Author:Kenneth L. Karst

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The fear of racial mixture migrated to the New World with the earliest colonists. In 1609, planters headed for Virginia were reminded by a preacher of the injunction that "Abrams posteritie keepe to themselves." Of course, they did no such thing. From the beginning, there was a shortage of women; white men freely interbred with both Indian and black women, even before the great waves of slave importation. During the era of SLAVERY, interracial sex cut across all strata of the white male population, from the poorest indentured servants to the wealthiest planters. THOMAS JEFFERSON was merely the most celebrated of the latter. Mulattoes were, in fact, deliberately bred for the slave market. Miscegenation laws, forbidding an interracial couple to marry or live together, were not designed to prevent interracial sex but to prevent the transmission of wealth and status from white fathers to their interracial offspring. Laws governing ILLEGITIMACY served a similar purpose, particularly in southern states. To this day, a majority of "blacks" in the United States are of interracial descent.

The adoption of the FOURTEENTH AMENDMENT offered an obvious opportunity for the Supreme Court to hold miscegenation laws unconstitutional on EQUAL PROTECTION grounds. When the occasion arose in PACE V. ALABAMA (1883), however, the Court unanimously upheld such a law, saying that it applied equally to punish both white and black partners to an intimate relationship. The constitutional validity of miscegenation laws went largely unquestioned until the great mid-twentieth-century rediscovery of racial equality as the Fourteenth Amendment's central meaning. Following BROWN V. BOARD OF EDUCATION (1954), it was only a matter of time before the miscegenation issue would reach the Supreme Court. As it happened, the period of time was short. In Naim v. Naim (1955?1956) the Court fudged, dismissing an appeal in a jurisdictional evasion that Herbert Wechsler properly scored as "wholly without basis in the law." Unquestionably, the Court adopted this avoidance technique because of the political storm that had greeted the Brown decision. Playing on the white South's fear of race

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mixture was a standard scare tactic of politicians favoring SEGREGATION. Recognizing this fear, the NAACP, in planning its assault on segregated higher education, had deliberately chosen as its plaintiff in MCLAURIN V. OKLAHOMA STATE REGENTS (1950) a...

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