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American Nineteenth Century History, B j Routledae

Vol. 6, No. I, March 2005, pp. 57-76 \ \ T.rirf.F.nd>croi

Reconstruction, Segregation, and


Miscegenation: Interracial Marriage
and the Law in the Lower South, 1865-
1900
Peter Wallenstein

On the eve of Congressional Reconstruction, all seven states of the Lower South had laws
against interracial marriage. During the Republican interlude that began in 1867-68, six
of the seven states (all but Georgia) suspended those laws, whether through judicial inval-
idation or legislative repeal. Yet by 1894 all six had restored such bans. The trajectory of
miscegenation laws in the Lower South between 1865 and 1900 permits a reconsideration
of the range ofpossibilities the Reconstruction era brought to public policy. More than that,
it forces a reconsideration of the origins of the Jim Crow South. Legally mandated segrega-
tion in public transit, as C. Vann Woodward observed in 1955, took hold late in the
century. But such segregation in public education, as Howard R. Rabinowitz pointed out
with his formula 'from exclusion to segregation,' originated during the first postwar years.
Segregation on the marital front - universal at the start of the period and again at the end,
but relaxed in most Lower South states for a time in between - combined the two patterns
into yet a third. Adding another layer of complexity was the issue of where the color line
was located, and thus which individuals were classified on each side of it.

In a brief essay published in 1889, the mixed-race novelist and short story writer
Charles W. Chesnutt asked 'What Is a White Man?' Surveying the heterogeneous legal
definitions of white and black among the various states in the 1880s, Chesnutt noted
wryly that, in a nation, state, or region that trumpeted notions of white supremacy, it
was presumably important to know just who belonged to the superior race and who did
not. Yet at the time of his writing, 'reputation,' he said, seemed as important as 'admix-

Peter Wallenstein is professor of history at Virginia Polytechnic Institute and State University. Correspondence to:
Prof. Peter Wallenstein, Department of History, Virginia Polytechnic Institute and State University, Blacksburg,
VA 24061 U.S.A. Email: pwallens@vt.edu.

ISSN 1466-4658 print/ISSN 1743-7903 (online) 2005 Taylor & Francis Group Ltd
DOI: 10.1080/14664650500121827
58 P. Wallenstein

ture' in South Carolina in determining the assignment of racial identity, and in any
case, he observed, racial segregation was widely imposed under the law only 'in schools
and in the marriage relation.'^
Some years before Chesnutt wrote these words. South Carolina had suspended its
law against interracial marriage for a time, and the University of South Carolina
enrolled black students as well as whites for a time in the 1870s, so his statement
concerning 'schools and ... the marriage relation' reflected a new departure in that
state.^ Across the region, soon after Chesnutt wrote, legally mandated segregation
spread more thoroughly to transportation, so that sector soon converged with educa-
tion and marriage in its governance according to the law of racial identity. All could be
in doubt, or in flux, and much was contested - racial identity and its application to one
situation or another.
In the years that followed Chesnutt's article, states continued to tinker with racial
definitions and with their application, and many people found that they were being
assigned a new racial identity, depending on when and where they found themselves,
its significance depending on why the question arose. The proportion 'black' or 'white'
that defined blackness or whiteness changed; one state, then another, adopted the 'one-
drop' approach, the idea that 'one drop' of'African blood' - any black African ancestry
- made a person 'black,' or 'colored.'^ In some states, therefore, whiteness was a far
more exclusive property by 1930 than it had been a half-century before. Every time the
races were redefined under the law - every time the boundary between identities was
moved - the meaning of 'interracial' marriage was altered. The term itself had no
constant meaning; rather, it varied across territory and changed across time.
Between the 1860s and the 1920s, racial segregation under the mandate of state law
thus evolved along two dimensions. One of these had to do with who was defined as
belonging in each major racial community. The other had to do with what activities
were brought under laws separating people according to their racial identities. The two
sets of changes were not simultaneous. Much of the work of expanding the reach of
segregation law to new activities had already been accomplished by the time various
states - among them Georgia and Alabama - moved toward or even adopted the 'one-
drop' rule of racial identity. With that as background, let us examine the law of inter-
racial marriage in Mississippi, however 'interracial' might be defined.

Mississippi Politics and the Law of Miscegenation


The end of Confederate authority in Mississippi dates from April t865. So does the
abolition of slavery there. A few months later, conceding as little as possible to the
recent changes, the Mississippi legislature enacted a comprehensive Black Code. One
provision banned interracial marriage, which legislators defined as marriage between
a white person and either a person of 'pure negro blood' or someone 'descended fi-om
a negro to the third generation inclusive, though one ancestor of each generation may
have been a white person.' In fact, the new law constituted an extraordinary innova-
tion; violation of it could carry a penalty, for each partner, of a life sentence in
prison.
American Nineteenth Century History 59
This early postwar development, together with its aftermath over the following quar-
ter century, can provide a basis for reconsidering the Reconstruction era and the
origins and extent of racial segregation in the South in the decades after the Civil War.
The postwar trajectory of the law of interracial marriage reveals in new light the emer-
gence of the Jim Crow South.
Slaves could not enter into marriages that the law would recognize or that their
owners could be required to respect. As long as virtually all black residents of Mississippi
were enslaved - and the 1860 census enumerated only 775 people of color who were
not enslaved, compared to 436,631 slaves - a law prohibiting their marrying with whites
had seemed beside the point. By 1865 and 1866, by contrast, with all residents declared
free, and with African Americans outnumbering whites, a new Black Code stepped in
to regulate race relations and restrict the behavior and the opportunities of black
Mississippians. The new Black Code included the draconian new miscegenation law.^
Yet that first postwar regime collapsed soon after it went into operation. Soon after
Mississippi enacted its postwar Black Code, Congress took over the reins of power and
policymaking and inaugurated what we call Congressional Reconstruction. Black men
gained political rights in Mississippi and in other Deep South states; and black suffrage
transformed the electoral and legislative environment. The Mississippi legislature sent
Hiram R. Revels, an African American, to complete a short term in the U.S. Senate
(1870-71) and a few years later sent Blanche K. Bruce, another African American, to
the Senate for a full term (1875-81), in the seat once held by Jefferson Davis.^
Mississippi's Republican-controlled legislature did away with marital apartheid, as
the 1870 legislature 'forever repealed' the 1865 Black Code in its entirety. During the
decade of the 1870s, from the time Revels was in the Senate to near the end of Bruce's
term, the miscegenation law was dropped from the Mississippi law books. So thor-
oughly was racial equality introduced into the law of that quintessential Deep South
state that black men and white women might marry and face no criminal penalties for
doing so.^ A more radical change in the law from Mississippi's first postwar years could
hardly be imagined.
Then the Republican era came to an end in Mississippi, and, in 1880, the miscegena-
tion law was restored - though never again carrying the kind of penalty imposed during
Presidential Restoration - as a Democrat-dominated legislature established penalties of
a fine as high as $500, imprisonment as long as ten years, or both. The 1890 constitu-
tion incorporated the miscegenation law, and there it persisted throughout the long
Age of Segregation, down to 1967, when - in Loving v. Virginia - the U.S. Supreme
Court overturned it and all provisions like it, in 16 states, as in violation of the due
process and equal protection clauses of the Fourteenth Amendment.^
Coing beyond Mississippi, this essay surveys the post-Civil War history of 'interra-
cial marriage' in law and policy in the entire Lower South - the Cotton South, the seven
original states of the Confederacy, extending from South Carolina through Mississippi
to Texas. More than that, it suggests ways in which these findings might be integrated
into the contexts of Reconstruction and segregation - two areas of historical literature
in which the law of interracial marriage has been at best a minor theme, but to which
it appears to have much to offer.
60 P. Wallenstein

Reconstruction, Redemption, and the Law of Miscegenation

The Supreme Court ruled in the Dred Scott decision (1857) that Americans of African
ancestry were not citizens. Congress rebutted that ruling, by declaring African
Americans to be citizens, in the Civil Rights Act of 1866, the essence of which was incor-
porated into Section One of the Fourteenth Amendment, approved that year and rati-
fied two years later. Reconstruction measures changed the policy environment in
multiple ways, from redefining U.S. citizenship to reconfiguring the electorate.
Beginning in 1867, in stark contrast to the time of Dred Scott ten years earlier, black
men were voting in such states as Mississippi, Alabama, and South Carolina.^
The new political and constitutional order could - as Mississippi shows - profoundly
affect state laws that restricted interracial marriage. And Mississippi was by no means
unique in displaying such change. In 1872, for example, a unanimous Alabama
Supreme Court - whose members, all three of them white Republicans, had won office
by the actions of a biracial electorate - relied on the Dred Scott decision to bolster its
interpretation of the law of freedom as it contrasted with the law of slavery. Chief
Justice Roger B. Taney, the Alabama court noted, had stressed state laws banning
marriage between blacks and whites to support the conclusion that black residents were
not U.S. citizens. Now, however, African Americans were citizens - this, at least, was
no longer open to serious doubt - and they had the right to make contracts, including,
the Alabama court declared, the right to enter into a 'marriage with any citizen capable
of entering into that relation.'^*'
In that Alabama case, a white man had been convicted of violating the Alabama
miscegenation law after he presided over an interracial wedding, but the state supreme
court overturned the conviction and threw out the law. In cases related to inheritance,
appellate courts in some other states in the early 1870s ruled in a similar fashion - that
the new constitutional order had rendered unenforceable aO laws restricting interracial
marriage, such as those enacted in Mississippi in 1865 and in Alabama in 1866. In 1871,
for example, the Texas Supreme Court said - regarding A.H. Foster, a white man, and
Leah Foster, a former slave - that they 'continued to live together,' presenting them-
selves as husband and wife, 'until after the law prohibiting [their] marriage had been
abrogated by the 14th Amendment to the Constitution of the United States.' And in
1874, the Louisiana Supreme Court declared about the Civil Rights Act of 1866 that it
had invested a 'woman of color,' Cornelia Hart, 'with the capacity to enter into the
contract of marriage with F.C. Hart, a white man, and to legitimate her children by him
born before said marriage, just as if she had been a white woman.'^'
So it was that, during Reconstruction, some southern states overturned their misce-
genation laws through court action. Others, at some point between 1868 and 1874,
accomplished much the same end through legislative repeal. South Carolina,
Mississippi, Louisiana, and Florida all did so. The Republican-dominated Florida legis-
lature, when revising that state's code in 1872, noted: 'Various provisions of the statutes
in relation to marriages between white and colored persons are omitted out of defer-
ence to the opinion of those who think that they are opposed to our [state]
Constitution and to the legislation of Congress.''^
American Nineteenth Century History 61
In one fashion or another, seven southern states - including six of the seven original
states of the Confederacy - abandoned their miscegenation laws during Reconstruc-
tion. Many states, though, did not overturn or repeal their laws against interracial
marriage. Among the states of the Lower South, only Georgia retained its miscegena-
tion law throughout the postwar period. Among the next tier of states of the former
Confederacy, all but Arkansas did'^ - that is, Tennessee, North Carolina, and Virginia
kept their laws in force. And every state of the Border South did, as did a number of
northern states, from Indiana in the Midwest to California in the West.
Georgia was the sole exception in the Lower South to the general pattern of dropping
the miscegenation laws. Georgia happened also to be the sole state, among the seven,
where Republican control was never secure, and little time elapsed before Democrats
resumed power there. Speaking for the Georgia Supreme Court in 1869, the chief
justice, former governor Joseph E. Brown, exclaimed that black-white marriages were
'productive of evil, and evil only,' and a state continued to have the authority to outlaw
them. The 'conquering people' of the Union, he said, had imposed an emancipation of
all slaves, political rights for black men, and, as he said, an 'equality of civil rights.' But,
he insisted, 'they have neither required of us the practice of miscegenation, nor have
they claimed for the colored race, social equality with the white race.''*
In sum, within a few years after 1865, when Appomattox and the Thirteenth Amend-
ment put an end to slavery, and after 1867, when Congress enfranchised black men in
ten states of the defeated Confederacy, seven of those states ended their participation
in what I call the 'antimiscegenation regime' - a racial regime specifically targeting
matters of marriage. Yet nowhere in the South did action against miscegenation laws
prove permanent. In 1878, the Alabama Supreme Court, for instance, rejected what it
now termed 'the former erroneous ruling of this court.'^^ And by 1894, when legislative
action restored Louisiana's law against black-white marriage, the South was solid again,
for the first time since 1868.
In the late 1860s and early 1870s, Reconstruction - more particularly. Republican
dominance - had brought a tremendous shift in the law of marriage in some southern
states, but, in those states, the end of Republican dominance brought, sooner or later,
a complete rollback to the situation that had prevailed in the law of race and marriage
in 1866, in that every state once again had a miscegenation law, a law making interracial
marriage a crime, a serious crime. A century later, in 1966, all southern states still had
such laws on the books. As for the Lower South, Mississippi provided a model - first of
radical change, discontinuity, and then of adamant persistence, continuity - that held
everywhere, aside from Georgia's constant allegiance to the antimiscegenation regime
throughout Reconstruction.
An account of the Lower South's miscegenation laws, in complicating the story of
Reconstruction, hints at an alternative chronology for the postwar South. Historians
generally agree (or at least have agreed until recently) that the Reconstruction era ended
in 1877 everywhere; alternatively, it is said to have ended in each state of the former
Confederacy whenever Republican control evaporated there, and in no case after 1877.
The continued election of black southerners to various state legislatures well after 1877,
and to Congress as late as 1898, suggests a later cut-off in one state or another. The
62 P. Wallenstein

timing of the restored miscegenation laws suggests another way, at retaO rather than
wholesale, to punctuate the Reconstruction era. Calibrated in terms of the law of race
and marriage. Reconstruction, having never arrived in Georgia, ended in South
Carolina in 1879, Mississippi in 1880, Florida in 1881, and Louisiana in 1894.^^

Interracial Marriage and the U.S. Supreme Court


One last kind of evidence regarding miscegenation statutes and the constitutional
order takes us to the U.S. Supreme Court. In 1883, in Pace v. Alabama, the Court
upheld a miscegenation law. The case did not directly address interracial marriage. In
fact, both sides, in their arguments before the nation's high Court, agreed that
Alabama had the authority to ban interracial marriages. But the black-white couple
who brought the case - and who could not, under Alabama law, marry each other -
had been convicted of violating a law that imposed far harsher punishment (at least
two years' imprisonment) on people involved in an interracial relationship outside of
marriage than on an otherwise identical same-race couple. The couple did not
prevail. The statute under review was upheld on the basis - said Justice Stephen J.
Field, speaking for a unanimous Court, a consensus that included Justice John
Marshall Harlan - that it applied 'the same punishment to both offenders, the white
and the black.''^
Another case, though its facts had nothing to do with racial identity, long played a
key role in the constitutional history of miscegenation laws. In Maynard v. Hill
(1888), the Supreme Court addressed the nature of marriage and the extent of federal
authority with respect to it. This time. Justice Stephen J. Field spoke for a 6-2 major-
ity that ruled marriage laws to be a matter of state policy, not constitutional law.
'Marriage,' Field wrote, 'as having ... more to do with the morals and civilization of a
people than any other institution, has always been subject to the control of the Legis-

In short, legislatures could act against interracial marriage. Yet that approach left
open the question of whether, despite legislative prerogative, a marriage that was valid
in the state where it had originated was portable across state lines - whether a marriage
was a contract covered by the Constitution's full faith and credit clause (in Article IV,
Section 1), so that, if legal in the state where it was contracted, it had to be recognized
by other states as well.
But the Supreme Court went on to rule in Maynard that marriage was 'not a
contract' within the meaning of the full faith and credit clause. Justice Field conceded
that marriage was often characterized as a contract, a civil contract. But that character-
ization had more to do with distinguishing it from the religious sacrament that often
accompanied it, he said, than with deeming it nothing more than a 'mere contract'
between two consenting parties. In American law and culture, mutual consent was
essential to entering into a marriage, but the marriage itself went beyond the contract:
'When the contract to marry is executed by the marriage, a relation is created between
the parties which they cannot change. Other contracts may be modified ... or entirely
released upon the consent of the parties. Not so with tnarriage. The relation once
American Nineteenth Century History 63
formed, the law steps in and holds the parties to various obligations and liabilities.''^
Therefore, an interracial marriage, though valid in the state where it was contracted,
could not necessarily be imported into another state.
The decision in Pace v. Alabama (1883) demonstrated that the concept of separate-
but-equal could constitutionally prevail in the realm of marriage. According to
Maynard v. Hill (1888), moreover, marriage was not a federal matter anyway. A few
years later, in Plessy v. Ferguson (1896), on the way to a conclusion upholding state
authority to require 'equal but separate' railroad facilities, the Supreme Court
commented on school segregation as well as miscegenation laws. Congress, the Court
observed, had required 'separate schools for colored children' in the District of
Columbia, 'the constitutionality of which does not seem to have been questioned,' and
state legislatures had enacted similar laws. Nor, the Court observed, were education
and transportation the only realms within which segregation had been legislated: 'Laws
forbidding the intermarriage of the two races may be said in a technical sense to inter-
fere with the freedom of contract, and yet have been universally recognized as within
the police power of the State.'^ The statement in Plessy was belied, of course, by what
some state courts had in fact ruled during Reconstruction - and the fiction so voiced
in Plessy persisted down to recent years.^'
According to the Supreme Court's rendition of the Fourteenth Amendment, states
could choose whether to enact miscegenation laws. Whether they did so was a matter
of statutory authority, not constitutional limitation. What could not readily happen
after the Supreme Court ruled in the 1880s on the Alabama case was for a state supreme
court to rule, in the fashion that Alabama's had in 1872, that such a statute was beyond
the constitutional authority of a state. Pace foreclosed that possibility regarding
marriage, just as Plessy later would with transportation. Certainly by the 1880s no
southern state court was going to rule in such a fashion anyway, at least in the near
future. The Alabama court had already reversed the 1872 ruling.
The constitutionality of miscegenation laws came up again in Buchanan v. Warley, a
1917 case in which the Supreme Court determined that municipal zoning ordinances
segregating residential housing patterns by race violated the Fourteenth Amendment.
In presenting their arguments before the Court, proponents of such ordinances had
insisted that these regulations were just another expression of a state's police power,
like other segregation laws, and such 'laws have existed for many years separating black
from white in schools, in railroad cars[,] and in the matter of marrying.' Opponents of
the ordinances conceded that the constitutional question was closed in education,
closed in transportation, and also closed in marriage, but they sought to distinguish
housing as a separate issue, one that hinged on property rights. And the Court accepted
the distinction.'^^
The Court's pro-segregation rulings did not inaugurate segregation, despite the
frequent assumptions that they did so. The decision in Plessy did not - could not -
precede passage of the Louisiana statute requiring segregated transit that was under
challenge in that case. And nowhere did Plessy inaugurate segregated schools, any more
than Pace inaugurated the antimiscegenation regime. What those rulings by the
nation's high court could do, and did, was thwart any prospective challenges on
64 P. Wallenstein
constitutional grounds of the sort that had been successful for a time in bringing down
the laws against interracial marriage in Texas and Alabama.
Constitutional law framed the era of Jim Crow segregation, which by the 1910s had
congealed around a narrow interpretation of the Fourteenth Amendment. Challenges
to the constitutionality of state-mandated segregation - typically on the basis of an
expanded understanding of the equal protection clause - emerged across the middle
third of the twentieth century. Among the major decisions undermining the
approaches in Pace v. Alabama and Plessy v. Ferguson were Brown v. Board (1954) in
public education and Loving Y. Virginia (1967) in marriage.

The Emergence of Segregation: Toward a New Model


This brief article is suggestive more than conclusive. Much remains to be done to flesh
out the patterns I have sketched here - to detail their development, their operations,
their connections, their significance. My book Tell the Court J Love My Wife does some
of that work; certainly it offers a framework of historical development and historical
interpretation, for states of the Northeast and the Far West as well as the Upper South
and the Lower South, and from the 1660s through the 1960s. Here I wish to totich on
the history, and the historiography, of Reconstruction and segregation, and howthe vari-
able and changing laws of race and marriage might fit into that history and that literature.
With respect to miscegenation laws, the southern states followed varying trajectories
through the first postwar decades. By the 1890s, however, they had all arrived at more
or less the same place. The latitudinarian interlude, such as it was in those states where
it developed, proved fairly brief. But what happened in those intervening years
suggested the range of possibilities after slavery ended, after Congress changed at least
some of the rules, and after black southerners acquired political rights. Those votes
translated into black members of state legislatures and also into Republican judges on
appellate courts, thus making possible one or the other of the two means by which
miscegenation laws were terminated for a time.
When viewed from the perspective of interracial marriage, what C. Vann Woodward
termed 'the strange career of Jim Crow' takes on contours that contrast with all
conventional notions of post-Civil War racial policy.^^ In Mississippi in particular, the
draconian new policy - not only the ban but also the penalty of life in prison - came
swiftly after the Confederacy's defeat and slavery's abolition. Marital segregation was
put in place right away. But it did not stay. Rather - soon after Congress took over the
reins of power and policymaking and inaugurated Congressional Reconstruction, soon
after black men gained political rights in Mississippi - marital apartheid dropped from
the Mississippi law books for a number of years. Then it returned.
As we have seen, Mississippi can serve pretty well as a proxy for the entire Lower
South - every one of the seven original states of the Confederacy except for Georgia. So
let's turn now to the place of miscegenation in the larger history, and historiography,
of Reconstruction and the emergence of segregation. In this venture, Charles W.
Chesnutt's observation in 1888, that only in education and marriage had segregation
gone very far at that point, can guide us as we seek a new model.
American Nineteenth Century History 65
To begin with, it seems essential that we broaden the conversation about segregation
to address it in three main sites - train cars, schoolhouses, and private dwellings. First,
the three sites of segregation meant different things. Segregation on railroads - and,
later, on buses - inconvenienced, angered, and humiliated countless black southerners
on something of an everyday basis; Rosa Parks comes to mind, together with the black
community's collective response to her experience one day in late 1955 in
Montgomery, Alabama. Educational segregation - with a set of schools having only
black students and, before long, only black teachers - v^as a different matter, for it could
provide the basis for promoting communal identity and occupational opportunity
among black southerners. As for interracial marriage, in contrast to segregation at a
train seat or a school desk, segregated access in marriage utterly prohibited the right of
two individuals who loved each other to marry each other across certain boundaries of
racial identity. To them, 'separate but equal' offered nothing.
Second, racial segregation had a very different time line in marriage than it did in
education or transportation. Historians have long argued about 'the strange career of
Jim Crow.' Emphasizing public transportation - railroads in particular - C. Vann
Woodward discerned that legally mandated segregation emerged toward the end of
the nineteenth century, after a generation of relative fluidity after the Civil War.
Focusing instead on such matters as public education - elementary schools for black
southerners started out segregated after the war and stayed that way - Howard N.
Rabinowitz spoke of a quick transition 'from exclusion to segregation' with no inter-
mediate stage of integration.^^
Marriage exhibited just such an intermediate stage. Marriage resembled schooling in
the quick emergence of a universal ban throughout the South on black-white marriage
in the immediate aftermath of the Civil War and the end of slavery. Yet marriage and
education quickly diverged, as Reconstruction brought a suspension of the legal
restrictions against interracial marriage in most states of the former Confederacy in
general and the Lower South in particular. Yet the law of race and marriage resembled
the transportation model in that, after that time of relaxation, the end of the nineteenth
century brought universal laws against interracial marriage in the South. Louisiana in
1890 enacted the new transportation law that, when challenged, led to Plessy v.
Ferguson. In 1894, two years before the Supreme Court's ruling in Plessy, Louisiana also
restored its miscegenation law.
A fourth pillar of Jim Crow, black disfranchisement, has a powerful relationship to
these other dimensions. Public schools for black southerners accompanied the begin-
nings of black suffrage, and segregated transportation accompanied the sharp drop in
black voting later in the century. Perhaps not surprisingly, the trajectory of the right
to vote most closely tracked the suspension and re-emergence of the antimiscegena-
tion regime. Almost immediately after emancipation, in 1866, every Lower South
state had a law against interracial marriage, and no state permitted black suffrage.
Then came black suffrage in every southern state, soon followed by a suspension of
miscegenation laws in most Lower South states. By the end of the nineteenth century,
black voting had largely vanished, and the antimiscegenation regime was fully
restored.^^
66 P. Wallenstein

Segregation - or Not - through Four Eras

Let's review the significance of segregation through four eras - the generation preced-
ing 1865; the couple of years of Presidential Restoration; the decade ofthe 1870s, more
or less; and the first two-thirds of the twentieth century. Segregation may or may not
be a useful construct with respect to railroads in the South before 1865.^^ Regardless, it
cannot help much in marriage or education. Most black southerners before 1865 were
enslaved, and those who were not nonetheless suffered many of the same legal disabil-
ities. Across the Lower South before the Civil War, legally recognized marriage was
primarily for free people who were white; and so was access to the region's schools.
Georgia and South Carolina were among the states that enacted laws banning anyone
from teaching black residents, slave or free, to read or write.^^
True, free people of color could usually marry, but they could not enter legally bind-
ing marital relationships with slaves; many states, though not all, barred their marriage
with whites; and the Georgia Supreme Court went so far as to construe to the vanishing
point the distinction in privileges between slaves and free blacks in that state. In Bryan
V. Walton, an 1853 ruling that prefigured the Dred Scott decision four years later. Chief
Justice Joseph Henry Lumpkin argued that liberty for black Georgians 'signifies noth-
ing but exemption fi'om involuntary service.' Rather, for a black resident 'to become a
citizen of the body politic, capable of contracting, of marrying, of voting, requires
something more than the mere act' of manumission, it required a statute conferring
such privileges.^^
Emancipation was followed, almost immediately, with universal rights to marry and
to attend school, but in both cases on a strictly segregated basis. Then that regime changed
abruptly, too. In the 1870s, most Lower South states abandoned the legal requirement
that people marry only if they shared a racial identity, and a few schools were desegregated
then as well - the University of South Carolina; elementary schools in New Orleans.^''
By a generation later, around 1900, legally mandated segregation was universal across
the Lower South in marriage, in education, and in transportation. The Supreme Court's
opinion in Plessy in 1896 recognized that triple fact - and in effect confirmed its consti-
tutionality, not only in transportation but also in education and marriage.
The marriage model recalls Woodward's observation that segregation was not the
inflexible rule, fully in place at all times and places in the post-Civil War South,
although things eventually came to appear as though they had. Woodward observed,
'always been that way.'^' The rulings by state supreme courts - in Alabama, in Texas -
that, for a time, overturned miscegenation laws have often proved invisible. Statements
in the literature, that nothing ofthe sort ever happened, are legion.^^ Yet those rulings,
together with legislative repeal of miscegenation laws in various Lower South states in
the 1870s, point toward a significant reconsideration ofthe contours of both Recon-
struction and segregation.

Charting an Alternative Research Path


This articles charts multiple timelines in the emergence of a mature Jim Crow system -
in education, in transportation, and in marriage. Thus it broadens the working
American Nineteenth Century History 67
definition of segregation, applying it to more facets of life and law than the literature
conventionally does. And thus, too, it raises new questions to be pursued in subsequent
scholarly work.
Writing during World War II, sociologist Gunnar Myrdal and his colleagues in the
American Dilemma project summarized what they saw as the contrasting priorities that
black and white Americans perceived in the maintenance of Jim Crow and in resistance
to it. What they termed 'the white man's rank order of discriminations' placed sex or
marriage between white women and black men at the top of the list, followed by such
personal behavior as shaking hands or eating together; segregation in schools, in
churches, and in public transportation; political disfranchisement; discrimination by
police and in courts; and discrimination in such matters of material well-being as
employment, credit, and public relief. By contrast, African Americans' rank order
placed jobs first, then justice in the courts; the right to vote; schools and other public
facilities; 'civil courtesies'; and dead last, interracial marriage.^^
Myrdal's catalogue is suggestive regarding the emerging Civil Rights Movement, as
proponents of change contested the forces of the status quo. Moreover, that catalogue
- those two very different lists of priorities - can help guide an inquiry into the original
establishment of Jim Crow. What dimensions of Jim Crow did white southerners in
general strive most mightily to establish and maintain? What dimensions did black
southerners, in general, strive most urgently to resist or dismantle? How did the two
sets of imperatives play out in the establishment and maintenance of- or in resistance
to - segregation in education, transportation, and marriage? That is, was transporta-
tion typically the last of the three facets to be formally segregated because whites had
least interest in securing it, or because blacks had the greatest interest in resisting it?
These questions are worth considering with respect to Reconstruction and segregation.
Most treatments of Reconstruction, like most treatments of segregation, pay little or
no attention to the law of race and marriage. Myrdal's placement of marriage at the top
of whites' 'rank order,' and at the bottom of blacks' concerns, is consistent with the
conventional wisdom on race relations in the South across time and space. All the more
reason for scholars to explore the ways in which the law of race and marriage was
contested in the Deep South in the final third of the nineteenth century. Myrdal's cata-
logue of black priorities in the 1940s should not deter scholars from examining black
social attitudes and political behavior in the earlier period. Ample evidence exists that
the issue was freighted with considerable symbolic value for blacks as well as whites.
How did black legislators act on the matter? How readily can we assume that they
reflected their black constituents' policy agenda? How did symbol and substance relate
to each other? Myrdal, after rendering his assessment of the dual lists of priorities, went
on to emphasize that African Americans took seriously the attitudes and laws against
interracial marriage, in that such approaches by white Americans dismissed all blacks
as acceptable candidates to full admission in society. Miscegenation laws served as an
index to black access and racial equality on all fronts, not just marriage.^''
How did the precipitous decline in black political power relate to the consolidation
of Jim Crow law in marriage as well as transportation? Black legislators in states where
they had the greatest numerical clout, in and out of the legislatures, acted against
68 P. Wallenstein
statutory segregation in marriage in South Carolina, in Mississippi, in Louisiana. In
South Carolina and Louisiana, they took some action to end segregation in education.
Key to any such action, of course, was black voting rights, the advent of which permit-
ted resistance against segregation laws and the decline of which permitted whites to
overcome such resistance.^^

Segregation on the Ground


It is one thing to trace legislative acts and judicial decisions, another to inquire as to the
behavior and agendas of individual legislators, litigants, attorneys, and judges. It is yet
another to trace the contest on the ground, as local individuals raised issues, pressed
their case, sought their own entry or sought to block others' entry into one institution
or situation or another. With regard to elementary schooling, for example, black citi-
zens and their representatives pushed first for access at all, then for black teachers
rather than white, and thus, one might say, a more complete segregation. What to push
for depended on the situation. When black parents sought the admission of their chil-
dren to Georgia's schools for deaf or blind youngsters, the schools appealed to the legis-
lature for funding to set up segregated facilities for black children, in much the way that
white legislators decided to put public money into a black institution, Atlanta
University, in order to 'protect the University [of Georgia] against Negro students.''^
Historian Joel Williamson has observed about southern policy makers that they
'perceived a necessity for designating some people as black and keeping those people
firmly separated from others called white.'^^ He has spoken, too, of whites' horror at
the specter of 'hidden' or 'invisible blackness,' such that a white couple's daughter
might marry a man who turned out to have African ancestry.^^ Mounting fears of such
'hidden blackness' can account for the move toward the 'one-drop' rule of black racial
identity, though it could never eradicate the fear itself- in fact might enhance the fear,
make certainty less attainable.
When the state of Florida suspended its miscegenation law in 1872, or restored it in
1881, what difference did it make, or when South Carolina dropped its ban and then
restored it? Dropping a ban, restoring it, leaving it off, leaving it on - any such action
presumably had consequences. So did the placement of the boundary that separated
one racial identity from another. A few straws in the wind suggest the broader implica-
tions of setting a boundary - at one place, or any other, or moving it in one direction
or another. In 1881, a black man named John Crav^ord and a woman whose racial
identity was at issue went on trial for contracting an interracial marriage. Knowing
about a law that prevented their marriage in North Carolina, they had moved across
the state line to South Carolina, where they had been assured there was no such legal
impediment to their marriage. Arrested, they had argued that she was mixed-race, not
white. A local white doctor who inspected her was perplexed as to whether she was
black or white, but the white jurors determined that she was white and both were guilty
of violating the recently restored prohibition against such a marriage as theirs.
Where to set the boundary, and how to apportion people to the appropriate side of
it, led to struggles in place after place, not only in the realm of marriage, of husband
American Nineteenth Century History 69
and wife, but also of children and the race-specific schools to which they should be
assigned. Citizens might change their minds as to how to classify a person, or the law
might be amended, and either change had consequences. The time came in South
Carolina when the children of a couple, one of whose parents was viewed as white -
and the other of so little black ancestry as to qualify as white for purposes of marriage
- were barred from the white schools they had previously attended. Many white
couples in the community had determined that they would no longer permit their
children to attend school with their former classmates, and the state supreme court
upheld the remedy, reached by local officials, of establishing a third category of school
'for the Kirby children and those in the same class with them.' A case that reached the
Alabama Supreme Court reflected a recently revised law of racial identity's implica-
tions for attendance at public schools. Samuel Farmer's children, who used to be clas-
sified as white, were no longer and must attend the local black school instead. In both
cases, at least some people had resisted a reclassification, but they had been unable to

In Mississippi, ethnic Chinese children remained, for many years, on the nonwhite
side of the racial boundary, and a 1920s Supreme Court decision, GongLum v. Rice, left
authorities empowered to keep them there. Increasingly, however, during the second
quarter of the twentieth century, they were able to navigate their way across the racial
divide and attend white schools. The process happened one community at a time, and
it might include only Chinese Mississippians for whom it could confidently be said that
they had no African ancestry over the past generation or two or three. They were
nonwhite, but they were also nonblack. Mississippi law barred them from marrying
their white classmates, yet many Chinese Mississippians nonetheless went to school
with whites, not just at the elementary level but also in institutions of higher education,
including the University of Mississippi.^^
The best place to look for the juncture of racial classification and legal segregation
may well be the case that Homer Plessy took to the Supreme Court from Louisiana in
the 1890s. The 1900 census pegged him as 'mulatto,' not 'black,' and all seem to have
agreed that his features and coloration were such that the conductor would likely not
have ordered him to the black car had he not identified himself by racial identity. But
the law directed that railway cars be segregated, empowered railway employees to
determine racial identity, and required employees and passengers to comply with the
segregation statute.
Notably, the Supreme Court recognized the arbitrariness of the racial classification
without which the specific case before it could never have arisen. In the final paragraph
of the opinion, the Court observed:

It is true that the question of the proportion of colored blood necessary to constitute
a colored person, as distinguished from a white person, is one upon which there is a
difference of opinion in the different States.... But these are questions to be deter-
mined under the laws of each State and are not properly put in issue in this case.
Under the allegations of his petition it may undoubtedly become a question of
importance whether, under the laws of Louisiana, the petitioner belongs to the white
or colored "*^
70 P. Wallenstein

Here was the Court assuming that states had the authority to assign racial identity,
for only having done so could the matter of legislative discretion to segregate railway
cars arise. Indeed, only having determined that there ought to be a racial boundary, and
then having set it somewhere - or having conceded that a legislature had the authority
to make such determinations - was it possible to worry about the authority to send a
student to a 'white' school' or a 'colored' one; assign a passenger to a 'white' car or a
'colored' one; or tell two people that their planning to marry, or their having married,
was unacceptable under the law because they did not share a racial identity.
It may be worth recalling here the rhetoric employed by the Mississippi legislature in
criminalizing interracial marriage right after the Civil War, the defeat of the Confeder-
acy, and the abolition of slavery - language similar to what appeared in many states'
statutes across the Age of Jim Crow. Defined as a person who could not legally marry a
'white person' was someone who, if of mixed racial origins and even with mostly 'white'
forebears, 'descended from a negro to the third generation inclusive, though one ances-
tor of each generation may have been a white person.' To have any African ancestry
over the previous two and a half centuries, and still meet the legal criterion for inclusion
as white, one had to be no nearer than the great-grandchild of a biracial person, some-
one with one white parent and one black parent. And in every subsequent generation,
a mixed-race descendant of that original biracial person had to have married (or at least
had a child with) a white person. Having forebears who had each navigated that path -
who had each been accepted by a white partner, and by extension perhaps a white
family, a white community - meant that a mixed-race person in Mississippi in 1866
might legally marry a 'white' person. A traditional regional interrogatory comes to
mind: 'Who are your people?'

Racial Identity and Segregation


W.E.B. Du Bois said a lot when he observed: 'The black man is a person who must ride
"Jim Crow" in Georgia.'^^ He might, in similar fashion, have characterized a white man
as 'a person who can marry a white woman in Georgia' - though, like a 'white man', a
'white woman' might have been less certainly identified than a 'Jim Crow' train. How
people performed race, how they navigated the rules of race, how they assumed or
adopted racial identities, or had their racial identities thrust upon them, and with what
consequences - that is a central question in southern history.^^ That the rules varied is
perhaps the one thing certain about them. Their variability - how those rules changed
over time, and how they varied across space - is a key part of the story. So is how the
rules might govern one dimension of life, but not another.
In the Reconstruction and early Jim Crow eras, racial identity was somewhat plastic,
changeable - just as, for a time, at least, the basic policies were. Under the official rules,
however, racial identity could be changed only by the authority that had imposed it in
the first place, not by a person who opted for another category, though that happened
too - enhancing the uncertainty concerning anyone's identity. How the rules of race
governed a person might depend on who that person was, but it surely depended on
where the question was raised, and when; and if the question occurred, what the
American Nineteenth Century History 71
situation was. And that chronic uncertainty can take us back to Reconstruction and Jim
Crow, to reconsider the post-Civil War development of the law of race in its many
facets.

ACKNOWLEDGMENTS
An earlier version of this essay was presented as a paper at an annual meeting of the
Southern Historical Association, in Baltimore, Maryland, 8 November 2002.1 wish to
express my appreciation for Jane Dailey's astute suggestions as to how to convert that
paper into this article.

Notes
[1] Chesnutt, 'What Is a White Man?' The Independent 41 (30 May 1889), reprinted in Sollors,
ed., Interracialism, 37-42.
[2] Williamson, After Slavery, 297; Wallenstein, 'Higher Education and Civil Rights,' 5-7, 19n.l2.
[3] The notion that the 'one-drop' rule prevailed everywhere and at all times is clearly not consis-
tent with Chesnutt's observations regarding South Carolina in the 1880s; nor is it consistent
with the Mississippi law then, nor with that law's counterparts in other states in the nine-
teenth century. Alabama and Georgia, for example, set it at one-eighth in 1866, but, in the
twentieth century, they tightened the requirement to be classified as white; by 1927, both
adopted the 'one-drop' rule. Indeed, the 'one-drop' definition came to permeate the culture
as wfell as the law, as people of all racial backgrounds, in the South and elsewhere, adopted it as
a given; see F. James Davis, Who Is Black?. Yet, though a number of southern states had legis-
lated the 'one-drop' rule by 1927, not all had, and certainly not all had done so 'by the end of
the nineteenth century,' as stated in Fairclough, Better Day Coming, 26. Such erroneous state-
ments are widespread; see, for example, Moran, Interracial Intimacy, 21, 25-7. For a tabular
presentation of all (or almost all) the changes in every state's miscegenation laws, see Fowler,
Northern Attitudes towards Interracial Marriage, appendix.
[4] Mississippi, Laws (1865), 82 (ch. IV, sec, 3); Wharton, The Negro in Mississippi, 87, 227-8.
Stated another way, the 1865 law defined interracial marriage as involving a white person and
a nonwhite, with the boundary set at one-eighth, so that anyone with a black great-grandparent
was also nonwhite.
[5] For an extended discussion of the Black Code, see Harris, Presidential Reconstruction in
Mississippi, chapters 7-8. For the larger context, see Foner, Reconstruction, chapter 5.
[6] Foner, Reconstruction, chapters 6-8; Harris, 'Blanche K. Bruce of Mississippi: Conservative
Assimilationist,' in Rabinowitz, ed.. Southern Black Leaders, chapter 1; Christopher, America's
Black Congressmen, chapters 1-2.
[7] Mississippi, Laws (1870), 73 (ch, x, sec. 2); Wharton, Negro in Mississippi, pp.228-9; Frankel,
Freedom's Women, pp,113-15.
[8] Wharton, Negro in Mississippi, 229; Loving v. Virginia, 388 U.S. 1 (1967). For an extended
discussion of such matters, in Mississippi and throughout the nation, see Wallenstein, Tell the
Court. In assigning racial identity, the 1880 law set the boundary at one-fourth black - a
person with three Caucasian grandparents, and one African grandparent, was black. The 1890
constitution returned the racial boundary to one-eighth black, where it had been set in 1865.
On the ground. Loving did not immediately transform the law in the Lower South; it took
considerable legal wrangling in 1970 for a black-white couple to overcome the obstacles to
obtaining a marriage license in Mississippi, and similar post-Lovmg tussles occurred
elsewhere; see Wallenstein, Tell the Court, 234-6.
72 P. Wallenstein

[9] Scoff V. Sandford, 60 U.S. 393 (1857); Finkelman, ed., Dred Scott v. Sandford; Foner, Recon-
struction, 239-51.
[10] Burns v. State, 48 Ala. 195,197-8 (1872); Wallenstein, Tell the Court, 73.
[11] Bonds V. Foster, 36 Tex. 68, 69-70 (1871-72); Harf v. Hoss and Elder, 26 La. Ann. 90, 91, 93-
4, 97 (1874); Wallenstein, Tell the Court, 84-92. For more on Texas, see Robinson, 'The
Antimiscegenation Conversation, 38-76; that dissertation has since been published as
Dangerous Liaisons: Sex and Love in the Segregated South (Fayetteville: University of Arkansas
Press, 2003), but in a format no longer organized by states. For more on Louisiana, see
Dominguez, White by Definition, 23-55, and Robinson, 'Antimiscegenation Conversation,'
111-42.
[12] Bardaglio, Reconstructing the Household, 289 note 19. Foner, Reconstruction, is a masterful
synthesis; yet, as a synthesis, it could hardly go very far beyond what the literature offered at
the time it was written; and it gives only two brief mentions of 'interracial marriage' (321, 430)
- both, it is worth noting, from primary sources, not secondary ones. For examples of more
recent studies that bring gender as well as race front and center to Reconstruction historiogra-
phy, see (aside from Bardaglio's book) Edwards, Gendered Strife and Confusion, and Dailey,
Before Jim Crow. For an extended discussion of miscegenation laws and Reconstruction, see
Wallenstein, TeU the Court, especially chapters 4-8.
[13] Bardaglio, Reconstructing the Household, 289 note 19; Palmer, 'Miscegenation as an Issue,
99-119.
[14] Scoff V. State, 39 Ga. 321, 323, 326 (1869), Wallenstein, Tell the Court, 96-7.
[15] Hoovers. State, 59 Ala. 57, 60 (1878); Wallenstein, Tell the Court, 77-8.
[16] A number of recent studies of Reconstruction have looked to push out its temporal bound-
aries to reach beyond historians' conventionally preferred year of 1877; excellent examples,
again, are Edwards's Gendered Strife and Confusion and Dailey's Before Jim Crow, as well as
Hahn, A Nation under Our Feet.
[17] Pace V. Alabama, 106 U.S. 583, 585 (1883); Wallenstein, Tell the Court, 110-14; Przybysze-
wski. The Republic according to John Marshall Harlan, 86-7, 109-17. See also Currie, The
Constitution in the Supreme Court, 387-90, and Howard, The Shifting Wind: The Supreme
Court and Civil Rights from Reconstruction to Brown, 1345, 138, 187.
[18] Maynard v. Hill, 125 U.S. 190, 205 (1888). The Maynard doctrine was acknowledged - but
rejected regarding racial identity and the Fourteenth Amendment - in Loving v. Virginia, 7.
[19] Maynard v. Hill, 209, 211; Wallenstein, Tell the Court, 114-16.
[20] Plessyv. Ferguson, 163 U.S. 537, 540, 545, 551 (1896); Wallenstein, Tell the Court, 117-19. For
further detail, see Lofgren, The Plessy Case-, Woodward, 'The Case of the Louisiana Traveler,'
157-74; Olsen, ed.. The Thin Disguise-, Thomas, ed., Plessy v. Ferguson; Medley, We as Freemen-,
Fireside, Separate and Unequal. For further analysis, see Minter, 'The Failure of Freedom,
993-1009; Mack, 'Law, Society, Identity,' 993-1009; and Weike, Recasting American Liberty,
especially chapter 9.
[21] Sickels, author of Race, Marriage, and the Law, until recently the fullest treatment of the
subject, writes: 'Until 1948, no state or federal court had found an antimiscegenation law
unconstitutional on any ground' (98). Similar assertions appear in such very different law
review articles as Pittman, 'The Fourteenth Amendment, 108, and Trosino, 'American
Wedding, 104, as well as in Spickard, Mixed Blood, 287 ('State and federal courts consistently
upheld antimiscegenation statutes'), and Kull, The Color-Blind Constitution, 275 note 27. For
a brief critical evaluation of Pittman, 'The Fourteenth Amendment,' see WaDenstein, Blue
Laws and Black Codes, 158-61, 246-7 notes 52, 55.
[22] Kurland and Casper, eds.. Landmark Briefs, 36, 76-7, 130, 158-60, 272-3, 436, 442; Buchanan
V. Warley, 245 U.S. 60 (1917). See also Rice, 'Residential Segregation by Law, 179-99; Delaney,
Race, Place, and the Law, chapter 5; and Howard, Shifting Wind, 184-94.
[23] Woodward, The Strange Career ofJim Crow (1955; third rev. ed.. New York: Oxford University
Press, 1974).
American Nineteenth Century History 73

[24] Woodward, Strange Career; Rabinowitz, Race Relations in the Urban South; Rabinowitz,
'Segregation and Reconstruction,' in Anderson and Moss Jr., eds., chapter 4. For an earlier
rebuttal to Woodward, insisting that 'by 1868, the physical color line had, for the most part,
already crystallized,' see Williamson, After Slavery, 298, though Williamson emphasizes
custom as much as law - in fact declares that 'the real color line lived in the minds of individ-
uals of each race' - and comments that 'during the Republican regime, it was breached only in
minor ways.' For a treatment of segregation once it had fully developed, with an emphasis on
the deepest South states of Georgia and Mississippi between 1890 and 1915, see Litwack,
Trouble in Mind, especially chapter 5.
[25] Kousser, The Shaping of Southern Politics; Keyssar, The Right to Vote, chapter 4; Perman,
Struggle for Mastery.
[26] See, for example, Fischer, The Segregation Struggle in Louisiana, chapter 1.
[27] Berlin, Slaves without Masters; Wallenstein, From Slave South to New South, chapter 8.
[28] Cornelius, 'When I Can Read My Title C/eor,'37-41; Wallenstein, From Slave South to New
South, 91.
[29] Bryan v. Walton, 14 Ga. 185, 201, 203 (1853); see Wallenstein, From Slave South to New South,
94.
[30] Harlan, 'Desegregation in New Orleans Public Schools, 663-75; Fischer, Segregation Struggle,
chapter 6.
[31] Woodward, Strange Career, xv. For a recent summary assessment of the history and the histo-
riography, see Smith, 'Segregation and the Age of Jim Grow,' 3-42, the introduction to his
edited collection of six essays (by Woodward, Williamson, Ayers, Rabinowitz, Welke, and
Litwack), When Did Southern Segregation Begin?.
[32] Reflecting a near consensus among earlier scholars (see note 20), William N. Eskridge Jr.
states in The Case for Same-Sex Marriage, 155: 'Legal challenges to state antimiscegenation
laws in the nineteenth century were uniformly rejected under both federal and state consti-
tutions.' The same author refers (108) to 'different-race marriages, which had never been
allowed in the South' before the Loving decision was handed down in 1967. To the
contrary, there had been a time in every colony before black-white marriages were banned;
though all southern states had miscegenation laws by 1865-66, there followed an interlude
in seven of them, before all southern states had them again for much of the twentieth
century.
[33] Myrdal et al.. An American Dilemma, vol. 1, The Negro in a White Nation, 60-1.
[34] Ibid., pp.61-7.
[35] See Fischer, Segregation Struggle; Vincent, Black Legislators in Louisiana during Reconstruction;
Dailey, Before Jim Crow, 84-102.
[36] Rabinowitz, The First New South, 1865-1920, 136-7; Wallenstein, From Slave South to New
South, 149-50, 163. See also Dailey, Before Jim Crow, 97-102.
[37] Williamson, A Rage for Order, 287.
[38] Ibid., 228; Williamson, New People, 98, 103. For recent surveys, see Rabinowitz, First New
South, chapter 3, and Ayers, The Promise of the New South, chapter 6. Harris writes: 'White
supremacy was a product in part of class advantage, in part of fears about gender relations';
see his Deep Souths, especially chapters 2 and 5, quotation, 70. Jane Dailey writes of white
southerners' worried perceptions of links between sexual equality and political equality,
between 'suffrage and sex' (Before Jim Crow, 87).
[39] Wallenstein, Tell the Court, 147-9.
[40] Tucker v. Blease, 97 S.G. 303, 330 (1914); State ex rel. Farmer v. Board of School Commissioners
of Mobile County, 226 Ala. 62 (1933).
[41] Gong Lum v. Rice, 275 U.S. 76 (1927); Loewen, Mississippi Chinese: Between Black and White;
student yearbooks and student directories at Mississippi State University, the University of
Mississippi, and the University of Southern Mississippi; and Wallenstein, 'Black Southerners
and Non-Black Universities, 125.
74 P. Wallenstein
[42] Plessyv. Ferguson, 552.
[43] Du Bois quoted in Dailey, Before Jim Crow, 133. For an appellate court opinion that reviews
state laws on racial identity, and considers the difficulties of assigning racial identity under the
law, see Sfflfe v. Treadaway, 126 La. 300 (1910).
[44] Williamson, Rage for Order, 250; Cross, 'Litigating Whiteness, 109-88. For assessments of
black racial identity, and of post-Civil War race relations from black perspectives, see Hahn, A
Nation under Our Feet, chapters 4-9; Bruce, Black American Writing from the Nadir, and Bay,
The White Image in the Black Mind, chapters 3 and 6.

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