Citizenship by Descent

There are three paths to citizenship in the United States: birth, naturalization, and descent. In recent political debates, birthright citizenship gets all the attention. Republican lawmakers perennially propose amendments that would make the children of undocumented immigrants ineligible for citizenship, relying on an interpretation of the Fourteenth Amendment that assumes such immigrants are not “subject to the jurisdiction thereof” and are therefore not within the protections of jus soli. But what of citizenship by descent, also known as jus sanguinis or derivative citizenship? This is a powerful mode of acquiring citizenship: it allows U.S. citizen parents living abroad to pass their citizenship status to their children who are not born on U.S. soil. This is literally citizenship “by blood.” This method of transmission is not provided for in the Constitution but has been recognized in the U.S. by statute since 1790. The current jus sanguinis statute does not receive much press or scholarly attention, which is surprising given that it is clearly discriminatory when it comes to children born out of wedlock to a U.S. citizen parent and a foreign parent. If the U.S. citizen is the mother, transmission of U.S. citizenship is virtually automatic. If the U.S. citizen is the father, transmission is not automatic: the father must demonstrate a range of prerequisites, including blood tests and proof of legitimation, among other requirements. Fathers and their illegitimate offspring have challenged this unequal treatment, but the Supreme Court has thus far failed to overturn the provision. In one seminal case, Nguyen v. INS (2001), the Immigration & Naturalization Service defended the provision by arguing that the differential treatment of mothers and fathers was necessary for “administrative convenience.” They argued, in so many words, that the law is justified in requiring fathers to provide more proof of the relationship to their illegitimate child since it is harder to tell if the father is really the father, even if his name is on the birth certificate.

In her article “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Kristin Collins looks in depth at the origins, interpretations, and practices of derivative citizenship over the course of the nineteenth and twentieth centuries. In doing so, she not only systematically destroys the simplistic argument provided by the INS in the Nguyen case, but also reveals the deeply racialized nature of jus sanguinis. She demonstrates that throughout much of our history, derivative citizenship was moored in intertwined visions of women’s subordinate place in the family and of nonwhite persons’ subordinate place in the polity. Courts, agencies, administrators and consular officials across decades found ways to interpret and apply the law of derivative citizenship to favor white children over nonwhite children. Sometimes these efforts were explicit but other times they were hidden. It takes a skilled and capable historian like Collins to be able to dig beneath the surface of decades of government documents and court records and put the pieces of the jus sanguinis puzzle together.

Collins starts with an analysis of a key but underappreciated case in the law of citizenship: Guyer v. Smith (1864). Guyer was a property case, in which the Maryland Court of Appeals decided whether two brothers born on an island in the French West Indies could inherit their American father’s property. The brothers could not prove that their American father had been married to their West Indian mother. The jus sanguinis statute then in effect was silent as to the role of marriage: it said merely that fathers could transmit their citizenship to children born abroad. (Mothers, at this time, could not transmit their citizenship at all). The Guyer court interposed a marriage requirement into the jus sanguinis statute. As Collins explains, the court used the domestic relations idea of bastardy: mothers were responsible for illegitimate children, not fathers, and therefore fathers could not, even under this statute that said nothing about legitimacy or marriage, transmit citizenship to their illegitimate children. Because the brothers were aliens, not citizens, they lost their claim to the property under the state’s alien land laws.

References to the marriage requirement of Guyer appeared repeatedly in the ensuing decades, in other cases, administrative memos, attorney general reports, and other sources. The historical insight that Collins brings to the Guyer case is key: it was decided in the context of race, and its legacy has been one of racialized application. Guyer itself involved the sons of a white man and a woman “partly of African blood,” something the opposing counsel did not hesitate to point out as part of the reason the state should not allow the brothers to hold property. Importantly to Collin’s story, the resulting application of Guyer in decisions about citizenship was also racially asymmetrical: government authorities used the marriage requirement created by Guyer to strip children of nonwhite parents of their citizenship rights. This happened in large part because of the way authorities perceived of marriages between persons of different races. As Collins writes, “The marriage requirement was racially exclusionary because marriage was not a race-neutral institution.” (P. 2183.) Authorities repeatedly refused to recognize the relationships of white American fathers and nonwhite foreign mothers as legitimate, even if their marriages conformed to the marriage laws of the jurisdiction in which they were conducted. Because of the Guyer rule, any children born out of this so-called nonmartial relationship were ineligible for jus sanguinis citizenship.

The marriage requirement took on even greater significance in the era of Chinese exclusion. It became a convenient method of avoiding granting citizenship to the foreign-born children of Chinese American immigrant fathers. Yet, remarkably, when it came to marriages of American men to European women, the various agencies and government officials administering jus sanguinis adopted an exception to the Guyer rule, holding that a father could legitimate a child after the fact of his or her birth, even if the parents remained unmarried, and that this would enable the transmission of the father’s citizenship. When it came to the children of American fathers and nonwhite foreign women or the children born abroad of Chinese American fathers, this “legitimation exception” to the Guyer rule was rarely available.

Jus sanguinis took on new significance in the World War II era and in subsequent conflicts, as American soldiers stationed abroad formed relationships and had children with foreign women. In the World War II era, military authorities and Congress went out of their way to welcome European “war brides” and their children. In contrast, military authorities put up significant roadblocks to the marriages of American GIs to Asian women, making it impossible therefore to transmit their citizenship to the children of those relationships. As Collins writes, “Congress and the military marshaled extraordinary political and material resources in order to bring the non-Asian brides and babies of WWII soldiers home to the United States. Meanwhile, military policies that prohibited and limited interracial marriage between U.S. soldiers stationed in Asia and local women frustrated the efforts of those servicemen who sought recognition of, and American citizenship for, their children.” (P. 2232.) Countless numbers of American GIs fathered children abroad and were unable to pass on citizenship due to official military policies that disfavored relationships with nonwhite foreign women.

Collins artfully traces two types of asymmetry in the application of jus sanguinis: not just the racial logic that prioritized claims of white children but also the domestic relations logic that placed mothers as the sole caretakers for illegitimate children. Up until 1934, only American citizen men could transmit citizenship jus sanguinis to their children born abroad to a foreign parent. After 1934, Congress provided that American citizen mothers could do so as well. The Nationality Act of 1940 codified the Guyer rule and perpetuated gender asymmetry: mothers could transmit their citizenship to nonmarital children born abroad as long as they had, at some point in their lives, had a residence in the U.S.; fathers, on the other hand, could not transmit citizenship to non-marital children unless they had been “legitimated” by the father. Racial nativism continued to influence the application of this notion of “legitimation” after 1940, as administrators, military personnel and courts used racial prohibitions in state marriage laws and practices of non-recognition to bar legitimation attempts by fathers of nonwhite children.

Through extensive archival research, Collins successfully traces the interplay of notions of gender, race, and nationality over a century and a half of American history. She shows how administrators, judges, and other officials crafted policies that were facially race neutral yet systematically benefitted Europeans and disfavored all others. Collins demonstrates that the current law’s differential treatment of mothers and fathers is rooted in much more than mere “administrative convenience,” as the INS would have us believe. Instead, it is embedded in these historical practices of gender inequality and racial nativism. We should not ignore this historical legacy when thinking about the ways our derivative citizenship laws should look in the future.

 
 

Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law

“Legal interpretation,” Robert Cover famously wrote, “takes place in a field of pain and death.” Honoring Cover’s important insight is one of the great challenges of legal scholarship. As we use our expertise to explore the nooks and crannies of our “legal world”—the clever transactional devices, complex regulatory schemes, and jurisdictional puzzles—do we recognize the state-inflicted and -sanctioned violence on which this world depends? Barbara Young Welke’s The Cowboy Suit Tragedy is a powerful example of how to write about law without losing sight of what Cover calls the “bodies on the line.”1 In the tradition of critical legal history, Welke’s insightful and empathetic account of a mid-twentieth-century products liability case goes further still, to show us the profoundly unequal impact of law’s violence. By placing the case in the context of the “democratization of [consumer] desire,”2 the rise of product liability insurance, and the inherently atomizing features of private law, Welke reminds us that even when tort law forced manufacturers to bear the monetary cost of accidents, the emotional and physical injuries lay where they fell. Families—here, children—owned the hazards inherent in many products, and most often they owned them not as a class or community, but as individuals, as scattered and disconnected as the transactions that brought the products into their lives.

The Cowboy Suit Tragedy centers on the New York case McCormack v. M. A. Henry Co., a wrongful death suit brought by the McCormack family against the manufacturers of the Gene Autry cowboy suit. A popular toy since it first came off the production line in 1942, the “Autry cowboy ranch outfit” offered parents a way to “provide their children with a protected childhood,” an intense postwar desire, while participating in the mass consumer economy that increasingly defined American identity. (P. 103.) Unfortunately for seven-year-old Tommy McCormack, who received the toy for Christmas in 1944, there was a hazard “designed in” to the costume: its plush white chaps were made from a highly flammable viscose rayon fiber, at a time when “children encountered fire as a regular part of daily life.”3 “One minute Tommy was playing,” Welke writes, drawing from court testimony, “and the next he was screaming,” in what his brother Jackie remembered as “a ‘circle of fire.’” After four long months, he died from his injuries. (P. 101.) Other children had by then suffered similar fates, but after Mr. McCormack’s chance encounter with a lawyer, Tommy became the cowboy suit’s first legally cognizable victim. (P. 111.)

Roughly three years after the McCormacks filed suit, a jury awarded the family $65,249.10 in damages, a result that Welke might have cast as a victory. News of the defendants’ careless actions made national headlines, raising awareness about the dangers lurking in common fabrics. And although an appellate court reduced the award nearly by half, the family received compensation for a loss that they otherwise would have borne on their own. Doctrinally, the case would appear to fit with a progressive, feel-good narrative of modern tort law: as litigants confronted courts with the hazards of automobiles and other complex, mass-produced goods, the story goes, and as judges recognized the asymmetries of power and information in the modern consumer-manufacturer relationship, they chipped away at doctrinal barriers—here, the notion of privity of contract—until they had produced a consumer-friendly regime of strict liability for defective products.

For Welke, however, the story remains a tragedy, and we are richer for her insistence on seeing it this way. “[E]ven as the economic burden of product hazard shifted from consumer to producer,” she writes, “a more fundamental continuity remained: product hazard was understood to grow out of private relations in a private economy addressed through private law.” (P. 113-14.) And although subsequent decades witnessed the rise of the class action and the enactment of consumer safety laws, Welke’s point about the privatization of product hazard largely holds. The tragedy of this arrangement is clear from what happened after the McCormack case: some additional victims received compensation, via private settlements, but records were sealed, silence was purchased, and “more children were burned.” (P. 116.) In some cases their families never even realized they had a cause of action and dutifully absorbed both blame and expense. Nor did the public have much of a chance to weigh in: with the full extent of the harm hidden, the cluster of reported cowboy suit deaths quickly “slipped out of view and memory.” (P. 117.) In short, Welke’s telling of the McCormack case urges us not to dwell on the family’s unprecedented victory, but to ponder the costs of the very system that gave them justice. How many potentially outrage-inducing harms has this system kept from our view?

Welke ends the article with an even more important question, which I will rephrase here. The concepts of spreading risk and socializing loss are now woven into our legal fabric, and for good reason. There is no going back. But what would happen if every time we wrote about these concepts or taught them to our students, we reminded ourselves that risks “materializ[e] on the bodies and lives of individuals,” and that the resulting losses are never truly shared? (P. 121.) What would happen if every time we explained the logic of the law or offered a proposal for legal reform, we looked, as Welke has, for the bodies on the line?



  1. Robert M. Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1601, 1605. []
  2. P. 103 (quoting William Leach, Land of Desire: Merchants, Power, and the Rise of a New American Culture (New York, 1993) ). []
  3. P. 104, PP. 107-09 (borrowing from Ralph Nader, Unsafe at Any Speed: The Designed-In Dangers of the American Automobile (New York, 1965) ). []
 
 

Patterns and Practices

These days, I think a lot about police torture.

To be more precise, these days I am wrestling with problems of how to “prove” police torture occurred. And that’s why I recently read Kim D. Chanbonpin’s article “Truth Stories: Credibility Determinations at the Illinois Torture Inquiry and Relief Commission.”

The question at the heart of the problem I am struggling with is straightforward enough: How can one evaluate a claim of police torture when the only source of the claim is the alleged victim and when the police and prosecutors categorically deny that anything occurred?

As anyone who is familiar with Chicago civil rights litigation knows, claims of police torture have been a problem for the court system for nearly thirty years. In fact, they were a problem for Illinois courts long before Jon Burge began to work for the police department: In 1938, the jury and judge in a murder trial in Chicago were confronted with a claim by Robert Nixon that he falsely confessed to murder only because he had been repeatedly tortured over several days by Chicago police officers, who beat him, hung him by his arms from a wall as they interrogated him, and held him outside a window with the threat they would drop him if he did not confess to several murders. To counter Nixon’s claims, the State called over 40 police officers to the stand; they all testified that they had not abused Nixon or seen any other officer do so.

Invited by the State’s Attorney to consider who had the most reason to lie, the judge and jury concluded that Nixon, a young black man charged with a particularly heinous murder of a firefighter’s wife, would be most inclined to fabricate evidence. As a result, they sentenced him to death. The Illinois Supreme Court agreed for a slightly different reason. Noting that 23 police officers, “shown to be all of the officers in charge of defendant from the time of his arrest until after the statements and re-enactment were made,” had testified that they had not harmed Nixon and had not seen any other officer do so, the court concluded the state had effectively rebutted Nixon’s claims (371 Ill. 318, 324-325 (1939)).

As a practical matter, the Illinois Supreme Court was wrong on the very point it seemed to find crucial: The trial court did not hear testimony from everyone who had custody of Nixon for several of the periods in which he claimed he was tortured. But the sheer volume of the police testimony discouraged that sort of close reading that would make that gap obvious, and so Robert Nixon died on the electric chair in June 1939. He was not yet twenty-years old.

My efforts to tell the story of the Nixon case have forced me to confront the problems that claims of police torture pose for historians, as well. The usual methods of historical research, which would try to prove or disprove a contested claim through the painstaking reconstruction of events pieced together from other records and sources, are rarely viable alternatives for historians trying to unravel police practices. As Alfred W. McCoy noted in Policing America’s Empire (2009), his study of the U.S. surveillance state in the Philippines, “Armies usually preserve their papers for posterity while police and secret service tend to conceal or destroy their records.” (P. 12.) Destroy, or simply fail to keep records at all. In Robert Nixon’s case, it has been impossible to reconstruct who had custody of Nixon for the nineteen days he was in custody before he was brought before a judge for the simple reason that the lock-up keepers were not required to record who took prisoners out of the lock-up.

One alternative, discussed in detail in Chanbonpin’s article, is to look for a pattern and practice. Typically, this approach involves reviewing multiple cases involving claims of torture to try to see if victim complaints suggest patterns of conduct. If such a pattern emerges, the next step is to test an individual’s claim against that model to see how closely it matches. While a match, even a close one, does not prove the claim of torture is true (it would not, for example, trump other evidence that cast doubt on the credibility of the claim), it is a way to try to come closer to reconstructing what happened.

That was essentially the approach I planned to use in my study of Robert Nixon’s case. It is also the basic approach used by the Illinois Torture Inquiry and Relief Commission, created in 2010 to investigate claims of police torture against the Chicago Police Department. Chanbonpin’s article sketches the creation of that Commission as a result of the torture claims in Chicago, as well as its deliberations and conclusions since that date. Most crucially, from my perspective, the article raises questions about the problems of pattern and practice investigation. As Chanbonpin notes, “like other informal justice practices, the TIRC has become re-purposed. Instead of empowering its participants, the TIRC is serving the state’s interests in maintaining the status quo by rejecting police torture claims that do not conform to the dominant narrative.” (P. 5.)

Chanbonpin’s criticism is directed, to some degree, at the specific pattern and practice model relied on by the TRIC, a model that accepts the idea that police torture in Chicago was the product of a few bad apples working with Jon Burge and therefore excludes claims of torture that cannot be traced to particular stations or particular officers. But Chanbonpin’s discussion raises larger issues about the purpose of this sort of inquiry, and the role of restorative justice. While Chanbonpin’s appeal to the idea of counter-publics, and the idea that speaking truth to both power and the powerless may be more important than the adjudication of claims, is framed as an exploration of public accountability, the discussion raises interesting questions of the role of evidence, and its relation to inquiry, for legal historians.

Those are fundamental issues of what we are about when we explore a historical event. Are we trying to reveal what really happened, with the result that we fail (or should give up) if we cannot pin that down? Are we trying to establish that it was more likely than not that something happened, in order to reveal and raise questions about a practice that would otherwise remain hidden from the historical record? How, if we rely on patterns to try to make a point, do we keep our pattern from shaping or silencing our narrative?

Those are not just questions about legal history; they are also questions of historical ethics. In the end, I suspect I will still consider Robert Nixon’s claims of police torture in 1938 in the context of a larger pattern of torture claims made between 1919 and 1939. But because of this article, I will think about that process differently.

 
 

In Plain View

Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999 (2014).

In this tightly argued and thoroughly engaging article, Gregory Ablavsky makes the case for a revisionist history of the U.S. Constitution that places Native American Indians at its center. While it isn’t hard to show that conventional constitutional histories largely neglect Indians, it isn’t easy to prove that such neglect is not benign. That is, it’s one thing to argue that standard accounts should include a discussion of Indians, but it’s another thing entirely to make a convincing case that core constitutional understandings would be fundamentally altered if historians fully and prominently integrated the history of relations with Indians into their narratives of the Constitution. Ablavsky aims for the latter, arguing that the history of the creation, drafting, and ratification of the Constitution should be rewritten with Indians in a leading role—and he does not miss the mark.

Ablavsky shows how concern over the problem of persistently hostile relations with Indians during the founding era informed James Madison’s and Alexander Hamilton’s competing Federalist arguments for a stronger central government. This isn’t a modest proposal that we pause for a moment to consider how events on the periphery might shed some light on constitutional debates at the center. Rather, Ablavsky tells us that there is nothing at all peripheral about the frontier when it comes to founding-era debates about constitutional design. The problem of Indian relations, he argues, was central not only for settlers, but for the likes of Madison and Hamilton, and for their fellow delegates and the ratifying public, as they debated the best form of government for the nation they were building. Contesting views on how to solve that problem substantially contributed to shaping the visions they articulated for a more perfect Union, in ways constitutional historians have yet to recognize.

On the Madisonian account, which Ablavsky labels the “paternalist” view, “[o]nly scrupulous adherence to treaties [with Indians] and their rigorous enforcement against states and squatters… could avoid costly wars that had resulted from national weakness under the Articles” of Confederation. (P. 1037.) Such adherence and enforcement could only be accomplished with a stronger central government. On the Hamiltonian or “militarist” approach, in turn, “[o]verwhelming force alone seemed the solution to the problems of Indian affairs” (P. 1038), yet the force in question was to be aimed not at states and squatters, but at tribes—the “natural enemies” of the United States, in Hamilton’s words (quoted at id.). According to Ablavsky, these competing understandings of the problem, and of what to do about it—paternalist on the one hand, militarist on the other—informed arguments at the convention not only concerning what became the Indian Commerce Clause, but also a range of related constitutional provisions. The Madisonian understanding comes into view in provisions directly involving treaties, including the Treaty Clause itself, the Supremacy Clause (with its inclusion of treaties), and the prohibition on states entering into “any Treaty, Alliance, or Confederation” (where the elimination of the words “with any King, Prince or State,” which had appeared in the analogous provisions in the Articles, meant that the language now “prohibited the sort of state treatymaking that had been so problematic under the Articles.” (P. 1043.) It is also apparent in the Property Clause (a.k.a. the Territory Clause), which gave Congress “explicit authority for the legally dubious Northwest Ordinance” (P. 1044), a document containing a provision on relations with Indians that “strongly reflected the Madisonian vision for the West” (P. 1045). Ultimately, however, it was the Hamiltonian or “militarist” approach to the problem of Indian relations that prevailed, according to Ablavsky, who makes the argument based not only on other textual evidence (for example, the removal of the qualifier “foreign” from the Guarantee Clause now “required federal military intercession if Indians attacked” (P. 1047), and the provisions concerning military affairs “remedied weaknesses that had plagued the United States in its earlier dealings with Natives” (P. 1050)), but also on structure (the states’ retention of considerable power within their borders had important and recognized implications with respect to Indian affairs) and on what one might call “spirit,” meaning of the expansionist sort (the federal state that emerged out of the founding moment was one committed to “empowering, not restraining, the inexorable westward tide” (P. 1050)).

Ablavsky’s overall argument for the centrality of Indian affairs to founding-era constitutional debates relies even more heavily on ratification: as he explains, “discussions of the Constitution’s likely effect on Indian affairs figured prominently in ratification, appearing in newspaper articles, pamphlets, letters, speeches, and even public toasts.” (P. 1051.) Ablavsky delivers on this claim with quotations from contemporary sources such as one alluding to the need for a central government with the power to confront “murdering savages.” (P. 1058.) But he also takes up the more challenging task of interpreting these debates in light of Indian relations even where the sources don’t contain explicit references to Indians. The discussion here focuses again primarily on the treaty power, with Ablavsky arguing persuasively that relations with Indians informed ratification debates on the nature and implications of the federal government’s power to make treaties at least as much as, if not more than, relations with Europeans (though he does take care at the same time to acknowledge that these two diplomatic fronts were substantially entangled).

In the closing pages of his article, Ablavsky turns to some of the broader legacies and implications of his argument for our understandings of constitutional history. The writing here is especially thoughtful and sharp, and the insights compelling. In a particularly elegant passage, he explains that federal financial and military support were crucial to Native dispossession, but that they were no more important than the militarist paradigm that cast settlers as victims and Natives as savages: “The specter of the ‘sword of the Republic’ undergirded all laws and treaties regulating Native interactions with the United States, often obviating actual bloodshed. Through this alchemy, ‘lawless’ violence was refined into the purer stuff of constitutional liberty and order.” (P. 1079.) Another passage makes the somewhat more concrete point that the article’s contributions are relevant to current debates about the domestic legislative effects of treaties, pointing out that Indian treaties, “perhaps the paradigmatic instance of treaties having domestic legislative effects,… were considered self-executing.” (P. 1081.)

In short, “The Savage Constitution” accomplishes the considerable feat of offering a revisionist interpretation of founding-era debates about the Constitution, with the potential to transform received understandings of some of the most important topics in our constitutional history. It makes for a truly rewarding read.

 
 

Law in the Conquest of L.A.

Law and conquest are deeply intertwined phenomena. We typically think of conquest as the physically violent and genocidal subjugation of people. But as a process, conquest involves the subjugation of both people and space and the reorganization of people within space. Conquest can only be consolidated, as Chief Justice John Marshall explained in Johnson v. M’Intosh (1823), when it generates new sovereignal claims and legal rights. Law, however, is not merely a consequence of conquest, it is also a constitutive element of it. The re-organization of space depends upon and generates ideas about how people relate to one another within that space, as well as ideas about how space can be owned and used, by whom, and to what purposes.

In Before L.A., David Torres-Rouff explores how Spanish, Mexican, and American migrants conquered Los Angeles by tracing “an interdependent, mutually constitutive relationship between race and space.” (P. 13.) Drawing on critical geography, which draws links between the built environment and social relationships, Torres-Rouff explains how, “In much the same way that race making leads to the formation of new individual and collective identities, place making leads to the transformation of previously neutral spaces into places with particular meanings that contain their own individual and differentiated identities.” (P. 11.) More specifically, he uses this interdependent relationship between race and space to demonstrate how local contests for power over land, labor, and water were integral to the construction of race in early Los Angeles.

Critical to this re-organization of people and space was law. Torres-Rouff does not use “law” as a major category of analysis himself, preferring the term “policy” in most instances. But what he terms “policy” was the legislative and administrative decisions about land use by the Los Angeles city council/ayuntamiento. It is in these decisions and their connection to the construction of race that legal historians will find Before L.A. to be an important and creative work. Through land, labor, and water policy, reinforced by occasional extralegal violence, people, places, and identities were configured, subdued, subordinated, and reconfigured over the course of the nineteenth century. Torres-Rouff’s book is a wonderful exploration of how, through law, race and space were construed simultaneously.

For example, L.A.’s founding period (1781-1840) involved the displacement of a military-religious form of colonization by a civil-economic form that was achieved in large part through law. During this period, the plaza, a “physical and symbolic center” in most towns throughout much of the rest of New Spain (P. 26), replaced the mission as the center of economic and political life, and communal economic norms guided land, labor, and water policies, displacing religious concerns. The ayuntamiento (or city council) distributed land on the condition that the user make improvements for the benefit of the community and created a servile laboring class through vagrancy laws. Finally, the mestizo founders (pobladores), who were by no means elites within the traditional Spanish casta system, created a fluid and distinctly localized racial system, through the allocation of land and water, as well as through its labor policies, that marked people by a combination of ethnicity, nativity, ancestry, occupation, land, and performance, rather than by phenotype.

This communal order had barely consolidated when new norms regarding space and race were introduced. American immigrants brought with them ideas about race rooted in phenotype and ideas about property rooted in market norms, creating what Torres-Rouff calls the “intercultural” period (1840s-1870s). The Mexican-American War accelerated this process as California became an American state subject to a new legal system that privileged individual over communal rights. But familial, economic, and political ties between established Mexican and emerging American elites enabled Angelenos to combine communal and market norms, however uneasily. For instance, when the federal Land Act required Mexican property owners to prove their title in court (which they could not because they held title to the use of the land rather than land itself), the Los Angeles city council passed the Free Land Law of 1852 that granted title to land on the condition of improvement, and recognized prescriptive rights, or long-standing uses, as evidence of ownership.

But as the American population grew in the 1850s and 1860s, pressure began to build on the “intercultural” order. The plaza became simply one of a number of political and economic sites. Phenotypic norms about race began to affect the ways that Angelenos thought about property and citizenship. Vigilante violence and sectional politics over slavery reinforced this trend. But it was during Reconstruction that the modern notions about race and space began to emerge in full force. Migration and settlement patterns began to make phenotype a more salient characteristic, as Mexicans, Chinese, and Americans resided in their own distinct neighborhoods. In the 1870s, the city council created a racialized electoral system based on wards, which tracked the segregated residential patterns. This inscription of race onto a map for the first time was an important turning point in L.A.’s history as it began to seriously undermine the cooperative politics of the preceding decades.

The modern period, which began to emerge in the 1870s and 1880s, is where Torres-Rouff’s connection between race and space becomes most interesting. It was in this period that the white American elite gained control of the city council. What Torres-Rouff finds is that the council’s most seemingly innocuous decisions about land—the laying out and paving of streets and the creation of a sewer system—marked L.A. as a modern racially segregated city. These infrastructural benefits were conferred only upon white American neighborhoods, ensuring the political and economic dominance of the white community, while marking the Chinese, Mexican, and other communities of color as not only poor, but as threats to the public health.

Street paving was perhaps the most lasting symbol of law’s conquest of L.A. A symbol of dominance over the natural landscape, it also involved the subjugation of specific groups of people through the seemingly neutral operation of a legal decision. Street paving represented the new racial order consciously created by whites without the need for physical violence. In the end, Torres-Rouff’s history of early Los Angeles demonstrates what Chief Justice Marshall knew all along—that ultimately law conquers all.

 
 

Guestworkers In Postwar America: A New History

In the past decade, there has been an explosion of wonderful work on the history of immigration and citizenship law. Cindy Hahamovitch’s No Man’s Land ranks with work of Mae Ngai, Daniel Kanstroom, Kelly Lytle Hernández, and others.  The book is essential reading for historians of twentieth century immigration.  It offers a brilliant account of the forces that have shaped modern immigration law and of the way immigration law categories have acquired meaning “on the ground.”

No Man’s Land is a meticulous and detailed study of the post-World War II agricultural guest-worker program as it applied to Jamaican workers.  Immigration historians have long been aware that immigration is a complex story of both “push” and “pull” factors, developments in the home country and those in the receiving country.  However, most historians focus on just one part of this dyad and make formulaic or empty gestures in the direction of the other.  Not Hahamovitch.  No Man’s Land pays serious attention to changing conditions in both Jamaica and the United States.  The book operates on multiple scales.  It situates the Jamaican guest-worker program in the larger geopolitical context of World War II and the Cold War; pays attention to horse-trading between the United States and Jamaica over the terms on which Jamaican workers would work in the United States; examines in considerable detail the conditions under which Jamaicans worked in different parts of the United States; discusses the efforts of American lawyers who sought to prevent exploitation of Jamaican guest-workers; and even focuses on the correspondence between Jamaican workers and their families back in Jamaica.

The book’s contributions are multiple.  First, it shows the intimate connections between employers’ needs, domestic labor, and immigrant labor.  Hahamovitch argues convincingly that the political and legal empowerment of African Americans around the mid-twentieth century made them less exploitable—and hence, less desirable–workers from the perspective of large agricultural employers in the South.  Faced with the emergence of a less easily exploitable African American labor force, U.S agricultural employers—especially large sugar growers in Florida—pressed the U.S. government for permission to hire immigrant labor.  By dint of perseverance and organization, they managed to convince the government that they could not survive without immigrant labor, even though there was no shortage of domestic labor that could do the job on less exploitative terms.  Temporary immigrant labor was attractive precisely because it could be controlled.  If a worker displayed the least sign of defiance or resistance, he would be shipped back to Jamaica (often after a night in jail) and would not receive a visa to return.  Jamaican workers fleeing desperate poverty were aware of these risks and thus intimidated into complying with onerous workplace demands and terrible living conditions.

Second, Hahamovitch offers a truly exceptional account—told from letters and recollections–of Jamaican workers’ varied experiences in the United States in the immediate post-World War II decades.  Jamaican workers were not accustomed to, and were generally unlikely to put up with, the United States’ intricate codes of racial segregation.  In the North, where they were often treated well, Jamaican workers defied racist treatment in public and private establishments, often successfully.  In such efforts, they were even supported by their employers.  When they went to Florida, however, they experienced such oppressive institutionalized racism that their resistance—to the racism around them and to their working conditions–was much less successful.  From the perspective of their white American supervisors, they were simply another category of exploitable black, their exploitability as blacks “enhanced” by their immigration status..  Living conditions were harsh, treatment brutal, and the cheating of workers rife.

Third, Hahamovitch devotes the last chapters of the book to efforts on the part of union organizers and legal services lawyers to organize and represent Jamaican guest-workers.  She describes in detail the obstructionist and oppressive tactics used by agrobusiness in conjunction with local law enforcement.

The pleasures of reading No Man’s Land lie in the great clarity of its argument and the easy quality of its prose.  Often, particularly in the later chapters, the book reads like—and displays the conviction of–a fine piece of crusading investigative journalism.  This is meant mostly as a compliment.  Hahamovitch seems to have no doubt at all as to who the “bad guys” and “good guys” are and loses no opportunity to drive home her point.  Although I might have wanted a bit more ambiguity injected into the narrative, I was entirely persuaded.  At a time when the United States’ population of undocumented workers is estimated to be approximately 12 million, and policy-makers are considering calls to create a system of temporary work visas to solve the problem of undocumented immigrant labor, Hahamovitch’s work is a cautionary tale.  Unless employers are subjected to appropriate oversight (something that U.S. immigration authorities have always been loath to do), temporary immigrant labor might represent a victory for employers, but might intensify the exploitation of domestic and immigrant labor alike.

 
 

Sex and Civil Liberties

Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012).

Multiple paradoxes lie at the heart of Leigh Ann Wheeler’s How Sex Became a Civil Liberty: a constitutional doctrine of sexual privacy exists alongside a public culture saturated by sex; women and sexual minorities enjoy unprecedented rights and freedoms while pornography proliferates in plain sight and civil libertarian principles underwrite opposition to rape shield laws and hate speech codes. Meanwhile, liberals and conservatives alike speak in a common civil liberties idiom that embraces the individual’s right to access sexual material once considered an obvious and proper target of state regulation. As Wheeler’s engaging history of how the American Civil Liberties Union (ACLU) helped make sex a civil liberty reveals, commitments to sexual freedom and consumer rights grew out of the changing political and cultural milieu from which the organization emerged and drew its leaders.

Wheeler’s story begins in the early twentieth century with portraits of individual ACLU founders and leaders including Roger Baldwin, Crystal Eastman, and Madeleine Zabriskie Doty. She highlights how their sexual lives—more adventurous and avant-garde than previously understood—shaped their thinking and spawned a civil liberties vanguard. Wheeler’s account intriguingly suggests that men’s and women’s differing experiences of the “first sexual revolution”—relatively unmitigated liberation for men, a much more ambivalent legacy for women who continued to value fidelity and lived in fear of unwanted pregnancy—may have led them to see birth control as an essential liberty that could also help to bridge this gender gap.

Subsequent chapters detail the ACLU’s evolving approach to the regulation of sexual expression and conduct, including “obscene” literature, nudity, reproductive freedom, homosexuality, rape, and sexual harassment. In its first decades, the ACLU’s engagement with matters of sex matured from covert assistance to public advocacy, from representing friends to taking the cases of strangers, from standing on principle to embracing pragmatic strategies, from defending the right to speak freely about birth control to encouraging government support for contraception.

In the postwar period, the ACLU played an integral role in developing consumer rights arguments for First Amendment protection of sexual expression. Making free speech a consumer right, Wheeler notes, created a large and powerful constituency for the First Amendment, giving ordinary Americans a stake in censorship and in the constitution. For the ACLU, it also meant attacking not only government efforts to restrict sexual expression, but also pressure groups’ attempts to privately regulate the availability of media formerly considered obscene through boycotts and rating systems, among other means.

The move from collective to individual rights, from producer- to consumer-oriented arguments, from the protection of noncommercial to commercial expression, arguably is one of the key distinctive elements of American constitutional law and culture in the second half of the twentieth century. So too is the emergence of sexual privacy, in which the ACLU played a less central but nevertheless important part. Wheeler highlights the “intellectual cross-pollination” that led ACLU leaders such as Harriet Pilpel, Morris Ernst, Dorothy Kenyon, and Melvin Wulf to define privacy’s ambit to encompass sexual behavior as well as sexual expression. Wheeler also provides an engaging profile of Marilyn Geisler Haft and the short-lived but important career of her Sexual Privacy Project, which lost nearly every battle it fought but paved the way for later gay rights breakthroughs.

Historians of feminism and law will find much of interest in Wheeler’s book, most especially her later chapters on the making of reproductive freedom and contentious internal debates regarding rape and sexual harassment. Wheeler shows how, in the 1970s, the ACLU’s support for “reproductive control” evolved toward an agenda advancing “reproductive freedom,” largely because of the organization’s growing awareness of and involvement in cases of involuntary sterilization. She illuminates the complicated racial and class politics of reproductive rights by recounting the dilemmas advocates confronted in seeking greater access to abortion and sterilization services without enabling coercive practices that targeted poor women and women of color.

The ACLU’s commitment to racial justice also complicated the organization’s position on rape and sexual assault. Accustomed to fighting for the rights of African American male defendants wrongly accused of attacking white women, many within the ACLU remained reluctant to embrace rape shield laws and other victim-oriented protections feminists sought. The racial politics of sexual harassment were quite different—indeed, African American women led the way toward recognition of harassment as actionable discrimination—but there civil libertarian concerns about the suppression of speech and sexual expression divided ACLU members. Wheeler’s fine-grained account brings to life the tensions between feminism and civil liberties, freedom and equality, privacy and state regulation that animated these internal debates and continue to trouble progressive legal advocacy to this day.

 
 

Forget About Noah’s Ark

Irus Braverman’s recent book Zooland is a wonderful read on a topic that is of both historical and current interest—zoos. How should we view zoos given the frank admission by all, including zoo advocates, that zoo animals are captives, forced to forgo what would otherwise be a superior existence in order to serve the pedagogical and conservationist agenda that zoos have cultivated as justifications for their existence? These animals have been conscripted as “ambassadors for their species” (P. 8) and are in a sense turned into “body doubles”—“stand-ins for the real animals” and their wild habitats about which they are supposed to be raising awareness (P. 58). Perhaps zoos are effective at raising this awareness. Braverman is distinctly agnostic on the question of whether zoos are generally a good or bad thing.

Legal historians will be interested in the shift Braverman describes from zoos as sites of entertainment, a variation on the old menagerie style collection of animals, preferably exotic, that would then perform various colonialist and empire-building functions, to the (arguably) more laudable conservationist rationale and its accompanying practices often targeted at educating adults and children about species and habitat decline and destruction. The real animals are “just the hook” as one of Braverman’s interview subjects, Jim Breheny of the Bronx Zoo, puts it. (P. 41.) They are meant to draw you in. What they draw you into, as Braverman’s book details, is a world of contradictions. Braverman calls what she has found a Foucauldian “power of care,” minute in its regulation of the daily lives of zoo animals and profound in its reach into such fundamental aspects of the animals’ lives as the question of which animals are allowed to reproduce and which are not, which will be put on board “Noah’s Ark” and saved and which will not. The regimentation of the animals’ lives serves another disciplinary end: “Whereas once zoos were in the business of entertainment through taxonomic exhibitions,” Braverman writes, “now they discipline the public into caring about nature.” (P. 90.)

Braverman locates the origins of the shift from the American zoo’s focus to conservation and care in the 1970’s. The Endangered Species Act of 1973 is an important marker, as it prohibited zoos from obtaining new animals from the wild. This put pressure on zoos to coordinate their efforts and their animals in an attempt to maintain a maximum amount of genetic diversity in their animal populations using the “living founders” that came from the wild. (P. 14.) Although only 10% of American zoos belong to the organization, much of the book focuses on the practices of the Association of Zoos and Aquariums (AZA) and the role it plays accrediting zoos and coordinating this kind of activity through its cooperative breeding programs. “Through its accreditation standards, the AZA effectively establishes a legal ‘zooland,’ wherein only accredited members may participate in the collaborative conservation project,” writes Braverman. (P. 154.) One chapter is dedicated to describing the way that the self-regulation of the AZA interacts with a web of often indirect state and federal law that can apply to zoos. Another is devoted to the Registrar of the zoo, the administrator whose job it is to ensure compliance with all regulations and keep track of documentation related to the animals. This position came into existence at the end of the 1970’s and corresponds to the more general shift to an arguably more humane and certainly more heavily bureaucratized and professionalized environment in which at least accredited zoos currently operate.

Contradictions under the “power of care” are myriad and readily recognizable to anyone who has ever been unsettled by a visit to the zoo. First there are “the very un-junglelike smells of hot dogs and popcorn.” (P. 38.) These and the wide variety of items available for sale in the gift shop must surely prevent every visitor from feeling that he or she is having a true naturalistic experience. As a geographer as well as a law professor, Braverman is attentive to issues of place and space. So, for instance, she documents the way that mock habitats are designed to look “natural.” Yet a tremendous amount of work goes into achieving that effect—exit signs that are not too distracting or well-disguised fire sprinklers. Braverman refers to “the zoo’s dual work of producing nature and obscuring its production as naturalization,” a doubly artificial process of producing nature and then hiding the traces of that production. (P. 25.) The exhibits also erase any trace of the human animal. To do otherwise would ring of the old racism in diorama displays of humans who were thought by Western Europeans to be closer to animals and fit objects of display.

Braverman describes and provides photographs of holding areas where zoo animals spend a great deal of time being controlled and cared for, old fashioned cages, a space not meant to be seen by members of the public yet actually preferred by some of the animals. Further contradictions involve the efforts that are made to preserve the wildness of the animals—no one would be interested in seeing the animals if they were like domestic pets; they need to retain their wildness to retain their allure—but yet zoo animals are not allowed to hunt or kill other animals, unless those other animals are very low down on the food chain. In their natural habitats most of these animals would only be seen fleetingly. Yet at the zoo visitors are disappointed if they do not get good opportunities to see the animals. So as one interviewee, Buffalo Zoo architect Gwen Howard, put it, “it’s really a kind of staged reality. You force them to do the thing they would naturally do, [but to do it] in a prime viewing spot.” (P. 77.) Exhibits are designed to maximize views and “encounters” with the caged animals yet minimize exposure to unpleasant smells and actual physical danger.

The most striking contradiction highlighted in the book is the way that although zoos currently justify themselves using a conservationist rationale, when push comes to shove, they actually steer away from the protection of the most endangered animals. The AZA divides zoo animals in green, yellow and red populations, where red populations are most at risk. If there are too few individuals in a red program for the species to be sustainable, they are not eligible for collaborative management in the inter-institutional breeding programs. As one interviewee put it, “Having a pair of rare endangered species that no other zoo has won’t do us any good.” (P. 163.) So much for Noah’s Ark. This undermines in quite a serious way the zoo’s commitment to conservation and does not jive well with the claims made by zoo professionals that “[o]ther purposes, such as making a profit and surviving as institutions, are … relatively marginal in comparison to the protection of wildlife.” (P. 184.) Ex situ or out-of-nature conservation that happens within the zoo’s walls is supposed to ultimately support in situ or in-nature conservation out there—that is the whole idea behind the justification of the ambassador’s sacrifice.

Braverman does an admirable job of walking the line between zoo advocacy and condemnation and tracing an important historical and cultural shift in the self-understandings of those involved in the increasingly bureaucratized and professionalized institutional care and control of zoo animals. One gets a sense from the book and the voices of her interview subjects that zoo professionals really do care about these animals, probably more intensely and more intimately than any zoo critic ever will, they would probably hasten to add. The book puts forward their perspective fairly and with a great deal of compassion. On the other hand, it is steadfast in highlighting the contradictions and problems with zoo messaging that many of us have experienced and have probably only dimly perceived on a visit to our local zoo.

 
 

How Tax Law Made America Modern

Ajay Mehrotra’s new book, Making the Modern American Fiscal State, describes how the United States in the late nineteenth and early twentieth centuries transformed the way it taxed its citizens and thereby laid the foundation for new forms of governance and new sensibilities about the network of civic obligations that bound the nation together. This is a truly impressive work of legal historical scholarship—thoroughly researched, well written, and powerfully argued. Mehrotra also offers a masterful demonstration of scholarly synthesis, artfully weaving together an intricate tapestry of economics, politics, law, and social history.

At the heart of Making the Modern American Fiscal State is a revolution in American tax practices. Prior to the twentieth century, the national government raised revenue through a system of import duties and regressive excise taxes that were “indirect, hidden, disaggregated, and partisan.” (P. 6.) By the end of the story, in the wake of World War I and on the cusp of the New Deal, a much different taxing regime was in place. It was a progressive system that was “direct, transparent, centralized, and professionally administered.” (P. 6.) While prior forms of taxation drew on a premise of a quid pro quo exchange between citizen and government—citizens put money into the system and received certain benefits in return—the new form of taxation challenged this atomistic “benefits” theory and emphasized instead a thicker sense of national community and responsibility. Taxes were assessed on a principle of one’s “ability to pay.” This approach, Mehrotra explains, “promoted an active role for the positive state in the reallocation of fiscal burdens, the reconfiguration of civil identity, and the rise of administrative authority.” (P. 10.) The rise of the modern fiscal state, built on this transformation in taxing policy was, in Mehrotra’s account, a radical change in policy with lasting effects on American statecraft and society.

This is an ambitious book. Mehrotra crafts a richly textured history of the tax reform movement, with an ensemble cast of characters. There are populist social activists, whose calls for tax reform were a part of their larger challenge to the prevailing economic arrangements of industrial capitalism and the stark societal inequities that resulted. There are progressive political economists, such as Richard T. Ely, Henry Carter Adams, and Edwin R. A. Seligman—the “visionaries or architects of the modern American fiscal state.” (P. 87.) Their ideas “drove the intellectual transformation in tax law and policy, paving the groundwork for the subsequent legal and popular acceptance of a new fiscal order.” (P. 146.) There are the lawyers who crafted legal rationales to justify progressive taxation, a task that took on added urgency when, in 1895, the U.S. Supreme Court struck down the federal income tax. There are the lawyers in the Treasury Department who, during World War I, created the institutions that would administer the new tax system. And there are several generations of lawmakers and government officials who debated and eventually passed and then had to implement this novel approach to tax policy. The focus of the book is on national-level tax battles, but Mehrotra also gives considerable attention to the roughly parallel developments on the state level. It is a mark of Mehrotra’s skill as a historian and writer that he is able to pull all these strands together into a coherent, highly readable narrative.

In a book filled with well-crafted analyses of key turning points in the rise of progressive taxation, particularly fascinating is Mehrotra’s account of the background and aftermath of the Supreme Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust Company striking down the federal income tax law. Ultimately, the ruling proved only a temporary setback for reformers. Indeed, it became powerful rallying point for the entire progressive tax movement. The year following the Court’s decision, the graduated income tax was in the Democratic Party’s platform. Although a Republican victory in 1896 sapped some of the reform movement’s momentum, it steadily gained strength in the opening decade of the twentieth century. Congress passed a corporate excise tax in 1909, the same year it approved the Sixteenth Amendment, which overturned Pollock and granted Congress the power to create an income tax. When it became part of the Constitution four years later, Congress quickly took advantage of its new power.

Another critical turning point in Mehrotra’s story was World War I. It was during the war years that the federal government dramatically expanded its new tax regime. It was during the war that the modern American fiscal state took form. “Although the wartime tax system may not have gone as far as some activists had hoped,” Mehrotra writes, “the unprecedented turn toward a system of steeply graduated taxes fundamentally altered the distribution of economic obligations, the meaning of fiscal citizenship, and perhaps most significantly the burgeoning powers of the administrative state.” (P. 295.) The book includes a wonderfully crafted chapter on the lawyers who worked to create the new administrative apparatus of the modern fiscal state during World War I.

One of the lessons learned for reformers in Pollock’s aftermath was that they had to do a better job of selling their agenda to the nation. Reformers increasingly advocated a more moderate version of progressive taxation, one that was “more about reallocating the burdens of financing a modern state, and less about radically redistributing income or wealth,” one that aligned with “traditional American values and institutions.” (P. 183.) Rather than a tool of redistribution, reformers promoted progressive taxation as a way to protect industrial capitalism, albeit in more humane, equitable form. The lawyers who designed the administrative structures that would effectuate the new tax system during the war years followed in their footsteps. The particular form of progressive taxation that took shape in the United States, Mehrotra concludes, both made possible the emergence of the modern fiscal polity and ultimately limited its redistributive potential.

This book serves as a model for legal historians who are looking to integrate fine-grained, nuanced analyses of historical events and actors with the kind of big-picture ideas that most readily engage our fellow legal scholars. This is a book that illuminates a fundamental transformation of the American state, a transformation in whose shadow we obviously live today. This is also a book that takes ideas quite seriously. (Mehrotra begins one of his chapters with John Maynard Keynes’s quotation about “[p]ractical men” unknowingly being “the slaves of some defunct economist.”) But this book is not, in the end, a work of intellectual history or political theory. It is history in which ideas are important because they moved the machinery of politics and law. Understanding the roots of the policy changes examined in this book requires careful attention to the larger ideas that made the policy seem so urgent and necessary. We are thus witnesses to the complex interplay of ideology, legal development, politics, and social activism. Out of all this, as this book so effectively and smartly demonstrates, arose a new set of legal norms, political expectations, and societal sensibilities.

One of the most important contributions of Making the Modern American Fiscal State is the way in which Mehrotra conceptualizes the very idea of taxes. Taxing, in Mehrotra’s account, was not just a tool for raising revenues to fund whatever policy the government in power favored. It was not just a neutral means to a contested, ideological end. Taxing policy was itself a statement of substantive ideology; it was a discourse through which Americans could talk about their vision of government and civic responsibility. “Fiscal citizenship” is the nicely evocative label Mehrotra attaches to this idea. This is a rich, compelling, and convincing framework through which to think about taxing. And it is a perfect vehicle for telling the story of the rise of progressive taxation and thus the formation of the modern American state.

 
 

Gay Rights in the Workplace

Katherine Turk’s recent article, ‘Our Militancy is in Our Openness’: Gay Employment Rights Activism in California and the Question of Sexual Orientation in Sex Equality Law, offers a deeply researched history of gay rights activism in California—“the epicenter of the gay employment rights movement” (P. 426)—that engages important questions about the benefits and limits of different legal strategies. In this detailed local history of the gay employment rights movement, Turk discusses the work of a number of advocacy organizations in the state—including the ACLU of Southern California, the Los Angeles Gay and Lesbian Center, the Metropolitan Community Church, the Society for International Rights, the Committee for Homosexual Freedom, the Committee on Rights within the Gay Community, and the National Gay Rights Association—through which activists pressed for equal rights in the workplace. Although this movement was dominated by gay men, Turk makes clear that it is not a story of a fractured movement. Instead, activists throughout the gay community understood the prosaic importance of employment rights, and the employment nondiscrimination litigation at the center of her narrative “embodied some of the most universal and consistent claims at the heart of the modern gay rights movement.” (P. 428.)

Activists called for a new model of workplace rights, as they sought legal protections that combined the equality arguments used by women and people of color with gay liberationist arguments that embraced sexual orientation. In doing so, they contended “that a worker’s gender and sexual orientation were irrelevant to his or her ability to perform a job, but that the freedom to signal those identities was an essential element of workplace equality.” (P. 426.) Thus, the gay employment rights movement rejected equality arguments based in sexual privacy, “which assumed that people could—or should—leave their sexual identity behind at the office door.” (P. 435.)  Instead, activists argued, gay and lesbian workers should be able to participate in the workplace in the same way their heterosexual colleagues did—as workers with professional skills and rich personal lives.

However, as Turk demonstrates, gay employment rights arguments were met with a cool reception.  Complicating the traditional rights-affirming narrative of Title VII of the Civil Rights Act of 1964, she demonstrates that the statutory and judicial landscape of the 1970s was not open to employment discrimination claims based on sexual orientation. The limitations of Title VII, which activists tried—and failed—to use to their own benefit, are particularly apparent in the story of the litigation involving Pacific Telephone & Telegraph (PT&T), one of California’s largest employers. Although plaintiffs offered evidence that PT&T was actively hostile to gay and lesbian workers, judges refused to accept arguments that sexual orientation deserved inclusion under Title VII’s ban on sex discrimination. As a result, “courts effectively severed sex from gender and sexual orientation before the law and reinforced notions of sex as biological and natural, unlike gender and sexual orientation”; judges’ insistence that sexual orientation, unlike sex, was not an immutable category meant that gay men and women were unable to draw on the sex-discrimination language in federal law. (P. 430.)

The judicially defined limits of Title VII led to two different paths to employment rights. Individuals bringing claims of discrimination on the basis of race, ethnicity, or sex were able to seek remedies in federal courts, while individuals facing discrimination due to their sexual orientation were limited to state and local remedies. The latter did offer some protections; Turk makes clear the variety of ways in which activists successfully worked pressured public and private employers to change their hiring policies, and won city and state-level bans on discrimination in municipal hiring. However, these victories resulted in “a piecemeal set of provisions that substituted voluntary corporate action, interest group pressure, and scattered local laws and court decisions in place of strong, uniform protections from discrimination.” (P. 460.) It also “accelerated the divergence between the movement for gay rights and those of other minorities.” (P. 431.) This divergence made discrimination claims harder to remedy; it also meant that these protections remained partial once conservatives fought back against the gains of the gay rights movement and once the AIDS epidemic pushed gay rights activists away from efforts to achieve broad workplace rights.

Turk’s article does an excellent job combining local history with an important story about the use of law for social change. The article makes clear the very real successes that the gay employment rights movement achieved at local levels, and indicates the amount of effort such successes required. (Crucially, it also describes how private-sphere efforts complemented legal ones.) At the same time, Turk shows how these protections nonetheless often fell short of their goals. Most importantly, she indicates that the gay employment rights movement offered paths not taken—both for gay and lesbian employees, but also for Title VII claimants more broadly. This was a particular loss for women; as she concludes, gay activists’ emphasis on free expression “represented a profound challenge to the regime of gender conformity and masculine privilege that still structures the typical American workplace.” (P. 469.)