The Post-Civil War Reconstruction Era
In the immediate aftermath of the Civil War and more specifically the Fourteenth Amendment to the Constitution of the United States, passed in June 13, 1866, whereby Congress declared that all persons born or naturalized in the United States were citizens of the United States and shared equal rights, various states in the South began passing laws to preserve a now-fragile social structure. Beginning with President Lincoln’s Emancipation Proclamation of January 1, 1863, in which he declared liberated all slaves residing in states or territories then-rebelling against the federal government, the social ecology of the Southern states had begun to unravel. Whites faced a situation in which the black Americans who had largely been deemed property were now citizens, equal in the eyes of the law.
Nevertheless, white citizens sought to maintain control over their black counterparts. In an effort to preserve their society, Southern states in 1865 began to pass a series of laws, which varied by state and collectively became known as Black Codes. These laws were designed to exploit and control former slaves. For example, Freedmen (as freed black citizens became known) who were arrested for vagrancy could be contracted out for labor; Freedmen were, in some states, disallowed to raise their own crops, and were precluded from entering towns without permission. Most significantly perhaps, the Black Codes enacted penal codes containing differing penalties for black versus white citizens. These racially discriminating penalties were later outlawed upon the ratification of the Fourteenth Amendment and the enactment of the Reconstruction Acts.
Prohibiting the Intermarriage of Whites and Blacks
The two centuries of slavery that had existed prior to 1865 had created a caste system that largely protected the maintenance of racial diversity. With that barrier having been removed and the federal government attempting to institute legal racial equality, of primary concern to many was the preservation of the purity of the white race. In response, many states throughout the United States, largely regardless of geography, passed laws prohibiting the intermarriage of white and black citizens.
The only nine states never to have enacted anti-miscegenation laws are: New Jersey, New York, New Hampshire, Connecticut, Vermont, Wisconsin, Minnesota, Alaska, and Hawaii. Eleven states passed anti-miscegenation laws, but repealed them prior to 1887: Pennsylvania, Massachusetts, Rhode Island, Ohio, Illinois, Maine, Michigan, Iowa, Kansas, New Mexico, and Washington. Fourteen more states rescinded anti-miscegenation statutes between 1887 and 1967: Maryland, Indiana, California, Oregon, Nevada, Nebraska, Colorado, South Dakota, North Dakota, Montana, Idaho, Wyoming, Utah, and Arizona. In 1967, the Supreme Court of the United States held in Loving v. Virginia that laws prohibiting interracial marriage were unconstitutional, and as such any such existing laws were overturned. At the time of the Loving v. Virginia decision, sixteen states still had anti-miscegenation laws in effect: Delaware, Virginia, Georgia, South Carolina, North Carolina, Kentucky, Tennessee, Louisiana, Mississippi, Alabama, Missouri, Arkansas, Texas, Florida, West Virginia, and Oklahoma.
Alabama’s Anti-Miscegenation Statutes
The State of Alabama enacted the first of its anti-miscegenation statutes in the Penal Code of 1866:
If any white person and any negro, or the descendant of any negro, to the third generation inclusive, though one ancestor of each generation was a white person, intermarry, or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than two, nor more than seven years.[1]
The Alabama state legislature reinforced this statute in new penal codes that were enacted in 1867 (§ 3602), 1876 (§ 4189), 1886 (§ 4018), and 1896 (§ 5096). In 1901, Alabama drafted a new state constitution, wherein the anti-miscegenation statutes were made a part of the state constitution: “The legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.”[2] The final revisions to Alabama’s anti-miscegenation law were adopted in the Code of Alabama of 1940, which stated: “If any white person and any negro, or the descendant of any negro intermarry, or live in adultery or fornication with each other, each of them shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than seven years.”[3]
- Part 1, “A Short History of Anti-Miscegenation Statutes“
- Part 2, “Nullifying Black-White Marriage in Alabama“
- Part 3, “Pace v. Alabama: Upholding Racial Classification at the Supreme Court“
- Part 4, “Repeat Offender: The Saga of Jesse Williams“
- Part 5, “Courts Move against Racial Classification and toward Interracial Marriage“
- Part 6, “Loving v. Virginia: An End to Interracial Marriage Bans“
- Part 7, “2001, A Race Odyssey: Alabama’s Anti-Miscegenation Statute is Repealed“
[1] Alabama Penal Code of 1866 § 61.
[2] Constitution of Alabama of 1901 § 102, Art.4. To date, the State of Alabama continues to be governed by the Constitution of Alabama of 1901, though there are strong efforts among many intellectuals and politicians to draft a new state constitution on account of the arcane language and ideologies contained in the Constitution of Alabama of 1901.
[3] Code of Alabama, Title 14, § 360 (1940).
This article first appeared in The Alabama Review, Vol 68, No. 4 (October 2015).
Photo by Daniel Goodwin.
