Mixed Race Studies

Principled Expediency: Eugenics, Naim v. Naim, and the Supreme Court

The American Journal of Legal History
Volume 42, Number 2 (April, 1998)
pages 119-159

Gregory Michael Dorr, Visiting Assistant Professor in Law, Jurisprudence, and Social Thought
Amherst College

In March 1956, the Supreme Court refused to hear Naim v. Naim, a suit contesting the constitutionality of Virginia’s antimiscegenation statute, the Racial Integrity Act of 1924. The Court’s two per curiam decisions in this case sparked a debate surrounding Supreme Court adjudication. Did the Court act on legal “principle,” or in response to political “expediency,” in refusing to find a properly presented federal question in Naim? Examination of the available evidence shows that the court was not unanimous in avoiding Naim. Ultimately, Felix Frankfurter’s intra-court politicking preventing the Court from deciding Naim. Frankfurter convinced the brethren that avoiding Naim was possible, despite the fact that its appellate status tapped the Court’s “obligatory jurisdiction.” To understand the “principle” that undergirded Frankfurter’s “expedient” action, one must consider the background of Virginia’s Racial Integrity Act. Eugenical theory provided the state with a colorably rational basis for racial restrictions in Virginia’s marriage law. As counsel never directly challenged the reasonableness of the racial classifications—never challenged the eugenical precepts supporting the law—Frankfurter was able to convince his colleagues that the Court could not consider the constitutional issue in “clean cut and concrete form unclouded.” Then, following the Virginia Supreme Court of Appeal’s defiance of the Supreme Court’s remand order, Frankfurter urged that the Court could defer the case for lack of “a properly presented federal question.” In so doing, Frankfurter extended the life of miscegenation statutes eleven years—until the Court struck them down in Loving v. Virginia.

It is unlikely that Chinese sailor Ham Say Naim ever heard the word miscegenation before he jumped ship in 1942. Eleven years later Naim, still a Chinese national, sat in Judge Floyd E. Kellam’s Portsmouth, Virginia Circuit Courtroom. His wife of twenty months, Ruby Elaine Naim, a white woman, sought a divorce on the grounds of adultery. Choosing not to rule on the divorce action, Kellam granted Ruby Elaine Naim an annulment under part of the Virginia Code entitled, “An Act to Preserve Racial Integrity.” These statutes decreed interracial marriage—because of its result, miscegenation or racial intermixture—illegal and “void without decree” in Virginia. Ham Say Naim’s counsel appealed the case, through the Virginia Supreme Court of Appeals, to the United States Supreme Court in the October Term of 1955. In a surprising series of events, the case bounced between the Supreme Court and Virginia’s highest court. The case ended in March 1956 when the Supreme Court, in a cryptic memorandum decision, ruled, ‘The decision of the Supreme Court of Appeals of Virginia [reaffirming their support of Judge Kellam’s decision] leaves the case devoid of a properly presented federal question.” With this action, the United States Supreme Court effectively upheld a state’s right to restrict marriage between the races. A decade passed before the Court again considered racial classifications in marriage law. In Loving v. Virginia, another challenge to Virginia’s Racial Integrity Act, the Court struck down antimiscegenation statutes, removing the last legally-enforced barrier facing Americans of color.

June 12, 1997 marked the thirtieth anniversary of the Supreme Court’s landmark decision in Loving. As scholars commemorate Loving, it seems appropriate to reconsider Naim to understand the longevity of antimiscegenation statutes. Naim v. Naim represents more than a historical footnote to Loving: Naim reveals the complex interplay of eugenical ideology, constitutional jurisprudence, the internal politics of the Supreme Court, and the Court’s relationship to American society. Indeed, Naim illustrates that the line between “principle and expediency” in Supreme Court adjudication was less sharply defined and more hotly contested than many commentators have imagined. Both contemporary and subsequent historical treatments ascribe particular importance to Naim only in so far as its disposition appeared to reflect the Justices’ concern that any action on interracial marriage would exacerbate tensions created by the Brown decisions.

This paper, however, argues for a reassessment of Naim v. Naim‘s significance on two grounds. First, digging beneath surface impressions one sees that Naim, while sharing a kinship with other antimiscegenation cases, belongs also within the rarefied family of eugenics case law that began with Buck v. Bell and appeared to end with Skinner v. Oklahoma. Earlier antimiscegenation laws in Virginia, like many that persisted in other states, based their strictures not upon a “science” of racial improvement, but on the splenetic racism and negrophobia of the Redemption Era. Virginia eugenicists, however, promoted the Racial Integrity Act in the name of scientifically-validated social engineering. The Racial Integrity Act’s enactment as a scientific measure to preserve the state’s “health” supplied the legal justifications that upheld the statute in Naim. Eugenics provided the state with a “rational basis” for the exercise of its police power in restricting interracial marriage. Ultimately, eugenical social policy used science to garner legal imprimatur for the deep-seated southern cultural taboo against interracial sexuality.  This certification formed a bond between statutory social control and the law that proved difficult to break.

Legal debates concerning the confluence of judicial review and social policy suggest a second reason Naim should be reconsidered. Probing the records of various Supreme Court justices, it becomes apparent that their actions in disposing of Naim did not represent simply a collective dodge. Behind closed doors, the justices waged a pitched battle. Ultimately the issue was resolved not only in light of political considerations, but also as a result of the swirling jurisprudential debate over what Morton J. Horwitz terms “the central ideological question before the Supreme Court” in the twenty years after World War II: the debate between judicial activism and judicial restraint. In this intra-court battle, the personality and beliefs of Justice Felix Frankfurter take center stage. Examining the synergy between the Racial Integrity Act’s eugenical rationale and jurisprudential debates trammeling the Supreme Court helps explain why it took another eleven years to strike down antimiscegenation statutes.

This reconsideration of Naim v. Naim proceeds in four parts. First, a brief history of eugenics and the elite Virginians who integrated eugenical precepts into the legal, medical, and educational infrastructures of Virginia provides Naim‘s background. Parts II and III focus on the progress of Naim through the Portsmouth Circuit Court and the Virginia Supreme Court of Appeals, respectively. These sections develop the social and cultural history of Naim v. Naim, elucidating the ways in which southern sentiment regarding issues of class, race, and gender aligned with thirty year-old eugenical precepts and the law to determine the case. Special attention is given to how eugenical arguments cropped up explicitly in the statements of counsel, the state attorney general, and the opinion of the courts. Part IV takes up the battle over Naim within the United States Supreme Court, revealing the intra-court politics that decided the case. The paper concludes with a brief consideration of Naim v. Naim‘s role as precedent for the lower court decisions in Loving v. Virginia. The conclusion assesses how the Racial Integrity Act failed only when two conditions were met: 1) counsel directly challenged the “rational basis” of the eugenical underpinnings of the Racial Integrity Act; and, 2) the doctrinal/theoretical debate among the Supreme Court justices was resolved, in part as a result of Felix Frankfurter’s retirement, in favor of judicial activism for civil rights. The fulfillment of these two conditions set the stage for the recalibration of legal and cultural scales…

Read the entire article here.

Alien Citizen: Review

www.ReviewPlays.com
ALIEN CITIZEN
Asylum Lab
2013-05-13

Jose Ruiz

Elizabeth Liang steps on the solo stage to tell the world what it’s like to be a TCK (Third Culture Kid).  These are people who, as children, traveled the globe intermittently because their parents were sent to diplomatic, business or military assignments and the family had to constantly adjust to new schools, new friends, new customs and new languages.  Her father worked for a multi-national company and was sent to several different countries during her formative years.

That in itself is fodder for a fascinating story of growing up with indeterminate roots.  When the story comes from Elizabeth Liang, whose ethnic heritage spans three continents, from her paternal roots in China, to her birth roots in Central America, to her mother’s varied European background, it becomes more than just a story…

Read the entire review here.

‘War Baby’ is something to see, if you can let go

The Chicago Tribune
2013-05-08

Lori Waxman, Instructor of Art History, Theory and Criticism
School of the Art Institute of Chicago

It was the Hello Kitty tepee that did it for me.

Some exhibitions can be so challenging that it takes a particularly unexpected artwork for the viewer to finally let go and get into the swing of things. “War Baby/Love Child: Mixed Race Asian American Art,” currently up at the DePaul Art Museum and featuring work by a dozen-and-a-half artists, is one such show. A riotously colored digital print by Debra Yepa-Pappan featuring a purple-haired Native American woman, lifted from an iconic Edward S. Curtis photograph and set against a background of space-age tepees, one of them marked with the equally iconic and silent face of everybody’s favorite Japanese cat, is one such artwork.

Hilarious and weird and crazily of its time — i.e., now — Yepa-Pappan’s collage lifted my thoughts up and over the various stumbling blocks that “War Baby/Love Child” presents. Curated by Laura Kina, an artist and DePaul professor, and Wei Ming Dariotis, a professor of Asian-American Studies at San Francisco State University, the cogitative but overdetermined exhibition sets up a Catch-22. It wants to recognize the complex realities of a fast-growing segment of the American population — the 2.6 million who identify as Asian plus one or more other races — and to prove how far beyond stereotype those people go. And yet, two gargantuan cliches give their name to the exhibition itself.

The term “war babies” generally refers to the children of Asian or Pacific Islander women and the U.S. soldiers who were stationed in their home countries during World War II, the Korean War and the Vietnam War. “Love children” were born of the free love of a post-civil rights and flower-child era, and, as listed in the extensive exhibition catalog, their makeup includes Eurasians and Hapas (Mixed White Asians), Mixed Bloods (Mixed Asian Native Americans), Blasians (Mixed Black Asians) and Mestizaje (Mixed Latino Asians).

“War Baby/Love Child” thus finds itself in the counterintuitive position of wanting to replace its own title with a dozen less-loaded ones. Wall labels are one tool, and the ones here list an astonishing array of mixed identities as well as direct quotes from most of the artists, many of whom speak about personal experiences growing up amid racial presumption…

Read the entire article here.

HIST 574–Modern U.S. History: Miscegenation, Mixed Race, and Interracial Relationships

Simmons College, Boston, Massachusetts
Summer 2013

Ulli Ryder, Lecturer of History and Africana Studies

This class will explore the conditions for and consequences of crossing racial boundaries in the United States. It will take a multidisciplinary approach, utilizing historical scholarship, literature, legal scholarship, and communication studies, along with several feature and documentary film treatments of the subject. Students will gain a deeper understanding of the ways race has been socially constructed; the connections between race and power in the U.S.; and the possibilities of a non-racist future.

The future of Hispanic identity

Reuters
2013-05-06

Reihan Salam, Policy Analyst

In an interview with ABC News this past weekend, Bill Richardson, the former governor of New Mexico and a veteran of the Clinton White House, shared his thoughts on Sen. Ted Cruz, a Republican from Texas who has been gaining prominence as a staunch, and sometimes strident, conservative voice. Though Richardson acknowledged that Cruz is “articulate,” he accused the Texas senator of having introduced “a measure of incivility in the political process.” When asked if Cruz “represents most Hispanics with his politics,” Richardson replied that because Cruz is anti-immigration, “I don’t think he should be defined as a Hispanic.”

Regardless of Richardson’s true meaning, he hit a nerve. Bill Richardson and Ted Cruz are both entitled to define themselves as Hispanics, as both have roots in Spanish-speaking countries. Yet both men, like a large and growing number of Hispanics, are of mixed parentage. Richardson is the son of a father who was half-Anglo-American and half-Mexican and a Mexican mother. Ted Cruz is the son of an Irish-American mother and a Cuban immigrant father. And so the Richardson-Cruz kerfuffle gives us an opportunity to think about the future of Hispanic identity.

As of the 2010 Census, Hispanics represented 16.3 percent of the total U.S. population. And in the decades to come, the Census Bureau projects that the Hispanic share of the U.S. population will increase dramatically, from just under one American in six to just under one in three.

But there is a small complication with these numbers. The Census Bureau relies on individuals to self-identify with a given ethnic category. We now know, however, that many individuals who could identify as Hispanic, by virtue of a parent or grandparent born in a Spanish-speaking country, choose not to do so. In recent years, Brian Duncan, an economist at the University of Colorado Denver, and Stephen Trejo, an economist at the University of Texas at Austin, have been studying this “ethnic attrition rate” among U.S. immigrants and their descendants. And their findings suggest that while a given generation of Americans might identify as Hispanic, there is a decent chance that their children will not…

Read the entire article here.

Community Profiles – Melissa Nobles

MIT School of Humanities, Arts & Social Sciences
Great Ideas Change the World
2013-04-21

Leda Zimmerman

“All societies periodically have to do soul-searching,” says Melissa Nobles, the Arthur and Ruth Sloan Professor of Political Science. With research that illuminates historic episodes of racial and ethnic injustice, Nobles has developed a deep understanding of how different nations go about the process of self-examination and attempt to right the wrongs of the past. Such efforts, believes Nobles, require rigorous honesty and “making sure all voices are heard.”

Budding Political Aspirations

A self-described “political person,” Nobles learned early on about speaking up in the public arena. She was class president during most of her high school years in New Rochelle, NY and remembers attending forums in city hall to protest the school board “taking our school’s money away.” The daughter of parents born and raised in the American South, Nobles grew up during a racially fraught era, and was riveted by news accounts of the civil rights movement, as well as profoundly interested in the political struggles and history of black Americans.
 
Politics and Race
 
This passion to understand politics and its relation to race found an outlet during Nobles’ undergraduate years at Brown University in the early 1980s. Through courses on Latin America, she became fascinated with Brazil, a slave-holding country like the U.S. well into the 19th century. The prevailing academic wisdom was that post-slavery, Brazil evolved into a racial democracy with “no sharp lines of racial demarcation,” while the U.S. saw reconstruction, Jim Crow, racial violence and socioeconomic inequities.
 
But as scholars scrutinized the lives of contemporary Brazilians of color, the disparity (between U.S. and Brazilian national stories) began to crumble. According to Nobles, who eagerly absorbed the new findings, “all socioeconomic indicators that make democracy meaningful didn’t look so good for them, and in a further irony, things looked better for black Americans.” She recalls thinking, “If I’d been born in Brazil, looking the way I do, I wonder what my life outcomes would have been.”…

Read the entire article here.

‘Show Boat’ Steams On, Eternally American

All Things Considered
National Public Radio
2013-05-07

Nina Totenberg, Legal Affairs Correspondent

It’s been more than eight decades since Show Boat — the seminal masterpiece of the American musical theater — premiered on a stage in Washington, D.C. Now the sprawling classic is back, in a lush production put on by the Washington National Opera.

Based on Edna Ferber’s epic best-selling novel, Show Boat was nothing like the frothy musicals and scantily clad Broadway revues of its time. Sure, the story is about a traveling showboat that plays to audiences along the Mississippi River, but the plot focuses on serious subjects: racial injustice, alcoholism, abandonment.

Panoramic in scale, the show spans 40 years, from 1885 in the South — not long after the Civil War — to the Roaring ’20s in Chicago. And displayed in all their glory are some of the most beautiful love songs of the 20th century: “Can’t Help Lovin’ Dat Man,” “Make Believe,” “Bill.”

Show Boat made musical-theater history, pioneering the merging of music and plot, integrating them for the first time to provide a seamless transition from scene to song. Lyricist Oscar Hammerstein II, just 31 years old, worked closely with composer Jerome Kern to replicate Ferber’s sweeping narrative. In a 1958 interview released on vinyl by MGM Records, he explained how he used the Mississippi itself as the thread that would hold all the plot elements together.

“I thought that we lacked something to make it cohesive,” Hammerstein told interviewer Arnold Michaelis. “I wanted to keep the spirit of Edna’s book, and the one focal influence I could find was the river, because she had quite consciously brought the river into every important turn in the story. The Mississippi. So I decided to write a theme — a river theme.”

That theme, of course, became “Ol’ Man River,” one of the most primal American melodies ever sung.

‘Misery’ Restored, And Threaded Throughout The Show

Director Francesca Zambello, who pushed and prodded to get the current revival staged at the Kennedy Center, says she was drawn to the show because of the timeless issues it dramatizes — not least that key underlying theme of race, embodied in the show by Julie, the showboat’s star performer.

“Julie is the fulcrum of the show, because she brings the dramatic issue that changes everything,” Zambello says.

Secretly biracial, but “passing” — living publicly as a white woman — Julie has married a white man. That makes their relationship a crime in Mississippi, and in much of the rest of the country besides.

No surprise, then, that even before Julie is found out and forced to leave the showboat, the company’s mother figure, who’s in on her secret, senses trouble. “Misery’s comin’ around,” sings Queenie, the showboat’s cook, in a gorgeously melancholy melody that was cut from the original production for time.

“The theme of ‘Misery’ you hear not only with Queenie and all the women working, but it also weaves its way underneath the dialogue every time Julie speaks after that,” Zambello points out. “It becomes her sadness, and her secret.”

There are no U.S. laws against interracial marriage anymore; they were struck down in 1967 by the Supreme Court’s . But as Show Boat plays at the Kennedy Center this month, the court — just a couple of miles away — is considering questions of same-sex marriage, affirmative action and voting rights, while Congress focuses on how we as a nation treat immigrants.

“To do this kind of work that has such deep social underpinnings to it, and really speaks about social change, is I think rare in music theater,” Zambello says. “If you wrote this musical today, I’m not sure that it would get on.”…

Read the entire article here.  Listen to the story here.  Download the audio here.

Acclaimed Actress Performs Play on Race, Love

The Daily Nexus
University of California, Santa Barbara’s Independent, Student Run Newspaper
2013-05-08

Carissa Quiambao

William Zhou / Daily Nexus

Award-winning actress and playwright Fanshen Cox DiGiovanni performed her one-woman play, “One Drop of Love: A Daughter’s Search for Her Father’s Racial Approval” at the UCSB Multicultural Center Theater yesterday evening.

DiGiovanni, who has appeared in the Academy Award-winning film “Argo,” is the co-creator and co-host of award-winning weekly podcast Mixed Chicks Chat and a co-founder and co-producer of the Mixed Roots Film & Literary Festival.

Her solo performance, “One Drop of Love,” co-produced by Ben Affleck, Matt Damon and Chay Carter, begins with DiGiovanni counting the number of “whites” and “blacks” in the audience in a portrayal of a United States Census Bureau employee in 1790, then transitions into her present-day narrative meeting her husband and getting married in 2006, only to have her father decline attending her wedding…

…DiGiovanni alternates between scenes of racial categorization by the U.S. Census Bureau in the late 1700s and her personal narrative about growing up as a multiracial youth in cities across the United States and in West and East Africa. Using filmed images, photographs and animation, she explains the development of “race” in the U.S. and how it affected her identity and her relationship with her black, Jamaican father.

Over the course of the play, DiGiovanni explores her family history in order to reconstruct her racial identity and confront her father about his absence at her wedding. She said this process gave her insight into her heritage and ultimately allowed her to feel more comfortable with her personal identity.

“Today, especially having done this and reconnected with my dad, I feel stronger in my black identity as well as in my mixed identity,” DiGiovanni said. “I feel stronger, and I feel so much more relaxed about it. Unfortunately, it took a long time, and it might take you guys a long time, but just know that you will feel comfortable at some point. I think the sooner we can all get there, it will really help in terms of looking at racism.”…

Read the entire article here.

State of Race 2013: Presentation on the Demographics of Race

The Aspen Institute
Washington, D.C.
2013-04-24

Presenter:

Paul Taylor, Executive Vice-President and Director of Social and Demographic Trends Project
Pew Research Center

Counting The People

San Francisco Call
Sunday, 1890-06-01
page 6, column 7
Source: California Digital Newspaper Collection

Some of the Inquires to Be Made by the Census Enumerators in June

The eleventh census of the United States will be taken during the month of June. The census enumerators will begin their work on to-morrow, and will visit every house and ask questions concerning every person and every family in the United States. The questions that will be asked call for the name of every person residing in the United States on the first day of June, with their sex and age, and whether white, black, mulatto, quadroon, octoroon, or Chinese, Japanese or Indian. Inquiry will be made also of every person as to whether they are single, married, widowed or divorced and, if married, whether married during the year. The place of birth of every person, and the place of birth of the father and mother of each person, will also be called for, as well as a statement as to the profession, trade or occupation followed and the number of months unemployed during the census year. For all persons 10 years of age or over a return must be made by the enumerator as to the number able to read and write, and also the number who can speak English. For those who cannot speak English the particular language or dialect spoken by them in will be ascertained. For children of school age, also, the number of months they attended school will be recorded by the census enumerators. In the case of mothers an inquiry will be made as to the number of children they have had, and the number of these children living at the present time. This inquiry is to be made of all women who are or have been married, including all who are widows or have been divorced. Foreign-born males of adult age, that is, 21 years of age or over, will be asked as to the number of years they have been in the United States, and whether they are naturalized or have taken, out naturalization papers. Of the head of each family visited the question will be asked as to the number of persons in the family, and whether his home is owned or hired; also, if owned, whether the home is free from mortgage incumbrance. If the head of the family is a farmer, similar inquiries will be made concerning the ownership of the farm. In addition to these inquiries, all of which are made on the population schedule, the law under which the census is taken makes provision for special inquiries concerning such of the population as may be mentally or physically defective in any respect, that is insane, feeble-minded, deaf, blind, or crippled, or who may be temporarily disabled by sickness, disease, or accident at the time of the enumerator’s visit. Certain special inquiries will also be made concerning inmates of prisons and reformatories and of charitable and benevolent institutions. Besides this, a statement will be called for concerning all persons who have died during the census year, giving their name, age, sex, occupation and cause of death.

This official count of the people comes but once in ten years, and every family and every person should consider it to be a duty to answer the questions of the census enumerators willingly and promptly, so that definite and accurate information may be gained concerning the 65,000,000 people living within the bounds of this great country.