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Novkov, RACIAL UNION

By Jack M. Balkin

Professor Julie Novkov?s, Racial Union: Law, Intimacy, and the White State in Alabama 1865-1954 is a fascinating study of American racism that belongs with C. Vann Woodward?s The Strange Career of Jim Crow on the bookshelves of all persons interested in American political development, law and society, and the nature of race relationships in the United States. Woodward famously demonstrated that Jim Crow was not an inevitable consequence of the Civil War and the end of Reconstruction, that white supremacy in the post-Reconstruction South had many different manifestations. Novkov similarly, and as effectively, demonstrates that Jim Crow was not a monolithic system of racial subordination, that important political struggles took place in Alabama over the implementation and meaning of white supremacy even after separation of the races become a political axiom. Her analysis of appellate court appeals challenging the legality of miscegenation convictions provides a fascinating window into those struggles.

White supremacy, Racial Union convincing demonstrates, never meant white persons always won in courts when a person of color was on the other side. Surprisingly, persons of color do fairly well in the Alabama Supreme Court when challenging their convictions for marrying or carrying on an intimate relationship with a white person. The Alabama Supreme Court set aside convictions for miscegenation when the evidence did not demonstrate that the persons of different races involved in a sexual encounter intended an intimate relationship, when the conviction was based on hearsay evidence, and when the evidence that the persons were of different races was insufficient. One lesson these cases teach is legality matters. When prosecutors failed to prove an element of racial offenses, racist justices freed persons convicted at trial. Another lesson is that racism was better understood in terms of certain norms of behavior than simply whites triumphing over persons of color no matter what. White judges often found persons of color who behaved consistently with racial stereotypes more believable than white persons who challenged racial norms. An African-American mid-wife who claimed to be able to tell the race of babies at birth is considered trustworthy, when white women with non-traditional sexual histories are not. A conviction for miscegenation is reversed when the behavior of the person of color is consistent with that of the loyal servant taking care of the sick child.

These struggles between prosecutors and appellate courts reveal certain tensions in the structure of white supremacy in Jim Crow Alabama. Some tensions are over what should be punished. Legal actors debate whether all sexual contacts between white persons and persons of color should be sanctioned or only intimate relationships. Others are over how one determines race, whether one needs detailed genealogical studies (often not available to judges) or whether folk wisdom (looks black to me and does not hang out with white people) will do. Most important are the struggles between elite and populist versions of racism. Courts are consistently doing battle with the Klan perspectives, particularly during the 1920s and 1930s. Novkov brilliantly documents how convictions were set aside when prosecutors in miscegenation cases made appeals to race prejudice. Such appeals, justices insisted, had no place in a legal system. They were defending an elite, sanitized version of white supremacy, enforced by courts as opposed to the lynch mob. Indeed, one sees elite justices often rather unconcerned with racial mixing in the lower classes, but very concerned that affluent white men be allowed to will their property to whomever they please.

Racial Unions provides an alternative narrative to the origins of color-blindness in the United States. While Chief Justice Roberts and company highlight the origins of race neutral language in NAACP attempts to overthrow Jim Crow, Novkov convincing demonstrates that color-blindness, paradoxically, became a crucial principle that southern elites claimed was central to the legal effort to maintain white supremacy. Alabama elites sought a "kinder, gentler" racism. Bans on racial invective in courts and demands that racial offenses be proved consistently with established rules of evidence, in their view, would demonstrate that Jim Crow was consistent with the most civilized legal standards. By providing this wonderful history of the role legality played in maintaining a brutal system, Novkov provides vital perspectives on the extent to which legality presently is a cure or mask for oppression.

Full post as published by Balkinization on March 23, 2008 (boomark / email).