Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent
Author(s): Alfred Avins
Source: Virginia Law Review, Vol. 52, No. 7 (Nov., 1966), pp. 1224-1255
Published by: Virginia Law Review
Stable URL: http://www.jstor.org/stable/1071448 .
Accessed: 12/11/2014 23:01
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
.
Virginia Law Review is collaborating with JSTOR to digitize, preserve and extend access to Virginia Law
Review.
http://www.jstor.org
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
LAWS AND THE
ANTI-MISCEGENATION
FOURTEENTH AMENDMENT: THE
ORIGINAL INTENT
AlfredAvins*
T
HE SupremeCourt's1964 decisionin McLaughlinv. Florida'
seemsto portendthe demise in thatCourt of statelaws forbiding interracialmarriage.These laws representone of the oldest categories of legislation in this country,antedatingby a considerable
periodof timein some instancesthe AmericanRevolution.2Such laws
werewidespreadon the books of the statesduringthe Reconstruction
period and for a long time thereafter,
and they still exist in many
statestoday.3They have been upheld as constitutionalby everyappellate courtwhichhas consideredthe point,4with the single exception
of the Supreme Court of California,which split four-to-three
on the
question.5But the Court'sdecisionin McLaughlin to overrulePace v.
A4labama6
evidentlymeans that the Justicesintend to raze everyconstitutionallandmark,however ancient and once-respectable,
which
permitsthe statesto draw distinctionsbetween the races. It requires
no special perspicacityto see thatanti-miscegenation
laws are in jeopardy.
In myopinion,theframersand not the SupremeCourt should have
the finalsay on the scope of a constitutionalprovision.Therefore,I
* Professorof
Law, Memphis State UniversityLaw School. B.A., 1954, Hunter College;
LL.B., 1956, Columbia University;LL.M., 1957, New York University;M.L., 1961, J.S.D.,
1962, Universityof Chicago, Ph.D., 1965, Cambridge.
1 379 U.S. 184 (1964).
2 See, e.g., Laws of Md. ch. 44, ? 25 (Bacon 1765); 1 Laws of N.C. ch. 35, ? 15, at 157
(Potter, Taylor & Yancey 1821); 3 Stats. of S.C., No. 383, ? 21 (Cooper 1838); 6 Laws of
Va. 361 (Hening 1819).
3 See FLA. CONST.art. 16, ? 24; N.C. CONST.art. XIV, ? 8; S.C. CONST.art. III, ? 33;
TENN. CONST. art. XI, ? 14; ALA. CODE tit. 14, ? 360 (1958); ARK. STAT. ANN. ? 55-104
(1947); GA. CODE ANN. ? 53-106 (1961); KY. REv. STAT. ANN. ? 402.020 (2 )(Supp. 1966); LA.
Civ. CODE ANN. art. 94 (West 1952); MD. ANN. CODE art. 27, ? 398 (1957); Miss. CODE ANN.
? 459 (1956); TEX. REV. CIV. STAT. ANN. art. 4607 (1960); VA. CODE ANN. ? 20-54 (1960);
W. VA. CODE ANN. ? 4701 (1961).
4 Stevens v. United States, 146 F.2d 120 (10th Cir. 1944): State v. Tutty, 41 Fed. 753
(C.C.S.D. Ga. 1890); State v. Pass, 59 Ariz. 16, 121 P.2d 882 (1942); Long v. Brown, 186
Okla. 407, 98 P.2d 28 (1939); Eggers v. Olson, 104 Okla. 297, 231 Pac. 483 (1924); see
State v. Miller, 224 N.C. 228, 29 S.E.2d 751 (1944); Estate of Walker, 5 Ariz. 70, 46 Pac.
67 (1896); cf. In re Takahashi's Estate, 113 Mont. 490, 129 P.2d 217 (1942); Grant v.
Butt, 198 S.C. 298, 17 S.E.2d 689 (1941).
5 Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948).
6 106 U.S. 583 (1883).
[ 1224]
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
Anti-Miscegenation
Laws
1225
believe thata look at what the framersof the fourteenthamendment
thoughtabout that amendment'simpact on anti-miscegenation
laws
is warrantedbeforewe consigntheselaws to a judiciallycreateddoom.
Althoughthe position is not in fashionon today'sCourt, I believe
that once the original understandingand intent of the framersis
ascertained,the inquiryshould be at an end. Though thismaycreate
occasional practicaldifficulties,
under no circumstances
whatevercan
it be legitimateforany body to changethe scope of any constitutional
provisionexcept throughthe amendmentprocess.If a new situation,
unknownto and unforeseenby the framers,should arise, which fits
withinthe scope of the amendment'sknownand intendedprinciples,
of course the amendmentapplies. However, if the case in point is
beyondthe pale of the amendmentas the framerssaw it, then it must
be held to fall outside the amendment,regardlessof whethersubsequent circumstanceshave undercut the broad popular support for
theframers'position.Otherwise,iftheCourtwerepermittedto deviate
fromthe original understandingand to change the meaning of the
Constitutionfromtimeto time,it would becomein effecta permanent
floatingconstitutionalconvention.This would render Article V of
the Constitution,
whichprovidesan elaborateand explicitamendment
procedure,superfluous.The presenceof this prescribedmethod of
amendmentnecessarilyimplies that it shall be the exclusivemethod
of amendment.Moreover,the existenceof a power residingin the
Court to change the thrustof the Constitutionwithoutresortto the
processof ArticleV nullifiesthe basic value justifyingthe existence
of a writtenconstitution-thefact that it cannot be altered except
in a mannerwhichrequirestheconsensusof an extraordinary
majority.
Indeed, judicial amendmentmay reflecta minorityview. It is doubtfulwhetherCongresstodaycould be induced to pass a statuteeliminating anti-miscegenation
laws. Yet all too evidentis the veryreal possibilitythat the Court will impose upon the countryits own views of
what is desirable.
Nor will it do to say thatadherenceto the original understanding
of the meaningof a constitutionalprovisionmay cause inconvenience
in the lightof new conditions.If the original Constitutionis out of
step with presentneeds it can be amended in the mannerprescribed
in ArticleV. Experienceshows that if public opinion is sufficiently
unitedbehind a particularamendment,it can be passed quite rapidly.
The twenty-first
amendment,repealingProhibition,was proposedand
ratifiedin a matterof months.If, on the otherhand, the countryis
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1226
VirginiaLaw Review
[Vol. 52:1224
not agreed on an amendment,then it floutsthe constitutionalplan
fortheCourtto deviseone under theguiseof "interpretation."
Some, of course, have argued that the fourteenthamendmentis
draftedin language so general as to conferon the Supreme Court
of what
carte blanche to shape it into a tool for the accomplishment
it conceivesto be desirablesocial ends. But when the amendmentis
read in light of the prevailinglaw and conditionsof the time, its
language is in factreasonablyprecise; at least we can say with safety
thatit has no referenceto anti-miscegenation
laws. Presentday attacks
on theselaws involveno new constitutionalprinciple,and it cannot
be said thattheyinvolveany questionsto which the framersdid not
in factaddressthemselvesin 1866. Quite the contrary,nothingreally
new has been said on the subject of race relationsin general,and on
in particular,in the last century.
miscegenation
If our inquiry,then,is purelyhistorical,it is relevantat this point
to considerwhatmaterialswe should consultin seekingout the intent
amendmentwith respectto anti-misof the framersof the fourteenth
cegenationlaws. Congressionalmaterialswill provide essentiallyall
the relevantdata, since Congressproposed the amendmentand the
stateswere requiredeitherto accept it or rejectit as it stood,withno
power to modifyit. Accordingly,debates in statelegislaturesare relevantonlyto the extentthattheyreflectthe intentof Congress.Since
those debates,in the few cases where theyare extant,are even less
illuminatingthan the congressionaldebates,theyhave been ignored.
Debates in the countryat large are likewiseof secondarysignificance
to the debates in Congress,as are speechesreportedin newspapersof
the time,even if made by membersof Congressto theirconstituents.
Since the materialof primaryimportanceconsistsof speechesmade
in Congressand the committeereports,and since this material is
abundant,it has been consideredexclusively.
In choosing from this voluminous material in the Congressional
Globe of the period,we are guided by common sense and common
historicalknowledge.First, of course, are the statementsmade by
RepresentativeJohnA. Binghamof Ohio, the draftsmanof the privilegesand immunities,due process,and equal protectionclauses.Next
in importanceare statements
by two membersof the JointCommittee
on Reconstructionwho explained the amendmentto the two houses
of Congress,RepresentativeThaddeus Stevensand SenatorJacob M.
Howard. The statementsof otherprominentRepublican lawyersand
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1227
proponentsof the amendmentare next to be considered,especially
Senator Lyman Trumbull of Illinois, Chairmanof the Senate JudiciaryCommittee,and Representative
JamesF. Wilson of Iowa, Chairman of the House JudiciaryCommittee,who steeredthe Civil Rights
Bill to passage,since the firstsectionof the amendmentwas deemed
to be a constitutional
reenactment
of the provisionsof the Civil Rights
Bill.7The viewsof themoderateRepublicans,whosevoteswere necessaryto passage,are importantin consideringthe outermostlimitsof
the amendment,since the Radicals alone lacked enough votes to pass
the amendment,and if the amendmenthad been made too radical
thesemarginalvoteswould have been lost.8As for the opponentsof
the measure,especiallythe Democrats,their attacksmust be largely
discounted,since theywere made for political effect,and are of significanceonly when realisticallyrebuttingthe majorityposition.
Debates in the firstsessionof the 39thCongressare of primeimportance, but prior debate on the problem is also of assistancesince it
helps in understandingthe currentof debate in the 39th Congress
itself.Moreover,subsequentdebate,at leastduringthe Reconstruction
era, is of value forreflectedlightwhichit may throwon the original
understandingof the amendment.However,such subsequentdebate
may be colored by later political considerations,
and is thereforenot
as importantas debate during 1866. In this Article,relevantdebate
until 1875 has been considered.
Finally, preliminarymention should be made of the context in
whichmuch of the discussionof miscegenationand anti-miscegenation
laws arose. The spectreof miscegenationwas then, as it is at times
today,a bugaboo which the southerners
in Congressand theirnorthern sympathizers
overworkedat everyopportunity.9It became the
reductioad absurdumof the congressionaldebates.Wheneveranyone
proposedmeasuresforthe protectionof Negro rights,thecry"Do you
want your daughterto marrya Negro?" was raised. In contextthese
posturingsmust be read forwhat theywere: political smokescreens,
which everyonediscountedat the time,and which are merelyindicativeof whatthe Congressclearlythoughtit was not doing.
7 See Tansill, Avins, Crutchfield& Colegrove, The Fourteenth Amendment and Real
PropertyRights, in OPEN OCCUPANCY VS. FORCED HOUSING UNDER THE FOURTEENTH AMENDMENT 68, 81 (1963).
8 See Avins, Literacy Tests, The Fourteenth Amendment, and District of Columbia
Voting: The Original Intent, 1965 WASH. U.L.Q. 429, 431-34.
9 Cf. Avins, Book Review, 5 How. L.J. 278, 279 (1959).
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1228
VirginiaLaw Review
[Vol. 52:1224
Anti-Slavery
Debates
The question of miscegenationcame up occasionallyduring the
debates on the abolition of slavery.SenatorJamesH. Lane, a Kansas
Republican,who later voted for the fourteenthamendment,declared
in a February1864 speechadvocatingthecolonizationof freedNegroes
in Texas:
This question,sir, afterall, is a question of majorities-to remain such throughall coming time; for the prejudice,unfortunate as it may appear to some, which the white race entertains
to a legal and honorable amalgamationof the Africanwith the
people of this country,will preservea dividing line between
themas long as the world stands;nor should Senatorshide from
theireyes the factthat withoutthis legal and honorable admixtureof theAfricanblood with thatof our race the formercan attain to neithersocial nor political equality. I give it here as my
opinion thatthe individualpoliticianor politicalpartythatcomes
beforethe countryon the platformof amalgamation,either expressedor implied,will be crushedas by an avalanche.
SeveraldayslaterSenatorWillard Saulsbury,a Delaware Democrat,
debated the subject with Lane. Saulsburymentionedthat a colored
soldierwas punished in Delaware for having the "insolence" to tell
a respectablewhite storekeeper,
withoutprovocation,that the soldier
expectedto have a whitewifein threeyears.Saulsburyadded thathe
was afraidthatsocial equalitywas being carriedso far thatin Kansas
he would actuallyfindsuch a wife. Lane replied that the people of
Kansas were "prettyunanimous"in favorof sendingNegroesto western Texas, and thatthe whitewomen therewere only going to marry
whitemen, even withoutlaws. Lane added that "I . . . am now opposed to theamalgamationof the tworaces,believing,as I do, thatthe
product is inferiorto either race."'1 Lane taunted the Democrats
38th Cong., 1st Sess., Pt. 1, at 673 (1864).
Senator James R. Doolittle, a Wisconsin Republican and advocate of colonization had
previously observed: "By the laws of Massachusetts intermarriagesbetween these races
are forbidden as criminal. Why forbidden? Simply because natural instinct revolts at
it as wrong." CONG. GLOBE, 37th Cong., 2d Sess., pt. 2, app. at 84 (1863). He warned
that unless Negroes were colonized, racial amalgamation would result in the South, as
it had in Mexico. Id., pt. 2, app. at 85. Senator Orville H. Browning, an Illinois Republican, observed that social prejudices against intermarriageshowed how unrealistic
was discussion about equality. Id., pt. 2, at 1521.
11 CONG. GLOBE, 38th Cong., 1st Sess., pt. 1, at 841 (1864).
10 CONG. GLOBE,
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1229
with the fact that theyhad chosen Colonel Richard M. Johnson,a
DemocraticSenator fromKentucky,as Vice-Presidentfrom 1837 to
1841, and had nominatedhim for thatofficeagain in 1840, although
he was livingwitha Negro wife,and had a large familyby her.'2
Senator Reverdy Johnson,a Maryland Democrat, brought the
pointup again duringa debate on the use of Washington,D.C., streetcarsby Negroes.He arguedthatsinceall wereagreedthatthemarriage
of whitewomen to Negro men was undesirable,theyshould not have
to sit next to each otheron the streetcar.'3
This logic did not impress
the Republicans,who sharedthe antipathytowardamalgamationbut
hacked away at the ad terroremargument.Thus John Henderson,a
MissouriRepublican,referredto the "evils of amalgamationand consequent deteriorationof the race"'4 in a Senate speech arguing that
the abolition of slaverywould not lead to miscegenation.In a similar
speech,anotherRepublican made a slashingattackon the moralsof
southernslaveholders.'5The tack taken by the Republicans is best
representedin a speech by RepresentativeFarnsworthalso urging
passageof an anti-slavery
amendment:
Mr. Speaker,I am not afraidof "miscegenation."
If mycolleague
over thewayis afraidof it,ifhe requirestherestraining
influences
of a penal statuteto keep him and his partyfromrunninginto
miscegenation,I will willinglyvote it to them. But we do not
want it; we do not practicemiscegenation;we do not belong to
that school; that is a Democraticinstitution;that goes hand in
hand with slavery.Why,sir, some of the verybest blood of the
Democracyof Virginia may be found in the contrabandvillage
at Arlingtontoday; the blood of the Masons, the Hunters,the
Garnetts,the Carters,and the Haxalls; theirlineal thoughnatural
descendantsare among the contrabands.'6
There was only passing referenceto miscegenationin the second
sessionof the 38th Congress,in which the thirteenth
amendmentwas
Ibid.
Id., pt. 2, at 1157.
14 Id., pt. 2, at 1465; cf. id., pt. 2, at 1490 (remarksof Senator McDougall).
15 Id., pt. 4, at 2948 (remarksof Representative Shannon). He said:
I love the white race too well willingly to see their blood miscegenatingwith the
African,and must protest against any institution,however patriarchal, under which
such things are profitable, and too generally, on that account, called respectable.
Ibid.
16 Id., pt. 4, at 2979.
12
13
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1230
VirginiaLaw Review
[Vol. 52:1224
finallyproposed.A New HampshireRepublican ridiculedDemocratic
argumentsthat emancipationwould increasemiscegenation,17but a
Brooklyn,New York, Democrat expressed apprehensionsthat this
would occur.'8
FourteenthAmendmentDebates
The Democrats'propensityforinjectingthe question of miscegenation into everyracial discussion,no matterhow irrelevantit mightbe,
resultedin a number of discussionsof this topic during the debates
precedingand related to the fourteenthamendment.The general
outlined
course of debates on this amendmenthas been sufficiently
elsewhere,1so thatwe mayconfineour attentionto thosepartswhich
relate specificallyto miscegenation.
in theDistrictof ColumDuring the House debateon Negrosuffrage
bia, CongressmanGlenn W. Scofield,a PennsylvaniaRepublican, accused the Democratsof raising the alarmistcry of miscegenationat
everyturn:
Again,it is said it will lead to amalgamation.This cryhas been
too oftenraised to alarm even the mostignorant. ... This is a
standingargumentwith the Opposition,and is broughtout on
all occasionswhen any legislationis proposed touchingthe interestof the colored population. . . Let our sensitivefriends
composetheirnervesand tryto tell us how a little enlargement
of the electivefranchise. . . will resultin marriagebetweenthe
two races.It is frightthatmakesyou mistakea ballot fora billetdoux. It cannot be possible that any man of common sense can
bring himselfto believe that marriagesbetween any persons,
much less between white and colored people, will take place
because a colored man is allowed to drop a littlebit of paper in
forargument.20
a box . . . It is too trifling
This, of course,did not deterthe Democratsin the least fromdragging the "amalgamation"argumentinto the debates. Congressman
AndrewJ. Rogers,a New JerseyDemocrat and a minoritymember
17 CONG. GLOBE, 38th Cong., 2d Sess., pt. 1, at 484 (1865) (remarks of Representative
Patterson).
18 Id., pt. 1, at 530 (remarks of Representative Kalbfleisch).
19 See, e.g., Bickel, The Original Understandingand the SegregationDecision, 69 HARV.
L. REv. 1 (1955); Fairman, Does the FourteenthAmendmentIncorporate the Bill of Rights?
2 STAN. L. REv. 5 (1949); Tansill, Avins, Crutchfield& Colegrove, supra note 7.
20 CONG. GLOBE, 39th Cong., 1st Sess., pt. 1, at 179-80 (1866).
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
Laws
Anti-Miscegenation
1966]
1231
noted that Massachusetts
of the JointCommitteeon Reconstruction,
had passed an anti-miscegenation
law in its Revised Code of 1836,
which nullifiedinterracialmarriagesand made themcriminallypunishable.21 A Republican fromthat state interjectedthat the law was
repealed under the leadershipof a prominentDemocraticlegislator,
and therepealingactwas approvedbya Democraticgovernor.22
Rogers,
however,was undaunted. In his perorationhe assertedthat Negro
votingwould lead to miscegenation,and that it was hypocriticalfor
to advocate Negro suffrage,since the
New England representatives
Rhode Island statutesof 1822and 1844made miscegenationcriminal.23
This reasoningwas so obviouslyspecious,as were many of Rogers'
otherpoints,thattheRepublican majoritytreatedRogerswithobvious
contempt,lettinghim continue for hours, baiting him as he proceeded.24In addition, CongressmanJohn F. Farnsworth,an Illinois
amendRadical Republican lawyerwho latervoted forthe fourteenth
ment,replied:
[Rep. Rogers]
. . .
refers to another bugbear with which to scare
ignorantpeople, thatof amalgamation.He recitesthe statutesof
various States against the intermarriageof blacks and whites.
Well, sir,while I regardthatas altogethera matterof taste,and
neithermyselfnor my friendsrequire any restraininglaws to
preventus fromcommittingany errorin that direction,still,if
my friendfromNew Jerseyand his friendsare fearfulthat they
will be betrayedinto formingany connectionof thatsort,I will
verycheerfullyjoin withhim in votingthe restraininginfluence
of a penal statute.I will vote to punish it by confinement
in the
State prison,or, if he pleases,by hanging-anythingratherthan
theyshould be betrayedinto or induced to formany such unnatural relations.25
Several days later, Senator GarrettDavis of Kentuckytreatedthe
Senate to a lengthypseudo-scientific
and anthropologicaldiscourse
on Negroes.26He accused the MassachusettsRadicals of promoting
miscegenationin the South in order to produce "degeneracy"and to
Id., Pt. 1, at 200.
Ibid. (remarksof RepresentativeDawes).
23 Id., pt. 1, at 201.
24 See, e.g., id., pt. 1, at 202-03.
25 Id., pt. 1, at 204-05.
26 Id., Pt. 1, at 245-51.
21
22
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1232
VirginiaLaw Review
[Vol. 52:1224
make the South "a permanentcolony" of New England.27Nobody
paid any attentionto this fantasticharangue,although an Indiana
Radical Republican laterremarkedthatamalgamationwas an incident
of slavery,not freedom.28
When the Senate took up the Freedmen's Bureau Bill, Senator
Thomas A. Hendricks,an Indiana Democrat,noted that his state's
laws forbademiscegenation,and asked rhetoricallywhetherthe right
to marrya whitewomanwas a civil rightof a Negro protectedby the
bill.29 To this Senator Lyman Trumbull, the Illinois Republican
who was in chargeof the bill as Chairman of the Senate Judiciary
Committee,replied:
I beg the SenatorfromIndiana to read thebill. One of its objects
is to securethe same civil rightsand subject to the same punishmentspersonsof all racesand colors.How does thisinterfere
with
the law of Indiana preventingmarriagesbetween whites and
blacks?. . . Does not the law make it just as much a crimefora
white man to marrya black woman as for a black woman to
marrya white man, and vice versa?I presume there is ho discriminationin this respect,and thereforeyour law forbidding
marriagesbetweenwhitesand blacksoperatesalike on both races.
This bill does not interfere
withit. If thenegrois denied theright
to marrya white person,the white person is equally denied the
rightto marrythe negro.I see no discrimination
againsteitherin
this respectthat does not apply to both. Make the penaltythe
same on all classes of people for the same offense,and then no
one can complain.30
Senator GarrettDavis, the unreconstructedKentuckyDemocrat,
was the next to ride the favoriteminority"hobby-horse."He defied
the Republicans to forcehis state to change its law which punished
a Negrowho raped a whitewomanwithdeath,but merelyimprisoned
a whiteman foundguiltyof the same offense.31
Davis also decried the
bill foroverridingstateanti-miscegenation
statutes.32
Trumbull again
said:
27 Id., Pt. 1, at 250-51. For another specimen of this, see id., pt.
1, at 538-42 (remarks
of Representative Dawson).
28 Id., pt. 1, at 258 (remarksof RepresentativeJulian).
29 Id., pt. 1, at 318.
80 Id., pt. 1, at 322.
81 Id., pt. 1, at 397, 418.
32 Id., pt. 1, at 418.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1233
The Senatorsaysthe laws of Kentuckyforbida white man or
woman marryinga negro....
[I]t is a misrepresentationof this
bill to say that it interfereswith those laws.... The bill provides
fordealingout the same punishmentto people of everycolor and
everyrace; and if the law of Kentuckyforbidsthe white man to
marrythe black woman I presume it equally forbidsthe black
woman to marrythe white man, and the punishmentis alike
upon each. All this bill providesfor is that there shall be no
discriminationin punishmentson account of color; and unless
the Senator from Kentuckywants to punish the negro more
severelyfor marryinga white person than a white for marrying
a negro,the bill will not interferewith his law.33
At the same time Trumbull pressedhis civil rightsbill, whichwas
to be a permanent,nationwidestatute.SenatorReverdyJohnson,the
respectedMarylandDemocrat and formerAttorneyGeneral of the
United States,objected to the sweepingtermsof the bill. By way of
example, he argued that the provisiongiving everyperson without
regardto race the same rightto make contractsmightbe construed
laws.34Trumbull and
as repealing the numerousanti-miscegenation
Senator William P. Fessenden,Republican from Maine and chief
Senate memberof the JointCommitteeon Reconstruction,
strongly
denied Johnson'sassertions.35
Johnsonthen made an elaborate argumentin supportof such a constructionof the bill. He concludedthat
even if his argumentwas erroneous,the bill's language was so ambiguous thatit mightbe interpretedas an implied repeal of all these
laws. He added:
You do not mean to.
.
[repealall anti-miscegenation
laws]. I am
Id., pt. 1, at 420.
Id., pt. 1, at 505.
35 Ibid. The followingcolloquy occured:
Mr. FESSENDEN. Where is the discriminationagainst color in the law to which the
Senator refers?
Mr. JOHNSON. There is none; that is what I say; that is the very thing I am finding
fault with.
Mr. TRUMBULL. This bill would not repeal the law to which the Senator refers,if
there is no discriminationmade by it.
Mr. JOHNSON. Would it not? We shall see directly. Standing upon this section, it
will be admitted that the black man has the same right to enter into a contract of
marriage with a white woman as a white man has, that is clear, because marriage
is a contract.I was speaking of this without referenceto any State legislation.
Mr. FESSENDEN. He has the same right to make a contract of marriage with a white
woman that a white man has with a black woman.
33
34
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1234
VirginiaLaw Review
[Vol. 52:1224
sure the Senate is not preparedto go to that extent;and . . . I
submit to the honorable chairmanof the JudiciaryCommittee
whetherhe had not bettermake it so plain that the difficulty
which I suggestin the execution of the law will be obviated.36
Davis returnedto the fraywitha long harangueattackingthe civil
rightsbill for, inter alia, overrulingstate anti-miscegenation
laws.37
Trumbull replied disgustedlythathe had alreadyansweredthe point
severaltimes,and when Davis interruptedhim to inquire whyIllinois
had such a law, he sarcastically
shotback thatit was to restrainnatives
of Kentuckywho had recentlymoved into his state.38
The opponentsof the bill were not deterredby thesereplies from
continuingto make as much political capital as theycould. Senator
Edgar Cowan, a conservativePennsylvaniaRepublican who broke
with the majorityto support the President'sReconstructionpolicy,
continuedto predictthatdire penaltieswould befall statejudges who
enforcedanti-miscegenation
laws.39
The House Democratswereequally keen on squeezingpoliticaldividends out of the miscegenationargument.CongressmanSamuel S.
Marshall of Illinois argued that the Freedmen'sBureau Bill would
overturnstate anti-miscegenation
laws,40and another of his Democratic colleagues arose to endorse this line of argument.41
However,
two Illinois Republicans,Burton C. Cook and Samuel W. Moulton,
bothofwhomsupportedthebill, rebuttedthisline ofattack.The latter
declared: "I deny thatit is a civil rightfora white man to marrya
blackwomanor fora blackman to marrya whitewoman,"42adding: "I
insistthatmarriageis not a civil right,as contemplatedby the provisions of this bill."43Since the charge was being made for political
effect,denials by leading Republicans were ignored. Another opponent promptlymade the same charge," which was again denied.45
36 Id., Pt. 1, at 506.
Id., pt. 1, at 598.
Id., Pt. 1, at 600.
39 Id., Pt. 1, at 604.
40 Id., Pt. 1, at 629.
41 Id., pt. 1, at 632 (remarksof RepresentativeThornton).
42 Ibid.
43 Id., Pt. 1, at 632-33.
44 Id., app. at 69 (remarksof RepresentativeRousseau).
45 Congressman Phelps of Maryland declared:
Effortshave been made, and very ingeniously,by gentlemen opposed to the bill,
to bring it within the last-named specification,[interferencewith the details of
social relations] by arguing from the language used . . . an inference of a design
37
38
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1235
When the firstdraftsof what was later to become the fourteenth
amendmentwere consideredby the House, Rogers, the long-winded
New JerseyDemocrat, engaged in another lengthyharangue, adin the galleriesthan to memdressedmore to political sympathizers
Once again,Republicanssat back and baited him.47
berson thefloor.46
His onslaughtincluded a familiarchargethat the privilegesand imlaws,48but the
munitiesclause would ban state anti-miscegenation
majoritytreatedthe chargewith scorn.Several days later Rogers was
antiback on his feetto denounce the civil rightsbill foroverturning
miscegenationlaws.49CongressmanCook brushedaside his latestperoration, observing: "This general denunciation and general assault
of the bill . . . seems to me not entitled to much weight."50
In his messageexplaininghis veto of the civil rightsbill, President
AndrewJohnsondisclaimedany intentto allege thatthe bill abrogated
laws, but pointed to themby analogyas instances
anti-miscegenation
in statelaws,and reasonedthatsince Congress
of racial discrimination
could not eliminatetheselaws it had no power to eliminateany other
state statutes.5'It is interestingto note Trumbull's
discriminatory
to control State laws in respect to the marriage relation. Such a construction is
not warranted by the terms employed.
Id., app. at 75.
46 Id., app. at 135-40.
47 Id., app. at 139-40.
48 Id., app. at 134.
49 Id., pt. 2, at 1121. He said:
The laws of nearly all the States prohibit a colored man from marryinga white
woman. . . . As a white man is by law authorized to marry a white woman, so
does this bill compel the State to grant to the negro the same right of marrying
a white woman; and the judge who should declare the marriage void, in pursuance
of the law of his State, is liable to be indicted, imprisoned, and fined.
He added somewhat later: "Could Congress twenty years ago . . . have passed a law
repealing the statute of a State which made it penal for a negro to marry a white
person?" Id., pt. 2, at 1122.
50 Id., Pt. 2, at 1123.
51 President Johnson argued:
I do not say this bill repeals State laws on the subject of marriage between the
two races, for as the whites are forbidden to intermarrywith the blacks, the blacks
can only make such contracts as the whites themselves are allowed to make, and
thereforecannot, under this bill, enter into the marriage contract with the whites.
I cite this discrimination,however, as an instance of the State policy as to discrimination, and to inquire whether, if Congress can abrogate all State laws of
discriminationbetween the two races in the matter of real estate, of suits, and of
contractsgenerally, Congress may not also repeal the State laws as to the contract
of marriage between the two races?
Id., Pt. 2, at 1680.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1236
VirginiaLaw Review
[Vol. 52:1224
angryanswer to this in his lengthyspeech on behalf of the Senate
Republicans in reply to the veto message. He firstquoted from a
speech made six years earlier by then-SenatorAndrew Johnsonattackinga veto messageof PresidentJamesBuchanan forrestingon a
"mere quibble" and for sounding more like the declamation of a
"mere politician or demagogue,than a grave and sound reason to
by thePresidentof the United Statesin a vetomessageupon
be offered
so importanta measureas the homesteadbill." Trumbull continued:
That is probably the best answer to this objection, though I
should hardlyhave venturedto use such harshlanguage in reference to the Presidentas to accuse him of quibbling and of demagoguery,and of playing the mere politician in sending a veto
messageto the Congressof the United States.
The Presidentalso makessome otherallusionsin thisveto message of a similarcharacter.For instance,he speaks of the improprietyof marriagesbetweenwhitesand blacks,and then he goes
on to say, "I do not say that this bill repeals State laws on the
subject of marriagebetweenthe two races." Then forwhat purpose is it introducedinto this message?Not surelyas an ad captandumargumentto excite prejudice-the argumentof a demagogue and a politician?Mr. Johnsoncould not do that,having
condemnedsuch "quibbles" in Mr. Buchanan.52
Trumbull thusexpressedhis annoyanceat the Presidentforparroting
Democraticuse of the amalgamationargumentforpolitical gain.
The principlesof the civil rightsbill were ultimatelyembodied in
and particularlyin
the firstsection of the fourteenthamendment,53
found other
Democrats
the equal protectionclause. The opposing
thingson which to make politicalcapital,and so paid scantattention
to theirfavoriteamalgamationtheme.54
When the Senate resumedconsiderationof Negro suffragein the
amendment,SenDistrictof Columbia afterpassageof the fourteenth
ator WaitmanT. Willey,a West Virginia Republican who supported
the proposal,attackedthe Democratic"outcryagainstnegro equality"
as "an unmeaningclamor,addressedto the passionsand prejudicesof
the unthinkingratherthan the respectfulconsiderationof the statesId., pt. 2, at 1757.
See Tansill, Avins, Crutchfield& Colegrove, supra note 7, at 81.
54 See, e.g., CONG.GLOBE,39th Cong., 1st Sess., app. at 231-43 (speech by Senator Davis).
52
53
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1237
man."55He then pointed out that the intermarriageargumentwas
even more trivial,and had no relationto voting.He added:
Moreover,it createsno barrierto the interpositionof legislative
prohibitionsagainstsuch intermarriage.
Every State, I suppose,
has statutory
provisionsinhibitingthe marriagerelationbetween
personswithincertaindegreesof kindred.The same policymight
be observedin referenceto these races, if the good of society
should renderit necessary.56
Willey then pointed out thatillicit miscegenationflourishedunder
slavery,and that "one of the most beneficialresultsof the abolition
of slaverywill be the decline of miscegenation."57
Coming froma
Republican who two and a half weeks beforehad voted for the passage of the fourteenthamendment,58
this statementtakes on added
significance.
Early ReconstructionPeriod Discussion
Discussionof miscegenationduringthe earlyReconstructionperiod
is scanty,but what thereis indicatesthat the Democratswere chiefly
interestedin the subjectforthe politicaldividendsit mightpay. Thus,
during considerationof Negro suffragein the Districtof Columbia,
SenatorDavis of Kentuckydeliveredan extendedharangueon Negro
inferiority,
including a dire warningon the evils to be anticipated
frommiscegenationas illustratedby the Latin Americanexperience,
and accusingnorthernRadicals of hypocrisy
fornot marryingcolored
women.59
The followingyear,SenatorCharlesSumner,the egalitarianRadical
Republican fromMassachusetts,
presseda bill to allow Negroesin the
Districtof Columbia to hold officeand to serveon juries.60Another
Radical, SenatorSamuel C. Pomeroyof Kansas,complainedthatSumner was proceeding"piecemeal,"and givingNegroesrightsa littleat
a time ratherthan all at once. He wanted to abolish the entireold
Marylandcode inheritedby the Districtof Columbia which placed
special restrictionson Negroes, including prohibitionsagainst mis55 Id., pt. 4, at 3437.
56 Ibid.
57 Ibid.
58 See id., pt. 4, at 3042.
59 CONG.GLOBE, 39th Cong., 2d Sess., pt. 1, at 78-81 (1866).
60 See CONG.GLOBE, 40th Cong., 2d Sess., pt. 1, at 38 (1867).
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1238
VirginiaLaw Review
[Vol. 52:1224
cegenation.61
However,Sumnerreplied thatalthoughhe agreed with
Pomeroy,"it was not expedientto raise any furtherquestion."62
In the House CongressmanJamesBrooks,a Democrat fromNew
discourse on Negro inYork, delivered a lengthypseudo-scientific
and the dangersof miscegenationshortlyafterthe opening
feriority
In January1868, after
of the second sessionof the 40th Congress.63
PresidentJohnsonhad deliveredhis stateof the Union message,CongressmanHamiltonWard, a New York Republican, took the occasion
to attack the President and the Democrats, including Davis and
Brooks,for their use of the Negro "ethnographicalargument"as a
"fraud"and "appealing to the lowestprejudicesof our nature .
Ward also attackedthe sex moralsof "rebel autocrats"forcausingmiscegenation,and said thatabolition of slaverywould end such illicit
relations.Significantly,
he added: "I concede all the gentlemanclaims
oftheevileffects
ofamalgamation
...."64
In March the use of the miscegenationargumentas an irrelevant
smokescreenwas once again illustrated.CongressmanJamesP. Knott
of Kentucky,in the courseof a long speech attackingNegro suffrage,
read froma portionof Kent's Commentarieswhich condemnedmiscegenation.65A MichiganRepublican promptlydeclaredthatthishad
nothingto do withthe rightto vote.66
61 Id., pt. 1, at 39. Senator Pomeroy stated that under the law of the District of
Columbia, "a man of my complexion ... is prohibited from contractingmatrimonywith
a person of a darker complexion." Ibid.
62 Ibid.
63 Id., app. at 69-73 (1867). See also a similar discourse by Representative Mungen
at CONG. GLOBE, 40th Cong., 1st Sess., pt. 1, at 519-22 (1867). For some rebuttals of this
type of argument, see CONG. GLOBE, 40th Cong., 2d Sess., pt. 1, at 267 (1867) (remarks
of Representative Stevens); id., pt. 1, at 456-59 (1868) (remarks of Representative Baldwin).
64 Id., pt. 1, at 465. See also id., pt. 2, at 1408-09, where Senator Patterson, a New
Hampshire Republican, observed that "the blood of the white man has been so generally transfusedinto their veins that it would bafflethe double sight of a seer to decide whether they are entitled to the blessing of Shem or the curse of Ham."
65 Id., Pt. 2, at 1963. See also id., pt. 3, at 2869 (Senator Doolittle quoting Abraham
Lincoln).
66
Id., pt. 2, at 1970 (remarksof Representative Beaman). Congressman Beaman said:
And, should your ballot and that of a black man happen to be placed in juxtaposition, would you for that reason at once deem it incumbent on you to give your
daughter in marriage to the "American citizen of African descent?" Why, on the
same principle, are you not bound to become the father-in-lawof one of those
other voters who, though white, is somewhat more debased than the negro? Why,
by parity of reasoning, are you not bound to inaugurate practical amalgamation by
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1239
When the Third Session of the 40th Congressmet in December,
1868,to considergivingthe Negro the ballot by constitutional
amendment,the Democratscontinuedto ride their favorite"hobby-horse."
A KentuckyDemocratraised the amalgamationargumentand pointed
to the 1836 Massachusettsanti-miscegenation
law as an illustration
of northerninconsistency.67
A Tennessee Republican sarcastically
told him that therewas nothingto worryabout since Republicans
werenot planningto marryNegroesand the latterwere smartenough
not to marryDemocrats.68
When the fifteenth
amendmentwas consideredby the Senate, a
Delaware Democrat raised the same point. He declared that Mexico
was the perfectillustrationof the national degeneracyto be apprehended fromrace-crossing.69
Davis, too, pointed to the fact that the
Republican senatorsdid not marryNegro women,as a demonstration
thattherewas nothingwrongwithracial prejudice,and thereforethat
Negroesshould not be permittedto vote.70The Republicans simply
retortedwithsarcasm.7'
SenatorJamesR. Doolittle, a "lame-duck"Wisconsinconservative
and ardentopponentof the Republican policyof Reconstruction,
likewise made a speechdiscussingtheracial theoriesof "ethnologists,"
and
thephysicalcharacteristics
of Negroes.He claimedthatmulattoescould
not propagate their species indefinitely,
and concluded: "It is the
fiatof the Almightywhich is stampedupon thisveryidea of forcing
an amalgamationof the races againstnature and against the laws of
God."72He therefore
concludedthatNegroesshouldbe shippedto the
West Indies,ratherthanbeing giventhe vote,a propositionwhichdid
not impressthe Republicans.73Saulsburyof Delaware added his own
warningabout racial hybridsand the resultingnational degeneracy,
exemplifiedby Mexico, to be apprehendedfromallowing Negroesto
vote.74He made a humorousspeech suggestingthat a constitutional
sending your daughter into a wigwam as the wife of the half-tamed savage and
the prospectivemother of children of the forest.
Ibid.
67 CONG. GLOBE, 40th Cong., 3d Sess., pt. 1, at 691 (1869) (remarks of
Representative
Beck).
68 Id., app. at 129 (remarksof RepresentativeMullins).
69 Id., app. at 169 (remarksof Senator Bayard).
70 Id., pt. 2, at 998-99.
71 Ibid.
72 Id., pt. 2, at 1010.
73 Ibid.
74 Id., app. at 163.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1240
VirginiaLaw Review
[Vol. 52:1224
amendmentbe passedeliminatingall distinctionsof color,75and Davis
chimed in to suggestthat Congressrequire all races "to enter into
universal miscegenation."76
Finally Senator Oliver P. Morton, an
Indiana Republican, complained:
I am willing to submit it to the experienceand observationof
everySenatorhere to-nightof any partywhethera singleDemocraticspeech was made in any State duringthe late canvassthat
was not devoted principallyto the subject of the negro-negro
equality,amalgamation,social equality-if the people were not
warnedthattheirdaughterswereabout to be marriedto negroes,
and if the Democraticpartydid not throughoutthe late canvass
at everymeetingand in everyspeech,in season and out of season,
keep the whole question of negro equality, politically,socially,
and in everyotherway, constantlybefore the people? And yet
theynow complainthatthe subjecthas not been discussedbefore
the people.77
When the second sessionof the 41st Congressconsidereda bill to
enforcethe fifteenth
amendment,SenatorGeorgeVickers,a Maryland
Democrat,once again found a way to referto miscegenationin the
thatNegroesdid not need to vote.78Congresscourseof demonstrating
man Thomas Swann,anotherMarylandDemocrat,likewiselinked up
withamalgamation.79
Negro suffrage
Id., pt. 2, at 1310-11.
Id., pt. 2, at 1311.
77 Id., pt. 2, at 1315.
78 CONG. GLOBE, 41st Cong., 2d Sess., pt. 4, at 3484 (1870). See also id., app. at 420: "The
day of race legislation [in Tennessee] has passed forever; hereafterit will be for the
people without referenceto race, except the intimate and more sacred social relations
of the family."(remarksof Senator Fowler).
79 Id., app. at 433. Representative Swann said:
His success is not with the white man, nor is amalgamation a remedy for the barriers which rise between us and must always keep him separate and distinct.
Equality is the result of natural affinities.The two races may coexist, but the negro
will never be permitted to occupy relations of perfect equality. Impressed with
these views, I have opposed his participation in the governmental control of this
country....
The present status of the negro race is not by any means flattering to the
advocates of equality and amalgamation. Look at them as they appear in
idleness in the thoroughfaresof this Federal city, as they stand in groups around
political club-houses, tippling-shops, places of amusement, or institutions where
alms are distributed to the poor and helpless. You may trace it all to the political
rights which you have conferredupon them.
Ibid.
75
76
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1241
The next year,when a proposalwas made to integratethe schools
of the Districtof Columbia, Senator Allen G. Thurman, an Ohio
Democrat,once again raised the cry of intermarriage.80
Vickers,too,
in a speech againsta federallaw enforcingvotingrights,contended
that Negro suffragewas leading to "social equality and amalgamation."8'
Sumner'sAmnestyBill Amendment
On May 13, 1870, Senator Charles Sumner introduceda supplementarycivil rightsbill.82The firstsectionforbaderacial discrimination by carriers,inns, places of amusement,schools,churches,cemeteries, and other benevolent incorporatedinstitutions.The fifth
section provided "that every law, statute,ordinance,regulation,or
custom, whether national or State, . . . making any discriminations
againstany personon accountof color,by the use of theword 'white,'
is herebyrepealed and annulled."83The bill was reportedadversely
by Senator Trumbull, Chairman of the JudiciaryCommittee,and
died.84The next year Sumnerreintroducedit, and again it died at
the JudiciaryCommittee'shands.85Some committeemembersthought
the bill unconstitutional,
while othersbelieved it to be unnecessary.86
Sumner introducedit for a third time in the firstsession of the
42d Congressbut again it died in the face of Senate apathy.87
In spite
of these rebuffs,Sumner persisted.In the second session of the 42d
Congressin the winterof 1872, Sumnermoved to tack his bill on as
a rider to the amnestybill,88a proposal authorizedby the thirdsectionof the fourteenth
amendmentto removetheremainingdisabilities
of mostex-Confederates.
The amnestybill was supportedby the President, by all of the Democratsand by the southernRepublicans,and
had nominal supportfrommost otherRepublicans.89The two-thirds
41st Cong., 3d Sess., pt. 2, at 1057 (1871).
1637.
82 CONG. GLOBE, 41st Cong., 2d Sess., pt. 4, at 3434
(1870).
83 CONG. GLOBE, 42d Cong., 2d Sess., pt. 1, at 244
(1871).
84 CONG. GLOBE, 41st Cong., 2d Sess., pt. 6, at 5314
(1870).
85 CONG. GLOBE, 41st Cong., 3d Sess., Pt. 1, at 619 (1871); id., pt. 2, at 1263. See also
CONG. GLOBE, 42d Cong., 2d Sess., Pt. 1, at 822 (1872).
86 Id., pt. 1, at 731.
87 CONG. GLOBE, 42d Cong., 1st Sess., Pt. 1, at 21 (1871). See also CONG.
GLOBE, 42d Cong.,
2d Sess.,pt. 1, at 822 (1872).
88 Id., pt. 1, at 240-41.
89 See id., pt. 1, at 237.
80 CONG. GLOBE,
81 Id., pt. 2, at
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1242
VirginiaLaw Review
[Vol. 52:1224
majorityrequired90for the passage of the bill in the Senate seemed
likely until other Republicans opposed to amnestydecided to use
Sumner'srider as a means of defeatingthe bill by inducing Democratsto vote againstthe combinedmeasure.91
The fifthsection of Sumner's bill was less popular with the Republicans than any other. It was objected to as unconstitutionalon
the ground thatCongresshad no power to repeal statelaws;92it was
called uncertainin scope,93and it was strenuouslyopposed because
it would permitthe naturalizationof the Chinese on the west coast,
whichmanyRepublicanswere against.94It was ultimatelyeliminated
fromthe bill.95However,the Democratssaw in thissection,as well as
in the firstsection,some good gristfortheiramalgamationarguments.
As soon as Sumnerproposedhis rider,SenatorJoshuaHill, a Union
RepublicanfromGeorgiaand an opponentof the bill,raisedtheamalgamationargument.He said that the statescould regulateintermarriages betweenraces. He said that he did not know whetherSumner
intendedto include thisrightin the bill,9"but Sumnerdid not answer
him on this point. Senator Thomas M. Norwood, Hill's Democratic
colleague, also made an elaborate attack on the fifthsection for repealing state anti-miscegenation
laws.97Senator Henry Wilson, Sumner's Republican colleague, answeredNorwood with a thinlyveiled
attackon southernsex morals,pointingto the large numberof mulattoes in the gallery.98
SenatorFrelinghuysenalso pointed out that the
provisionwas not "subject to the criticismwhichhas been made upon
it by the SenatorfromGeorgia" because "the Congressof the United
States cannot reach State legislationin that way, annulling and repealing theiracts."99
90 Section 3 of the fourteenth amendment requires a two-thirdsmajority in each
house of Congress to remove such a disability.
91 The machinations are described in Kelly, The Congressional Controversy Over
School Segregation,1867-1875, 64 AM. HIST. REV. 537, 550-52 (1959).
92 Senator Frelinghuysen,a New JerseyRepublican and formerAttorney General of
that state, supported the bill generally, but had this to say about ? 5: "I understand
that Congress have no power to repeal a State statute any more than we have to enact
a State statute.That provision of the law is unconstitutional,and is entirelyunnecessary."
CONG.GLOBE,42d Cong., 2d Sess., pt. 1, 436 (1872).
93 Id., pt. 1, at 871 (remarksof Senator Sherman).
94 Id., Pt. 1, at 845-46,871-73,pt. 2, at 901, 909-12.
95 Id., pt. 1, at 871 (proposal to strikethe section made); id., pts. 1 & 2, at 898-99 (substitute passed).
96 Id., Pt. 1, at 242 (1871).
97 Id., pt. 1, at 819 (1872).
98 Id., pt. 1, at 820.
99 Ibid.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
Laws
Anti-Miscegenation
1966]
1243
Norwood then replied to Frelinghuysenthat the statutecould be
laws. Pomeroy,who was not
construedas repealinganti-miscegenation
a lawyer,chimedin:
I did not knowthattheyhad any such law in Georgia,but I have
knownformanyyearssince we commencedthe agitationof this
anti-slavery
struggleour Democratic friendswere always afraid
that we should bring about a state of thingswherebypeople of
one color would be allowed to marrythoseof another,and I have
known themto go so far as to pass a law restrainingthemselves
frommarryingblack women. I have never felt the necessityof
any such statute,[laughter]and I thinkit is a sortof imposition
upon a man to place him under any such restraint.In any State
or countrythatI ever lived in men were in the habit of choosing
theirwivesand marrying
them.If anybodywantsa law to restrain
him on that subject,I do not know that I should object to his
havingit, and yetI could neversee the necessityforone.100
Pomeroyadded that he did not think that Sumner's bill should
be opposed if it repealed anti-miscegenation
laws because "I think
[miscegenation]should not be regulated by law." He concluded:
"I cannotconceivethatthisamendment. . . can be open to any such
objectionas has been made by the SenatorfromGeorgia; but, if it is
open, I say then there should be no obstacle placed to its passage,
froma law of that kind it
because if anyone in Georgia is suffering
oughtto be repealed."101
Two days later, several Republicans who supportedhis bill generallyasked Sumnerto strikethe fifthsectionfromit because of the
effecton the naturalizationlaws. Sumnersaid he was unwillingto do
so because he wanted to eliminateall legal distinctionsbased on race
in order to realize "the greatpromiseof the Declaration of Independence."''02Norwood then asked him whetherthis section would not
repeal the stateanti-miscegenation
laws,and Sumnerreplied that
if in that way the legislation,which the Senator now calls attentionto, is repealed or annulled,so much the better.Nor can
I doubt the power of Congress.... Out of what has the inhibition to which he alludes originated?The prejudice of color
which was the very basis of slavery.Therefore in abolishing
100 Id., pt. 1, at 821.
101 Ibid.
102
Id., pt. 1, at 872.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
VirginiaLaw Review
1244
[Vol. 52:1224
slaveryCongressmust,would it completeits work,abolish all the
of slavery,all thatgrowsout of slavery.103
off-shoots
SenatorJamesHarlan, an Iowa Republican,also answeredNorwood
and declared that such laws were futile. He reasoned that if misceand
genationwas not goingto take place, such laws were unnecessary,
He
concluded:
if it was goingto happen,thenlaws would not stop it.
They make the fathera nominal criminal,the mothera legal
prostitute,and the childrenlegal bastardsin the arms of their
recognizedparents.They deprive the mothersand innocentchildren of the proper protectionof the laws of theircountry,and
These State laws prohibitingthe intermarnothingmore.
riage of the two races do not preventamalgamation,but enThey are,
courage prostitutionand abandonmentof offspring.
evil, and only evil.104
therefore,
SenatorHill then asked:
Does the Senatorbelieve that the Congressof the United States
has the powerto repeal a statuteof the State of Georgiawhich is
not obnoxious to the Constitutionof the United States?He cannot thinkso. He is too good a lawyerforthat.105
Several monthslater, when the Senate resumed considerationof
amnestyand Sumner'samendment,Senator Francis P. Blair, a Missouri Democrat,warned of the evils of amalgamation,and said that
natural instinctswould keep Negroes and whites apart in spite of
Sumner'sbill.100To thisSenatorHenryWilson, Sumner'sRepublican
colleague,replied:
The Senator talks to us about the doctrineof amalgamation
and forcingpeople together,of mixingraces. I have heard it before.We heard it in thisChamber in the yearsthat are past; in
the good old times.We heard it beforethe war, duringthe war,
and since the war. Whenevera propositionhas been made in
theseHalls to secureliberty,equality,justice,humanity,to throw
the shield of the protectionof the law over men, we have had
this doctrine proclaimed. I maintain that . . . just in proportion
Ibid.
Id., pt. 1, at 878.
105 Id., pt. 1, at 879-80.
106 Id., pt. 4, at 3252.
103
104
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1245
as you have liftedup the coloredrace and put themon the plane
of equality,just in that proportionyou have separatedthe races
and maintainedthe social virtues.I believe that under freedom
there is not a tenthpart of the improperassociationsbetween
the racesthatexistedbeforethewar. There is less,farless mixing
of racesnow thanbeforethewar,and I am sure the Senatorfrom
Missourimust see and admit thisto be SO.107
Meanwhile,a bill similarto Sumner'shad been introducedin the
House.108A KentuckyDemocrat attacked the section repealing disstatelaws because it mightannul anti-miscegenation
criminatory
statutes. He said that thissectionwas beyond Congress'power to pass.109
A MissouriDemocratprotestedthat the House JudiciaryCommittee
had not reportedhis constitutionalamendmentto prohibit miscegenation.110
AnotherKentuckyDemocratquoted fromCharlesDarwin
to provehow detrimentalmiscegenation,
whichthe fifthsectionwould
allow, mightbe.1"'
The Civil RightsAct of 1875
Since Sumner'samendmenthad failed in the previoussession,he
reintroducedit in the firstsession of the 43d Congressas an independent measure.112
However,debate firstcommencedin the House
of Representatives,
wherea copyof Sumner'sbill had previouslybeen
introduced.13The Democratswere quick to raise theiramalgamation
argument.CongressmanJames B. Beck, a KentuckyDemocrat,observed:
I suppose thereare gentlemenon thisfloorwho would arrest,
imprison,and finea youngwoman in any State of the South if
she were to refuseto marrya negro man on account of color,
race, or previous condition of servitude,in the event of his
making her a proposal of marriage,and her refusingon that
ground. "That would be deprivinghim of a righthe had under
the amendment,and Congresswould be asked to take it up, and
say, This insolentwhite woman must be taught to know that
Id., Pt. 4, at 3253.
See id., pt. 2, at 1116.
109 Id., app. at 219 (remarksof Representative
McHenry).
110 Id., app. at 383 (remarksof RepresentativeKing).
111 Id., app. at 599.
112 2 CONG. REc., pt. 1, at 10 (1873).
113 Id., pt. 1, at 97, 340.
107
108
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1246
VirginiaLaw Review
[Vol. 52:1224
it is a misdemeanorto deny a man marriagebecause of race,
color, or previousconditionof servitude;"and Congresswill be
urged to say aftera while that that sortof thingmust be put a
stop to, and your conventionsof colored men will come here
askingyou to enforcethatright."14
He was answeredby CongressmanJosephH. Rainey, a Negro Republican fromSouth Carolina,who said:
Now, gentlemen,let me say thenegrois not askingsocial equality.We do not ask it of you,we do not ask of the gentlemanfrom
Kentuckythatthetworacesshouldintermarry
one withthe other.
God knowswe are perfectly
content.I can sayformyselfthatI am
contentedto be what I am so long as I have my rights;I am contentedto marryone of myown complexion,and do not seekintercoursewithanyotherrace . . . .115
CongressmanAlonzo J. Ransier, Rainey's Negro Republican colrebuttedthe "bugbearof 'social equality' . . .
league, also sarcastically
used by the enemiesof politicaland civil equalityforthe coloredman
in place of argument."He made some sarcasticinsinuationsabout
southernwhite sexual moralityin responseto Beck's speech.-",
A third attackon Beck's argumentwas made by the only Negro
Republican lawyer from South Carolina, CongressmanRobert B.
Elliott. Afterreferringto "the many illogical and forcedconclusions
.
..
[and] vulgar insinuations which further incumber the argument
of the gentlemanfromKentucky,"Elliott added: "Reason and argument are worse than wasted upon thosewho meet everydemand for
politicaland civil libertyby such ribaldry...."117
Of course,theserebuttalsdid not deter the Democrats.A Georgia
lawyerwho spokerightafterElliottimmediatelyraised the same argument."18A Tennessee Democratpointedto anti-miscegenation
laws of
Id., pt. 1, at 343.
115 Id., pt. 1, at 344.
116 Id., pt. 1, at 382 (1874). See also CONG. GLOBE, 42d Cong., 2d Sess., pt. 1, at 858 (1872)
(remarksof RepresentativeKelley).
117 2 CONG. REc., pt. 1, at 409 (1874).
118 Id., pt. 1, at 411, where CongressmanBlount said:
Sir, the whites naturally view this as an attempt at ultimate amalgamation. This
necessarilyinvolves their degradation. A mean alliance always begets a progenybelow
the level of the better parent. If this is not true, why, when equal facilities for
mental improvementare accorded to each race, demand they shall be placed side
by side in the same school-room?The pride of the southern whites deserves admiration rather than execration.
114
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1247
Massachusetts,Maine, and other Northernstates."" But a Florida
Negro Republican once again denied any desire for intermarriage.'20
SouthernRepublicansopposed to the bill also foundthe miscegenaa Tention argumentconvenient.CongressmanWilliam Crutchfield,
nesseeRepublican,offeredthe followingamendmentto thebill:
That any white femalewho shall, by reason of the race, color,
or previousconditionof servitudeof anynegrowho shall make to
her any proposal of marriage,refuse such proposal, shall, on
convictionthereof,be finednot less than $1,000 nor more than
$5,000 foreach such offense.'2'
To this,CongressmanBenjamin F. Butler, Republican Chairman
of the JudiciaryCommittee,who had chargeof the civil rightsbill,
retorted:"I object to the receptionof that amendment.This is an
insultto the House and to the race.''l22CongressmanJohnD. Atkins,
a Tennessee Democrat, also raised the amalgamation theme. He
Pennsylvaniaconstitutionwhich propointed to the recently-enacted
hibited miscegenationand noted that "sound public policy and the
well-beingof both races forbid the comminglingof the blood of
amendment
totallydistinctraces." Atkinsdeclaredthatthe fourteenth
did not prohibitstateanti-miscegenation
reasoned
laws,and therefore
that it did not prohibitschool segregation.'23
He concluded that the
119 Id., pt. 1, at 415 (remarksof RepresentativeBright).
120 Referringto Beck's speech, CongressmanWalls said: "His expressed conviction that
such conventionswill be called in future to enforcemiscegenationis alike unworthythe
gentleman's intelligence and his experience." Id., pt. 1, at 417.
121 Id., pt. 1, at 452.
122 Ibid. Butler said sarcasticallythat if Crutchfieldunderstood that promoting social
equality and mixed marriages was the purpose of the bill then
to some men the debate has been futile and fruitless.If he does not understand we
are not enacting any such proposition, then he could never even appreciate the
answer a lady of the North would make to his addresses when she answers "no,"
which after fathominghis capabilities would assuredlybe given.
Id., pt. 1, at 455.
123 Id., pt. 1, at 453. He said:
Pennsylvania wisely declines to allow her manhood to be emasculated by the degeneracywhich always marks a mongrel race. Has not Tennessee the same right,and
did she not exercise it? Upon what ground was it done? Upon the ground of color
and of race. But gentlemen argue that the fourteenthamendment permits no such
thing as Pennsylvania and Tennessee has [sic] done. Does the fourteenthamendment
undertake to go into the States and declare what shall be their internal and domestic
policy, or does it simply mean to confine its jurisdiction and application to the
enforcementof rights of citizens of the United States acquired under the Federal
Constitution?. . . Where in the Constitutionof the United States is it declared that
the Anglo-Saxon and the African race may marry?. . .
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1248
VirginiaLaw Review
[Vol. 52:1224
civil rightsbill would lead to social equality, amalgamation,and
"moral and political decay" brought about by "degeneracy."He
pointedto Mexico as an unhappyexample of this.'24Butler'sreplyto
theseargumentswas a sarcasticreferenceto illicitsouthernmiscegenation with slaves before the Civil War.'25But this did not deter yet
another southern Democrat from assertingthat school integration
would lead to miscegenation.'26
Two weeks later,a North Carolina Democratreturnedto the miscegenationtheme.He blamed thegovernment
instabilityand frequent
revolutionsin Mexico and in Central and South America on their
lack of racial unityand the factthattheywere "mongrelnations."He
suggestedthat all Negroes should be shipped to Latin America or
Africa.'27CongressmanRichard H. Cain, a South Carolina Negro
Republican,answeredthiswithan attackon southernwhitesex morals
and a declarationthat Negroeswere not going anywhere.'28
When the Senate resumed considerationof the civil rightsbill,
Norwoodharanguedthe chamberin a lengthyorationwhichstretched
over two days. He attackednorthernRepublicans for hypocritically
banningracial discrimination
and yetrefusingto allow theirdaughters
to marryNegroes. He assertedthat the integrationwhich the bill
contemplated would lead to increased miscegenationamong the
poor.'29He also catalogedthe severalanti-miscegenation
laws in New
England.'30A Texas Republican answeredhim by pointingout that
Vice PresidentRichardM. Johnson,electedby the Democratsin 1837,
All statesmen of all parties-indeed, the public sentiment of the colored people
themselves-approve of the ordinance and statutes, now common in many of the
States, which forbids intermarriageof the races. God has stamped the fiat of his
condemnation upon the issue of such marriages too unmistakably to be deniedthe original progenitorsof both races being superior [in] every way to the mixed
offspring.If, then, the marriage of the races brings decay and death, and must be
prohibited by law-leaving out of view for the present its impolicy-why have not
the States the power to keep the races apart in the schools and elsewhere?
124 Id., Pt. 1, at 454-55. He declared: "Nationalities have commingled until almost the
entire population is mongrel,and at best Mexico is a nation of castes." Id., pt. 1, at 455.
125 See id., pt. 1, at 457, where Butler retorted: "[Y]our children sucked the same
mother with your servants' children; had the same nurse; and, unless tradition speaks
falsely,sometimeshad the same father."
126 Id., Pt. 1, at 556 (remarksof RepresentativeVance).
127 Id., Pt. 1, at 900 (remarksof RepresentativeRobbins).
128 Id., Pt. 1, at 902.
129 Id., app. at 236-37. He declared: "If you would not marry them, then coerce no
conditions in life among the poor, who cannot protect themselves,by which you increase
the danger of such relation." Id., app. at 237.
130 Id., app. at 239.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1249
lived formanyyearswith a colored woman and sired severalmulatto
children.He causticallyadded that where a Negro marrieda white
woman,the Negro would get the worstof the bargain.'3'
SouthernDemocratswerenot theonlyones to use theamalgamation
theme.SenatorJohn P. Stockton,a New JerseyDemocrat whose exclusion in 1866 made possibleRepublican controlof thatchamberby
the requisite two-thirdsmajoritynecessaryto pass the fourteenth
amendment,'32
gleefullyread the resolutionof a Negro Tennessee
state conventiondenouncingSenator William G. Brownlow,a Tennessee Republican, for opposing integratedschools, and resolving
to raise funds to carry to the United States Supreme Court the
case of a Negro imprisonedfor marryinga white woman. He also
read Brownlow's reply charging the Negroes with "base ingratitude," sayingthat the Tennessee Republican partycould get along
withoutthe colored vote, and remindingthem that it was he who
gave the Negroes the vote in the firstplace.133Stockton asserted
thatschool integrationwould lead to intermarriage,134
as did Senator
Eli Saulsbury,a Deleware Democrat.'35
During the course of a midnightfilibuster,Senator Augustus S.
Merriman,a North Carolina Democrat,again raised the same theme.
He assertedthatthe policyof the bill would
contravenethenaturallaw of racesitself,in the end hybridizethe
races,and produce to a materialdegree,degeneracyand extinction of race. The uniformexperienceof the human race goes to
show that the Almightycurses that people who defythe course
of nature.'36
Merrimanthen launched into a long pseudo-scientific
discourseon
racial differences
and the degeneracyand ultimateextinctionof hybrid
races. He, too, warned that the policy behind the proposed bill was
alreadyleading to the evils of miscegenation.'37
When the House reconsideredthe bill, CongressmanWilliam B.
Read, a KentuckyDemocrat,also read the Tennessee Negro resolu131 Id., app. at 374.
132 See CONG.GLOBE,40th Cong., 2d Sess., Pt. 1, at 823 (1868); 40th
Cong., 3d Sess., pt. 3,
1630 (1869).
133 2 CONG.REC., Pt. 5, at 4143 (1874).
134 Id., pt. 5, at 4169.
135 Id., pt. 5, at 4160-61.
136 Id., app. at 315.
137 Id., app. at 316-17.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1250
VirginiaLaw Review
[Vol. 52:1224
tiondenouncingBrownlowas proofthattheywanted"social equality."
He quoted at lengththe portion of the resolutioncondemningthe
Tennessee courts for imprisoninga Negro for marryinga white
womanand callingforfundsto be raisedto takethecase to the United
StatesSupremeCourt.'38He argued:
Now, whatdoes all thismean but mixed schoolsand perfectsocial equality?It is nothingmoreor less; and the next stepwill be
thattheywill demand a law allowing them,withoutrestraint,to
visittheparlorsand drawing-rooms
of thewhites,and have freeand
unrestrainedsocial intercoursewith your unmarriedsons and
daughters.It is bound to come to that-there is no disguisingthe
fact;and the soonerthe alarm is given and the people take heed
the betterit will be forour civilization.I am no alarmist;I speak
fromconviction.139
CongressmanRoderick R. Butler,Tennessee Republican who opposed the civil rightsbill, also had some harsh commentsabout the
Negro conventionwhichproposedto challengethe stateanti-miscegenation law. He said that all but a few of the state'scolored people
opposed intermarriage
and were satisfiedwith the law, and thatTennesseeansof all partieswere startledat the convention'sresolution,
"as it was a departurefromall thathad been said by the advocatesof
the colored people fromthe firststep taken to advance and educate
themup to the assemblingof thatconvention."He added:
Sir, if that doctrinehad been proclaimedin 1865 the colored
people in my State would have stood isolated and alone. The
Id., app. at 343. The resolution read, in pertinentpart:
And whereas our fellow-citizen,David Galloway, of the State of Tennessee, and a
citizen of the United States of America, is now condemned to a felon's life through
the barbarous decisions of the unjust code and constitutionof the State of Tennessee,
for having in civil life married, by the laws of Tennessee, the wife of his choice, a
white woman of mature age, and everyway competent to contract with whomsoever
she pleased; and whereas his marriage was in conformitywith his privilege as an
American citizen in the land of his birth, . . . but who . . . has been outraged by the
judicial farce of a trial in two courts of Tennessee, and deprived of his liberty and
divested of his manhood and the enjoyment of his personal rights: Therefore,
Resolved, That we, his fellow-citizens,feel bond with him in the outrages he has
received, and do pledge our effortsto raise sufficientmeans to employ counsel to
bring his case before the Supreme Court of the United States and vindicate the rights
of the colored citizens of Tennessee to the civil rights of marriage with whomsoever
they may contract and choose, and strip him of the outrage and odium placed on
him and us by the unjust and barbarous constitutionand laws of Tennessee.
139 Ibid.
138
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1251
boldestwhiteman of the bold would not have dared to advocate
the doctrineof intermarriage
of the blacks and the whites,and
if thatis the ultimatumof the colored race theirbest friendsin
Tennessee and several of the other Southern States must bid
themadieu.
Mr. Speaker,I do not believe thatsaid conventionat Nashville
spoke the sentimentsof the colored people of my State. I cannot
believeit. I have too much confidencein the good senseand judgment of our colored people. They cannot affordto take such a
fatalstep.They cannot,and in my opinion will not, place themselves and friendsin the position of favoringsuch a suicidal
policy.140
The assertionthat the bill would lead to interracialminglingand
ultimatelyto miscegenation
was also made by a MarylandDemocrat.141
CongressmanJamesT. Rapier, a Negro Republican fromAlabama,
rebuttedtheseassertionsby protestingthat the civil rightsbill
has been debated all over the countryfor the last seven years;
twiceit has done dutyin our national political campaigns;and
in everyminorelectionduringthat timeit has been pressedinto
servicefor the purposeof intimidatingthe weak whitemen who
are inclinedto supportthe republicanticket.I was certainuntil
now thatmost personswere acquainted with its provisions,that
theyunderstoodits meaning; thereforeit was no longerto them
the monsterit had been depicted,that was to break down all
social barriers,and compel one man to recognize another socially,whetheragreeableto him or not.
I mustconfessit is somewhatembarrassingfor a colored man
to urgethepassageof thisbill, because if he exhibitan earnestness
in the matterand express a desire for its immediate passage,
straightway
he is charged with a desire for social equality, as
explained by the demagogue and understoodby the ignorant
white man.142
Rapier also made an uninhibitedattackon the sex moralsof southern
whiteswho opposed the bill.'43
In the second session of the 43d Congress,which was held after
140
141
142
143
Id.,
Id.,
Id.,
Id.,
pt. 5, at 4593.
app. at 419-20 (remarksof RepresentativeWilson).
pt. 5, at 4782.
pt. 5, at 4784.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1252
VirginiaLaw Review
[Vol. 52:1224
the Democratic landslide in the 1874 elections,and in which the
civil rightsbill was again discussed,a southernwhite Republican
said that Negroesas well as whitesin the South were adverseto race
mixing,but "among the whites. . . [it exists]to an extentformidable
beyondany conceptionof it whichI have heard expressedin any discussionof the subjectpublic or privateamongour nothernfriends.'"144
SeveralNegrocongressmen
attemptedonce again to refutetheamalgamationargument.One contentedhimselfwith observingthatintermarriagewould not be increased by the bill.'45 Cain renewed his
caustic observationsabout southernsex morals by referringto the
numberof mulattoes.146
Rainey echoed thischarge,and added:
Referencehas been made, for the purpose of arousingpublic
oppositionand resentmentupon the ground that it would signalize the overthrowof opposing barriers,to unrestrainedassociation between the races and thus inaugurateintermarriage
of
whites and blacks. Such argumentshows the weakness of this
supposed salient point adduced by the opposition.It is a mere
subterfuge,
and unworthyof those who announce it. If theirarare
guments
of any value and force,it reflectsunfavorablyupon
thosewhose cause theyare supposed to defend.Need I say it is
unknown to the spirit of our Constitutions,Federal or State;
the possible enactmentof any compulsorylaw forcingalliance
betweenpartieshaving no affinities
whatever?'47
Taking the helm at the close of the House debate, Congressman
Benjamin F. Butleralso made some searingcommentsabout southern
white sex morals to refutethe "social equality" argument.He read
a Mississippistatutewhichlegitimatedsevenchildrenwhichone white
man had fatheredby six different
colored women,and said that "the
onlyequalitythe blacksever have in the South is social equality." He
also read a letter from a Negro mother protestingthe outrage of
coloredgirlsby whitemen.148
Nothingfurtherwas said in the debates
on this subject.
144
145
146
147
148
3
CONG. RKC., app. at 15-16 (1875) (remarks of Representative White).
Id., pt. 2, at 947 (remarksof RepresentativeLynch).
Id., pt. 2, at 957. See also id., app. at 108 (remarksof RepresentativeCarpenter).
Id., pt. 2, at 960.
Id., pt. 2, at 1006.
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1253
Conclusion
There has been only one scholarlyreviewof the legislativehistory
laws. R. Caranti-miscegenation
amendmentvis-ai-vis
of the fourteenth
ter Pittman concluded that the amendmentwas not intended to
affectsuch laws, but he treateddebate on the topic as if therereally
was a seriousquestion in the minds of the oppositionthat stateantimiscegenationlaws mightbe strickendown.'49I agree with Professor
groundPittman'sultimateconclusion,but on a somewhatdifferent
I do not believe that anyone ever seriouslythoughtthat these state
laws were within the pale of the amendment'sprohibitions;rather,
the whole amalgamationissue was raised by the Democratsthroughout the Reconstructionperiod as a political smokescreen.
debates,it is clearlydemonstratedthat the ReIn the anti-slavery
publicans were as much opposed to miscegenationas the Democrats.
This attitude persistedthroughoutReconstruction.No Republican
memberof Congressadvocated miscegenation,and the Negroes said
theydid not desire it. It was not treatedlike the right to vote or
otherrightswhichshould be encouraged.
The Democrats injected the cry of amalgamationinto everyconceivable debate, no matterhow irrelevantit actuallywas. It is clear
thatthiswas done forpoliticaladvantage.The Republicans protested
this use of the miscegenationissue. Moreover,the nature of their
otherretortsis equally instructive.Their favoritetack was to accuse
southernDemocratsof being promiscuouswithcolored women. This,
of course, was simply a charge of hypocrisy.It certainlydid not
amount to a commendationof miscegenationor an assertionthat it
ought to be lawful.
A few Republicans, especially during the debates preceding the
fourteenthamendment,said that theywould supportanti-miscegenation laws. Trumbull, in particular,vigorouslydenied that his proposals, which were later embodied in the fourteenthamendment,
laws, and angrilycriticized
would overturnstate anti-miscegenation
PresidentAndrew Johnsonfor even alluding to them in his veto
message.
It is true that a few Radicals later in the Reconstructionperiod
laws, but this,
expressedpersonal opposition to anti-miscegenation
149 See Pittman, The Fourteenth Amendment: Its Intended Effecton Anti-Miscegenation Laws, 43 N.C.L. REv. 92 (1964).
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1254
VirginiaLaw Review
[Vol. 52:1224
of course,does not prove that the fourteenthamendmentnecessarily
embodiestheseextendedviews.'50It was not until Sumner'scivil rights
bill was debated in 1872 that the Democrats even had any serious
point to make on the subject.The fifthsectionof Sumner'sbill was
so broad that it might have affectedsuch laws, although even the
Republicanswho supportedthe bill were not sure,and severaldenied
it. But even Sumnerwas not especiallyinterestedin overturningsuch
laws. As late as 1867, he told Pomeroy,who suggestedrepeal of the
applicable Districtof Columbia law, thatit would be bestnot to press
the point. Moreover,he was preparedto sacrificethis sectionfor the
restof the bill.'5' None of the Republicans wanted to createjust the
issue the Democratswere hoping forby tryingto overturnstateantimiscegenationlaws, and certainlyit would have been suicidal for
themto have attemptedit in the fourteenth
amendment,whichserved
as a partyplatformforthe crucial 1866 elections.'52
At any rate,there
is not a shredof evidencethat anyone believed that this amendment
justifiedthe fifthsection of Sumner's bill. Sumner was clearly pursuing his personal notion of the meaning of the Declaration of Independence,which thereis no evidencethatany otherRepublican of
the period shared. Indeed, Sumner's Republican colleagues deemed
him a wild-eyedtheoristwho rarelygot his ideas embodied in legislation.'-"His ideas were rebuffedwhen the thirteenth
amendmentwas
150 By way of analogy, it may be pointed out that Mr. Justice Holmes' famous
observation in Lochner v. New York, 198 U.S. 45, 75 (1905) (dissenting opinion), that
the fourteenthamendment does not enact Herbert Spencer's Social Statics is not disproved by the fact that this book was quoted with approval in Congress during this
period. See CONG. GLOBE, 41st Cong., 2d Sess., app. at 121 (1870) (speech by Senator
Fowler); CONG. GLOBE, 39th Cong., 2d Sess., pt. 1, at 76 (1886) (remarksof Senator Brown).
151 CONG. GLOBE, 42d Cong., 2d Sess., pt. 1, at 873 (1872).
152 See JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 118-20 (1956).
153 Senator William M. Stewart,a Nevada Radical Republican who had been Attorney
General of California before his election to the Senate, and who, as an influentialmember
of that body had voted for the fourteenthamendment and guided to passage the fifteenth
amendment,said of Sumner:
It is easy to make speeches in and out of Congress.
But where is the statute
that the Senator has incorporated this principle in? . . . He is a theorist,a grand,
georgeous [sic], extensive theorist,but he is not a practical man, and my experience
is that he has failed utterlyto help us to get practical measures. There is hardly any
Senator who has been here for the last fiveyears that has not got more of his work
in the statute-bookthan the Senator from Massachusetts.
CONG. GLOBE, 41st Cong., 2d Sess., pt. 2, at 1183 (1870). Trumbull called Sumner "an impracticable and an obstacle in the way of legislation." Id., pt. 1, at 638. He also said of
Sumner: "it has been over the idiosyncracies,over the unreasonable propositions, over
the impracticable measures of the Senator from Massachusetts that freedom has been
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions
1966]
Laws
Anti-Miscegenation
1255
and thereis no reason to believe thathe would have fared
framed,'54
any betterif he had triedto influencethe framingof the firstsection
of the fourteenthamendment.
amendmentdoes
am led to conclude thatthe fourteenth
I therefore
not forbidstatelaws preventinginterracialmarriageor extra-marital
sexual relations.The matterremainssubjectto the statepolice power.
Whatever the fate, therefore,of these laws in the present United
StatesSupremeCourt,the abiding Constitutionof the United States,
whichI believewill ultimatelyprevail,makestheseanti-miscegenation
laws completelyvalid.
proclaimed and established. His impracticable, unreasonable, unconstitutional, and ineffectualmeasures would never have accomplished the object." Id., pt. 1, at 422.
154 See Avins, Freedom of Choice in Personal Service Occupations: ThirteenthAmendment Limitations on AntidiscriminationLegislation, 49 CORNELL L.Q. 228, 234-35 (1964).
This content downloaded from 162.234.194.164 on Wed, 12 Nov 2014 23:01:39 PM
All use subject to JSTOR Terms and Conditions