| Reviews / Comptes Rendus | Labour/Le Travail, 59

Reviews / Comptes Rendus

Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage and Law — An American History (New York: Palgrave Macmillan 2004)

AS THE TITLE suggests, this is an ambitious work which narrates a national story of the history of interracial marriage in the United States from the colonial era until the early 21st century, the heart of the analysis focusing on the era "between the 1860s and the 1960s, from the Civil War to the Civil Rights movement." (5) Wallenstein's book is a study of race, sex, and the law in the United States over a century through the prism of laws which forbade marriage across colour lines. His central argument is that the story of race, law, and marriage is one of how state power, exercised through its imposition of a restrictive definition of race and marriage, was both imposed upon and resisted by those who attempted to marry across the colour line. Wallenstein has coined the rather creative term, the "anti-miscegenation regime," to explain this history. (7, 9)

Beginning his analysis in the colonial Chesapeake, in the first two chapters Wallenstein fleshes out the laws governing race, sex, and marriage during this period. The author provides a nuanced portrait of the prevalent definitions of "race" and how they in turn affected who was lawfully entitled to marry whom. Here we learn that this story was not a case of a simple black/white binary but something far more complex, a triangulated racial context where "whites," both male and female, produced children with Native Americans and people of African descent. (14) These dalliances across the colour line created a society where African blood did not automatically consign one to a condition of servitude despite the best efforts of colonial assemblies. After 1662 Virginia and Maryland decreed that children would inherit the status of their mothers, irrespective of paternity, in order to ensure the enslavement of the product of unions between slave owners and their female slaves. Thirty years later these colonies seized upon the racial regulation of the institution of marriage for the "prevention of that abominable mixture and spurious issue...as well by Negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawful accompanying with one another." (15) By the early 1660s, laws targeted white women who married across the colour line; those who did faced the wrath of the law in the form of banishment, or worse, the terms of their servitude could be adjusted from seven years to between 30 years and lifetime servitude — in effect slavery — along with legal denigration from whiteness to blackness. To further complicate this picture these laws were repealed some seventeen years later. (23) In the midst of this shifting landscape of race, slavery, and freedom, the bonded children of such unions turned to the courts to decide their legal status, some of whom were consigned to long-term servitude while others secured their freedom depending upon when they were born and the letter of the law at that exact time. Virginians who were born into slavery during this era also staked claims for freedom based on their matrilineal Indian ancestry. (28)

Wallenstein then traces the history of the anti-miscegenation regime over several watershed periods: the Early Republic until the Civil War, Reconstruction, the inter-war period, the post-World War II era and the Civil Rights age. Throughout the North and the South, the colonial tradition of the legal prohibition of interracial marriage endured in the newly constituted nation emanating westward from the eastern seaboard. Over the course of the late 18th and early 19th centuries, 38 states enacted laws against interracial marriage. (49) Incendiary debates about interracial marriage also figured prominently within the larger racial questions of the era. The very term miscegenation was coined in the North during the Civil War and members of the fledgling Republican Party and the Democrats were united in their mutual disgust for the idea of racial amalgamation. After the Civil War, the 13th and 14th amendments called the legality of legal prohibitions of interracial marriage into question. The Reconstruction era witnessed challenges to states' (mostly Southern) laws against interracial marriage based on the 14th amendment's equal protection clause, (71) setting the pattern that would endure until the 1960s. Fascinatingly, we learn that during the Reconstruction era seven out of eleven former Confederate States did not ban interracial marriage. This interlude was reversed by the 1880s when a series of landmark cases determined that the equal protection clauses of the 14th amendment did not include the right to marry across the colour line. (108) As long as the penalties for violating racial marriage laws were applied equally to both (typically but not exclusively) whites and blacks alike, this, it was argued, upheld the legal principle of equal protection under the laws. The US Supreme Court also ruled that the regulation of marriage fell under the jurisdiction of the states. These legal principles were reinforced by the fateful Plessy v. Ferguson decision of 1896.

By the early 20th century, the anti-miscegenation regime further tightened its hold. One congressmen was so enraged by the sexual exploits of a black boxer named Jack Johnson, who was admired by and an admirer of white women, that he attempted to pass a national law prohibiting interracial marriage. In concert with efforts to craft national laws against interracial marriage, individual states began to tighten up the legal definition of whiteness, a development which had implications for the legality of many marriages and the laws of inheritance which only recognized the inheritance rights of the progeny of those who were legally married. (161) After World War II, the legal prohibitions against interracial marriage began to decline due to several main factors: the active involvement of Church organizations, hitherto reluctant civil rights organizations, and the US Supreme Court's decision to apply the logic of the 1954 Brown v. Board of Education of Topeka Kansas decision's interpretation of the equal protection clause as a guarantee of freedom from racial discrimination. The 1967 ruling in the Loving v. Virgina case included the right to marry a person of another race. (233) The struggle to define marriage in the US endures to this day around issues of sexuality. (259–260)

Even a book this impressive has flaws. First we are left to guess about important methodological questions. This book is based on numerous legal cases but we don't know, exactly, how Wallenstein generated his sample. Second, the "antimiscegenation regime" is far too dynamic a term to be contained within the institution of marriage; this regime necessarily encompassed a much wider terrain of race and sex. Surely the law was only one front where the opposition to race and sex in the US was mobilized. Curiously, Wallenstein gives lynching only a passing mention in this book. Only beyond the formal reach of the law, but nonetheless buttressed by it, could white Americans effectively police the full range of interracial sexual encounters — with intimidation, threats, menacing glances, and, ultimately, the rope. Perhaps in the future Wallenstein might consider the critical and symbiotic link between the legal and extra-legal governance of race and sex. These quibbles aside, this book is a tour de force. This is a very important book from a seasoned scholar at the height of his powers.


Barrington Walker Queen's University

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