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Excavating Congress’s Relationship to the Administrative State

Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538 (2018).

I am probably too early in my career to recognize a watershed piece of scholarship, but this sure seems like one to me. In her most recent article, Maggie McKinley traces the origins of the administrative state to the historical practice of petitioning Congress for relief, as protected by the Petition Clause of the First Amendment. She details how Congress afforded petitions important procedural protections, and tells the story of how Congress eventually “siphoned off” its responsibility for resolving these petitions to boards, commissions, and other ad hoc bodies that became the foundation of the modern administrative state. Her overarching thesis is that the petition process reveals a constitutional obligation originally located in Congress, and now located in the administrative state, to ensure individualized and meaningful participation in federal lawmaking.

This thesis is, among other things, a breath of fresh air in a heated yet stale debate about the constitutional validity of the administrative state. As Kristin Hickman recently surveyed for Jotwell, this debate has fixated for decades on whether or not we can assume the constitutional validity of the administrative state from either its existence or its practical necessity to modern life. McKinley offers what I think is a truly novel argument to this contest: that the constitutional basis for the administrative state is at least partly rooted in the First Amendment’s right to petition the government. Drawing on a wide range of sources from Founding-era practices to legal process theory, her insights will interest readers on all sides of this debate.

The foundation of McKinley’s article is the Congressional Petitions Database, an original dataset compiled by McKinley and her research team at the North American Petitions Project. Drawing on congressional records, they created “a comprehensive database of all petitions introduced to the Congress from the Founding until 1950 for the Senate and from the Founding until 2013 for the House of Representatives.” (P. 1630.) This database allowed McKinley to observe trends and draw conclusions about the petition process for, as far as I know, the first time in legal scholarship. It serves as the basis for the first half of McKinley’s article, which introduces the petition process and tells the story of how that process “evolved” into the modern administrative state.

Undoubtedly, one of the lasting contributions of McKinley’s article will be her descriptive account of the petition process. The practice was as foreign as it was interesting to me. Petitions were individual requests for action from Congress. Petitioners requested everything from a pension, to comprehensive regulation of the boiler industry, to resolution of a private claim against the government, to declaration of a national policy against the slave trade. Importantly, people who otherwise had no meaningful access to Congress could submit petitions, including noncitizens (American Indians), non-voters (women), and political minorities (freed slaves). The petition process offered these groups  constitutionally-guaranteed access to the lawmaking process of their government.

Congress took its role in resolving petitions quite seriously and afforded them particular process. A petition took a specific form, and you typically sent your petition to your local representative or senator. He or she would then read your petition into the congressional record, which made your petition the public business of Congress. Petitions were placed on a docket that tracked their disposition and resolution over time. Typically, a petition was then sent to committee for a recommendation to Congress on how to resolve it.

The breadth and character of what happened next would shock the conscience of any strict departmentalist or separation-of-powers puritan. The committee itself might engage in some fact-finding. (P. 1563.) Or it might send the petition to executive officers like the Secretary of Treasury or Secretary of War “for review, investigation, and reporting.” (P. 1569.) Or it might enlist a federal court or even a state court (!) to help process the petition. (P. 1617.) McKinley found examples of each of these and more in her review of the Congressional Petitions Database, demonstrating that the type of lawmaking spurred on by the petition process looked quite different from the “legislative” process as we think of it today. While the petition process might end with a recommendation for a general law sent to the floor of Congress, “more often, resolving a petition involved what would today be perceived as nontraditional lawmaking”—namely, things that were not “legislative acts” and therefore did not require bicameralism and presentment. (P. 1563.) Yet all “were viewed as equally within Congress’s power to control” at the Founding. (Id.)

McKinley explains that petitions “dominated Congress’s docket until well into the twentieth century.” (P. 1617.) But as the country became more complex and suffered its wars, Congress increasingly “siphoned off” its responsibility for resolving petitions to more permanent administrative bodies. (P. 1579.) McKinley walks through three case studies to show how this story played out in subjects that we typically associate with administrative law: adjudication of individual claims (using the Court of Claims as an example), the provision of public benefits (the Bureau of Pensions), and nationwide regulation (the Interstate Commerce Commission). McKinley argues persuasively that this shift is essential context for understanding both the Administrative Procedure Act, which codified best practices Congress had developed in processing petitions, and its less-familiar companion the Legislative Reorganization Act, which dismantled what remained of the congressional apparatus for processing most petitions. As McKinley tells it, Congress converted the formal petition process into the administrative state, leaving any remaining access to lawmakers to the grey world of lobbying (which is a subject of McKinley’s research elsewhere).

McKinley draws two broad theoretical lessons from her observations about the evolution of the petition process. First, we should be thinking about agencies as an extension of Congress’s constitutional obligation to ensure participation in the lawmaking process, rather than as an extension of Congress’s Article I lawmaking power. For example, she recommends renaming the administrative state the “participatory state” to emphasize its role in guaranteeing “a formalized voice for individuals and minorities” in the lawmaking process over bureaucratic administration. (P. 1538.) This change in perspective, she argues, would help rebut the narrative that agencies are inconsistent with the limited-government principles of the Founding era and grew, weed-like, from managerial impulses of the New Deal.

Second, McKinley argues that the petition process reveals fundamental defects in legal process theory—namely, the theory’s strict approach to separation of powers and Footnote-Four-style reliance on the judiciary to protect political minorities. The petition process reveals, respectively, that American governance regularly crossed any boundaries between the branches, and that Congress has its own constitutional duty to ensure political minorities (and even non-citizens) have access to lawmaking. McKinley’s criticism of Hart & Sacks is particularly humbling, noting that neither “had actually spent much time working in Congress,” so their view of the legislative process as essentially majoritarian “reflected no firsthand experience.” (Pp. 1609-10.) But, McKinley maintains, modifying legal process theory to incorporate the lessons of the petition process can help reinvigorate that model with a spirit of democratic proceduralism and resist efforts to disassemble “the participatory state” out of fidelity to a strict separation of powers.

Finally, McKinley offers two concrete examples of how her insights should change case law. First, courts should not follow INS v. Chadha because the petition process—which did not necessarily require bicameralism to act on a petition—demonstrates that the Court’s reasoning for striking down the legislative veto was wrong. (Pp. 1621-22.) Second, courts should flesh out the doctrine of “administrative due process” into a “quasi-procedural due process right of the kind promised by the Petition Clause.” (P. 1623.) On that score, McKinley critiques Mathews v. Eldridge for grounding due process in a utilitarian cost-benefit framework rather than the aspirational values she views as reflected in the Petition Clause: “equality, formality, and transparency.” (P. 1625.)

McKinley’s points on Chadha and due-process balancing are well-taken, and certainly don’t lack for ambition. But they are eclipsed by her “excavation,” as she put it, of the petition process and its particular view of Congress. I keep returning to this article with the feeling: this changes everything. Not just Congress’s relationship to administrative agencies, but also the courts’ relationship to individual rights, due process, and access to justice—both relationships, I’ll readily admit, that I understand through the heavy influence of process theory. But I’m not alone in this boat. Although often implicit, most American lawyers and judges understand the everyday work of our courts through process theory’s take on the separation of powers and judicial review. To shake one is revelatory enough; to shake both makes you worry that the whole thing is going to come apart. It’s that feeling that leads me to believe rethinking Chadha and due-process balancing—again, no small feat—is only the beginning of what McKinley’s work can accomplish.

Cite as: Wyatt Sassman, Excavating Congress’s Relationship to the Administrative State, JOTWELL (July 25, 2018) (reviewing Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538 (2018)), https://legalhist.jotwell.com/excavating-congresss-relationship-to-the-administrative-state/.

Victims’ Rights and White Power

By coincidence, I was reading Kathleen Belew’s book, Bring the War Home: The White Power Movement and Paramilitary America, the same week I read Jill Lepore’s recent article, The Rise of the Victims’-Rights Movement, in The New Yorker. The overlap was striking and well worth the consideration by legal historians.

Belew’s recent history is about the rise of a white power network across the United States in the years since Vietnam. It explores, through the study of a series of incidents, how a number of seemingly separate white supremacist groups came together, first on the ground and then through the internet. As Belew traces the network’s increasingly violent acts against those it considered outsiders, she shows why its racial view of the world (with its neat categories of “us” versus “them”) ultimately led it to declare war on the federal government in the early 1980s. In the process, she also describes the series of tactical decisions (and missteps) by federal prosecutors that led the government to underestimate and understate the extent of the white power movement. Her book’s great strength is revealing that network’s breadth across time, space, and a series of events culminating in the Oklahoma City bombing in 1995 (the epilogue ties the events in the book to the shooting at Emanuel A.M.E. church in Charleston).

This is a troubling book for many reasons, not just because of the scope of the white power network it reveals, though that is both disturbing and an important corrective to the insistence that white terrorists are “lone wolves” who act spontaneously and independently of one another. The book also brings the world of the white power movement home in another, very concrete way: in the week marked by yet another high school shooting, this one in Santa Fe, Texas, it was unsettling to read about Santa Fe’s connection to Klan rallies and white power activists in the late twentieth century. Many places have troubling histories and I do not mean to suggest in any way that the recent events in Santa Fe are less horrific because of events in the town’s past. But that connection, and Belew’s book more generally, raises questions about how the elements of United States culture that valorize violence and draw ready distinctions between the deserving “us” and the less deserving “them” (or between people and animals, to use an even more recent variation on the theme) contribute to mass shootings.

There are a number of points of overlap between the white power culture, as it is explored in Belew’s book, and the culture of the victims’-rights movement that Lepore’s article explored. At its broadest, Lepore’s article takes a fascinating look at the rise of victims’-rights theories in criminal justice. The book argues that the victims’-rights movement arose from a mix of feminist activism on behalf of women who were traditionally silenced in rape trials and conservative push back against the due process revolution put in motion by the Warren Court. But to unpack that story, she looks closely at the treatment of victim’s rights in the Oklahoma City bombing case, a trial (and event) that Belew examines closely as well.

In their treatment of the case, both Belew and Lepore touch on an issue that appears frequently in Belew’s book—the degree to which white power advocates like Timothy McVeigh justified their violence in terms of avenging victims, specifically white victims, of the government. Lepore quotes McVeigh as saying that he bombed the Murrah federal building because the federal government, which had failed to prosecute the government agents involved in Waco, “failed the victims who died during that siege.” (Lepore, P. 52.) Belew’s book tracks similar sentiments across the decades, from Louis Beam, who rallied whites in Texas to oppose and attack Vietnamese shrimpers whom he believed were getting welfare from the federal government while destroying white fishing interests and used similar language in talking about Waco, to Dylann Roof, who wanted to bring about a race war because Blacks were killing whites, raping white women, and taking “over our country” without being stopped by the government.

Belew treats the trajectory of white power victimhood as a shift from attacks on the other to a declaration of war against the federal government. It appears, in that sense, to be a rejection of the constitutional order. But read in light of Lepore’s article, the trajectory Belew sketches looks more like a shift to a perpetual and all-encompassing state of self-defense necessitated by the (temporary) failure of the government. The government is not so much the enemy as it is a failed state that has been unable to prevent the victimization of whites. Implicit in that are two constitutional theories: First, that the government would right itself if it understood its proper role in the racial order. And second, that so long as the government fails, the sovereign (and white people) have a right to defend themselves.

In that respect, Lepore’s article suggests that we might view Belew’s subjects as making a constitutional (as opposed to racial) argument. And Lepore also offers us a way to do so, noting that new theories of the Second Amendment arose in tandem with the rise of victims’ rights rhetoric. Although her article does not elaborate the point at length, Lepore suggests a strong connection between the two, seeing both as part of “a set of arrangements under which what was once a civil society has become a state of war.” (Lepore, P. 55.) The subjects of Belew’s book clearly made similar connections. In fact, as Belew points out, McVeigh began to plan the attack on the Murrah Federal Building just weeks after expressing exasperation (“What will it take?”) about the passage of the Violent Crime Control and Law Enforcement Act in 1994, a law that banned the use of nearly twenty different semiautomatic weapons. (Belew, P. 220.)

The idea that the people, or some of them, have a right to take the law into their own hands when the government fails to act has a long history in the United States, as does the idea that they have a legal, even constitutional, right to do so. The recent works by Belew and Lepore show those ideas still resonate and how they express themselves today.

Cite as: Elizabeth Dale, Victims’ Rights and White Power, JOTWELL (July 13, 2018) (reviewing Kathleen Belew, Bring the War Home: The White Power Movement and Paramilitary America (2018); Jill Lepore, American Chronicles: The Rise of the Victims'-Rights Movement, The New Yorker 48 (May 21, 2018)), https://legalhist.jotwell.com/victims-rights-and-white-power/.

Urban History as Legal History

My mother, a life-long New Yorker, was an opinionated person. There were certain politicians she didn’t like, and, if they came up in conversation, she would not hesitate to tell you so. At the top of this list was Richard Nixon—hardly a surprising entry considering my mother’s identity as a postwar, Jewish liberal. (I don’t think Nixon would have liked my mom very much either.) Not far below Nixon was Gerald Ford. His greatest crime, of course, was pardoning “that sleazy bastard Nixon.” Ford’s perfidy, however, also hit closer to home. In 1975, as my mother’s beloved city spiraled closer and closer to bankruptcy, Ford refused to allow the use of federal resources to help New York weather its financial woes. “Ford to City: Drop Dead,” read the New York Daily News’ infamous headline after Ford announced that he would veto any federal legislation that would “bail out” the City. New York’s fiscal crisis cost my father his job at the City University of New York, so, as far as my mom was concerned, the “Drop Dead” was aimed at our family.

When it came to New York’s fiscal crisis, Ford was not the only politician who earned my mother’s scorn. A large portion of it was reserved for a man who could not have been more different from the tall, athletic, Midwestern president: Abraham Beame, the petite, uncharismatic accountant who had the misfortune to be the mayor of New York City when the crisis peaked. According to mom, it was Beame’s incompetence, his tolerance for profligate spending, and his subservience to both the corrupt Democratic political machine and municipal labor unions that brought New York to the brink of ruin.

Kim Phillips-Fein’s marvelous book, Fear City: New York’s Fiscal Crisis and the Rise of Austerity Politics, argues that my mother’s view of the crisis, which has become the received wisdom, is incorrect. She provides a detailed history of New York’s financial woes. The City, she explains, was committed to promoting social-democratic urbanism by enacting programs that promoted economic egalitarianism. These programs—free higher education, a massive city-funded system of public hospitals, cheap mass transit, for example—were expensive, but they did not cause the fiscal crisis. Instead, Philips-Fein argues that it was a combination of external circumstances (the end of the postwar economic boom, deindustrialization, and changes in securities markets) and the ideological desires of Republicans in the Ford Administration that drove New York to the brink of bankruptcy. Desperately in need of financial resources, the City was forced by Ford to cut its budget dramatically in exchange for the short-term loans that saved the City from bankruptcy.

Fear City also recounts how elites within the City used the crisis to create a new model of urban governance that emphasized austerity and government promotion of private economic development. This model, Phillips-Fein argues, has come to define our contemporary assumptions about the proper role of government. She demonstrates that these assumptions were justified by a morality tale about the fiscal crisis that was constructed by enemies of postwar liberalism. Leading this group were the austerity scolds of the Ford Administration, in particular, Chief of Staff Donald Rumsfeld and Treasury Secretary William Simon. Rumsfeld and Simon were intent on advancing a conservative, anti-statist political agenda by blaming the City’s financial woes on irresponsible government spending rather than on external structural changes in the economy. These fiscal conservatives were joined by right-wing moralists (think Pat Buchanan and Midge Decter), who decried the enervating effect of the “entitlement culture” created by the City’s generous social welfare programs. This narrative was then embraced by both local financial elites, who benefited tremendously from the new, low tax, “business friendly” policies of the City (Phillips-Fein demonstrates how a certain orange-haired son of a racist New York real estate developer benefited tremendously from the new financial order (pp. 257-60)) and “New Democrat” politicians (typified by Beame’s successor, Ed Koch), who rode to power attacking the social-democratic aspirations of their elders as hopelessly naïve and financially ruinous.

Fear City is, first and foremost, a political narrative—a gripping story, propulsively told. It is, of course, populated with the obvious characters: federal, state, and local politicians; New York business elites; powerful municipal union bosses; City bureaucrats. Phillips-Fein does not, however, limit herself to the politics that occurred in the halls of power. The book teems with grassroots activity. As the fiscal crisis forced the City to gut its public services, many New Yorkers rose up to defend their beloved institutions, be it a firehouse in working-class Williamsburg, Hostos Community College in the South Bronx, or Sydenham Hospital in Harlem. Phillips-Fein’s narrative thus forms around the push and pull that City officials were subjected to in the middle of the 1970s. Federal officials and the City’s elites demanded austerity, no matter the impact on the lives of New Yorkers. At the same time, those New Yorkers defended the services that they had come to depend on for their health, their safety, and their livelihoods. Phillips-Fein demonstrates that these New Yorkers lost this fight. Social-democratic New York—with its cheap transit fares, its free higher education, and its unparalleled public libraries—vanished. What replaced it was a city run for the benefit of corporate and financial elites. While New York is now portrayed as “the model of postindustrial urban triumph,” Phillips-Fein argues it is also a city of massive wealth disparities, crumbling infrastructure, and a shattered social contract. (P. 306.) As such, New York City is representative of the United States as a whole. It was a canary in the coal mine, the first victim of the ascendance of a new, austerity-oriented, privatized political economy over the egalitarian ambitions of postwar liberalism.

Fear City is not only a page-turning political history of the fiscal crisis. Phillips-Fein has also written an exceptional piece of legal history. Indeed, law courses through the veins of this book. Be it bankruptcy law, the law of municipal finance and taxation, or constitutional law, legal concepts are the armature upon which the story of the fiscal crisis hangs. Was the City approaching constitutionally mandated debt limits? Could the City legally suspend payments on municipal bonds to encourage investors to purchase state-backed debt instruments that would prop up the City’s failing finances? Did the advice of elite lawyers undermine the faith that banks had in municipal debt? What were the legal requirements of the budgeting process? One of Phillips-Fein’s triumphs in Fear City is to describe how the answers to these questions shaped the political narrative of the fiscal crisis.

Similarly, the story of the solution to the fiscal crisis sits on the boundary of legal and political history. New York State established hybrid municipal-state agencies to issue debt and control the fiscal operations of the City. The federal government’s support of the City was conditioned on the legal and constitutional authority of these novel agencies to assume control over the local policymaking. Then, as the crisis subsided, the City created new agencies—some public, other public-private hybrids—that implemented the new political order that combined austerity in traditional city programs with generous incentives for private economic development. Thus, Phillips-Fein’s story not only shows how law and legal actors were an integral part of the history of the fiscal crisis. She also demonstrates how the broad political shift that sits at the center of Fear City—from social-democratic liberalism to a privatized, market-driven political economy—required the creation of novel legal and administrative institutions.

This fact—that particular visions of urban governance come with their own novel legal institutions—is an obvious law and society platitude. Yet legal historians have not explored this intersection of urban history and legal history. Cities have often been a source of political and legal innovation. Phillips-Fein demonstrates this with respect to social-service provision and government finance, but it is also true in many other policy areas: civil rights, the environment, education, public health, and economic development, to name only a few. Cities were institutional innovators as well. Phillips-Fein describes the various administrative manifestations of the fiscal reforms imposed on New York City. Each earlier era of reform spawned similar municipal institutional innovations, be they the bridge and tunnel authorities of the Progressive Era, the housing authorities of the New Deal, or the human rights commissions of the postwar period.

This abundance of law at the local level suggests that legal historians should spend more time studying cities. Twentieth-century American legal historians tend to focus on law-making by the federal government, or on high-profile doctrinal areas, such as constitutional law, that are not directly related to the governance of American cities. Additionally, the legal history of cities is very much a history focused on administrative agencies and administrative law, both subjects that, until recently, legal historians have shied away from. Indeed, even the more recent interest in the administrative state has not focused on cities. Legal historians are “bringing the state back in,” but we have left out the smallest units of government, particularly as we study twentieth-century legal institutions. We need to devote time and resources to studying local governments lest we miss an important location of state-building and policy creation. Fear City is a model of how this can be done, and it demonstrates the enormous dividends to be had by doing so.

Cite as: Reuel Schiller, Urban History as Legal History, JOTWELL (June 28, 2018) (reviewing Kim Phillips-Fein, Fear City: New York’s Fiscal Crisis and the Rise of Austerity Politics (2017)), https://legalhist.jotwell.com/urban-history-as-legal-history/.

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/.