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.)


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). []