The Color Line of Punishment

If “the color line,” (in W.E.B. Du Bois’s 1903 phrase and prophecy) was to be the twentieth century’s greatest challenge for the domestic life and public policy of the United States, the law has had much to do with drawing its shape. No surprise, this. By now, legal theorists accept that law does not advance in preordained fashion, immune from the sway of political interest, belief systems and social structure. Still, it is hard to exaggerate how powerfully the law has shaped the life chances of Americans of African heritage, for good or ill, and in ways that we scarcely think of today. The act of interracial marrying, for example, does not today evoke visions of criminality, although it once did. Thirty-nine states – including states in the North and West – had at one time passed laws forbidding intermarriage between persons of different race. Many of these laws were still in effect following World War II. If a black man had married a white woman in Virginia in 1966 the marriage would have been void ab initio, and they would each have been guilty of a felony. Loving v. Virginia, the 1967 case that freed interracial couples to marry, is only a footnote in Randall Kennedy’s Race, Crime and the Law, but that is understandable. The anti-miscegenation laws arose out of racial theories asserting that the children of “mixed” marriages would be defective. In one respect, these laws were often breached in practice. Black women were taken or raped regularly by white men who were rarely, if ever, punished (p. 35). Such children were sired in uncounted numbers, and then denoted as “Negro.” The laws criminalizing intermarriage thus delegitimatized the offspring of relations between white men and black women so that they could not inherit their father’s property. In another respect, the laws were rigorously enforced to prevent black men from having consensual sex with white women under any circumstances, including marriage. These laws implied that no rational, adult, white woman would agree to have sex with a black man. Any breaking of the sex-color line taboo between a black man and a white woman could be – and in the peculiar logic of the deep South should be – considered the moral equivalent of rape, even if blessed by the sacrament of marriage.