Yearly Archives: 2017
Jun 29, 2017 Serena Mayeri
Law is simultaneously at the center and the periphery of Premilla Nadasen’s engaging study of the domestic workers’ movement of the 1960s and 1970s. The absence of regulation made the household a largely lawless space in which the shadow of the law—and of the civil rights movement—nevertheless loomed large. Though not primarily a legal history, Household Workers Unite highlights how the law’s limitations can foster collective action in sometimes surprising ways. Beyond the reach of New Deal legislation and of labor and employment regulation generally, the African American women who dominated the ranks of household laborers for much of the twentieth century campaigned not only for legal rights but for material and dignitary benefits beyond the law, pioneering new organizing strategies that paved the way for the twenty-first century labor movement.
The power of storytelling is central both to Nadasen’s book and to the legal and extralegal activism of the women she profiles therein. In spare, accessible prose, Nadasen introduces little-known characters who made history: Dorothy Bolden, a civil rights and economic justice activist who used city bus lines as an organizing site; Geraldine Roberts of Cleveland, Ohio, whose functional illiteracy did not stop her from launching one of the first domestic workers’ organizations; Josephine Hulett, a household worker in Youngstown, Ohio who mediated between local workers’ rights groups and the National Committee on Household Employment (NCHE); Edith Barksdale Sloan, the granddaughter of a domestic workers who became a lawyer and activist who facilitated the formation of the first national organization of household workers; Carolyn Reed, who used money earned from her household labor to gain financial and emotional independence from a loveless adoptive family and later became a national organizer and head of the NCHE. Better-known figures such as civil rights icon Rosa Parks, Women’s Bureau head Esther Peterson, National Council for Negro Women leader Dorothy Height, and Representative Shirley Chisholm also make appearances, but it is household workers themselves whose stories rightfully dominate this thoughtful, often riveting narrative.
The long civil rights struggle spurred many domestic workers from private indignation to public action—action that Nadasen persuasively argues should place them not in the shadows but at the forefront of labor and social movement history. Accounts of Depression-era “slave markets,” in which housewives selected domestic workers as casual day laborers resonated with African American women who began to see their own struggles not as isolated instances of unfairness but as part of an intergenerational pattern of injustice. Local organizing in cities throughout the country followed, often deeply connected to racial and economic justice movements.
Domestic worker organizing had historical antecedents, but it accelerated at midcentury, when a perceived convergence of interests between middle-class and professional (white) women, on the one hand, and domestic workers, mostly women of color, on the other, prompted professionalization initiatives to provide training, combat stigma, and improve working conditions. Labor feminists hoped these efforts would counter the casualization and de-skilling of household labor brought about by technological and social change while assuaging the domestic labor shortage that attended married white women’s increasing labor force participation. The work of national organizations such as the NCHE also dovetailed with the anti-welfare discourse that emerged as public assistance increasingly became associated with single black mothers rather than the “deserving” white widows and deserted wives who dominated early twentieth-century images of mothers’ aid programs. Nadasen identifies the late 1960s as a new departure for domestic worker activism at the national level, as Edith Barksdale Sloan took the helm at NCHE and household workers themselves increasingly assumed a leadership role in defining the organization’s goals and strategies. This shift toward grassroots organization and self-determination reflected a broader political ethos of community empowerment that enjoyed a brief ascendancy during the War on Poverty.
Nadasen explores the fraught relationships between employers and employees in the home and the intimate nature and location of work in a domain usually considered intensely private and proprietary. While workers’ stories of unjust treatment rightfully predominated in the rhetorical arsenal of household labor activists, accounts of “good” employers served to underscore that domestic work was not an inherently oppressive occupation: it was possible to create working conditions and relationships based in mutual respect and fair remuneration. Employers’ stories conveying the depth of their appreciation for the difficult and valuable work of caring for loved ones and maintaining a home could further workers’ efforts to bolster the dignity and honor of their profession. But at the same time, Nadasen notes, these tales of devotion above and beyond the call of duty reinforced employer values of loyalty and self-sacrifice at the expense of the health and well-being of household workers and their own families. As Nadasen writes, “even though household workers expressed love of their labor, they did not see their work as a labor of love.” (P. 88.) As household worker and activist Carolyn Reed said, “I don’t need a family. I only want a job.” (P. 89.)
The home as workplace reinscribed racial and class boundaries, contributed to the degradation of domestic labor and the commodification of domestic workers’ bodies, character, and emotional labor. Nadasen’s account recalls Dorothy Roberts’ classic analysis of “spiritual and menial housework,” in which white women’s maternal labor is valorized as intimate and nurturing, while the carework of women of color is demoted to the status of manual labor. She draws explicitly upon the work of Darlene Clark Hine on African American women’s “culture of dissemblance” to understand how household workers often presented a congenial and open countenance to mask their closely guarded private thoughts and selves. At the same time, Nadasen notes that “[t]he personal relationship that made this job so capricious and unpredictable could also be a source of power for domestic workers.” (P. 109.) Protagonists’ stories include small but satisfying moments of resistance: “accidentally” spilling a tray of hot food on a disrespectful dinner guest; telling an abusive employer off; quitting without notice.
The challenges facing domestic labor organizing were manifold and profound: chief among them, isolation in homes where household workers were often their employers’ sole employees; the lack of a regular labor market or a structure for collective bargaining; and, of course, the exemption of domestic workers from legal protections and benefits, such as minimum wage laws, workers’ compensation, the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA). Employers could insist that workers perform duties outside their original job description and work inhumanely long hours for no additional compensation and if they refused, fire them with impunity. Wage theft, dangerous and exploitative working and living conditions, undercompensation, and emotional abuse were more difficult to combat under conditions of isolation and extreme power imbalances.
Distrustful of traditional unions with their frequent disregard for marginalized workers generally and women and men of color in particular, household workers pursued looser and more democratic organizing styles. Lacking a centralized workplace, they often organized in public spaces. Organizing strategies included not only collective action and mobilization but also empowering individual workers to engage in one-on-one negotiations with their employers, sometimes with the help of mediators. They also engaged in law reform advocacy, accelerating in the 1970s with a “strategic alliance” between predominantly white middle-class feminists and household labor activists who campaigned to amend FLSA to extend minimum wage protections to private household workers. Thanks in large part to earlier feminist labor activism, by the 1970s household employees were among the few categories of workers excluded from minimum wage protections. To claim protection from labor laws and fight for access to the “fringe benefits” many American workers took for granted was a powerful statement of social and economic citizenship. Congressional opponents raised the specter of “the federal bureaucracy” invading “the kitchen of the American housewife,” but Nadasen contends that a deeper fear motivated their resistance to the regulation of domestic employment—the fear that combating the devaluation of household labor would denaturalize the gendered division of family labor itself. As Secretary of Labor Peter Brennan pithily put it, recognizing the value of household labor would “open the door to a lot of trouble. Your wife will want to get paid.” (P. 132.)
Once again, the household workers’ movement effectively capitalized on the convergence of interests between feminists primarily interested in expanding opportunities for women outside the home and household workers themselves. Not only did professional and middle-class working mothers depend upon household labor, some came to understand its devaluation as affecting most or all women across class and racial lines. Nadasen rightfully emphasizes the limitations of this alliance: for one thing, many middle- and upper-class feminists prioritized equal employment opportunity, and antidiscrimination laws did little to alleviate racial and economic inequality. For another, household workers’ movements had more in common with welfare and economic rights movements in their ideological and experiential roots.
Notwithstanding the penultimate chapter’s focus on the legislative battle over FLSA extension, what is perhaps more striking about the role of law in Nadasen’s narrative is its absence. And even when domestic workers succeeded in winning inclusion in FLSA protections, the law had a “mixed legacy,” stemming in part from the failure to create an effective enforcement apparatus to make real the “abstract construct of individual equality.” Nadasen makes clear that while rights were important to domestic workers, they were more a means to the end of building “a profession that is respected and pays adequately,” in the words of worker-activist Josephine Hulett. (P. 145-46.)
Further, by the 1970s many domestic workers were leaving private household employment and turning instead to agency-mediated home health-care work—which was exempt from the FLSA amendments. So too was live-in employment, increasingly the province of immigrants. Nadasen’s final chapter addresses the status of immigrants in the overwhelmingly African American household workers’ movement. The immigration reforms of 1965 both increased migration from previously restricted countries in Asia and Africa and tightened controls at the Mexican border; migration from the Caribbean and from Puerto Rico also increased during this period. Although activists worried that an influx of immigrants and migrants would further degrade wages and working conditions, Nadasen notes that domestic workers’ organizations did not resort to the xenophobia that elsewhere fueled calls for the deportation of undocumented immigrants. Leaders’ efforts to reach out to immigrant workers enjoyed limited success, but Nadasen suggests that they were both symbolically important and reflective of the movement’s inclusive conception of labor rights. Moreover, domestic workers joined a larger campaign to organize low-wage workers, offering a critical perspective on feminist activism that often minimized or overlooked the concerns of low-income women at the margins of the labor force.
From the vantage point of the twenty-first century, the world described in Household Workers Unite is largely familiar—for better and for worse. Familiar in the relative lawlessness of the home as a workplace, despite some significant advances at the local state and federal levels. Familiar in the complicated relationships between employers and employees in the sphere of intimate labor. And, unfortunately, all too familiar in the stories of degradation, exploitation, and abuse that continue to characterize the experiences of many marginalized workers.
Also familiar is the courageous activism of domestic workers who continue to organize and to forge uneasy but sometimes powerful alliances with employers and with feminist organizations. As Nadasen suggests, the organizing model pioneered by African American domestic workers in the 1960s and 1970s informed the larger labor movement in subsequent decades. And, increasingly, domestic workers’ organizations have begun to win significant victories—promoting a Domestic Workers’ Bill of Rights, promulgating model employment contracts, passing legislation to protect household employees at the state and local level, and encouraging the prosecution of some of the most egregious abuses.
The most striking shift, already underway in the 1970s, is the emergence of the transnational market that now characterizes domestic work and the predominance of immigrants among household employees, especially in major population centers. Now the lawlessness that enabled exploitation with impunity stems in part from exemptions from legal protections and in part from the precarious immigration status of many domestic workers. Today, undocumented workers and noncitizens suffer from a vulnerability which exacerbates preexisting power imbalances and renders the isolation of domestic employment all the more dangerous and terrifying.
May 31, 2017 Reuel Schiller
Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.
Yet Klarman manages to give us a story that demands reading despite its familiarity. There are three reasons why The Framers’ Coup succeeds despite covering a subject that doesn’t lack for historical attention. First, the narrative he relates is both exhaustive and sparkling. It is encyclopedic without being an encyclopedia. The story moves along briskly because Klarman’s prose is simple and propulsive. Yet any fact that a reader would like to know about the framing and ratification of the Constitution is in here. We get the comforting reassurance of hearing well-told versions of stories we already know, such as the famous large state-small state compromise over representation in Congress. But Klarman also highlights the importance of issues that have slipped out of the traditional narrative. Only an expert in eighteenth-century political history would know of the profound effect that John Jay’s failed yearlong negotiations with the Spanish over navigation rights on the Mississippi had on the deliberations at the Philadelphia and subsequent ratifying conventions. (Klarman convincingly argues that Jay’s attempt to bargain away these rights in exchange for a favorable commercial treaty with Spain did more to engender southern fears about a powerful, northern-dominated federal government than any other issue, slavery included.)
The narrative is also replete with lesser-known tales of political skullduggery: the Pennsylvania legislature’s decision not to pay the state’s delegates to the convention, thereby decreasing the likelihood that less elite delegates would attend; and Patrick Henry’s ultimately unsuccessful attempt to gerrymander James Madison out of the first Congress. The existence of these and many other examples of “bare knuckled” political tactics (P. 612) are central, as we shall see, to Klarman’s analytic framework for his story, but they also make for excellent reading.
The second thing that makes The Framers’ Coup such a pleasure to read is Klarman’s decision to emphasize the contingency of his narrative. This is most noticeable in his chapter on the ratifying conventions. Klarman shows that many of these contests, particularly in the largest states, were decided by slim margins. He makes clear that the entire process could have come out the other way for a variety of reasons, not the least of which was the Antifederalists’ tactical error of holding the New York and Virginia conventions after most of the other states had ratified the Constitution, thereby presenting these crucially important and closely divided conventions with what was essentially a fait accompli.
Other such contingencies abound. What if Washington had refused to attend the Constitutional Convention, thereby denying it his unquestioned legitimacy? (Klarman demonstrates that it took some real arm-twisting to get the General to go.) On the other hand, what if Patrick Henry had decided to go, thereby adding to the deliberations a politically savvy and exceptionally gifted orator who was opposed to the centralizing preferences of most delegates? (Klarman reports that the historical record is unclear as to why Henry refused to attend the convention despite the fact that the Virginia legislature appointed him.)
As for the actual substance of the Constitution, the complexity of the document, combined with time constraints and a focus on certain controversial subjects (particularly the nature of each state’s representation in Congress), meant that many parts of the proposed Constitution were sent to the ratifying conventions without much thought or debate. Thus, Klarman demonstrates that some of its most important provisions, such as how the president was selected, “seemed” to be the product of “an almost random solution.” (P. 599.) By highlighting all these contingencies – would more Antifederalist delegates have gone if there hadn’t been an outbreak of smallpox in Philadelphia that summer? – Klarman creates a narrative with many of the characteristics of an action movie. We know that our “hero” (the Constitution) will triumph in the end, but we are thrilled by each of the multitude of close escapes it makes.
Finally, The Framers’ Coup is an engaging read because of Klarman’s forthright and, I imagine, controversial interpretation of the events he recounts. It’s all there in his title. Klarman views the framing and ratification of the Constitution as a coup d’état. It was a political outcome, he repeatedly argues, that did not reflect the desires of the majority of Americans. Most people may have been frustrated with the Articles of Confederation, but the creation of a completely new governing document that dramatically increased the power of the federal government was not the solution most would have wanted. Instead, that outcome reflected the desires of the emergent national elites who were appalled by the redistributive, leveling actions of many state legislatures in the 1780s. It was adopted, not because of its popularity, but because of the political savvy of the Federalists, their willingness to use underhanded tactics, their domination of the national press, the gross malapportionment of many of the ratifying conventions, the tactical ineptitude of the Antifederalists, and, quite frankly, a dose of good luck.
This brief description of Klarman’s analytic framework risks portraying The Framer’s Coup as nothing more than recycled Charles Beard: a reassertion that the Constitution was a document proposed by mercantile elites to protect their depreciating securities. Yet, Klarman is much more subtle than this. First of all, his focus on the contingency would have no place in Beard’s reductionist account. Second, he catalogues a whole host of interests – political, economic, religious – that determined why any individual would support or oppose the proposed Constitution. Unlike Beard, Klarman’s primary point is not that the framing of the Constitution was designed to further the economic interests of a particular group of people. Instead, Klarman wishes to emphasize that the framing was a political act that was supported by people for a host of reasons. The main thing he impresses on his readers is not that some particular class benefited from the Constitution’s adoption, but that all the actors in the drama of framing and ratification were engaged in a political struggle rather than a philosophical one.
Thus, Klarman’s story of the framing is not one of brilliant political philosophers collaborating on a document to preserve their republican revolution. Instead, it is one of “ordinary politics” (p. 8) in which each side attempted to create a federal government that would further its mundane political interests. While the debates at the Constitutional Convention frequently became philosophical, Klarman suggests that these arguments changed no one’s mind. They were simply rationalizations for particularized interests. In Klarman’s decidedly unromantic view of the Framers’ political thought, ideas such as popular sovereignty or Federalist No. 10’s famous theory of factions were simply stalking horses for increasing the power of the federal government in order to prevent state-level public policies that the elites disliked. There is no doubt, Klarman tells us, that James Madison was a genius, but that genius was as much political as philosophical. Our graduate school debates about “liberalism versus republicanism,” or the importance of “civic virtue” are gone from the narrative of the framing. Instead, we are left with a story of politics and power.
It seems likely that The Framers’ Coup will engender a strong reaction. Slaying sacred cows can be a dangerous business. Klarman seeks to replace the often reflexive adulation that the Framers engender in our popular culture with a more realistic portrayal of their motives. He also takes aim at an academic literature that has often emphasized intellectual history and political thought at the expense of politics. Wherever one stands in these debates, however, it is impossible to imagine that The Framers’ Coup will not become an essential text for understanding the intent of the Framers and the history of the Constitution.
May 1, 2017 Angela Fernandez
Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by present-day legal scholars.
Herman Melville famously wrote in Moby-Dick that whalemen settled their disputes using “hard words and harder knocks – the Coke-Upon-Littleton of the fist” (Moby-Dick, Chapter 89). As Deal shows, however, little violence actually sprung up when the crews of two (or more) ships pursued a whale but only one took it.
Deal’s explanation is that captains had incentives to engage in negotiations in a gentlemanly manner. Ownership of a whale (or shares in its blubber, sperm, or bone) was a question for the captains to negotiate and, if they could not agree, the owners of the ships could decide to pursue arbitration or, in extremely rare cases, litigation. Litigation was unpopular because it was slow and expensive. These usual problems were exacerbated in an industry where witnesses would quickly be unavailable and onto their next voyage, Deal explains. Captains spoke often about personal ethics and “laws of honor.” Good relations between captains were imperative to survival on whaling voyages because one captain might well need to turn to another for assistance if his ship ran into trouble in ice or the high winds and waves of storms at sea.
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163.) Hence, Coke-Upon-Littleton, i.e. legal rules, were only a very small part of what was in operation.
It is certainly true that lawyers and judges tried to generate firm rules from the handful of whaling cases that did appear before them. However, when they did so, they were not apt to follow custom or care very much about what whalemen actually did. And so when they issued rules like “fast-fish, loose-fish” (the whale was yours as long and for only as long as you remained attached to it), as the British courts did in whaling cases coming from the Greenland fishery, they deliberately ignored the rival custom that was certainly alive in that industry of “iron-holds-the-whale” (the whale went to the first ship to affix an iron with its mark on it regardless of whether it remained attached). Or they did worse, misunderstanding or misapplying custom, as American courts did dealing with disputes that arose in the Sea of Okhotsk (as in the Massachusetts United States District Court cases Swift v. Gifford (1872) and Taber v. Jenny (1856), as Deal explains).
Deal’s principal argument in the book is that whalemen “largely ignored judicial pronouncements as to the customs of whaling and continued to operate in ways that made sense to them in their relentless quest to kill whales.” (P. 2.) And “Anglo-American courts failed to understand how whalemen settled disputes [because] lawyers and judges were never all that interested in or concerned about whaling practices.” (Id.) Hence, there was a fundamental disconnect between the two worlds, impossible to see in the few litigated cases, which give the impression that whalemen operated according to settled customs that the judges turned into (or refused to turn into) rules. However, the reality was much more complicated. The customs were much less settled, the judges did not seem to understand them or preferred to ignore them, and the rules the judges made were probably of little consequence to the whalemen.
What happened to whales under the pressure of this relentlessly extractive industry is a tragedy, although Deal argues it was not technically a “tragedy of the commons.” Why? Because it is unclear, at least before 1850, that it was understood to be possible to hunt whales to extinction. Hence, whalers were not taking from the commons knowing that it was hurting the collective resource but doing so anyway in order to further their own economic short-term interest. They could not then have been knowingly engaged in a race to the bottom, Deal argues, because the ocean was (conveniently) thought to be boundless, its bounties limitless, the whale mythical and hence indestructible. When it became increasingly difficult to find whales, they were thought to be retreating further and further away, (romantically) hiding like the great White Whale from Ahab, rather than disappearing. This might seem laughable and implausible to us sitting now where we do with our current ecological consciousness.
Deal explains at the end of the book how petroleum developed as an alternate fuel for lighting and machine oil lubrication, a move that, fortunately for them, saved the whales. This is an arresting historical irony given our current crisis and the very well-grounded fears we have about who or what technological innovation will save us from our relentlessly extractive pursuit of oil and gas given the turn towards tremendously environmentally destructive processes such as fracking.
This book is an excellent read. Given its exploration of the great gulf between law-on-the-ground and law-in-the-courts, it has the potential to become a classic law and society study. It is particularly useful for legal historians interested in the way that history complicates our understanding of economic self-interest. The whalemen were primarily motivated by economic self-interest, there is no question. Yet the tight-knit nature of their group and their hazardous physical surroundings made ethical conduct (at least towards one another if not the whales) essential. That conduct required a certain kind of flexibility that we fail to understand if we continue to insist, as judges and lawyers of the day did, on reducing the norms they followed to a legal rule or custom.
This was a point that Herman Melville probably well appreciated when he surely intentionally mashed together the law of “fast-fish, loose-fish” and the custom of “iron-holds-the-whale” in his famous Chapter 89 in Moby-Dick. He might well have been trying to make the point that Deal demonstrates through his historical research – namely, that this was not an industry governed by pure law or custom; it was both of these plus more, a mishmash of different norms and priorities. The ways that all of these forces interrelated were loosely grasped even by participants themselves. Hence, the order that famously prevailed in the industry (emphasized in Ellickson’s Order Without Law) was neither a consequence of law, Melville’s Coke-Upon-Littleton, nor a product of well-settled understandings. It was more fluid and complicated than either of these.
Cite as: Angela Fernandez,
“Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications, JOTWELL
(May 1, 2017) (reviewing Robert Deal,
The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (2016)),
https://legalhist.jotwell.com/coke-upon-littleton-of-the-fist-law-custom-and-complications/.
Mar 31, 2017 Mary Ziegler
Marie-Amélie George,
The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34
Law & Hist. Rev. 487 (2016), available at
SSRN.
Marie-Amélie George’s meticulously researched, provocative study of early gay-and-lesbian custody cases focuses on the power of social science research to reshape both the law and the larger society. George takes us inside the courtroom fights, landmark parenting studies, and conservative strategies that have defined debates about the meaning and origins of homosexuality. Using published opinions, rare trial records, oral histories, personal correspondence, and social-movement records, The Custody Crucible describes how social-science arguments made the difference to gay and lesbian parents seeking to prove that their sexual orientation in no way harmed their children.
But the relationship between scientific research and litigation that George excavates is complex. She convincingly argues that courtroom battles sparked new research about the impact of gay or lesbian parenting on the sexual orientation and gender identity of children. As importantly, the progress made by gay and lesbian parents helped set the agenda of conservative organizations intent on demonstrating that homosexual parents were often sexually abusive, impoverished, and unable to stop their children from becoming deviant. Nuanced and thoughtful, The Custody Crucible contributes to a rich literature on the relationship between cause-lawyering and social change. However, George breaks out of the framework often governing these studies, looking beyond the overall benefit a movement can expect from winning or losing in court. The Custody Crucible illuminates how litigation can help frame scientific questions that resonate well beyond the courtroom.
George begins with a comprehensive survey of available gay-and-lesbian custody cases decided between the 1970s and 1990s. Her research challenges the narrative of growing tolerance of homosexuality often told in histories of sexual orientation. Indeed, she suggests that regional and ideological differences among states played a definitive role for more than a decade. While acknowledging the limits of the remaining evidence, George compellingly argues that courts became more receptive to the demands of gay and lesbian parents only in certain places and only in response to an emerging body of scientific research on child development.
As George argues, the social-science research that would transform attitudes toward homosexuality developed partly in response to a shift in custody doctrine in state courts. Gradually abandoning the assumption that gay or lesbian parents were necessarily unfit, many jurisdictions in the 1970s began moving toward the so-called nexus approach, asking whether a child suffered any harm as a result of her parents’ sexual orientation. While interpretations of the new requirement varied widely, it opened the door to different scientific strategies. In particular, throughout the period George studies, courts remained preoccupied with the idea that children raised in a gay-friendly environment would become gay, lesbian, or transgender themselves. Under pressure because of this new approach, gay-rights organizations developed a roster of expert witnesses willing to testify that the children of gay and lesbian parents were no more likely to become homosexual than anyone else.
The nexus test also inspired scientific researchers convinced that they could put an end to the uncertainty surrounding gay-and-lesbian parenting. Legal issues—the best interests of the child and the prospect of harm to children—shaped the questions researchers asked and the length and timing of their studies. Scholars consistently maintained that having gay and lesbian parents made no difference to their children’s sexual development. As this body of work grew, many parents saw their chances in court improve substantially, particularly on the East and West Coasts.
However hopeful George’s story appears at first, the flourishing of social-science research on sexual orientation was not without its dark side. To begin with, some courts ignored the emerging work on sexual orientation, seeing custody as a matter of morals rather than social science. Even when courts legitimized pro-gay parenting studies, case law and research inadvertently reinforced the conclusion that homosexuality was the kind of harm that should be avoided at all costs.
Nor, as George shows, did the receptiveness of some courts cut short scientific battles about homosexuality and child-rearing. She recaptures the tactics of conservative researchers, legal academics, and lawyers who recommitted to preserving the status quo challenged by gay and lesbian parents. At first, conservatives worked primarily outside the courts, never fully immersing themselves in the custody cases that continued to unfold across the country. It was not until the 1990s that conservative groups meaningfully intervened in litigation, participating in co-parent cases that conservatives feared would undermine the traditional definition of the family. Nevertheless, George reveals the influence of anti-gay researchers like George Rekers, Paul Cameron, and Joseph Nicolosi on subsequent battles about the treatment of AIDS victims and the justification for discrimination against gays and lesbians across legal domains.
The Custody Crucible makes an important contribution to a growing tradition of legal and historical studies that focus not only on social movements’ reliance on law but also on the intersection between legal outcomes and scientific research. George’s piece sheds light on these issues at a time when they are becoming more politically and legally urgent. Scientific questions about the impact of global warming define national elections and legal disputes. In the aftermath of the Supreme Court’s last major abortion decision, research on everything from fetal pain to the risks of later abortions is becoming more common, well-funded, and legally crucial. The history that George preserves reminds us how much litigation may revolutionize these scientific debates and tells us that what is at stake may be neither as predictable nor as promising as we now believe.
Cite as: Mary Ziegler,
The Science of Sexuality, JOTWELL
(March 31, 2017) (reviewing Marie-Amélie George,
The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34
Law & Hist. Rev. 487 (2016), available at SSRN),
https://legalhist.jotwell.com/the-science-of-sexuality/.
Mar 6, 2017 Christopher W. Schmidt
In The Great Exception: The New Deal and the Limits of American Politics, Jefferson Cowie has written a slim, brisk work of historical synthesis in which he seeks to reframe how we understand twentieth-century American political history. In this essay, I describe Cowie’s insightful and provocative revisionist account of the New Deal and its place in American history. At the end of the essay, I consider some questions the book raises for legal historians.
Cowie’s target in The Great Exception is the idea that the New Deal was a definitive turning point in American political history. Most historical accounts describe the New Deal as the period when, after decades of struggle, liberals pushed back laissez-faire ideology, installed the American version of the social welfare state, and transformed the nation’s political culture along more egalitarian and pluralistic lines. Today liberals praise the New Deal, conservatives criticize it, but all sides generally agree it marked a significant and lasting shift in the relationship between the American people and their government.
According to Cowie, this interpretation exaggerates the achievements of the New Deal and underplays the durability of American conservatism. The New Deal, he argues, was “less the linear triumph of the welfare state than the product of very specific, and short-lived, historical circumstances.” (P. 9.) Rather than a turning point, the New Deal was an aberration. The nation’s most severe economic crisis arrived at just the moment when social and political developments lowered barriers that had stood in the way of large-scale social welfare reform. Out of this this brief window of historical fortuity came the New Deal, a “burst of economic experimentation” (P. 227) aimed toward empowering working-class people.
Cowie dedicates much of his book to examining the “historic fault lines of American political culture” (P. 7) that the New Dealers had to overcome, which he identifies as ideological commitments to individualism and anti-statism along with religious, racial, and ethnic identity. Together, these fault lines functioned as barriers to the kind of broad, working-class coalitions that might lead to national-level redistributive social welfare policies. Only when these “core themes” of American history “underwent an incomplete suspension, a mitigation” (P. 13) between the 1930s and the 1960s could a different sort of politics reign, Cowie argues. Immigration restriction in the 1920s lessened ethnic divisions; a secularist trend in the first half of the twentieth century reduced religion’s divisive role in public life; generations of reform agitation and labor organizing combined with the demands brought about by economic disaster to loosen the allure of individualism and anti-statism.
These trends could not last. The fall of the New Deal order and the ascendance of the New Right in the 1970s and 1980s, according to Cowie, was a reestablishment of the American political norm. It was “a return to a sharply more conservative, individualistic reading of constitutional rights and liberties; a return to economic policies in which the state looks after the corporation; and a return to a working class fragmented by race, religion, immigration, and culture.” Ronald Reagan’s conservative “restoration” was “axiomatic,” even “inevitable.” (P. 29.)
Cowie’s argument about America’s ideological baseline provides the foundation for his second major claim: that the New Deal, while a dramatic rupture of American political tradition, was compromised and qualified from inception. The political alliances on which it was built were “truncated,” “brittle,” “precarious.” Federal recognition of collective economic rights, which Cowie identifies as the New Deal’s signature innovation, was always an “experiment,” and an “unstable” one at that. Indeed, according to Cowie, the policymaking innovations began and ended during just “a few charmed years” (P. 89) in the late 1930s. For most of the roughly four-decade period of the New Deal order, New Deal liberals struggled to maintain fracturing alliances and defend past achievements.
In the book’s conclusion, Cowie explains how his revisionist history illuminates our current political situation. An appreciation of the durable conservatism of U.S. political culture and the exceptional nature of the New Deal should give pause to those on the left who call for a new New Deal today, he argues. The “freewheeling historical analogies based on an extraordinarily unique period in American history” that New Deal revivalists rely on amount to little more than “chasing ghosts.” (P. 229.) If liberals are searching American history for inspiration, perhaps, Cowie suggests, they should turn to the Progressive Era. Unlike the New Deal, and like today, this was a period when liberal reformers squarely faced the obstacles of American conservatism. They pioneered diffuse and localized reform efforts, and they found ways to channel dominant conservative tendencies for their own causes. Something along these lines, Cowie concludes, might better capture the best hope for progressive politics today. The election of Donald Trump only further reinforces Cowie’s portrait of post-New-Deal American politics, as well as his strategic recommendations for today’s liberals.
For anyone who has followed recent trends in the study of American political history, none of the component parts of The Great Exception’s arguments will seem particularly new. Liberal critiques of the limits of New Deal policy are as old as the New Deal itself. A recent generation of historians has been urging a greater appreciation for the conservative forces of American history. Others have suggested the Progressives as a useful historical analogue for today’s progressives. Cowie fully recognizes his intellectual debts, filling his pages with appreciative references to the work of other historians. Yet even if one knows all the parts of the story, Cowie’s achievement is to piece them together in a way that feels fresh and urgent. The value of Cowie’s book is in his ability to synthesize the work of other historians in order to advance a sharp, provocative assessment of its larger significance. Cowie makes big, bold claims without abandoning the nuances and texture of the historical record. The result is a book that is challenging and rewarding.
The Great Exception made me wonder whether American constitutional history (a topic Cowie touches on only lightly) is ripe for an analogous synthetic revisionist account. We seem to be trending in a similar direction, with a number of books and articles questioning the durability and significance of the Warren Court, the New-Deal-like moment of modern American constitutional history. As the Warren Court recedes further into history, its version of legal liberalism seems more and more aberrant in the grand scheme of American constitutional history. The ideal of the Supreme Court’s using the Constitution as the bulwark of protection for the disempowered has faded in recent decades. Although some liberals continue to hope for the return of a Warren Court, the center of gravity for today’s legal liberalism revolves around a more chastened vision of the courts and the Constitution, one that celebrates the occasional breakthrough, while centering most of its energies on protecting precedents and blocking judicial challenges to existing policy.
Today, conservatives are the ones with the more ambitious visions for the courts. Whereas recent liberal judicial victories, such as the Supreme Court’s 2015 gay marriage decision, have tended to reaffirm and solidify larger policy shifts, conservative judicial victories—in areas such as gun rights, campaign finance, and religious freedom—have reshaped political debate. Just as liberal political commentators warn that conservative economic policy has brought a “New Gilded Age,” liberal legal commentators accuse the Court in recent years of returning to the constitutional libertarianism of the Lochner Era.
Perhaps a next turn in constitutional history will be to consolidate the past generation of revisionist scholarship into Cowie-style synthetic narratives that urge us to rethink what we treat as baselines of constitutional history and what we treat as exceptions. Such an analysis would highlight the long-term historical factors that have supported and encouraged judicial conservatism, some of which would track Cowie’s factors, some of which would focus on the distinctive world of lawyers and courts. It would also revisit the Warren Court era, offering new explanations of how this exceptional period in constitutional history took shape, what it accomplished, and the reasons legal liberalism ultimately proved so fragile. For liberals, a constitutional history in which the Court of Earl Warren is the great exception and the Courts of William Taft and John Roberts are the baselines may be, as Cowie describes his revisionist political history, an “American tragedy.” (P. 32.) But it may also offer what Cowie hopefully describes as “a more thorough and realistic understanding of our recent past in the hope that it can provide a more stable intellectual foundation for discussions of past and future politics” (P. 228)—and, one might add, the past and future of constitutional law.
