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Subject Area: Law
Topic: The American Revolution and Constitution

§ 188.: Differences in race—Miscegenation.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 188.

Differences in race—Miscegenation.—

When the negro race in this country was for the most part held in slavery, the degradation of a state of servitude operated to create a most powerful prejudice against the black man, although he was a free man. As an outcome of this prejudice, and a popular sense of superiority, the legislatures of very many of the States of this country, particularly in the South, passed laws for the prohibition of marriages between whites and blacks. These laws for the most part still remain upon the statute book, notwithstanding the full and complete recognition of the rights of citizenship of the black man. In some of the States, marriages between the Indian and white race are also prohibited. Although, occasionally, an attempt is made to show some physiological reason for the prohibition, it cannot be denied that the real cause is an uncontrollable prejudice against the black man, and a desire to maintain the inequality of his present social condition. Whatever other reason may be proclaimed, this is the controlling reason. If this be true, if the law has no better foundation than racial prejudice, is the State justified, under the general constitutional limitations, in prohibiting the marriage of a white man and a black woman, or vice versa, when the prejudice is not felt by them? Is it not an unwarrantable act of tyranny to prohibit such a marriage, simply because the community is prejudiced against it? Some attempt has been made to show that the mixture of blood will cause a general decay of the national strength, either through enfeebled constitutions or sterility; but it does not appear that the truth of the proposition has ever been established. At any rate, in no other country, except where slavery has lately prevailed, has such a law ever been enacted. Unless it can be established beyond a reasonable doubt that the intermarriage of white and black may be expected to produce frail and sterile offspring, or threaten the general welfare in some other well defined way, the duty of the courts is to pronounce these laws unconstitutional, because they deprive the parties, so disposed to marry, of their right of liberty without due process of law. But the prejudice of race has been too strong even in the judicial minds of the country to secure for these laws a scientific consideration, and hence they have been repeatedly held to be constitutional.1

[1]See Bailey v. Fiske, 34 Me. 77; Medway v. Natick, 7 Mass. 88; Medway v. Needham, 16 Mass. 157. In Massachusetts the statute was repealed in 1843. State v. Hooper, 5 Ire. 201; State v. Ross, 76 N. C. 242; State v. Kennedy, 67 N. C. 25. “It is stated as a well authenticated fact that the issue of a black man and a white woman, and that of a white man and black woman intermarrying, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites, laying out of view other sufficient grounds for such enactments.” State v. Jackson, 80 Mo. 175. It has been held that the fourteenth amendment of the constitution of the United States does not apply to such laws, since the prohibition is upon white and black alike. State v. Hariston, 63 N. C. 451; State v. Reinhardt, 63 N. C. 547; State v. Kenny, 76 N. C. 251 (22 Am. Rep. 683); State v. Gibson, 36 Ind. 389 (10 Am. Rep. 42); Lonas v. State, 3 Heisk. (Tenn.) 287; Ex rel. Hobbs, 1 Woods, 537; Green v. State, 58 Ala. 190 (29 Am. Rep. 739); Hoover v. The State, 59 Ala. 59; Frasher v. State, 3 Tex. App. 263 (30 Am. Rep. 131); Kinney’s Case, 30 Gratt. 858. Judge Cooley says: “Many States prohibit the intermarriage of white persons and negroes; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against the other; it merely forbids marriages between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede or prevent it. Race prejudice no doubt has had something to do with establishing it, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege or exemption.” Cooley Principles of Const. Law, 228, 229.