American Fair Trade is an impressive contribution to the burgeoning literature on the history of the American political economy, a literature energized since the 2008 financial crisis by the emergence of a new subfield known as the “history of capitalism.”
Sawyer’s subtitle alludes to her book’s primary themes: the interrelationship in the half century between 1890 and 1940 of proprietary capitalism, corporatism, and the ‘new competition.’ By proprietary capitalism, Sawyer means the large sector of the political economy that was dominated not by the tiny number of giant mass-production managerial firms that owned and operated their own marketing networks, such as Standard Oil and American Tobacco, but instead by the multitude of specialty-production proprietary firms that relied on distribution networks that they did not control. By corporatism, Sawyer means a political-economic regime in which trade associations representing proprietary firms joined together in a partnership with government regulatory agencies to institutionalize a “neo-Brandeisian” regulatory regime. (P. 260.) By legalizing inter-firm agreements that blocked retailers from undercutting manufacturer-set prices—agreements that she calls “codes of fair competition” (P. 2)—the new regulatory regime protected not only the reputation of the proprietary firm’s brands, but also the margin that it obtained from the retailers that marketed its wares.
Big firms, according to the conventional wisdom, sought high prices, and small firms, low prices. In Sawyer’s account the opposite was closer to the truth. Fair trade, in her view, was part of a “lost alternative” for U. S. business that lives on today in the “institutional foundations” of the modern administrative state and the “latent populist impulses” of the U. S. public. (P. 23.) By “new competition”, Sawyer is referring to an intellectual construct coined by the lawyer and art collector Arthur Jerome Eddy in a book by this title that he published in 1912 to underscore how the rise of big business had altered the competitive rules of the game.
The care with which Sawyer recovers the agency of proprietary firms, and, indeed, more broadly, on the continuing vitality in the interwar period of proprietary capitalism (a phrase she borrows from the business historian Philip Scranton), distinguishes her approach from that of most historians who have written about the federal antitrust jurisprudence spawned by the 1890 Sherman Act. One of the peculiarities of this literature—and for the historian, there are many—is the self-assurance with which its chroniclers proclaim that, at some point in time, the main parameters of antitrust were “settled.”
For Martin Sklar, whose Reconstruction of American Capitalism is one of Sawyer’s foils, this settlement occurred with the promulgation of the rule of reason in 1911. For Sawyer, in contrast, antitrust enforcement after 1911 was not only or even primarily about the regulation of large industrial firms. Rather, spurred by the revulsion of independent proprietors against a different 1911 antitrust court ruling, it would rapidly evolve into a creative partnership between trade associations and administrative agencies to empower small and middle-sized businesses to “manage competitive markets” (P. 3) by setting retail prices for specialty and brand-name goods, mandating service guarantees, and prohibiting rebates for high-volume sellers. To put it differently: for Sklar, the pivotal 1911 antitrust settlements concerned Standard Oil and American Tobacco; for Sawyer, in contrast, the key 1911 Sherman Act ruling voided the protection plan that had enabled a proprietary medical firm known at the Dr. Miles Medical Company to protect its brand by setting a minimum price for the sale of its products.
The Dr. Miles ruling is important for Sawyer not because of what it foreclosed, but because of what it inspired. By declaring illegal (the term of art is a “per se” violation) any contractual agreements that a proprietary firm might have entered into with retail networks to protect its brand, the Supreme Court imperiled an entire sector of the economy. In response, proprietary firms mobilized trade associations to galvanize a “fair trade movement” (P. 18) to lobby lawmakers to get around this prohibition. “Fair Trade” was the moniker that lawyer Louis Brandeis hit upon to rebrand the ungainly phrase “retail price maintenance.” The work of these trade associations was coordinated by the American Fair Trade League, a proprietary-firm clearing house founded in direct response to the 1911 Dr. Miles ruling.
Four chapters of Sawyer’s book trace the evolution of the free trade movement from 1911 until the Second World War. These chapters document not only how the fair traders fared in the courts, but also how they built what Sawyer terms “rule making partnerships” to shape court rulings and regulatory law between the U.S. Chamber of Commerce, founded in 1912, and the Federal Trade Commission, founded in 1914. The collective power of the proprietary firms’ trade associations—and, in particular, their ability to shape court rulings and regulatory law, which, collectively, Sawyer terms the “administrative state”—is one of Sawyer’s most impressive contributions. No longer will it be possible for legal scholars to glide more or less effortlessly from court case to court case in reconstructing the history of competition policy.
By honing in on the interaction of proprietary business leaders with jurists, trade association staffers, journalists, government administrators, and academics, Sawyer has provided us with the best history ever written of U. S. competition policy in the half century between the enactment of the Sherman Antitrust Act and the Second World War. Along the way we meet the celebrity journalist Ida Tarbell, who, in her History of Standard Oil, editorialized in favor of higher ethical standards in business; the Fair Trade League’s chief counsel Gilbert H. Montague, fresh from his defense of Standard Oil in 1911; commerce secretary Herbert Hoover, who championed fair trade for macroeconomic reasons that were analytically distinct from Brandeis’s, but who often ended up favoring identical reforms; the institutional economists Wesley Mitchell, Edwin Seligman, Rexford Tugwell, and Walton Hamilton, an influential cohort of social scientists who spearheaded the world’s “first great law and economics movement” (P. 310); and the crusading California pharmacist Edna Gleason, who championed fair trade legislation in California that would serve as a model for the New Deal’s NRA.
Much of the interest of Sawyer’s book lies in the careful way in which she reconstructs the intellectual rationale for the establishment by institutional economists and government administrators of “generalizable trade rules.” (P. 153.) Federal administrative agencies, she astutely contends, would become in the 1930s the “primary arbiters” (p. 10) of fair competition, a task that they performed with a seriousness that matched, if it did not surpass, the intellectual acuity, in an earlier age, of the courts. The fair-trade movement in Sawyer’s view went into eclipse in the 1940s, supplanted by Keynesian macroeconomic management, the ascendency of a consumerist lobby that favored low prices over economic decentralization, and, eventually, Borkian consumer welfarism. The year 1940 is thus a bookend for a movement that originated in 1911.
Sawyer’s periodization raises a number of interpretative issues. Consider, for example, her characterization of the Grange—the largest late-nineteenth-century farm lobby. The Grange depicted by Charles Postel in Equality—his splendid new history of late 19th century voluntary associations—has little in common with Sawyer’s characterization of this group as a constellation of anti-collectivist and backward-looking “[d]isplaced or marginalized farmers, workers, and independent proprietors.” (P. 2.) On the contrary, the Grange’s leadership, as Postel depicts it, was progressive, resolutely collectivist, and firmly committed to a raft of bureaucratic expedients far more expansive than anything every proposed by the Fair Trade League. Not until the 1910s would Bellamyite big-is-beautiful antimonopolism give way to the Brandeisian “curse of bigness.” In her characterization of the Grange, Sawyer makes assumptions about nineteenth-century political economy that Postel’s careful research has persuasively challenged.
Related questions are raised by Sawyer’s characterization of the nineteenth-century political economy. The Sherman Act, for example, was only in a very narrow sense one of the “first federal statutes” (P. 7) to restore equity in market exchange, having been preceded not only by the Interstate Commerce Act of 1887, but also by the National Telegraph Act 1866, the National Banking Acts of 1863 and 1864, the Patent Office Act of 1836, and the Post Office Act of 1792.
Recent historical writing on the history of capitalism is overwhelmingly focused on credit, finance, and commodity flows. Interestingly, none of these topics figure prominently in American Fair Trade. Though Brandeis is a major figure in Sawyer’s story, the “curse of bigness” that preoccupied him—namely, the consolidation of the big banks in New York City—is mostly offstage. For Sawyer, the “associational corporatism” of Brandeis and Herbert Hoover “defined” American capitalism in 1920s. (Pp. 239, 310.) Readers of Matt Stoller’s Goliath, an important recently published history of twentieth-century antimonopoly whose time frame overlaps with Sawyer’s, will be more likely to come away with the impression that the decade’s political economy was dominated neither by the associational vision of Brandeis nor Hoover, but instead by the high-flying political-economic maneuvering of treasury secretary Andrew Mellon. Those who endorse “great men” theories of history might well side with Stoller; specialists in regulatory law can be expected to find Sawyer’s counternarrative compelling.
Sawyer’s rehabilitation of the fair trade movement points us toward a history of the interwar period that is congenial with the intuitions of specialists in the history of capitalism—namely, that popular movements can be spurred by legal change. It may well be that such a counternarrative, skeptical not only about intellectual currents but also about public sentiment, provides us with the surest foundation for exploring, as Sawyer has done so well, the interrelationship of trade associations, the law, and the administrative state in the half century between the Sherman Act and the Second World War.
Cite as: Richard R. John, Brandeis, Hoover, and the Problem of Fair Trade in Interwar America
(March 18, 2020) (reviewing Laura Phillips Sawyer, American Fair Trade: Proprietary Capitalism, Corporatism, and the 'New Competition,' 1890-1940
Stacie Taranto’s carefully researched, compelling study of antiabortion homemakers in New York captures the kind of populism, gender politics, and economic anxiety that continue to shape the contemporary movement to criminalize abortion. Focusing on activists who mounted a longshot, third-party campaign for the White House, Kitchen Table Politics provides a fascinating look into the changing GOP coalition. As important, the suburban homemakers that Taranto studies provide a powerful example of how certain populist, grassroots movements create change by at once relying on and denouncing the legal system.
Kitchen Table Politics begins before the vital campaigns that would transform the law of abortion and sex equality. Taranto takes the time to understand the personal experiences and socioeconomic forces that encouraged Catholic homemakers to become active. As Taranto shows, for many homemakers, antiabortion activism had both religious and economic roots. Kitchen Table Politics explores the upward mobility cherished by Catholic homemakers born during the Depression, many of whom had only recently settled into a comfortable life in the suburbs. These activists, Taranto shows, felt that the legal reforms proposed by feminists would destroy the lives that they had only just managed to build. And Vatican II, an ecumenical council that laid the groundwork for modern Catholicism, created organizations that homemakers would use to launch state and national legal campaigns. Vatican II consolidated the power of bishops, priests, and other male leaders of the Church. At the same time, as Taranto shows, Vatican II gave rise to parish-level organizations that would serve as the launching point of campaigns to maintain criminal laws on abortion and to defeat an Equal Rights Amendment (ERA) to the Constitution.
By chronicling the involvement of Catholic homemakers in the campaign to preserve (and later reinstate) criminal abortion laws in New York State, Taranto shows that grassroots conservatism evolved not just in the Sunbelt but in communities across the country. Shocked by the repeal of abortion restrictions in New York, homemakers successfully lobbied for the reinstatement of criminal laws before Governor Nelson Rockefeller (R-NY) vetoed the proposal.
But Taranto shows that Rockefeller’s veto further energized homemakers who committed to the defeat of the ERA. The homemakers who organized Operation Wakeup, one of the groups at the center of Taranto’s study, offer fresh perspective on the fight against the ERA. Historians have focused on Phyllis Schlafly’s STOP ERA, the best-known national organization in the struggle, but by centering on state-level activism, Kitchen Table Politics shows how the anti-ERA campaign mobilized class as well as gender politics to sway undecided voters, especially women. Homemakers emphasized their experiences as mothers and their lack of legal sophistication and elite connections in asking other voters to reject the ERA. In this way, Taranto shows, anti-feminist homemakers used the fight against a state ERA in New York to build an enduring conservative network. The political organizations that sprouted up to defeat the ERA would be repurposed to influence the Republican Party’s position on social issues in both New York and in the nation as a whole.
The women who helped to defeat New York’s state ERA knew that they stood little chance of winning the 1976 presidential election when one of their own, Ellen McCormack, made a bid for the Democratic presidential nomination. As Taranto details, these women initially saw national politics as a vehicle for television advertisements that could shape public opinion about abortion and lay the groundwork for an antiabortion constitutional amendment. Kitchen Table Politics illuminates the interplay between formal strategies for legal reform and failed campaigns like McCormack’s. While McCormack did not win a single state, her candidacy forced other presidential candidates to confront the abortion issue, paving the way for many social conservatives to switch parties in the years to come.
McCormack and her allies also helped to crystallize arguments about the rights of women to assume traditional, heterosexual roles in the nuclear family. While not carrying the day in 1976, these arguments captured the attention of national strategists and political operatives seeking to incorporate Catholics and evangelical Protestants into the Republican fold. Historians of the New Right often describe the effort to mobilize conservative religious voters as an effort to broaden the GOP coalition. Kitchen Table Politics shows that voters like those who supported McCormack also created a potent new “pro-family” message used to court new allies.
Kitchen Table Politics provides a captivating case study of the strategies still used by populist legal reform movements to advance their agendas. The Catholic homemakers who fought legal abortion and the ERA did so by proclaiming their distaste for both legal reform and for politics. This hostility to legal elites was a recruiting tool. By contrasting themselves to (at least theoretically) more sophisticated feminists, homemakers presented themselves as more authentic and in touch with the needs of ordinary people, all the while using the same kinds of legal and political tactics they supposedly abhorred.
While helping make sense of populist movements, past and present, Taranto paints an engaging, complex portrait of the homemakers who created a new brand of maternalist politics. With empathy and nuance, Kitchen Table Politics shows how women who made the “personal political” (5) viewed the security of a suburban lifestyle “an achievement to be protected at all costs” (10). The anti-feminist populism Taranto describes so able grew out of more than the reforms championed by the movement for women’s liberation. First generation suburbanites reacted as much to the economic downturn of the 1970s, to the parish level changes brought on by Vatican II, and to their own increasing isolation in homogenous, white communities that made them more committed to the defense of families like their own, even at the expense of others. Today, as a kind of pro-family populism again commands national attention, Kitchen Table Politics is a reminder that the women who flock to it are anything but simple.
Renisa Mawani’s Across Oceans of Law tells the history of the infamously failed passage of the ship the Komagata Maru and the 376 (mostly Punjabi and mostly adult male) people on it who found themselves denied entry to Canada in 1914. The leader of the expedition, Gurdit Singh, a British subject originally from Punjab, insisted on the right to travel and trade on the “free sea,” “a common place that was beyond national and imperial claims to sovereignty.” (P. 5.) Yet, as Mawani puts it, “Britain’s ascendancy as a maritime empire was achieved through a juridification of the sea, advanced in legislation, treaties, agreements and in legal restrictions imposed on ships, passengers, and cargos.” (P. 5.) These restrictions included the “continuous journey” provision used in this case to deny entry to “Asiatic” immigrants seeking entry into Canada. The idea of the Canadian and imperial government was to force all steamship routes (e.g. from Calcutta to Vancouver) to stop in another port of call (e.g. Hong Kong) and then use the journey’s interruption to deny the ship entry into Canada. The law, while facially race-neutral, was only ever invoked against non-white settlers (primarily from India) and is now widely regarded as a thin veneer on an explicitly racist measure aimed at keeping “white Canada white.”
Audrey Macklin explains that “Britain strenuously discouraged the one colony (Canada) from employing explicitly racist exclusionary measures that would exacerbate agitation against British rule in another part of Empire (India).” Britain “preferred to contain Indian British subjects within India . . . the proliferation of diasporic networks of Indian colonial subjects . . . multiplied potential nodes of resistance” to British rule in India.
The passengers on the Komagata Maru were left to languish in deplorable conditions in Vancouver Harbour for two months with limited supplies of food and water. After the British Columbia Courts rejected entry to most of the Komagata Maru passengers (only twenty-two were permitted entry) the ship was sent to Calcutta so its passengers could be sent by train to Punjab (rather than returning it to Hong Kong, where it had originated). The result? A massacre at Budge Budge in which the Bengal police killed nineteen passengers and many more were injured and arrested and held without trial or charges after refusing to board the train. (P. 102.) Gurdit Singh, a man who had spent most of his adult life traveling between Malaya and Singapore, became a fugitive for seven years after the battle, which he escaped. In the eyes of imperial authorities, Gurdit Singh was guilty of seditious libel and encouraging disloyalty while on board the Komagata Maru. Mawani explains that authorities lost interest in prosecuting him as Gandhi’s movement grew stronger and the Punjabi independence movement, the Ghadar (Mutiny), grew weaker. Gurdit Singh wrote an account of the racial injustices he experienced in his Voyage of the Komagatamaru, or India’s Slavery Abroad. Mawani describes Gurdit Singh as an anticolonial radical who was out to test the viability of a steamship company he sought to found and to challenge Canada’s immigration restrictions. He is a complicated figure whom Mawani neither glorifies nor vilifies.
This is a powerful tale of Indian anti-colonialism told through what Mawani calls “oceans as method,” an approach that draws on the sea as “both a technique of writing colonial legal history and as a conceptual frame that foregrounds movement and change.” (P. 234.) Part of the idea behind the method is to look at how different conceptions of the sea played out in competing understandings of how the sea (a moving force) and ships (what people are moved in) were transporting individuals from one part of the Empire to another (across oceans of law, as the title puts it). Could Gurdit Singh as a British subject use the ocean to travel to a new corner of the British Empire? Or, because he was Sikh and perceived as a radical by colonial governments, could a facially racially neutral “continuous journey” provision keep him (and most of those he was travelling with) out? Rather than starting with (the complicated character) Gurdit Singh, Mawani focuses on him in the last chapter, while the first two chapters start with competing conceptions of the ocean (free or regulated using racial exclusions and categories) and the ship (as a legal person).
Far from being vacant, open, empty, and free, Mawani describes oceans as “densely woven sites of encounter,” (P. 233) where hierarchies of race played out in intense “colonial laboratories” on ships that Lauren Benton has called “islands of law.” (P. 49.) The “free sea” of Grotius (explored in depth in the first chapter) was only open and free to the travel and trade of white European men. “Oceans as method” highlights the ship itself as a legal person (the topic of the second chapter), documenting its many voyages, names changes, and owners, along with its freight lists which like slave manifests operated to create what Mawani calls a “maritime metaphysics.” (P. 109.) Oliver Wendell Holmes Jr. called the ship “the most living of inanimate things.” (P. 84.) Mawani describes ships as “living, agentive, and willful beings.” (P. 79).
The third chapter discusses the distinction between a British subject and a British citizen and the role this distinction played in the legal decision denying the Komagata Maru passengers entry into Canada. The (perverse) justification of different treatment was grounded in the argument that Canada’s indigenous people were also denied equality with whites, thereby showing “the variegated inequalities of British subjecthood.” (P. 145). There was, in other words, “an unequal topography of British subjecthood.” (P. 147).
Mawani deals deftly and sensitively in the fourth chapter with the many incongruities born of claims Indians made to be superior to natives of Africa (especially relevant in South Africa) and to native peoples in Canada. In 1914, people wanted to know: “Were Indians, like other ‘coloured races,’ in need of further moral instruction and guidance from their British custodians, or had they now reached a higher stage of civilization and development after hundreds of years of foreign rule? More importantly, could Indians move out of the ‘waiting room of history,’ travel across the supposedly free sea, and make claims to the rights that followed from British subjecthood?” (P. 183). Mawani writes that “[m]any Indians viewed themselves as civilizationally advanced, further along in the forward march of history, and thus ready to be equals in the imperial family.” (P. 186). Yet their claims to be superior to other people subjugated on the basis of their race along “the white-brown axis” did not prevail.
Mawani has written a powerful book, which gives details and new perspectives on a history that is known to some but which is usually thought of as a Canadian story (of shame) rather than a global incident with connections to the wider push for Indian independence and what she calls “new forms and intensities of Indian radicalism.” (P. 5). Mawani’s account successfully internationalizes what happened, so much so that she does not even mention the Canadian government’s apology in 2008 for the Komagata Maru incident. (See Macklin, p. 62 for astute criticism of the apology.) Mawani connects the history in her epilogue to present-day migrants in the Mediterranean and the tens of thousands of deaths of people trying to make the passage from North Africa and the Middle East to Southern Europe. (P. 237.)
Mawani’s “oceans as method” has important and deep implications for ideas about how to write not just colonial legal history but also a wide range of other histories. Could its method also be applied to other nonhuman entities, animals, the environment or objects that become central to a historical inquiry, effectively transformed into a kind of subject by their centrality to the analysis undertaken? Its method calls us to question the invocation of law-free zones like the sea, which are riddled with law, and ships, the legal persons used to move migrants from one space to the next. It might be thought of as part of the “blue turn” in the social sciences and humanities, which focuses on the ocean and its more-than-human dimensions.
Jane Bennett called for a turn to recognizing the active participation of nonhuman forces in events in her 2009 book Vibrant Matter: A Political Ecology of Things. Mawani does not refer to Bennett’s work. Yet arguably Across Oceans of Law can be read as a meditation on Bennett’s theory, as applied to an important racially complicated colonial event of the early twentieth century.
Overall, this book is a compelling and persuasive read. It is also a model for taking on the perspective (or at least using the lens) of entities ordinarily treated as non-agentic (ships and oceans). We might all benefit from thinking about how such an approach might change what we write and how we approach our subject/objects in future legal histories. It is certainly a take away for me, as I work on a legal case about an American ship caught fishing in Canadian waters with a purse seine net (the Frederick Gerring Jr.). Could the net (controversial then and now) also be personified in this historical account? Could the fish be dealt with as subjects rather than property and objects of industry use? What does it mean for the ship to be a criminal in the case and how does its legal personality facilitate depriving its owner of his property? Mawani’s book makes me wonder about these and other possibilities.
Most American law students are familiar with Pierson v. Post, a case that has been a fixture in American property law casebooks for well over half a century. Decided by the New York Supreme Court in 1805, Pierson v. Post is used in property law courses to illustrate the question of how property rights arise in wild animals. Today, it is frequently taught alongside cases exploring how property rights arise in contemporary contexts such as ground water, human genetic materials, baseballs hit into stadiums crowded with fans, and the like. The facts of Pierson are simple and memorable: Post is in pursuit of a fox on a beach in Long Island when Pierson interrupts the hunt and kills the fox. Has Post acquired a property interest in the fox by virtue of the fact of being engaged in pursuit of it? The New York court deciding the case canvassed a range of European authorities going back to Justinian. The majority ruled that no property rights could arise in a wild animal unless it was captured. The rule it advanced has the virtue of clarity. But it risks being unfair to Post, particularly if he was at the point of killing the fox and/or if his labors had made it easier for Pierson to kill it. The dissent, in a witty opinion by Judge (and future U.S. Supreme Court Justice) Henry Livingston, would have allowed for property rights in the fox to arise through something short of actual capture, namely, imminent taking. The dissent’s solution might be fairer to Post, perhaps, but specifying what counts as an imminent taking is no easy task, entailing more work for lawyers and judges.
In my own property law course, Pierson v. Post has appeared either at the beginning or the end, but in neither instance have I devoted more than half an hour of a single class session to it. I teach Pierson v. Post because it neatly illustrates the difference between clear rules and blurry standards, but also because it is a “classic.” I do not want my students to leave the course without having a glancing familiarity with something they are “supposed” to have run into in law school.
What has been a minor pedagogical experience for me and my students has been, it is fair to conclude, an obsession for Angela Fernandez. She has spent a decade working on her new book, Pierson v. Post: The Hunt for the Fox, and has recently authored a “rewrite” of the Pierson v. Post dissent in which she adopts the style of someone writing in 1805 but advances feminist and animal rights sensibilities. My review will cover both the book and the “rewritten” dissent and will set them in relationship to one another.
Fernandez offers us a history of Pierson v. Post backed by impressive archival research. She shows how our simple lawyerly rendering of Pierson as a choice between different rule regimes obscures the complex literary, social, and intellectual universes that shed light on, even as they are illuminated by, the case. However, Fernandez follows no linear narrative, advances no neat argument, offers no simple “takeaway.” Instead, she picks up on the different leads the case presents and follows each into different archives. The result is a book without a stable center. The reader is offered exhaustive treatments of the following, each of which speak to some aspect of the case: the ribaldrous masculinist culture of literary games and theater engaged in by Anglo-American lawyers in the early nineteenth century; the practices of hunting foxes and whales; the lives of the Pierson v. Post litigants, their lawyers, and the judges; the relations between Native Americans and settlers in early nineteenth century New York; different legal characterizations of land and animals; the appropriation of Pierson v. Post in nineteenth century treatises and twentieth century casebooks; and so on. Fernandez even gives us photographs of the beach on Long Island where that famous fox hunt took place over two hundred years ago.
What is one to make of this profusion of different tracks that take the reader to so many different places? Fernandez tells us that she embraces the methodology of “legal archaeology” pioneered by the legal historian Brian Simpson, but hers is no mere uncovering of buried objects. (P. 42). Instead, she is engaged in a fox hunt. Towards the end of the book, Fernandez confesses that Pierson v. Post is “so unstable that it is a mistake to approach it as a straightforward legal text; it ought instead to be approached as a slippery and wily fox . . . . One relies on it . . . at one’s peril.” (P. 327). The book’s subtitle—“The Hunt for the Fox”—refers, then, to two fox hunts—Post’s hunt for the fox on the beach in Long Island and Fernandez’s own hunt for the fox-like dispute that it gave rise to. Fernandez chases Pierson v. Post wherever it will take her, from the New York archives to the plays of Shakespeare to the beaches of Long Island to the casebooks of the twentieth century and beyond. Like the fox, Pierson is wily, but its huntress refuses to give up. The parallels between the book’s structure (that of following Pierson wherever it will go) and the Post’s hunt for the fox among the scrub of a Long Island beach are, it must be emphasized, the genius of Fernandez’ book.
In the remainder of this review, I wish to highlight a particular kind of intellectual dilemma that is raised, in my mind, in the way Fernandez’s book on Pierson v. Post relates to her “rewritten” dissent in the case.
Apart from its structure, to my mind, the most important contribution of Fernandez’s book is the way it foregrounds the plurality of what law is. We might think of law as giving us rules to solve problems. In one sense, it is that. Fernandez would surely agree. Pierson is, after all, a case that presents us with different rules for deciding when wild animals become private property. However, in the book, Fernandez shows brilliantly that law has been—and continues to be—a great deal more. Specifically, she highlights the many ways in which the law relates to, produces, and offers up things that are not instrumental in any simple sense, things that constitute a kind of excess, things that refer back to themselves. Here I have in mind Fernandez’s exploration of the famous Livingston dissent in the Pierson case that takes us into the early nineteenth century masculinist legal culture of literary allusion, games, and theater and, later in the book, her investigation of the world in which law is the writing of treatises and case books all relating to and revising one another. The law, as she describes it for us, is these things—all of them excessive or self-referential in important respects—as much as it is about solving any particular dispute or problem. I agree entirely.
With this as background, I want to suggest that Fernandez’s “rewritten” dissent in Pierson v. Post—her act of “updating” the case to reflect her feminist and animal rights sensibilities in the voice and tone of someone writing in 1805—is yet another instantiation of this self-referential, excessive, allusive, theatrical or game-like legal tradition she explores in such depth. What is the point of “rewriting” a dissent to a two hundred-year old opinion, one might well ask? Why not just ignore the opinion, or criticize it, or declare it to be unjust or wrong? Why go through the laborious exercise of “rewriting” it? What is this if not a literary exercise—another act of self-referential theater or a game–in which the object points to itself as much as to the new politics it seeks to perform?
What is the relationship between this kind of self-referential legal-literary exercise with the conventional disciplinary historical one of situating Pierson v. Post “in context”? One of Fernandez’s stated goals in the book is to change our understanding of the case itself. As she herself puts it: “My intention in this book is to disrupt any previously dominant understanding of Pierson by changing the way we think about it.” (P. 326). We know an enormous amount about Pierson v. Post thanks to Fernandez’s attempt to track down everything related to it. But we do not really get a clear sense of how her hunt for details and the consequent massive building up of context relates to the self-referential, literary, theatrical, game-like quality of the law reflected in the original opinions in Pierson v. Post, the subsequent appropriation of the case by legal writers, and in Fernandez’s own decision to “rewrite” the Pierson dissent after learning all that seems humanly possible to learn about it. How does one historicize a game? Is history the best way of understanding a game? Is playing the game a better way?
Fernandez does both. On the one hand, she historicizes the games of law: the book can be read as history. On the other, as revealed in the book and the “rewritten” dissent, Fernandez plays the games of law herself, both in structuring her book like a fox hunt (itself a sport) and following her prey wherever it takes her and in artfully “rewriting” the Pierson v. Post dissent to transpose her political sensibilities into the language of the early nineteenth century. She offers novel ways of doing history and playing with and in history. For these reasons, her work merits our attention.
Cite as: Kunal Parker, The Hunt as History and As Game
(December 9, 2019) (reviewing
Angela Fernandez, Pierson v. Post: The Hunt for the Fox
Angela Fernandez, Pierson v. Post
in Feminist Judgments: Rewritten Property Opinions
In an era when refugees prize crossing American borders – and when political debates turn on whether to build a “beautiful wall” to stop them – we learn in Under the Starry Flag about a time that the United States lacked the power it has today to alter the citizenship of migrants. Lucy Salyer’s fine monograph tells a story of Irish emigration to the U.S. in British and American law and politics. We learn that the great migrations across the Atlantic in the nineteenth century occurred in something of a legal vacuum. Nobody was quite sure what the consequences of such migration would be. Even if migrants naturalized as American citizens, Britain and other European powers denied that their former subjects had severed their obligations to the homeland. If migrants returned to visit family, they were liable to arrest for failure to serve in the military, for example. If they returned and sought to foment rebellion, they were subject to prosecution for treason. Most people didn’t know this; others learned the hard way.
The Irish immigrants studied here were caught in the crosshairs. They already objected strenuously to the discrimination they suffered at the hands of American snobs (think, “no Irish need apply”) in the nineteenth century. They dreamed of sticking it to elite Bostonians and New Yorkers. But most of all, they hated the English. They became entangled in transatlantic diplomatic crises that they milked for publicity and personal celebrity. They were unlikely heroes, untutored in the many ways that their actions had crossed tacit boundaries and stirred already troubled waters. But they were stubborn, brave (for the most part), and idealistic. The reader is forced into grudging admiration.
It all started with great foolhardiness. A painfully small (40 men) group of Irish Americans – convinced of their prowess, apparently, by their experience fighting for the Union in the U.S. Civil War as well as news of a (quickly squashed) Irish uprising led by a group known as the Fenians in early 1867 – persuaded themselves that they could liberate Ireland from the cruel oppression of the British. They set sail in a rickety boat and disembarked in Ireland far from their original target, only to be arrested almost immediately. The British government and its emissaries in Ireland were in no mood to treat gently this rag-tag group that brought rifles and revolutionary rhetoric back with them to Ireland. The Irish had made trouble for their overlords for centuries, who in turn had become seasoned and remorseless oppressors, economically (75% of rural Irish lived in dire poverty), culturally (English-language only national schools), and of course legally. As Salyer puts it, British officials had no qualms about prosecuting Irish Americans for treason, because “corrupt American influences” underlay the most recent trouble, the Fenian project of the 1860s. (P. 47.) To eradicate Fenianism once and for all, American emigrants had to pay the price.
Therein lay the rub. Despite their arrogance and long-standing annoyance at “thin-skinned” Americans and their demands to be recognized as a sovereign nation among others, Britons were impressed that the U.S. had survived its devastating Civil War. Now American diplomats demanded Britain pay for losses inflicted by the notorious British-built Confederate raider C.S.S. Alabama. The beleaguered (and whiny) U.S. Minister Charles Francis Adams was loath to add American Fenians to his list of diplomatic problems, but he was forced to by the influence of Irish immigrants in American politics, and their effective cultivation of support in letters home that complained of wretched conditions and solitary confinement and were reprinted in the popular press. The Irish-born defendant John Warren brilliantly turned his trial into a showcase for the suffering of an American patriot at the hands of an empire of torturers. The British countered that the “excitable” Americans should forgive and forget the Alabama and leave punishment of the Fenians to the Queen’s justice. (Pp. 57, 174.)
Relations between the two countries deteriorated dangerously. Cooling tempers to avoid war in the late 1860s required all of Adams’s considerable savoir faire. In addition, the question whether emigration to America and naturalization there resulted in “expatriation” – that is, the end of obligation to one sovereign and the acquisition of a new citizenship under a different sovereign – became the question du jour for an emerging trend in legal thought and advocacy. Now, German immigrant Francis Lieber (best known to legal scholars today as the author of Lincoln’s Code of War) and other international “publicists” entered the picture. They argued that the old ways of seeing subjecthood as unchangeable were hopelessly antiquated because they rested on feudal notions of the divine right of kings. The modern era, by contrast, was governed by vast commercial networks that were made possible by nation-states. “Global capitalism and global migration” went hand-in-glove with new ideas of sovereignty, “smoothing and broadening the paths of commerce.” (Pp.180-81.) International law in the productive sense of the term was possible only by adapting to the new reality.
After many fits and starts that featured repeated and difficult negotiations between American and British and failed attempts to pass legislation on both sides, as well as constant rabble-rousing and political activism from Warren and his allies, the question of a right to expatriation was resolved in 1870 by legislation on both sides and a treaty. For the first time, Britain recognized the right to leave, as well as the possibility of naturalization for immigrants. At the same time, both sides hardened the boundaries, specifying that a married woman automatically took the citizenship of her husband. Equally important, Americans scrambled to explain how it was that Irish and German and Italian immigrants could be naturalized, but Chinese and persons of color had no such prospects. For their part, American Fenians were key supporters of the “white man’s government” that emerged from their otherwise unsuccessful foray into freedom-fighting. (P. 141.)
Salyer acknowledges that one might be tempted to conclude that victory for the Fenians in America means her story has a happy ending. The rest of the nineteenth century, however, saw increasingly virulent anti-Chinese activism and legislation, experiments in expulsion of communists in the twentieth century, and all kinds of shenanigans in the twenty-first. The Fenian legacy has been tarnished, pretty much from the start.
But the murkiness of the morals behind the story should not obscure the importance of Salyer’s work. Her remarkable deftness lies in crafting a page-turner that nonetheless yields deep insights into how the law of immigration affected diplomacy, politics, and especially the law of citizenship. The characters in Under the Starry Flag are painted with such fine attention to detail and telling attributes, that the reader is drawn in. The lessons of the tale – including the power of a new sovereign to supplant the obligations due to the former one, and the role of commerce in smoothing the paths of emigrants – make great sense as a result.
Scholars of capitalism, transatlantic and global migration, the changing face of white supremacy, and more, will find much to admire here. Students will find the text manageable thanks to Salyer’s historical craft. And for immigration lawyers, who grapple with the ways that the law of citizenship and migration had been under-theorized for the entire first century of American national history, Salyer’s work enriches and complicates our earlier understanding. Like Gerald Neuman’s now classic The Lost Century of American Immigration Law, Salyer challenges scholars to take a new perspective. This time, however, the focus is not just on U.S. laws of immigration, but the ways that claims of a right to expatriate posed uncomfortable questions for the British Empire. Ireland – the first colony of that empire – was at the center of the trouble, and the former colonies that had become a favored destination of the suffering Irish poured flames on the smoldering embers.
Less than 30 years later, the United States embarked on its own inaugural colonization project in Puerto Rico – now the world’s oldest colony. The many questions involving citizenship raised by the accession of the island and its inhabitants have also yielded fine work in legal history. Students of British and American legal history are teaching us that frequently the real action is at the periphery. This lesson is valuable for anyone studying the shifting contours of citizenship, as well as the role of commerce in the contours of empire.
As a procedural field, evidence law is often portrayed as technical and even arbitrary; the handmaid of substantive law. Orna Alyagon-Darr’s new book, Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine, dispels this notion, highlighting the ways in which evidence law—and procedure more generally—provides a reflection of the societies in which they operate, and may therefore serve as a rich source of social history. Precisely because procedural law is often depicted as morally and culturally neutral, it offers inadvertent clues to the thought process of various legal actors which substantive legal fields do not. In this book Alyagon-Darr, the author of Marks of an Absolute Witch (a study of witchcraft trials in sixteenth to eighteenth century England, the rules of evidence that governed them, and the social context these rules convey), turns her keen eye for fascinating and unusual details to another period and place: the interwar Middle East.
Plausible Crime Stories offers a fascinating analysis of the colonial archive of sex offenses in the Middle East during the interwar period. Based on 147 cases decided in the Haifa District between the years 1933-1948, Alyagon-Darr recounts the social and political histories of sex crimes in Mandate Palestine. To provide a richer and broader context, Alyagon-Darr also skillfully employs media coverage, in English, Arabic and Hebrew, to tease out public opinion towards such criminality within each of Palestine’s communities.
To examine “the meeting point of culture and law within the process of proof,” the framing principle at the center of Alyagon-Darr’s analysis is “plausibility.” (P. 6.) By focusing on plausibility, she proposes that we use legal and non-legal texts to “detect indicators of socially embedded elements.” (P. 6). In other words, she suggests that by reading legal texts and media accounts about the law critically we might uncover the underlying assumptions of the authors and the audiences for whom they wrote. These underlying assumptions are only rarely made explicit because authors found them unnecessary to articulate, making them far more telling of their world views.
The book begins with a 1944 case of attempted rape. In her husband’s absence, Nafsieh was sleeping with her baby on the roof of their family house when the defendant—her neighbor Nimr—appeared and allegedly tried to rape her. Despite the physical evidence of her torn shirt, her immediate report of the crime, and family members’ reports that they were awoken by a loud cry, British judge Curry found Nafsieh’s account “implausible”: first, he found it implausible that a woman would sleep alone on the roof of her own house, even on a hot summer night, in the absence of her husband; second, he found it “strange for a man in the middle of the night, to come commit an indecent act upon a woman unless there has been some friendship or encouragement to hope that he would not be badly received.” (P. 1.) Judge Curry found it far more plausible that Nafsieh would invite a neighbor to have sex with her on the roof of her husband’s family home in the presence of her baby; moreover, he found it plausible that when discovered, she would concoct rape allegations to protect her honor. The book portrays many such incidents, highlighting the various prisms mediating reality as perceived by legal and non-legal actors.
Readers will recognize many of the tropes analyzed in Alyagon-Darr’s accounts from feminist critiques of both substantive and evidentiary common law doctrines pertaining to sex crimes: the notorious corroboration requirement, the requirement of “resistance to the utmost”—and its implication, namely that intercourse simply cannot be achieved by a man of average strength against the will of an average woman. Alyagon-Darr’s analysis, however, brings the colonial context to bear on these issues, underlining the intersectionality of gender, sexual orientation, race and nationalism (to name a few). Mandate Palestine provides a particularly rich case study, as it allows for both the study of self-representation and the representation of others within Palestine’s various communities. For example, Alyagon-Darr analyzes Palestine’s distinctive statutory treatment of sodomy (which criminalized non-consensual penetration), as opposed to “offenses against the order of nature” (which penalized both parties in consensual, unnatural sexual relations). Alyagon-Darr meticulously traces the origins of this legislative distinction, contrasting between both the metropole and colony and between the British colonies themselves, to illustrate how perceptions of Middle Eastern sexuality informed such distinctive criminal provisions.
Beyond analyzing the distinctiveness of Palestine’s law in the books, Alyagon-Darr goes a step further in exploring the law in action: for example, she shows how in practice, “unnatural offenses” were typically only prosecuted against Arab defendants in cases where the authorities were forced to intervene, and typically in instances of power imbalances between the parties involved (be they physical, mental, or economical). Her explanation, once again, relates to plausibility: the notion that two men could share an emotional bond that would lead to homosexual relations, and that a man would voluntarily consent to penetration, was simply unfathomable. Additional facts had to be assumed for such a story to become conceivable: typically, the cases prosecuted involved an older and more powerful party, who exchanged money for sex. In crafting their defenses, litigants conformed to these judicial perceptions and tailored their stories accordingly, even when the record suggests that the relations were clearly consensual. In some cases Alyagon-Darr is even able to trace the changes that occurred in the defendant’s account from the moment they were caught until they stood trial, to conform with judicial and social expectations. In another chapter Alyagon-Darr demonstrates how perceptions concerning the plausibility of inter-communal intimate relations—particularly between Arab men and Jewish women—shaped judicial approaches to such cases, and the stories told by criminal defendants accused of crimes such as statutory rape: such relationships could only be deemed plausible when the Jewish girl in question was from a marginal group or a broken home.
Alyagon-Darr’s fascinating study is beautifully written, displaying keen attention to detail and sensitivity to the highly contentious subject matter. It is highly recommended for anyone interested in the history of sex crimes, the cultural history of legal procedure, or the complex relationship between law and colonialism.
Law and History Review’s recently published symposium, Originalism and Legal History: Rethinking the Special Relationship, offers a fascinating collection of articles, some by familiar commentators on constitutional originalism, some by newer voices. In the former category are Bernadette Meyler’s powerful critique of the Supreme Court’s reading of the history of the Sixth Amendment’s Confrontation Clause; Saul Cornell’s challenge to originalists to meet the standards of a“genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available”; William Baude and Stephen E. Sachs’s defense of originalist analysis as “ordinary lawyer’s work,” distinct from and more limited than the historian’s task of understanding the past; and Logan Sawyer’s account of the role that academic historians played in the rise of modern originalism in the 1970s and 1980s.
The symposium also includes a number of contributions from scholars who are newer to the scene. Lindsay M. Chervinsky examines George Washington’s understanding of executive authority, as revealed in newly available writings by the first president. Michael Douma explores the history surrounding two early Dutch translations of the United States Constitution. Aaron Hall considers how participants in mid-nineteenth-century debates over slavery turned to the history of the Founding as authority for their positions. And Paul Baumgardner looks to the history of law schools in the 1980s to trace the foundations of modern originalism rise to prominence in the legal academy. The symposium issue also includes Kevin Arlyck’s illuminating review of Jonathan Gienapp’s important new book, The Second Creation: Fixing the American Constitution in the Founding Era.
Although this latest round of contributions on the history and theory of constitutional originalism offers an array of insights and provocations that merit more attention, in this review essay I focus on the fresh perspective on the history of originalism offered in the articles by Aaron Hall and Paul Baumgardner. Building on the work of Robert Post and Reva Siegel, Jamal Greene, and others, they explore the genealogy of originalism as a phenomenon not only of legal theory but of American cultural and political history. Side-stepping the issues that have dominated discussions about originalism in recent decades—debates about the merits of originalism as a theory of constitutional interpretation, about whether originalist analysis and historical inquiry are reconcilable, about the original meaning of particular constitutional provisions—Hall and Baumgardner instead focus on how this particular theory has become such a dominant presence in American life. Central to this line of scholarship is the close attention they give to how developments outside the courts made possible the success of originalism inside the courts.
In Originalism and the Academy in Exile, Baumgardner, a Ph.D. candidate in Politics at Princeton University, presents the rise of originalism as a story of legal academic politics. He argues that the early 1980s—a time when “originalist scholars and scholarship held marginal and dubious status in the American legal academy”—was in fact a seminal moment in the emergence of modern originalism. Drawing on interviews he conducted with legal scholars involved in the academic battles of the 1980s, along with archival and published sources, Baumgardner describes legal education in the 1980s as a period of expansion, experimentation, and uncertainty. Faculty at elite law schools were becoming more interested in interdisciplinary scholarship, with Critical Legal Studies riling the waters on the ideological left and law-and-economics gaining stature among more conservative scholars. Within this increasingly dynamic world of the legal academy, there was little space, however, for the early advocates of originalism as a theory of constitutional interpretation. The pioneers of originalism in the 1970s and early 1980s generally worked outside the legal academy or on its fringes. Among mainstream legal scholars, most of the attention originalism arguments received came in the form of debunking efforts. Whereas Critical Legal Studies and law-and-economics were home-grown products, conceptualized and cultivated within the academy, originalism had to be outsourced.
The key player in Baumgardner’s story was the Department of Justice under the leadership of Attorney General Edwin Meese. In a speech before the American Bar Association, Meese declared advancing “a Jurisprudence of Original Intention” the official policy of the Justice Department. (P. 797.) “In the cases we file and those we join as amicus, we will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” (P. 797.) The Justice Department, according to Gary Lawson, who served in the DOJ in the mid-1980s, was an “academy in exile” for originalism in its formative years. (P. 798.) Instead of attending law school workshops, young conservative lawyers were participating in seminars and informal discussions at the Justice Department; instead of publishing law review articles, they were writing memoranda on the history of the framing of the Constitution and its significance for constitutional interpretation. In 1987, Justice Department lawyers produced Original Meaning Jurisprudence: A Sourcebook. The following year they produced Guidelines on Constitutional Litigation, which explained that an originalist approach to constitutional analysis “should presumptively be followed.” (P. 799.)
With the Justice Department in the Reagan years serving as the essential incubator and promoter of originalism as a viable theory of constitutional interpretation, developments in American politics further bolstered the stature of originalism on the constitutional scene. Justice Antonin Scalia joined the Supreme Court in 1986 and soon became originalism’s most effective booster. The following year Reagan nominated another defender of originalism, Robert Bork, to the Court. His defeat in the Senate prompted critics of originalism to once again announce its demise. Bork’s originalist views, wrote Ronald Dworkin, “were so thoroughly discredited in the hearings, and proved so generally unpopular, that I doubt that they will any longer be advanced even by lawyers and judges who found them congenial before.” (P. 801.) This prediction proved dead wrong of course. If anything, conservative anger at Bork’s defeat bolstered support for originalism. The Justice Department continued to promote originalism and it gradually gained a foothold within the federal judiciary. In 1992, Clarence Thomas joined the Court and soon proved himself to the be most committed originalist to ever sit on the Court.
Baumgardner explains how these developments outside the legal academy had the effect of advancing the stature of originalism in the law schools. Justice Department lawyers became law professors, some of them rising to the ranks of nation’s leading constitutional scholars. Among conservative legal scholars, originalism became the dominant theory of constitutional interpretation. It was the focus of countless articles, symposia, and debates. In the academy, the Justice Department’s more practical, results-oriented approach to originalism gained more analytical rigor. Although accounts of the historical trajectory of political and legal concepts often focus on their translation from the world of ideas to the world of practice, Baumgardner makes a persuasive case for giving attention to the flow of ideas in the other direction. His history of originalism shows how an idea that gained substance and stature outside the academy then shaped debates and careers within the academy.
Aaron Hall’s Plant Yourselves on its Primal Granite: Slavery, History and the Antebellum Roots of Originalism is a compellingly argued and elegantly expressed account of constitutional contestation in the first half of the nineteenth century. Hall examines how lawyers and judges in antebellum American called upon the history of the framing of the Constitution to legitimate their constitutional arguments about slavery. The authority of the Founding in American constitutional culture was never a given; it had to be constructed, and that construction, Hall argues, was in large part the product of antebellum debates over slavery.
Drawing on material in his recently completely history Ph.D. dissertation, Hall argues that it was in debates over slavery, more than any other subject of constitutional contestation in the nineteenth century, that jurists turned to the Founding for authority. Cases involving slavery, “inspired an effort to produce settled authoritative answers through stories about original promises, expectations, and intentions, an approach that recruited popular history and faith in a fathers’ Constitution.” This turn to cultural authority to bolster formal legal claims Hall terms “vernacular constitutionalism.”
The text of the Constitution could only provide so much. But crafting stories about the Founding that resonated with the anxieties and desires of Americans in the antebellum period could do much more, expanding the possibilities of constitutionalism to provide seemingly definitive answers to the issues that were tearing the nation apart. These projects of “narrative world building,” as Hall terms it, resonated with speakers and audiences at an emotional level. (P. 749.) References to the Founding were gilded with mysticism or religion—the framers were “inspired,” the Constitution touched by the “finger of God.” (P. 754.) Actively cultivated by lawyers, vernacular constitutionalism became an accepted register of argumentation for judges as well. “As courts leaned upon its legitimating authority, public constitutional history became a kind of constitutional law” in the decades leading up to the Civil War. (P. 752.) “[P]opular historical authority and formal legal justification would move together.” (P. 752.) Hall shows how this dynamic played out in the 1842 Supreme Court case Prigg v. Pennsylvania, in which the “justices constituted themselves as a court of history to govern slavery.” (P. 755.)
Hall argues that this nineteenth-century history helps to explain the “deep roots of originalism’s appeal.” (P. 747.) More than just a theory of constitutional interpretation, originalism, Hall explains, “can be understood as a form of constitutional engagement both in court and out of doors that integrates public memory culture and legal reasoning.” (P. 747.) Understanding originalism in this way “directs attention toward the formation of the constitutional culture that sustains originalism.” (P. 748.) Hall describes the entwinement of “public memory culture and legal reasoning” as the “taproot of originalism.” (P. 760.)
While Baumgardner remains agnostic on what his historical account says about the value of originalism as a method of constitutional engagement, Hall, in his conclusion, directs his history analysis in a critical direction. Originalism then, like originalism today, “dispossess[es] living generations of interpretive and policy-making authority” and “obscures the act of choosing meaning and making policy.” (P. 761.)
One of the puzzles of the history of originalism is why a theory of constitutional interpretation that legal scholars and historians alike have so regularly and thoroughly critiqued, denounced, and dismissed remains such a vital force in American constitutional discourse. In these important new articles, Hall and Baumgardner help to answer this puzzle.
Cite as: Christopher W. Schmidt, New Approaches to the History of Originalism
, JOTWELL (Sept. 13, 2019) (reviewing Paul Baumgardner, Originalism and the Academy in Exile
, 37 Law & Hist. Rev.
787 (2019); Aaron Hall, “Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism
, 37 Law & Hist. Rev.
743 (2019)), https://legalhist.jotwellcom/new-approaches-to-the-history-of-originalism
Making a case for the value of legal history on a forum dedicated to the study and celebration of the field might seem unnecessary, but Laura Edwards’s historiographical essay in the Spring 2018 Journal of the Early Republic (JER) is too good not to bring to the attention of legal scholars.
Edwards not only makes the case for the importance of the study of legal history as more than a subfield within larger explorations of the era of the early republic, but also illuminates (or, for legal historians reading the piece, reinforces) just how complicated “the law” was and the role it played in people’s everyday lives. “Law was not the authority to which people deferred,” she insists. “It was the authority they made. As such, it is impossible to understand the early republic without it.” (P. 147.) While these contentions might seem obvious to historians of the law, there is much to gain for specialists and non-specialists alike by reading—and teaching—Edwards’s notable article.
Edwards’s goals in “Sarah Allingham’s Sheet and Other Lessons from Legal History” are twofold. First, she aims to introduce recent scholarship that has moved “beyond the written records, legal officials, and designated institutions that other historians usually rely on to account for [the law’s] presence and influence.” (P. 122.) Second, Edwards challenges the idea that, in the nineteenth century, the law was either “simple” or “straightforward.” (P. 122). It was “the law’s very complexity,” she argues, that “made it more accessible to a wide range of people” (P. 122.) Edwards illustrates her aims through the story of a dispute over a bedsheet in New York City during the early nineteenth century, which she skillfully weaves throughout the essay, and then shifts to a discussion of both well-known and more recent work in the field of legal history.
Despite Hendrik Hartog’s consideration of the law in both “legal institutions” and “the streets of New York” (P. 123) in Pigs and Positivism, Edwards suggests that most historians of the era still “[tend] to locate the law within the governing institutions of the state.” (P. 123.) Edwards then discusses the ways in which early Americanists have, since the 1980s, taken a different approach, which has led them to wider studies of law and society. For scholars of early America, the shift away from “concerns with the ultimate emergence of the state” (P. 127) began in the 1980s and continued into the 1990s with a turn that extended both the chronological and geographical boundaries of the field. That turn, Edwards explains, included inclusion of the early nineteenth century and work that examines the persistence of colonialism even after the American Revolution. By the early 2000s, leading legal historians took up the mantle, and in a 2001 edited collection, The Many Legalities of Early America, demonstrated in essay after essay “that law was essential to understanding the colonial past more generally.” (P. 130.) These “scholarly currents” (P. 131) remain relevant in some of the most recent scholarship in what is now, in the late 2010s, referred to as “vast early America.”
Edwards also argues that “scholarship on coverture . . . has changed our understanding of the meaning and operation of legal principles” (P. 132), and dives into an analysis of some of the best existing work on the topic, including work by Holly Brewer, Cornelia Dayton Hughes, Mary Ritter Beard, Michael Grossberg, and others. From there, Edwards elucidates how legal scholars of the nineteenth-century United States have worked to link “[t]he institutional context of the early republic . . . to its colonial past” (P. 134) through investigations of legal institutions at the state and municipal levels. “The post-Revolutionary ‘state,’” Edwards suggests, “now looks far less coherent” (P. 136), as do the “legal relationships between localities, states, and the federal government.” (P. 137.)
In the remaining pages of the essay, Edwards touches on the pervasiveness of the law in the lives of ordinary people with a discussion of existing work on both credit and debt and religion, namely, disestablishment. Legal historians, she states “have moved law well beyond the boundaries that once contained it” (P. 141), and, over the last several years, scholars have started to include just how intertwined the law is with “cultural context.” (P. 142.) Moreover, Edwards’s convincingly argues that “law infused all aspects of life, even the lives of those without resources and with tenuous claims to rights.” (P. 146.)
Edwards’s historiographical examination of the complexities of legal history is both engaging and informative. Therefore, if you’re looking for an up-to-date discussion of some of the most recent scholarship on “the law” and the early republic, trying to find a classroom resource to introduce students to the studies of the law and legal history in that era, or just want a model for how to write an effective historiographical essay, Laura Edwards’s JER article is a good place to start.
The new essay collection Shaped by the State: Toward a New Political History of the Twentieth Century, edited by Brent Cebul, Lily Geismer, and Mason B. Williams, makes a strong case for thinking about political history as deeply tied to broader strands in American history. The essays in the book describe the growth and evolution of the modern state in light of “long-standing structures and ideologies of markets and social power defined by race, gender, class, and hierarchies of citizenship.” (P. 8.) As the table of contents makes clear, regulation and the administrative state are key parts of this story of the modern state. Rachel Louise Moran’s contribution to the collection, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, approaches regulatory history in this expansive way, unpacking the gendered nature of both regulation and resistance.
Moran takes as her topic efforts by the Federal Trade Commission (FTC) in the late 1970s to limit children’s exposure to junk food advertising on television. One might assume that the FTC’s attempts to prevent greedy corporations from using sugar to entice children would make regulators the heroes in a modern fairy tale. Moran describes how in 1977 the Center for Science in the Public Interest “dramatically sent 170 decayed teeth (and petitions signed by ten thousand health professionals) in a bag to the Federal Trade Commission, along with a request the FTC regulate the advertising of foods to children.” (P. 320.) Instead, however, the 1978 Children’s Advertising Rule investigation–soon known as “KidVid”–collided with concerns about an overstepping state voiced by industry opponents, media skeptics, and parents protective of their own authority.
The FTC’s statutory authority allowed it to regulate unfair and deceptive market behavior; regulators claimed that ads targeting children—by definition low-information consumers—were unfair. Since the FTC had traditionally focused on policing deceptive market behavior, there was little precedent for this regulation, and, Moran describes, “the unfairness principle was almost instantly portrayed as FTC overreach, as a bureaucracy pulling extra powers out of its hat.” (P. 323.) Moran quickly sketches the outlines of the political history: an extensive investigation with more than two hundred witnesses and thousands of pages in the record resulted in negative press, industry lawsuits, congressional pushback, and a failed rulemaking.
This alone is an interesting story, at least to those of us fascinated by bureaucratic behavior. But Moran provides more than a straightforward political history of regulation and resistance by focusing on the gendered framework at play in “the earliest sustained debate over the nanny state in U.S. politics[.]” (P. 321.) “Nanny state” language emerged first in British politics but Americans had long considered their own government in turn paternalist and maternalist. The latter framework came to dominate as the state expanded its authority to look out for citizens’ welfare by providing them with benefits and regulating their environments. More specifically, the FTC was described at various points in its history as “‘the little old lady of Pennsylvania Avenue’” and “‘the national nanny.’” (P. 318.) The issues involved in the KidVid episode were particularly fraught. Regulating what American children ate challenged mothers’ presumed responsibility for raising children and fathers’ presumed responsibility for supervising the family; regulating what children were exposed on tv did the same.
This specific regulatory intervention touched on broader issues of the expansion of consumer regulation, the changing legal status of women, the rise of dual-income (white middle class and elite) families, and the dangers (real or imagined) of overly permissive parenting. As Moran argues, “It is no coincidence that as the reality of a breadwinning man evaporated, the image maintained a stranglehold on the American political imaginary since a nanny state appeared to undermine masculine independence, self-sufficiency, and individual freedom.” (Pp. 333-34.) In light of changing parental roles, opponents argued, parents (and particularly mothers) should step up their parenting instead of asking the state to step in as a substitute parent. (The voices of mothers who welcomed this help were generally dismissed.) These claims about an overbearing state were loud enough that Congress pulled authority from the FTC so it couldn’t do anything like it again.
Moran concludes by tracing the continued power of “nanny state” language to fight regulation—of health care, of large sodas (as in the recent New York City contretemps), and of vaccination and school lunches. Overall, the essay points to the importance of bringing gender (and race, and class, and sexuality, and ability, and other categories of analysis) into political history generally and into regulatory history in particular. Moran clearly demonstrates how broad debates over the boundaries of public and private were tied up with the nature of (and threats to) traditional gender roles, and how gendered concepts of antistatism can be.
Cite as: Joanna Grisinger, The Federal Trade Commission as National Nanny
(June 6, 2019) (reviewing Rachel Louise Moran, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation
, in Shaped by the State: Toward a New Political History of the Twentieth Century
317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019)), https://legalhist.jotwell.com/the-federal-trade-commission-as-national-nanny/
The United States is in the midst of a memory war. Every month brings a new political and legal dispute over how our nation should portray its past in its public spaces. At the center of this struggle are the myriad of Confederate war memorials that dot the South. Southern localities and educational institutions have tried to remove these memorials. State legislatures have fought back, passing “heritage protection laws” that prohibit their removal or alteration. As the horrific events that took place in Charlottesville in 2017 demonstrated, the notion that this conflict over interpreting our nation’s past as a “war” is not always metaphorical. Nor are these fights over Confederate statuary the only battles in this war. From the content of high school textbooks to the identity of college mascots, we are constantly engaged in skirmishes in memory wars, as activists, policy-makers, and politicians deploy law and political advocacy to shape how we understand contentious events in our nation’s past, be they the Civil War, westward expansion, or the decision to drop the atomic bomb.
Nikolay Koposov’s compelling, encyclopedic history of the regulation of historical memory in Europe, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, is a must read for anyone determined to think deeply about these battles over how the past should be remembered. At its center is a fascinating story about the relationship among law, history, and public memory. Memory Laws, Memory Wars recounts the emergence of the regulation of historical memory in Europe. This story starts in Western Europe in the early 1980s when West Germany and France considered legislation criminalizing Holocaust denial. These attempts came to fruition in 1990, when France enacted the Gassyot Act. That law imposed a one year prison term and a 45,000 Euro fine on people who publically disputed the existence or dimensions of the Holocaust – the crimes against humanity that were defined by the Nuremburg Tribunal at the end of World War II.
During the 1990s, this sort of law spread throughout the European Union. This spread was marked by two changes. First, the number of historical events that fell within the ambit of these laws expanded. Historical assessments of the Armenian genocide, fascist repression in Spain, the violent legacy of European colonialism, and Europe’s role in the slave trade were all made subject to state regulation. Second, the administrative mechanisms deployed to regulate memory became more diverse. Though most Western European countries maintained criminal sanctions for Holocaust denial, as the palate of problematic histories expanded, different counties regulated them differently, often in a less punitive manner: curricular requirements in schools, or simple acknowledgements and apologies by culpable nations.
The collapse of the Soviet Union and the eastward expansion of the European Union generated another dramatic change in memory regulation. As Eastern European countries gained autonomy, they brought the evils of Soviet domination into the ambit of memory regulations. Denial of Stalinist atrocities was placed on a par with Holocaust denialism and thus subjected to criminal sanction in Eastern Europe. More significantly, the expansion of memory laws to Eastern Europe saw a frightening shift in their emphasis. The original wave of memory laws that sprang from Western Europe’s encounter with the Holocaust were premised on the idea of repentance: our nation did something horrible and only by preserving the memory of that horror can we ensure that we don’t err again. Memory regulation in the East, however, focused on the denial of responsibility for evil acts. These laws were designed to “promote nationalist mythology” by shifting “the blame for historical injustices entirely to others” (Pp. 308-309). Thus, Turkey criminalized references to the Armenian Genocide, Russia criminalized criticism of Soviet acts during the Second World War, Poland prohibited assertions that “the Polish nation” was complicit in the Holocaust, and Hungary whitewashed the fascist antecedents of its current regime by criminalizing claims that Hungarian anti-Soviet fascists were anything other than heroic freedom fighters. The confessions of national culpability that defined the initial set of memory laws had been replaced by laws that criminalized “the denial of other nations’ misdeeds” in order to promote reactionary nationalism based on “self-victimization” (P. 305).
This thumbnail description of Koposov’s narrative doesn’t do justice to the complexity of this story and subtlety with which he tells it. He effortlessly takes the reader through the fiendishly complex political history of post-Cold War Eastern Europe, demonstrating how different attempts at nation-building yielded different types of memory regulation. He details the changing sentiments of Western European intellectuals, who initially supported the criminalization of Holocaust denial, but then adopted a considerably more libertarian approach to speech regulation as the utility of memory regulation to illiberal regimes in Eastern Europe became apparent. Finally, he recounts the relationship between the lost possibility of a liberal, democratic post-Soviet Russia and the profoundly sinister turn that memory law and politics took as Vladimir Putin consolidated power in the first decade of the twenty-first century.
Koposov also places his narrative within a compelling analytical framework. He demonstrates how emergent nationalism and the need for state-building in Eastern Europe transformed memory laws into tools for would-be totalitarians. Even more fascinating is his analysis of why memory regulation emerged in the first place. The causes, Koposov demonstrates, are numerous: the emergence of the Holocaust as the central feature of Western European historical consciousness in the 1970s; the end of the Cold War and the flourishing of Eastern European nationalism; the rise of humanistic attitudes towards oppressed groups and the concomitant flourishing of identity politics; the historical profession’s turn towards social history; the emergence of human rights protection as a political and legal goal; the rise of both neoconservative politics with its emphasis on recapturing a national heroic past, and of neoliberal politics, with its tendency to “annihilate history as a dimension of human experience” by suggesting that societies are shaped solely by universal, timeless, economic “laws” (P. 59). Other historians, such as Peter Novick and Daniel Rodgers, have told pieces of this story, but Koposov weaves all the strands together in the specific context of memory regulation. He shows how admirable political and cultural innovations – the increasing salience of human rights, the desire to tell the histories of subaltern groups, the collapse of Soviet totalitarianism – combined with less praiseworthy features of late twentieth-century politics. This mixture generated the Orwellian regulation of historical memory that currently characterizes the increasingly authoritarian regimes in Eastern Europe and, though Koposov doesn’t say it, the forces of illiberalism here in the United States.
Indeed, it is the obvious parallels with American memory politics that make Memory Laws, Memory Wars such a compelling read. Koposov’s description of the purposes of Russian memory regulation are no different from the purposes of the heritage protection acts that have sprung up throughout the American south in recent years: creating a heroic, mythic past; suppressing evidence of morally repugnant behavior; perpetuating a narrative in which the perpetrators of crimes against humanity become the victims of outside aggression. Thus, Memory Laws, Memory Wars should remind us of the stakes at issue in our own memory wars. It suggests that professional historians and others who are committed to a public history that teaches critical thinking rather than myth-making must assert the values of our profession in the public sphere. The politics of memory too often ignore the importance of these values: free inquiry, fidelity to sources, a commitment to using sound historical methods, and truth-seeking in the context of multiple perspectives. Historical memory, Kaposov shows us, is too important to be left to the politicians.