Legal History

Christopher Schmidt

In The Great Persuasion: Reinventing Free Markets since the Great Depression, Angus Burgin, a historian at Johns Hopkins, offers the fascinating story of a trans-Atlantic group of intellectuals who, beginning in the 1930s, came together in an effort to articulate and promote an alternative vision to the then-dominant ideas of Keynesian economics.  In this short essay, I describe Burgin’s impressive contribution to the intellectual history of modern conservatism, and then offer some concluding thoughts on neoliberalism as a constitutional value today.

The basic story of the resurgence of conservatism, including free market ideology, in the second half of the twentieth century is well known.  What this fine book adds is a sensitive and nuanced portrait of those thinkers—economists, mostly, but not exclusively—who, through several generations of struggle, among themselves and with their antagonists, shaped the ideas of what has come to be known as neoliberalism.  Burgin’s overriding argument is that these people made possible the eventual triumphs of free market ideas in the public sphere.  Although often articulated in abstract and technical terms, these were ideas that would have a profound impact on American life and politics.

In making his case for the significance of this vanguard of free market intellectuals, Burgin advances several claims.  One is that inter-personal relationships and the “networks and processes of intellectual exchange” played a critical role in the development of the free-market movement.  At the center of this collective enterprise was the Mont Pelerin Society, a forum that Friedrich Hayek created in 1947 to bring together critics of the modern welfare state scattered throughout Europe and the United States.  As Burgin describes it, “individuals who were secluded in their national environments became, through the acts of congregation and communication, participants in a purposive community.”  The Great Persuasion is, in part, a history of this important but underappreciated “global community of ideas.”

Another claim Burgin presses (a standard, perhaps even essential, one for the modern intellectual historian) is for the importance of ideas.  Ideas matter because under the right circumstances they can be influential: the resurgent political commitment to free-market ideology of the 1970s and 1980s “could not have occurred without the committed efforts of a transnational community of ideas.”  They matter because they cannot be reduced to mere rationalizations for political or materialist interests.  Modern conservatism emerged in part because it seemed to provide a stable antidote to the anxieties of modern life; in part because of what Kim Phillips-Fein has called the “hidden hands” of wealthy business interests; and in part because of the racial anxieties of white America.  But, as Burgin persuasively argues, it cannot be reduced to these factors.  The idea makers at the heart of the book were far from paranoid or irrational; they relied on outside funding, but were militantly protective of their intellectual independence; and, at least according to the sources Burgin examines, racial politics simply did not cross their radar screen in any significant way.  (And when it does, they could be unpredictable: Milton Friedman opposed the Civil Rights Act of 1964 on libertarian grounds, while Hayek, although sympathetic to the libertarian concerns, believed the law was needed.)  They were true believers in the moral and instrumental supremacy of the free market.  This is not to say that their ideas were unaffected by political and material influences; but it is to say that they cannot be explained away by them.

Having made his case for why we should give considered attention to this collection of thinkers, Burgin then turns to exploring what they actually thought.  Here is where Burgin’s careful research into voluminous archival sources, in the U.S. and in Europe, yields an ultimately unsurprising but still quite valuable insight: their thinking was nuanced, tentative, and conflicted, and they regularly disagreed with one another.  Contrary to the caricatured images of Hayek and others that populate our contemporary debates, these were hardly doctrinaire free marketers.  Their heterogeneity was particularly evident in the 1930s, 40s, and 50s, when the movement was just finding its footing.  The early generations of free market advocates were united in their concern with increasing government intervention into the market.  Beyond this point of convergence, however, they struggled to agree on much of anything, especially when discussion turned from critique to alternatives.  The extent to which they embraced unfettered markets varied considerably.  They also struggled with the proper relationship of their project to the world of politics and policymaking.  These men (yes, all men here) were dedicated intellectuals who wanted to influence public affairs, but also feared the inevitable simplifications that would come from practical application of their ideas.  A major contribution of this book is to capture the rich complexity of the thought that gave rise to neoliberalism.

With the emergence of Milton Friedman as the leading public proponent of free market ideas, beginning with his publication of Capitalism and Freedom in 1962, a forceful, politically engaged simplicity became the new style of the movement.  In the second half of The Great Persuasion, Friedman takes center stage.  The University of Chicago economist built off the work of his predecessors, but he also seemed willing to push aside much of the intellectual humility that defined their project.  By the 1970s, free market advocacy had evolved into something quite different from what it had been in the early postwar period.  “Friedman’s confident language,” writes Burgin, “signaled that the moral quandaries and programmatic ambiguities of an earlier generation had been left behind, and a great persuasion had begun.”  Neoliberalism had found its public voice.

So what does this thought-provoking book tell us about the development of law and conservatism in the second half of the twentieth century?  This is a work of intellectual history; legal issues are only occasionally touched on.  Burgin evaluates the influence of free market ideas on economists and policymakers, not courts and lawyers.  Yet if we consider the dissemination of these ideas into the realm of American law, we find that its victory here was much more limited than in the realm of economics and policymaking.

Burgin’s protagonists defended their commitment to reducing government involvement in the market on two grounds.  One was pragmatic and functional—the free market, on balance, works; government is simply not good at managing the economy; the costs of government interference outweigh the benefits. The other was more idealistic—market regulation implicates individual liberty, and government regulation of economic relations can have liberty-curtailing spillover effects beyond the market.  Through the rise of the law and economics movement, the functional argument has clearly left its mark on the development of private law.  The idealistic argument has shaped how the public and their representatives talk about government regulation, yet its impact on the law—specifically the realm of public law, where liberty values are most obviously at issue—has been distinctly qualified.

The reason for this, of course, is the shadow of the Lochner era on modern constitutionalism.  American constitutional law in the post-New Deal era has identified certain non-economic rights as meriting judicial protection, while relegating economic rights to the democratic process.  Regardless of whether one is persuaded by the justifications for this approach (most of which emphasize limits of judicial competence and majoritarian pathologies that place non-economic rights at particular risk), it is worth at least noting that there is something aberrant about the virtual exclusion of economic liberty from constitutional law.  Over the past half century, neoliberal ideology has deeply affected popular attitudes about the relationship of government and society.  It has changed the way policymakers talk about their responsibility to the American people.  But when it comes to judicial understandings of the relationship of the Constitution to the economy, we still live under basically the same regime left us by the New Deal.  Modern progressives have written about social welfare rights as constitutional norms that are judicially underenforced.  After reading Burgin’s examination of the intellectual underpinnings of the post-New Deal transformation of public attitudes toward market regulation, it is hard to escape the conclusion that there is an even stronger case for some forms of economic liberty as constitutional norms that are currently underenforced by the courts.

In this way, The Great Persuasion invites further inquiry into exactly who was persuaded by these ideas and who was not—an issue of particular relevance for those hoping to better understand the uncertain (but still quite real) status of economic liberty in American life and law today.

Richard Ross

Decock’s judicious and insightful book participates in the rediscovery of the theological foundations of modern Western law.  With great precision he uncovers the debt that our contract law owes to early modern Catholic scholastic theologians such as Domingo de Soto, Luis de Molina, Leonardus Lessius, and Francisco Suárez.  These writers treated contracts not only as devices for the exchange of property.  They understood that contracting involved moral choices that could advance or retard justice and the prospects for the salvation of one’s soul.  In order to clarify these ethical dilemmas for Catholic confessors and for laymen wrestling with their consciences, scholastic theologians commented upon the ordinances of their own communities and the Roman law used throughout late medieval Europe (the ius commune).  Their works influenced early modern canonists, civilians, and natural lawyers and, through them, left an important mark on modern European and American contract law.

Decock focuses on how the theologians’ speculations led to the rise of the principle of “freedom of contract,” understood as the imposition of legal obligation solely through the consent of the parties.  The late medieval ius commune, drawing on Roman law, had allowed the creation of legal obligation through mutual consent only in certain areas, such as sales, leases, and partnership.  James Gordley and other distinguished legal historians have noted that scholastics went well beyond this inheritance to craft a generalized, consensualist “freedom of contract.”  But why in the sixteenth and early-seventeenth century?  The dominant interpretation has been that the acceleration of trade in the early modern period and the stirrings of “market capitalism” invited moral theologians to consider commercial transactions not adequately treated in the ius commune.  Although Decock accepts this interpretation as a partial explanation, he innovates by insisting that theologians thought that freedom of contract would facilitate the saving of souls.  The greater the realm of freedom among contracting parties, the greater their ability to pursue virtue, accept moral responsibility, and encourage trust—or the reverse.

Decock pursues his theme in a number of steps.  He first reconstructs the context within which his Catholic scholastics operated: rivalries between religious and secular authorities; extensive legal pluralism featuring numerous conflicting tribunals and sources of doctrine; theologians’ service as dispute resolvers and as advisors to rulers; and the profound “juridification,” or melding of law and theology, in early modern works on conscience.  He then explores how theologians reworked the ius commune to generate the concept of “freedom of contract” based on the mutual consent of the parties.  But this principle was not absolute.   The scholastics’ theological preoccupations led them to impose a number of limits on freedom of contract, a theme pursued at length in the final portion of the book.  “Vices of the will” might negate the meeting of the minds essential to contracting through consent.  In the pursuit of the common good, rulers could impose formalities that required more than consent alone to create contracts.  Finally, theologians ruled out unethical bargains (prostitution, for instance) and contracts that too greatly upset norms of fairness in exchange.

Decock’s deeply researched, judicious monograph is of interest to scholars of contract and to early modernists.  To the former he offers an alternative historical genealogy for the regime of freedom of contract (and its accompanying limits).  Although the impact of scholastic texts has long been noticed, Decock recovers the moral and eschatological motivations for legal ideas that we now discuss in practical and economic terms, having forgotten their theological provenance.

Early modernists will deepen their appreciation of the cross-fertilization of religious and legal ideas and the jurisdictional conflict involved in the governance of conscience.  Late medieval and Renaissance Christians subjected the soul no less than the body to rules and discipline.  They spoke of the conscience as an internal forum, a kind of jurisdiction, operating in the believer’s heart and mind and in the confessional.  This internal forum cooperated with the external forum of the state but was not reducible to it.  In respect to contract, theologians fused divine, natural and civil law to craft the principles governing the believer’s conscience and to suggest principles for the ruler’s tribunals.  This sustained effort by early modern theologians and jurists to chart the rules of the internal and external tribunals and to lay out the boundaries and modes of interaction between them was present not only in contract law but in nearly every contested area of life, from political oaths and allegiance to tithes, usury, and church/state relations.  Decock’s careful study of scholastic contract law thus illuminates larger issues.  First, the tension between the conscience and the state—understood as a kind of jurisdictional conflict between internal and external fora—adds another layer to our understanding of early modern legal pluralism.  Second, Romans 13:5 instructed Christians to obey rulers’ law not only for fear of temporal punishment, but for conscience’s sake.  Protestants as well as Catholics understood this verse to mean that violation of certain laws, if unrepented, put the soul in danger of damnation.  Scholastics worked so carefully on contract, as on other legal/theological issues, in order to alert the conscience to dangers and to offer reassurance to jittery or over-scrupulous Christians wary of acting.  The threat of damnation made the stakes profound.  Decock’s study, of great value in its chosen field of contract law, helps us better understand the implications of the juridification of conscience for early modern politics and society.

Serena Mayeri

After reading Robert Self’s ambitious new book, it is almost impossible to imagine a satisfying history of the last half-century of American politics that does not place gender, sexuality, and the family at the center of analysis. Self’s story begins at the dawn of the Kennedy Administration and ends with John Kerry’s 2004 presidential defeat but focuses primarily on the period between the mid-1960s and the mid-1980s, when radicals, liberals, and conservatives contested and transformed the meaning of family. The central trope of All in the Family is a shift in the reigning paradigm of American politics from “breadwinner liberalism” to “breadwinner conservatism.” Breadwinner liberalism, the organizing principle of the New Deal welfare state, promoted households headed by male breadwinners supporting dependent wives and children. Government policies—from Social Security to the tax code to military benefits to labor and employment regulations—shored up this family wage model of household political economy.

By the late 1960s, breadwinner liberalism was under siege from the left. Feminists challenged the idealization of domesticity and the primacy of homemaking and motherhood over gainful employment for women. Anti-war activists questioned the equation of bellicose masculinity with patriotic citizenship. The gay rights and gay liberation movements mobilized against cultural and political norms that violently repressed and pathologized homosexuality. These movements succeeded in unseating breadwinner liberalism, Self writes. But ideological fragmentation, economic scarcity, and vehement opposition prevented them from inventing a replacement. Instead, in the second half of the 1970s and into the 1980s, breadwinner conservatism filled the vacuum, fueled by antifeminism, anti-statism, homophobia, and the displacements of de-industrialization. This new breadwinner ideal—even less consonant with lived reality than it had been in the 1950s and 1960s—celebrated unfettered capitalism, denigrated government, and combated the uncertainties of post-industrial life with the unwavering conviction that not only countercultural permissiveness but liberal economic policies threatened social order. Abortion rights, feminism, the Equal Rights Amendment, the “homosexual agenda,” and “secular humanism” joined busing, affirmative action, and anti-war protesters as targets of rage and antipathy.

Breadwinner conservatism is the key to understanding the otherwise puzzling coalition between so-called economic and cultural conservatives in the modern Republican Party, Self argues. “What’s the matter with Kansas” is not that affluent Sun Belt conservatives duped working-class religious voters into voting their consciences rather than their pocketbooks. Instead, a shared view that a capacious role for the government undermined America’s fiscal solvency and its moral fabric united these seemingly disparate interests. Breadwinner conservatives, Self stresses, saw government overreach everywhere, including in seemingly libertarian trends such as the liberalization of abortion laws.

The end result, according to Self, was that although progressive social movements succeeded in winning “negative liberties” such as the decriminalization of birth control, abortion, and sodomy, and prohibitions on overt discrimination based on race and sex, they fell short of obtaining the “positive rights” necessary to make those freedoms meaningful to many Americans. Increasing income and wealth inequality rendered new liberties fully accessible only to a privileged few. From Nixon’s veto of universal child care legislation and the denial of public funds for reproductive health care to Clinton’s embrace of welfare reform, neoliberalism triumphed.

All in the Family weaves together secondary literature and primary sources in a seamless account that builds on and adds to the work of other historians of the period. Scholars such as Alice Kessler-Harris, Nancy MacLean, and Marissa Chappell have observed the similarities between the liberal family wage consensus of the 1960s and the conservative gender ideology that emerged in the 1970s and 1980s. Others, including legal historian Anders Walker, have documented how ostensibly race-neutral policies concerning personal and family morality maintained racial hierarchy when overt appeals to white supremacy became politically untenable.  Among other things, Self provides a compelling account of internal social movement struggle, foregrounding tensions between radicalism and respectability, assimilation and transformation that were common across the black freedom, feminist, and gay movements. The result is an elegantly written synthesis that is more than the sum of its parts.

Social movements are the stars of Self’s narrative, with law playing an important supporting role. Law frequently appears as a double-edged sword in his account. The grounding of reproductive rights in the constitutional right to privacy rather than in equal protection for women or the poor is a key example of the limitations of negative liberty. Title VII granted women “market liberty” but failed to provide supports—such as generous paid family leave and affordable, high-quality child care—that would enable women (and men) to flourish both at work and at home. Resort to law often meant uncomfortable political alliances and compromises. The anti-rape movement succeeded in part because of its appeal to law-and-order conservatives as well as feminists. The quest for anti-pornography laws similarly produced strange bedfellows as well as divisions among liberals and feminists.

Self’s application of Isaiah Berlin’s distinction between positive and negative rights is illuminating, although like any dichotomy, imperfect. At times Self appears to use “positive rights” as a stand-in for government involvement, regardless of who bears the cost. For instance, he refers to women in same-sex relationships claiming custody of their children from different-sex marriages as seeking positive rights, and indeed they did invoke the power of the state to vindicate their parental prerogatives. But like child support enforcement, which (in contrast to lesbian custody rights) attracted allies across the political spectrum during this period, custody rights do not strain the public fisc. At other times, Self emphasizes the distinction between liberty and equality: whereas liberty requires government to step back, equality commands government intervention. But equality comes in more or less expensive guises. Substantive equality usually requires a greater redistribution of resources than formal equality. Moreover, it matters who is paying. Employment discrimination laws often shift costs to private employers, or, more controversially, to other employees. In contrast, a robust social safety net financed by taxpayers, nationalized universal health care provision, and other unachieved progressive reforms socialize the costs of dependency. It is this distinction, between privatizing and socializing the costs of caring for individuals and families, which arguably correlates best with the success or failure of reform attempts since 1970.

Nancy Fraser’s distinction between the “politics of recognition” and the “politics of redistribution” may also be useful here, especially in light of current debates over same-sex marriage. Marriage equality, as Self recognizes, implicates both negative liberties and positive rights—not merely the legal imprimatur of a marriage license but many material benefits as well. In theory, marriage equality could mean not only the triumph of gender egalitarianism but the leading edge of greater acceptance and social supports for all family structures—dealing a final death blow to breadwinner liberalism and conservatism. But like many of the successful reforms Self describes, marriage equality does not necessarily advance the politics of redistribution. Notwithstanding its associated public and private benefits, a principal goal of marriage is to privatize dependency, to render a robust welfare state unnecessary. As marriage increasingly correlates with higher levels of education and income, the unmarried generally, and single mothers in particular, are left with no (second) breadwinner and no state support.  If marriage continues to become the province of the privileged, marriage rights for same-sex couples may join the other “negative rights” that Self laments are the primary legacy of late twentieth-century social movement struggle.

Felice Batlan

Scholars have understood well that second wave feminism has deep roots in the Civil Rights Movement. Only in recent years, however, have historians explored the full extent of the material and ideological connections between these two movements.  Reasoning from Race brings this agenda to the field of legal history.  It examines what it meant for feminist legal advocates to use race analogies, how this changed over time, and how ultimately civil rights lawyers then attempted to reason from sex. In doing so, Mayeri seeks to demonstrate that the Civil Rights Movement and the Women’s Rights Movement cannot be understood in isolation from each other. Rather the movements were in dialogue with one another, taking the lead from and piggybacking on each other at different times.

Reasoning from Race makes three overlapping central arguments. The first is that women legal advocates used the tools, legal strategies, arguments, and precedent that African-American civil rights lawyers first developed. The second is that some of the leading architects and plaintiffs in sex discrimination cases were African-American women, and the third is that race and sex are intertwined categories.  Mayeri also intervenes in the periodization of the Civil Rights Movement, arguing that the Women’s Movement must be considered part of the larger Civil Rights Movement. Thus the Civil Rights Movement began in the 1950s and continued into the 1980s. Yet the height of the Women’s Movement also corresponded to the beginning of the backlash against the Civil Rights Movement.  This would have important implications in regard to legal strategies.

Mayeri continues the recent attention paid to Pauli Murray as a figure who knits together the Civil Rights Movement and the Women’s Movement.  Meyeri writes, “No one did more than Murray to make race-sex analogies the legal currency of feminism.” (P. 14.) In her famous memorandum, written for the 1961 President’s Commission on the Status of Women, Pauli analogized racial discrimination to discrimination against women and strategized that Fourteenth Amendment litigation was key to ending legal discrimination against women. This strategy, in part, was intended to end the impasse amongst women’s organizations that feared that the Equal Rights Amendment would end legislation that protected women.  Rather Fourteenth Amendment litigation would allow for a more flexible approach. It also explicitly linked together the Civil Rights Movement and the growing Women Rights Movement. Yet where liberals might be convinced that racial segregation was odious, many were less certain that sex segregation was discriminatory, especially when laws seemed benign or to the advantage of women. For a time, feminist and civil rights organizations cooperated in a number of important law suits, and built a variety of coalitions.

Reasoning from Race most clearly contributes to our historical knowledge when discussing some of the less well known civil rights cases. For example, Andrews v. Drew (1973) involved an African- American woman who challenged a Mississippi school board’s policy of not hiring unmarried parents.  This supposedly race and gender neutral policy was a subterfuge for not hiring African-American women. In other words, it was a policy based on white supremacy and sex discrimination that the school board packaged as neutral morals regulation. The suit brought to the fore issues of race, sexuality, gender, and reproduction. Famed civil rights leader Fannie Lou Hamer testified as an expert regarding black community morals, black women’s attempts to gain economic independence, and how moral regulations were applied in a racially discriminatory manner.  As decided by the courts in a series of decisions that stretched from 1973 to 1976, the racial dimensions of the case, as well as those involving reproductive freedom, became lost and the courts instead treated it as a case of pure sex discrimination.  In doing so, they refused to apply a standard of strict scrutiny used in race discrimination cases and instead used a more lenient rational basis standard.  When the Supreme Court dismissed certiorari as improvidently granted, Mayeri writes that the opportunity was lost for Andrews to become part of the “feminist canon.” (P. 165.)

Mayeri produces a litany of cases with African-American women plaintiffs, some involving desegregation of schools and others involving jury service, which combined sex and race discrimination.  She explains this pattern as part of the temporal lag between the height of the Civil Rights Movement and the Women’s Movement and importantly argues that white supremacy adapted itself.  When overt race discrimination was no longer tolerated, it masked itself in sex discrimination.  Moreover, in terms of the larger narrative of sex equality, the race of the plaintiff disappeared, especially in higher court decisions.  Sex discrimination law was literally whitewashed by the courts.  Mayeri argues, if courts had been able to see and understand the connections between race and sex, a more robust and honest jurisprudence would have emerged that reflected lived experiences and which could fulfill the emancipatory potential of the Civil Rights and Women’s Movement.  By the late 1970s, feminists had generally won those cases involving explicit classifications by sex but had limited success with disparate impact claims. In other words, law could get at the tip of the iceberg but it could not dismantle the super structure of patriarchy.

As the book concludes, in the early 1980s, feminists were still fighting for the Equal Rights Amendment which Mayeri argues demanded a real substantive equality that did not materialize fully through feminists use of Fourteenth Amendment litigation.  Mayeri writes, “Feminists now reasoned beyond race” and needed new strategies. (P. 215.)  Women of color also insisted that comparisons between race and sex further enshrined white women’s privilege.  During the same period, the conservative movement grew, and the feminist movement became a straw woman blamed for its own defeats and for a narrow focus on white privileged women which belied its true diversity and elided the role of African- American women.

Reasoning from Race is squarely a legal history focused on courts and litigation and relying primarily on an extensive range of legal sources.  These are very valid choices but at certain moments the book becomes slightly bogged down in analyzing the feminist legal canon of Supreme Court cases.  Instead, it would have made for an even richer story, if the work had focused a bit more on grassroots feminist organizations such as the Chicago Women’s Union or Boston’s Bread and Roses. One is left wondering how did these more radical organizations respond to the work of legal feminists. What was the relationship between grass roots feminism, feminist legal advocacy, and the strategies that lawyers employed? How did reasoning from race affect the larger feminist movement and for that matter how did the Black Power Movement influence and affect reasoning from race? Even with these slight limitations, Reasoning from Race provides a crucial new narrative of feminist legal advocacy.

Karen Tani

Molly Michelmore’s new book could not be more timely. This summer the Supreme Court upheld the Affordable Care Act’s controversial individual mandate provision, through a majority opinion that links healthcare directly to the federal government’s tax power. Meanwhile, the lead-up to the presidential election has been riddled with references to tax burdens (and evasions), social welfare spending, and government “dependency.”

Historians and social scientists have much to add to this conversation, but little faith that they will be heard. A recurring theme in post-World War Two U.S. political history is how greatly the government has assisted working- and middle-class Americans (especially white men and their families) and how rarely those Americans have acknowledged that fact. This paradox persists today. Most Americans will rely at some point on a means-tested government support program, such as food stamps or Temporary Aid to Needy Families.¹ Many more will accept Social Security benefits, tax credits, and other government subsidies.² Yet these same Americans often resent the “welfare state.” In Michelmore’s words, “Americans hate government, but demand and expect, almost as a matter of right, the privileges, security, and mobility that government offers.” (p. 2-3)

“Unravel[ing] this apparent contradiction” is Michelmore’s goal, and she is largely successful. (p. 3) Tracing the federal government’s tax and spending policy from the New Deal through the “Reagan Revolution,” she shows that liberal policymakers created an enduring “social compact” with the American people, consisting of “both economic security and low individual tax rates.” (p. 14) They kept their promise by steadily expanding social welfare programs, but devising “ever more complicated and obscure” financing mechanisms. (p. 20) In doing so, they “effectively divorced” the public benefits of the non-poor majority “from the taxes that paid for them, the government that provided them, and the more direct forms of public assistance they resembled.” (p. 20) Phrased differently, liberal policymakers “widened the gap between the obligations of citizenship and its benefits,” while “help[ing] to instill in the rising white middle class a sense of uncomplicated and individual entitlement to the fruits of postwar prosperity.” (p. 45)

Michelmore’s story truly begins after the war, when Americans had come to expect decent housing, a secure income, and free education, as well as protection against disease, disaster, and foreign aggression. They saw taxation not as payment for these services, but as a civic duty, and they believed that rates should remain modest. When disappointed, they blamed the nation’s most visible social programs – for what else could be devouring tax dollars so fast? It is no coincidence, Michelmore shows, that postwar complaints about excessive taxation accompanied demands for investigation of “relief chiselers.” (p. 24)

In the 1950s and early 1960s, economic growth allowed liberal policymakers to avoid the contradiction at the heart of the social compact, while Cold War politics deterred them from celebrating the state’s vast role in supporting the middle class. By the end of the Kennedy-Johnson years, however, liberals were in an untenable position. They had again promised tax cuts, this time paired with prominent (though financially modest) commitments to racial minorities and the poor. The benefits to non-poor Americans remained hidden, fostering in some an ironic sense of injustice and neglect. As the economy turned sour and perceived “tax eaters” (rioters, welfare mothers, black schoolchildren) became bolder, this “Silent Majority” found its voice.

The conservative ascendancy did not bring with it a new social compact, however. The Republican right “articulated a coherent and politically viable alternative to postwar liberalism,” centered on tax reduction and cuts to means-tested welfare programs. (p. 125) But even Reagan left untouched large, expensive pieces of the liberal state, such as Social Security and Medicare. Americans demanded of Reagan what they had been promised by Roosevelt, Michelmore explains: low tax burdens and economic security – just this time without so much government.

Aspects of this story have been told before. Michelmore is not the first to identify the welfare state hidden within the U.S. tax code, or to note conservatives’ inability to roll back middle-class entitlements. The right, once caricatured, is now the subject of serious scholarly investigations, several focusing on anti-tax sentiment. But Tax and Spend has much to offer. Michelmore unearths real historical gems, such as the 1980 debut of a monopoly-styled board game titled “Public Assistance: Why Work For a Living When You Can Play This Great Welfare Game.” (p. 123)  More important, she encourages scholars to do the unglamorous work of connecting social programs to their financing mechanisms and revenue sources, real and perceived. For example, we cannot understand the long-term significance of the Social Security Act of 1935, she shows, without considering the Revenue Act of 1942.

Tax and Spend is also relevant to our current political situation. Most Americans see themselves as taxpayers rather than “tax eaters.” That is why the Supreme Court’s healthcare decision, with its reliance on the tax power, may be a political liability for President Obama, even as it shields a significant legislative accomplishment. It confirms some Americans’ suspicions that their paychecks are financing other people’s healthcare. But the decision also offers Americans an opportunity – and a reason – to question the social compact that Michelmore has identified. Since the mid-twentieth century, politicians from both parties have promised low taxes and security, but the absence of health security is undeniable, and now viscerally felt.  With universal healthcare in sight, as well as a fuller understanding of its costs, will Americans finally be prepared to reject the liberal social compact and strike a different bargain? Maybe. But if Michelmore is right, it is a rare politician indeed who will offer them one.

1. Suzanne Mettler, The Submerged State: How Invisible Government Policies Undermine American Democracy (2011). [↩]
2. Mark R. Rank & Thomas A. Hirschl, Welfare Use as a Life Course Event: Toward a New Understanding of the U.S. Safety Net, 47 Soc. Work 237, 241-43 (2002). [↩]

Stuart Banner

I think history is most fun to read when it upsets the conventional understanding of something in the present day. That’s a hard trick to pull off. Most conventional understandings are pretty close to the truth – otherwise they would have been abandoned already. And if you want to buck the conventional wisdom about something in the present, you’re more likely to succeed simply by explaining why it’s wrong in the present rather than by detailing its past. It takes an unusual combination of insight and luck to find a topic you can make readers see completely differently by writing its history.

Before I read Jed Shugerman’s The People’s Courts, I would never have guessed that judicial elections were that kind of topic. Like most lawyers, I suppose, I thought judicial elections were a little silly at best, and sometimes downright pernicious. How are voters supposed to know who the good judges are? And worse, how can elected judges prevent politics from leaking into their decisions? The last thing we want is for a judge to be keeping an eye on his reelection when he’s deciding, say, whether a notorious murderer’s rights have been violated, or whether a popular new law is unconstitutional. If you’ve ever been in a state with contested judicial elections and seen the TV commercials in which the candidates all claim to be the toughest on crime, you start to worry about the intrusion of politics. I imagine that’s the conventional understanding of judicial elections. It was certainly mine.

No other country has this system, so why do we? To the extent there is a conventional historical account, it is that judicial elections were a product of Jacksonian democracy. The idea was to reduce the independence of judges, to bring them closer to the will of the people, to shift power from insulated elites to accountable citizens. That’s a plausible enough story. I believed it.

In The People’s Courts, Shugerman shows that this isn’t true at all. It’s more nearly the opposite. Most states moved to judicial elections in the mid-19^th century to get politics out of judging, not in. The problem that elections were intended to solve was the danger of political pressure from the governors and legislatures who appointed judges. Americans wanted their judges to be independent – independent from the other two branches of government. Judicial elections are not the only way that politics can influence the judiciary. When judges are appointed by politicians, political pressures can be just as strong. “With direct popular elections, we watch the sausage-making,” Shugerman explains in his introduction. “With appointments, the sausage-making is out of sight, out of mind.” (P. 5) One of the great virtues of the book is how Shugerman demonstrates that in the mid-19^th century it was the other sort of sausage-making that people were mostly worried about.

Shugerman then goes on to show that these new judicial elections worked just as they were intended. Judges actually did become more independent when they were elected, as measured by the frequency with which they struck down legislation as unconstitutional. That’s a result completely different from the one we would expect if the Jacksonian democracy story were true, but it’s a result that makes perfect sense if the purpose of electing judges was to insulate them from behind-the-scenes political pressure.

Once you understand the history of judicial elections this way, it’s hard not to see them differently in the present, and Shugerman turns to this issue at the end of the book. No matter how judges are selected, he points out, politics will creep in one way or the other. Anything we do to shift judges away from one kind of politics will only bring them closer to another kind. We can’t talk intelligently about how to pick our judges without acknowledging these inevitable tradeoffs.

There’s a lot more to The People’s Courts than this. The book is a complete history of judicial selection methods in the United States, from the 18^th century through the big-money judicial campaigns of our own time. That’s a really valuable contribution in its own right; indeed, it’s surprising that no one has written a book like this before. But the best part is the chapters on the origin of judicial elections.

Roman Hoyos

A while back over at the Legal History Blog, there was a brief discussion about the relevance of legal history to the legal academy.  On the heels of this discussion, Pierre Schlag posted a typically hilarious paper on SSRN about the faculty workshop that in part demonstrated the irrelevance of legal history, or at least the inability of legal scholars to access historians’ questions.  This is probably the main source of anxiety/frustration of legal historians who work in the legal academy, despite the (apparently “whiggish”) historical turn in constitutional scholarship.  History these days seems to be relevant to legal scholarship only in the context of debates over original meaning/intent.  What makes this particularly frustrating for historians is that the quality and quantity of legal history, produced by professionally-trained historians, has increased dramatically in recent years.  The last two decades, in particular, has witnessed the emergence of a bountiful body of scholarship, that is both theoretically and forensically rich, and that engages some of the biggest questions about law: its nature and function, and its relationship to various other macro-institutions such as society, the market, the polity, the state, and democracy.  (For starters, just look at the work by the contributing editors to the legal history section here.)  And yet we still find it difficult to engage our colleagues and convince them of the importance of our work; for many institutions we remain a “luxury.”  Historians have long worried about our declining ability to reach popular audiences.  Apparently, we are losing some colleagues too.

This is where I find Tabatha Abu El-Haj’s recent article heartening.  What struck me immediately about the article was how Abu El-Haj framed it.  In a seven-page introduction she spends two paragraphs on legal historiography; her main target is law and democracy scholarship.  Consciously or not, Abu El-Haj has offered an example of how to smooth the ground between historian and legal scholar.  Translating between disciplines, Elizabeth Mertz has told us, is a project fraught with misunderstanding.  But, perhaps because of her training in a law and society program, Abu El-Haj appears to have both the fluency and willingness to attempt an effective translation.  In this article, for example, she uses “the repertoire of democratic political practices” in the past to expose and undermine two major assumptions of modern law and democracy scholarship.

The first assumption Abu El-Haj critiques is the idea that “the political process necessarily will be structured by law” (p. 5).  Although there has always been some regulation of the political process in the United States, in the nineteenth century there were wide swaths of the public sphere where law (in the sense of rules produced by legislative, administrative, and judicial institutions) was absent.  As Abu El-Haj explains, “Public meetings, petitions, local and national festivities, and even juries and mobs were the normal channels through which citizens, ordinary and elite, enfranchised and disenfranchised, participated in their new democracies,” and “regulatory controls were relatively weak and often exercised only intermittently” (p. 3).  The imposition of legal controls on these practices in the period between 1880 and 1930 either eliminated or narrowed them, giving the state greater power to determine the direction of politics and popular engagement in self-government.  Abu El-Haj thus denaturalizes the assumed relationship between law and democracy that modern scholars posit.

The second major assumption held by scholars writing in the law and democracy field that Abu El-Haj critiques is the idea that democracy consists solely of elections.  Democracy as both a concept and a practice is enormously complex; reducing it to elections robs it of its richness, and reduces it to a caricature.  Assembly, for instance, has long been a tool in popular politics.  This “neglected right,” which Abu El-Haj discusses more fully in another article, is now neglected precisely because law has had such a powerful effect on the ways in which people can gather.  The simple requirement that people get a permit before assembling, Abu El-Haj demonstrates, means that the state rather than the “demos” controls when and where people can gather, undermining, indeed criminalizing, spontaneous political action.  In fact, gaining control of the streets long has been a crucial if largely hidden site for the expansion of state power, often at the expense of popular politics.  The history Abu El-Haj has unearthed, as well as the rise and demise of the Occupy movement, demonstrate the continuing relevance to democracy of the use and control of streets.  Abu El-Haj thus challenges legal scholars to search for connections between law and democracy in less obvious sites and practices, rather than focusing myopically on electoral issues.

One of the defining characteristics of good scholarship, it seems to me, is to ask interesting questions going into a project, or to raise interesting questions coming out of it.  Although Abu El-Haj does not draw this conclusion herself, she seems to call into question the plausibility of “law and democracy” as an area of law.  If the imposition of law on political practices has narrowed their scope and made them subject to state regulation, refining legal rules would seem only to change the nature of the state regulation of politics.  If the state can determine the time, place, and manner, and through them the nature of popular politics, what is left of “democracy” as a political practice?  Perhaps the proper conjunction should be “or” rather than “and” when discussing the relationship between “law” and “democracy.”  In fine, Abu El-Haj’s article is a good example of the ways in which historians can challenge the boundaries of legal scholarship.  Let’s hope our colleagues are game for it.

Allison Tirres

Recently, thousands of people participated in the forty-seventh anniversary of the historic 1965 marches from Selma to Montgomery.  Now, as in 1965, voting rights were front and center: marchers protested against the recent passage of restrictive voting laws in many states, arguing that such provisions disproportionately disenfranchise voters of color.  This was familiar ground for civil rights organizers in the South.  This year, however, there was a new theme: immigrant rights.  Those marching joined in opposition to Alabama’s H.B. 56, which targets undocumented immigrants in the state.  The tone, as recounted by Trymaine Lee for the Huffington Post, was one of solidarity: marchers commented on the shared struggle and shared aims of those of African, Asian and Latin American descent, of citizens and non-citizens.

Alabama is in a new phase of its own civil rights history, but this multiracial rights frontier itself is not new.  The deep South now grapples with issues of inter-group coalition building that were at the forefront in California more than a half-century ago.  In his impressive new book, The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978, Mark Brilliant demonstrates that California experienced the challenges and rewards of “multiracial civil rights making” starting in the 1940s. (p. 12.)  He chronicles the post-World War II struggles for civil rights of African Americans, Asian Americans and Mexican Americans, as they attempted to dismantle segregation and legislate antidiscrimination.  In its diverse population, California was not an outlier in the history of civil rights but rather the vanguard.

The book is loosely divided into two parts.  The first four chapters trace efforts to dismantle legalized segregation in housing, education, marital relations, and the workplace.  California in the mid-twentieth century perpetuated a “multi-racial system of legalized segregation,” side-by-side with practices of private discrimination. (P. 106.)  Yet the extension of state and private discrimination was not uniform in either application or experience.  Not every racial minority experienced segregation in the same way; a particular experience  of racism led to differing legal priorities.  As Brilliant argues, “distinct civil rights priorities reflected distinct racialized experiences.” (P. 9.)  Different experiences of racism led to strategies that were often parallel – in terms of aiming to dismantle segregation – but along different tracks.  Asian American groups like the Japanese American Citizens League worked towards eradication of alien land laws; African American groups like the West Coast arm of the NAACP for equality in employment and housing; Mexican American groups like the Community Service Organization against school segregation of those of Mexican descent.  There were moments of overlap, such as in the battles against racially restrictive housing covenants and segregated schools, but these coalitions were “tenuous and fleeting rather than thick and enduring.” (P. 61.)

Due in large part to the disparate efforts of the diverse civil rights groups, state-sponsored segregation was largely eradicated in California by the end of the 1940s.  (As Brilliant points out, “the toppling of statutory segregation that would not begin in the South until 1954…managed to be compressed in California into less than a decade in the 1940s.”) (P. 114.)  Yet by no means were civil rights for all racial and ethnic minorities fully secured.  The second four chapters recount efforts of civil rights leaders to pass anti-discrimination legislation.   The passage of effective antidiscrimination legislation in employment, housing, and education turned out to be a far harder task than dismantling state-sponsored segregation.  Brilliant’s final chapters deftly recount the political quagmire of California in the 1960s and 1970s, when the tentative coalitions formed between diverse groups fell apart. Now, instead of running on parallel tracks, groups came into opposition against each other. Debates over education provide a powerful example.  The NAACP brought successful suits to end de facto segregation in the schools, forcing districts to bus students to other schools in order to create diverse student bodies.  These efforts were directly opposed by language-minority groups – those representing persons of Mexican and Asian descent – because of fears that decentralization would impede bilingual education.  Conservative politicians, foremost among them Ronald Reagan, exploited these differences in order to divide the liberal electorate.

Brilliant encourages us to rethink civil rights history in significant ways.  The most obvious new perspectives offered are regional and racial: civil rights movements did not just occur in the South and North, and they did not just concern blacks and whites.  But there is an additional new perspective offered here that may be less obvious but is equally compelling: the interplay of alienage with civil rights struggles.  Scholars of citizenship in American legal history often break out into two separate camps: those who study the rights struggles of American “second-class citizens” – women, African Americans,  and others who were territorial citizens but lacked full political and legal rights; and those who study non-citizens – immigrants who had no territorial rights and may or may not have any political, social, economic or legal rights.  Brilliant bridges this divide, demonstrating that the rights of non-citizens were sometimes in harmony with and other times in opposition to those of citizens.  Mexican American and Asian American groups were attentive to the problems of non-citizens and they set their civil rights goals accordingly.  Yet even within these groups the issue of alienage could divide.  Brilliant shows, for example, how Mexican American leaders in the farmworkers movement struggled to be anti-immigration (particulary anti-Bracero) without becoming anti-immigrant.

The Color of America Has Changed provides both a chronicle of civil rights successes and a cautionary tale.  The paths of various civil rights groups in California “occasionally crossed but never coalesced into something more enduring.” (P. 55.)  There were impressive gains but equally tragic losses.  As Brilliant shows, failures grew in part out of blind assumptions of common ground between groups with diverse interests and needs. Those now building coalitions across diverse groups would do well to take this history into consideration, thereby entering the struggle with eyes open both to the possibilities and the constraints.

Hendrik Hartog

The November 2011 issue of the Law and History Review is devoted to an illuminating symposium on new directions in the study of slavery, edited by Rebecca Scott.  The symposium includes an amazing article by Natalie Davis.  Since this is a blog devoted to enthusiasms, indulge me as I indulge myself.

I am a historian today in large part because of Natalie Zemon Davis.  Back 44 years ago, as an undergraduate at Carleton College, I had just decided that I would try to be a music major because I had decided, in my naiveté, that historians were boring people.  And then I was talked into going to hear a visiting speaker — a Professor Davis from Toronto — who made sixteenth century strikes in Lyons sound so fascinating and who, unlike anyone I had heard to that point, took her audience into the process of thinking reflexively about history. I was hooked.  I changed my major.

Fifteen or sixteen years later, while teaching at the University of Wisconsin, and in the midst of a crisis of confidence about what I was doing as a historian in a law school, I heard Davis’s Curti lectures on the gift relationship.  I felt renewed — challenged and inspired.  And then (I knew there would be one more “then”), I had the privilege — the gift — of being her colleague for a half dozen years, before Davis “retired” from Princeton.

Now, many years beyond her official “retirement,” Davis publishes “Judges, Masters, Diviners: Slaves’ Experience of Criminal Justice in Colonial Suriname,” as part of her continuing inquiry into slaveholding and the lives of slaves in the Dutch colony of Suriname.  Her larger project of reconstructing life in early modern Suriname has required her to learn new languages and literatures.  It has resulted in provocative and illuminating studies of the ironic situation of Jews who moved to Suriname to found a radically free place for themselves and who then, of course, became slaveholders.  But the Law and History Review article pursues a different question, about the various meanings of what “criminal law” meant in a radically violent slave society.

The argument is complex and multifaceted, and it rests on readings of an amazing range of sources in many different languages.  It offers a brilliant and imaginative exploration of legal pluralism as it would have been experienced in a place defined by radically unequal power relations — how slaveholders punished slaves, how the weak state punished or contemplated punishing an occasional, excessively violent slaveholder, and how members of the slave community thought and talked about punishment and criminality.  As befits someone whose scholarly work has for the most part been located in early modern Europe, there are continuing references to the European social history of crime and also reflections on why the violence in places Suriname played no part in the official European legal culture.

The opening pages pursue a relatively conventional and conventionally horrific portrait of the violence and cruelty of punishments that slaveholders visited on slaves in early eighteenth century Suriname.  The illustrations (better viewed on line than in the paper version of the review) are marvelous, but to this point the story told is one that readers in the global slavery literature will have heard before — about sadism and brutality and unconvincing rationalizations.

But then the essay confounds the reader by asking her/him to contemplate what slaves would have understood as punishable offenses and how they would have punished offenders.  And there follows a dizzying exploration of the relationships between ordeals and tortures, and of the multiplicity of legal traditions and practices that shaped this confused and confusing place, Suriname.

The very notion of combining a portrait of what slaveholders called “punishment” for “crimes” with sketches of what Africans would have understood at that time as legitimate punishments for harms done to others leaves the reader slightly queasy and uncertain.  There is something odd or disruptive about asking what were legitimately punishable wrongs, in a context filled with so much sadistic violence.  Still, to “do” history from the “bottom up” means presuming that the slaves themselves carried understandings of criminality and criminal justice.  It might be easier just to leave captured Africa slaves as victims of white power.  Davis, however, leads the reader to ask harder questions: How would recently captured Africans have understood criminality? How might they have meant to police themselves? What would they have regarded as legitimate punishments for harms done to others within their communities?

This is a work at the cutting edge of so many subfields of history.  And yet, at the same time, it is a fascinatingly old fashioned work.  Old fashioned in one particular sense: it is framed by an optimistic (a hard word to use in the context of what is being explored) commitment to the exercise of the historical imagination and to the partial knowability of historical pasts.  For Davis and her readers, torture and punishment — the manifest content of what happened in eighteenth century Suriname — become something more than discursive constructs.  To read Davis is to read something more than a reporting on the contexts of texts.  It is to experience and to imagine killings and tortures authorized by the state and by the controlled and out of control violence of slaveholders.  It is also to remind the reader that the task of understanding historical subjects, of imagining them in their present tense, requires one to reconstruct their memories, their pasts, and their inherited practices.  Their present — their real lives at a particular historical moment — incorporates many histories (including many languages and complex understandings), just as ours does.

“Judges, Masters, Diviners” is a triumph of the moral and historical imagination.

Joanna Grisinger

Kimberley S. Johnson’s recent article, “Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940,” is part of a valuable turn evident in recent scholarship on governance in the twentieth century. Bringing together politics and race to understand agricultural policies and institutions, Johnson asks, “[w]hen does race matter; and how does race matter when thinking about the shaping of the American state?” (P. 144) The answer? Race has shaped agricultural policy in some surprising and not-so-surprising ways.

In her study of the “agricultural welfare state,” Johnson examines the shifting ways in which the federal government provided farmers with services and subsidies in the decades following the Civil War. Responding to scholarship centered on interest group relations and partisan politics, Johnson stresses the importance of considering the political machinations involved in agricultural policy in the specific historical context in which these programs were designed and implemented. She describes in detail the numerous agricultural programs that came out of Congress in the years before the New Deal, and examines how their design and implementation occurred against a backdrop of legalized white supremacy in the rural South. The segregated nature of Southern agriculture combined with the power of Southern Democrats in Congress meant that national agricultural programs reflected the assumptions and preferences of powerful southern interests in maintaining racial hierarchies and allowed local authorities significant discretion in the distribution of assistance. Although the federal government consistently acknowledged its role in protecting farmers from economic dislocation, racial calculations, she argues, destroyed early on any possibility that the federal government would establish universal agricultural benefits as a matter of right.

While this part of her story is not a surprise to readers familiar with scholarship on social welfare programs, she pushes further to demonstrate how the design of these early agricultural programs constrained the options available to Congress and the USDA in shaping later ones. As the USDA learned to work with American farmers and implement agricultural programs, it gained experience doing so through a bifurcated system of benefits that privileged white farmers over African American ones and wealthy farmers over poorer ones. Although membership in each tier varied over time, the two-tiered model remained constant. As Southern Democrats’ power waxed and waned, and as agricultural services gave way to subsidies, more powerful farming interests turned this localism to their advantage and pushed to include themselves in the preferred class of recipients.

By the New Deal, then, “an administrative structure created to partially govern on the basis of race became an important tool by which to govern on the basis of class and land-tenure status.” (P. 145)  The New Deal’s expansive programs were built on the foundations of these older ones and adopted the bifurcated model. Rather than rebuilding the agricultural state or rethinking its design, New Dealers aimed certain programs at wealthier landowners while using others to target poorer tenant farmers. Relying on these previously established structures, she argues, meant that “any inequality established at the beginning became cumulative in scope.” (P. 161)

Johnson’s contributions are several. First, it is apparent how much is gained from looking at policies in their historical context. Broadening the frame beyond the parties directly involved in policy creation offers readers a richer and more complicated narrative about agricultural policy that indicates how closely tied these decisions were to other areas of policy and practice. At the same time, taking racial policy seriously as an influence opens up opportunities to rethink the development of economic regulation more generally. The Interstate Commerce Commission and the Federal Trade Commission both came of age during the period Johnson describes, and the Federal Communications Commission, Maritime Commission, and Civilian Aeronautics Board were not far behind. Examining how contemporary racial orders influenced policy and institutional development in each would greatly enrich our understanding of the modern state.

Finally, it is clear that these observations tell us much about the American state as a whole. As Johnson argues, this “agricultural welfare state” was “America’s first welfare state” (P. 144) and benefits from the kinds of analysis scholars like Ira Katznelson, Robert Lieberman, Linda Gordon, and Suzanne Mettler have applied to social welfare programs like those established by the Social Security Act and the GI Bill. In a variety of areas, deference to local power was built into federal policy in order to entrench the racial and gender status quo. The administration of policies is, these studies demonstrate, as important as the policies themselves; at the same time, scholarship on path dependence makes clear that governance decisions lock in policies and limit future choices. As Johnson makes clear, the USDA offers a remarkable place to see these ideas play out.