Mixed Race Studies

Miscegenation: The Courts and the Constitution

William and Mary Law Review
Volume 8, Issue 1 (1966)
Article 7
pages 133-142

Cyrus E. Phillips IV

MISCEGENATION: THE COURTS AND THE CONSTITUTION

Miscegenation is generally defined as the interbreeding or marriage of persons of different races, but the term will here be used in reference to miscegenetic marriages only. That is, this paper will concern itself only with the aspects of the marriage laws of various states that relate to miscegenation. The purpose of this paper will be to show the antecedents of miscegenation in the American legal system, the methods of constitutional justification of miscegenation statutes in state courts, and the change in regard to their validity given by the federal judiciary.

BACKGROUND

Prohibitions against miscegenation date back to the earliest colonial times, and the first record of sanctions imposed for this act in the Virginia colony appears in Hening’s extract from the judicial proceedings of the Governor and Council of Virginia:

September 17th, 1630. Hugh Davis to be soundly whipped, before an assembly of negroes and others for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a negro; which fault he is to acknowledge next Sabbath day.

That prohibitions against miscegenation have been widespread in the United States can be seen in the fact that they have appeared in the statutes of some forty states. Of these forty, twenty-three have repealed their statutes, half of these having been repealed within the last two decades as a result of the movement for Negro equality as well as the publicity occasioned by a 1948 decision of the California Supreme Court which struck down that state’s miscegenation statute.

Nontheless, it is indeed surprising that seventeen states still retain their miscegenation statutes. Of these seventeen states, six make express provisions in their constitutions either forbidding the passage of laws validating such marriages or else maling them void ab initio. Miscegenation is an entirely statutory crime, generally considered to be of the grade of a felony, the penalty for which ranges up to imprisonment for ten years and fines up to $2,000.

All miscegenation statutes contain general provisions against the intermarriage of Negroes and Caucasians, but others have expanded their scope to include Malays, American Indians, Mestizos, and Half-breeds. Although these statutes in the main do not prohibit intermarriage between members of races other than white, all prohibit intermarriage between a white person and a member of the designated non-white group or groups.

And just as the groups with which intermarriage is prohibited vary from state to state, so also does the definition of “Negro.” One state classifies a Negro as any person of one-eighth or more Negro blood, while others define Negroes as any person of Negro descent to the third generation inclusive.”‘ Two states include every person in whom there is any ascertainable Negro blood within the prohibited group. That these statutes are an anomaly in this period of constitutional and social reform is readily apparent. Nevertheless, their antecedents run deep in the American legal system…

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