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excerpted from: Hrishi Karthikeyan and Gabriel J. Chin, Preserving Racial Identity: Population Patterns and the Application of Anti-miscegenation Statutes to Asian Americans, 1910-1950, 9 Asian Law Journal 1-39, 14-19 (2002) (200 Footnotes) (Full Document)

Prior to the Civil War, a number of states had statutes prohibiting "intermarriage ... [or] forms of illicit intercourse between the races." Notably, "during the years of Reconstruction in the South ... none of the statutes against miscegenation appear to have been repealed." Even outside the South, only a handful of states repealed their anti- miscegenation statutes in the wake of the Civil War. By 1910, 28 states still had such statutes in effect. Six of these states, all Southern, prohibited racial intermarriage through a constitutional provision.

Although the text of these statutes varied by state, all 28 statutes expressly prohibited intermarriage between whites and blacks. Seven states prohibited marriages between whites and Asians in some form. The universal application to African Americans suggests that these prohibitions primarily sought to prevent white-black intermarriage; legislators may have added Asian Americans by subsequent amendment in a number of cases, rather than including them at the time of original enactment.

Statutes prohibiting white-black intermarriage existed predominantly in the South, where blacks resided in the most significant numbers. Sixteen of the southern states in the belt between Delaware and Texas, with the single exception of the District of Columbia, prohibited black-white miscegenation by statute. This, however, also included states like West Virginia--with a 5.26 percent black population--as well as Oklahoma--with a 8.30 percent black population. Missouri, with its 4.78 percent black population, also imposed such a restriction.

Such statutes were by no means confined to the southern states, where African American numbers were the most significant. Indiana, for example, imposed intermarriage restrictions on its 2.23 percent black population. Nebraska, which contained fewer than 8,000 African Americans amongst its 1.2 million people, merely 0.64 percent maintained an anti-miscegenation provision in 1910. North Dakota, a state that was nearly 99 percent white, imposed a similar restriction. Eight western states with meager African American numbers also enacted prohibitions on intermarriage; the largest black population in the West was in Colorado, whose 11,453 African American residents constituted 1.43 percent of the state's population. The existence of anti-miscegenation statutes in states with such marginal African American populations undermines Stephenson's theory that this phenomenon correlates with multiple races living in "anything like equal numbers." In all, 91.8 percent of the African American population in 1910 resided in states where they were subject to intermarriage restrictions.

The seven states applying their prohibitions to people of Asian descent were Arizona, California, Mississippi, Montana, Nevada, Oregon, and Utah. The specific language in these statutes referring to Asian people varied from state to state. The statutes of Arizona, California, Mississippi, and Utah all referred to "Mongolians." Nevada and Oregon used the term "Chinese," and Montana specified both "Chinese" and "Japanese" persons. The reasons behind the inconsistent terminology are unclear, although the evidence suggests that the importance of these distinctions should not be exaggerated. First, the history of Asian American jurisprudence suggests a tendency by courts to read inclusive racial categories narrowly, while reading exclusive categories broadly. Secondly, a number of courts refer to dictionary classifications of race, such as "that of Blumenbach, who makes five ... [including] [t]he Mongolian, or yellow race, occupying Tartary, China, Japan, etc. ... and ... the Malay, or brown race, occupying the islands of the Indian Archipelago." Both of these factors suggest that any court interpreting its state's anti-miscegenation statute would be inclined to read the term "Mongolian" broadly.

Although Oregon and Nevada mentioned only "Chinese" in their intermarriage prohibitions, there is no case law from either state to illustrate how broadly the courts interpreted this term. The California case of Roldan v. Los Angeles County, however, offers a helpful analogy. In Roldan, a Filipino litigant successfully utilized Blumenbach's racial terminology to assert that California's prohibition applying to "Mongolians" did not include him, since he was a member of the "Malay" race. The California legislature, however, quickly responded by explicitly adding "member[s] of the Malay race" to the state's anti-miscegenation statute. The holdings in cases like Rice and Hall, and the legislative response to Roldan, emphasize the multiplicity of efforts broadly to prohibit marriage between whites and any group of Asian Americans. Even, however, if such terminology were to be interpreted narrowly as covering only a smaller subset of Asian Americans, it would only further discredit Stephenson's theory that such statutes corresponded to "other race elements exist[ing] in considerable numbers."

Assuming that intermarriage prohibitions applied to the entire Asian American population within the states in which they existed, no state enforcing such a restriction contained an Asian American population even close to the "anything like equal numbers" standard posited by Stephenson. Although Mississippi contained a majority black population, its total Asian American population--to whom it also extended its intermarriage prohibition--amounted to only 259 people, or 0.01 percent of the statewide population. Even in the West, three of the states in which Asian Americans were prohibited from intermarrying with whites--Montana, Arizona, and Utah--contained fewer than one percent Asian Americans. Of the three remaining states, California had the largest Asian American population, over 77,000, but this figure amounted to only 3.26 percent of the total population of California. Thus, while over two-thirds of the national Asian American population were restricted by anti-miscegenation statutes in their home states, in no such state did Asian Americans amount to even 1/30th of the population. Such statistics strongly undermine the assertion that growing Asian American numbers, threatening to disrupt the continuing dominance of the white population, provided the primary motivation for these statutes.

C. 1950 Anti-Miscegenation Statutes

By 1950, whites had secured a majority of the population in each of the forty-eight states and the District of Columbia. The African American population had grown at a rate slightly below the national average, and the Asian American population had grown at a slightly above-average rate. In both cases, however, this growth was accompanied by increasing dissemination throughout the country. African Americans had moved west and now surpassed Asian Americans in every state except Idaho and Utah. Asian American numbers also grew significantly in eastern states with large metropolitan areas, like Illinois, Pennsylvania, and New York. With both groups moving away from their centers of density, the largest concentrations of population were getting smaller. African Americans constituted less than a quarter of the population in most of the southern states, and Asian Americans comprised less than one percent of the population in every state except California, where they now formed only 1.35 percent.

Despite this diffusion of both the black and Asian American populations all 28 existing anti-miscegenation statutes remained in effect, with two additional states adopting such statutes and eight states adding Asian Americans to their prohibitions for the first time. The states that adopted new anti-miscegenation statues after 1910 were Wyoming, in 1913, and South Dakota, around 1919. The Wyoming statute applied to "Negroes, Mulattoes, Mongolians, or Malays," forbidding the marriage of any of these races with "white persons." The new South Dakota statute forbade the marriage of "any person belonging to the African, [K]orean, Malayan, or Mongolian race with any person of the opposite sex belonging to the Caucasian or white race." Both statutes specifically included both African Americans and Asian Americans within their prohibitions, supporting the thesis that such prohibitions never independently targeted Asian Americans.

Examination of the population patterns of these two states during this time directly contradicts Stephenson's population-driven theory. In 1920, the first census year following the adoption of these two statutes, Wyoming's African American population had shrunk by about a thousand people from the previous census, down to only 0.71 percent of the state population. The Asian American population had similarly decreased by nearly 400, down to 0.74 percent of the total. In South Dakota, the numbers had essentially remained stagnant, amounting to combined Asian American and African American numbers of slightly over 1,000 people in a state of well over 600,000, just 0.15 percent of the population. With the addition of these two statutes, a total of thirty states prohibited intermarriage between whites and African Americans in 1950. With the dispersion of the black population, however, the total proportion of African Americans covered by such statutes had decreased--from nearly 92 percent in 1910 to 72.9 percent by 1950.

The six other states adding Asian Americans to their prohibitions for the first time between 1910 and 1950 were: Georgia, Idaho, Maryland, Missouri, Nebraska, and Virginia. Four of these states--Idaho, Maryland, Missouri, and Nebraska--specifically added a reference to Asian Americans in some form in their anti-miscegenation statutes. Nebraska added the categories "Japanese or Chinese" in 1911. However, these two groups combined in the 1910 Census constituted only 702 people in a state of about 1.2 million, amounting to just 0.06 percent. Similarly, Missouri added the term "Mongolians" in 1919, and Idaho did the same in 1921. However, the 1920 Census shows that Missouri's Asian American population actually decreased slightly from the previous census, while the total state population had slightly grown. Asian Americans still totaled less than 0.02 percent. The same Census shows that Idaho's Asian American population had also slightly shrunk since 1910, while the overall state population had grown by almost a third. In 1920, Asian Americans in Idaho comprised less than 0.5 percent of the total population. Maryland, for the first time in 1935, added "member[s] of the Malay race" to its prohibitions. Asian American numbers in Maryland, however, hovered around 500 between 1930 and 1940, constituting about 0.03 percent of the state's population. For reference, Filipinos--a group commonly associated by the courts with the term "Malay"--totaled only 272 in Maryland in 1940. Thus, in none of these states did Asian American numbers approach those of the white population in the period immediately preceding the inclusion of Asian Americans within anti-miscegenation statutes. Contrary to Stephenson's thesis, these numbers remained low and, in some cases, even decreased.

Georgia and Virginia did not include Asian Americans specifically within their anti-miscegenation statutes, but instead declared it illegal for a white person to marry anyone "save" a white person--Georgia in 1927 and Virginia in 1924. In the same session, however, the Georgia legislature defined "white person" as "only persons of the white or Caucasian race, who have no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins." Therefore, the specific contemplation of Asian Americans in the adoption of the statute is unquestionable. Likewise, the Virginia legislature in the same session adopted legislation authorizing the State Registrar of VitalStatistics to certify the "racial composition of any individual, as Caucasian, Negro, Mongolian, American Indian, Asiatic Indian, Malay, or any mixture thereof, or any other non-Caucasic strains," thereby establishing the specific intent of the legislature that Asian Americans be included with all other "non- Caucasic" groups for legal purposes. Again, the Census numbers depict an unusual background for these legislative actions. Virginia contained only about 335 Asian Americans throughout the 1920s, constituting only 0.01 percent of the state's nearly 2.5 million people. Georgia's Asian American population remained at around 250, not even reaching 0.01 percent of the state's population.

In all, the proliferation of anti-miscegenation statutes targeting Asian Americans kept pace with the diffusion of this group throughout the country so that, by 1950, the 15 effective statutes covered 64 percent of the Asian American population nationwide--as compared with 7 statutes reaching 67.3 percent in 1910. However, as Asian Americans became decreasingly concentrated on the West Coast, they existed in smaller niches and communities in states across the country. While Asian American numbers may have substantially increased in areas of previous scarcity by the middle of the twentieth century, in no territory did they constitute even 1/74th of the residential population. Stephenson's model--contending that statutory "distinctions" arose when other races resembled "equal numbers" to whites--therefore fails adequately to explain the gradual proliferation over this period of intermarriage restrictions targeting Asian Americans.

[d1]. J.D., expected May 2002, New York University School of Law; B.A., Northwestern University. Following graduation, the author will begin a clerkship with The Honorable W. Royal Furgeson, Jr., United States District Court, Western District of Texas. An earlier version of this paper won the Leonard M. Henkin Prize from NYU School of Law.

[r1]. Interim Associate Dean and Rufus King Professor of Law, University of Cincinnati College of Law. LL.M., Yale Law School; J.D., University of Michigan Law School; B.A., Wesleyan University. Thanks to Wendy Parker, Victor Romero, Leti Volpp and Verna Williams for their helpful comments.