Yearly Archives: 2018
Nov 7, 2018 Joanna Grisinger
In the The War Against Chinese Restaurants, Gabriel J. Chin and John Ormonde describe how state and local actors in the late nineteenth and early twentieth centuries used legal tools to try to drive Chinese restaurants out of business. Chin and Ormonde describe a wide array of legislative, regulatory, and prosecutorial activity targeting Chinese-owned restaurants—some of it successful, some not—and argue that these local (but often nationally coordinated) efforts demonstrate white Americans’ intertwined concerns about work, immigration, urbanization, gender, and ethnicity in this era. And these concerns, once moved to the national stage, motivated Congress in 1917 and 1924 to ban almost all immigration from Asia.
Why did Chinese restaurants come in for particular scrutiny? Restaurants were among the very few business opportunities available to Chinese workers in the United States in the late nineteenth century; white lawmakers and union officials relied on restrictive licensing laws and pervasive anti-Chinese prejudice to bar Chinese workers from most jobs. Small businesses like restaurants and laundries, however, offered a path to economic independence. The history of racially discriminatory regulation of laundries is familiar to readers of Yick Wo v. Hopkins; here Chin and Ormonde describe how restaurants were similarly targeted. Chinese restaurants succeeded by offering a popular product and paying their workers less than the market standard. White restaurant owners opposed such restaurants’ success; so too did white male workers and their unions, who resisted competition from underpaid workers and resented Chinese workers’ success even in this limited market segment. Calls for boycotts failed, so, as the authors note, “[s]ince there was no law reserving the food business to whites, the unions sought to create one.” (P. 698.) White men looked to the state to drive these restaurants out of business, demanding police raids, employment restrictions, licensing laws, and zoning rules.
Chin and Ormonde draw on a rich set of primary sources—including local newspapers, industry publications, union proceedings, and legislative records—to describe a loosely coordinated nationwide effort to use whatever legal tools were at hand to drive Chinese restaurants out of business. As the authors demonstrate, white men and their unions argued that such laws were needed not to protect male workers but rather to protect white women from the allegedly degenerate and “morally hazardous” influences of Chinese restaurants. Restaurants, they argued, posed particular dangers for white women, given the (rumored) availability of interracial interactions, vice, and opium; the presence of curtained private booths only underlined the risks to white women as customers and as employees. The highly publicized murder in 1909 of Elsie Sigel, a white woman found dead in a Chinese waiter’s apartment after what appeared to be an affair gone wrong, exemplified these fears.
Motivated by these arguments, many cities and states tried to ban white women from working in and/or eating in Chinese restaurants. As Chin and Ormonde make clear, white workers’ and their unions’ efforts to restrict Chinese economic activity through legislation were often stymied by political weakness or constitutional limitations. Unions were not always sufficiently powerful to push these proposals through, and even when they were, courts often struck down blatantly discriminatory laws as violations of the due process and equal protection clauses of the Fourteenth Amendment. These decisions (framed around race, not gender, discrimination) build on and complicate the conventional story about late nineteenth-century judges’ concern for property rights and hostility to certain forms of state-sponsored racial discrimination that trampled on these property rights.
But legislative efforts were only one part of this story. Responding to workers’ demands, police used their discretionary emergency authority to raid restaurants, establish curfews, and, on occasion, simply order white women to leave Chinatowns. Lawmakers also used their administrative discretion to make it harder for Chinese restaurants to operate. Although proposals to limit restaurant licenses to citizens often failed, more broadly worded statutes that gave bureaucrats discretionary authority over licenses had the desired result. Bureaucrats denied licenses for Chinese restaurants; courts then generally deferred to these administrative decisions.
The inclusion of both unsuccessful and successful legal efforts allows the authors to tell a story focused less on legal change than on the pervasive political hostility these efforts represented and magnified. Chinese restaurants remained a popular presence in American life, but this regulatory “war” “helped propagate the idea that Chinese immigrants were morally and economically dangerous, and contributed to the passage of the Immigration Acts of 1917 and 1924, which almost completely eliminated Asian immigration to the United States.” (P. 684.) These federal laws took a much broader and more uniform approach to protecting white men’s dominance in the workplace; as the authors argue, “the unions ha[d] their cake and ate it too, as they restricted competition with Asian workers through federal immigration laws, without having to forego the opportunity to eat in Chinese restaurants.” (P. 734.)
The article makes a compelling case for studying unsuccessful legal reform alongside successful efforts and for including police enforcement practices (not just laws on the books) in this story. Taken together, Chin and Ormonde demonstrate just how much effort unions dedicated to driving Chinese workers out of one of the few areas where they had found success. The authors argue that this research fills in a gap in scholarship on Chinese restaurants specifically and Asian American history generally; although the article is less grounded in other areas of scholarship, it is also a useful contribution to existing research on labor history, gender history, immigration history, and the Progressive era more generally.
The authors conclude by comparing these efforts to more recent state and local ones targeting immigration. “The failure and unconstitutionality of local measures did not make political impulses disappear; rather, it channeled them to the branch and level of government with the power to act, just as the drumbeat of the economic and moral danger posed by Chinese restaurants and other Asian activities—and the inability to regulate them at the state level—contributed to a climate in which Asian exclusion dramatically expanded in 1917 and 1924.” (P. 735.) And by drawing this link between local and federal action, the article demonstrates the importance of studying reform efforts at different levels of government and across multiple jurisdictions. Legal historians already do this, of course; studies of railroad and antitrust regulation in the late nineteenth century, for example, demonstrate how (and why) reform pressures began in the states and then moved to the federal level. Chin and Ormonde, however, tell a broader story of anti-Chinese lawmaking that ties local restaurant regulation to federal immigration law—to fascinating effect.
Oct 4, 2018 Kunal Parker
When it comes to immigration to the United States in the twentieth century, there is little question that Mexico has been by far the most important sending country. Colonial conquest and domination, geographic contiguity, cultural links, wealth differentials, state policies on both sides of the border, and the pressing needs of Americans and Mexicans have made it so. We have yet to come to terms with the full significance of the impact of twentieth-century Mexican immigration on the United States’ demographics, politics, economy, society, and culture. What we do know, however, is that U.S. immigration law took form in the twentieth century in significant part to encourage, restrict, manage, and respond to migration from Mexico. Since the 1920s, border control has largely concentrated on the United States’ southern border. Mexicans have peopled all of the myriad legal categories into which twentieth-century immigrants have been slotted: non-immigrants, temporary workers, legal immigrants, and “illegal” immigrants. The debate over undocumented migrants, it scarcely bears mention, rages in Trump’s America, and the xenophobes’ target is Mexico.
Ana Raquel Minian’s important book, Undocumented Lives, provides crucial context to the figure of the Mexican undocumented migrant. Although her story begins earlier and continues after, Minian’s focus is on the period from the mid-1960s, when the bracero program ended, to the mid-1980s, when the U.S. government extended an “amnesty” to undocumented migrants but also closed the U.S.-Mexico border, making what had hitherto been a back-and-forth circular migration of the undocumented between the two countries much more difficult. Undocumented Lives covers a vast range: state policies in Mexico and the United States; explorations of the everyday lives of undocumented migrants and their communities in both countries; and the strategies undocumented migrants employed to win rights and protections for themselves in the United States. One of its goals is to represent undocumented Mexican migrants to the United States as “in between peoples” of a sort, fully incorporated in neither country, suspended in a state of rejection by both, but nevertheless forging a precarious identity. In what follows, I discuss three important contributions of the book and offer some observations about each.
First, as part of its attempt to represent Mexican undocumented migrants as “in between peoples,” Undocumented Lives shows how state policies and practices on both sides of the border have produced the Mexican undocumented migrant. Minian argues that, even as the United States sought to manage Mexican migration by proliferating legal and illegal statuses under immigration law, the Mexican government altered its policies towards its own migrating citizens. In the early twentieth century, the Mexican state sought to deter out-migration, seeing its population as a resource. When it did support out-migration to the United States, especially as part of the bracero program, it was primarily because of the benefits that returning migrants would supposedly confer on Mexico. As Mexico’s mounting economic problems made it clear that there were few opportunities for returning migrants, however, the government altered its position. By the 1970s, Mexican officials had come to understand (and rely on) out-migration to be a critical safety valve for the country’s socio-economic difficulties.
This is an important insight. However, while Minian’s characterization of Mexican undocumented migrants as rejected by both countries is compelling, it might also have limits. How might we situate her characterization in relation to the ways in which other sending countries imagine and instrumentalize their emigrating populations, whether as a “brain drain” or as heroes earning money in hard currency or as the release of a safety valve or as social problems to be removed or as a combination of all of the above?
Mexico’s attitude towards its emigrating citizens, one suspects, might not be that unique. Neither does Mexico’s failure to incorporate its poorest citizens into polity, society and economy—something Minian emphasizes to support her argument–distinguish it from many countries. Most poor countries, to say nothing of many richer ones like the United States, fail in similar ways. Is it appropriate to represent a failure to extend the social safety net as tantamount to a rejection of citizens? More to the point, it is not so clear that Mexico did reject its emigrating citizens. Unlike a country like Cuba that makes it difficult for its outgoing nationals to return, there is no question that Mexico was always willing to abide by its international law commitments and take its citizens back. Indeed, the Mexican government was often quite vocal in arguing for the protection of its nationals in the United States. It is also surely a detraction from Minian’s reading that the Mexican undocumented migrants she discusses never ceased to claim Mexico in all kinds of ways, which suggests that they did not necessarily see a lack of opportunity in Mexico as equivalent to a rejection by Mexico.
Second, Undocumented Lives offers important insights into the lives of Mexican undocumented migrants vis-à-vis the communities they left behind in Mexico and those they formed in the United States. Some of Minian’s insights are familiar from other studies of undocumented (and other) migrants in the United States: their relationship to public spaces, their sense of being trapped, their experiences of exploitation and fear, their participation in fraternal organizations contributing to the renovation of their communities “back home.”
Minian’s most fascinating insights (at least for this reader) are those relating to the interplay between U.S. immigration law and border control, on the one hand, and the shape of migrant communities in Mexico and the United States, on the other. Minian argues that, so long as circular migration between the United States and Mexico was relatively easy, undocumented migration was overwhelmingly male and straight. Married men were under special pressure to leave because they had dependents to support. Minian’s side argument that queer Mexican men were less likely to migrate—offered up as a correction of sorts to the conventional narrative of queer migration to the anonymity of non-familiar and urban settings—is intriguing but raises too many questions to be taken as a major sociological observation (relatively small sample size, the difficulty of knowing how many homosexual men were likely to get married, attitudes towards homosexuality in Mexico at the time, etc.).
But Minian’s main point is that the migration of married men bore consequences for the wives they left behind: such women were compelled to restrict their outdoor activities for fear of being tainted with the brush of marital infidelity. The absence of Mexican men thus reinforced patriarchal control of women by their absent husbands and other males in the community. Gradually, however, the situation changed. The end of the bracero program in 1964, combined with the institution of country quotas for Mexico, increased the number of Mexicans entering the United States “illegally.” Even so, while border control remained light, circulation across borders remained a viable option for men. But the closing of the border in the mid-1980s as a consequence of heightened immigration control changed the nature of Mexican migration and hence the structure of communities on both sides of the border. As the circulation of male migrants became harder, the incentive for women and children to migrate grew. Thus, Minian argues, it was the Reagan-era “amnesty” for undocumented migrants combined with tightening of border controls that led to the wholesale transplantation of Mexican families to the United States. Minian’s sophisticated sense of the dialectic between restriction and migration, reminiscent of the work of immigration historian Mae Ngai, is one of the great strengths of this book.
Finally, Minian devotes considerable attention to the strategies that Mexican undocumented migrants employed to win greater rights for themselves in contexts ranging from workplace rights to education for their children. Their struggles brought about a gradual alteration of attitudes among U.S. labor organizations, Mexican American organizations, and the Mexican government itself. Interesting in this regard is how Minian characterizes what a socio-legal scholar might call Mexican undocumented migrants’ “rights consciousness.” In her telling, many Mexican undocumented migrants seem to be imbued with the sense that their long presence and hard labor in the United States—in short, their contributions to U.S. society and economy–entitle them to rights and protections. This is consistent with how many immigrant rights advocates have represented, and continue to represent, the claims of the undocumented. However, as Minian surely knows, a gulf yawns between undocumented migrants’ own sense of entitlement and the attitudes of those opposed to undocumented migrants, a group with considerable power in the United States today, who insist upon a kind of foundational illegality associated with the act of crossing the border without authorization that should entitle undocumented migrants to nothing.
How might this gulf be narrowed? One way is clearly to make the xenophobic camp realize that illegal presence does not in and of itself imply a complete absence of rights and protections. To endorse the extreme xenophobic position would be to go against principles at the core of the United States’ legal and political traditions. But neither does illegal presence in and of itself confer the full panoply of rights. In this regard, it might be interesting to learn more about undocumented migrants’ complex relationship to legality, how they respond to the charges of those opposed to them, how they characterize the claims of other migrants (especially more recent arrivals), and how, as a result, we might think about the broader question of how political and legal claims come to be associated with territorial presence.
Minian has written a significant book that covers a vast range of topics and mines a variety of sources. While showing how state policies produce individuals and communities, it humanizes the figure of the Mexican undocumented migrant at a time when xenophobic rhetoric in the United States is at its height. Undocumented Lives deserves a wide readership.
Sep 13, 2018 Anders Walker
In Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. shows how African American voters in Washington DC lobbied for longer prison sentences and more police officers. Forman’s argument complicates the story told by Michelle Alexander in The New Jim Crow: Mass Incarceration in the Age of Colorblindness, which is that white conservatives increased prison sentences and police in order to impose a new system of racial control on black Americans, all under the rubric of a War on Drugs. Underlying Alexander’s argument is the claim that African Americans were not in fact the primary consumers of drugs in the United States; whites were, though they suffered comparatively lower rates of incarceration and arrest.
Forman concedes Alexander’s point about white drug use, but argues that African American leaders played a significant role in the rise of mass incarceration. As he tells it, problems with narcotics coincided with a proliferation of firearms. Guns became the weapon of choice for drug distributors, who turned to crime out of economic necessity and used extreme violence to eliminate competitors, increase market share, and create an illicit, street level, drug market. This market driven violence, maintains Forman, became so intolerable that African American majorities voted for higher prison sentences and more police, effectively joining white conservatives in what Alexander has termed “mass incarceration.” Rather than a coordinated, right wing plot, however, Forman suggests that the story in Washington was a tale of incremental choices by desperate officials who implemented radical policies that had unanticipated effects.
This is important. Forman’s story presses us to look more closely at the causes of crime in the United States in the 1960s and 1970s, and his well-researched, rich description of debates within the DC’s African American community about crime suggests that both cultural and structural forces contributed not only to mass incarceration’s rise, but its inevitability.
As startling as this may sound, Forman’s account actually dovetails with other work on the spike in crime in America in the 1960s and 70s, among them criminologist Barry Latzer’s 2017 book The Rise and Fall of Violent Crime in America. According to Latzer, two factors explain the rise of violent crime in places like Washington DC in the late 1960s and early 1970s. The first was the baby boom, which led to a surge in the number of young men – white and black – nationwide. The second was the Great Migration, the departure of six million African Americans from the rural South to the urban North between World War I and 1980. Southern migrants, argues Latzer, brought with them a culture of honor and violence that they had learned from southern whites – a culture that then exploded, like a bomb, in American cities.
Professor Forman’s study raises questions about this thesis. If southern migrants brought a culture of violence with them from the Deep South, why did a majority of those migrants become intolerant of violence? Why, in other words, did black southern voters demand increased prison sentences and more police? Why not settle scores on their own, Andrew Jackson style, with their guns?
Forman provides an intriguing response. He suggests that African Americans brought with them not a culture of crime and violence, but a culture of anti-violence and crime control. Black ministers, argues Forman, along with their congregations, viewed the rise in urban crime through a rural, Biblical lens. As white liberals lobbied for treatment as the solution to the heroin epidemic, for example, black ministers balked, opting instead for punishment. And as white liberals lobbied for decriminalization of substances like marijuana, black ministers balked again, arguing for prohibition. Both stances were classic evangelical Protestant positions, positions that actually united Protestants, white and black, across the South and Midwest. This is an important contribution, for it helps to further explain links between the white rural and suburban conservatives in Alexander’s New Jim Crow, and the black urban majorities in DC. Both were Protestant, both were socially conservative, and both were prone to viewing the problem of drugs and crime through the lens of personal moral choice, punishment, and Prohibition (Remember, evangelical Christians, Baptists in particular, endorsed abstinence not simply from alcohol but also narcotics).
American tendencies to view crime through the lens of personal moral choice, and crime control through the lens of Old Testament punishment – both stories that Forman tells – yields a paradox. At the heart of our system of punishment, lies our commitment to liberty. Most Americans view crime as a matter of personal moral responsibility, a position reflected in the criminal codes of all 50 states, and also the Constitution of the United States, which protects liberty against government intrusion, but provides no protection against poverty, joblessness, homelessness, or any of the other structural causes of crime.
Take the rise in violent crime in the late 1960s and 1970s. According to historian Tom Sugrue, the conditions that led to the urban crisis in DC – and other American cities in the 1970s and 80s – had less to do with personal moral choice than with major demographic and economic shifts in the United States. The first, he argues, was the Great Migration.. Instead of dealing with this shift structurally, however, policy makers dealt with it as a matter of personal choice. No public or private agency was created to assist migrants procure housing, find jobs, or receive health care or job training. No agency was created to provide child care, elder care, or anything else that the migrants might have needed. Instead, Americans viewed the move simply as a product of personal moral choice.
Then, according to Sugrue, the very people who could have provided job training, health care, housing, and employment, the middle class and affluent residents of American cities, got in their cars and drove away. This shift, white flight, was also unmanaged and unregulated. White urbanites took their skills, their training, and their tax dollars to suburban enclaves, draining cities of resources and limiting the options available to black elected officials in places like DC. Forman notes this in passing, arguing that African Americans did not simply want police and prisons, they wanted services – in essence a Marshall Plan – but city coffers had been drained.
Then came the final blow: deindustrialization. Just as African Americans poured into cities and white tax dollars left, argues Sugrue, the factories closed. At this point, things became desperate. For some, crime ceased to assume a negative moral connotation and actually became a rational choice, a means of survival in an environment that provided no safety net. For others, an aggressive response to crime became an imperative. But the options available were limited. City coffers were empty, but state and federal dollars were available for law enforcement – in part because rural and suburban whites shared the same Old Testament values as urban blacks.
Blacks locked up their own, yes, because they had no other choice.
Editor’s note: For a previous review of Locking Up Our Own: Crime and Punishment in Black America see: Christopher Slobogin, The Causes of Punitiveness, JOTWELL (July 17, 2017).
Jul 25, 2018 Wyatt Sassman
I am probably too early in my career to recognize a watershed piece of scholarship, but this sure seems like one to me. In her most recent article, Maggie McKinley traces the origins of the administrative state to the historical practice of petitioning Congress for relief, as protected by the Petition Clause of the First Amendment. She details how Congress afforded petitions important procedural protections, and tells the story of how Congress eventually “siphoned off” its responsibility for resolving these petitions to boards, commissions, and other ad hoc bodies that became the foundation of the modern administrative state. Her overarching thesis is that the petition process reveals a constitutional obligation originally located in Congress, and now located in the administrative state, to ensure individualized and meaningful participation in federal lawmaking.
This thesis is, among other things, a breath of fresh air in a heated yet stale debate about the constitutional validity of the administrative state. As Kristin Hickman recently surveyed for Jotwell, this debate has fixated for decades on whether or not we can assume the constitutional validity of the administrative state from either its existence or its practical necessity to modern life. McKinley offers what I think is a truly novel argument to this contest: that the constitutional basis for the administrative state is at least partly rooted in the First Amendment’s right to petition the government. Drawing on a wide range of sources from Founding-era practices to legal process theory, her insights will interest readers on all sides of this debate.
The foundation of McKinley’s article is the Congressional Petitions Database, an original dataset compiled by McKinley and her research team at the North American Petitions Project. Drawing on congressional records, they created “a comprehensive database of all petitions introduced to the Congress from the Founding until 1950 for the Senate and from the Founding until 2013 for the House of Representatives.” (P. 1630.) This database allowed McKinley to observe trends and draw conclusions about the petition process for, as far as I know, the first time in legal scholarship. It serves as the basis for the first half of McKinley’s article, which introduces the petition process and tells the story of how that process “evolved” into the modern administrative state.
Undoubtedly, one of the lasting contributions of McKinley’s article will be her descriptive account of the petition process. The practice was as foreign as it was interesting to me. Petitions were individual requests for action from Congress. Petitioners requested everything from a pension, to comprehensive regulation of the boiler industry, to resolution of a private claim against the government, to declaration of a national policy against the slave trade. Importantly, people who otherwise had no meaningful access to Congress could submit petitions, including noncitizens (American Indians), non-voters (women), and political minorities (freed slaves). The petition process offered these groups constitutionally-guaranteed access to the lawmaking process of their government.
Congress took its role in resolving petitions quite seriously and afforded them particular process. A petition took a specific form, and you typically sent your petition to your local representative or senator. He or she would then read your petition into the congressional record, which made your petition the public business of Congress. Petitions were placed on a docket that tracked their disposition and resolution over time. Typically, a petition was then sent to committee for a recommendation to Congress on how to resolve it.
The breadth and character of what happened next would shock the conscience of any strict departmentalist or separation-of-powers puritan. The committee itself might engage in some fact-finding. (P. 1563.) Or it might send the petition to executive officers like the Secretary of Treasury or Secretary of War “for review, investigation, and reporting.” (P. 1569.) Or it might enlist a federal court or even a state court (!) to help process the petition. (P. 1617.) McKinley found examples of each of these and more in her review of the Congressional Petitions Database, demonstrating that the type of lawmaking spurred on by the petition process looked quite different from the “legislative” process as we think of it today. While the petition process might end with a recommendation for a general law sent to the floor of Congress, “more often, resolving a petition involved what would today be perceived as nontraditional lawmaking”—namely, things that were not “legislative acts” and therefore did not require bicameralism and presentment. (P. 1563.) Yet all “were viewed as equally within Congress’s power to control” at the Founding. (Id.)
McKinley explains that petitions “dominated Congress’s docket until well into the twentieth century.” (P. 1617.) But as the country became more complex and suffered its wars, Congress increasingly “siphoned off” its responsibility for resolving petitions to more permanent administrative bodies. (P. 1579.) McKinley walks through three case studies to show how this story played out in subjects that we typically associate with administrative law: adjudication of individual claims (using the Court of Claims as an example), the provision of public benefits (the Bureau of Pensions), and nationwide regulation (the Interstate Commerce Commission). McKinley argues persuasively that this shift is essential context for understanding both the Administrative Procedure Act, which codified best practices Congress had developed in processing petitions, and its less-familiar companion the Legislative Reorganization Act, which dismantled what remained of the congressional apparatus for processing most petitions. As McKinley tells it, Congress converted the formal petition process into the administrative state, leaving any remaining access to lawmakers to the grey world of lobbying (which is a subject of McKinley’s research elsewhere).
McKinley draws two broad theoretical lessons from her observations about the evolution of the petition process. First, we should be thinking about agencies as an extension of Congress’s constitutional obligation to ensure participation in the lawmaking process, rather than as an extension of Congress’s Article I lawmaking power. For example, she recommends renaming the administrative state the “participatory state” to emphasize its role in guaranteeing “a formalized voice for individuals and minorities” in the lawmaking process over bureaucratic administration. (P. 1538.) This change in perspective, she argues, would help rebut the narrative that agencies are inconsistent with the limited-government principles of the Founding era and grew, weed-like, from managerial impulses of the New Deal.
Second, McKinley argues that the petition process reveals fundamental defects in legal process theory—namely, the theory’s strict approach to separation of powers and Footnote-Four-style reliance on the judiciary to protect political minorities. The petition process reveals, respectively, that American governance regularly crossed any boundaries between the branches, and that Congress has its own constitutional duty to ensure political minorities (and even non-citizens) have access to lawmaking. McKinley’s criticism of Hart & Sacks is particularly humbling, noting that neither “had actually spent much time working in Congress,” so their view of the legislative process as essentially majoritarian “reflected no firsthand experience.” (Pp. 1609-10.) But, McKinley maintains, modifying legal process theory to incorporate the lessons of the petition process can help reinvigorate that model with a spirit of democratic proceduralism and resist efforts to disassemble “the participatory state” out of fidelity to a strict separation of powers.
Finally, McKinley offers two concrete examples of how her insights should change case law. First, courts should not follow INS v. Chadha because the petition process—which did not necessarily require bicameralism to act on a petition—demonstrates that the Court’s reasoning for striking down the legislative veto was wrong. (Pp. 1621-22.) Second, courts should flesh out the doctrine of “administrative due process” into a “quasi-procedural due process right of the kind promised by the Petition Clause.” (P. 1623.) On that score, McKinley critiques Mathews v. Eldridge for grounding due process in a utilitarian cost-benefit framework rather than the aspirational values she views as reflected in the Petition Clause: “equality, formality, and transparency.” (P. 1625.)
McKinley’s points on Chadha and due-process balancing are well-taken, and certainly don’t lack for ambition. But they are eclipsed by her “excavation,” as she put it, of the petition process and its particular view of Congress. I keep returning to this article with the feeling: this changes everything. Not just Congress’s relationship to administrative agencies, but also the courts’ relationship to individual rights, due process, and access to justice—both relationships, I’ll readily admit, that I understand through the heavy influence of process theory. But I’m not alone in this boat. Although often implicit, most American lawyers and judges understand the everyday work of our courts through process theory’s take on the separation of powers and judicial review. To shake one is revelatory enough; to shake both makes you worry that the whole thing is going to come apart. It’s that feeling that leads me to believe rethinking Chadha and due-process balancing—again, no small feat—is only the beginning of what McKinley’s work can accomplish.
Jul 13, 2018 Elizabeth Ruth Dale
By coincidence, I was reading Kathleen Belew’s book, Bring the War Home: The White Power Movement and Paramilitary America, the same week I read Jill Lepore’s recent article, The Rise of the Victims’-Rights Movement, in The New Yorker. The overlap was striking and well worth the consideration by legal historians.
Belew’s recent history is about the rise of a white power network across the United States in the years since Vietnam. It explores, through the study of a series of incidents, how a number of seemingly separate white supremacist groups came together, first on the ground and then through the internet. As Belew traces the network’s increasingly violent acts against those it considered outsiders, she shows why its racial view of the world (with its neat categories of “us” versus “them”) ultimately led it to declare war on the federal government in the early 1980s. In the process, she also describes the series of tactical decisions (and missteps) by federal prosecutors that led the government to underestimate and understate the extent of the white power movement. Her book’s great strength is revealing that network’s breadth across time, space, and a series of events culminating in the Oklahoma City bombing in 1995 (the epilogue ties the events in the book to the shooting at Emanuel A.M.E. church in Charleston).
This is a troubling book for many reasons, not just because of the scope of the white power network it reveals, though that is both disturbing and an important corrective to the insistence that white terrorists are “lone wolves” who act spontaneously and independently of one another. The book also brings the world of the white power movement home in another, very concrete way: in the week marked by yet another high school shooting, this one in Santa Fe, Texas, it was unsettling to read about Santa Fe’s connection to Klan rallies and white power activists in the late twentieth century. Many places have troubling histories and I do not mean to suggest in any way that the recent events in Santa Fe are less horrific because of events in the town’s past. But that connection, and Belew’s book more generally, raises questions about how the elements of United States culture that valorize violence and draw ready distinctions between the deserving “us” and the less deserving “them” (or between people and animals, to use an even more recent variation on the theme) contribute to mass shootings.
There are a number of points of overlap between the white power culture, as it is explored in Belew’s book, and the culture of the victims’-rights movement that Lepore’s article explored. At its broadest, Lepore’s article takes a fascinating look at the rise of victims’-rights theories in criminal justice. The book argues that the victims’-rights movement arose from a mix of feminist activism on behalf of women who were traditionally silenced in rape trials and conservative push back against the due process revolution put in motion by the Warren Court. But to unpack that story, she looks closely at the treatment of victim’s rights in the Oklahoma City bombing case, a trial (and event) that Belew examines closely as well.
In their treatment of the case, both Belew and Lepore touch on an issue that appears frequently in Belew’s book—the degree to which white power advocates like Timothy McVeigh justified their violence in terms of avenging victims, specifically white victims, of the government. Lepore quotes McVeigh as saying that he bombed the Murrah federal building because the federal government, which had failed to prosecute the government agents involved in Waco, “failed the victims who died during that siege.” (Lepore, P. 52.) Belew’s book tracks similar sentiments across the decades, from Louis Beam, who rallied whites in Texas to oppose and attack Vietnamese shrimpers whom he believed were getting welfare from the federal government while destroying white fishing interests and used similar language in talking about Waco, to Dylann Roof, who wanted to bring about a race war because Blacks were killing whites, raping white women, and taking “over our country” without being stopped by the government.
Belew treats the trajectory of white power victimhood as a shift from attacks on the other to a declaration of war against the federal government. It appears, in that sense, to be a rejection of the constitutional order. But read in light of Lepore’s article, the trajectory Belew sketches looks more like a shift to a perpetual and all-encompassing state of self-defense necessitated by the (temporary) failure of the government. The government is not so much the enemy as it is a failed state that has been unable to prevent the victimization of whites. Implicit in that are two constitutional theories: First, that the government would right itself if it understood its proper role in the racial order. And second, that so long as the government fails, the sovereign (and white people) have a right to defend themselves.
In that respect, Lepore’s article suggests that we might view Belew’s subjects as making a constitutional (as opposed to racial) argument. And Lepore also offers us a way to do so, noting that new theories of the Second Amendment arose in tandem with the rise of victims’ rights rhetoric. Although her article does not elaborate the point at length, Lepore suggests a strong connection between the two, seeing both as part of “a set of arrangements under which what was once a civil society has become a state of war.” (Lepore, P. 55.) The subjects of Belew’s book clearly made similar connections. In fact, as Belew points out, McVeigh began to plan the attack on the Murrah Federal Building just weeks after expressing exasperation (“What will it take?”) about the passage of the Violent Crime Control and Law Enforcement Act in 1994, a law that banned the use of nearly twenty different semiautomatic weapons. (Belew, P. 220.)
The idea that the people, or some of them, have a right to take the law into their own hands when the government fails to act has a long history in the United States, as does the idea that they have a legal, even constitutional, right to do so. The recent works by Belew and Lepore show those ideas still resonate and how they express themselves today.
Cite as: Elizabeth Dale, Victims’ Rights and White Power, JOTWELL (July 13, 2018) (reviewing Kathleen Belew, Bring the War Home: The White Power Movement and Paramilitary America (2018); Jill Lepore, American Chronicles: The Rise of the Victims'-Rights Movement, The New Yorker 48 (May 21, 2018)), https://legalhist.jotwell.com/victims-rights-and-white-power/.
