Welcome to R/V October 2011: The Legal Issue

Welcome to the R/V LEGAL ISSUE! We are beyond thrilled with the response and popularity of last month’s POP CULTURE ISSUE—we’ve been linked, quoted, and shared from NYC to Beirut—and readership has grown to numbers that exceeded even our highest hopes! Most importantly, we are having so much fun conceptualizing and creating a dialogue that appeals to a WIDE RANGE OF FEMINISMS and the issues that affect us both historically and everyday.

At RE/VISIONIST, we strive to encompass feminism in its most complex form and appreciate it for what it truly is: multi-faceted, diverse, frequently political, sometimes superficial, often hostile, at-times humorous, and above all, the good fight.  WE [as feminists] are just as variable and diverse as feminism itself and our readers are no exception. Just as there is no single most-important feminist argument, there is no one-way to write about feminism.

This month brings us to the litigious-side of inequality, or rather, institutionalized racism and sexism. Law is arguably the most powerful vehicle for social change—and that can work both ways. Revisiting monumental Civil Rights cases such as Loving v. Virginia, while celebrating New York’s legalization of gay marriage, can make it even harder to comprehend present-day (yet seemingly archaic) legal battles. Even more upsetting is the actuality that gendered and racial inequality exists WITHIN the legal framework—and that a lot of those serving to preserve “justice” are some of the most bigoted-people out there—making it even harder to know whose side the law is really on.

That being said–R/V is proud to feature a law review from co-Editor, Amanda Seybold! We’re also proud to welcome Brianna Leone and Emma Staffaroni to the R/V family as web-editors and columnists–you can see from the weekly links, this month’s articles, and the gorgeous editorial pics why we’re thrilled to have them!

Sexism, like any inequality, has several faces—from Pat Robertson to Britney Spears. Sometimes, it’s as blatant as pay inequity and other times it is so embedded in our understanding of how things are that we don’t even notice. This is why we have to work to cover as many bases as possible; we have to include—not exclude—to keep fighting the good fight.

 

{. . . and it IS the good fight.}

xx

Caroline

The Legal Issue:

{ENJOY!}

Miscegenation: A Law Review

Until the Supreme Court’s 1967 decision in Loving v. Virginia, interracial marriage was legally banned in a few states in this country.  Although we may look back and say to ourselves how can that be? That was so recent! the changes in legal thinking that made eradicating all miscegenation laws from the books were actually quite remarkable.  Rather, it was not so much that the legal arguments changed, it’s that the opinions of the Justices in charge of making the decisions changed, and luckily for the better. On the brink of the Court’s landmark Loving decision, two law professors wrote companion pieces of sorts, which were published in the Virginia Law Review.  Alfred Avins’ “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent” takes a strong stand in defense of banning marriage between the races, while Walter Wadlington’s “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective” argues that anti-miscegenation laws violate the Constitution and should be struck down.

An issue found in both articles is the lack of attention given to black female agency, in the sense of a black woman’s autonomy over her own fate, particularly as it comes to marital choices.  This is an aspect of analysis that is largely ignored by the authors, who choose instead to write about the laws from the perspective of the white male.  This may stem from a number of factors—including the professions of the authors (lawyers), the drafters of the laws (white men) and a general lack of case law brought to the courts by black women.  These constraints should not automatically yield an assumption that female agency may be ignored, however.   Unfortunately, the professors do not approach the issue of miscegenation law from the position to view it as an inability for a black woman to maintain a certain status in her life.  Rather, they approach it from the male dominated stance, which, while not necessarily lessening the importance of the analysis, does limit it in some respects. 

Alfred Avins, “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent”

One of the best parts about being a student of history is stumbling across that one document that really makes the reader stop, sometimes gape, and really say “huh.” [The one piece that unlocks not only the writer’s personal beliefs, but also the sentiments of the era.]  That, for this reader, was Professor Alfred Avins’ “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent,” which was published in the Virginia Law Review in 1966.[1]  Not only does the article offer incredible insights, albeit one-sided, into the Congressional debates over miscegenation law during Reconstruction and the ratification of the 13th, 14th and 15th Amendments to the U.S. Constitution—but it also serves as an invaluable insight into the legal world during the 1960s at a time when conservatives were doing everything they could to preserve the racism that was so prevalent in the South. This racism was ultimately eliminated, at least as far as marriage was concerned, only one year later with the Supreme Court’s ruling in Loving v. Virginia.[2]  In many respects, the article serves as both a primary and secondary source, making it a true gem among the scholarship about miscegenation law.

The article itself was written and published while Loving v. Virginia was making its way up to the Supreme Court.  On July 29, 1966 lawyers for the Loving’s had submitted an appeal to the Supreme Court asking for the Court’s intervention on a Constitutional question.  Professor Avins’ article was published in the November 1966 issue of the Virginia Law Review, and the state of Virginia filed its response briefs with the Supreme Court on November 18, 1966.  The Court announced that it would hear the case on December 12, 1966 and oral arguments were scheduled for April 10, 1967.  Given these factual circumstances, it is no wonder that Professor Avins, a law professor at Memphis State University, used such strong language in the opening paragraph as “it requires no special perspicacity to see that anti-miscegenation laws are in jeopardy.”[3]  Right from the start Avins makes it clear that the article, published in the very state whose anti-miscegenation law was coming under attack, was a vehement defense of the states’ right “to draw distinctions between the races.”[4]  Despite the fact that it is nearly impossible for Avins to have researched and written the entire article in the amount of time it took for the Lovings’ case to get from the Circuit Court of Appeals to the Supreme Court, it is clear that there was enough discussion surrounding the Lovings’ case that Avins article, while not necessarily a direct attack on the Lovings’ case, was in many ways a response to the potential change in the legal and political environments.

Guess Who's Coming to Dinner (1967) was groundbreaking for its representation of interracial marriage

Avins’ main argument is that the Fourteenth Amendment was never meant to cover marriage between the races.  After chiding the Supreme Court for overstepping its boundaries and noting that the Court should not have the final say on the scope of a Constitutional provision, he turns to the intent of the framers of the Fourteenth Amendment, arguing that “once the original understanding and intent of the framers is ascertained” any further questions about the scope of the Amendment should be laid to rest.[5] Avins looks to transcripts from the Congressional debates over the Reconstruction amendments in order to reach his conclusion about the true scope of the Fourteenth Amendment.  He also notes that “present day attacks on these laws involved no new constitutional principle, and it cannot be said that they involve any questions to which the framers did not in fact address themselves in 1866.”[6]  If that’s not a blatant criticism of the Lovings’ case and potential threats to miscegenation law, what is?

In order to make his case, Avins uses block quotes from many of the Senators and Congressmen who were debating just how many rights to extend to the newly freed slaves after the conclusion of the Civil War.  These quotations themselves are invaluable, particularly as they pertain to female agency, to the study of U.S. miscegenation law as a whole.  Avins argues that miscegenation was only even considered because it was a rhetorical tool used to try to stir up trouble around the proposed extensions of rights to the African-Americans in the 1860s.  One of the arguments against the Fourteenth Amendment’s equal protection was the fear among Democrats that enfranchising black men would lead to more interracial marriages.[7] Along that same line, the Congressmen argued that the Fourteenth Amendment would not touch state miscegenation laws because “the white person [is] equally denied the right to marry the negro.”[8]  This logic is precisely what the state of Virginia relied on, and the Court rejected, in the arguments in Loving; Avins’ intention is clear: don’t rock the boat.

Looking at the combination of current events and historical analysis, Avins’ article becomes much more than merely a descriptive assessment of the Fourteenth Amendment.  It becomes an insight into a world that was on the brink of change and one law professor’s last minute attempt to maintain the status quo.

Walter Wadlington, “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective” 

From the opining lines of Professor Walter Wadlington’s 1966 article “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective” it is clear where Wadlington stands on the pending miscegenation issue.[9]  He calls Virginia a state “which regularly recalls with glowing sentiment the story of how one of her early white sons married an Indian princess” and notes that it is “with symbolic irony” that the state’s highest court reaffirmed Virginia’s commitment to strict legal codes against racial intermarriage.[10]  In what can only be considered the companion piece to Professor Alvin Avins’ “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent”, Wadlington examines the historical background of the law that was at issue in Loving, namely the Racial Integrity Act of 1924, as well as the ideologies that contributed to the changes in the law.

Wadlington starts his analysis as far back as he possibly could in Virginia law, looking at statutory law from what he calls the colonial period, noting that the first statutory ban on interracial marriage was probably recorded in 1691.[11]  He notes that the punishment for being found guilty of sleeping with a slave was banishment from the colony, but he does not push the idea further ideologically.  He does not include an analysis of why banishment was the favored punishment or even why there was a punishment at all. He does not mention that, as Barbara Fields would note, the act of sleeping with a slave essentially rendered the white partner a slave as well, thus blurring the line between slave and free, and between the races.  Perhaps as a law professor that never occurred to Wadlington.  It may also have to do with the fact that at the time of the article’s publication many still believed race to be immutable.

Wadlington’s historical journey continues through the “present” miscegenation statute, which was enacted in 1924 with very little fanfare.  He does spend a great deal of time contemplating what he calls “the Pocahontas Exception” to the bar on interracial marriage and relationships.  He points out that there was an actual exception to the 1924 Racial Integrity Act, which permitted marriages between white people and those who were “no other mixture of blood than white and American Indian.”[12]  He posits that this exception was meant to protect the descendents of Pocahontas and John Rolfe and leaves it at that.  What he does not do is make a connection between the somewhat privileged and troublesome position that the Native Americans have occupied in much of American law and race politics.  He sees no connection between this exception and the section of the Dred Scott case in which Chief Justice Taney directly addresses the issue of whether or not Native Americans are analogous to African Americans.  In Dred Scott Native Americans are held to not be citizens of the United States, but for different reasons than the African Americans, based on logic that essentially stems from class rather than race.  The same could be argued of this exception to the Racial Integrity Act, that where the act seeks to protect race, it is contradictory and really seeking to protect a privileged class.

After all the historical legwork, Wadlington finally gets to a discussion of the Loving case, which had been scheduled for oral arguments at the time of this article’s publication.  Not only does Wadlington put forth the arguments that would support overturning the miscegenation bans, he also debunks the pro-miscegenation statute arguments, most of which were set forth by Professor Adkins in the same issue of the journal.  In fact, he actually cites Avins’ article in his own footnotes.  If ever there was an illustration of the conversational nature of academia, it is with the two articles.  It almost seems that Wadlington is speaking directly to Avins with a tone one would reserve for a child who declares her intention to dig a hole in the back yard all the way to China.

This is most clear in the brief but elegant conclusion, in which Wadlington states that while “it is possible that the original miscegenation bans served a legitimate purpose at a time when Negroes were essentially an alien part of the community…neither can we justifiably perpetuate those laws under the changed circumstances of our world.”[13]  He clearly seeks to lay to rest the originalist argument that the framers of the 14th Amendment could not have meant for it to apply to interracial marriage and to further the belief in a breathing and adaptable Constitution.  He closes with a powerful call to the Judiciary, with what is perhaps the best line in the essay: “…the Supreme Court should not make it clear that bans on interracial marriage have no place in a nation dedicated to the equality of man.”[14]

{Loving photo courtesy of harpyness.com}
{Pocahontas photo courtesy of williamsburgprivatetours.com}

[1] Alfred Avins, “Anti-Miscegenation Law and the Fourteenth Amendment: The Original Intent”, Virginia Law Review, Vol. 52, No. 7, (Nov 1966), pp. 1224 – 1255

[2] Loving v. Virginia, 388 U.S. 1 (1967)

[3] Avins, 1224.

[4] Avins, 1224.

[5] Avins, 1225.

[6] Avins, 1226.

[7] Avins, 1230.

[8] Avins, 1232.

[9] Walter Wadlington, “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective”, Virginia Law Review, Vol. 52, No. 7 (Nov 1966), pp. 1189 – 1123

[10] Wadlington, 1189.

[11] Wadlington, 1191.

[12] Wadlington, 1202.

[13] Wadlington, 1222.

[14] Wadlington, 1223.