Monthly Archives: November 2016

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Worth More Than a Thousand Words

Sherally Munshi, “You Will See My Family Became So American”: Toward a Minor Comparativism, 63 Am. J. Comp. L. 655 (2015), available at SSRN.

Sherally Munshi has written a thoughtful and moving article about the relationship among race, citizenship, immigration, and the visual imagery of assimilation and difference. In “You Will See My Family Became So American,” she tells the story of Dinshah Ghadiali, a Parsi Zoroastrian born and raised in India who immigrated to the United States in 1911, became a U.S. citizen in 1917, and prevailed over the federal government’s effort to strip him of that citizenship in 1932. Along with Ghadiali himself—proud American, soldier, erstwhile inventor, political activist, and all in all memorable character with a larger-than-life personality—the protagonists in the story are a striking series of photographs Ghadiali submitted into evidence in his denaturalization trial. Munshi’s bold and ranging exploration of a variety of themes in the legal history of race, citizenship, and immigration culminates in a close reading of these photographs, in which she shows how the images reveal the tension between the “effortful displays of Americanization… and unwitting disclosures of racial identity.” (P. 693.)

Munshi frames her discussion with a central doctrinal precedent and a proposed theoretical framework. The precedent is the Supreme Court’s decision in Thind v. United States, which in 1923 held that Bhaghat Singh Thind, “a high caste Hindu, of full Indian blood, born [in] India” was not “a white person” under the naturalization laws. Along with the previous year’s Ozawa v. United States (1922), which had held the same with respect to a Japanese man, Takao Ozawa (though with different reasoning—more on that below), the decision in Thind gave rise to efforts to denaturalize some who had become citizens before the decisions but were deemed ineligible afterwards, and formed the basis for Ghadiali’s (unsuccessful) denaturalization trial.

The theoretical framework is the “minor comparativism” of the article’s subtitle. Munshi briefly outlines what she takes to be the salient strengths and weaknesses of comparative law scholarship, and brings these insights to bear in proposing a version of a comparative approach to the study of history within, rather than across, national boundaries. The strength she has in mind is the “self-reflexive” orientation of comparative law scholarship, which “inclines the scholar outward, beyond her immediate world and towards the worlds of others with the anticipation that, through her study of another society, she might begin to question her own.” (P. 664.) The weaknesses are comparative law’s tendency, in spite of itself, to entrench statism; its focus on formal law; and its failure to treat the migrant as central, rather than peripheral, to the formation of the modern state. Munshi’s minor comparativism, in contrast, “adopt[s] the perspective of those who remain foreign within one’s own country,” and in this way brings a comparativist sensibility to the study of domestic history, which in turn “decenters the state,” replaces formalism with attention to “the unreported, unwritten, and often inchoate character of the law and its effects,” and places the migrant at the center of narratives of state formation. (Pp. 664-66.) While these are not novel approaches to the study of legal history, the idea that one should pursue “comparativism” within rather than across national boundaries is intriguing and refreshing, and contributes to a heightened awareness of what constitutes the “American” in “American legal history.”

At the center of the story are the images submitted by Ghadiali at his denaturalization trial and analyzed in detail by Munshi. Were we to base our historical understanding principally on sources like the Court’s decisions in Ozawa and Thind, we might conclude that what Ghadiali tried to do, and did successfully, was convince the judge in his trial that he was “white.” But what are the chances? More apt and illuminating is what Munshi suggests: “Perhaps having failed to convince the judge of his essential whiteness, Ghadiali sought to persuade him that, even if he did not look white, he did look American.” (P. 660.)

The series begins with a photograph of Ghadiali on a police report, of all things: he submitted it because in the relevant section, the report labeled him “White.” The next one shows his family: himself, his (also Indian) wife, and his two children, all wearing coats and hats (the wife, a scarf). The third shows him and his two children—no wife (she’d returned to India). The fourth shows him as a commander in the New York Police Reserve Air Service, alongside a few dozen men also in uniform (though not all commanders). The fifth shows his five children from his second marriage, all wearing the same outfits and little white hats and sitting on bicycles—no wife (though this time, he had one—a second wife—now German, and white, and a citizen herself), and no Ghadiali either.

I’m not going to summarize what Munshi says about all of these, but I will quote Ghadiali’s plea to the judge: “He explained that he was deserted by his first wife ‘because I would become a Citizen. Now America throws me out and my second wife will desert me because I did not become a Citizen. The government puts me in a funny position.’” (P. 714.) Ghadiali did prevail and remain a citizen. Those photographs surely helped, though the judge ended up deciding the case on res judicata grounds, treating Ghadiali’s 1917 admission into citizenship as having settled the matter.

Ghadiali’s story serves as both anchor and springboard for the larger legal history of race, citizenship, and immigration Munshi offers in this piece. With each episode, she engages provocatively with relevant secondary literatures. Discussing Ozawa and Thind, she invokes Ian Haney Lopez on the legal construction of racial categories, and goes on to offer her own take, explaining what she finds most remarkable about the shift in the Court’s reasoning. In Ozawa, the Court seemed to rely principally on what was then the state-of-the-art science of race to conclude that a Japanese person was not “Caucasian” within the meaning of the naturalization statutes. But in Thind, it had to answer the argument that, as an Indian, Thind belonged squarely in the category of “Caucasians.” The Court couldn’t disagree, so it shifted emphasis and focused on common (read: white people’s) understandings of race instead of scientific ones, relying on those to reject Thind’s claim to citizenship as well. Munshi does not disagree—how could one?—that the two cases together are an especially blatant example of the law’s construction of race, but she turns our attention to what she finds even more intriguing about the Court’s reasoning in Thind: Justice Sutherland’s reliance on what he perceived as “instincts” about race. Munshi quotes Sutherland, explaining that “‘Hindus’ ‘racial difference’ was ‘of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.’” (P. 674.) This is not as much about common knowledge, Munshi observes, as it is about common “sense”—about something “visceral.” (Pp. 674-75.) “Here, the power to designate racial qualification for citizenship is withdrawn not only from the language of race experts but from language altogether.” (P. 674, emphasis added.) By force of the Court’s ruling in Thind, she adds—pushing herself and her reader just a little harder (as she does throughout)—the phrase “free white persons” itself “gains a flesh and corporeality” by virtue of the Court’s investing in “white persons” the power to interpret the phrase “white persons.” (P. 675.)

Munshi turns back to look at Plessy v. Ferguson (1896) and the “colorblind” Constitution, a discussion that yields among its insights the observation that “[c]olorblindness imposes a visual management of difference on the part of the observed, who is burdened with proving, over and over, that her difference does not disqualify her from equal membership.” (P. 679.) A discussion of Elk v. Wilkins (1884), which rejected the claim to citizenship of a Native American who had left his tribe and tried to register to vote, takes issue with the received understanding that the United States has always conferred jus soli citizenship, concluding from this and other histories of exclusion that “[i]n the United States, for much of the nineteenth century, a right of blood masqueraded as a right of soil.” (P. 687.) Also in this discussion, she proposes that for Native Americans, Congress devised a “contractual model of citizenship,” conditioned on “the destruction of tribal identity” (Id.)—a model that, revised, comes to play a role in Ghadiali’s trial. Elsewhere, she discusses a photograph of Thind in an army uniform. This photograph, she notes, is often printed without explicit analysis, “as if the image speaks for itself.” (P. 679.) Munshi then offers her own analysis, discussing “the apparent tension between racial or ethnic particularity, on the one hand, and the project of national unity, on the other.” (P. 680.) In other words, what “we” all know when we look at it is that Thind’s turban and beard signal his “difference” while his uniform signals his assimilation, and what Munshi argues is that this tension is crucial to what we imagine as an inclusive multiculturalism: “Thind can only project racial inclusiveness by first appearing to us as raced.” (P. 681.)

Along with all of the above—a compelling story, a memorable historical figure, rich primary sources, a fascinating series of legal developments, a useful theoretical framing—Munshi writes with sensitivity and empathy, such as when she observes that an account published by Ghadiali recounting his own denaturalization trial “expresses an anguish and alienation that was widely experienced by minorities in the United States but barely understood by the larger national community.” (P. 669.) The nature of law, the instability of boundaries, the relationship among persons, place, and the state—all of this, yes, and also, the things that make us want to cry: Munshi wants us to think hard about it all.

Cite as: Christina Duffy Ponsa, Worth More Than a Thousand Words, JOTWELL (November 22, 2016) (reviewing Sherally Munshi, “You Will See My Family Became So American”: Toward a Minor Comparativism, 63 Am. J. Comp. L. 655 (2015), available at SSRN),

Minding American Law

Every law student worth her salt has read, or at least heard of, Oliver Wendell Holmes and The Common Law.1 His formulation of the reasonable man (or, as we call it now, reasonable person) standard structures the foundation of the law school curriculum. Susanna Blumenthal’s Law and the Modern Mind sheds light on a curious figure lurking behind that reasonable man – the “default legal person,” a phrase of Blumenthal’s creation. The default legal person standard, the determination whether people were mentally competent and thus legally responsible, “stood at the borderline of legal capacity, identifying those who were properly exempted from the rules of law that were applicable to everyone else.” (P. 12.) This quirky character “effectively delimited the universe of capable individuals who could be made subject to the prescriptive authority of the reasonable man…. [He] was supposed to remain at the margins of the common law, standing for the presumption of sanity that, jurists expected, would be warranted in most cases.” (Id.) On the one side lay rationality and legal responsibility; on the other, madness and legal exoneration. It was up to jurists, with the aid of mental health doctors, to discern the difference between the two, and therein lies the project of Blumenthal’s book.

When scholars have examined the mind and the law, they have largely centered their investigations upon the criminal law and the lurid, sensational insane murderer. Blumenthal turns our attention instead to private law, where mental capacity suits were “a common occurrence.” (P. 10.) While these cases were less bloody than their criminal law counterparts, they nonetheless spilled over the pages of the press, created voluminous records, and tied judges in evidentiary knots.

Surveying an astounding number of private capacity suits, Blumenthal traces the life and times of the default legal person from the late eighteenth century to the beginning of the twentieth century. In an area where legal history scholarship tends to emphasize socioeconomics as the engine of change (P. 16), Blumenthal offers a marked intervention. She looks to religion and science in her exploration of the mind, arguing: “the oft-noted ‘concern for objectivity’ in this period had deeper spiritual roots and higher ideological stakes than previous scholars have recognized” (Id.).

The book begins with early republic lawyers, doctors, and other elites grappling with the repercussions of the potential freedom of the new United States and also a new prevailing philosophy of mind. The self-governing individual of Scottish Common Sense philosophy provided the model for the default legal person in American jurisprudence, with mental capacity determining legal liability. This optimistic ethos replaced Calvinism, which was ordered by divine intention of human behavior and innate human corruption. At the same time, doctors within the emerging field of medical jurisprudence pushed an increasingly capacious idea of mental disorder. These twin developments – that mental capacity is foundational to legal liability and that insanity encompassed a wide variety of behavior – spurred the legal confusion that subsequently occurred. Litigants and their lawyers took advantage of the voluminous medical jurisprudence to throw into doubt their mental competency, and thus their legal liability.

Part two of the book examines this legal and medical tangle from the vantage point of legal doctrines, from wills to torts. Blumenthal surveys thousands of cases, mostly involving propertied white men, and highlights the dilemmas that jurists faced when trying to create a unified theory of the default legal person. If jurists produced too broad a definition of legal incompetency, then legal responsibility went out the window. At the same time, though, jurists wanted to protect the truly incompetent from legal liability. Could the self-governing man also perform unreasonable actions? Ultimately, jurists had to answer “yes” in order to preserve a robust understanding of legal responsibility. The default legal person remained a hurdle, but a low one to clear.

By the 1870s, it was clear that the tangled jurisprudence of mental competency led to no clear standard of legal liability. The initial receptivity by judges to medical jurisprudence in the courtroom gave way to skepticism over contradictory and capacious treatises and alarm that the growing field of insanity would fundamentally undermine the very notion of legal responsibility. Ultimately, Blumenthal writes, “courts adopted frankly pragmatic models of legal personhood, drawing a distinctly legal definition of sanity and human agency.” (P. 142.) Strikingly, this forced them to conduct highly individualistic and fact-intensive investigations as a way to identify insane litigants. This insight is an important rejoinder to the scholarly consensus that at the end of the nineteenth century the law was moving towards more objective standards and bureaucratic proceedings.

Blumenthal’s insightful and groundbreaking work opens up considerable and exciting ground for further scholarship. It would be interesting to compare her account of the legal and medical jurisprudence on mental competency with more plebeian understandings of mental competency. How did ordinary witnesses in the cases she investigates, for instance, frame their accounts of litigant competency? How did newspaper accounts differ from elite formulations of insanity? Perhaps class is one of the main explanations for the legal/medical confusion. It might have been that when elites surveyed the American landscape, they worried about creating legal methods and describing medical means to contain what they saw as the out-of-control masses. Their accounts were necessarily voluminous as they tried to catalogue all of the different types of alarming behaviors they observed. When it came to a particular case, however, especially when it involved prosperous white men like themselves, jurists were perhaps less likely to deny the litigant his mental and legal freedom.

Blumenthal’s book also offers a great resource for scholars interested in exploring the issue of the mind from the angle of race and gender. For example, several of the cases in the will section of the book concern white men who were charged with insanity for bequeathing property to black women who were their illicit sexual partners. Their purported insanity therefore reflected denial of the social reality that white men had sexual relationships and children with black women, including black enslaved women. Fundamentally, jurists and doctors had to figure out how to delineate within the law a space for the quirky white man, one who made mistakes, surprised people, did silly things – in short, acted like an actual person. This space of mental freedom, however, was for a privileged group. White women and people of color were bracketed out of this mental landscape and classified as mentally incompetent according to treatise literature. Their mental and legal subordination stands in sharp contrast to the default legal person, who ostensibly supplied a common legal standard.

Overall, Blumenthal’s book is crucial reading across numerous fields, such as the history of psychiatry, nineteenth-century legal history, and the history of capitalism. For a book that covers over 100 years of legal and medical developments as well as thousands of cases, Law and the Modern Mind is a strikingly brisk and engaging read. Blumenthal’s default legal person will take its place in the legal lexicon next to the reasonable person.

  1. Oliver Wendell Holmes, The Common Law (1881). []
Cite as: Rabia Belt, Minding American Law, JOTWELL (November 3, 2016) (reviewing Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016)),