – combined the two patterns into yet a third. Adding another layer of complexity was the issue of where the color line was located, and thus which individuals were classified on each side of it.

Read or purchase the article here.

Tell the Court I Love My Wife: Race, Marriage, and Law: An American History

Palgrave Macmillan
2002
336 pages
6 1/8 x 9 1/4 inches, 16-page b/w photo insert
ISBN: 978-1-4039-6408-3, ISBN10: 1-4039-6408-4

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

The first in-depth history of miscegenation law in the United States, this book illustrates in vivid detail how states, communities, and the courts have defined and regulated mixed-race marriage from the colonial period to the present. Combining a storyteller’s detail with a historian’s analysis, Peter Wallenstein brings the sagas of Richard and Mildred Loving and countless other interracial couples before them to light in this harrowing history of how individual states had the power to regulate one of the most private aspects of life: marriage.

Table of Contents

• Introduction: “That’s No Good Here”
• Part I. Abominable Mixture and Spurious Issue
  • Sex, Marriage, Race, and Freedom in the Early Chesapeake
  • Indian Foremothers and Freedom Suits in Revolutionary Virginia
  • From the Chesapeake Colonies to the State of California
  • Race, Marriage, and the Crisis of the Union
• Part II. Equal Protection of the Laws
  • Post-Civil War Alabama
  • Reconstruction and the Law of Interracial Marriage
  • Accommodating the Law of Freedom of the Law of Race
  • Interracial Marriage and the Federal Courts, 1857-1917
  • Interlude: Polygamy, Incest, Fornication, Cohabitation – and Interracial Marriage
• Part III. Problem of the Color Line
  • Drawing and Redrawing the Color Line
  • Boundaries – Race and Place in the Law of Marriage
  • Racial Identiy and Family Property
  • Miscegenation Laws, the NAACP, and the Federal Courts, 1941-1963
• Part IV. A Breakthrough Case in California
  • Contesting the Antimiscegenation Regime – the 1960s
  • Virginia vesus the Lovings – and the Lovings versus Virginia
  • America after Loving v. Virginia
• Epilogue: The Color of Love after Loving
  • Appendices
  • Permanent Repeal of State Miscegenation Laws, 1780-1967
  • Intermarriage in Nazi Germany and Apartheid South Africa
  • Indentity and Authority: An Interfaith Couple in Israel
  • Transsexuals, Gender Identity, and the Law of Marriage

Deciding on Doctrine: Anti-Miscegenation Statutes and the Development of Equal Protection Analysis

Virginia Law Review
Number 95, Issue 3 (May 2009)
pages 627-665

Rebecca Schoff
University of Virginia School of Law

In 1967, the Justices of the Supreme Court of the United States were in complete agreement that the statutory scheme before them in Loving v. Virginia, which criminalized interracial marriage, should be invalidated. They did not, however, agree on which legal doctrines justified the invalidation. Eight Justices signed on to an opinion that carefully hedged the question with arguments related to both the equal protection and the due process clauses. Justice Potter Stewart authored a terse concurring opinion asserting that there could be no valid state law “which makes the criminality of an act depend upon the race of the actor.” Although no other member of the Court was willing to sign on to this concurrence, it gave voice to a doctrine that had been a central argument of civil rights litigation, articulated as early as Justice [John Marshall] Harlan’s famed dissent in Plessy v. Ferguson.

This Note will explore why the Warren Court chose the path it did to invalidate anti-miscegenation laws. More generally, it will analyze the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: assuming that Justices are in agreement as to which party should prevail, what factors, legal and non-legal, can influence the Court’s preference for one doctrine over another? In Loving, the decision to reject Justice Stewart’s rationale had far-reaching consequences. Had the Court followed Justice Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. It might be argued that the Court was simply seeking the narrowest grounds on which to decide the case and that Justice Stewart’s reasoning was simply too broad. Loving’s now-controversial place as a precedent supporting substantive due process analysis in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated, by Justice Stewart’s approach. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction be-tween equal protection, due process, and fundamental rights. Ultimately, this Note will argue that the Warren Court showed a preference for a less rule-like approach to equal protection analysis, in part because the conditions surrounding desegregation exacer-bated the difficulty of analyzing the scope of rules. Dissecting the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to under-stand how and why the Court resolves such problems in particular ways…

Read the entire article here.

What Comes Naturally: Miscegenation Law and the Making of Race in America (Review)

Law and Politics Book Review
American Political Science Association
2009-03-23
pp. 218-220

Mark Kessler, Chair of the Department of History & Government and Professor of Government
Texas Woman’s Univeristy

What Comes Naturally: Miscegenation Law and the Making of Race in America. By Peggy Pascoe. (New York and London: Oxford University Press, 2009. 404 pages. Cloth ISBN13: 9780195094633, ISBN10: 0195094638)

In this highly original and important book, Peggy Pascoe describes and analyzes three centuries of laws in the United States prohibiting interracial marriages and sexual relations. In perhaps the most comprehensive and systematic study of legal marriage and sex prohibitions to date, Pascoe argues that these laws were central ideological tools used in constituting and reproducing white supremacy in the United States. Placing her study in its broadest context, she argues that examining the rise and decline of these laws “provides a locus for studying the history of race in America” (p.2). Pascoe’s study demonstrates how historical research, combined with critical cultural theory and analysis, may shed new light on significant questions regarding the power of law and legal interpretation in constructing and reconstructing social reality.

Throughout this work, the writing is admirably accessible, while the analyses and arguments are deeply nuanced. Pascoe begins many of the eleven chapters with stories describing the people and circumstances involved in miscegenation cases throughout history. These stories are carefully selected to show the great variation in characteristics of participants, laws, and regions of the country in which the cases arose, and to help address the broader questions of nation-building and nation-formation that emerge from this study. Pascoe uses these very human stories, along with landmark appellate court decisions and local legal practices, to explore the many and varied ways in which social and political relations based on race, gender, and sexuality illuminate the rise and fall of miscegenation law in the United States.

Pascoe’s narrative begins in the Reconstruction era, when the term “miscegenation” was first invented and applied to interracial marriage and sex. Her discussion focuses on the ways in which judges, legislators, and lawyers employed notions of what is “natural” and “unnatural” in conventional cultural discourses about sex, gender, and sexuality to create and apply laws prohibiting interracial marriage and sex. Such laws emerged first in the South and North and typically applied exclusively to relations between those categorized racially as “white” and as “black.”…

Read the entire review here.