A will to stigmatize and prohibit black-white interracial marriage has been a defining national trait of U.S. culture. Although sex between the races was frequently tolerated, interracial marriage generated enormous opposition, especially after the Civil War. In order to understand this legal history, it is crucial to recognize the way a species of intimacy, the desire to marry, has the potential to shape legitimacy—to ratify or, conversely, to erode the authority of law itself. Jürgen Habermas's theory of the importance of the Intimsphäre to the public sphere helps to explain the force of marital desire in legal history. As Habermas argues, the genre of the novel is instrumental in creating the public power of private feeling. A 1901 novel by African-American author Charles Chesnutt, The Marrow of Tradition, illuminates the ironic ability of the desire for legal marriage to challenge existing marriage laws.
Legal Feeling: The Place of Intimacy in Interracial Marriage Law,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss2/12