73 Pages Posted: 27 Mar 2013 Last revised: 10 Jan 2015
Date Written: October 1, 2013
Among jurists, there is a widespread belief that the authors of the Fourteenth Amendment did not expect it would adversely affect “anti-miscegenation” (or racial-endogamy) laws. To cite perhaps the most prominent example, the Supreme Court in Planned Parenthood v. Casey relied chiefly on this conclusion to resist the “tempting” view that the Fourteenth Amendment should be interpreted consistent with its original understanding:
“Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967).”
This study challenges this conclusion by considering substantial historical evidence, much of which has not been addressed by contemporary legal scholars. 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 Amendment, most (but not all) authorities concluded that such laws abridged a pre-existing right recognized at common law, which right represented a privilege of citizenship; (2) that during the adoption of the Amendment, both proponents and opponents generally (though not unanimously) declared, acknowledged, or conspicuously failed to deny, that the Amendment would invalidate such laws; (3) that contra the Supreme Court’s claim in Casey (and the argument of Virginia’s attorneys in Loving), within five years of the Amendment’s ratification, racial-endogamy laws were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials — including virtually every Republican judge to face the question — concluded that African Americans’ constitutional 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 frequently manifest in their implausible interpretations of the Amendment. The article will conclude with reflections on how the Supreme Court’s decision in the Slaughter-House Cases dealt a serious blow to the Amendment’s original meaning and thus facilitated the renewed making and enforcing of these laws.
Keywords: privileges, immunities, citizens, interracial, marriage, intermarriage, miscegenation, endogamy, fourteenth amendment, privileges and immunities, racial endogamy
Suggested Citation: Suggested Citation
Upham, David R., Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause (October 1, 2013). 42 Hastings Constitutional Law Quarterly 213 (2015) . Available at SSRN: https://ssrn.com/abstract=2240046 or http://dx.doi.org/10.2139/ssrn.2240046
By Jack Balkin