Peggy Pascoe, a historian, has written what might seem to be an uncannily timely history of laws against miscegenation—interracial marriage or procreation—in the United States. In 2008, after all, the nation elected its first president who had parents of different races. A nice coincidence for Pascoe, but not much more. Presidential candidates with an unusual background are elected only when their background has ceased to be problematic: the first Catholic when people stopped worrying that a Catholic president would be the Pope’s puppet; the first divorced person when divorce had become too common to be stigmatized; and now the first person of mixed race, when “miscegenation” has ceased to have any public significance and indeed has vanished from most people’s vocabulary. Black-white marriages remain rare, and many parents of whites do not want their children to marry blacks, and vice versa—but such aversions raise only personal issues, not social or political ones. So Pascoe’s book will tell us nothing about Obama’s presidency, but it is a good book that recounts a fascinating history and bears at least obliquely on one contemporary political issue—that of gay marriage.
Laws against mixed marriage have been surprisingly rare outside the United States. Nazi Germany forbade marriage between a German and any member of a non-Aryan “race,” thus including Jews, along with blacks, Slavs, and members of a host of other racial and nonracial groups. And South Africa in the apartheid era forbade interracial marriage. Because the regulation of marriage was considered a state rather than a federal prerogative, there was never a nationwide ban on mixed marriage in the United States.
The American laws forbidding black-white marriage date to colonial times. They were found in northern as well as southern colonies and states. But they had little significance in the North because there were not many blacks, as there were in the South, where the laws reflected and ratified the inferior status of blacks. Not all Southern blacks were slaves, but not even free blacks had the rights of citizens. Oddly, in light of the later eugenic concern with interracial procreation, the taboo against interracial marriage coexisted with a high rate of procreative sexual intercourse between white men and black women (condoned by the authorities despite laws against non-marital sex), combined with a fierce determination to prevent sex between black men and white women. This odd pattern made a certain economic sense. It increased the range of sexual opportunities for white men, and since the child of a black slave woman was a slave, the children of such relationships were not an economic burden. White men retained a monopoly of white women, while black men had to share black women with white men. White men dominated government, so it is not surprising that the laws were formulated and enforced in such a way as to maximize their sexual freedom, although they could not marry black women.
The Civil War put an end to slavery, and until the end of Reconstruction in 1877 blacks, and whites sympathetic to them, exercised some political and judicial power in the Southern states. Some southern anti-miscegenation statutes were repealed—or even declared unconstitutional in the case of white men married to black women, a class of plaintiffs likely to elicit at least some sympathy from white judges. By 1875 there were almost as many anti-miscegenation laws in force in northern states (Maine, Delaware, Illinois, Indiana, Michigan, and Ohio) as in southern ones—and most western states, including California, had such laws as well.
With the end of Reconstruction, however, the southern states reinstated their anti-miscegenation laws, and the laws withstood challenge in court. The Supreme Court rebuffed a challenge to them in Pace v. Alabama in 1883, ruling they did not deny equal protection because the punishment was the same for the white party as for the black one. In the North, by contrast, by 1900 the only states with anti-miscegenation laws were Delaware and Indiana. But all the southern and border states and all but a handful of western states had them, and so there were more such laws in force—twenty-six, to be exact—than there had been in 1875. There were few blacks in the western states; and although the anti-miscegenation laws in those states forbade black-white marriages, the particular concern was with marriage between whites and Native Americans and, even more, between whites and Asians. Most Asian immigrants were male, and so if interracial marriages were permitted they would allow the “stealing” of white women from white men with no reciprocal opportunities for the latter.
Pascoe deals at length with the interesting problems of enforcement that anti-miscegenation laws created. Most American blacks have some white ancestors and many can pass as white. Although in theory one drop of black blood made a person a Negro, there was no way to prove that a person did, or did not, have that tincture, so in practice judges and jurors usually based their determination of a person’s race on his or her appearance. In place of the “drop of blood” test, some states substituted a genealogical one —whether a person had at least one black great-grandparent—because that could usually be ascertained from local records or memories.
Another problem of enforcement was that many marriages were common law marriages—there was no license, and therefore no confrontation with a clerk in a marriage-license bureau. Prosecuting a married couple was a more costly method of enforcing the anti-miscegenation laws than simply denying a license so that the couple, if they cohabited (which they might be unwilling to do, even though they would have married had that been possible), would be guilty of fornication as well as miscegenation. A solution was found: abolish or curtail common law marriage, and obligate clerks in marriage-license bureaus to make a racial assessment before issuing a license.
The logic of anti-miscegenation laws emerges from Pascoe’s book more clearly with respect to the South than the West. In the South they were an integral part of the network of laws, customs, and beliefs that, after the end of Reconstruction freed the South from federal control, enabled southern whites to maintain blacks in an inferior status, notwithstanding the abolition of slavery. The stated rationale for the laws was that the offspring of a white-black marriage would be biologically inferior to the offspring of a marriage between two whites, because blacks were biologically inferior to whites. Anti-miscegenation laws dovetailed with other forms of segregation, notably school segregation, since presumably the more contact the races had with each other, the more interracial marriage there would be, and so segregation could be defended on biological grounds. And white men still wanted to monopolize sexual access to white women, while enjoying sexual access—without any possible marital obligations—to black women.
The western laws do not seem explicable on these grounds, even on the “stealing our women” ground that I mentioned earlier, because there were not very many Asians in the western states. Nor was there ever much prejudice against persons of mixed Caucasian and Native American ancestry. There was prejudice against Asians, but not the kind of caste system found in the South, and there was no history of slavery.
Also inexplicable by reference to southern notions of white supremacy was the movement in the 1920s to re-enact anti-miscegenation laws in the North. The movement failed, in part because of vigorous opposition by the NAACP. In addition, the movement’s fervent support by the resurgent Ku Klux Klan provoked opposition from the Catholic Church, which was a target of the Klan and anyway resisted governmental as distinct from ecclesiastical regulation of marriage. But probably the decisive factor was that there were too few blacks in the North, and hence too few interracial marriages—a tiny percentage of a small percentage—to generate public support for such laws sufficient to overcome the usual inertia of the legislative process. The puzzle is why the re-enactment movement in the North began at all.
Still another puzzle is why aversion to “mixed marriages” (not limited to racially mixed marriages) should lead to the enactment and the enforcement of laws against them. Orthodox Jews strongly oppose marriage to gentiles, and even Reform rabbis are generally unwilling to perform such marriages. Most parents do not want their children to marry people from a lower social class. And while black-white marriages remain rare, marriages between whites and Asians have become common. In part this is because there is a distinctive black culture in the United States (though not all blacks are part of that culture) but not a distinctive Asian one after the first generation; and in part it is because there is more prejudice against blacks than against Asians, or for that matter against Jews, Irish, and Italians. But it hardly seems necessary to have laws against mixed marriages, to which people are already averse. The aversion would make such marriages rare in any event, so why have laws against them with all the attendant bother for courts and marriage-license bureaus?
The answer to these puzzles is eugenics—the “racial science” that provided the movement’s intellectual fuel. Pascoe has little to say about this, and the omission is the principal weakness of her book, but the subject is more fully covered in Paul A. Lombardo’s fine history, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell.
The belief that biologically mixed marriages can have extraordinary consequences goes back a long way. In Homer the deeds of an outstanding warrior are attributed to one of his parents being a god or a goddess. Helen is the most beautiful woman in the world because Zeus is her father. Think also of Jesus’s parentage. Mankind learned early on that through selective breeding one could produce animals that were very different from, and often superior to, their ancestors; think of the different breeds of dog, and the difference between domestic animals and their wild ancestors. But biological mixtures could also be ominous: sex between men and animals, it was believed, could produce monsters.
Simple observation would have revealed that the offspring of racially mixed unions were biologically normal human beings—neither superhuman nor subhuman. Yet there has always been a sense, usually an exaggerated sense, that ancestry matters, even remote ancestry. People take pride in being descended from Mayflower passengers, or from Revolutionary War veterans, though after a very few generations the traits that distinguished an honored ancestor, even if genetic, disappears in the genetic reshuffling that occurs in every new generation.
So the fear that one remote black ancestor might create an ineradicable taint in his remote descendants—the disquiet, recorded in Faulkner’s great novels Light in August and Absalom, Absalom!,that is created by the black who can pass as white (because, really, he is white)—should have dissipated when race became a subject of scientific interest. And yet the opposite happened. Under the influence of Darwinism, racial science and an associated eugenics movement emerged in the late nineteenth century, grew with the Progressive movement, peaked in the 1920s, and disappeared during World War II. (Its enthusiastic embrace by Hitler did not help it—limited-access highways, anti-smoking campaigns, and animal rights are the only distinctively Hitlerian policies to have survived association with him.)
The novelty of Darwinism, so far as its social and political impact was concerned, was its depiction of a struggle for survival between different species, with the ones well adapted to their environment surviving and the others becoming extinct. Races, of course, are not different species (the standard definition of a species is a group whose members can engage in reproductive sex with each other), but they are genetically distinct, and it is easy to analogize them to species and see them engaged in competition to rule the world. Within races there are genetic differences, too—a Swede, a Sicilian, and a Sikh are all Caucasians, but their physical appearances differ, and the difference is genetic.
There was much talk, in the early days of racial science, of a German race, an Irish race, a Jewish race, and so forth. Correlating race with nationality increased the political stakes, since nations were in competition with each other. There was never a sense of an American “race,” because the population was too heterogeneous, but there was fear that the Irish race or the Jewish race, and of course the Negro race or the “Mongolian” race, might through intermarriage or simply a high rate of reproduction weaken America by diluting its premier racial components (English, German, Dutch, and Scandinavian). The stakes were very high: think of the genocidal consequences of the clash between the white race and the Native Americans in the New World.
There was also fear that even the premier races would degenerate if their inferior members were allowed to reproduce. So there were two distinct problems that the eugenics movement had to solve: degeneration (and therefore ultimate defeat in the struggle for survival) through race mixing, and degeneration through reproduction by inferior members of a race. The “civilized” (that is, non-Hitlerian) solutions to the first problem included racial immigration quotas and anti-miscegenation laws, and the solutions to the second problem included prohibiting marriage between persons judged to be “lunatics” or “feeble-minded” and sterilization of persons thought to have bad genetic traits, such as low intelligence or a propensity to promiscuity or criminality. No attempt was made to prohibit marriage between members of different white “races,” such as English and Irish (except that marriage-bureau clerks would sometimes classify persons from the Indian subcontinent as black), perhaps because the differences in appearance were too subtle to provide a secure basis for enforcement.
The eugenics movement, with its grounding in racial science, was embraced by many progressive thinkers. In 1927, the Supreme Court, in an opinion by Justice Holmes, upheld the constitutionality of a Virginia law that required the sterilization of women diagnosed with hereditary “feeblemindedness.” As a result of the decision, Carrie Buck, a young woman who had had a child out of wedlock, was sterilized. The opinion contains one of Holmes’s best-known aphorisms: “Three generations of imbeciles are enough.” Holmes’s opinion was joined without demur by Justice Brandeis. Both Holmes and Brandeis were brilliant, advanced thinkers—Holmes a passionate Darwinian, Brandeis a crusading liberal. Lombardo’s book shows that while Emma Buck, the mother of the woman who was sterilized, may well have had serious mental problems, both Carrie Buck and her daughter were mentally normal. But Carrie Buck was incompetently represented by her lawyer, and as a result evidence that she and her daughter were normal was never presented to the Supreme Court.
Lombardo shows, though, that there was plenty of criticism of the Supreme Court’s decision, and not only by Catholics, who thought that sterilization violated the Biblical command to be fruitful and multiply. Racial science, in the sense of belief that different nationalities are different races in a profound biological sense, had already been discredited; and it was increasingly recognized as well that the eugenics movement had exaggerated the hereditary component of human behavior. The eugenicists’ tendency had been to ascribe bad behavior to bad genes: the fact that Emma Buck had been accused of engaging in prostitution and that Carrie Buck had had a child out of wedlock may have been the decisive factors in the judgment that they were afflicted with hereditary “feeblemindedness.” Holmes believed that most murderers might be like rattlesnakes, predestined by their biology to kill under specified conditions. The Jewish immigrants from Eastern Europe in the late nineteenth and early twentieth century were found to have dangerously low IQs. Criminality in general was thought to be a product of biology rather than of opportunities—in a curious twist, after the eugenics movement had faded, liberal penologists developed a “treatment” theory of criminal punishment: criminals were not bad, they were sick.
We now know (or think we know) that cultural and other environmental conditions account for much more social pathology (such as those low Jewish IQs), relative to genetic factors, including racial genetic differences, than the eugenicists believed. Not that there aren’t genetic differences between groups. IQ has a genetic component and varies systematically across groups. The average Jewish and East Asian IQ is higher than the average non-Jewish white IQ, and part at least of the difference may well be genetic. Even so, and even though the eugenics movement exaggerated such differences, there was always a weak connection between wanting to improve “the race” and banning intermarriage (the connection with compulsory sterilization was much closer). People tend to marry people who are similar to them (“assortative mating”). Even though Jews have a higher IQ on average than gentiles, there is obviously a great deal of overlap, so a Jewish person who intermarries is likely to marry a gentile of similar intelligence. So there really is no reason, however much of a “hereditarian” one is, to want to ban intermarriage.
Perhaps the weirdest aspect of the anti-miscegenation movement that Pascoe documents is the widespread belief that the child of a racially mixed marriage is inferior to the average person of either race. Simple observation, whether of people, animals, or plants, reveals that hybrids are often superior to the pure strain, and certainly not systematically inferior. Still, fear of the “half-breed” seems to have deep roots in human psychology, and to be connected with atavistic concerns with “impurity” and the “unnatural” that continue to resonate, for example in laws of kashruth and in attitudes toward homosexuality. Though about three-fourths of American blacks are in fact of mixed race—a happenstance for which southern white men bear the major responsibility—the notion of the “mulatto” as a “degenerate” human specimen was a leitmotif of anti-miscegenation advocacy and received the pseudo-scientific imprimatur of racial science.
The eugenics movement, in both its political and scientific aspects, is the key to understanding the popularity of anti-miscegenation laws in the West and the movement in the 1920s to re-enact the laws in the northern states. It also helps to explain why the first successful post-Reconstruction challenge to the laws did not come until 1948, when the Supreme Court of California, in a case called Perez v. Sharp—a suit by a black man and Mexican American woman (classified as white) who had been refused a marriage license—invalidated the state’s anti-miscegenation law. By then the eugenics movement had faded, and the political grounds for the anti-miscegenation laws of the southern states did not exist in California, so the court could invalidate the law without worrying about too great a backlash.
By 1967, anti-miscegenation laws were found only in the southern and border states plus Delaware and Oklahoma, and in that year the Supreme Court, in Loving v. Virginia (a suit by a black-white couple—the man being the white, thus raising fewer hackles), invalidated the laws. (Actually, the outcome in Loving had been clearly anticipated by the Supreme Court three years earlier in a case called McLaughlin v. Florida, which somehow failed to attract much attention.)
The Court had been skittish about taking on an issue that was so emotional in the South and was linked by southernerswith school desegregation, which the Supreme Court had ordered in Brown v. Board of Education and which white Southerners believed was bound to promote miscegenation. But by 1967 southern resistance to civil rights had been weakened to the point where removing the last stick from the bundle of Jim Crow laws would not create a furor.
In the decades since then, partly owing to high rates of intermarriage between Jews and gentiles, Hispanics and non-Hispanics, and especially whites and Asians (because their marriages are unmistakably interracial marriages), miscegenation no longer bothers many people, especially young people. Increased tolerance is responsible in part for the increased incidence of what people no longer even call “miscegenation,” but the causation runs the other way as well. In a morally heterogeneous society, a common practice, unless it is manifestly antisocial (like crime, which is all too common), tends to be normative. That is why some homosexual activists exaggerate the number of homosexuals; the more there are, the more normal (“normal” equaling “normative” in a morally heterogeneous society) homosexuality must be. And likewise if there isa lot of intermarriage it must be okay. There is a learning process at work as well. One meets many persons of mixed race nowadays, and they seem just like everybody else.
So the history narrated by Pascoe is a closed book—but not completely. The Supreme Court invalidated the Virginia anti-miscegenation law in Loving on two grounds. The first was that it was “designed to maintain White Supremacy”—as shown by the fact that it prohibited only mixed marriages to which whites were parties. But that was a makeweight in the Court’s decision; the Virginia statute would not have been saved had it also forbidden marriages between blacks and Asians, a prohibition that could not be linked to white supremacy.
The Court’s second ground was that “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” This ground, which had been anticipated by the concurring opinion of Justice Roger Traynor of the Supreme Court of California in Perez v. Sharp, implied that any arbitrary limitation of the right to marry is unconstitutional.
It is this ground that is adduced by advocates of gay marriage. They have invoked Loving in successful efforts to persuade the supreme courts of Massachusetts, California, and Connecticut to invalidate, as a matter of state constitutional law, their states’ prohibitions of gay marriage. Judging from the prehistory of Loving itself, it will be some years before the Supreme Court rules that “freedom to marry” extends to homosexual marriage; Perez v. Sharp preceded Loving by nineteen years. Until homosexual marriage becomes as uncontroversial in most states as racial intermarriage had become by 1967, the Court will, in all likelihood, stay its hand.
The most interesting legal aspect of the history of miscegenation laws is the support it provides for the proposition that the meaning of the Constitution can change—although the words do not change—because of changes in the environment. In 1868, when the Fourteenth Amendment was ratified, the best interpretation of it was that bans on interracial marriage were constitutionally permissible. Interracial marriage was opposed by the vast majority of people in all parts of the United States. Two-thirds of the forty-eight American states and territories had such laws. Marriage was thought to be a state prerogative, and “freedom to marry” would not have been considered one of the liberties protected against arbitrary state action by the Fourteenth Amendment’s due process clause. And the core of the concept of equal protection of the laws was merely that states could not withhold police protection from a group (namely the blacks in the South) on racial grounds. Only a few radical Republicans believed that blacks were the social equals, as distinct from the political equals, of whites, or that the equal protection clause was intended to make them the social equals of whites. The prevailing view was that blacks should have the rights of citizens, not that they should be protected against all forms of governmental discrimination. And finally and perhaps most importantly, the idea that anti-miscegenation laws did not deny the equal protection of the laws because they punished the white and the black violator the same, though it strikes modern judges as wooden, fitted (just as the “separate but equal” formula of Plessy v. Ferguson did) the formalistic bent of late nineteenth-century American judicial thought and the judges’ concomitant reluctance to base their decisions on social realities. But ninety-nine years after the ratification of the Fourteenth Amendment, it was clear to the Supreme Court Justices and indeed to most judges and lawyers outside the South that the anti-miscegenation laws violated the amendment. I think they were right. The language of the amendment was unchanged. But the language was open-ended. Closure was supplied by the social and political environment, and when that changed, the meaning changed. So, from what is beginning to seem ancient history, a jurisprudential lesson applicable to modern constitutional controversies emerges after all.