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03/26/2013

Upham on the history of racial-endogamy laws
Chris Green

New scholarship from David Upham: Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause.  From the abstract:

On March 26, 2013, on the first day of oral argument in Hollingsworth v. Perry, Justice Scalia challenged attorney Theodore Olson as to precisely when it became "unconstitutional to exclude homosexual couples from marriage?" Olson responded by asking rhetorically, "When did it become unconstitutional to prohibit interracial marriages?" Justice Scalia answered, "It's an easy question, I think, for that one. At the time that the Equal Protection Clause was adopted." 

This study addresses this latter question, but provides a somewhat different answer: At the time that the Privileges or Immunities Clause was adopted. 

This study considers substantial historical evidence, much of which has not been addressed by contemporary legal scholars, and challenges the widespread belief that the authors of the Fourteenth Amendment did not expect it would adversely affect "anti-miscegenation" (or racial-endogamy) laws.

This study proves, by a strong preponderance of the evidence, that the Fourteenth Amendment, as understood by the officials that proposed, ratified, and initially interpreted it, precluded the making or enforcing of racial-endogamy laws, insofar as such laws prohibited or invalidated interracial marriages between citizens of the United States.

In particular, this study concludes: (1) that before the Fourteenth Amendment, most authorities agreed that racial-endogamy laws abridged a pre-existing, common-law right, which right represented a privilege of citizenship; (2) that during the adoption of the Amendment, both proponents and opponents generally declared, acknowledged, or conspicuously failed to deny, that the Amendment would invalidate such laws; (3) that within five years of the Amendments' adoption, on the eve of the Slaughter-House Cases, such laws were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials—including nearly every Republican judge to face the question—concluded that African Americans’ entitlement to the status and privileges of citizenship precluded the making or enforcing of such laws; and (4) that the contrary holdings were made by Democratic judges hostile to Reconstruction, whose hostility was manifest in their implausible interpretation of the Amendment. The study ends with a reflection on how the Slaughter-House Cases facilitated the rejection of the original understanding, and thus the partial nullification of the Fourteenth Amendment through the renewed making and enforcing of racial-endogamy laws.