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Julie Novkov

excerpted from:  Julie Novkov, Racial Constructions: the Legal Regulation of Miscegenation in Alabama, 1890-1934 , 20 Law and History Review 225-277, 229-236 (Summer, 2002)(164 Footnotes)

In the years immediately after the Civil War, the South faced a racial crisis. The rigid lines between the races that slavery had maintained by marking blacks as undeniably subordinate and inferior were called into question, first through emancipation and then through Reconstruction. Racial inferiority and the connection between interracial sexual relationships and white supremacy had not existed in a single unchanging form over the years, but slavery had set the boundaries for these relationships. White patriarchy had defined the authority and responsibility of white men, the subordination and rights to protection for white women, and the gendered forms of subordination to which slaves and free blacks were subject. Martha Hodes's study of relationships between white women and black men suggests that an initial tentative tolerance for such relationships gradually gave way to disapproval, intolerance, and ultimately to nearly total repression in the immediate postbellum era. Under slavery, while such transgressions violated the established systems of racial subordination and patriarchy, they did not ultimately threaten the systems themselves.

The North's victory in the war and the emancipation of the slaves disrupted the repressive modus vivendi by eliminating slavery as a legal status that maintained most blacks' structural subordination. The white South had to develop new means of linking whiteness to superior status, rights, and authority in both the legal and social realms. This goal was achieved by establishing a rigid division between white and black through the prevention of any black incursions across a newly defined color line. In the matter of interracial sex, the southern states thus took over the task of direct patriarchal control previously left in the hands of individuals. Even after the key questions of the constitutionality of legal racial separation were eventually settled in favor of white supremacy in the 1880s and 1890s, the changes brought about by the end of slavery and the rise of a new national government could not be resolved quickly.

The struggle of the immediate postwar era was most visibly over race but incorporated issues of gender as well. In the days of slavery, anti- miscegenation laws could serve simply to channel interracial relationships rather than to eliminate them completely, since black women's children were slaves regardless of their fathers' ancestry. This double standard changed in the postwar period. As Mary Frances Berry has argued, controlling whites' sexual behavior after the Civil War meant more than just curbing any attempt on the part of white women to engage in sexual relations with black men. While actors in the legal system were cautious about limiting white men's sexual behavior, judges and juries recognized a tension between allowing complete license for white men and upholding norms of support and nurture for white women. The protection of white women, however, was not the only justification for pursuing white male miscegenators. Cheryl Harris's work on whiteness as property suggests that whites had a common interest in preserving the purity of whiteness as a racial identity for a myriad of concrete legal and economic privileges, as well as for the psychological benefits. As the analysis shows, bans on miscegenation clearly sought to limit white men's capacity to threaten whiteness by producing with their black partners children who could potentially pass for white.

Alabama, like most southern states, suffered great economic and social devastation during the Civil War and experienced turbulent politics in the immediate postbellum period. The one constant, however, was a legal commitment to barring interracial relationships that approximated the loving bonds of marriage. The years to come would see intensive efforts on the part of legal actors connected to the state to maintain laws against miscegenation and to punish those who violated them. The deep stake that the state had in such laws was in part responsible for prosecutors' and courts' willingness to pursue battles over convictions on the appellate level.

Alabama's Statutory Prohibition of Miscegenation

Even before the end of slavery, the Alabama code prohibited the establishment of relationships giving the appearance of marriage between whites and blacks. The first statute became part of the Alabama code in 1852 and its basic form remained constant through the Civil War. The 1852 version of the code allowed the solemnization of marriages between free blacks, but barred weddings between members of different races. The statutory language prohibited individuals from performing interracial marriage ceremonies, declaring such acts misdemeanors punishable by one-thousanddollar fines. The law did not provide for specific criminal penalties against the persons attempting to marry each other. The crime was an offense of strict liability; in other words, the person solemnizing an interracial match could be penalized regardless of whether he realized that the man and woman were of different races. "Negroes" were defined in a separate section of the code, which identified the class as including "person[s] of mixed blood, descended, on the part of the father or mother, from Negro ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person." Interracial sex was not prohibited per se, as this could have posed problems for white men, but the state made clear its horror at the thought that black men might partake of forcible sex with white women. If a black man, free or slave, raped or attempted to rape a white woman, he was legally subject to the death penalty.

After the end of the Civil War and in the wake of the congressional Radical Republicans' revision of the legal status of blacks, Alabama law regarding race was left in disarray. The legislature quickly moved to recriminalize miscegenation, establishing the basic form of the statute that would persist until 1970. The legislature established sanctions against both parties to miscegenous relationships and for any person attempting to officiate at a miscegenous marriage. The law regarding sexual relations between members of different races was framed neutrally with respect to gender and provided for a lengthy prison term upon conviction:

If any white person and any Negro, or the descendant of any Negro, to the third generation inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must on conviction be imprisoned in the penitentiary, or sentenced to hard labor for the county for not less than two nor more than seven years.

The nature of whiteness was left undefined, but the statute provided that a person with seven white great-grandparents would be defined as black as long as the eighth great-grandparent was a "Negro." Section sixty-two provided that anyone attempting to officiate at such a marriage could be fined between one hundred and one thousand dollars and could be imprisoned or sentenced to hard labor for up to six months.

The law's operation was more complex than it appeared, for the usual form of prosecutions under the statute would be through the operation of Alabama's criminal statutes barring adultery and fornication. Since no marriage between a white and black could be legally valid, whites and blacks who had sexual intercourse with each other could be tried for committing adultery if one of the parties was married or fornication if neither was married. While adultery and fornication were addressed in separate sections of the Alabama code, the Alabama courts ruled repeatedly that prosecutions for miscegenation not involving an accusation of an attempt to marry required proof of all of the elements of adultery or fornication in addition to the allegation that the parties were of different races. In the appellate records, the form of the charges was often felonious adultery or felonious fornication rather than miscegenation; the identification of the charged crime as a felony signaled that the parties were of different races.

The anti-miscegenation statute thus had the practical effect of increasing the severity of the offense. Adultery and fornication were both misdemeanors, but miscegenation was a felony punishable by a prison term in the state penitentiary. Therefore, only the statute that provided for criminal penalties for those who officiated at miscegenous marriages had a truly independent standing. As explained below, the courts determined quickly that prosecutions for miscegenation would take place under the same analytical and evidentiary frameworks as prosecutions for adultery and fornication.

The statute nonetheless provided room for many legal and factual questions. Legal questions tend to shift over time as different issues take center stage in litigation. The legal and factual debates over sections sixty- one and sixty-two and their successors were no exceptions. The migratory process was both intrinsic to the law and its relationship with constitutional standards and extrinsic, linked to the statute's relationship with changing beliefs about race. In what follows, I explore this process in detail.

Patterns of Appellate Litigation Concerning Miscegenation

It is helpful to get a sense of when appellate litigation concerning miscegenation was taking place. Figure 1 provides this information, with the graph line indicating the number of cases for which the Alabama appellate courts produced written opinions in a particular decade. As it demonstrates, appeals concerning outcomes in miscegenation cases were concentrated in two time periods. A first flurry of litigation took place in the post-Reconstruction years, leading to a peak in the 1870s and 1880s when the Alabama Supreme Court heard five cases. The appellate courts were also active in the mid-twentieth century in the years between the rise of northern black opposition to white supremacy in the early twentieth century and the Civil Rights movement's mass growth in the 1950s.

This article focuses on the period between 1915 and 1934, which saw twelve cases, although appellate litigation continued to occur at a relatively high rate after 1934. While the numbers of cases decided at particular times suggests general controversy over miscegenation, the particular issues that generated appeals shifted over time, creating clear patterns. Issues that obsessed the courts during the tumultuous years immediately after the Civil War were nearly invisible in later years, while concerns that troubled judges and lawyers in the 1920s were absent earlier. Between 1890 and 1914, evidentiary concerns were the main questions that the courts addressed. In the late teens, twenties, and early thirties, these issues gave way to questions about racial definition, though the evidentiary struggles informed the analysis of racial definition in significant ways. Aside from the early constitutional debates over how Alabama's laws would square with the Fourteenth Amendment, the evidentiary debate and the debate over racial definitions were the two most discrete and temporally confined struggles.

After the settling of constitutional questions in the immediate postbellum era, periodic debates over particular evidentiary issues gave rise to a number of appeals. These questions ranged widely, encompassing conflicts from the admissibility of confessions to the precise nature that a sexual relationship had to have in order to give rise to criminal liability under the anti- miscegenation statutes. As these evidentiary debates developed, they incorporated a nuanced understanding of the prevalent cultural beliefs about sexuality and race, which they reflected back to the surrounding culture. Such questions often turned on the natures of the defendants in the cases and on the natures of their relationships with each other. Most of these concerns centered around whites' major worry of the time: that miscegenation would ultimately result in the degradation of white blood. This influenced strongly the kinds of evidentiary questions about which lawyers argued intensely throughout these years.

To some extent, the problem of racial definition was a subcategory of evidentiary questions. Nonetheless, the question of what was legally sufficient to prove race was significant enough to warrant a separate analysis. The intensive conflict over what constituted blackness and whiteness for legal purposes spanned sixteen years, with two cases taking place in 1918 and the final case in which the definition of blackness was a central issue occurring in 1934. (Not all miscegenation cases taking place at this time addressed definitional issues: of the twelve decided between 1915 and 1934, seven involved questions about one defendant's race.) As shown below, much of the focus centered on questions of how blackness could be defined and proved at a time when individuals' racial origins were fast receding into the past.

Those convicted of miscegenation were often able to convince the courts on appeal that the conviction was improper. Unsurprisingly, defendants had more success with some issues than with others. Of the eight constitutional challenges in the immediate postbellum years, only one resulted in the invalidation of a conviction. While this was only one case, its repercussions should not be underestimated; it produced statewide consternation and national controversy over both regulations of miscegenation and the meaning of the fourteenth amendment. As constitutional questions gave way to challenges based on evidentiary questions, defendants' prospects improved. The first of these five cases took place in 1890 and the last in 1917; three of these convictions were invalidated. In 1912, the Alabama Supreme Court also invalidated on evidentiary grounds the conviction of a black man who had allegedly raped a white woman. The challenges of the late teens through the early thirties to convictions based on claims that the prosecution had not adequately charged or proven race produced seven cases. In five of these the appellate court struck down the defendant's conviction.

The framing of the legal issues in these cases depended, of course, upon the relevant statutes and the particular circumstances of each individual case. However, in order to understand how these questions developed within the legal system, one must look beyond the opinions produced in the appellate cases. Although reading them reveals the analytical frameworks that resonated for the judges, the rulings alone do not show how these frameworks came into being and translated into the legal context. Thus, the argument must include elite and public discourse that either influenced or represented the development of thinking about miscegenation in the United States during the early twentieth century and at the height of the eugenics movement. As understandings of race and mixed race changed over time, these changes had a profound impact on the ways that judges grappled with both legal and factual questions. These legal changes ultimately influenced dominant whites' efforts to secure their political and social power. Judges did not, of course, simply pick up such popular understandings and employ them in their reasoning with no mediation. The link between these nonlegal understandings and the judges' framings of miscegenation in their opinions was attorneys' translation and manipulation of these ideas. An investigation of the records of the appellate cases reveals the process of translation, its unpredictable elements, and its implications.

The following pages trace the history of these prosecutions and appeals, leading to the intensive focus on the race of the defendant in the late 1910s through the early 1930s. The discussion begins with the early twentieth-century battles over evidence, showing how these arguments related to beliefs about the nature of adultery and prostitution in the context of miscegenation. These evidentiary battles settled some standards for the admissibility of certain kinds of evidence that would ultimately ground the courts' responses to challenges of racial definition. After the evidentiary questions were settled, the next phase was a confrontation over the definition of race, which arose in the wake of concerns about eugenics and new quasi- scientific theories of race. To streamline the analysis, the article refers to mixed-race individuals according to the race of their parents, grandparents, or great-grandparents, though, as the analysis shows, this racial shorthand could become problematic in some circumstances.

Ultimately this analysis demonstrates the instability and dynamism of racial ideology in Alabama. While the whites in power worried throughout these years about the impact that racial mixing might have on the white race, the bases and implications of these fears changed over time. Prosecutions of individuals for engaging in interracial sex were the front line of defense for the white race and thus were a primary tool to articulate and reinforce an ideology of racism. Nonetheless, such prosecutions depended upon popular conceptions of race and racism in order to succeed. This interplay between social beliefs and the legal process produced constant shifts in the ways that the state was able to address miscegenation and ultimately affected the ways that the law publicly regulated race.