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.)


A Legal History That’s Really About the Place of Law in History

As the title suggests, Someday All This Will Be Yours is a legal history about inheritance and old age. The legal conflicts that form the core of the book make for compelling reading. Even so, the title does not capture the book’s most compelling elements, which challenge conventional assumptions about legal history and the place of law in the past.

Someday All This Will Be Yours is a legal history in which the law is not really the focus. To be sure, Hartog bases the book on two hundred New Jersey cases from 1840 to 1950. All these cases involved conflicts over inheritance, in which older people promised property in return for care from younger people—often, but not always their children or other relatives. Hartog calls it a “primordial transaction found perhaps anywhere and everywhere and in any time and every time”: “Work and care for property. You do this (take care of me), and I promise to do that (give you property at my death).” (P. 3.) In law, such promises resulted in an enforceable contract, and legal cases ensued when older people did not follow through with their end of the bargain. As Hartog argues, the cases did form a distinct legal pattern, in which the wishes of the older people writing the wills took precedence over those of the younger people to whom promises had been made. But, as he also points out, the legal implications are not really the point. In fact, the cases have been largely forgotten in law.

So why bother with this piece of the law? The answer lies in the conflicts that brought the cases to court in the first place. Borrowing from legal anthropologists, Hartog describes the conflicts as “cases of trouble” that reveal legal norms because they transgress them. The resulting analysis is legal history of a particular kind. In Hartog’s hands, the legal cases at the heart of the narrative reveal less about the law, per se, and more about the social dynamics and the cultural norms of the period between 1840 and 1950: not just geographic mobility, immigration, urbanization, commercialization, and industrialization, but also how people thought about themselves and their relationships to others. Hartog tells that story from a unique perspective, that of elderly people and their young caretakers. More than that, Someday All This Will Be Yours filters larger historical dynamics through the lives of particular elderly people and their young caregivers, giving those dynamics a human dimension that is impossible to grasp, let alone explore in most analyses of the period, which deal with them at a more abstract level.

Most interesting, though, is how closely the law was implicated in the ways that people structured even the most intimate aspects of their lives. Hartog uses the lens of the law to strip away the veneer of sentimentality that so often accompanies discussions of families and communities, so as to reveal the power dynamics underlying those relationships. The approach is in keeping with Hartog’s previous book on marriage and with feminist scholarship on women and the family more generally. If anything, the power dynamics between the young and old were—and are—more fraught than those between husbands and wives. Property, as Hartog shows, was key in this relationship—at least in the period between 1840 and 1950. By tying the young to the old, property kept families together and created relationships among unrelated people that looked and functioned like families. But the law was also crucial in creating those relationships, which were negotiated through a legal culture that framed expectations of what was involved. In fact, popular conceptions of law so permeated family relationships that the two are difficult to separate in Someday All This Will Be Yours. That aspect of the analysis also contains the book’s most challenging historical and historiographical contributions. Ultimately, Someday All This Will Be Yours points to a very different conception of the law in history and of legal history: it suggests that law occupied more space than most historians allot to it and that legal history is actually necessary to understand dynamics that might, at first glance, seem unrelated to the law.


The Long History of the Indian Child Welfare Act

Margaret D. Jacobs, Remembering the "Forgotten Child": The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 American Indian Quarterly 136 (Winter/Spring 2013).

The modern nation-state is rife with contradictions: “hard” borders that are in fact both permeable and unstable; inhabitants who have assumed many of the rights and obligations of citizenship, but whose illegal border crossings undermine the nation’s claim to sovereignty; territories within the nation-state where the state’s jurisdiction is uneven or unclear. In recent U.S. history, these contradictions have been made visible in poignant form: Elián González, the Cuban boy whose asylum case captivated the nation in 2000; the high-achieving “alien minors” contemplated by the DREAM Act; and most recently, Baby Veronica, the child at the center of a fierce custody dispute between her biological father, a member of the Cherokee Nation, and her non-Indian adoptive parents. In December 2011, when Veronica was 27 months old, the South Carolina Family Court found that two provisions of the Indian Child Welfare Act of 1978 (ICWA) barred termination of the biological father’s parental rights. In Adoptive Couple v. Baby Girl, No. 12-399 (U.S. June 25, 2013), the Supreme Court disagreed. The majority opinion, which casts Baby Veronica as only the slightest bit Cherokee (3/256, to be precise), should be read alongside Margaret Jacobs’s important article, “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s,” which encourages us to remember all the children that came before—and all the nation-making and un-making done on their backs.

To be clear, the majority opinion in Adoptive Couple v. Baby Girl is not devoid of history—it recognizes the ICWA’s concern for the disproportionate number of Indian children separated from their families and tribes through abusive child welfare practices—but the larger context is missing. Sometimes such omissions reflect gaps in the historical literature: knowledge about the past is easily lost when people are afraid or ashamed to talk, or when historians fail to ask them. In this instance, however, there was not only a selection of historically informed amicus briefs, but also Jacobs’s superb scholarly article. Jacobs, a Bancroft-winning historian, explains why “the fostering and adoption of Indian children outside their families and communities had reached . . . crisis proportions by the late 1960s,” and why Native Americans ultimately demanded greater legal protections. (P. 137.)

One of Jacobs’s most important insights is that this relatively recent crisis had deep and ugly roots. From the late nineteenth century well into the twentieth, federal policy toward Native Americans was one of coercive assimilation. One well-known strategy was the allotment of tribal lands into individual parcels (via the Dawes Act of 1887). A second strategy was the removal of Indian children from their homes and their placement in distant boarding schools to be “civilized” and reeducated. This practice both “normalized Indian child removal,” Jacobs argues, and left several generations unequipped “to raise children within their own cultural contexts.” (P. 139.) Federal Indian policy shifted in the 1930s, when officials displayed greater solicitude for tribal self-determination, but policymakers continued to see Indians as a “problem” and “Indian child removal as a solution.” (P. 140.)

Jacobs supports this argument through a close examination of the Indian Adoption Project (IAP), a joint effort by the Bureau of Indian Affairs (BIA) and the Child Welfare League of America. Starting in the late 1950s and continuing through the 1960s, the IAP vigorously promoted the adoption of Indian children. It served as a clearinghouse for prospective adoptive families, connecting them with state agencies. It “cultivated the demand for adoptable Indian children,” through ads in popular media and savvy portrayals of Indian children. (For example, tapping into Great Society rhetoric, the group depicted the Indian child as “forgotten” and desperately in need of white, color-blind goodwill. (PP. 142-43.)) Most startlingly, the IAP “sought to increase the[] supply” of Indian children, through alliances with BIA and state social workers. (P. 144.) In the course of providing social services and public welfare benefits, social workers encouraged Indian mothers to relinquish their infants. With the cooperation of state courts, they also removed children from the mother’s custody or the care of extended family. To do so they relied on entrenched narratives of Indian family dysfunction and their own common-sense preference for the nuclear family model. Often they simply conflated poverty with parental neglect. In the meantime, the IAP cultivated a more favorable legal environment by lobbying for fewer restrictions on Indian adoptions and chipping away at tribal courts’ jurisdiction over child welfare.

These revelations are sure to disturb any reader, but the point of Jacobs’s important article is not to expose adoption proponents as disingenuous or malevolent. It is to place an ongoing phenomenon—Indian children’s disproportionately high rate of separation from their families—in proper historical context. (P. 154.) “It is no coincidence,” Jacobs writes, “that the IAP arose during the era in which the federal government promoted termination [of tribal nations’ special status] and relocation policies for American Indians.” (P. 152.) Adoptions enabled the federal government to terminate its responsibilities, child by child, by shifting them to “the ultimate ‘private’ sector.” (P.154.) By extension, Jacobs argues, adoptive families also advanced the government’s long-term “effort[] to eliminate Indianness.” (P. 154.) This, Jacobs demonstrates, was the backdrop for the ICWA. When tribal leaders and advocacy organizations convinced Congress to enact the new law, it was a small victory in a long war. And when plaintiffs invoke the ICWA today, they raise a hard-won shield.

Jacobs’s article should be required reading for all consumers of the Court’s opinion in Adoptive Couple v. Baby Girl. It serves as a reminder that although 27 months is a long time in a small child’s life, it is a short span in a multi-generational battle to preserve “Indianness,” and although 3/256 may seem like a paltry fraction, it may look different to a people with legitimate but vulnerable claims to autonomy and self-preservation. Like the best legal histories, in other words, this article takes the legal categories and metrics that today seem utterly natural and unmasks them, inviting us to consider other ways of understanding our legal order.


The Disaster Relief Precedent

Michele Landis Dauber, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (University of Chicago Press, 2012).

“The inner city deserves a disaster relief plan,” wrote Reverend Jesse Jackson, on the eve of Detroit’s bankruptcy filing and in the wake of Hurricane Sandy. The storm-ravaged coastal communities “all deserve[d] aid,” Jackson emphasized, but in cities around the country a “disaster” was unfolding that was “equally devastating, equally beyond anyone’s fault, and yet essentially ignored at the national level.”1 Readers may disagree about the merits of the analogy or the wisdom of Jackson’s proposal, but the structure of the argument should surprise no one—at least not after reading Michele Landis Dauber’s important new book, The Sympathetic State.

Since the nation’s founding, Dauber shows, Americans have mobilized the concept of disaster to claim large federal appropriations for those in need, even in decades remembered for laissez-faire governance. Using a “disaster narrative” (P.7), Congress distributed funds to the victims of floods and fires, droughts and earthquakes, Indian depredations and grasshopper plagues. Scholars who write about the welfare state often see a distinction between treatment of the “able-bodied” and those who are unable to work; it is one’s ability and willingness to participate in the market, in other words, that dictates “deservingness.” That distinction is absent, Dauber notes, in the case of disaster relief: the underlying logic of these grants is that the recipients are in desperate need “through no fault of their own.” (P. 34.)

The interesting thing about disasters is that the concept is malleable, making this apparent loophole in the American welfare state deeply significant. Over time it has stretched, as precedents accumulated and as relief seekers reasoned by analogy. Dauber includes many examples of this phenomenon, but the big one is the Great Depression. Drawing on novels, photographs, political speeches, and other popular sources, she shows how Americans came to understand their personal and local misfortunes as a national disaster. She then demonstrates how New Deal policymakers and administrators used that shared understanding—which they did much to craft—to legitimize an ambitious slate of federal social and economic legislation. Reading this section of the book, one can’t help but admire Dauber’s own craft: she masterfully blends social, cultural, political, and legal history to tell a story that feels both fresh and fundamentally correct.

Legal scholars may find even more to admire, however, in the next section of the book, in which Dauber painstakingly reconstructs a lost world of New Deal lawyering. Building on the work of Peter Irons and others (and offering important corrections to that literature), Dauber documents where and with whom these lawyers trained, how they understood the Constitution, and how ideas and research circulated within their legal community. The pay-off is big. For example, Dauber thoroughly debunks the notion that the Constitution or the specter of a villainous Supreme Court prevented New Dealers from enacting a federally administered scheme of unemployment insurance. The program’s federal-state design resulted from political compromise, not doubts about the constitutional reach of federal power. Similarly, she shows that New Deal lawyers had every reason to feel confident about the constitutionality of the “straight national” old age insurance program (Social Security): disaster relief precedents assured them that the Court would take a generous view of Congress’s spending power under the General Welfare Clause. (P. 183.) For scholars of “constitutional revolutions,” and really, for anyone interested in the work of government lawyers, this is a must-read.

To sum up, there are many reasons to pick up this book, including Dauber’s accessible and engaging prose, her evocative descriptions of historical actors (lawyer and economist Barbara Nachtrieb Armstrong practically jumps off the page), and her creative use of legal-historical sources. But here’s the one that will stay with me: Scholars who write about the welfare state often emphasize the importance of policy “paths” and the durability of social programs once they become institutionalized. Old age insurance, with its powerful constituents, is the classic example. But what about the programs that benefit the most powerless members of society? When such programs are founded on a disaster narrative, Dauber argues in the book’s clear-eyed postscript, they require that same narrative to retain legitimacy, and as the bulk of the book documents, narration is hard work. It is especially hard when the disaster is something like unemployment (rather than, say, a wildfire). Meanwhile, the longer the program survives, the harder it becomes to argue that program beneficiaries are the victims of circumstances beyond their control. A powerful and traditional counter-narrative emerges in which beneficiaries are lazy, improvident, and unworthy of government support.

Back in 2007, Naomi Klein popularized the phrase “disaster capitalism” to describe the historical coincidence of societal “shocks”—tsunamis, hurricanes, wars, and other disorienting events—and the implementation of sweeping neoliberal economic policies. The results, in Klein’s view, have been, well, disastrous, not least for the poor.2 A pessimistic reading of The Sympathetic State suggests that fresh disasters may also be the best hope for those whom capitalism leaves vulnerable, for this is the stuff out of which blamelessness is imagined. Policymakers may, of course, reject this well-worn path, and scholars may critique it, but we should thank Michele Landis Dauber for making it visible in the first place. This is legal history at its best.

  1. Jesse Jackson, “Inner Cities Need Disaster Relief, Too,“ Chicago-Sun Times, June 17, 2013. []
  2. Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (Picador, 2007). []

Empire Before Nationhood

One of the challenges of reviewing Eliga Gould’s international history of the American Revolution, Among the Powers of the Earth, is that the book makes you feel like you’re looking at history through a 360-degree lens. A legal, diplomatic, and intellectual history spanning from the mid-18th century to the declaration of the Monroe Doctrine in 1823, the book situates the Revolution in the context of the evolving law of nations in a strikingly rich and detailed account. Everything, it seems, is in there.

Partly it’s Gould’s writing style. Rich in narrative and streamlined in argument, its movements back and forth between the two are unlabored.

Partly it’s Gould’s obvious love of the stories he tells. He writes as if he had been there and remembers it all, and having seen it firsthand, wants to sit down with you and tell you all about it. When he gets going, you feel like the historical actors are his neighbors and the plotlines are the latest gossip in town.

And partly it’s Gould’s ideas, which are as capacious as his narrative. But before I turn to the one that I found most intriguing, I should say that if I overstate the case, I will do a disservice to the book, which among its many strengths boasts that of not overstating its case. So let me catch my breath and say, first, that Gould’s book makes an important contribution to the literature on the international legal history of the American Revolution and Founding era, and second, that there’s one thing about the book I confess I don’t “like lots,” and that is the phrase “treaty-worthy.” As in, Gould argues that in order truly to achieve the status of an independent nation, Americans had to prove that they were “treaty-worthy.” Apart from being slightly too clunky to do justice to the rest of Gould’s writing, the phrase feels to me as if it fails to capture—just barely, but still—one of Gould’s own most compelling insights: namely, that to be treaty-worthy, a nation had to be more than treaty-worthy. To be treaty-worthy, that is, a nation had to be an empire.

Gould alludes early on to Americans’ “drive to be accepted as a treaty-worthy nation in Europe.” (P. 11.) What he then shows is that Americans’ drive for acceptance succeeded only when it was no longer up to Europe whether to accept or not accept. It would be a mistake, that is, to believe that Americans became a treaty-worthy nation when European powers finally “accepted” them as such. Not only would formal recognition, while itself a crucial step toward independence, not suffice; neither would outside acceptance of the United States’ “treaty-worthiness.” This is because, as Gould shows, treaty-worthiness is ultimately accomplished not by acceptance but by imposition: upon external powers and upon internal minorities. Gould ably sheds light on the subjugation of Native Americans and blacks by showing how it was essential to the United States’ ascent into treaty-worthiness. The United States increasingly gained control over its own extended domain and, eventually, made clear that it was willing and able to project its power beyond its boundaries as well as within them. Ultimately, this was what it took to make it a treaty-worthy nation, in Gould’s persuasive account. But if that is the case, then the difference between a treaty-worthy nation and an empire would seem to be no difference at all.

With this insight into the imperial preconditions of nationhood comes a curious twist in periodization. It is true, as one reviewer puts it, that Gould “extend[s] the founding moment beyond the 1770s and 1780s in both directions,” showing “a real continuity between the new nation and its imperial antecedent.”1 But does Gould do more? If one takes seriously the idea that it took an empire to make a treaty-worthy nation, then one is left wondering whether the “imperial antecedent” to the “new nation” that Gould is writing about isn’t really the newly formed United States itself: at first a weak and overextended federation tenuously asserting its sovereignty over core and peripheral territories alike (what’s not imperial about that?), and only later, as a result of its gradually amassing, consolidating, and demonstrating its power, a nation with a credible claim to treaty-worthiness.

  1. James E. Lewis Jr., H-Diplo Roundtable Book Review, H-Net: Humanities and Social Sciences Online, Apr. 01, 2013. []

The State Origins of Federal Plenary Power

Where does federal plenary power over immigration come from? For a long time now, scholars have pinpointed the definitive starting point in the 1889 Supreme Court case of Chae Chan Ping v. U.S. (aka The Chinese Exclusion Case), which announced that immigration control was “an incident of sovereignty” and thus a matter for Congressional—not state or judicial—power. In an excellent new article, historian Hidetaka Hirota challenges this basic assumption. He argues convincingly that federal plenary power arose not only from the Court’s reading of international and constitutional law, but also from a long history of state practices of migrant policing and control. The federal government took political, administrative, and procedural cues from the state immigration regimes that predated Chinese Exclusion, particularly those in the influential states of New York and Massachusetts.

Hirota is not the first to look at state immigration power. As he acknowledges, Gerald Neuman and Kunal Parker have done foundational work in this area, exploring the ways that state regulation of the poor and of fugitive slaves served as precursors to federal immigration control. Hirota’s focus is on the ways that states dealt with foreigners arriving from Europe in ports along the Atlantic coast. The border that mattered in this period was a coastal one, not a land border. With no modern visa system in place, state officials had no control over who would seek to land on their shores. Hirota recounts how the Atlantic seaboard states developed a comprehensive approach to preventing or limiting the migration of the poor, as well as removing them after entry if necessary. State officials created boards of immigration to oversee efforts and devised systems of bonds and taxes. Ship captains who brought passengers who were “likely to become permanently a public charge” had to supply bonds in the event that a passenger required poor relief. If the ship companies did not provide the bonds for those passengers, state officials would prohibit the passengers in question from landing. Ship companies would have to return the passengers to Europe on their own dime. States also charged a head tax (in lieu of bonds or in combination with them), which was a fee on all healthy passengers. This was used to offset the cost of receiving destitute passengers. Of course, these taxes would give rise to the Passenger Cases in 1849 and to Henderson v. New York in 1876. In combination, these cases greatly limited the states’ power to tax passengers, based on the Supreme Court’s interpretation of the Commerce Clause.

The story so far recounted is a relatively familiar one, but what follows is new. Hirota demonstrates that the state experience with barring destitute migrants led directly to federal exclusionary measures. He connects the dots with clear evidence. States, fearful of the loss of revenue after Henderson, worked together to pass federal legislation that looked just like the extant state laws. State officials in New York and Massachusetts collaborated on draft bills that were sent to Congress. As a Massachusetts official explained of a draft bill, it was “an extension to the whole nation and under the authority of law, of the old state system of dealing with immigration.” (P. 1097.) The resulting federal Immigration Act of 1882 had several provisions that were taken directly from state practices: the bill included a tax to pay for the care of destitute migrants, it excluded those “likely to become a public charge,” as well as criminals and the mentally disabled, and it made ship captains liable for the cost of return passage of excluded migrants.

The influence of state governments over federal exclusion went deeper than legislative lobbying to include the implementation and administration of the new act. For almost a decade, the federal government relied on state officials to inspect migrants entering the ports and to decide who was excludable. Federal officials even reimbursed state boards for the cost of removing excludable immigrants after entry. After 1891, this “state-federal joint administration” was nationalized: Congress created a federal core of officials to administer the law. But state influence continued; as Hirota recounts, many of these new federal officials were themselves former state inspectors.

Hirota argues that the presence and active involvement of state officials had a lasting impact on the treatment of migrants themselves in the federalized system. His research helps to explain a long-standing conundrum about immigration law: the remarkable lack of due process protections and the enduring presence of unchecked discretion. He recounts how state officials had acted with virtual impunity before the 1880s in removing paupers. He argues that this approach, which vested broad discretion in state officials, was then taken on and naturalized in federal efforts. As he writes, “In making federal immigration law more comprehensive, policy makers simply codified what had become the norm in the practical enforcement of immigrant exclusion and deportation.” That norm included “practically unrestricted power over immigrants.” (P. 1107.)

Hirota successfully moves nineteenth-century immigration history out of the powerful shadow of Chinese Exclusion. He demonstrates that state economies, not just racial animus, were at the heart of decisions about exclusion of migrants, and that the Atlantic seaboard states had a disproportionate influence on the federal legislation and procedure that resulted. His work is an excellent corrective to the standard narrative of federalism and migration control and it is sure to stimulate new historical inquiry.


Law And The City

Mariana Valverde, Everyday Law on the Street: City Governance in an Age of Diversity (University of Chicago Press, 2012).

When I was growing up in Chicago in the 1970s, I obsessed about Jane Jacobs’ Death and Life of Great American Cities (1961). The book captured much about what I loved about living in the city: The differences one discovered walking down that street instead of this one, the various faces a single block could present at different moments of the day, the way the little independent stores that sold small market journals or Asian specialties butted up against the more generic stores that sold the Snickers bars and Dr. Peppers that I lived on in high school. But there were also things about Chicago that the book did not address: The fact that there were areas not far from my home that I could not go into as a white teenager and other areas that my classmates could not go as teenaged blacks. The way that those spaces were defined as much by the city government’s decisions not to enforce laws or to fail to enforce laws equally, as they were by local preferences. The fact that Chicago’s neighborhoods, and the racial tensions between them, were defined as much by choices to ignore federal laws against redlining, racial steering, or housing discrimination as they were by community norms. And, finally Jacobs’ celebration of the local did not capture the extent to which the struggles over those problems were defined by national, and sometimes even international, debates.

I started reading Mariana Valverde’s recent book, Everyday Law on the Street: City Governance in an Age of Diversity (2012), a study of street-level urban governance in Toronto, because it promised a law and society alternative to Jacobs’ work. But while I came, so to speak, for the law and society recasting of Jacobs, I stayed for the reminders her work offers legal historians.

Of course, there have been important legal histories of cities before; one thinks of Dirk Hartog’s Public Property and Private Power (1989). Valverde’s book, although not directly a history (though history plays a role in her account), is clearly in that vein. But her book is more than a reminder of important law and society contributions to the legal history of urban life. It is a constitutional story of how people negotiate multi-layered sovereignty (from the local to international) that shows us how historical actors are shaped by, and shape, a mix of legal regimes. Her descriptions of the grey and informal spaces where laws, regulations, government agents, and members of the public interact, demonstrate how blurry the lines between formal law and popular constitutionalism or extralegal justice can often be. And by unpacking that in-between space of quasi-law and discretion, she points us in the direction of the important work being done in Latin American legal history by scholars like Amy Chazkel (Law’s of Chance: Brazil’s Clandestine Lottery and the Making of Urban Public Life (2011)) and Pablo Piccato (City of Suspects: Crime in Mexico City, 1900-1931 (2001)). Valverde focuses on land use and regulation, while Chazkel and Piccato look at criminal law, but all three works describe cities where law and the legal system are merely a part (albeit an important part) of a larger social system. In the process, they also show us how constitutional claims (from state power to the scope of citizenship and individual rights and privileges) are defined, in all senses of the term, by the enforcement, non-enforcement, or disregard of laws and regulations on the ground.

Ultimately, by peeling back the elements of law in Toronto, Valverde’s book shows us just how variegated a city can be; it also reminds us how amorphous the subject of legal history is.