Yearly Archives: 2017
Feb 6, 2017 K. Sabeel Rahman
As a field, legal history has long been centrally concerned with the patterns and trajectories of American political development and state formation. In his recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, 2015), Gary Gerstle offers a compact and highly readable synthesis of the long arc of the battles over the idea of a strong and central American state, from the constitutional founding through recent clashes between the Obama administration and the Tea Party. Gerstle and his work are of course well-known in the field. In this new book, he offers a cautionary narrative about this long process of state formation, and how it has set in place pathologies that fuel recurring crises of governance and legitimacy.
The central premise of the book is that there is a fundamental tension baked into the legal and constitutional structure of American government: the congenital unease with a powerful state on the one hand (“liberty”) and the starting premise of unchecked “police power” on the part of state governments (“coercion”) on the other. A powerful federal state was, in theory, at odds with both of these principles, endowed with specific enumerated powers in the Constitution rather than general police powers, and restrained by both constitutional and normative commitments to individual liberty. Law and the Supreme Court play a central role in Gerstle’s narrative, as the source of the original constraints on expansive federal power—and thus the key arena in which statebuilders had to innovate forms of modern, centralized governance that could navigate these tensions between liberty and coercion. In Gerstle’s account, the federal government gained its modern powers only in response to a trio of crises that prompted shifts in the basic structure of governance: the Great Depression, the “total war” mobilization of World War II, and the civil rights movement. As a result, the federal government suddenly found itself possessing a degree of fiscal and legal authority previously unknown in the early republic.
By taking as a starting point both of these premises of the early American republic, Gerstle usefully reframes the narrative of American state formation away from an older tradition of focusing on the battles between libertarian and centralizing tendencies. Instead he presents the problem of American governance not as one over whether there should be strong governmental presence, but rather in what form. In this, Gerstle calls out to and builds on many of the advances in legal history over recent decades, highlighting the expansive role of state police power, and the ways in which federal and private actors engaged in state-like governance functions throughout the republic. For Gerstle, the American state is not weak per se—it develops genuinely powerful capacities—but it does so in ways that generate chronic problems of capture (the undue influence of special interest groups), and related problems of governmental unaccountability and illegitimacy.
Indeed, where Gerstle’s account offers its most helpful contribution is in developing a framework and critique of the strategies employed by statebuilders to overcome the constitutional compromises of the founding. For Gerstle, the emergence of centralized federal power is a product of “improvisation rather than transformation.” (P. 5.) Gerstle defines three distinct improvisational strategies by which statebuilders expanded federal power, despite the limits of constitutional authority and normative hostility: exemptions, where the Supreme Court creates carve-outs for expanded federal power outside of the bounds of ordinary Constitutional limits, such as in cases of emergency, rebellion, and, increasingly, foreign policy; surrogacy, where the Court extends a de facto federal police power through other routes such as an expanded Commerce Clause power from the New Deal onwards; and finally privatization, where the powers of the federal state are magnified and implemented through improvised public-private partnerships, from deputizing corporations and businesses in providing safety-net protections to co-regulation, to public-private utilities.
These three strategies comprise the common thread throughout Gerstle’s narrative. Thus, conventionally “state-like” functions are in Gerstle’s account structured through a tradition of “reliance on private citizens to do public work,” from militia to voluntary organizations. (P. 122.) Even in the New Deal expansion of federal power under the pressures of the Depression and World War II, Gerstle highlights these strategies in play. After decades of mobilization and activism, farmers found a willing partner in the Agricultural Adjustment Act (AAA), which creates a vast regulatory and safety-net apparatus, but continues to take shortcuts such as privatizing benefits by making them contingent on full-time employment. Similar improvisational compromises shaped the rise of the twentieth-century labor regime as labor leaders like Samuel Gompers stressed “private regulation” through collective bargaining. (P. 221.) These compromises were necessary to overcome the historical distrust of federal power, and to respond to ongoing social conflict over the substantive goals of state action–whether over issues of racial integration or worker empowerment. But the irony of these strategies of state formation for Gerstle is that they seeded the very crises of legitimacy that now cripple twenty-first-century American governance. Meanwhile, the exemption of many war-related functions from constitutional limits has helped enable the rapid growth of the surveillance and security state. (P. 278.)
This sense that statebuilders paid a dangerous price is most vividly illustrated by Gerstle’s recurring critiques of the political system. For Gerstle, the original sin of American public administration is that it was a product of these improvisational state-building strategies of exemption, surrogacy, and privatization. Political parties, for example, became the critical connective tissue of government across federal, state, and local levels, a necessary kind of political infrastructure and an “arm of public administration” needed to overcome the decentralized and coalitional nature of American politics, yet they remain private organizations, perpetually embedded in networks of donors, funders, and private interests. (P. 154.) Captured civil service is similar: though the civil service did grow and bureaucratize, it remained a relatively low-capacity system, dependent on private collaboration and support to execute governmental imperatives. (P. 176.)
These compromises laid the groundwork for the modern American state’s multiple crises of legitimacy. Throughout Gerstle’s historical narrative, he correctly presents racism as a central driver of opposition to attempts to expand federal power. But Gerstle seems to suggest that the aspiration to construct and defend white supremacy and racial segregation—whether formal or informal—dovetailed with more practical and legal resistance to these strategies for statebuilding. Exemption, surrogacy, and privatization were “not sufficient to bestow on the federal government constitutional authority commensurate with its expanded power.” (P. 8.) The problem was not just one of legal authority, but rather a deeper problem of legitimacy. As Gerstle explains:
Improvisation was a source of weakness as well as strength. The government’s heavy reliance on privatization made its agencies chronically susceptible to the influence of private and frequently monied interests. … Meanwhile, the excessive use of exemption eroded the liberal basis of the republic by sparing large swaths of government from constitutional scrutiny. And too great a use of surrogacy made the central government vulnerable to the charge of indirection.
(P. 346-47.)
These very real concerns about capture, accountability, and legitimacy stem directly from the use of strategies of exemption, surrogacy, and privatization. But the use of these strategies also provided a fertile substrate for ongoing racialized attacks on the use of state power to promote racial integration and equality. Thus by the 1970s, “three distinct grounds of opposition to a large, centralized state— pragmatic, racial, and libertarian— coalesced” to form the modern conservative movement. (P. 318.)
So what then are twenty-first-century statebuilders to do? Gerstle closes his book by calling for a frontal engagement with the Constitution itself. Constitutional text—and more importantly, public constitutional discourse—must openly embrace the modern demands of government rather than grounding the functions of a modern state on the stop-gap strategies of exemption, surrogacy, and privatization. Constitutional amendments would be ideal, Gerstle suggests, but even if amendments do not come to pass, engaging head-on in a public argument for a more expansive understanding of constitutional powers and purposes will create greater discursive space for law, policy, and politics. (P. 351.)
This call for a richer constitutional discourse will resonate with similar appeals from constitutional law scholars responding to the politics and inequities of the Great Recession era. Gerstle’s narrative raises (but does not directly resolve) a number of tensions in understanding the challenges of statebuilding: the role of movements, ideas, and policy innovators to expand state power on the one hand, and legal restraint in the form of Constitutional text, doctrine, and discourse as understood by the Supreme Court on the other; the tension and fusion among racial, libertarian, and pragmatic critiques of statebuilding strategies; the at times ambiguous relationship between aspirations to greater federal power and values of democracy, inclusion, and economic or social justice. These are the very tensions that animate the policy battles of today’s Great Recession. Today’s reformers, advocates, and policymakers are in the process improvising new modes of governance and statebuilding. Whether they will repeat, or remedy, the dynamics described by Gerstle remains to be seen.
Jan 16, 2017 Anders Walker
In The Jim Crow Routine, historian Stephen Berrey brings fresh eyes to the intricate set of legal rules that maintained racial segregation in the American South. Building on works like Leon Litwack’s Trouble in Mind: Black Southerners in the Age of Jim Crow and Neil R. McMillen’s Dark Journey: Black Mississippians in the Age of Jim Crow, Berrey focuses not on the rise or demise of Jim Crow so much as the manner in which it disciplined daily life. For average folks, argues Berrey, Jim Crow turned the South into a stage where whites and blacks learned to negotiate one another’s presence on the street, in stores, at the post office, and at work – according to elaborate, albeit unwritten, scripts.
Taking Mississippi as a point of focus, Berrey demonstrates that Jim Crow involved a complex set of scripted “exchange[s]” between whites and blacks that were at once “subtle and dynamic, intimate and volatile,” exchanges that in a sense formed a customary law of interaction independent of legislatures and courts. (P. 4.) Closely linked to this were strategies of resistance that African Americans developed to avoid white recriminations, as well as strategies that whites developed to enhance, or modernize, the legal challenges of racial control. Such modernizations exploded dramatically following the Supreme Court’s decision in Brown v. Board of Education in 1954, as southern states moved quickly to erase overt racial classifications from their law, meanwhile imposing new, more subtle forms of surveillance rooted in the rubrics of maintaining the peace, protecting property, and preventing crime.
At least one startling observation emerges from Berrey’s study. First, as much as southern law worked to achieve racial separation, whites and blacks in the Deep South interacted and existed in a near constant state of racial togetherness, working, playing, shopping, fishing, and even eating in close proximity to one another, often to the point that racial segregation was adhered to only in the flimsiest, most ad hoc fashion. For example, Berrey presents us with stories of whites and blacks attending the same functions divided only by a row of stools (P. 19), attending the same theaters separated only by a rope (P. 25), eating together in fishing boats separated only by a casually placed stick (P. 24), and sitting in the same rows in courthouses with only one extra space between them (P. 27). Such divisions, which hardly kept the races apart, were further compromised by outright concessions that allowed for black servants to join their employers on train cars and trolleys and even live in their homes.
As Berrey puts it, “even within a segregated system, African Americans and whites regularly interacted in public spaces such as bars and on buses and in the private spaces of the home.” (P. 22.) Precisely because such interactions were ubiquitous, argues Berrey, Jim Crow frequently manifested itself less as a legal system of physical separation than an implicit script of social performance, a customary law that required blacks not to avoid contact with whites, which was impossible, but rather to pay them deference. To take just a few examples, blacks were expected to remove their hats when meeting whites in the street, to make way for whites in line at the post office, and to refrain from calling whites by their first names. (P. 31.)
This is important. In his recent book Bind Us Apart: How Enlightened Americans Invented Racial Segregation, Nicholas Guyatt argues that the origins of Jim Crow lay in antebellum debates about colonization, i.e., the idea that African Americans should be transported back to Africa upon emancipation, lest the races engage in “amalgamation.” Berrey suggests the opposite, namely that segregation had less to do with separating the races than keeping them together, a point that calls to mind the distinction between segregation and exclusion first articulated by historian Howard Rabinowitz. Rabinowitz maintained that colonization was a form of exclusion that needed to be distinguished from segregation, which actually allowed significant amounts of interracial contact.
Berrey takes Rabinowitz’s thesis in new directions, suggesting that segregation was really more about performances of deference than separation, and that the laws of Jim Crow were themselves designed to remind blacks not of their isolation from whites, but rather their subordination to them. Berrey locates the origins of segregation not in calls to exclude blacks from southern society, but rather in efforts to counter black demands for equality following the Civil War. Citing historian Leon Litwack, Berrey notes that post-bellum white southerners became concerned that emancipated blacks were “less-deferential” than their enslaved ancestors, even to the point of becoming “aggressive” about their right to be considered “social equals.” (P. 21.)
Closely related to this was a fear that newly emancipated blacks might try to blur racial boundaries, either by engaging in intimate relations with whites or passing (a practice by which light-skinned African Americans held themselves out as white). (P. 21.) Here, Berrey provides us with an alternate hypothesis to explain how southerners dealt with questions of amalgamation, or interracial sex. While Guyatt argues that the favored solution was colonization, Berrey suggests that it was segregation, a system that barred interracial liaisons and maintained racial “difference” precisely because it demanded racial deference. (P. 21.)
The second half of The Jim Crow Routine focuses on the transition from Jim Crow to what came after, the legal system that we currently have in place today. According to Berrey, pressure from black activists, the federal government, and the national media intensified so much during the civil rights era that white southerners abandoned the formal law of segregation and the elaborate unwritten scripts that went along with it, moving instead toward more subtle forms of control, most revolving around prisons and police. In a revealing passage, for example, Berrey provides evidence that the Mississippi Sovereignty Commission deliberately and surreptitiously tracked civil rights activists in the state, often harrying them with arrests for minor quality-of-life offenses, traffic violations, and so on – not violations of Jim Crow law.
This is a significant find, foreshadowing a move to the very type of colorblindness that Michelle Alexander has argued characterizes the “New Jim Crow,” a system of racial repression that relies on the biased enforcement of ostensibly neutral criminal laws. And, while Alexander argues that the New Jim Crow began during the War on Drugs in the 1980s, Berrey provides evidence that it actually emerged earlier, in the 1960s.
However, Berrey misses an opportunity to take his rich understanding of Jim Crow and bring it to bear on Alexander’s argument about legacies. For example, Berrey’s attention to codes of social performance forged in the Jim Crow South provides new perspective on how those codes may have evolved during the 1950s and 60s, and travelled to the urban North. According to conservative social theorist Thomas Sowell, for example, southern blacks learned violent codes of honor from southern whites, and took those codes with them as they migrated out of the South during and after World War II. These codes, which sociologist Elijah Anderson has termed “codes of the street” were arguably descendants of the Jim Crow routine, unwritten rules that demanded a certain deference, or respect, that, if not met, invited violence. According to criminologist Barry Latzer, such codes of violence, forged in the American South, help explain spikes in urban violence following southern migrations to the urban North in the 1960s, and continue to plague urban communities even today, a point Latzer raises in his new book, The Rise and Fall of Violent Crime in America.
Berrey’s take on Latzer, Anderson, and Sowell would be of interest, not least because their discussions of unwritten codes of honor, forged in the South, seem to dovetail with Berrey’s formulation of the Jim Crow routine, suggesting that the extreme violence that characterized southern white society came gradually to influence southern black society as well. As it stands, however, The Jim Crow Routine remains important for what it tells us about the intersection of customary law and legal codes in the post-bellum, pre-Brown South. If Berrey is right, then the written law of Jim Crow may not have been as important as previously thought, an elaborate artifice, to be sure, but not as critical to the ordering of southern life as unwritten norms, or what Berrey terms the “Jim Crow routine.”
Jan 4, 2017 Deborah Dinner
The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.
Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910. Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government.
Male attorneys began to assert control over the provision of legal services to the poor with the first national conference on legal aid in 1911. Batlan shows how these attorneys endeavored to professionalize legal aid, narrowing its scope in the process. The types of claims changed. As the male breadwinner became the archetypical client, legal aid services began increasingly to exclude women whose claims regarding spousal abuse or mothers’ custody were perceived to disrupt the family. In addition, the nature of the lawyer-client relationship changed. Female lay lawyers had approached the lawyer-client relationship holistically, offering sympathy and a range of social and financial supports along with legal guidance. Male legal aid attorneys eschewed emotion in favor of objectivity and restricted their practice to technical legal services. The masculinization and professionalization of legal aid accelerated through the 1920s, until federal funding opportunities during the Depression encouraged legal aid organizations to once again conceptualize themselves as a form of social service. A period of enhanced cooperation between lawyers and social workers continued through World War II—a trend that also empowered women clients. In the late 1950s and through the 1960s, however, legal aid attorneys again began to distance themselves from social workers. The retirement of leading female aid attorneys coincided with several trends: an increasing emphasis on prestigious educational credentials as criteria for a new crop of legal aid attorneys, the formalization of organizational structures, and a turn toward aggressive, rights-oriented litigation.
Gender inflected the practice of both male and female legal aid lawyers, influencing their view of their clients and their framing of clients’ claims. In a particularly fascinating chapter, Batlan examines how the attorneys of the New York Legal Aid Society, steeped in a masculine legal culture focused on rights and constitutionalism, used gender as a measuring stick to evaluate their clients. They perceived Jewish men as excessively feminine and, therefore, undeserving; sailors, by contrast, were hyper-masculine and, consequently, deserving of rights. Female domestic servants, meanwhile, lacked rights precisely because they toiled in a physical and social space constructed as feminine and harmonious. Batlan’s examination of domestic workers provides further evidence that coverture persisted far beyond the passage of the Married Women’s Property Acts in the 1840s and 1850s. Legal aid lawyers did not view female workers as fully independent contractual actors and, as a consequence, were reluctant to impose obligations on employers to pay quantum meruit to domestic workers who quit early. Even when women legal aid lawyers brought wage claims on behalf of domestic workers, they represented employers’ failure to pay as fraud rather than breach of contract. Batlan’s deft analysis shows how gender ideologies had real effects on social experience.
A second, only slightly less explicit theme explores the place of legal aid in the legal history of capitalism. Ever since Morton Horwitz’s Transformation of American Law in 1977, we have understood the importance of class and capitalism to changes in legal doctrine. Batlan shows us that emerging legal histories of capitalism should include the history of lawyering itself. The development of legal aid, she argues, was inextricably linked with efforts to discipline immigrants to capitalism’s norms. Early women lay lawyers believed that the noble and right thing was to provide legal services free of charge. Charging a fee to poor clients who could not afford it would only exacerbate their dependence. Professional legal aid lawyers subsequently inverted the reasoning of earlier women’s groups, associating charitable legal services with dependency. Instead they argued that fees for service would promote the kind of independence necessary for democratic citizenship.
Women and Justice for the Poor opens up avenues for further research on gender and legal history of capitalism. In particular, it illustrates how maternalist reform has served as a check on capitalist rationality. Women lay lawyers, influenced by maternalist ideologies, embraced a holistic and empathic approach to the lawyer-client relationship. They pursued dignitary as well as monetary remedies and viewed no claim as too small to merit litigation. As legal services professionalized, male attorneys grew more preoccupied with the efficiency of their services and dismissive of clients viewed as bad bets. Maternalism, however, functions as a double-edged sword in Batlan’s narrative, as it does in much of women’s legal history. At moments, Batlan suggests that cross-class alliances existed between elite women lay lawyers and their working-class clients. That conclusion may be justified. Yet source limitations meant that Batlan was able to give a fuller portrait of elite actors in her story, though she does an admirable job of gleaning the archives for insight into non-elite perspectives. Moreover, as Batlan observes, the idealization of the home obscured the exploitation and negated the rights of domestic workers. Ultimately, Batlan argues persuasively that substantive justice concerns not only material outcomes of litigation but also the nature of the lawyer-client relationship. This is an important point for law students as well as historians, providing another reason—if you need more—to consider assigning excerpts of this book in a seminar.
Engendering the history of legal aid raises a host of historical and normative questions. How and why did the provision of legal services become separated from a range of social support services? Should the lawyer-client relationship remain isolated from social work? To what extent should the legal profession retain a monopoly on legal services? Historians and legal scholars interested in answering these questions should move Women and Justice for the Poor to the top of their reading lists.
