The Race and Gender Factory

What Comes Naturally:  Miscegenation Law and the Making of Race in America

By Peggy Pascoe

New York:  Oxford University Press, 2009, 389 pp., $34.95, hardcover

Reviewed by Sandra F. VanBurkleo

In 1990, four years after joining the history faculty at University of Oregon, Peggy Pascoe published a beautifully crafted book, Relations of Rescue: The Search for Female Moral Authority in the American West, 1874 – 1939, which immediately took its place in a deepening body of scholarship aimed at charting the cultural history of race and gender in the United States.  Her subject was women reformers’ campaigns to “rescue” Chinese “concubines,” Mormon women in polygamous marriages, and other women presumably subjected to “impure,” unnatural, or brutalizing practices.  Relations of Rescue was an understated challenge to hegemonic ideologies such as white supremacy, patriarchy, and monogamy—so understated, in fact, that one reviewer, oblivious to the book’s radical implications, applauded the appearance of a feminist historical study that was neither “shrill” nor “whining.”

Now, Pascoe’s lens has widened to include much of modern America.  Her new book is about the invention and ruinous career of miscegenation law—a word that first appeared during the presidential election of 1864 as a replacement for an older term, “amalgamation.”  Because “amalgamation” originally meant “the mixture of metals,” two New York pamphleteers decided to mint a new word—a merger of the Latin verb miscere, to mix, and the noun genus, or race—to specifically denote a “mixture of two or more races.”

This time, someone surely will call her shrill.  Pascoe explicitly builds on the work of “scholars steeped in critical race and critical cultural studies.”  She aims to “reveal the power of the law in shaping identities and producing ‘race,’ or, sometimes, to reveal the cultural obsession with interracial sex and marriage” that lay just beneath “taboos and silences.” Although law is central to her analysis, What Comes Naturally is not content to trot out statutes, cases, and other artifacts of state power.  Instead, Pascoe is after the ideological constructions and reconstructions surrounding them—what she calls the “processes of racialization, sexualization, and naturalization” emanating from miscegenation law. In her view, this law was a “kind of factory for the production of race,” just as the law of marriage  was a “factory for the production of gender.”  The law governing interracial marriage merged the two factories into a kind of gigantic, public holding company that manufactured ammunition for white supremacists and defenders of robust manhood and female purity in campaigns against “illicit sex”—which, over the course of American history, has included adultery, bestiality, homosexuality, and other practices that seem to threaten same-race, heterosexual, male-headed households as society’s main building blocks.

Only a handful of scholars can juggle multiple balls and remain coherent.  Pascoe is one of them.  Even as she conveys wagonloads of information with extraordinary precision, she steadily recovers and remaps architectures of mind—the shifting frames of reference that variously permit and rule out choices as central as whom we should marry, whom we might love or take to bed without shame or fear, and whom or what we label as unnatural or socially destructive.  Her main arguments merit close attention:  “Miscegenation law,” she writes,

was … not just one of the various forms of race segregation practiced between 1880 and 1930, but [was] the foundation for larger racial projects of white supremacy and white purity.  As such, it rested on three animating fictions—one constitutional, one scientific, and one popular—which together served as the obvious, seemingly natural foundation of white supremacy.

The constitutional fiction was the notion that miscegenation laws affected all races and sexes equally; the scientific fiction was the idea that racial purity could and had to be protected systematically; and the popular fiction was the remarkable notion (still alive and well in human society) that race was a biological fact—that it could be known, measured, and controlled.

Americans typically associate legislation banning mixed-race marriage with the South (particularly Virginia and Alabama) and with black-white unions.  Many (not all) know that the US Supreme Court finally pronounced miscegenation laws incompatible with the equal protection clause of the Fourteenth Amendment in the 1967 case of Loving v. Virginia.  However, very few Americans know that statutes banning interracial marriage found their way into the lawbooks of thirty states, and that among the “races” threatening to taint the “white” gene pool were American Indians, Asians, Filipinos, Inuits, and various combinations thereof.  Judicial dockets teemed with cases linked, in one way or another, to problems caused by citizens’ attempts to exercise the right to marry without constraint.  Gaining access to the marriage ceremony was the least of it.  Mixed-race spouses, to give one example among many, could not hold, sell, or will property securely, while their children were tainted with illegitimacy.

As with other episodes or practices that modern citizens publicly disown, Americans (including public officials and some historians) mostly want to forget about miscegenation law, and so characterize it, along with slavery, debtors’ prisons, coverture, and a number of other moral lapses, as anachronistic—that is, as a relic of an unenlightened past sharply at odds with the progressive, liberty-seeking path of the American nation since Reconstruction. Pascoe thinks otherwise. In her view, the modern US still bears the imprint of miscegenation law. To prove it, she organizes her evidence into four sections.  First, she explores the brief moment after 1863 when Americans sometimes toyed with the possibility that the Fourteenth Amendment permitted transracial marriage—if only to preserve white men’s prerogatives. Next, she documents the construction of racialized legislation, particularly in the West; in this section, Pascoe demonstrates how Americans’ perceptions became those of citizens of “a racial state.” In the third section she introduces the growing army of opponents to miscegenation law and the struggle for “color-blind” alternatives.  Finally, Part IV, which is disappointingly brief, carries Pascoe’s all-important analysis of the limits of “color-blindness,” including what she calls the lionization of Loving v. Virginia.

Each of these sections is grounded in the wrenchingly human stories underlying judicial decisions about the legitimacy of mixed-race marriages.  The first section, for instance, focuses on Leah and Alfred Foster, a mixed-race couple caught up in the toxic webs that southerners spun during Reconstruction.  Alfred was a white slaveholder of considerable substance; by his own testimony and that of several witnesses, his former bondswoman Leah was his life partner—if not in law, certainly in practice. He emancipated her in Ohio in 1847. They parented children; they traveled together; they shared a bed every night. When they finally settled in Texas—probably in the 1850s, although the historical record unfortunately does not include this information—proslavery sympathizers had reversed the state’s earlier tradition of comparative liberality, and Alfred and Leah had to watch their deportment. Alfred’s remaining slaves apparently thought of Leah and her children as Alfred’s family; as if to prove the point, their Texas neighbors avoided having anything to do with the racially transgressive Fosters.

When Alfred died in 1867, Leah found herself in the crosshairs of crooks determined to steal her land. After 1865, she was unambiguously free, but the tricksters argued that she couldn’t have been Alfred’s wife.  Texas, after all, forbade marital amalgamation.  And why would a propertied white man marry a woman whom he already owned? Leah filed suit, claiming to be Alfred’s widow—even though Alfred had willed the property only to “Leah a colored woman,” leaving out the term “wife”—and his heir. The Texas courts confronted a dilemma: they could accept the marriage as lawful and affirm the right of a white man to devise his estate as he chose, bolstering white-male supremacy and the institution of marriage.  But then they would seem to be blessing unions between white men and black women, and accepting Leah’s claim to have been a lady sufficient to stand alongside a propertied white man.  They would also be invalidating local law and embracing federal civil-rights measures, anathema to the prevailing states’ rights sentiment.

The southern judges supported Leah’s claims.  Briefly, the equality principle trumped local law and presented an alternative to the notion that black-white marriage involved illicit sex and was therefore criminal.  But, as Pascoe explains, the judge saw the case “as a matter of respecting the will and intentions” of a white man.  “If such a man wanted to marry and leave property to a black woman,” he was not “willing to stand in his way.” On appeal, the Texas Supreme Court affirmed Alfred’s right to bestow his property as he wished and gave at least passing notice to the newly adopted Fourteenth Amendment, which promised “equal protection of law.”  These rulings were probably not about Leah at all.  Rather, they expressed the state’s interest in replacing old norms that guarded “the rights and privileges of White men as slaveholders” with laws defending “White men as husbands.”

The moment was fleeting.  I make no attempt to summarize (and trivialize) Pascoe’s deep well of evidence.  Suffice it to say that most of the stories she rescues from history’s dustbin did not end happily until after the mid-twentieth century. Before that, legislators and judges found ways to protect white men from prosecution, while fending off the possibility that the right to marry implied a right to marry an adult person of your choice. After 1967, doctrines of “color-blindness” began to supplant early interpretations of the equal protection clause, which had argued that statues affecting men and women, and blacks and whites, with equal rigor passed constitutional muster.  In other words, if a law applied to all possible combinations of race or sex—a black woman and white man, for instance, as well as a white woman and a black man—it could remain on the books, since it weighed equally on everyone.  Later, as criminal punishments for transracial marriage disappeared from law codes, conservatives made bad use of good law. Loving v. Virginia, for example, has been used by opponents of affirmative action to argue the merits of “color-blindness.”

With miscegenation law, as with protective laws affecting working women and children, legislators created an exception to the general ban on interference with property rights, in order to prevent adults aiming to engage in “criminal” activity within marriage from actually forging the contract. As Pascoe observes, miscegenation law contributed to the twin notions that marriage was not a simple contract but a fundamental social institution and that states could criminalize any sexual practice to defend that institution.

I would observe, in addition, that the creation of an exception to the general ban on legislative interference with contractual rights actually feminized male parties to miscegenation, by rendering them as dependent as the women and children who needed protection in the workplace. But this is an elaboration.  Pascoe unequivocally demonstrates miscegenation law’s fundamental role in supporting the related discourses of white supremacy and patriarchy.  She also lays bare the deficiencies of post-1967 solutions to problems of race, gender, and sexuality, usefully identifying pathways that progressives ought to avoid.

While What Comes Naturally is not about same-sex marriage, current events are plainly on Pascoe’s mind.  The book alludes to important parallels, and Pascoe has published work elsewhere on the same-sex question, driving home the connections between criminalization of homosexual sex and the maintenance of both patriarchy and homophobia.  On the one hand, black people (particularly black men who dare to love white women) have been castigated for liaisons with individuals defined as racial “opposites”; while on the other, gay people are punished for eschewing sexual opposites.  In both cases, the criminalization of sex effectively guards the house of marriage, refusing entry to those whose practices might undermine naturalized, power-laden structures.

In connecting the history of miscegenation law to the broader, ongoing maintenance of race, gender, sex, and other hierarchies, Pascoe shows how deep the rivers really run, and how difficult it has been to alter or reverse their flow.  I hope that she will carry the project forward—notwithstanding the illness that she bravely fought to complete What Comes Naturally—perhaps to write more about same-sex marriage, so that Americans might learn more about how entrenched power survives even the sharpest attack.

In the meantime, we have a definitive account of linkages between mixed-race marriage, patriarchy, white supremacy, and the rise of an illusory color-blindness.  Pascoe makes clear that we cannot remake the present simply by forgetting what is now deemed disreputable or anachronistic. Language and culture both converse with the past; history doesn’t just go away.  Books like this one carry us a long way toward a necessary introspection.  It remains to be seen whether mindful equality—that is, practices that comprehend both the ongoing power of history and a citizen’s right to be self-actualizing—will be more than a wild-eyed dream in fifty (a hundred?) more years.

Sandra VanBurkleo teaches American history at Wayne State University in Detroit.  She is the author of “Belonging to the World”:  Women’s Rights and American Constitutional Culture (2001) and a number of other studies.  She’s presently completing an account of public conversations about the nature of citizenship in Washington, provisionally called Gender Remade:  Statehood and Citizenship in the New Northwest, 1879-1912.  In her spare time, she designs big wooly sweaters (see www.artisanknitworks.com).