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.

Even The Rivers: A film about educating South Korea’s multiethnic generation.

April 2013

Cindy Lou Howe, Director

Matt Kelley, Producer

Uikwon Lee, Researcher

“In 10 years, even the rivers and mountains change.”
—Korean proverb

South Korea has seemingly always known dramatic change. Created after Japanese colonization and a devastating civil war, the nation became one of history’s most remarkable economic success stories. Today, many South Koreans are proud that their former “Hermit Kingdom” is a global economic and cultural powerhouse, hosting the Olympics and exporting everything from Galaxy smartphones to “Gangnam Style.”

Despite this constant change, South Korea remains one of the world’s most ethnically homogeneous societies. According to recent statistics, just two percent of South Koreans are immigrants, the bulk of whom are ethnic Koreans from China. Many Koreans cling to a “one blood” national identity that emphasizes so-called “pure” bloodlines, a notion borne of nationalist and anti-imperialist movements from the turn of the last century.

This self-concept, however, is increasingly at odds with the nation’s changing demographics. Urbanization, immigration and one of the world’s lowest fertility rates have resulted in a multi-ethnic baby boom for South Korea. According to the 2010 Census, there are over 150,000 children in the country with at least one parent of non-Korean heritage. By 2020, the government estimates there will be over 1.6 million multi-ethnic South Koreans, including half of all children living in rural areas…

For more information, click 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.