The US Supreme Court legalizes interracial sex and interracial marriage all of the way back in 1883

[WolfBear]

What if the US Supreme Court would have decided the 1883 case Pace v. Alabama differently? In real life, the US Supreme Court unanimously said back then that anti-miscegenation laws did not violate the US Constitution's 14th Amendment's Equal Protection Clause because both whites and blacks are punished equally for engaging in interracial sex. What if SCOTUS would have ruled differently, arguing that symmetrical equality is not genuine equality? So, we get Loving v. Virginia over 80 years later. What happens next?

 

[Atarlost]

Nothing that matters other than on a personal level. Interracial couples are still subject to shunning in places that wish miscegenation was still illegal, and they can leave even OTL because there has never been a federal anti-miscegenation law nor have all states ever had them.

 

[ShadowArxxy]

Only a tiny handful of states *never* had anti-miscegenation laws, and they were geographically isolated -- it's just Wisconsin and Minnesota in the upper Midwest, and then all the New England states except Massachusetts and Rhode Island. Literally everywhere else had them, relatively few couples had the resources to just up and move all the way across the country. The mobility that modern Americans enjoy is a *very* recent phenomenon.

 

[WolfBear]

Only a tiny handful of states *never* had anti-miscegenation laws, and they were geographically isolated -- it's just Wisconsin and Minnesota in the upper Midwest, and then all the New England states except Massachusetts and Rhode Island. Literally everywhere else had them, relatively few couples had the resources to just up and move all the way across the country. The mobility that modern Americans enjoy is a *very* recent phenomenon.

It's worth noting that all Northern US states other than Indiana had already abolished their anti-miscegenation laws by 1887, though. And even then, there was a serious lack of enforcement of these laws in the Northern US between 1868 and 1887, other than possibly in Indiana.

 

[WolfBear]

It's worth noting that all Northern US states other than Indiana had already abolished their anti-miscegenation laws by 1887, though. And even then, there was a serious lack of enforcement of these laws in the Northern US between 1868 and 1887, other than possibly in Indiana.

This academic article by David Upham is my source for all of this, BTW:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1992&context=hastings_constitutional_law_quaterly

 

[Circle of Willis]

Might spark some race riots across the South, a black guy daring to suggest that some white woman and black men might be into each other entirely consensually (in response to first-ever female senator Rebecca Felton shrieking for more lynchings to control black men no less) directly led to a coup in Wilmington and the final entrenchment of white supremacy in North Carolina.

Other than that, I would agree that this is unlikely to have any meaningful effect, practically speaking. Law or no law, being a black dude and expressing interest in white dudettes south of the Mason-Dixon Line is going to get you Emmett Till'd (with no chance of redress due to functionally every judicial and political lever in those states being controlled by white supremacists who will celebrate your demise, because this ruling isn't going to save Reconstruction and might well fuel the Redeemer efforts to dismantle its last remnants) until and unless the national mood shifts to favor not just civil rights but their aggressive enforcement.

 

[WolfBear]

Might spark some race riots across the South, a black guy daring to suggest that some white woman and black men might be into each other entirely consensually (in response to first-ever female senator Rebecca Felton shrieking for more lynchings to control black men no less) directly led to a coup in Wilmington and the final entrenchment of white supremacy in North Carolina.

Other than that, I would agree that this is unlikely to have any meaningful effect, practically speaking. Law or no law, being a black dude and expressing interest in white dudettes south of the Mason-Dixon Line is going to get you Emmett Till'd (with no chance of redress due to functionally every judicial and political lever in those states being controlled by white supremacists who will celebrate your demise, because this ruling isn't going to save Reconstruction and might well fuel the Redeemer efforts to dismantle its last remnants) until and unless the national mood shifts to favor not just civil rights but their aggressive enforcement.

So, it looks like white Southerners will resort to vigilante lynchings to solve any interracial dating problems in their states in this TL for at least the next several decades; how sad and goddamn-awful! I wonder if the Western US will adopt a similar approach. Westerners struck me as being more civilized than Southerners in regards to lynchings, though lynchings in the West obviously weren't unheard of. Just rarer, I think. So, any aspiring interracial couples will simply have to move to the Northern US, which, other than Indiana, got rid of all of its anti-miscegenation laws by 1887 anyway:

https://en.wikipedia.org/wiki/Anti-miscegenation_laws_in_the_United_States#Summary

1887 was just four years after 1883, and in any case, they were largely unenforced in the 1868-1887 time period anyway due to a belief by some or even many Northern officials that these laws conflicted with the 14th Amendment:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1992&context=hastings_constitutional_law_quaterly

BTW, off-topic, but you might be interested in this thread of mine:

https://www.the-sietch.com/index.php?threads/if-the-original-us-constitution-the-1787-text-would-have-allowed-us-states-to-have-anti-miscegenation-laws-would-loving-be-decided-differently.8764/

 

[strunkenwhite]

What if the US Supreme Court would have decided the 1883 case Pace v. Alabama differently? In real life, the US Supreme Court unanimously said back then that anti-miscegenation laws did not violate the US Constitution's 14th Amendment's Equal Protection Clause because both whites and blacks are punished equally for engaging in interracial sex. What if SCOTUS would have ruled differently, arguing that symmetrical equality is not genuine equality? So, we get Loving v. Virginia over 80 years later. What happens next?

Well, based on your wording there, Plessy v. Ferguson would probably go differently.

 

[WolfBear]

Well, based on your wording there, Plessy v. Ferguson would probably go differently.

Yes, most likely. Unless of course there is a massive increase in the number of Demoratic-appointed SCOTUS Justices in 1896 relative to 1883, in which case this alt-Pace ruling could also eventually get overturned by SCOTUS.

 

[Ricardolindo]

What if the US Supreme Court would have decided the 1883 case Pace v. Alabama differently? In real life, the US Supreme Court unanimously said back then that anti-miscegenation laws did not violate the US Constitution's 14th Amendment's Equal Protection Clause because both whites and blacks are punished equally for engaging in interracial sex. What if SCOTUS would have ruled differently, arguing that symmetrical equality is not genuine equality? So, we get Loving v. Virginia over 80 years later. What happens next?

This scenario is Alien Space Bats. Pace v. Alabama was an unanimous decision. Not even Harlan dissented.

 

[WolfBear]

This scenario is Alien Space Bats. Pace v. Alabama was an unanimous decision. Not even Harlan dissented.

Though their specific understanding of the 14th Amendment was not universal:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1992&context=hastings_constitutional_law_quaterly

But it was originally understood that if anything in the 14th Amendment nullifies anti-miscegenation laws, it's the Privileges or Immunities Clause, not the Equal Protection Clause.

 

[WolfBear]

Though their specific understanding of the 14th Amendment was not universal:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1992&context=hastings_constitutional_law_quaterly

But it was originally understood that if anything in the 14th Amendment nullifies anti-miscegenation laws, it's the Privileges or Immunities Clause, not the Equal Protection Clause.

An additional article by this author about this topic (though you might not like that he's arguing against SCOTUS recognition of same-sex marriage while arguing in favor of the result in Loving):

Same-Sex Unions, Assumed Historical Facts, and Interracial Marriage - David Upham

At oral argument in Hollingsworth v. Perry, Justice Scalia challenged Theodore Olson as to when it became “unconstitutional to exclude homosexual couples from marriage?”[1] Olson replied first with what he called a “rhetorical question,” viz., “When did it become unconstitutional to prohibit...

lawliberty.org

 

[WolfBear]

Though their specific understanding of the 14th Amendment was not universal:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1992&context=hastings_constitutional_law_quaterly

But it was originally understood that if anything in the 14th Amendment nullifies anti-miscegenation laws, it's the Privileges or Immunities Clause, not the Equal Protection Clause.

There's also this article about this topic from 1995, but the article above is much more detailed:

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1353&context=roundtable

 

[WolfBear]

Though their specific understanding of the 14th Amendment was not universal:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1992&context=hastings_constitutional_law_quaterly

But it was originally understood that if anything in the 14th Amendment nullifies anti-miscegenation laws, it's the Privileges or Immunities Clause, not the Equal Protection Clause.

@Ricardolindo Did you take a look at that article? It's quite interesting because it shows that the idea that anti-miscegenation laws were compatible with the US Constitution was not universal in the initial couple of decades after the adoption of the 14th Amendment.

There's also this post by a different law professor:

The original meaning of the 14th Amendment regarding interracial marriage - The Volokh Conspiracy

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the...

volokh.com

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.” Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is “more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.'”