Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934

Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934

Law and History Review
Volume 20, Number 2 (Summer 2002)
DOI: 10.2307/744035

Julie Novkov, Associate Professor of Political Science and Women’s Studies
State University of New York, Albany

For over one hundred years–from the post–Civil War era to the post–Civil Rights era–the state of Alabama maintained a legal and social commitment to keeping blacks and whites from engaging in long-term sexual relationships with each other. Recent studies addressing the laws that barred miscegenation have shown that investigating governmental reactions to intimate interracial connections reveals much about the interplay between legal and social definitions of race as well as about the development of whiteness as a proxy for superior social, political, and legal status. As scholarly interest in whiteness as an ideological category has grown, historians have sought the roots of modern conceptions of whiteness as an oppositional category to blackness in legal, social, and economic relations in the southern United States during the era of Jim Crow.

Prosecutions for miscegenation were an important component in the process of defining race and entrenching white supremacy.  Interracial sexual relationships challenged the boundaries between white and non-white in the most fundamental way by subverting the model of the white family and often by threatening to produce or producing mixed-race children. In most southern states, even before the rise of the so-called “Redeemer” governments and the establishment of Jim Crow, lawmakers in the new postbellum legislatures moved quickly to bar specifically marriages between blacks and whites. By doing so, they sent a signal that even if the national government were intent upon imposing civil and political equality, so-called social equality would not result from emancipation or constitutional reform. The struggle against miscegenation was at bottom a struggle to establish and maintain whiteness as a separate and impermeable racial category that all observers could easily identify. While individuals whose race could not easily be determined threatened this system, the greater threat was the establishment of the miscegenic family. A black man with a white wife, as well as a white man with a black wife, not only had the potential to produce racially ambiguous children but also undermined white supremacy, and thus whiteness itself, by openly melding black and white into the most fundamental unit of society, the family.

Thus, keeping black and white separate required preventing individuals from being able to challenge the boundary between them. In order to do so, however, understandings of what constituted blackness and whiteness had to be in place. Prior to the Civil War, these had rested largely in social context and interaction; whiteness was intimately connected to performance and its constitution depended upon an individual’s ability to do the things that whites characteristically did. While free blacks posed a problem for this schema, their existence did not challenge the fundamental nature of the system in place, which became increasingly stringent and rigid as sectional conflict increased. In the wake of the Civil War, both whiteness and blackness had to be renegotiated and reconstructed, since slavery was no longer a yardstick. Some legislators and legal actors turned to science both to define blackness and whiteness and to understand their significance for public policy. Defining “race” was always in the background of the prohibition against miscegenation, but during the period when genetic understandings of race were most popular, the question of defining blackness was central in Alabama.

Because of the wealth of data, studying Alabama’s regulation of miscegenation is particularly helpful in understanding the generation and shifting of ideological conceptions of race. Other Southern and Western states were also grappling with these questions, as evinced by appellate decisions regarding convictions for miscegenation, but Alabama’s appellate courts were particularly engaged with these questions. They produced thirty-eight opinions concerning miscegenation–more reported decisions on the appellate level than any other state–between the end of the Civil War and the U.S. Supreme Court’s invalidation of such statutes in 1967. The number of individuals charged with violating a statute and convicted of violations is a significant measure of the law’s importance. But reviewing appellate litigation reveals more about the questions that were settled and in flux at particular historical moments.  Charles Robinson speculates that Alabama had significantly more cases than any other state both because of its large black population from the postbellum era to the present and because Alabama’s prohibitionary law was more broadly framed than comparable laws in neighboring states; a legal climate in which appeals were sometimes successful probably also contributed to the frequency of litigation.  Because of the large number of appellate cases, more information is available about the development of legal and social questions regarding miscegenation in Alabama than anywhere else.

This article focuses on a subset of these cases, analyzing the development of racial definitions in the law through the interplay between changing scientific understandings of race and legal actors’ manipulations of these understandings. In the 1890s and early 1900s, appeals of convictions for miscegenation raised evidentiary questions that set the stage for a struggle over proving race in the courts that began in 1918 and continued into the 1930s. In the appellate cases, the focused contention over racial definitions partially resulted from and coincided with the growing presence of eugenic theories about race in public and legal discourse. The science of eugenics captured the popular imagination shortly after the turn of the century and provided a new framework for arguing in terms of scientific expertise that non-whites were inherently and irremediably inferior to whites. This shift toward eugenic explanations of race and racial definition paralleled and partially initiated a shift from evidentiary concerns in the courts to a direct confrontation with questions about racial definition. The new focus on genetic framings of race, however, had an ironic result: criminal defendants convicted of miscegenation were able, often successfully, to challenge their convictions on the ground that the state had not adequately proven that they were black. This temporarily undermined the state’s efforts to maintain whiteness as a separate and impenetrable category.

As background to this argument, the article first addresses the evolution of the prohibition of miscegenation and the scope of appellate litigation that it generated. It then explains the evidentiary battles of the turn of the century and outlines the rise of eugenic theories and their impact on the law. With this legal, social, and scientific context established, the article turns to the question of how defense attorneys were able to exploit genetic framings of racial definitions for their clients convicted of miscegenation…

Read the entire article here.

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