Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause
Document Type
Article
Publication Title
Hastings Constitutional Law Quarterly
Abstract
The article will proceed in four parts, corresponding to the following conclusions: (1) that before the [fourteenth] Amendment, most (but not all) authorities concluded that such laws abridged a pre-existing right recognized at common law, which 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. This history will prove, by a strong preponderance of the evidence, that the Fourteenth Amendment, as understood by the citizens that proposed, ratified, and initially interpreted it, precluded the making or enforcing of state racial endogamy laws, insofar as such laws prohibited or invalidated marriages between citizens of the United States.
First Page
213
Last Page
286
Publication Date
Winter 2015
Recommended Citation
David R. Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause, 42 HASTINGS CONST. L.Q. 213 (Winter 2015).