THEORETICAL AND PRACTICAL.
“Vindiecate the ways of of God, woman”
LIPPINOOTT, GRAMBO& CO.
Entered according to Act of Congress, in the year 1854 by
in the Clerk’s Office of the District Court of the. United States for the Hastern District of Pennsylvania
“The same morning as was sat by the Dalphin-foimtain, and threw barley bread to the lame swan; he gave us this precept, with its glosses: that for the truth, perspicuity is the only ornament of style; the rhetorical. and that in the matter of the, piled and handy nakedness(nuditas palastrica) is better, for convection and dramatic drapery, for entertainment This plainness, which,said he again, la logical neatness, is grateful not to the popular, many, but to the philosophic few. He -then added somewhat abruptly, that public option is not the’ opinion of. the public Seeing some of the younger of us smile he explained at once. He simply meant, he said, that the popular, changed the philosophic, opinion; or that in other word the thinkers rule, and must be first convinced. The conference on the Greek Styles then ended; and we all rose, and left the fountain,”
Warrantees’ right to philosophic or educational power, order, and liberty is not yet actualized. If justice economically authorized it; the educational means or power might be added to wages. If not this; any other method following justice.
But political independently of economic justice, does not now authorize the systematic education of warrantees, The warranteeism of the United States South, is that with the ethnical qualification. The existence-rights of both or of one of these races, now forbids to the other, this progress- right. The educational is at present antagonistic to the political system. This antagonism is accidental and temporary. It is not necessary or natural to warranteeism. It is due to a temporary outside fact This fact is from an error which confounds essentials and accidentals; which is rather aggressive against the greater good essential, than progressive from the lesser had accidental. It is bad opposition from good disposition. It is philanthropy in design, and misanthropy in deed. But between warrantors and warrantees, there is naturally no educational antagonism. The educational and economic systems, are synta-gonistic. So algo, the political and educational systems; but this, only after the political fact as it is, shall be the political fact as it ought to be.
In the United States South, the rights of Warrantees under the political system, we such as are just. Their political status is not wrong. It is right; it is from duty; it is a moral necessity. They have now the political power, order, and liberty to which they are rightly entitled; neither more nor less.
In the civil government of republics, the people are the sovereign. They are the supreme orderer. But republics are representative governments; the sovereign people constitute representatives. These representatives in their capacity as such, are magistrates; or supersovereign. In the political system, they are the orderers. They adapt and regulate. But all the people are not sovereign or supersovereign. Some only are sovereign. These are such alone as are peculiarly qualified. They must be males. They must be of a certain age. They must be of sound mind. They must be residents. In some commonwealth, property qualifications, are necessary; in some, religious qualifications. There may be other qualifications just or unjust.
All other people in the State, who are not sovereign people, are subsovereign. To this class belong women, minors, criminals, lunatics and idiots, aliens, and all others unqualified or disqualified.
Such, the three classes of people. In republics, all are represented. The representatives or orderers, represent and are responsible to their constituents, the sovereign people. But these are not constituents only; they likewise represent the class of subsovereign people; these are constituents of these. A man represents his family. This is special; he also represents the interests of other subsovereigns; this, his general duty.
The representation of all is thus actualized.
Duties are coupled to relations. By the common law, a, natural person’s relations under the civil government are public or private By the common law, private relations are those of master and servant, husband and wife, patent and child, guardian and ward.
In warrantee commonwealths, public relations are those of magistrates and people; or orderers and orderees. Magistrates are legislators, executors and adjudicators. To these the relations of the people, are those of orderees. The people are therefore, legislatees, executees and adjudicatees. The magistrates are adapters and regulators; the people, adaptees and regulatees.
In republics in which the warranteeism is that with the ethnical qualification, the warrantees are subsovereign. They, have not the right of sovereignty. That is not their due; it is unjust; it is wrong. Warrantees have the right of representation. But they have not the right of political constitution. Neither ought they; they are not entitled to it Subsovereignty is the right of warrantees. Their sovereignty is the wrong of warrantors, and others.
In the warrantee commonwealths of the United States who therefore, ought to be the sovereign people? Who ought to be the supreme power in the warrantee States? There, warranteeism with the ethnical qualification is ordained and established. What is the effect of this qualification ? The people are of two races. They are ethnically related to each other. But because every act has a moral quality; with every relation, duties are coupled. These races in their ethnical relations, differ from each other in beauty; in color; in the inclination, shape, and direction of the pile; in the conformation of their body, and in other physiological respects.
The black race must be civilly either (1), Subsovereign, (2), Sovereign, or (3), Supersovereign. If not Subsovereign, they must be co-sovereign. The white race may also be Subsovereign, sovereign,, or supersovereign. If both races are promiscuously sovereign; that is co-sovereignty. The white race is now and has been sovereign ; the black, subsovereign. This, the historical fact.
The black race ought not to be admitted to co-sovereignty. It. is wrong: it is in violation of moral duty.
These races physiologically must be either equal or unequal. They must be either peers ethnically, or not peers. If not peers ethnically, the black race must be either superior or inferior. If superior, their ethnical progress forbids amalgamation with an inferior race. If the white race is superior; their ethnical progress forbids intermix tare frith an inferior race.
But races must progress. Men have not political or economic duties only. They have hygienic duties. Hygiene is both ethnical and ethical; moral duties are coupled to the relation of races. Races must not be wronged. Hygienic progress is a right. It is a right, because a duty. But hygienic progress forbids ethnical regress. Morality therefore, which commands general progress, prohibits this special regress. The preservation and progress of a race, is a moral duty of the races. Degeneration is evil It is a sin. That sin is extreme. Hybridism is heinous Impurity of races is against the law of nature. Mulattoes are monsters The law of nature is the law of God. The same law which forbids consanguineous amalgamation; forbids ethnical amalgamation. Both are incestuous. Amalgamation is incest.
But the relation of the two races to each other, is moral: every relation has an ethical quality: ethics is ethnic. Moral hygienic duties must not be violated. For progress must he developed, and regress, enveloped. Polity therefore—the duty of the State—prohibits the sovereignty of the black race. Because, if the black race are sovereign, they must he. co-sovereign. If not politically subordinate or superordinate; they must be politically coordinate. But the black and white race must not be co-sovereign; they must not be politically coordinate. They must be, the one subordinate, and the other, superordinate. They must not be aggregated; they must be segregated. They must be civilly pure and simple from each other. This is a hygienic ethnical necessity. It is the duty, of caste to prevent amalgamation: it is, caste for the purity of races. for, political amalgamation is ethnical amalgamation, One makes the other: that is the immediate, invariable antecedent of this. Subsovereignty is necessary for segregation, and both necessary to duty.
Political amalgamation is sexual amalgamation: one is a cause of the other. There must be either caste or co-sovereignty : this is the alternative to that For power to rule, is power to marry, and the power to repeal or annul discriminating laws.
In States, the intercourse of sexes is either (1), Lawful or (2), Unlawful. Marriage is lawful intercourse. Of two races in a State, marriage may be (1), Between males and females of the same race; (2), Between males of one race and females of the other race; or, (3), Miscellaneously, between males and females of both races.
Of marriage, the motives or springs of action are such as are either (1), Matrimonial, or, (2), Extramatrimonial. Love is a matrimonial motive. Extramatrimonial motives are such as avarice or the desire of wealth; and ambition or the desire of power.
If therefore, marriage miscellaneously between too races, is lawful; the motives will he both matrimonial and extramatrimonial. Females of the inferior will elect males of the superior race. This, from natural preference, which is matrimonial; or from ambition, which is extra-matrimonial. Males of the superior race will from avarice, ambition, or other extramatrimonial motives, elect females of the inferior race. These motives are certain; and certainly of motive, is certainty of movement; certainty of cause, certainty of effect If therefore, intermarriage of races, is lawful; intermarriage will he actual the cause, curtain; the effect will he certain. The law must
Black-White Intermarriage in
American History, Literature, and Law
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Library of Congress Cataloging-in-Publication Data
Interracialism : Black-white intermarriage in American history,
literature, and law / edited by Werner Sollors.
Includes bibliographical references and index.
ISBN 0-19-512856-7; ISBN 0-19-512857-5 (pbk.)
1. Interracial marriage—United States—History.
2. Miscegenation—United States—History. 3. Racially mixed people—United States—History. 4. Miscegenation—Law and legislation—United States—History. 5. Miscegenation in literature. 6. Racially mixed people in literature. I. Sollors, Werner.
9 8 7 6 5 4 3 2
Printed in the United States of America
on acid-free paper
A. Leon Higginbotham, Jr.
(February 25, 1928–December 14, 1998)
Miscegenation Law, Court Cases,
and Ideologies of “Race” in
On March 21, 1921, Joe Kirby took his wife, Mayellen, to court. The Kirbys had been married for seven years, and Joe wanted out. Ignoring the usual option of divorce, he asked for an annulment, charging that his marriage had been invalid from its very beginning because Arizona law prohibited marriages between “persons of Caucasian blood, or their descendants” and “negroes, Mongolians or Indians, and their descendants.” Joe Kirby claimed that while he was “a person of the Caucasian blood,” his wife, Mayellen, was “a person of negro blood.”1
Although Joe Kirby’s charges were rooted in a well-established—and tragic— tradition of American miscegenation law, his court case quickly disintegrated into a definitional dispute that bordered on the ridiculous. The first witness in the case was Joe’s mother, Tula Kirby, who gave her testimony in Spanish through an interpreter. Joe’s lawyer laid out the case by asking Tula Kirby a few seemingly simple questions:
Joe’s lawyer: To what race do you belong?
Tula Kirby: Mexican.
Joe’s lawyer: Are you white or have you Indian blood?
Kirby: I have no Indian blood.
Joe’s lawyer: Do you know the defendant [Mayellen] Kirby?
Joe’s lawyer: To what race does she belong?
Then the cross-examination began.
Mayellen’s lawyer: Who was your father?
Kirby: Jose Romero.
Mayellen’’s lawyer: Was he a Spaniard?
Kirby: Yes, a Mexican.
Mayellen’s lawyer: Was he bom in Spain?
Kirby: No, he was born in Sonora.
Mayelien’s lawyer: And who was your mother?
Kirby: Also in Sonora.
Mayellen’s lawyer: Was she a Spaniard?
Kirby: She was on her father’s side.
Mayellen’s lawyer: And what on her mother’s side?
Mayellen’s lawyer: What do you mean by Mexican, Indian, a native [?]
Kirby: I don’t know what is meant by Mexican.
Mayellen’s lawyer: A native of Mexico?
Kirby: Yes, Sonora, all of us.
Mayellen’s lawyer: Who was your grandfather on your father’s side?
Kirby: He was a Spaniard.
Mayellen’s lawyer: Who was he?
Kirby: His name was Ignacio Quevas.
Mayellen’s lawyer: Where was he born?
Kirby: That I don’t know. He was my grandfather.
Mayellen’s lawyer: How do you know he was a [S]paniard then?
Kirby: Because he told me ever since I had knowledge that he was a Spaniard.
Next the questioning turned to Tula’s opinion about Mayellen Kirby’s racial identity.
Mayellen’s lawyer: You said Mrs. [Mayellen] Kirby was a negress. What do you know about Mrs. Kirby’s family?
Kirby: I distinguish her by her color and the hair; that is all I do know.2
The second witness in the trial was Joe Kirby, and by the time he took the stand, the people in the courtroom knew they were in murky waters. When Joe’s lawyer opened with the question “What race do you belong to?,” Joe answered “Well and paused, while Mayellen’s lawyer objected to the question on the ground that it called for a conclusion by the witness. “Oh, no,” said the judge, “it is a matter of pedigree.” Eventually allowed to answer the question, Joe said, “I belong to the white race I suppose.” Under cross-examination, he described his father as having been of the “Irish race,” although he admitted, “I never knew any one of his people.”3
Stopping at the brink of this morass, Joe’s lawyer rested his case. He told the judge he had established that Joe was “Caucasian.” Mayellen’s lawyer scoffed, claiming that Joe had “failed utterly to prove his case” and arguing that “[Joe’s] term racialism to be broad enough to cover a wide range of nineteenth-century ideas, from the biologically marked categories scientific racists employed to the more amorphous ideas George M. Fredrickson has so aptly called “romantic racialism.”9 Used in this way, “racialism” helps counter the tendency of twentieth- century observers to perceive nineteenth-century ideas as biologically “determinist” in some simple sense. To racialists (including scientific racists), the important point was not that biology determined culture (indeed, the split between the two was only dimly perceived), but that race, understood as an indivisible essence that included not only biology but also culture, morality, and intelligence, was a compellingly significant factor in history and society.
My argument is this: During the 1920s, American racialism was challenged by several emerging ideologies, all of which depended on a modern split between biology and culture. Between the 1920s and the 1960s, those competing ideologies were winnowed down to the single, powerfully persuasive belief that the eradication of racism depends on the deliberate nonrecognition of race. I will call that belief modernist racial ideology to echo the self-conscious “modernism” of social scientists, writers, artists, and cultural rebels of the early twentieth century. When historians mention this phenomenon, they usually label it “antiracist” or “egalitarian” and describe it as in stark contrast to the “racism” of its predecessors. But in the new legal scholarship called critical race theory, this same ideology, usually referred to as “color blindness,” is criticized by those who recognize that it, like other racial ideologies, can be turned to the service of oppression.10
Modernist racial ideology has been widely accepted; indeed, it compels nearly as much adherence in the late-twentieth-century United States as racialism did in the late nineteenth century. It is therefore important to see it not as what it claims to be—the nonideological end of racism—but as a racial ideology of its own, whose history shapes many of today’s arguments about the meaning of race in American society.
The Legacy of Racialism and the Kirby Case
Although it is probably less familiar to historians than, say, school segregation law, miscegenation law is an ideal place to study both the legacy of nineteenth- century racialism and the emergence of modern racial ideologies.11 Miscegenation laws, in force from the 1660s through the 1960s, were among the longest lasting of American racial restrictions. They both reflected and produced significant shifts in American racial thinking. Although the first miscegenation laws had been passed in the colonial period, it was not until after the demise of slavery that they began to function as the ultimate sanction of the American system of white supremacy. They burgeoned along with the rise of segregation and the early-twentieth-century devotion to “white purity.” At one time or another, 41 American colonies and states enacted them; they blanketed western as well as southern states.12
By the early twentieth century, miscegenation laws were so widespread that they formed a virtual road map to American legal conceptions of race. Laws that had originally prohibited marriages between whites and African Americans (and, very occasionally, American Indians) were extended to cover a much wider range of groups. Eventually, 12 states targeted American Indians, 14 Asian Americans (Chinese, Japanese, and Koreans), and 9 “Malays” (or Filipinos). In Arizona, the Kirby case was decided under categories first adopted in a 1901 law that prohibited whites from marrying “negroes, Mongolians or Indians”; in 1931, “Malays” and “Hindus” were added to this list.13
Mixed Race America and the Law
Kevin R. Johnson
New York University Press
NEW YORK AND LONDON
NEW YORK UNIVERSITY PRESS
New York and London
© 2003 by New York University
All rights reserved
Library of Congress Cataloging-in-Publication Data
Mixed race America and the law: a reader / edited by Kevin R. Johnson,
p. cm. — (Critical America series)
Includes bibliographical references and index.
ISBN 0-8147-4256-4 (cloth: alk paper) —
ISBN 0-8147-4257-2 (pbk: alk paper)
1.Racially mixed people—Legal status, laws, etc.—United States.
2. Mescegenation—United States. 3. Racially mixed people—
Government policy—United States.
1. Johnson, Kevin R. II. Critical America.
KF4755 M59 2002
New York University Press books are printed on acid-free paper, and their
binding materials are chosen for strength and durability.
Manufactured in the United States of America
10 9 8 7 6 5 4 3 2 1
Filipinos and Anti-Miscegenation Laws in California
… By the time the Supreme Court finally declared anti-miscegenation laws unconstitutional in Loving v. Virginia, thirty-nine states had enacted anti-miscegenation laws; in sixteen of these states, such laws were still in force at the time of the decision. While the original focus of these laws was primarily on relationships between blacks and whites, also prohibited were marriages between whites and “Indians” (meaning Native Americans), “Hindus” (South Asians), “Mongolians” (into which were generally lumped Chinese, Japanese, and Koreans), and “Malays” (Filipinos). Nine states—Arizona, California, Georgia, Maryland, Nevada, South Dakota, Utah, Virginia, and Wyoming—passed laws that prohibited whites from marrying Malays. The statutes varied in their enforcement mechanisms: some simply declared miscegenous marriages void; others punished them as felonies.
I. California: Asian Invasions
In 1850, California enacted a law prohibiting marriages between “white persons” and “negroes or mulattoes.” Twenty-eight years later, a referendum was proposed at the California Constitutional Convention to amend the statute to prohibit marriages be- tween Chinese and whites. While the so-called “Chinese problem” was initially conceptualized as one of economic competition, created by the importation of exploitable laborers without political rights, the issue of sexual relationships between whites and Chinese also functioned as a prime site of hysteria.
Invoked were fears of hybridity. John Miller, a state delegate, speculated that the “lowest most vile and degraded” of the white race were most likely to amalgamate with the Chinese, resulting in a “hybrid of the most despicable, a mongrel of the most detestable that has ever afflicted the earth.”1 Miscegenation was presented as a public health concern, for Chinese were assumed by most of the delegates to be full of “filth and disease.” Some argued that American institutions and culture would be overwhelmed by the habits of people thought to be sexually promiscuous, perverse, lascivious, and immoral. For example, in 1876 various papers stated that Chinese men attended Sunday school in order to debauch their white, female teachers. In response to the articulation of these fears, in 1880 the legislature prohibited the licensing of marriages between “Mongolians” and “white persons.”2
The next large group of Asian immigrants—those from Japan—was also the subject of antagonism, leading to further amendment of the anti-miscegenation laws. While the impetus for tension was, again, economic, two prime sites of expressed anxiety were school segregation and intermarriage. Those who sought school segregation depicted the Japanese as an immoral and sexually aggressive group of people and disseminated propaganda that warned that Japanese students would defile their white classmates. The Fresno Republican described miscegenation between whites and the Japanese as a form of “international adultery,” in a conflation of race, gender, and nation. In 1905, at the height of the anti-Japanese movement, the state legislature sealed the breach between the license and marriage laws and invalidated all marriages between “Mongolian” and white spouses.3
II “Little Brown Men”
Tension over the presence of Chinese and Japanese had led to immigration exclusion of Chinese and Japanese laborers through a succession of acts dating between 1882 and 1924. Because industrialists and growers faced a resulting labor shortage, they began to import Filipinos to Hawaii and the mainland United States. Classified as “American nationals” because the United States had annexed the Philippines following the Filipino-American War, Filipinos were allowed entry into the country. On the mainland, a majority of Filipinos resided in California, with sizable numbers also in Washington and Alaska. By 1930 the number of Filipinos on the mainland reached over forty-five thousand. During the winter they stayed in the cities—working as domestics and gardeners, washing dishes in restaurants, and doing menial tasks others refused. In the summer they moved back to the fields and harvested potatoes, strawberries, lettuce, sugar beets, and fruits….
On the mainland, 93 percent of all who emigrated from the Philippines were males, the vast majority between sixteen and thirty years of age. While some scholars have focused on patriarchal Asian values as the reason for early Asian migration being an almost exclusively male phenomenon, others have pointed to labor recruiting patterns and the specifics of immigration laws themselves as restricting the immigration of Asian women. United States capital interests wanted Asian male workers but not their families, because detaching the male worker from a heterosexual family structure meant he would be cheaper labor.
The Filipinos lived in barracks, isolated from other groups, allowed only dance halls, gambling resorts, and pool rooms of Chinatown as social outlets. They led ostracized lives punctuated by the terror of racist violence. Many restaurants and stores hung signs stating, “Filipinos and dogs not allowed.”4 Anxiety about what was called the “Third Asian Invasion” was expressed primarily around three sites: first, the idea that Filipinos were destroying the wage scale for white workers; second, the idea that
Sex, Marriage, Identity, and Adoption
A Division of Random House, Inc.
FIRST VINTAGE BOOKS EDITION, JANUARY 1004
Copyright © 2003 by Randall Kennedy
All rights reserved under International and Pan-American Copyright Conventions. Published in the United States by Vintage Books, a division of Random House, Inc., New York, and simultaneously in Canada by Random House of Canada Limited, Toronto. Originally published in hardcover in the United States by Pantheon Books, a division of Random House, Inc., New York, in 2003.
Vintage and colophon are registered trademarks of Random House, Inc.
Grateful acknowledgment is made to the following for permission to reprint previously published material: HarperCoilins Publishers, Inc.: Excerpt from The Collected Poems of Sterling A. Brown edited by Michael S. Harper. Copyright © 1980 by Sterling A. Brown. Reprinted by permission of HarperCoilins Publishers, Inc.
The Library of Congress has cataloged the Pantheon edition as follows:
Interracial intimacies: sex, marriage, identity, and adoption / Randall Kennedy.
Includes bibliographical references and index.
1. Interracial Marriage—Law and legislation—United States, 2. Miscegenation—Law and legislation—United States. 3. Interracial adoption—United States.
KF511.K46 2003 346.73016—DC21 2002072786
Vintage ISBN: 375-70264-4
Book design by Johanna S. Roebas
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
This book is dedicated to my dutiful, wise, loving parents,
Henry Harold Kennedy Sr. and Rachel Spann Kennedy.
From the early eighteenth century onward, all antimiscegenation laws in British North America prohibited blacks and whites from marrying one another. Other like prohibitions were imposed upon Native Americans and people of Chinese, Japanese, Filipino, Indian, and Hawaiian ancestry.* Since the founding of the United States, there have been no laws enacted against Christians marrying Jews or against interethnic marriages. In the nineteenth century, many groups that are now classified as ethnic “whites” were thought of as distinct races, among them Jews, Irish, Italians, and Hungarians.17 Despite the intense social discriminations sometimes practiced against specific ethnic identities—think, for example, of signs reading “No Irish need apply”—state governments never prohibited interethnic marriages among whites. This fact further underscores the unique status of “color” in American life. Although social’ pressures have been widely brought to bear to discourage, interethnic marriage, state power was mobilized only when authorities feared that people might marry across the color line.
Antimiscegenation laws varied widely by jurisdiction. Prior to the Civil War; officials in some states punished only whites for crimes of interracial intimacy. This approach was probably rooted in two beliefs: first, that blacks were too irresponsible and too inferior to punish, and second, that it was whites’ responsibility to protect the purity of their own bloodlines. This latter belief was closely related to yet another status distinction embedded in antebellum laws regulating intimacy: a gender differential. White women were anointed as the primary gatekeepers of white racial purity, and as such, they became the members of the white community who could, with self-evident justice, be most severely penalized for racial transgressions. Violations included, in ascending order of perceived perfidiousness, having sex across racial lines, marrying across racial lines, and giving birth to a mixed-race baby. Hence, the racial regulation of intimacy has not only pitted white people against colored people; it has also set men against women, both across racial lines and within racial groups.
After the Civil War; to comply with new federal requirements regarding formal racial neutrality, some state authorities felt compelled to mete out to blacks who married interracially the same punishment that was imposed on their white spouses.18 No less ironic was the fact that in at least some jurisdictions, antimiscegenation laws were likely enforced more stringently after the Civil War than before it. The institution of slavery had given the collective ego of whites such a massive boost that many of them were willing to overlook infractions of racial regulations, even to the extent of turning a blind eye on interracial romantic involvements. The abolition of slavery, however, and the assertion of civil and political rights by blacks during Reconstruction, dealt a tremendous blow to the racial self-esteem of southern whites in particular: Many compensated by insisting upon a relentless and exacting observance of both formal and informal rules of racial caste. One hallmark of this period was enhanced criminal enforcement of antimiscegenation laws and every other restriction that reinforced the lesson of white supremacy and black subordination, white purity and black contamination.19
Some states, for example, punished those who performed interracial marriages. Mississippi went even further criminalizing not only interracial marriage but even the advocacy of “social equality or of intermarriage between whites and negroes.” * Punishments for the vio-