Julie Novkov is an associate professor of political science and women's studies at the University at Albany, SUNY. Her research explores the intersections of law, history, U.S. political development, and subordinated identity. Her first book, Constituting Workers, Protecting Women (Ann Arbor: University of Michigan Press 2001), addressed gender and constitutional development. Her book Racial Union: Law, Intimacy, and the White State in Alabama 1865–1954, forthcoming in 2008, investigates the rise of white supremacy by looking at the history of Alabama's efforts from the Civil War to the civil rights era to suppress interracial sexual intimacy. She has also published several articles, book chapters, and book reviews, and has two co-edited volumes forthcoming in 2008.
Thinking about political and constitutional development in the United States has flowered in the past fifteen years, raising significant new questions about the role of porous institutions in shaping the way that the state has changed over time. Inquiries in this field trace paths of development, detailing the moments of contingency and problematizing the relationship between institutional constraints and individual agency. In doing so, scholars have illuminated the role of subordination and the construction and political uses of ascriptive conceptions of citizenship as key features of the U.S. state.
Contemporary discussions of liberalism and its legacies in the United States have traced the political history of racial and gender-based exclusion from full citizenship. A set of crucial questions has emerged from these discussions. How has the structure of the state depended upon these exclusions, and how have the challenges of incorporating subordinated individuals influenced development at key moments? To what extent is exclusionary citizenship based on ascriptive categories a necessary component in building the modern liberal state? How have racial orders and gendered citizenship shaped the development and implementation of policy and bureaucracy across the board? How have legal developments identifying particular groups through markers of inferiority and unfitness for full citizenship contributed to the formation of subordinated group identities? What can tracing the archaeology of the state's regulation of access to full citizenship reveal about the legacy of subordination for people of color, for women, and for other groups who continue to struggle for recognition and power? And can the insights derived from answering these questions be turned around to illuminate other aspects of development that otherwise would remain obscure, both on the state and federal levels?
Scholars have necessarily studied the emergence of the nation-state and its dynamic relationship to citizenship on the national level, through a focus on how the law has defined citizenship in a formal and institutional sense. The law, as created by Congress, applied administratively, and interpreted by the federal courts, provides an easily studied marker of how citizenship has changed over time in relation to legal definition and debate. Further, legal and constitutional debates over citizenship often interact with the development of institutions, as citizenship and the development of the modern state have shared a symbiotic relationship.1 The study of constitutional and legal change thus illuminates both citizenship and the development of institutions.
This article argues that studying the dynamics of citizenship on the state level as well can generate new insights about how shifts in the meaning and scope of citizenship influence development in the United States. Studies have established the significance of the relationship among national institutions, citizenship, and subordinated identities.2 Recent work within and outside of political science has also begun to link questions of culture and identity to questions of structure and institutions. Moving this discussion to the state level will yield several insights. First, it will enrich our understanding of how legal developments have facilitated the generation of subordinated group identities and shaped the opportunities for members of these groups to participate in the state as citizens. Second, it will help to fill out the national picture by focusing directly on the struggles that have in many cases shaped the form and content of national action. Third, it will show how trajectories in the states have traced developmental paths that continue to shape contemporary political and social controversies over identity and citizenship. Finally, now that a robust form of federalism has reemerged, the study of historic practices of state governance can provide trenchant insights about contemporary problems, thereby taking up Paul Pierson's call not to "hive off" historicism from the main, contemporary ground of U.S. politics.3 In particular, historical institutionalists who study the courts should not be slow to follow their quantitative and formal colleagues to the state courthouses and constitutions for new insights, bringing careful historical analysis of legal doctrinal change and sociolegal developmental processes to state politics.
This call should not be taken to overlook or elide the significant body of research within the legal history tradition.4 A brief summary of this work highlights its salience for political scientists who study the courts but also shows where historically inclined political scientists are poised to contribute. Work from scholars in the legal history tradition, most recently Michael Klarman's analysis of the legal operation of Jim Crow on the ground, reveals the operation of law in shaping the everyday lives of subordinated individuals.5 Klarman's work falls within a tradition of empirical legal studies that consider state statutory and common law and policies closely, and raise questions about doctrinal and legal developments on the ground. This field is varied, ranging from studies of state-based welfare provisioning for citizens in the nineteenth century6 to considerations of state-based regulation of families and intimate relationships7 to analyses of struggles over regulating public transportation along gendered and racialized lines,8 to name only a few.
Political science, however, can bring critical considerations of state actors and their investments in processes of development to bear on questions of legal historical change. This approach illuminates how the framing of legal and constitutional policies around subordinated identity affects the state as it changes over time. Labor scholars in particular have conducted political analyses that attend to state-level legal development, starting with work in American political development on the use of common-law principles to block labor organization9 and extending through considerations of the law of boycotts and pickets. Further, Howard Schweber explicitly addresses political development on the state level in explaining the common-law development of citizenship.10 Nonetheless, focusing on the subnational legal and constitutional processes around subordinated identities can fill in narratives of development, legal change, and the relationship between states and their citizens in ways that are not reachable through other means.
This argument should not be mistaken as rejecting national studies either of the state's relationship to identity and citizenship or of political development more generally. The dominant narrative of political development has rightfully focused on nationalization and centralization. The path of development until recently has been toward increasing centralization and national-level laws and policies have bounded and defined citizenship, justifying scholarly work that has detailed this process.11 The twentieth century has properly been presented as a story of the expansion and extension of citizenship by the direct actions of national institutions, and studies of national policies regarding citizenship and race have enriched this picture substantially.12
Likewise, the social forces that have influenced development have operated nationally in many instances. In the early twentieth century, national organizations, including the ACLU and NAACP, emerged and began to address questions of civil rights. While such organizations necessarily worked with individual plaintiffs and defendants in particular states, they frequently litigated their claims with an eye toward federal policy and ultimately toward the U.S. Supreme Court.13 Likewise, the bargain between labor and capital struck in the 1930s was at the national level and with the institutional mediation of the national government; the deal was secured by the establishment of the national-level institutional backstops of the NLRB and the Wagner Act's labor standards.
Recent work in political science has also identified the Supreme Court as a crucial institution in national political development. While constitutional lawmaking clearly has symbolic significance and concretely affects doctrine, it also shapes public discourse about rights and their meanings. For instance, Ronald Kahn shows how constructed concepts of fundamental rights and their cultural embedding enabled a conservative court to uphold the right to choose abortion and advance rights for lesbians and gays.14 Likewise Thomas Keck demonstrates the contemporary rise of rights-conscious conservative attacks on affirmative action mobilized through reference to Supreme Court decision-making in the late 1970s.15 Constitutional theorists have also justifiably focused on national-level struggles during the late nineteenth and early twentieth centuries. Starting with Bruce Ackerman but running through political scientists' work as well is the argument that the post-Civil War era was a crucial moment of state consolidation and development as the nation simultaneously adjusted to the abolition of slavery and the rise of modern industrialism.16 Likewise, Klarman details the debate in studies of race and constitutional development in law in the twentieth century over whether the Supreme Court's rulings had concrete impacts in racially restructuring the states.17 This emerging literature has underlined the extent to which the transition from a "courts and parties" state to a modern state merely shifted the scope for influence on development exercised through the law from state-level struggle to national, constitutional adjudication. During the post-bellum years, federal accommodations generated largely through the struggles over industrialization and citizenship for people of color produced a governing regime that persisted in dynamic fashion until the New Deal. This regime reflected tensions over the proper role of the courts and other national institutions in shaping policies and issues that had traditionally been under state-level control.
The dynamic reconfiguration and expansion of citizenship on the national level between the end of the Civil War and the emergence of the mature welfare state has rightfully provoked examination. In this work, race has been both an element around which development took place and a factor influencing the shape of development, and this body of work on the whole suggests that reading the history of U.S. political development without incorporating race misses much.18 These discussions consider whether racism is an embedded feature of U.S. law and culture, questioning the extent to which the liberal polity depends upon or conflicts with ascriptive visions of race. Thus, historically inclined scholars have studied national debates about race in the context of citizenship, voting rights, immigration, and national defense, to name only a few issues.19 Certainly we cannot imagine the United States as it is now without the national historic choices, compromises, and betrayals concerning citizenship, suffrage, immigration, civil rights, criminal justice, and a host of other issues.
As studies of community power waned in political science after peaking in the 1970s, so too did vibrant debate over state and local politics.20 Until quite recently, few scholars outside of those studying policy generated major theoretical or empirical insights using the states as their source material. This is now changing as revitalized conceptions of federalism in the United States and devolution abroad have made political inroads.
Near the center of the new enthusiasm for state politics lie state law and state constitutions. In doctrinal studies, the 1980s saw pathbreakers Supreme Court Justice William Brennan and Oregon's then-Supreme Court justice Hans Linde promoting deep examinations of state constitutional law to circumvent conservative rulings by the U.S. Supreme Court.21 Other legal scholars and judges used state guarantees of privacy, equal protection, and equal education to generate more stringent standards than those mandated by the federal constitution as interpreted by the Rehnquist Court.22
In political science, the return to state law is more recent, though some scholars of political development have thoughtfully considered regions and municipalities.23 While legal historians have attended to implementation of state laws on the ground, considerations of state-centered legal institutions within political science have come largely in recent years from scholars like Melinda Gann Hall and Paul Brace, who are collecting and coding rulings from all of the states' highest appellate courts. The studies emerging from the state court database project reflect the cutting edge of behavioral approaches to judicial politics. The varieties of constitutional provisions, modes of judicial selection, ideological ranges, and other variables make the states a rich source of comparative data for these scholars, with the federal background establishing a common context. The political salience of these studies and others focusing on contemporary developments in the states is likely to be high in light of the recent controversy over the use of state equal protection clauses to ground arguments for same-sex marriage and other rights directed toward lesbians, gays, bisexuals, and the transgendered (LGBT).24
Left out, however, are historical studies of political and constitutional development on the state level. While legal historians have engaged with state-level doctrinal and legal transformations, little of this work has crept over into political science until recently. The reemergence of federalism and the shifting of salient and visible fights from the national level to the state level has raised the political significance of law on the state level and likely contributed to the new political science scholarship on the states. However, the largely attitudinal scholars who study the states in contemporary context do not historicize these questions.
Engagement with constitutional development—as opposed to purely historical analysis—on the state level can contribute significantly. We cannot understand the full relationship between the development of modern citizenship and the problem of subordinated identity without turning to the states, and the problem of subordinated identity, as King and Smith and others have argued, is central to understanding development in the United States generally. While analyzing regions, particularly the south and west, does enhance our understanding of variation in the developmental process, we must focus specifically upon the states as sovereign units and purveyors of distinctive authority over the lives of individual citizens. By considering state-based legal institutions, scholars can articulate the development of concrete citizenship more fully, and this narrative can be brought to bear in turn to understand the dynamics of citizenship as a force that has influenced legal change on the state level.
A Research Agenda for New Institutionalist Scholars: The Example of Racialization, Intimate Relations, and Family
The national focus of the literature on political and constitutional development misses the significant parallel process that took place in the states, which deserves study not as mere periphery or resistance to national development. Likewise, contemporary political science studies of state-level phenomena do not grapple with the roots of such phenomena and thus miss significant earlier developmental factors that have shaped the institutional context in which these phenomena occur. Most scholars accept the proposition that the modern United States emerged in significant part from the crucible of the years between the end of the Civil War and the rise of the New Deal. We simultaneously admit the proposition that political development relates to (and sometimes depends upon) the relationship between citizenship and subordinated identity. These propositions, taken together, require more focus on the institutional context where change and development were actively occurring during these years on these issues: the states. Using a historical institutionalist approach to consider state-level constitutional development and focusing on subordinated identity brings to the fore crucial insights about how the structure of boundaries around full membership in the civic community has influenced the trajectory of individual states.
To make the case for robust studies of political development on the state level, I sketch the example of the questions raised by moving state constitutional development from the periphery to the center in considering race and citizenship as their relationship shifted over time. Take, for instance, the period between the initiation of the Jim Crow racial regime and its transformation through the civil rights movement. Many studies that touch on race in discussing constitutional development within political science and doctrinal legal approaches analyze leading Supreme Court cases of the nineteenth century like Slaughter-House, the Civil Rights Cases, and Plessy, but largely portray the early twentieth century as a period of relative stasis in the U.S. Supreme Court.25 Other scholars, however, consider the late nineteenth and early twentieth centuries as a key period in the shifting relationship between race and the state.26 The impetus for the renegotiation of race on the state level was the bargain struck between north and south to reconcile the sectional tensions of the late nineteenth century, and this bargain was ultimately concretized in state constitutional terms that varied regionally.
Recent historical work has shown how the former belligerents negotiated and managed the cultural process of reconciliation, adding to the rich historical literature on the politics of Reconstruction. David Blight has shown that, in the late nineteenth and early twentieth centuries, the Civil War was reimagined by southern historians, and how this reimagination was popularized nationally. The culture of Civil War remembrance grew rapidly to embrace white veterans from the Union and Confederate armies, and battlegrounds were preserved as consecrated sites of tragic fratricide.27 As the cultural narrative of tragic division and ultimate reunion gained traction, a political bargain was sealed, leaving the daily management of "race relations" to the states.28 Under this bargain, the states were responsible for establishing and managing their racial regimes with only minimal federal intervention and oversight, and in the name of local control they did so. The southern states implemented a rationalized form of white supremacy first as state constitutional principle and then as legal and political practice, whereas state-based racial struggles emerged through new laws in the north and the west. While minimal and incremental change regarding racial issues and discrimination took place on the national level in the twentieth century, even identifying these changes as progress masks the ambiguity with which national institutions grappled with problems like lynching, immigration, racialized tensions over labor, and the participation of people of color in the armed services in two major wars.29
Legal scholars often identify the 1950s and 1960s as the high point of the legal civil rights revolution in the United States, while studies of constitutional development focusing on the earlier portions of the twentieth century generally do not configure racial politics as dynamic. In housing policy, while Buchanan v. Warley invalidated state-sponsored residential segregation in 1917 and Shelley v. Kraemer initiated the process of federalization in 1948, issues of housing remained largely under state and local control until the passage of Title VIII of the Civil Rights Act of 1968. Education remained largely under state control formally until Brown I in 1954 and practically on the ground into the 1960s. Voting was largely a state matter until the Court's ruling in Gomillion v. Lightfoot in 1960 and the passage of the Voting Rights Act in 1965. In criminal procedure, while the Supreme Court began to recognize racialized injustices in a limited sense as early as 1932 in Powell v. Alabama, to a significant degree, states' racialized authority over criminal procedure persisted until the landmark rulings of the late 1960s.30 While federal labor law debuted in the late 1930s, the states retained oversight over racialized differentiation among workers until the passage of Title VII in 1967.31 Finally, racialized issues around marriage remained largely under state control until Loving v. Virginia in 1967, and even after the high court ruled in Loving to invalidate anti-miscegenation laws, individual suits had to be brought in several southern states in the 1970s to prevent local state authorities from denying marriage licenses to mixed-race couples.32
What was happening to race and racial categories in the silent years between the close of the nineteenth century and the reemergence of race on the national agenda in the second half of the twentieth century? Historians have detailed the development of racial ideology through cultural and scientific debate. Considering the south, Grace Elizabeth Hale notes the commodification of blackness and the concurrent establishment of cultural white supremacy as key features of this period.33 In the north, racial categories developed and changed as large immigrant populations shifted toward less differentiated identification with whiteness.34 Peggy Pascoe argues that these years saw the pruning of racial ideologies from a broad array of cultural beliefs through competing scientific understandings and ultimately to a narrow focus on colorblindness and equality settled in Loving.35 Philip Klinkner and Rogers Smith likewise highlight the limits on private racial violence as the state gradually took over and legitimized white supremacy as policy and a central axis for government in the south particularly.36
With respect to race, the states' control over day-to-day life shaped citizenship and its exercise. Southern state policymakers worked through the meaning and definition of blackness, changing it over time to embrace a rigid black–white binary while endorsing increasingly broad definitions of blackness and then imposing these visions in a variety of contexts. Some western states also developed binaries, but the binaries increasingly collected the diverse populations of Asian immigrants and their descendants into one disfavored accumulation of racialized others. In the northeast, struggles emerged over how to categorize immigrants, and these struggles gradually redefined European immigrants as white. The areas of policy shaped by this process included in varying degrees in different states the regulation of intimate relations, criminal law, education, voting and other forms of civic participation, housing and public accommodations, employment and labor relations, to name but a few. Each of these areas had influenced state-level development, and race was deeply entwined with how the southern and, in different ways, the northern and western states understood citizenship and participation.
In each instance, focusing on state and local development raises questions that we cannot currently answer. As an illustration, I consider the regulation of intimate relations. This discussion is not meant to present a sustained analysis, but rather to show that considering state-level development in this policy area raises questions worth answering. While the admonition to look to the states to understand the politics of "race relations" in the Jim Crow era is not surprising, thinking about marriage and family policy as central to the development of state institutions may be more so. Nonetheless, key actors in multiple states developed and endorsed new policies regulating marriage and families that relied upon notions of racialization to define fitness among their citizenry. By the end of the nineteenth century, several state courts ruling in cases involving prosecutions for interracial intimacy had declared that the family—not the individual—was the fundamental unit of the state.37 At the same time that state actors sought to prevent the formation of families that appeared to threaten the racial status quo, they worked to normalize and enforce regularized intraracial monogamy within the bonds of matrimony. As national elites wrestled with questions of immigration and racialization through the development of policies linked to family membership in the early twentieth century, policymakers on the state level developed regulations invoking racialized theories of eugenics and connected race directly to state regulations of families through classifications of citizens that defined their capacities for the exercise of citizenship. These policies in turn shaped how state institutions developed over time.
One of the early tasks of post-Civil War governance undertaken by the Freedmen's Bureau was the normalization of black family life. Federal entities quickly established rules to register marriages between former slaves.38 At the same time, the notorious black codes that southern states passed as they reorganized themselves as sovereign entities included provisions to impute common-law marriages with the attendant rights and responsibilities for the men and women involved in intimate partnerships.39 For a hint of what was at stake for the states in finding and imputing marriages, as Gretchen Ritter notes, we need look no further than Dred Scott v. Sandford, in which Justice McLean asserted Scott's marriage to his wife Harriet as evidence that he was not slave but citizen: What ... shall we say of the consent of the master, that the slave may contract a lawful marriage, attended with all the civil rights and duties which belong to that relation; that he may enter into a relation which none but a free man can assume—a relation which involves not only the rights and duties of the slave, but those of the other party to the contract, and of their descendants to the remotest generation? ... [T]here can be no more effectual abandonment of the legal rights of a master over his slave, than by the consent of the master that the slave should enter into a contract of marriage, in a free State, attended by all the civil rights and obligations which belong to that condition.40
This conception of marriage likely informed the Union officials who set up "contraband camps" in the South and Southwest during the Civil War to shelter escaped slaves; these officials made the teaching and implementation of marriage among the ex-slaves a top priority.41 The War Department assembled the three-person American Freedmen's Inquiry Commission in 1863, and in addition to recommending the establishment of the Freedmen's Bureau, the Commission concluded that the encouragement of formal marriages was crucial for generating acceptable citizens among the former slaves.42 The Freedmen's Bureau enthusiastically accepted this invitation and exhorted and imposed not just contractual marriage, but a deeply patriarchal vision of marriage as a means of disciplining black men and women into appropriate gender roles to suit them for the building of legitimate households.43
Why, then, did the states go along with a federal agenda of placing upon freed persons a culturally legible marker of membership in the polity? The lawmakers recreating state governments in 1865 took the establishment of rules for formally recognizing and legitimizing marriages as a major agenda.44 Likewise, at the same time many southern states established or strengthened their regulations barring adultery and fornication, and began to enforce them against freed men and women.45 Several scholars claim that these regulations were fundamentally economic, ensuring that black women and children would not become public burdens on the state by making them in legal terms the private burden of individual black male heads of household.46 The states had cultural incentives, too, however; the presentation of marriage as an obligation rather than a right and state actors' vigorous pursuit of those engaged in disorderly living underlined their investment in marriage as a cultural device for rendering black relationships legible and acceptable through the imposition of gendered and patriarchal norms of behavior.
This observation, however, raises several developmental questions. Were these regulations fundamentally about limiting state expenditures or about disciplining African Americans to conform to norms of heterosexual partnerings, sexual exclusivity, and gendered divisions of identities and household labor? And how did either of these agendas reflect back to state policymakers' efforts to generate overall agendas of state re-building in the wake of the disruption of war and the elimination of the political economic organization and social structuring provided by slavery? How did the process of developing standards for African Americans to meet and policies to name and constrain their relationships affect the naming and constraining of other kinds of relationships? How did this focus on family organization influence thinking about the role of the family with respect to the state in racialized terms? And how did the use of marriage as both an aspirational goal and disciplinary tool for black citizens reflect back and change the nature of marriage itself? Answering these questions, which can illuminate the individual states' processes of managing Reconstruction and situating particular agendas in these processes, can build more comprehensive narratives of how identity developed in relation to normative conceptions of families, and how normative conceptions of families were intertwined with state-level development and change.
Anti-miscegenation policies likewise linked to development on the state level. They, too, were part of the black codes, but did not provoke outrage from congressional Republicans as the limits on black voting rights and related measures did. Rather, these measures generated legal challenges as individuals convicted under them appealed to the state courts for relief, claiming that federal law and the new fourteenth amendment blocked the states from banning interracial intimacy. These state policy choices and debates, however, were not limited to the south and played out in different ways across the nation, shaping not just the development of individual states but their racial profiles.
The state courts' dealings with interracial marriages and committed relationships is probably the best known angle of this story. Although some southern states had formal legal rules barring interracial marriages in the antebellum era, the measures became universal throughout the south, spread westward, and were enforced in the north in the immediate post-bellum years.47 In a somewhat surprising move, Alabama's high court invalidated Alabama's ban on interracial marriage, fornication, and adultery in 1872, but the process for reversal was set into motion quickly, as a series of cases undermined and eventually overturned this decision on the state level.48 High courts in both Alabama and Indiana issued extensive and widely read opinions supporting the constitutionality of bans on interracial intimacy, and both opinions relied upon the nature of marriage, the central placement of the family as the fundamental unit of the state, and a narrow vision of equality as requiring only equal punishment for the crime.49 The U.S. Supreme Court followed up in 1883 in Pace v. Alabama, but this short opinion did not attend to the questions of marriage, family, and the careful situation of the state's interest, resting instead only on an analysis of the statute's equal provisions for punishment to validate the law.50 For the southern policy makers who actively promoted the harsh repression of interracial intimacy, barring these relationships was a means of reinscribing the old racial order in which race could be a proxy for individualized citizenship rights.51
These struggles over constitutionality produced a policy environment in which legislators in the states ultimately rested assured that laws barring marriages and other intimate sexual relationships between whites and people of color could advance state interests in racial ordering. In California, elite concerns about Filipinos and their racial placement drove one significant dynamic process of racial ordering. Mae Ngai shows that the early acceptance of Filipinos as marginal and docile laborers came into question in the 1920s and 1930s, as threatening racialized and sexualized representations of Filipino men became more prevalent.52 One result was a struggle over how California's nineteenth century ban on interracial marriage, which barred whites from intermarrying with "negroes, mulattoes, and Mongolians", should be read with respect to other racial groups. In 1933, a ruling from the Los Angeles Superior Court defined Filipinos outside of the category of Mongolian but encouraged a legislative response. The legislature accepted the invitation enthusiastically, not only adding "members of the Malay race" to those prohibited from intermarrying with whites but also retroactively voiding all existing Filipino-white marriages.53
This pattern of endorsing broad definitions of racial groups prohibited from intermarrying with whites was largely a west coast phenomenon. For instance, Oregon banned marriages between whites and individuals of one-fourth or more African, Chinese, or Native Hawai'ian ancestry or one-half or more Native American ancestry.54 In the early twentieth century, southeastern states focused more on defining and refining definitions of blackness based on hypodescent, with many moving toward one-drop rules.55 Oklahoma, however, produced a constitutional ban that incidentally focused interpretive energy on whiteness, drawing a line between citizens of African descent and all others, statutorily defined as white. Two appellate cases in Oklahoma then wrestled with how to place individuals with Native American and Mexican ancestors in this framework.56 These court cases suggest the existence of complex dynamics of racial definitions that varied significantly across state borders and likely had different impacts on struggles for full citizenship among racial groups in each state. The regulation of interracial intimacy was politically significant for the state policy makers who promoted and interpreted these laws, and related to efforts to impose normative racial orderings within state societies.
The substantial variation among policies prohibiting intimate interracial relationships likewise raises questions only answerable through close investigations of development on the state level, since the policies were designed and implemented there. Questions of racial definition generated through the implementation of these policies, which sought to separate the races but also defined them and gave them normative content, were both acute and salient. Likewise, legal questions about inheritance across racial lines and the appropriate racial classification of children were litigated in the state courts and provide interesting insights into the states' views about the meaning and content of race and the state's role in setting the boundaries for white supremacy. How did states that had significant investment in eugenics (Virginia in particular) negotiate these questions in a political sense? What happened in states that barred Native Americans, Asians, and Latinos from intermarrying with whites, and how did this differ from the process in the southern states, which tended more toward racial binarism? Were there subtle (or obvious) shifts in the placement of the family as the fundamental unit of the state in some states but not others? How did states' struggles to answer legal and constitutional questions about their control over family definition and composition play into state-level political development over time? These questions illuminate how the states dealt with separating races and defining racial hierarchies. Consideration of how such policies changed over time can further illuminate the significance of legitimate and illegitimate families for the state and how families were configured in relation to the state and its interests. Different articulations of fears of racial integration and mixing reveal the role of cultural discourses of purity and concerns about gendered and racialized sexual rebelliousness and how these forms of rebellion were perceived as threats to the state.
One major way that policymakers rationalized and expressed racialized concerns in lawmaking and administration in the twentieth century was through eugenics measures. Supreme Court scholars have noted and criticized the Court's ruling in Buck v. Bell in 1927, in which the majority validated Virginia's policy of forced sterilization for individuals deemed by the state to be at risk of producing unfit offspring.57 But this litigation was merely the most visible incident of national endorsement of states' choices to control reproduction for the perceived betterment of the state. Virginia's Eugenical Sterilization Act was one of more than one hundred state statutes passed between 1900 and 1970 to implement eugenic policy goals as state interests.58 These policies articulated control of reproduction and the betterment of "the race" as crucial state interests sufficient to warrant significant limits on individuals' freedoms. As with state-based struggles over marriage and interracial intimacy, eugenic policies emphasized the particular duties and obligations that subordinated individuals owed to the state in exchange for the state's continued sufferance of their existence. While these policies imposed sterilization upon whites as well as people of color, eugenic theories sought in part to explain (and justify) racial differences and to ground policies that would best regulate states and localities containing racially diverse populations.
The rise of sociological jurisprudence and efforts to rationalize the management of the state tied in with the substantive agenda of implementing eugenic policies. This conjunction influenced not just state, but also local development, as Michael Willrich has shown. In Chicago, municipal reform included the replacement of individualized justices of the peace with a unified municipal court system, and these new courts relied heavily on eugenic theory to regulate the punishment and correction of offenders.59 One primary measure was confinement in sex-segregated institutions, but thirty states enacted compulsory sterilization laws between 1907 and 1940, beginning with an Indiana law that connected heredity to the transmission of criminality, idiocy, and imbecility.60 Reforming and centralizing the municipal courts provided significant purchase on the perceived unruliness and danger of modern urban living, defects that implicitly incorporated white policymakers' anxieties about growing populations of recent immigrants and African Americans.61
Social policies implementing eugenics also touched on marriage and limits on interracial intimacy. State legislatures cited eugenic principles in passing new regulations of marriage requiring testing for venereal diseases and preventing marriages among the mentally unfit, and these policies ultimately paved the way for sterilization.62 Likewise, many states justified increased scrutiny directed toward interracial intimacy on grounds of eugenics.63 But the scope of eugenic policies, as Willrich shows, included a wide range of disciplinary regulations affecting not only committed intimate partners and those accused of criminality but also those defined generally as social deviants. The largest population of women referred to Chicago's Psychopathic Laboratory for testing and possible institutionalization came from Chicago's Morals Court on charges of prostitution or public immorality.64 And in Virginia, the proponents of eugenic state policies also argued for limiting immigration to "only the most desireable of our prominent race," to protect the state's interests in preventing criminality, dependence, and the undermining of public morals.65
Willrich's work on the conjunction of sociological jurisprudence and the implementation of eugenic policies in the Chicago municipal courts demonstrates what is at stake in filling out a general picture of eugenics as social policy. Significant work has also addressed Buck v. Bell and Virginia's experiences with eugenics.66 But the overall political and developmental import of these regulations, in conjunction with their significance as disciplinary apparatuses, could be further explored. How did eugenic regulations actually and concretely affect the populations of the states that passed and enforced them most vigorously? While eugenics' impact on national migration has been studied in the context of the major restrictions placed upon immigration in the 1920s, its influence on patterns of subnational migration is still obscure. How did individual state legislatures define the threats posed by reproduction among those perceived to be unfit, and how did their defenses against these threats contribute to parallel processes of rationalizing categorization schemes and testing for citizens? How did the eugenic policies implemented on the state level contribute to and draw from associations among criminality, gendered conceptions of deviance, and racial subordination? Answering these questions can illuminate how state administrative policy modernized and bureaucratized through incentives to address racialized and gendered anxieties about deviant citizens. Understanding the states' efforts to control reproduction in the early twentieth century can also provide a finer grained means of establishing the genealogy of differences among contemporary racialized implementations of welfare reform on the state level.
The Added Value of Considering State-Level Political Development
At least some of the above questions seem sufficiently interesting to warrant venturing into the less carefully archived and messier world of state-level historical research. Taken together and pursued either in a single state or a comparative study, they could drive theorizing about how the shifts of policies over time both shaped and were shaped by racialization. State-based regulation of marriage, intimacy, reproduction, and families spoke centrally to how state policymakers defined the state's core values, aspirations, and fears. Close study of these processes can also illuminate how regulations designed to police the boundaries of danger, deviance, and criminality implicitly defined the normal and normative visions of marriage and family and their connection to the state as relationships deeply invested with public significance.
Further, state-level studies speak indirectly and directly to the concerns that motivate research on the national level. This intervention into the existing scholarly agenda will complicate and enrich the narrative of development, adding new moments of contingency and contestation to the overall picture. With respect to race, consideration of state law and policy grounds comparative explorations of how racialized development occurred within states and shaped the processes of change in states with different primary configurations of racially defined groups. It also enables closer study and disaggregation of the state's role in racial formation.67 While racial formation theory has been a valuable theoretical tool for mapping shifts in racialized ideologies over time and the influence of social movements in provoking these shifts, the theory's focus on ideology has rendered it less useful for considering how state policy makers have concretely made ideological change.
Particularly in relation to race, state-level negotiations indirectly influenced national development. Much of the work of configuring race took place in the states after the bargain between north and south was struck in the late nineteenth century. Since race was a significant factor in questions of citizenship, its removal to the state level left room on the national level for other types of struggles. Those within the federal government had to do little to maintain and develop a system of racial oppression. Even if the processes in individual southern, northern, and western states did not have an easily identifiable direct impact on the nation as a whole, the fact that the southern states so jealously guarded their hegemony over racial policy shaped the course of later twentieth-century interventions in racial politics initiated on the national level. The southern states' reservation of this power enabled state policy makers in the north and west likewise to structure racial policies to address their perceptions of the best solutions for racial ordering. Much of the legacy of federalism is the legacy of race, and federalism's design, redesign, and evolution over the past two centuries has taken tensions over race explicitly into account. Direct federal regulation regarding race, whether in concert with or in opposition to the regional politics of race, has always taken place against regional and state backdrops and innovations.
In a direct sense, the states also provided both positive and negative models for federal decision-making. The national struggles culminating in Plessy, Lochner, Buchanan, Brown, and a host of other cases were first fought on the state level, through litigation in the state courts.68 Other areas of U.S. political development rely on the notion that states provided models for federal policies. Scholars' considerations of local and state iterations of poor relief and pensioning formed the basis for critiques of the American state's exceptionally late development of welfare and social support policies.69 Other areas of policy also saw substantial debate and multiple approaches to regulation on the state level before federal efforts were made, including the prohibition of alcohol and limits on child labor.70
To return to the earlier sketch, state-level contests over regulating interracial intimacy foreshadowed and shaped national debates. The initial struggles over whether bans on miscegenation were compatible with congressional protection for civil rights and the new fourteenth amendment occurred first on the state level, reaching the U.S. Supreme Court only in 1882 after several different state high courts had weighed in.71 In the twentieth century, the same pattern held. The U.S. Supreme Court's ruling in Loving occurred after the California Supreme Court had ruled against anti-miscegenation laws in Perez v. Sharp in the late 1940s and the Alabama and Virginia high courts had upheld such laws against state and federal constitutional challenges in the 1950s and 1960s. The briefs and ruling in the U.S. Supreme Court reveal the Court's cognizance of the debate among the state high courts, as the U.S. Supreme Court consciously rejected both the outcomes in Alabama and Virginia and the California Supreme Court's reliance on new scientific evidence of the problematic nature of biological definitions of race.72 The timing of the Court's intervention, too, reflects its recognition of the status of racial formations and resistance on the state level in the shadow of the battle over school desegregation.73
The southern states' insistence upon maintaining themselves as fully supremacist entities in the face of challenges by the federal government and mass protests likewise shaped the federal government's response. The New Deal reordering required careful, and ultimately unsuccessful, efforts to quell tensions between labor and capital without confronting the embedded and institutionalized nature of racism. As the federal government began to press and disparate elements within the south sought modest reform to preserve Jim Crow, many New Deal policies and agencies were structured to preserve racial hierarchies.74 The rise of the civil rights movement in the south eventually catalyzed change that national policy makers imposed, but the nature and trajectory of that change depended heavily upon state politics and defiant lawmaking. Faced with resistance, all three branches of the federal government ultimately became directly invested in reworking southern racial formations. The federal government also had to confront and dismantle the architecture of overt regimes of racial supremacy by committing itself to substantial oversight on issues traditionally within the ambit of the states' control. Further study can trace how state courts and officials responded and how and when the political choice was made to abandon supremacy in favor of colorblindness in different policy areas.
Finally, the racial ideologies that the federal government began to confront in the 1950s and 1960s had been constructed largely on the state level with tacit support from national policymakers for their varied manifestations. Even now, some racial formation takes place on the state and local levels; contemporary struggles over immigration reform have seen significant social movement mobilization around efforts to generate state and local laws. Historic legal and political fights over the meaning of social versus political equality, eugenics, the rise of cultural anthropology, and the first stirrings of colorblindness happened primarily in the states, and the legacy of these fights shapes the way that modern national tensions over race work themselves out. Further, recent national developments have cleared new space for state-level experiments state within a context that incorporates both state and national policy histories of legal regulations of subordinated identities.
State-level politics may be seen as an unfit subject for study because the states are individual and quirky, with substantial historical, institutional, and political differences that make it difficult to generalize about other states or the nation from a study of one state. Many scholars likely see the states as too parochial; the best one can do is to seek commonalities among multiple states in order to develop generalizable narratives of development that can produce insights about processes writ large. Especially given the necessity of empirical and contextual thickness in historical institutionalist work, the problem of generalizability would seem to be insurmountable without a focus on national rules that applied in one way or another everywhere. Such a criticism might allow for studies of states that were particularly pivotal in influencing national politics in particular areas or for the selection of individual states that seem particularly representative of their regions, but would not recognize the intrinsic value in close analysis of state-level development per se without reference to this type of payoff.
But relating and analyzing a thick history in one or two states may bring alternative unique benefits. If the actual work of racial differentiation and the implementation of its political manifestations were being conducted on the state level, we simply cannot grasp the process adequately without looking directly at this process. We also need not assume that the best measure of a theory is its generalizability. Instead we can look to the fit of a theory to the complexities of the case it describes, and we can look to the nature of the insights it provides.75 While the specifics of a narrative concerning one or two southern, western, or northern states will be significantly less transportable and will cover less geographic terrain than a narrative concerning the nation, the mode of understanding the process and the moments of contingency and closure can provide jumping-off points for future research in other states or regions. Further, an in-depth study of state-building in a context where race was unquestionably a central concern can reveal much about the relationship between cultural values and institutions, and specifically how the law mediates between them.
The example of state-level developments concerning race, intimate relations, and family suggests that modern processes and outcomes of racial formation are not just products of national policy and development but of state policy and development as well. And race has been as much, if not more, of a factor in shaping how many individual states have developed as it has been for national institutions. As a full-fledged modern state was struggling to be born on the national level, the individual states were managing the day-to-day business of facilitating the exercise of citizenship, administering justice, controlling and defining families, and structuring the political choices that would have the greatest impacts on their denizens. The daily control that states provided had significant influence in forming racial identities and in producing models for the relationship between full citizenship and political development.
The study of state-level political development further complicates the already tangled history of racial ideologies in the United States. Historians have undermined unitary notions of race, showing how ideologies have shifted over time and how at some moments, racial ideologies have competed with each other.76 Bringing the states in adds political geography as a dimension of fragmentation, as parallel and related but institutionally separate processes took place simultaneously. This approach also provides a corrective to general observations that do not ring true across all regions or bring to the fore developments that simply are not clearly visible from the national perspective. For instance, as noted earlier, many scholars of political development have overlooked the dynamic nature of racial change as it occurred during the early and mid-twentieth centuries in the supposedly static Jim Crow south. Nor has much work been done in political development to consider how waves of Mexican migration shaped the state law and politics of the southwest in the postwar era prior to contemporary immigration panics.77
As the brief summary of questions about state-level regulations concerning race, intimate partnerings, and families suggests, studying political development in the states should not be limited to examining the southern states' efforts to define and impose a black–white binary in the first half of the twentieth century; nor should these studies be limited to efforts to understand the place of race as a subordinated identity. Women's place in U.S. political development is a rapidly growing area of inquiry, but aside from studies of state-level struggles over the nineteenth amendment and the ERA and some work on the gendered nature of pensions and other public provisions, little work outside of law reviews has focused intensively on the historical development of women's status in individual states, and the legal literature has not integrated this history with the development of institutions. For instance, what factors led a state like Wyoming to grant suffrage to women early, and what impact did women's voting have? How did this history compare to the history of a state like Massachusetts, which, despite its progressive reputation, had a major public battle over the question of women's suffrage?
Political scientists should also attend more to legal and constitutional processes of racialization concerning groups other than African Americans and whites. Within political science the ground work on the role of Latinos and Latinas in political development is still being done. Likewise, while writers on political development have addressed practices of restricting Asian immigration and excluding Asians from citizenship historically, focused studies on the role of Asians in U.S. political development are very recent concerns. In both of these areas, careful consideration of California's history and institutional development seems crucial. While Native Americans have necessarily been more connected to the national state and national political development, their presence on reservations in some western states likely affected those states' development. And Hawai'i, as both a former colony and a state, presents unique developmental questions about its efforts to address the status and citizenship of Native Hawai'ians as well as waves of Asian workers and immigrants. As but one question among many, what state-level developmental factors contributed to the major differences between California's harsh response to the federal orders for internment of Japanese and Japanese Americans during World War II and Hawai'i's more measured response? While significant work has been done within the interdisciplines of Ethnic Studies, Chicano/a and Latino/a Studies, and Asian American Studies as well as through Law and Society, these studies largely have centered culture and racial formation, producing explanations of cultural change and racial formation with respect to these groups in particular regions. By consciously developing narratives of agency and resistance concerning these groups, this work has necessarily been less focused on considering how the state policymakers' work of managing, defining, and at times repressing these groups has shaped not only these groups' experiences but the states themselves.
Historical research can also illuminate modern questions.78 As state politics have become more salient in an era of revitalized federalism, several current issues call for careful archaeological research to unearth roots and parallels. Many scholars have noted the structural similarity between lesbians' and gays' struggle for state recognition of their intimate ties and the century-long fight against punitive regulation of interracial romance.79 While the nature of this parallel is in debate, those studying the current controversy over same-sex marriage—which directly implicates constitutional law on the state level—can usefully turn to the political and constitutional fights over the anti-miscegenation regimes on the state level for deeper context. As the U.S. Supreme Court has thus far declined to move decisively toward active federal oversight for equality for members of LGBT communities, states and localities will be the immediate arenas for struggles between those seeking equal rights and those seeking to stigmatize homo- and bisexuality. The need to unearth the history of state-level relationships between state policies and development and the family through the lenses of sex and gender is thus clear.
Devolution today raises questions about race as well; state-level studies of racialized welfare policies can reveal how individual states are implementing new welfare-to-work requirements and negotiating federal pressures on welfare recipients to form traditional nuclear families. Also, contemporary state-level struggles over immigration have coincided with the first serious efforts by state lawmakers to define citizenship directly since the passage of the fourteenth amendment. Likewise, as the Supreme Court has limited the range of acceptable justifications for racial affirmative action, state-level political struggles in the form of initiatives have become significant. While affirmative action on the state level has been the subject of numerous law review articles, the historical roots of these practices and their variations in the individual states await study. Likewise on family structure, how have different states negotiated contemporary controversies over racial matching in adoptions, and how have these practices tied in with localized histories of racial formation? And what explains efforts in recent years by many southern states to sanitize their constitutions from the worst features of overt racism—and what explains political resistance to these efforts?
The many questions raised here pose a tentative agenda for historically based developmental research on the states. Countless other questions could and should be asked. The comparative potential of the states, linked with their contemporary increasing salience as political entities, render them attractive targets for the tools of historical institutionalism. In particular, though, we should rework our understandings of how the development of institutions has interacted with the development of full citizenship and subordinated identities. As I have shown, much of this development across both dimensions took place around the day-to-day issues that directly touched the lives of citizens and quasi-citizens. The role of ordinary states' law as a device for managing the lives of their denizens should not be overlooked.
Notes
1 See, for example, Anthony Marx, Making Race and Nation: A Comparison of the United States, South Africa, and Brazil (New York: Cambridge University Press, 1999); Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America, 1924–1965 (Princeton, NJ: Princeton University Press, 2004); Desmond King and Rogers Smith, "Racial Orders in American Political Development," American Political Science Review 99 (February 2005): 75–92.
2 By subordinated identities, I mean group identities that emerge from the interplay of cultural, political, social, and legal discourses concerning the value and centrality of certain types of citizens. A full discussion of the social and institutional construction of identity is beyond the scope of this article. Nonetheless, part of my agenda is to show that subordination based on institutionalized discriminatory attitudes towards individuals' group identification is a dynamic process that depends significantly upon the articulation, regulation and bounding of identity through state law.
3 Paul Pierson, "APD's Faustian Bargain," CLIO 14 (2003–04): 1, 46–47.
4 These scholars are primarily in law and/or history; some prominent examples are Lawrence Friedman, Harry Scheiber, Christopher Tomlins, Thomas Green, Hendrik Hartog, and the late Kermit Hall.
5 Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004).
6 See, for example, William Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).
7 See, for example, Michael Grossberg, Governing the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1988).
8 See Barbara Welke, Recasting American Liberty: Gender, Race, Law and the Railroad Revolution, 1865–1920 (Cambridge: Cambridge University Press, 2001).
9 See Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge: Cambridge University Press, 1991); Victoria Hattam, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton, NJ: Princeton University Press, 1993).
10 Howard Schweber, The Creation of American Common Law, 1850–1880: Technology, Politics and the Construction of Citizenship (Cambridge: Cambridge University Press, 2004).
11 In the first iteration of the United States as a nation, citizenship (both formal and in practice) was under the control of the states in significant part, but Congress and the federal courts began to influence and then to control it. Justice Taney's vision in Dred Scott of a national state impotent to define citizenship was rejected through the Civil War and formally through the Fourteenth Amendment. In the early republic, key markers of citizenship like voting were under state control, but after the nation-state's reconfiguration in the wake of the Civil War, the nation began to exercise increasing control both over the composition of the national citizenry (through controlling immigration and immigrants' access to citizenship) and the rights to which citizens of various stripes had access. See, for example, Philip Klinkner and Rogers Smith, The Unsteady March: The Rise and Decline of Racial Equality in America (Chicago: University of Chicago Press, 1999).
12 See, for example, Ian Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996); Mae Ngai, Impossible Subjects.
13 Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: Chicago University Press, 1998).
14 Ronald Kahn. "Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but not Roe," in The Supreme Court and American Political Development, ed. Ronald Kahn and Ken Kersch (Lawrence: University Press of Kansas, 2006), 67–116.
15 Thomas Keck, "From Bakke to Grutter: The Rise of Rights-Based Conservatism," in Kahn and Kersch,The Supreme Court and American Political Development, 414–42.
16 See, for example, Bruce Ackerman, We the People: Transformations (Cambridge, MA: Belknap Press, 1998); Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (Durham, NC: Duke University Press, 1999); Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in US History (New Haven, CT: Yale University Press, 1997).
17 Klarman describes the Court's reluctance to act as an engine for social change on questions of race, challenging the triumphal tradition best exemplified by Richard Kluger and Benno Schmidt. Klarman, From Jim Crow to Civil Rights, Richard Kluger, Simple Justice:The History of Brown v. Board of Education and Black America's Struggle for Equality, (New York: Knopf, 1976); Benno Schmidt, "Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia, Texas Law Review 61 (1983): 1401–99.
18 King and Smith, "Racial Orders in American Political Development."
19 See, for example, Smith, Civic Ideals, on citizenship; Keith Bybee, Mistaken Identity: The Supreme Court and the Politics of Minority Representation (Princeton, NJ: Princeton University Press, 2001) on voting rights; Ian Haney López, White By Law, Desmond King, Making Americans: Immigration, Race, and the Origins of Diverse Democracy (Cambridge: Harvard University Press, 2000) and Ngai, Impossible Citizens, on immigration; and Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2000) and Daniel Kryder, Divided Arsenal: Race and the American State during World War II (Cambridge: Cambridge University Press, 2000) on the relationship between major military conflicts and civil rights.
20 Yali Peng, "Intellectual Fads in Political Science: The Cases of Political Socialization and Community Power Studies," PS: Political Science and Politics 27 (1994): 100–08.
21 William J. Brennan, Jr., "State Constitutions and the Protection of Individual Rights," Harvard Law Review 90 (1977): 489–501; Hans A. Linde, "E Pluribus: Constitutional Theory and State Courts," Georgia Law Review 18 (1984): 165–200.
22 See, for example, Martha Morgan, "Fundamental State Rights: A New Basis for Strict Scrutiny in Equal Protection Review," Georgia Law Review 17 (1984): 77–108. More recently, see Michael Esler, "Michigan v. Long: A Twenty Year Retrospective," Albany Law Review 66 (2003): 835–56.
23 Among the regional studies of political economy are Richard Bensel, Sectionalism and American Political Development: 1880–1980 (Madison: University of Wisconsin Press, 1984); Elizabeth Sanders, "Industrial Concentration, Sectional Competition, and Antitrust Politics in America, 1880–1980, Studies in American Political Development 1 (1986): 142–214; and Lee Alston and Joseph Ferrie, Southern Paternalism and the American Welfare State: Economics, Politics and Institutions in the South, 1865–1965 (New York: Cambridge University Press, 1999). Amy Bridges, among others, has made important contributions in integrating the study of cities into the literature on political development; see, for example, Amy Bridges and Richard Kronick, "Writing the Rules to Win the Game: The Middle-Class Regimes of Municipal Reformers," Urban Affairs Review 34 (May 1999): 691–706.
24 Donald Haider-Markel, "Lesbian and Gay Politics in the States: Interest Groups, Electoral Politics, and Policy," in The Politics of Gay Rights, ed. Craig Rimmerman, Kenneth Wald, and Clyde Wilcox (Chicago, University of Chicago Press, 2000); Scott Barclay and Shauna Fisher, "The States and the Differing Impetus for Divergent Paths on Same-Sex Marriage, 1990–2001," Policy Studies Journal 31 (2003): 331–52.
25 See, for example, Bruce Ackerman, We the People: Transformations; Akhil Amar, America's Constitution: A Biography (New York: Random House, 2005).
26 See, for example, Grace Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Pantheon Books, 1998); Ian Haney López, White by Law; Noel Igatiev, How the Irish Became White (New York: Routledge, 1995).
27 David Blight, Race and Reunion: The Civil War in American Memory (Cambridge: Harvard University Press, 2001).
28 The term "race relations" was popularized in a 1900 speech and pamphlet by Alabaman Edgar Murphy, who was a leader in the movement to regulate child labor. Edgar Gardner Murphy, The White Man and the Negro at the South (Montgomery, AL: Address delivered under invitation of the American Academy of Political and Social Science, March 8, 1900).
29 See, for example, Klinkner and Smith, The Unsteady March.
30 Lucas Powe, Jr., The Warren Court and American Politics, (Cambridge, MA: Belknap Press, 2000).
31 Ira Katznelson, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America (New York: W.W. Norton & Co., 2005).
32 Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America," The Journal of American History 83 (1996): 44–69.
33 Hale, Making Whiteness.
34 Matthew Pratt Guterl, The Color of Race in America, 1900–1940 (Cambridge: Harvard University Press, 2001); Victoria Hattam, In the Shadow of Race: Jews, Latinos, and Immigrant Politics in the United States (Chicago: University of Chicago Press, 2007).
35 Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race.'"
36 Klinkner and Smith, The Unsteady March.
37 Julie Novkov, "Pace v. Alabama: Interracial Love, the Marriage Contract, and Post-bellum Foundations of the Family," in Kahn and Kersch, The Supreme Court and American Political Development, 329–65.
38 Katherine Franke, "Becoming a Citizen: Reconstruction Era Regulation of African American Marriages," Yale Journal of Law and the Humanities 11 (1999): 251–309.
39 Angela Onwuachi-Willig, "Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control," California Law Review (2005) 93: 1647–96, at 1660.
40 Dred Scott v. Sandford, McLean, J., dissenting, 60 U.S. 393, 600 (1857). See Ritter's analysis in The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order (Stanford, CA: Stanford University Press, 2006).
41 Priscilla Yamin, "Nuptial Nation: Marriage and the Politics of Civic Membership in the United States" "(Ph.D. diss., Political Science, New School University, New York, 2005), 33.
42 Yamin, Nuptial Nation, 36–37.
43 Yamin, Nuptial Nation, 41–43. See also Mary J. Farmer, "Because They are Women: Gender and the Virginia Freedmen's Bureau's 'War on Dependency,'" in The Freedmen's Bureau and Reconstruction: Reconsiderations, ed. Paul Cimbala and Randall Miller (New York: Fordham University Press, 1999), 161.
44 Yamin, Nuptial Nation, 45–46.
45 Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2001), 89.
46 See Onwuachi-Willig, "The Return of the Ring," in Blue Laws and Black Codes: Conflicts, Courts, and Change in Twentieth-Century Virginia, ed. Peter Wallenstein (Charlottesville: University of Virginia Press, 2004), Franke, "Becoming a Citizen."
47 Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law—an American History (New York: Palgrave, 2002).
48 Novkov, "Pace v. Alabama."
49 Wallenstein, Tell the Court I Love My Wife.
50 Pace v. Alabama, 106 U.S. 583 (1883).
51 See Yamin, Nuptial Nation, Julie Novkov, "Racial Constructions: The Legal Regulation of Miscegenation in Alabama," Law and History Review 20 (2002): 225–77.
52 Mae Ngai, Impossible Subjects, 113.
53 Ngai, Impossible Subjects, 115.
54 In re Paquet, 200 P. 911 (Ore. 1921).
55 These rules defined anyone with any identifiable black ancestry as black for all legal and social purposes.
56 Jones v. Lorenzen, 441 P.2d 986 (Okl. 1965); Dick v. Reaves, 434 P.2d 295 (Okl. 1967).
57 274 U.S. 200 (1927).
58 Paul Lombardo, "Medicine, Eugenics, and the Supreme Court: From Corrective Sterilization to Reproductive Freedom," Journal of Contemporary Health Law and Policy 13 (1996): 1–2.
59 Michael Willrich, "The Two Percent Solution: Eugenic Jurisprudence and that Socialization of American Law, 1900–1930," Law and History Review 16 (1998): 63, 67.
60 Willrich, "The Two Percent Solution," 70.
61 Willrich, "The Two Percent Solution," 77.
62 Yamin identifies the first such regulation as a Connecticut law passed in 1895 and barring marriages by "feebleminded, imbecilic, and epileptic men and women under 45 years of age," Yamin, Nuptial Nation, 55.
63 See, for example, Lombardo, "Medicine, Eugenics, and the Supreme Court," Yamin, Nuptial Nation, and Willrich, "The Two Percent Solution."
64 Willrich, "The Two Percent Solution," 97.
65 Lombardo, "Medicine, Eugenics, and The Supreme Court," 10.
66 See, for example, Lombardo's work, as well as Roberta Berry, "From Involuntary Sterilization to Genetic Enhancement: The Unsettled Legacy of Buck v. Bell," Notre Dame Journal of Law, Ethics & Public Policy 12: (1998): 401–48.
67 See Michael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 2nd edition (New York: Routledge Press, 1994).
68 On Plessy, see Barbara Welke, Recasting American Liberty. On Lochner, see Howard Gillman, The Constitution Beseiged: The Rise and Demise of Lochner-Era Police Powers Jurisprudence, (Durham, NC: Duke University Press, 1993). On Buchanan and Brown, see Klarman, From Jim Crow to Civil Rights.
69 See, for example, Susan Sterett, Public Pensions: Gender and Civic Service in the States, 1850–1937 (Ithaca, NY: Cornell University Press, 2003); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, 1992).
70 On prohibition, see Ann-Marie Szymanski, Pathways to Prohibition: Radicals, Moderates, and Social Movement Outcomes (Durham, NC: Duke University Press, 2003). On child labor, see Hugh Hindman, Child Labor: An American History (New York: M.E. Sharpe, 2002).
71 Julie Novkov, "Pace v. Alabama."
72 Wallenstein, Tell The Court I Love My Wife; Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America," Journal of American History, 83 (1996): 44–69.
73 Wallenstein, Tell The Court I Love My Wife.
74 Congress likewise configured New Deal policies to account for gendered ideologies and allowed the states to retain significant control over many aspects of women's lives. See Suzanne Mettler, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca, NY: Cornell University Press, 1998).
75 Rogers Smith, "Substance and Methods in APD Research," Studies in American Political Development 17 (Spring 2003): 111–15.
76 Barbara Fields, "Ideology and Race in American History," in Region, Race, and Reconstruction: Essays in Honor of C. Vann Woodward, ed. J Morgan Kousser and James M. McPherson (New York: Oxford University Press, 1982), 143–77; Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race,'" 44–69.
77 Some work has been done on efforts by Mexicans and Mexican Americans to grapple with whiteness and its benefits. See, for example, Clare Sheridan, "'Another White Race': Mexican Americans and the Paradox of Whiteness in Jury Selection," Law and History Review 23 (2003): 109–45.
78 Pierson, "APD's Faustian Bargain."
79 See, for example, Andrew Koppelman, "The Miscegenation Analogy: Sodomy Law as Sex Discrimination," Yale Law Journal 98 (1988): 145–64.
