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Literary Play at the Inns of Court and Early Modern Legal Professionalization

The Inns of Court have long interested legal historians, particularly those who study the history of the legal profession. The fact that the Inns were sites of tremendous literary activity is not something that receives a lot of attention in the older legal histories of the Inns (e.g., those written by legal historians such as John Baker and Wilfred Prest). Scholars who do focus on the literary aspects of the Inns tend to be interested in those literary dimensions rather than the law, a tendency that Jessica Winston avoids by focusing squarely on legal professionalization and its link to literary activity. Winston’s book argues that the interconnections among literature, law, and politics at the Inns of Court are best explained by the increase in law-related positions in the growing administrative state in early modern England and the connection contemporaries made between literary skills and fitness for these jobs. Lawyers at Play elegantly traces the way that a group of individual men at the Inns in the 1550s and 1560s used the skills they learned at grammar school in poetry-writing and in translating plays and other works to recommend themselves for those new positions. Rather than focusing on the literary stars of the Inns from the 1590s and 1600s such as William Shakespeare, Winston shifts the focus to an earlier time period. These relatively unknown individuals, unknown at least to those who are not literary scholars of Renaissance England, set the stage, as it were.

When explaining why lawyers-in-training lived cheek by jowl with those pursuing drama and poetry, other scholars have tended to satisfy themselves with ideas about what London generally was like during the height of the Inns. So, for instance, Phillip Finkelpearl, author of an excellent book on the important playwright John Marston who lived at Middle Temple in the 1590s, focuses on the fact that a severe housing shortage in London led poets like John Donne and playwrights like Marston to live alongside those pursuing a legal education at the Inns.1 The lusty and lively environment of Elizabethan London, it is conjectured, led/misled many of those would-be lawyers into literary pastimes, for example, attending and participating in elaborate revels and masques—some written by Shakespeare.

However, no one, until Winston, has pushed beyond the general environmental/geographical point to explore what exactly the connection was between literary activity at the Inns and why it was so intense at some moments and less so at others. Yes, it was London and yes, it had a vibrant intellectual scene, but that was true before the 1550s and remained true after. The “playing,” or literary activity, was not at the Inns to any great extent before the mid-sixteenth century. It greatly diminished by the 1570s and disappeared by the mid-seventeenth century. “If the locality and intellectual climate of the Inns did not change dramatically over time, what accounts for these phases in literary activity? What else fostered the development of literary clusters at the Inns at particular moments?” (P. 45.) Winston’s answer is legal professionalization, specifically, the wide array of legal positions that became available in the 1560s in the Elizabethan administrative state and a perceived connection between literary skills and fitness for those offices.

The first noteworthy feature of Winston’s approach, which I must highlight because it is deployed so effectively, is her use of prosopography, or collective biography, working with a generational group from the 1550s and 1560s rather than a single individual such as Marston. (See p. 49.) Winston emphasizes that this was the first generation to have received a thoroughly humanistic education at grammar school, one that emphasized classics, rhetoric, and service to the commonweal. This fact turns out to be important, as these young men brought habits of mind from that earlier education to the Inns, where they created a new habitus (to use the phrase from Pierre Bourdieu that Winston borrows—see p. 32.) ”[T]he daily drills and corporal punishments of grammar school education inculcated a set of behaviors, preferences, and habits of comportment, experienced and re-enacted in the habits of mind, dispositions, and even the bodily carriage of the students themselves. The customs and tastes—the habitus—of the grammar school were engrained at a corporal and psychic level.” (P. 55.) These men were, Winston writes, “mainly twenty-something, non-aristocratic, university-educated, Protestant, junior members, who turned to literature as part of a career trajectory that aimed for positions in law, at court, or elsewhere in the bureaucratic infrastructure of the Elizabethan state.” (P. 7.)

This was a time of rising litigation rates and a growth in administrative roles across England that required at least some legal knowledge. Employment opportunities in other sectors such as the Church had diminished. Students at the Inns mobilized the literary skills they learned in their classical educations to demonstrate their fitness to enter into what Winston calls “the legal magistracy.” Positions were available and lawyers were needed, creating “an important exception to the otherwise timeless gripes about lawyers.” (P. 57.) Justices of the peace or magistrates, town recorders, and other civic office holders were in great demand. It was more important that these men be virtuous than that they have technical legal knowledge or skills. (See pp. 221-22.) Involvement with literary works that discussed virtue was taken as a demonstration of virtue, thereby closing the “gap between ideology and practice at the heart of humanist theory.” (P. 54.)

Being a justice of the peace did not involve much poetry writing, hence the gap. However, as Chapter 2 explains, writing poetry that rejected romantic love as dangerous and extoled the virtues of public service demonstrated that the author had at least thought about what kind of virtue made one fit for public office. Winston highlights concerns among some of the chief men in the government about the quality of those taking on England’s administrative positions. And so writers at the Inns took to producing a “literature of magistracy” “to train current magistrates and advise them about their responsibilities, to guide the thinking of magistrates-in-training at the Inns, and also to demonstrate the authors’ commitment to and ethical preparation for being legal magistrates themselves.” (P. 51.) As Winston puts it, “long term trends in humanist education met undersupply of legally trained men to meet England’s litigious and administrative needs.” (P. 50.)

One of the great strengths of Winston’s work is her broad understanding of what constitutes literature—not just a poem or a play but also a treatise or a translation. Consider Chapter 4, which emphasizes how creative the Innsmen’s translations were, taking liberties with the original texts and really making them into their own works. This activity was, Winston explains, a way to transfer “the former political and intellectual dominance of Greece and Rome to England.” (P. 100.) This was seen as particularly important due to the anxiety that existed about England’s lagging behind Continental Europe, especially Italy, which had much more material available in its vernacular culture. (Pp. 114-15.) By translating one of these texts, a member of this particular generational group helped to enrich English vernacular culture (e.g., translating a work in Latin by Cicero into English) and at the same time make himself into (and demonstrate to others that he would be) an ideal magistrate, putting himself in service to the state like Cicero himself. Winston calls this “a double translation: the transformation of the translators themselves and of the political and intellectual state of England.” (P. 100.)

Winston spends a number of later chapters in the book exploring the role of dissent and just how far Innsmen were able to take things “under the cover of fiction” (p. 188) before they would retreat, fearful of repercussions from an increasingly sensitive Elizabeth (at least on matters that touched her unmarried status and the national anxiety relating to the problem of her succession). “Counsel literature” with political content demonstrates that the Inns created what Winston calls “a semiautonomous political space.” (P. 51.) Giving advice to the monarch or her counsellors shows that the Inns were developing their own corporate or collective identity as a space separate from and independent of court and Crown. The Inns had their own jurisdictions with their own ways of doing things and understood themselves and were received in that way by audiences. (Pp. 197, 216.)

Winston concludes her book by stating that “[t]he full story of law and literature at the Early Modern Inns of Court remains to be told.” (P. 225.) However, she has amply demonstrated that “literary activity [at the Inns] intensified at crux moments in the transformation of the legal profession.” (Id.) Hence, there was a logic to why the activity appeared and receded which was previously unappreciated and unexplained. Winston’s book demonstrates what it set out to prove, namely, that “at the Inns of Court literary play was the unacknowledged but ever-present associate to the common law in the history of early modern legal professionalization.” (Id.) It is a new must-read for those interested in the history of the common law and the Inns of Court.

  1. See Philip J. Finkelpearl, John Marston of the Middle Temple: An Elizabethan Dramatist in his Social Setting, 17 (1969). []
Cite as: Angela Fernandez, Literary Play at the Inns of Court and Early Modern Legal Professionalization, JOTWELL (May 31, 2018) (reviewing Jessica Winston, Lawyers at Play: Literature, Law, and Politics at the Early Modern Inns of Court, 1558-1581 (2016)), https://legalhist.jotwell.com/literary-play-at-the-inns-of-court-and-early-modern-legal-professionalization/.

Recovering and Revitalizing Economic Citizenship in American Law

K. Sabeel Rahman, Democracy Against Domination (2016).

Scholars from a variety of disciplines have begun to explore what they see as the lost virtues of political economy. In its broadest conception, this term is meant to capture the basic truism that any study of politics or economics should reflect their mutually constitutive character. A renewed interest in political economy and the law further reflects the same mutuality among law, politics, and economics. Central to such renewal is a claim that analytically segregating these fields leads to analysis that is both descriptively inaccurate and has powerful and troubling normative consequences.

Sabeel Rahman’s Democracy Against Domination is a leading example of a new generation of scholarship that demonstrates both the descriptive and normative promise of law and political economy. Rahman’s mission in the book is to reinfuse debates on financial regulation with overt concern for democratic participation and to recover an ethos that sees American economic and political citizenship as inextricably intertwined. Rahman’s history traces how this ethos was lost over the course of the twentieth century, and in doing so produces a sustained historical inquiry about how we arrive at what is considered “normal” or inevitable about legal regulation. Domination’s chapters follow the pattern of presenting a modern problematic in regulation and then demonstrating how contemporary responses are both democratically impoverished and historically contingent. The aim of the endeavor is to argue that fields of law that have been exorcised of any referent to democratic values, notably antitrust and administrative law, need to be reopened and remade. The alternative is to face pressing issues of inequality with an ultimately ineffective set of regulatory responses.

Domination’s history serves this mission by revealing the path by which political, legal, and economic concepts became isolated from each other in our collective intellectual and social vocabularies about regulation. The key consequence of this isolation has been the naturalization of unequal distribution of material resources and circumscribed democratic participation. Rahman’s critique echoes the classic tension between formal legal freedom and substantive liberty as a lived experience. His recurrent use of “domination” itself explores the social context of political and economic choice, and its often illusory character in practice.

Rahman begins his narrative at the 1892 national convention of the People’s Party in Omaha, Nebraska. Labor historians have long invoked the turn of the twentieth century as a time when the American regulatory response to industrial capitalism was unsettled and open to far more trenchant critiques.1 Rahman’s use of this era as a touchstone recaptures past imaginations of American citizenship in an era when legal and economic thought were more tightly intertwined. His favored example of antitrust regulation stands out as a regulatory response that originally justified itself through assumptions about the inherently political consequences of capital distribution, and vice versa. Not confined to static analyses of maldistributions of income or wealth, scholars and activists of this era saw financial regulation as an iterative process to realize democratic opportunity and accountability. As others have also noted, one can look to the work of thinkers like Richard Ely and John Commons as the true first wave of “law and economics” scholarship.

In welcome addition to the common cast of characters associated with histories of labor republicanism, Rahman’s intellectual anchors are Louis Brandeis and John Dewey. Each thinker emphasizes a different aspect of the relationship of regulation to domination, with Brandeis focusing on what Rahman calls dyadic domination, or the exertion of concentrated private power over individual citizens, and Dewey focusing on what Rahman calls structural domination, or the cumulative restraint of social institutions and practices on democratic agency. Rahman’s analysis of Dewey’s pragmatism is especially interesting as a theory of iterative learning that applies directly to how regulators should approach democratic decision-making. Rahman’s critical engagement with Brandeis’ thought is specifically revealing in its own right of the relevance of integrating legal thought with the broader concerns of political economy.

The central descriptive claim that Rahman makes is that a loss of this earlier concern with domination leads to a false contemporary choice between the competing theories of laissez-faire and what he terms “managerialism.” One of Rahman’s primary objectives is to take seriously the critiques that laissez-faire proponents advance, which he sees as possessing a “compelling moral account of freedom with a sophisticated institutional critique of government.” (P. 170.) For Rahman, it is essential to recognize the force of these critiques, as they led directly to New Deal proponents sideling their concerns about economic and political dominations. Instead, they responded to critiques of state domination by defensively retreating to managerialism—which justified the regulation of markets solely through the rigor of technical expertise. Managerialism ultimately transformed inequality into a technical problem, rather than an issue of democratic accountability, and entrenched an expert anti-politics that still is at the heart of recent Democratic administrations. For Rahman, the failure of the New Deal lies centrally in eliding the tough but essential questions of how to incorporate the democratic participation of citizens into what today are considered arenas of pure technical expertise. Moreover, over time this technocratic move then undermined the tradition of civic mobilization that had energized earlier movements for regulatory accountability.

Marking his contemporary critical ambitions, Rahman goes beyond intellectual history to take on pragmatic issues of “institutional design.” Domination focuses on financial regulation exactly because it is now understood as of great importance, but also generally invisible to the daily life of most citizens. Rahman advances his own vision of financial regulation as molded by a theory of democratic inclusivity, casting concerns with administrative overreach, tied to the rule of law or balance of powers, as insufficiently informed by parallel concern with the private sources of anti-democratic domination highlighted by Brandeis and Dewey.

It is here that hereto sympathetic readers might balk at how deeply embedded Rahman’s historical account is with his own normative ambitions. But such ambitions are not hidden nor are they central to his descriptive archaeology. This openness allows Rahman to flesh out the application of these earlier ideas to specific arenas of financial regulation today. His discussion of the potential regulation of financial institutions as public utilities in Chapter 6 is thus rendered both imaginative and plausible. He achieves this by revealing the normality of such a perspective in the early twentieth century, how it was justified under domination concerns, how it was lost, and what it might look like reinvigorated today. In Chapter 7, he repeats the same for the design of the administrative state.

He frames much of Domination to explain the fate of financial regulation under the Obama administration. Rahman relates his own anticipation that the administration would reaffirm some of these past ideals, and revitalize democratic regulation. Domination is subsequently marked by disappointment that such reimagination succumbed to doubling down on managerialism and the comparatively timid regulatory response to the Global Financial Crisis as compared to that after the Great Depression. As nostalgia for the Obama administration grows within the Democratic party, some could characterize Rahman’s critique as an indulgence. Defenses of expertise are now commonplace in the midst of the resurgent success of laissez-faire.

Yet, part of the historical lesson Domination presents is that the democratic impoverishment of managerialism has become self-fulfilling. If one creates a system of regulation that presumes that citizens have no role in the administrative state, then it should not be surprising when they feel increasingly alienated from it. An anti-democratic technocracy inures citizens to public reason, and sets up the false set of choices that today seem natural.

Furthermore, Rahman’s history demonstrates the great potential for legal scholars and lawyers to serve as key intermediaries in translating constitutional hopes into institutional realities. Many lawyers struggle with the relationship of their expertise to social movements, but Rahman shows us that it is not expertise that is the enemy of democracy but the presumption that its purview is exclusive. Expertise can co-exist with democratic accountability through visibility and accessibility, but not solely through its own rigor. Rahman has himself worked to show how the participation of legal scholars is key to attempts to revitalize a democratic political economy in America.

In this way, Rahman’s history is also timely given larger global debates on economic citizenship. His discussion of John Dewey’s view of democratic freedom resonates with those expressed by Amartya Sen in grappling with economic development and human flourishing. If there is one weakness to Rahman’s history, it is that it only touches on parallel debates abroad, signaled by his mention of participatory regulation in Brazil, India, Indonesia, and elsewhere. In reverse, authoritarian regimes across the globe are experimenting with testing the limits of elections as a mechanism of democratic accountability and using regimes of technical expertise as substitutes for democratic participation. But such limitation is more invitation than true critique.

In the end, it is possible that one might not be persuaded by the rich and intensive account of democratic citizenship Rahman imagines. Some might feel that citizens are all too happy to accept the excision of democracy from their daily lives, and to portray protests as only potential inconveniences in their daily commutes. But if the recent furor over network neutrality is any indication, citizens wanting to participate in regulatory debates are not in short supply. Yet, mechanisms to render their participation meaningful are. Establishing that this is a genuine problem for American democracy is a more than satisfying payoff for Rahman’s historical efforts.

  1. See, most recently, Alex Gourevitch, From Slavery to the Cooperative Commonwealth: Labor and Republican Liberty in the Nineteenth Century (2014); Anna di Robilant, Populist Property Law, 49 Conn. L. Rev. 936 (2015); and Rebecca E. Zietlow, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction (2017). []
Cite as: Jedidiah Kroncke, Recovering and Revitalizing Economic Citizenship in American Law, JOTWELL (May 1, 2018) (reviewing K. Sabeel Rahman, Democracy Against Domination (2016)), https://legalhist.jotwell.com/recovering-and-revitalizing-economic-citizenship-in-american-law/.

Quiet Justice

One of the key contributions Melissa Milewski makes in her important new book, Litigating Across the Color Line, is a novel and rather surprising answer to a central question for historians of race and the law: why, in the period between Reconstruction and the modern civil rights era, did African Americans maintain such faith in the courts?

The standard answer, in one version or another, has been: what else did they have? During decades when the controlling institutions of American society systematically oppressed blacks, the courts, and particularly the federal courts, were the least bad choice available for oppressed racial minorities. This helps explain why the NAACP invested time and resources in litigation campaigns in its early years; it also helps explain why African American attorneys such as Charles Houston and Thurgood Marshall committed themselves to a path that placed lawyers and judges at the vanguard of the battle against Jim Crow.

Kenneth Mack, in his 2012 book Representing the Race, offered another answer to this puzzle of black commitment to the courts. He examined the lives of African American lawyers from the 1920s through the 1950s and found that the courtroom itself offered skilled black lawyers unique opportunities to perform in a relatively egalitarian setting. The courtroom, according to Mack, “remained open to the crossing of racial boundaries in a way that most other public places were not.”1 For some black lawyers, the courts offered a valued space in which to cultivate a professional identity.

Milewski, a historian at the University of Sussex, presents yet another explanation for this resilient faith in the courts among African Americans. Shifting focus from black lawyers to everyday black citizens, she advances a simple and striking claim: for African Americans in the Jim Crow South, the courts generally worked. In the years between Reconstruction and the civil rights movement, a time when southern blacks were excluded from holding office, voting, serving on juries, a time when segregation by custom and law defined public life in the South, African Americans fared surprisingly well in the courtroom.

This important and counterintuitive point, Milewski is careful to note, requires some immediate qualifications. When prosecuted by the state for crimes, especially crimes (or accusations of crimes) with white victims, African Americans received justice that was harsh and unequal. Yet when it came to legal disputes over property, wages, injuries, and various other civil matters—the focus of the book—Milewski demonstrates that the white judges and juries often did in fact provide fair treatment for black Americans.

This is not an easy topic to research, and one of the pleasures of Litigating Across the Color Line is Milewski’s discussion of the challenges posed by her research subject and the creative solutions upon which she settled. For the most part, trial court records of this period are either nonexistent or exceedingly difficult to find, and  extant records are often incomplete. To navigate these source limitations, Milewski focuses on civil cases between white and black litigants that reached the state supreme courts in eight ex-slave states (Alabama, Arkansas, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, and Virginia) between the end of the Civil War and 1950. Narrowing the scope of her research to this subset of appealed cases allows her to more systematically evaluate her topic; the book includes an appendix of tables breaking down her data. Furthermore, the cases that reached state supreme courts often have case files with which she reconstructed the earlier stages of litigation. In brief form in the body of the book and at more length in an appendix, Milewski offers wonderful descriptions of the challenges of the archives and, more generally, the work of the historian.

Milewski’s impressive archival research led her to identify 1,377 civil appeals that reached these eight state supreme courts between 1865 and 1950 in which she could identify a black litigant. A third of these were disputes between black litigants (most often over wills and estates). The rest were between black and white litigants; these thousand or so cases are the focus of the book. Her headline finding: in appeals of civil cases involving disputes between blacks and whites, state supreme courts held in favor of the black litigant more often than the white. (Blacks won fifty-nine percent of these cases.)

What accounts for this surprising fact? Among Milewksi’s several explanations, one of the most compelling is a theory of hegemonic preservation: by maintaining a certain level of fairness in the civil litigation process, whites were able to create a more effective system of white supremacy. Blacks tended to win in cases that whites did not see as threatening the racial status quo. In civil cases that directly challenged racial discrimination, black litigants lost far more than they won. In appeals of criminal convictions, black defendants lost more than they won. The average property dispute, personal injury claim, or fraud suit, by contrast, did not appear to challenge white authority. The cases she considers were litigated almost exclusively by white lawyers; they were decided by white judges and, in most cases, all-white juries. Milewski notes that successful black litigants often presented themselves in ways that aligned with white stereotypes—deferential, vulnerable, ignorant, non-threatening. Black legal victories were both an exception to the general rule of white supremacy and a product of it.

Litigating Across the Color Line brims with other interesting findings. Milewski notes, for instance, that forty-one percent of the civil cases she examined had a black woman as one of the litigants. She also locates changes in litigation patterns over time. In the period between 1865 and 1900, a large percentage of cases involved black litigants suing their previous owners, usually over disputes over wills and property. In the early twentieth century, personal injury and fraud suits were the most prevalent form of interracial civil suit; by the middle of the twentieth century, most disputes involved property, contracts, and wills. In these later decades of her study, Milewski also notes an increase in African American litigants advancing broader claims for equal treatment as part of their civil suits, sometimes with the support of racial justice organizations, such as the NAACP.

Milewski’s approach has its limitations, as she readily acknowledges. Her data set is not necessarily representative of the universe of civil cases that got to court. Appealed cases often involved black litigants with more knowledge and resources. These litigants likely had, on balance, stronger legal claims than the run-of-the-mill case that never got beyond the trial court. Nonetheless, even taking into account these recognized limitations, Litigating Across the Color Line offers fresh insights and much material for further exploration.

Although this book offers powerful insights about dynamics of the black freedom struggle, this is not a book about crusaders. Few of the cases Milewski considers directly involved race or racial discrimination. Her protagonists are regular people with everyday problems—property and wage disputes, contested wills, personal injuries. They wanted solutions. And the courts, in many instances, gave them what they wanted, even when it required a white judge or jury to declare a black person right and a white person wrong. They “made a biased system work for them under enormous constraints.” (P. 3.) And even if the African Americans who took their problems to court did not see themselves as egalitarian crusaders, and even if whites did not recognize interracial civil suits as challenging their racial privileges, Milewski insists that these cases “were just as radical and significant as cases focused on civil rights that gained the nation’s attention.” (P. 190.) Former slaves were able to win cases against their former masters; sharecroppers were able to win cases against white landowners. The reconstruction of this remarkable story is a major contribution to legal historical scholarship.

  1. Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (2012), 62. []
Cite as: Christopher W. Schmidt, Quiet Justice, JOTWELL (March 23, 2018) (reviewing Melissa Milewski, Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights (2017)), https://legalhist.jotwell.com/quiet-justice/.

Heil Jim Crow?

In Hitler’s American Model, James Q. Whitman explores Nazi Germany’s focus on American law, taking on the conventional view that Germany found little of interest in the United States. (P. 4.) Whitman demonstrates otherwise, arguing that even though the Germans rejected racial segregation as it was practiced in the American South, they undertook a “sustained” examination of other aspects of American race law, including restrictions on immigration based on national origin, prohibitions against interracial marriage, and rules that fostered “de jure and de facto second-class citizenship for blacks, Filipinos, Chinese, and others.” (P. 5.)

Rooting his argument in a fascinating array of sources, Whitman demonstrates that Nazi lawyers became particularly interested in American immigration restrictions. They focused on a series of quotas enacted in the 1920s that limited immigration based on the ethnic groups that were already in the United States, an approach that favored northern Europeans from England, Scandinavia, and Germany – all groups that the Nazis loosely classified as “racially related” and the truest expression of the American “volk.” (P. 54.) That America had a “volk” might be news to some, but this is why Whitman’s study is so interesting. It suggests strongly, and persuasively, that America’s commitment to white supremacy eclipsed – or rather subsumed – its other projected ideals abroad, including for example its commitment to democracy, a value that Woodrow Wilson had trumpeted loudly during World War I. “That the Americans have begun to think about the maintenance of race purity,” wrote Nazi legal expert Martin Staemmler in 1935, “can be seen in their immigration laws, which completely forbid the immigration of yellows, and place immigration from the individual European countries under sharp supervision, here principally admitting members of the decidedly Nordic peoples (English, German, Scandinavian states).” (P. 55-56.)

Also of interest to the Nazis were American measures aimed at denying equal citizenship to racial minorities, including African Americans in the South. According to Nazi lawyer Heinrich Krieger, “covert legal subterfuges” in the South were to be praised for “depriv[ing] the black population of full political rights,” precisely because they protected the “ruling race” from African-American influence. (P. 67.) This was an idea that the Germans could, and did, use against Jews, along with American prohibitions on interracial marriage that proved “deeply appealing to Nazis.” (P. 79.) For example, Nazi lawyer Roland Freisler praised the American South, declaring that it was “well-known” that “the southern states of North America maintain the most stringent separation between the white population and coloreds in both public and personal interactions.” (P. 86.)

Of course, Nazi Germany went well beyond banning marriage, deciding by 1941 that the “final solution” to their problem with non-Aryan minorities was annihilation. Such a directive was never adopted in the United States, even vis-à-vis its Native American populations – and Whitman is careful to note that, conceding that the Nazis tended not to copy American law verbatim, but rather took America’s commitment to white supremacy as evidence that “the winds of history were blowing in their direction.” (P. 71.) This alone is reason to read the book, both for what it says about Germany, and also for what it says about America, helping to explain that as bad as the Nazis may have been, they were not operating in a vacuum, and certainly were not alone in their commitment to the idea of a racialized state.

However, Hitler’s American Model also raises questions. To what extent, for example, were Nazi interpretations of American law shaded by their own idiosyncratic plans for Germany? Whitman concedes, for example, that the ultimate objective of these “Nuremberg Laws” was to “drive Jews to emigrate,” i.e., to leave Germany. (P. 48.) This was a project that did resonate with American history, but not necessarily the history that the Nazis focused on. The colonization campaigns popular among nineteenth century abolitionists and the treatment of Native Americans by the federal government might be viewed as forms of exclusion, for example, but these were not areas of law that interested Nazi lawyers. They focused on the twentieth century, which boasted some exclusionary measures – prohibitions on immigration – but also more complicated regimes. Proponents of southern segregation, for example, sold their system not as a means of eliminating African Americans from the region – they needed black labor – but as a bizarre form of pluralism, a legal arrangement that provided for the close interaction of the races, meanwhile endorsing separate black institutions, traditions, even culture. Segregationists also argued that African Americans stood the best chance of finding happiness in the South, and expressed anger when – beginning with World War I and continuing through World War II – they left.

While such arguments may have been deluded, they were not German. The Germans sought elimination, not coexistence, whether through “coerced emigration” or mass murder – a very different project from the one undertaken in the U.S. This undoubtedly explains why scholars have not found an American model before, but it is still worth noting – as Whitman does – that they found much of interest nevertheless, and perhaps even saw America as a prototype of the kind of racialized state that they sought to perfect. As the National Socialist Handbook put it, America “had achieved the ‘fundamental recognition’ of the historic racist mission that Nazi Germany was now called to fulfill,” an observation that – true or not – startles today, given what the Nazis then did. (P. 71.)


Editor’s note: For another review of Hitler’s American Model, please see Pat Gudridge, Alabama Song? Lotte Lenya? No. Adolph Hitler!, JOTWELL (March 8, 2018).

Cite as: Anders Walker, Heil Jim Crow?, JOTWELL (March 8, 2018) (reviewing James Q. Whitman, Hitler’s American Model: The United States and the Making of Nazi Race Law (2017)), https://legalhist.jotwell.com/heil-jim-crow/.

The Costs of Constitutional Principle

The law delivers uneven benefits for the protagonists of Daniel K. Williams’ masterful study of the early decades of the pro-life movement. Williams chronicles the transformation in the 1960s of what had been a religious crusade against contraception and abortion into a secular, rights-based cause that also appealed to some left-leaning Catholics and Protestants. Williams argues that antiabortion activists invested more in legal strategies after the Supreme Court’s decision in Roe v. Wade. Leaders of the movement became preoccupied with a constitutional amendment overturning Roe. Entanglement with law ultimately undercut demands for material benefits that some pro-lifers believed women required to have a real reproductive choice.

Williams first takes readers into the poorly understood years of early pro-life activism when “the campaign against abortion was almost inseparable from the Catholic Church’s fight against contraception.” (P. 4.) By studying the predominantly religious and medical debates that dominated the 1930s and 1940s, Defenders of the Unborn recovers a mostly lost prehistory of the abortion battle. At this time, as Williams shows, debate often turned not on the meaning of the Constitution but on the medical need for abortion and the religious beliefs of those opposed to it. Williams also traces the origins of now-ubiquitous comparisons of abortion and the Holocaust to this period.

As Williams’ story moves into the 1950s and 1960s, the antiabortion movement often relied on law and lawyers. Defenders of the Unborn digs deep into early debates about abortion reform in California when Walter Trinkaus, a lawyer representing the California Conference of Catholic Hospitals, argued that legal disputes should turn on whether the fetus was a person. Although it was far from evident at the time, Trinkaus’ argument would soon come to define those who for the first time identified themselves as part of a social movement.

Defenders of the Unborn offers fresh insights about how an avowedly Catholic cause became a non-denominational and at least partly legal movement. The spread of the birth control pill and growing support for contraception turned the Church’s position on birth control into a major political liability. The story of Sherri Finkbine, a mother who wanted to end a pregnancy after taking a drug known to cause fetal defects, increased public support for abortion, as did a major German Measles epidemic. Losses in states from California to North Carolina convinced abortion opponents that they would have to “sever the ties between the right to life cause and contraception, Church doctrine, and even the Church itself.” (P. 88.)

In response, Father James McHugh, the organizer of what would become the National Right to Life Committee, the largest national antiabortion organization, urged lay Catholics to form independent state and local organizations committed to the rights-based, secular arguments honed by lawyers like Trinkaus. The repeal of abortion laws, together with the spread of graphic images of late abortions, allowed abortion opponents to attract a meaningful number of evangelical Protestants and other non-Catholics. Williams argues that some who tolerated therapeutic abortions felt that “abortion on demand” went too far.

The constitutional framing of the movement’s cause inspired homemakers and professional women, who figured so prominently in the movement’s ranks. Some of these leaders viewed the right to life as a matter that involved rights for women and unborn children: legalizing abortion would deny pregnant women the right to societal support for childbearing and childrearing. Birthright, the pioneering crisis pregnancy center, captured these women’s ambivalence about law. Emphasizing the importance of service provision, Birthright nonetheless primarily argued: “It is the right of every pregnant woman to be a mother, and it is the right of every child to be born.” (P. 154.)

Williams argues that Roe began a new era in antiabortion engagement with the law. At first, pro-life activists believed that “their only hope was a constitutional amendment guaranteeing the right to life from the moment of conception.” (P. 205.) Although some abortion opponents viewed the campaign for the so-called human life amendment as a dangerous distraction, an otherwise fractious movement rallied around the idea of a constitutional solution. As Williams suggests, it would be hard for antiabortion voters to resist voting for a party that endorsed that solution. As the Republican Party stepped up its support for a fetal-protective amendment, abortion foes increasingly marginalized proposals and constitutional arguments that fit poorly in a largely conservative agenda.

Defenders of the Unborn tells the story of how engagement with lawyers and the law inspired and mobilized antiabortion activists at some points while silencing or limiting other advocates. Framing the cause as a fight for the right to life initially allowed Catholic leaders to win the support of those who interpreted the movement’s constitutional rhetoric in surprising and radical ways. In addition to burnishing the movement’s secular image, the very open-endedness of a right to life accommodated many with different political perspectives. While conservatives remained hostile to contraception and non-marital sexuality, left-leaning activists used rights-based arguments in advocating for private and public support for pregnant women, infants, and older children. Student activists pointed to the right to life in questioning both the wisdom and constitutionality of the death penalty and the Vietnam War. Still others saw the right to life as a natural extension of Lyndon Johnson’s War on Poverty or even the fight for welfare rights. Strikingly, many of the activists who effectively deployed constitutional arguments were not lawyers and saw litigation as relatively unimportant.

Williams’ writing is clear and accessible, and he often makes powerful use of the voices of those he studies. Studying the antiabortion movement is no easy feat: many insiders view scholars and journalists with suspicion, and most archival material is found in obscure, far-flung places. Williams goes the extra mile to find crucial documents that will be of use to other scholars. Defenders of the Unborn handles a divisive topic with fairness and insight, and Williams unquestionably makes an original contribution to the study of abortion, forcing readers to rethink the origin story of what has become a leading part of the modern conservative coalition. The book is a must for anyone studying the legal history of abortion.

But Williams argues that the antiabortion movement’s embrace of constitutional ideas and arguments ultimately set a trap sprung by the Supreme Court in Roe. Lawyers for the movement had narrowed the ideas of a right to life championed by grassroots arguments. Instead of demanding material support for pregnant women and children, these attorneys argued for a compelling interest in protecting life that justified sweeping abortion bans. Because Roe commanded so much public attention, grassroots activists concluded that the Court had rejected everything that the movement stood for. On some level, these advocates were right: they opposed abortion, and the justices had legalized it from coast to coast. But in many ways, because the right to life had come to mean so many things, grassroots activists read Roe too broadly, seeing it as a repudiation of arguments made for the protection of women, children, or even the poor.

And the antiabortion movement’s preoccupation with restoring the right to life, Defenders of the Unborn shows us, limited what the cause could stand for, which policies advocates could promote, and which leaders activists could endorse. As Williams recognizes, the reasons for the antiabortion movement’s rightward turn (and narrowing agenda) were complex. Political-party realignment around the abortion issue had not been inevitable. The rise of neoliberalism, with its praise for small government and free markets, made an alliance with the Republican Party more appealing to abortion opponents who believed that presidential elections would ultimately reshape the Supreme Court. The decline of the New Left, the end of the Vietnam War, and the shoring up of support for the death penalty also deprived some abortion opponents of logical allies on the other side of the political spectrum.

But the alienation and heartbreak facing some of the pro-lifers in Williams’ story came from the movement’s relationship to lawyers and the law. Ironically, in Williams’ telling, it was Roe v. Wade, not grassroots abortion opponents, that defined for many in the movement what the recognition of the right to life would mean. As many in the movement focused single-mindedly on a constitutional amendment reversing Roe, the antiabortion movement gradually marginalized many of those who had made the movement successful in the early 1970s. Political scientists, judges, and historians have long wondered how differently the abortion debate might have gone if the Supreme Court had issued a different kind of decision in Roe. Defenders of the Unborn forces us to ask an equally important question: would it have made a difference if abortion opponents defined themselves by something other than a constitutional right to life?

Cite as: Mary Ziegler, The Costs of Constitutional Principle, JOTWELL (February 6, 2018) (reviewing Daniel K. Williams, Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade (2016)), https://legalhist.jotwell.com/costs-constitutional-principle/.

On Fiscal Citizenship: A Cultural History of Tax Law

Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.” During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.

This election episode epitomizes the declining relationship among tax, civic identity, and citizenship,1 which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.

Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.

Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.

But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.

Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”

Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.

Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.

  1. Or what Lawrence Zelenak has termed “fiscal citizenship.” See Lawrence Zelenak, Learning to Love Form 1040: Two Cheers for the Return-Based Mass Income Tax (2013). []
Cite as: Binyamin Blum, On Fiscal Citizenship: A Cultural History of Tax Law, JOTWELL (January 11, 2018) (reviewing Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine and Israel (2017)), https://legalhist.jotwell.com/fiscal-citizenship-cultural-history-tax-law/.

Citizens, Aliens, and the Architecture of Exclusion

Over the past few decades, historians have enriched our understanding of the concept and experience of citizenship in United States history. The historiography shares some common features. Narratives of citizenship and immigration tend to be progressive: that is, they demonstrate the ever-widening circle of inclusion of “others” over time (think, for example, of histories of married women’s property rights, the civil rights movement, or the immigration acts from 1924 to 1965). Despite this commonality, for the most part, histories of citizenship and immigration have really been histories of citizenship or immigration: even though these terms are usually uttered together as a phrase, the scholarship tends to be divided into those who study “second-class citizens” – that is, those who were born in the United States but excluded from various rights and obligations, including racial and ethnic minorities and women – and those who study the foreign-born.

Kunal Parker’s compelling book, Making Foreigners: Immigration and Citizenship Law in America, 1600-2000, upends the division that is commonplace in the study of citizenship “or” immigrants. He challenges what he perceives as a false dichotomy between foreigners and non-foreigners in the extant literature. His central claim is that histories of citizenship and immigration are tightly linked: that territorial insiders and territorial outsiders – that is, those born here and those not – have been subjected to similar processes of regulation, rejection, exclusion, and removal throughout American history. As he writes, at various points in our history, women, blacks, Native Americans, Asian Americans, and Latino Americans have all been “rendered foreign,” sharing more in common with territorial outsiders – or so-called “aliens” – than with those who were native-born. In other words, the experience of foreignness was not limited to those who were foreign-born. Parker is not the first to demonstrate the interconnectedness of territorial outsiders and insiders, but his book provides a comprehensive frame, making the most successful argument to date for this reconceptualization.

The book aspires to be a concise synthesis of immigration and citizenship law over four centuries. This is an ambitious goal, one that Parker meets successfully. This is a synthesis that has a point of view and is driven by a conceptual framework. As such, it does not attempt to be comprehensive. Notably less prominent in the narrative are the voices and actions of immigrants and minorities themselves. The focus instead is on the architecture of exclusion: the state, local, and federal laws and policies that recreated foreignness in various guises. The evidence supporting the argument is voluminous: the book charts a wide range of powerful forces that pushed in various ways to render citizens as foreigners, and gives many specific examples (restrictions on the right to travel for poor people, Native American relocation, loss of citizenship for women married to foreigners, Japanese internment, and Mexican repatriation, to name a few). Parker concludes with an excellent bibliographic essay that supplements the text.

The first chapters of the book draw on a wealth of sources to demonstrate that the legal status of many native-born residents was strikingly similar to that of foreigners. During the colonial and early national periods, a majority of native-born residents shared the same legal disabilities as aliens, including an inability to own property and vulnerability to state powers of removal and exclusion. The latter chapters of the book show that, beginning in the twentieth century, the experiences of insiders and outsiders began to diverge: as the nation developed a strong formal definition of citizenship, aliens lost legal status. As the boundaries of citizenship hardened over time, the gap between alien and citizen widened. Rather than an upward progressive line of expansion in rights for all, there were diverging patterns between citizen and alien. This insight helps to contextualize the draconian treatment of immigrants in American law today, pushing against a more familiar – and, Parker would argue, less accurate – narrative of inclusion and expansion of rights.

Importantly, Parker shows that the narratives of insider and outsider were mutually constitutive: a strong, legally bounded definition of citizenship meant that something, and someone, needed to be on the outside of that category. This is a powerful illustration of the ways that citizenship becomes, to quote Rogers Brubaker, “both an instrument and an object of [social] closure.”1 Ultimately, Parker makes a convincing argument that one cannot tell the story of citizenship without the story of immigration. We cannot understand the growth of the federal immigration bureaucracy without understanding the demise of slavery; we cannot make sense of the development of deportation law without understanding the vast regime of local settlement laws that excluded the poor – both citizen and noncitizen – from communities; and we cannot understand the rise of guest worker programs after World War II without understanding the expansion of rights, including workplace protections, to formerly vulnerable citizens of color. This insight into the connectedness of these narratives across the long arc of American history is a key contribution, making the book required reading for those who study citizenship and immigration in the United States.

Making Foreigners is a masterful history that changes the way we think about multiple fields. Reading the book in 2017, one cannot help but reflect on how these dynamics of exclusion are still alive and well in our current era. These mechanisms of rendering citizens as foreigners have not disappeared but instead have taken on new guises. A retrospective look at Donald Trump’s campaign provides a seemingly never-ending list of examples relevant to the book’s core argument: the birther movement, the threat to build a border wall, the demeaning of women, the portrayal of blacks as living in “hell,” the attack on a Mexican-American judge, the attack on a Muslim-American veteran and his family. After reading Parker’s book, one sees all these examples differently, not as throwbacks to an outmoded era or rantings of an unhinged politician, but instead as the latest instances of a political strategy to render foreign whole swaths of people in this country. We have to hope that other narratives will prevail, but we cannot deny that this one will continue to haunt us for years to come.

  1. Rogers Brubaker, Citizenship and Nationhood in France and Germany 23 (1992). []
Cite as: Allison Brownell Tirres, Citizens, Aliens, and the Architecture of Exclusion, JOTWELL (December 15, 2017) (reviewing Kunal M. Parker, Making Foreigners: Immigration and Citizenship Law in America, 1600-2000 (2015)), https://legalhist.jotwell.com/citizens-aliens-and-the-architecture-of-exclusion/.

A Provocative Journey through the Arcades of Legal History

Christopher Tomlins, Historicism and Materiality in Legal Theory, in Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian Del Mar & Michael Lobban eds., 2016).

Christopher Tomlins’ fascinating essay, Historicism and Materiality in Legal Theory, reconsiders the purpose of legal history and its utility for legal theory. For the last three decades, Robert W. Gordon’s landmark article, Critical Legal Histories, has served as the shining lighthouse by which the discipline navigated the murky waters between fact and theory, description and normativity.1 Departing from the evolutionary functionalism of law and society and law and economics scholarship, Gordon extolled the virtues of a critical historicism. In showing the indeterminate character of law’s past, this historicism destabilizes its present. As Tomlins sees it, critical historicism offers a post-structuralist interpretation of law, marked by contingency, complexity, and contradiction. The project of locating law in its socio-temporal context, he argues, generates an almost infinite set of relationships for examination. If critical historicism contends that the relationship between law and society is underdetermined, then Tomlins yearns for bolder causal explanations about legal and social change. Building on several prior pieces, Tomlins’ essay calls for an alternative paradigm to historicism, what he terms “materiality.” (P. 59.)

The essay begins by arguing that historicism has two problems. First, there exists a problem of intelligibility. If historical meaning takes shape only in its context, how can an observer—allegedly objective but also situated in time and place—access this meaning? Second, drawing on the work of legal philosopher Pierre Schlag, Tomlins elucidates the problem of differentiation.2 This is no smaller than the problem of how to distinguish what authoritative texts, corps of experts, institutions, and ritualized practices constitute law. If law and society are mutually constitutive, how do we differentiate between them? Tomlins suggests that the project of legal history should be to examine the process of legal differentiation itself. The essay discusses historical works that illustrate this methodology. Cornelia Visman’s study of state records, for example, explores the process by which administrative technologies produce law.

Tomlins offers Walter Benjamin’s historical materialism as a mechanism by which to resolve the “differentiation problematic through attention to the material fabrication of the category ‘law’….”3 (P. 73.) The apex of Tomlins’ essay discusses how Benjamin’s attention to materiality, in particular the philosopher’s use of montage and allegory, might resolve the problem of differentiation. He also suggests that Benjamin’s dialectical approach might enable historians to explore the conjuncture between past and present, while avoiding the fallacy of objective historical understanding.

Tomlins’ writing is characteristically erudite. While dense, the essay is accessible to a legal historian such as myself who is not an expert in the continental philosophy it engages. I found the essay exciting to read as I near completion of a book manuscript for a couple of different reasons. To begin, Tomlins concludes that legal historians too often retreat from theory. He urges scholars to reject ever-spiraling complexities of factual description in favor of stronger causal explanations. One might understand this as a mere stylistic challenge, but it is at heart a methodological and philosophical one. I took from Tomlins’ essay the warning that legal historians risk giving up explanatory authority when they attribute the relationship between change in law and society wholly to contingency.

One question I had in reading the essay is how to explain structure without falling into the trap of the structure itself becoming a historical actor. Is there a risk that the historian might derive her structural account of legal change from a theory, rather than from a careful examination of archival sources? This would imperil the integrity of the historical project. Might materiality pose some of the same perils as the functionalism that Gordon criticized?

Of even greater significance is Tomlins’ idea that the legal historian’s understanding derives from a confrontation between past and present. Tomlins’ essay offers insight for many who are concerned with the relationship between their professional discipline and present-day commitments. As I analyze the legal history of feminism in the late twentieth century, I am ineluctably engaged in its consequences for our present moment. The normative seems to me inescapable: it guides the research questions I ask and the analytic structure I endeavor to give historical facts. Of course, we are all perennially wary of law-office history: the use of historical narratives to advance predetermined ends, whether it be legitimating the status quo or recovering the vision of an alternative order. Yet acknowledging that one’s normative commitments shape one’s historical research does not lead inexorably to such instrumentalism. Indeed, it might lead a historian to be more self-conscious, analytic, and explicit about the way that such normativity shapes one’s encounter with the historical record.

Tomlins’ essay is part of a larger volume, edited by Maksymilian Del Mar and Michael Lobban, which reinvigorates a dialogue between history and theory. The wide-ranging essays examine the relevance of history to the study of jurisprudence. One quibble is that feminism’s history and feminist jurisprudence receive barely a passing mention in the volume. A related but not equivalent criticism is that women scholars wrote only two of the seventeen essays in the volume. A reader might consider these absences a contingent product of the editors’ selection process. Tomlins might instead point us toward a structural explanation: perhaps the artificiality of a divide between jurisprudence and the study of law’s social effects, or the enduring role that gender plays in the construction of academic networks.

  1. Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984). []
  2. Pierre Schlag, The Dedifferentiation Problem, 42 Continental Phil. Rev. 35 (2009). []
  3. Tomlins’ essay takes as inspiration and partial subject Walter Benjamin, The Arcades Project (1999). []
Cite as: Deborah Dinner, A Provocative Journey through the Arcades of Legal History, JOTWELL (November 6, 2017) (reviewing Christopher Tomlins, Historicism and Materiality in Legal Theory, in Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian Del Mar & Michael Lobban eds., 2016)), https://legalhist.jotwell.com/a-provocative-journey-through-the-arcades-of-legal-history/.

Administrative Constitutionalism in Immigration Law

Kristin A. Collins, Bureaucracy as the Border: Administrative Law and the Citizen Family, 66 Duke L.J. 1727 (2017).

Kristin A. Collins’s recent article ties together “two foundational ‘borders of belonging’ in American law: the rules that determine family membership and the rules that determine political membership.” (P. 1730.) More specifically, Collins, in a case study of the evolution of derivative citizenship, demonstrates how immigration administrators fashioned rules to guide their own decisionmaking in this area and embedded those rules in statutes and legal precedents.

Collins pushes back against the all too common idea that immigration administration is more lawless and discretionary than regulation at the economic regulatory agencies that are the usual focus of scholarship on the administrative state. Instead, Collins observes immigration officials engaged in the same kind of “administrative constitutionalism” practiced by bureaucrats elsewhere.

Gillian Metzger has defined administrative constitutionalism as not only “the application of established constitutional requirements by administrative agencies” but also “the elaboration of new constitutional understandings by administrative actors, as well as the construction (or ‘constitution’) of the administrative state through structural and substantive measures.”1 The rich and growing scholarship on the topic (by scholars including Sophia Z. Lee, Jeremy K. Kessler, and William N. Eskridge Jr. and John Ferejohn) examines such lawmaking by administrators at agencies including the NLRB, the War Department, and the EEOC. Like these “mezzo-level” bureaucrats (to use Daniel Carpenter’s phrase), Collins argues, immigration officials in the Labor Department, State Department, and Justice Department “played an active role in crafting important substantive and procedural legal principles that reflected their understanding of foundational legal and constitutional norms.” (P. 1732.)

Relying on archival sources and case law, Collins demonstrates how immigration officials in the early twentieth century developed rules to govern how children born outside the United States could derive citizenship from their U.S. citizen parents. Her clear and engaging narrative makes clear both the key role of bureaucrats in lawmaking throughout the twentieth century and the way bureaucrats’ racialized and gendered concerns about immigration and citizenship in the early twentieth century became embedded into federal law for decades to come.

From the early republic on, federal law provided that children born abroad became U.S. citizens if their parents were U.S. citizens; similarly, the children of naturalizing parents became naturalized themselves. When Congress in 1855 specified that this applied only to children of U.S. citizen fathers, judges and administrators understood the law to mean only married fathers. Harsh common law rules treated nonmarital children as fatherless, and “in the nineteenth century, judicial and administrative precedents had incorporated that rule into American nationality law, thus excluding from citizenship the foreign-born nonmarital children of American fathers.” (P. 1737.)

In the early twentieth century, however, the State Department began acknowledging the citizenship of children whose parents later married. In adopting a policy based on fathers’ “legitimating” their children, however, officials had to determine what it meant to “legitimate” a child. This was not, Collins emphasizes, “a lawless or purely discretionary endeavor.” (P. 1743.) Instead, in developing internal rules to govern their own decisionmaking, officials looked to family law legitimation rules, which varied by state (these rules included subsequent marriage, formal acknowledgement, and/or judicial order). At the same time, officials drew on federal immigration policies and their own institutional priorities grounded in racial exclusion. Immigration officials thus were guided by a rule (approved by the Attorney General) that approved derivative citizenship in cases where a father had legitimated his child under the appropriate state’s law, but adopted a “more restrictive interpretation of the derivative citizenship statute” when the fathers were American citizens of Chinese heritage. (P. 1739.) In a more inclusive act of administrative lawmaking, officials chose to interpret statutory language regarding American fathers to include American mothers, allowing the latter to pass on citizenship to their foreign-born children. These administrator-drafted rules were subsequently adopted by Congress in the Nationality Act of 1940 and the Immigration and Nationality Act of 1952 (which relied on local law to define “legitimation”), demonstrating administrators’ role in lawmaking outside as well as inside the agency.

As family law evolved, however, administrators clung to a narrower idea of what constituted “legitimation” than many state statutes did. Collins draws on arguments before the Board of Immigration Appeals to demonstrate that administrators “crafted an interpretive rule that in most jurisdictions required the father to marry the child’s mother.” (P. 1753.) These guidelines proved durable even as family law itself underwent radical changes in the 1960s and 1970s. States made it easier for fathers to legitimate their children, and courts drew on the Equal Protection and Due Process clauses to destabilize the marital and sexist presumptions in domestic family law. State family law and federal citizenship law thus increasingly diverged.

Immigration officials, supported by federal courts, continued to embrace a marriage-centric definition of “legitimation,” and courts were similarly loath to eliminate provisions in citizenship law that burdened unmarried fathers but not mothers. The Supreme Court, in one such challenge, chose to defer to the federal government’s plenary power over immigration rather than bringing federal law into conformity with family law trends. And while the Immigration Reform and Control Act of 1986 eliminated formal legitimation requirements for some areas of immigration law, it did not apply to derivative citizenship. The law moved away from a marital model of legitimation but contained different requirements for unmarried mothers and fathers seeking to award citizenship to their children.

Collins was writing on the eve of the Supreme Court’s decision in Sessions v. Morales-Santana (2017), in which Morales-Santana challenged the different residency requirements for unmarried mothers and fathers contained in federal law regarding derivative citizenship. In June, the Supreme Court struck down the provisions (which Justice Ruth Bader Ginsburg, writing for the Court, called “stunningly anachronistic”2). Collins (whose earlier work on derivative citizenship was cited by Justice Ginsburg in the opinion) suggests in conclusion that this case may not be the end of the story. It might instead be another opportunity for administrative lawmaking both in and out of the administrative state.

  1. Gillian Metzger, Administrative Constitutionalism, 91 Tex. L. Rev. 1897, 1900 (2013). []
  2. Morales-Santana at p. 14. []
Cite as: Joanna Grisinger, Administrative Constitutionalism in Immigration Law, JOTWELL (October 9, 2017) (reviewing Kristin A. Collins, Bureaucracy as the Border: Administrative Law and the Citizen Family, 66 Duke L.J. 1727 (2017)), https://legalhist.jotwell.com/administrative-constitutionalism-in-immigration-law/.

The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law

Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017).

“#DearBetsy,” tweeted civil rights activist Alexandra Brodsky on July 6, 2017, “Rescinding Title IX guidance moves us backwards when we desperately need progress in ending campus sexual violence.” The hashtag linked the message to many others, including personal accounts of sexual assault and also (contrary to original intentions) demands for greater protections for the accused. All these missives are aimed directly at Secretary of Education Betsy DeVos.1 And they are fascinating, for they suggest a regulatory landscape different from the one we teach in law school—a landscape in which savvy use of social media may be as important as the Administrative Procedure Act and in which people who lack conventional markers of influence demand the ear of top administrators. Fortunately, we have an excellent resource for understanding this landscape: a crop of historical work on petitions to government administrators. A particularly enlightening example is political scientist Daniel Carpenter’s contribution to Administrative Law from the Inside Out, On the Emergence of the Administrative Petition.

My first encounter with this vein of research was legal historian Kristin Collins’ work on military widows and their petitions for public pensions in the nineteenth century.2 More recently, through a draft article by legal scholar Maggie McKinley, I learned of the North American Petitions Project, a collaborative effort to digitize hundreds of thousands of petitions to government officials between the colonial era and the mid-twentieth century. McKinley uses these data to tell a story about petitioning Congress and how such activity helped give rise to the modern administrative state.3 By contrast, Carpenter—who is a co-principal investigator on the North American Petitions Project and has been at the forefront of digitization efforts—starts this particular chapter in the administrative realm. Drawing on original archival research, as well as on the work of historians Tiya Miles, Laurence Hauptman, and others, Carpenter reminds legal scholars that well before the formation of the Interstate Commerce Commission and other “modern” regulatory bodies, “thousands upon thousands of groups, organizations, and individuals petitioned administrative agencies both formally and informally.” (P. 350.) Carpenter then digs into a striking feature of this early body of petitions: “indigenous North Americans petitioned administrative agencies as much or more than any other population.” (P. 351.)

Carpenter identifies several factors that contributed to Native Americans’4 early and robust use of the administrative petition. One factor was a pattern of congressional deference to the President in matters relating to Indian policy. Presidents, in turn, delegated great power to administrators within the War Department and, later, the Department of the Interior. A second important factor was that these administrators had no intention of leaving Native Americans alone, but rather embarked on prolonged campaigns of dispossession and subordination. In other words, Native Americans had every reason to want to influence administrative decisionmaking. A third factor, Carpenter argues, was a tradition of “complaint and supplication” among indigenous North Americans that was already well established by the time of the Founding. (P. 358.) According to this tradition, all types of authority (i.e., administrators as well as legislators) were appropriate subjects of entreaty.

I could go on about Carpenter’s fascinating examples, but what I find even more compelling is how Carpenter addresses the “so what” question. He offers several answers, generally phrased as possibilities that merit more research. First, we should care about Native American petitions because sometimes they worked—that is, sometimes they resulted in administrative decisions or accommodations that reflected the petitioner’s preferences. Carpenter sees this as “plausibl[e]” in at least some instances of negotiations over indigenous ancestral lands. (P. 351.)

Second, the sheer volume of petitioning shows that Native Americans were never passive subjects of the U.S. government. There was a power differential, to be sure, but petitions suggest an active relationship with state power—a relationship of “monitoring, contestation, and issue framing.” (P. 370.) Moreover, official responses to those petitions demonstrate “the need and desire among early administrative officials for dialogue” with indigenous Americans—a recognition that although they were not “constituents or voters,” they were “more than dependents or mere obstacles to white settlers.” (Id.) In keeping with other exciting recent historical work, the implication here is that we must define “the state” in a way that fits the messy, on-the-ground work of governance and that does not neglect people who lacked formal authority.

Third, Native American petitions displayed interesting commonalities—in their style, in their content, and in their authorship. Carpenter notes, for example, the prominent involvement of women and a tendency over time toward legal and philosophical argumentation. These same patterns, Carpenter suggests, are discernible in later instances of petitioning by non-indigenous Americans, although the nature and degree of influence awaits future study.

I have saved for last one more answer to the “so what” question, because it brings me to the value of the edited collection as a whole (which also includes terrific chapters by legal historians Sophia Lee and William Novak). Drawing on history, Carpenter calls our attention to a feature of contemporary American governance that we know almost nothing about. Petitions to administrative agencies are “an everyday reality for many regulatory agencies,” Carpenter notes, but owing to the predilections of mainstream administrative law scholarship, we remain in a state of “collective ignorance” about them. (P. 350.) Like the work of Jerry Mashaw, which this collection honors, Carpenter’s chapter helps us look with fresh eyes on territory that we imagined had been thoroughly mapped and invites a more diverse set of scholars to join the expedition.

  1. On the launch of this social media campaign, see Brittney McNamara, This Campaign Wants Donald Trump to Take Sexual Assault More Seriously, Teen Vogue, Jan. 11, 2017. []
  2. Kristin A. Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Public Marriage-Based Entitlements, 31 Law & Hist. Rev. 1 (2013). []
  3. Maggie McKinley, Petitioning and the Making of the Administrative State, Yale L.J. (forthcoming 2018) (on file with author). []
  4. In my own work, for reasons I explain there, I have used the term “American Indians” to refer to indigenous North Americans. Karen M. Tani, States’ Rights, Welfare Rights, and the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935-1954, 33 Law & Hist. Rev. 1, 3 n.6 (2015). I adopt here the terminology that Carpenter employs. []
Cite as: Karen Tani, The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law, JOTWELL (September 11, 2017) (reviewing Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017)), https://legalhist.jotwell.com/the-history-of-the-administrative-petition-dispatches-from-the-lost-world-of-administrative-law/.