Race, Forgetting, and the Law

by Sara Mayeux

Peggy Pascoe's What Comes Naturally: Miscegenation Law and the Making of Race in America is a tour-de-force of archival research, bringing to light countless criminal prosecutions, civil cases, and bureaucratic decisions through which miscegenation laws were enforced not just in the South but throughout the nation; and not just in the deep past, but well into my parents' lifetimes; and not just between blacks and whites but between blacks and whites and Japanese and Filipinos and Mexicans..... the list could go on. The book spans the 1860s through the 1960s, with a focus on the less-well-known story of race-based marriage laws in the Western states, including California.

Throughout, Pascoe is attentive not just to ideologies of race but also to ideologies of gender, and the complex interactions between them. This history is not, she insists, simple, and "interracial couples should be relieved of the burden of having to stand as one-dimensional heroes and heroines." Many, like the now-famous Lovings, wanted mostly to be left alone. "Mr. Cohen," Richard Loving told his Supreme Court advocate, "tell the Court I love my wife, and it is just unfair that I can't live with her in Virginia."

One of Pascoe's themes is the role that forgetting plays in the law. In the years immediately following the Civil War, some state courts had upheld interracial marriages (typically in cases involving a white husband whose privileges and property rights the courts wanted to protect), and some states had repealed their antebellum anti-miscegenation laws. But this was all quickly forgotten. After legislators had reinstated the laws and judges had overturned or simply abandoned the earlier rulings, bans on interracial marriage came to seem, to almost everyone, "natural" and "traditional," the way it had always been.

Soon after Loving v. Virginia, Pascoe argues, America once again blocked out its recent past: "In little more than a generation, most White Americans somehow managed to forget how fundamental they had once believed these bans to be and, moreover, managed to persuade themselves that they, and their government, had always been firmly committed to civil rights and racial equality." In light of conversations we've had on this blog in recent days, I thought I'd quote Pascoe:

Every successive American racial regime, beginning with slavery, but continuing with the taking of the Indian lands, the establishment of segregation, and the development of American immigration restrictions, expended a great deal of energy making its racial notions appear so natural that they could not be comprehended as contradictions to a society ostensibly based on equality. The same point needs to be made about colorblindness, which needs to be seen not, as it is popularly constructed, as the celebrated end of racism but as a racial ideology of its own, one that can, like any racial project, be turned to the service of oppression.

So the conclusion I would draw is that if we should constantly be on guard against the charge that something is "unnatural" (whether it be interracial marriage in the 1890s or same-sex marriage in the 1990s), we should also be on guard against the belief that if white supremacy is the problem, then colorblindness must be the solution. Late-nineteenth-century white supremacists believed that there was no discrimination at all in the racial hierarchies they took as a natural given; to their minds, miscegenation laws were perfectly compatible with American notions of equality. This history shows that equality, like nature, should never be taken for granted.

Yesterday, I learned through the Legal History Blog that Pascoe passed away last week. In this short post, I cannot do justice to the full complexity of What Comes Naturally, but perhaps you will read it (or re-read it), as a tribute to Peggy Pascoe, "great scholar, teacher & mentor."