A reappraisal of the constitutionality of miscegenation statutes

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Weinberger, Andrew D. “A reappraisal of the constitutionality of miscegenation statutes.” Journal of Negro education 26.4 (Autumn 1957): 435-446.


Although there are few direct references to North Carolina and the Lumbee, this article provides valuable perspectives for understanding the scope of state miscegenation statutes as well as the erroneous, prejudicial attitudes that brought them about.

The first miscegenation statute that applied to the Lumbee (not mentioned in this article) dates back to March 7, 1887. It is entitled “An act to amend section one thousand eight hundred and ten of The Code” (North Carolina Public Laws chapter 254 page 499). It states, “All marriages between an Indian and a Negro or between an Indian and a person of Negro descent to the third generation inclusive shall be utterly void. Provided, this act shall only apply to the Croatan Indians.” [Note: Croatan was the tribal name for the Lumbee at this time.]

A later statute, mentioned in this article (see Note 78, page 446), provides that intermarriage between a Cherokee Indian of Robeson County and a Negro or person of Negro descent to the third generation is prohibited (North Carolina General Statutes section 51-3 (1960)). [Note: Cherokee Indians of Robeson County was the tribal name for the Lumbee at this time.] This statute sounds as if it merely updates the 1887 law to reflect the change in the tribal name.Writing in 1957, Weinberger notes that there were 24 state statutes prohibiting various sorts of interracial marriage. All the statutes had been enforced by either the court of last resort or a lower court in their respective states. Besides Whites, the one racial group affected by every statute is Blacks. At least 14 states had already repealed their miscegenation statutes.

Weinberger addresses the assumption that these statutes serve to protect society from the ill effects of interracial marriage and, to meet that objective, are founded on scientific evidence that such protection is necessary. He outlines several arguments used to justify these laws. He effectively demonstrates that by 1957, a wealth of research was available to dispel any illusion of societal need for these statutes. Here are some of the arguments he discusses:

• The idea of “pure races”: Even by 1957, “the idea of ‘pure’ racial groups, either past or present, [had] long been abandoned by modern biological and social science” (p. 440). Weinberger quotes geneticist Dobzhansky, who wrote, in “The race concept in biology,” Scientific monthly February 1941: “The idea of a pure race is not even a legitimate abstraction; it is a subterfuge used to cloak one’s ignorance of the phenomenon of racial variation” (qtd. on page 440). A committee of twelve scientists was assembled by UNESCO to discuss this matter. In September 1952, they issued a Statement on the Nature of Race and Race Differences. Article 7 of their statement discusses “pure races”; it states, “There is no evidence for the existence of so-called ‘pure races.’ Skeletal remains provide the basis of our limited knowledge about earlier races. In regard to race mixture, the evidence points to the fact that human hybridization has been going on for an indefinite but considerable time. Indeed, one of the processes of race formation and race extinction or absorption is by means of hybridization between races. As there is no reliable evidence that disadvantageous effects are produced thereby, no biological justification exists for prohibiting intermarriage between persons of different races” (qtd. On pages 440-441).

• The assumption that interracial marriage results in biologically inferior children: To lay to rest this inaccurate belief, Weinberger quotes Stern in his Principles of human genetics (1949), whose review of the literature showed that “hardly any well-substantiated examples of disharmonious constitution resulting from miscegenation have been reported” (qtd. On page 441).

• The assumption that cultural level is dependent on racial attributes: Weinberger explains that race denotes only the physical, bio-genetic attributes of a group of people. Cultural features, as well as various types of accomplishments, are not tied to race; rather, they stem from other factors, including learning and education. He notes that physical and cultural anthropology have long held that culture (or behavior) is independent of race.

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