Yearly Archives: 2019
Jun 6, 2019 Joanna Grisinger
The new essay collection Shaped by the State: Toward a New Political History of the Twentieth Century, edited by Brent Cebul, Lily Geismer, and Mason B. Williams, makes a strong case for thinking about political history as deeply tied to broader strands in American history. The essays in the book describe the growth and evolution of the modern state in light of “long-standing structures and ideologies of markets and social power defined by race, gender, class, and hierarchies of citizenship.” (P. 8.) As the table of contents makes clear, regulation and the administrative state are key parts of this story of the modern state. Rachel Louise Moran’s contribution to the collection, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, approaches regulatory history in this expansive way, unpacking the gendered nature of both regulation and resistance.
Moran takes as her topic efforts by the Federal Trade Commission (FTC) in the late 1970s to limit children’s exposure to junk food advertising on television. One might assume that the FTC’s attempts to prevent greedy corporations from using sugar to entice children would make regulators the heroes in a modern fairy tale. Moran describes how in 1977 the Center for Science in the Public Interest “dramatically sent 170 decayed teeth (and petitions signed by ten thousand health professionals) in a bag to the Federal Trade Commission, along with a request the FTC regulate the advertising of foods to children.” (P. 320.) Instead, however, the 1978 Children’s Advertising Rule investigation–soon known as “KidVid”–collided with concerns about an overstepping state voiced by industry opponents, media skeptics, and parents protective of their own authority.
The FTC’s statutory authority allowed it to regulate unfair and deceptive market behavior; regulators claimed that ads targeting children—by definition low-information consumers—were unfair. Since the FTC had traditionally focused on policing deceptive market behavior, there was little precedent for this regulation, and, Moran describes, “the unfairness principle was almost instantly portrayed as FTC overreach, as a bureaucracy pulling extra powers out of its hat.” (P. 323.) Moran quickly sketches the outlines of the political history: an extensive investigation with more than two hundred witnesses and thousands of pages in the record resulted in negative press, industry lawsuits, congressional pushback, and a failed rulemaking.
This alone is an interesting story, at least to those of us fascinated by bureaucratic behavior. But Moran provides more than a straightforward political history of regulation and resistance by focusing on the gendered framework at play in “the earliest sustained debate over the nanny state in U.S. politics[.]” (P. 321.) “Nanny state” language emerged first in British politics but Americans had long considered their own government in turn paternalist and maternalist. The latter framework came to dominate as the state expanded its authority to look out for citizens’ welfare by providing them with benefits and regulating their environments. More specifically, the FTC was described at various points in its history as “‘the little old lady of Pennsylvania Avenue’” and “‘the national nanny.’” (P. 318.) The issues involved in the KidVid episode were particularly fraught. Regulating what American children ate challenged mothers’ presumed responsibility for raising children and fathers’ presumed responsibility for supervising the family; regulating what children were exposed on tv did the same.
This specific regulatory intervention touched on broader issues of the expansion of consumer regulation, the changing legal status of women, the rise of dual-income (white middle class and elite) families, and the dangers (real or imagined) of overly permissive parenting. As Moran argues, “It is no coincidence that as the reality of a breadwinning man evaporated, the image maintained a stranglehold on the American political imaginary since a nanny state appeared to undermine masculine independence, self-sufficiency, and individual freedom.” (Pp. 333-34.) In light of changing parental roles, opponents argued, parents (and particularly mothers) should step up their parenting instead of asking the state to step in as a substitute parent. (The voices of mothers who welcomed this help were generally dismissed.) These claims about an overbearing state were loud enough that Congress pulled authority from the FTC so it couldn’t do anything like it again.
Moran concludes by tracing the continued power of “nanny state” language to fight regulation—of health care, of large sodas (as in the recent New York City contretemps), and of vaccination and school lunches. Overall, the essay points to the importance of bringing gender (and race, and class, and sexuality, and ability, and other categories of analysis) into political history generally and into regulatory history in particular. Moran clearly demonstrates how broad debates over the boundaries of public and private were tied up with the nature of (and threats to) traditional gender roles, and how gendered concepts of antistatism can be.
Cite as: Joanna Grisinger,
The Federal Trade Commission as National Nanny, JOTWELL
(June 6, 2019) (reviewing Rachel Louise Moran,
Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation,
in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019)),
https://legalhist.jotwell.com/the-federal-trade-commission-as-national-nanny/.
May 13, 2019 Reuel Schiller
The United States is in the midst of a memory war. Every month brings a new political and legal dispute over how our nation should portray its past in its public spaces. At the center of this struggle are the myriad of Confederate war memorials that dot the South. Southern localities and educational institutions have tried to remove these memorials. State legislatures have fought back, passing “heritage protection laws” that prohibit their removal or alteration. As the horrific events that took place in Charlottesville in 2017 demonstrated, the notion that this conflict over interpreting our nation’s past as a “war” is not always metaphorical. Nor are these fights over Confederate statuary the only battles in this war. From the content of high school textbooks to the identity of college mascots, we are constantly engaged in skirmishes in memory wars, as activists, policy-makers, and politicians deploy law and political advocacy to shape how we understand contentious events in our nation’s past, be they the Civil War, westward expansion, or the decision to drop the atomic bomb.
Nikolay Koposov’s compelling, encyclopedic history of the regulation of historical memory in Europe, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, is a must read for anyone determined to think deeply about these battles over how the past should be remembered. At its center is a fascinating story about the relationship among law, history, and public memory. Memory Laws, Memory Wars recounts the emergence of the regulation of historical memory in Europe. This story starts in Western Europe in the early 1980s when West Germany and France considered legislation criminalizing Holocaust denial. These attempts came to fruition in 1990, when France enacted the Gassyot Act. That law imposed a one year prison term and a 45,000 Euro fine on people who publically disputed the existence or dimensions of the Holocaust – the crimes against humanity that were defined by the Nuremburg Tribunal at the end of World War II.
During the 1990s, this sort of law spread throughout the European Union. This spread was marked by two changes. First, the number of historical events that fell within the ambit of these laws expanded. Historical assessments of the Armenian genocide, fascist repression in Spain, the violent legacy of European colonialism, and Europe’s role in the slave trade were all made subject to state regulation. Second, the administrative mechanisms deployed to regulate memory became more diverse. Though most Western European countries maintained criminal sanctions for Holocaust denial, as the palate of problematic histories expanded, different counties regulated them differently, often in a less punitive manner: curricular requirements in schools, or simple acknowledgements and apologies by culpable nations.
The collapse of the Soviet Union and the eastward expansion of the European Union generated another dramatic change in memory regulation. As Eastern European countries gained autonomy, they brought the evils of Soviet domination into the ambit of memory regulations. Denial of Stalinist atrocities was placed on a par with Holocaust denialism and thus subjected to criminal sanction in Eastern Europe. More significantly, the expansion of memory laws to Eastern Europe saw a frightening shift in their emphasis. The original wave of memory laws that sprang from Western Europe’s encounter with the Holocaust were premised on the idea of repentance: our nation did something horrible and only by preserving the memory of that horror can we ensure that we don’t err again. Memory regulation in the East, however, focused on the denial of responsibility for evil acts. These laws were designed to “promote nationalist mythology” by shifting “the blame for historical injustices entirely to others” (Pp. 308-309). Thus, Turkey criminalized references to the Armenian Genocide, Russia criminalized criticism of Soviet acts during the Second World War, Poland prohibited assertions that “the Polish nation” was complicit in the Holocaust, and Hungary whitewashed the fascist antecedents of its current regime by criminalizing claims that Hungarian anti-Soviet fascists were anything other than heroic freedom fighters. The confessions of national culpability that defined the initial set of memory laws had been replaced by laws that criminalized “the denial of other nations’ misdeeds” in order to promote reactionary nationalism based on “self-victimization” (P. 305).
This thumbnail description of Koposov’s narrative doesn’t do justice to the complexity of this story and subtlety with which he tells it. He effortlessly takes the reader through the fiendishly complex political history of post-Cold War Eastern Europe, demonstrating how different attempts at nation-building yielded different types of memory regulation. He details the changing sentiments of Western European intellectuals, who initially supported the criminalization of Holocaust denial, but then adopted a considerably more libertarian approach to speech regulation as the utility of memory regulation to illiberal regimes in Eastern Europe became apparent. Finally, he recounts the relationship between the lost possibility of a liberal, democratic post-Soviet Russia and the profoundly sinister turn that memory law and politics took as Vladimir Putin consolidated power in the first decade of the twenty-first century.
Koposov also places his narrative within a compelling analytical framework. He demonstrates how emergent nationalism and the need for state-building in Eastern Europe transformed memory laws into tools for would-be totalitarians. Even more fascinating is his analysis of why memory regulation emerged in the first place. The causes, Koposov demonstrates, are numerous: the emergence of the Holocaust as the central feature of Western European historical consciousness in the 1970s; the end of the Cold War and the flourishing of Eastern European nationalism; the rise of humanistic attitudes towards oppressed groups and the concomitant flourishing of identity politics; the historical profession’s turn towards social history; the emergence of human rights protection as a political and legal goal; the rise of both neoconservative politics with its emphasis on recapturing a national heroic past, and of neoliberal politics, with its tendency to “annihilate history as a dimension of human experience” by suggesting that societies are shaped solely by universal, timeless, economic “laws” (P. 59). Other historians, such as Peter Novick and Daniel Rodgers, have told pieces of this story, but Koposov weaves all the strands together in the specific context of memory regulation. He shows how admirable political and cultural innovations – the increasing salience of human rights, the desire to tell the histories of subaltern groups, the collapse of Soviet totalitarianism – combined with less praiseworthy features of late twentieth-century politics. This mixture generated the Orwellian regulation of historical memory that currently characterizes the increasingly authoritarian regimes in Eastern Europe and, though Koposov doesn’t say it, the forces of illiberalism here in the United States.
Indeed, it is the obvious parallels with American memory politics that make Memory Laws, Memory Wars such a compelling read. Koposov’s description of the purposes of Russian memory regulation are no different from the purposes of the heritage protection acts that have sprung up throughout the American south in recent years: creating a heroic, mythic past; suppressing evidence of morally repugnant behavior; perpetuating a narrative in which the perpetrators of crimes against humanity become the victims of outside aggression. Thus, Memory Laws, Memory Wars should remind us of the stakes at issue in our own memory wars. It suggests that professional historians and others who are committed to a public history that teaches critical thinking rather than myth-making must assert the values of our profession in the public sphere. The politics of memory too often ignore the importance of these values: free inquiry, fidelity to sources, a commitment to using sound historical methods, and truth-seeking in the context of multiple perspectives. Historical memory, Kaposov shows us, is too important to be left to the politicians.
Feb 27, 2019 Jedidiah Kroncke
Sam Erman ends his new book Almost Citizens by describing Puerto Rico as “the oldest colony in the world” (P. 161). This word, colony, might strike some as an overstatement, for the United States is never supposed to have had colonies. Others might offer up “protectorate” or other alternate terms to capture Puerto Rico’s constitutional ambiguity as something less than that of a state—none of which would be any less descriptively coherent than the island’s technical designation as “an unincorporated territory.” Erman ends his long-awaited monograph with this statement exactly because his careful and compassionate history takes direct aim at the legal ambiguity that has denied Puerto Ricans their full equality as American citizens. Erman’s story of American empire makes plain that conceptual or doctrinal equivocation has never altered the substantive reality that Puerto Ricans still live today with the very real legacy of American colonialism.
There is an underlying tone of moral indignation and loss in Almost Citizens that is all too easy to appreciate today. In the recent aftermath of Hurricane Maria, it is quite evident that many are still comfortable with Puerto Rican’s liminal status in our constitutional system, and happy to engage in a victim-blaming denial of their full inclusion as Americans. Erman’s monograph shows how Puerto Rico’s ambiguous status persisted alongside grand American claims to the promotion of democracy worldwide. It argues further that by sustaining this dissonance, the Supreme Court lessened constitutional citizenship for all Americans. Erman repeatedly shows how what he calls the “Reconstruction Constitution” of the post-civil War was “sacrificed…on the altar of empire” (P. 21). To decouple the presumption that territory and citizenship were co-terminus, the Court necessarily hollowed out the American franchise as it was extended to some at home and denied to others abroad.
Still, Almost Citizens is far from a rhetorical polemic. Erman melds meticulous archival research with the acuity of a serious constitutional lawyer in tracing his constitutional history of empire. As with many of the new legal historians of empire, Erman shows how grand narratives of racial supremacy and geopolitical ambition were enabled by the pragmatic legal reasoning of both Supreme Court Justices and the lawyers who brought claims regarding citizenship before them. By repeatedly elevating necessity over principle, over time the constitutional debate over Puerto Rico purely served the extra-legal purposes of assuaging America’s racial anxieties.
Just as the Reconstruction Amendments challenged the racialized and gendered nature of 18th century American citizenship, the broad post-Civil War commitment to social equality was at odds with new attempts to claim that territorial expansion did not bring with it full American citizenship. Erman reveals how even the infamous Dred Scott decision was part of an existing doctrinal tradition that established that American territorial acquisition would always imply future statehood.
A robust transnational history, Erman’s narratives are full of unappreciated interconnections between international and domestic elements in the making of modern American constitutional law. Even before the events of the Spanish American War that presented these questions of territory and citizenship, Erman shows how resistance to Spanish colonialism preconfigured how Puerto Ricans would engage with American conquest. The import of this experience grounded the many diverse and often conflicting agendas that Puerto Rican political leaders would pursue in the aftermath of 1898. Furthermore, Erman also shows how these agendas engaged with stateside politics where domestic concerns and ambitions drove positions on American empire.
One of the intriguing aspects of Almost Citizens is how diverse Puerto Rican views were on American racial politics and their role therein. Puerto Rican often leaders drew contrasts between themselves and other minoritized groups, in an effort to achieve inclusion within American “whiteness.” They sacrificed potential solidarity against racialized constitutional exclusion. Recurrently, the Philippines, along with Native American and African-Americans, emerged as cultural foils for Puerto Ricans. Thus in the cases dealing directly with the constitutional status of the territories acquired after the Spanish American War, commonly called the Insular Cases, there was a stark division between the strategies of Puerto Rican litigants and those from other conquered territories.
A central character in Erman’s narrative, and the one directly and intimately involved in the constitutional litigation giving rise to the Insular Cases, was Federico Degetauy. Degetauy embraced a liberal cosmopolitanism that he believed the American judiciary shared, and he thus built his litigation strategy around emphasizing his own patrician character as an exemplification of Puerto Rican cultural proximity. He repeatedly held himself out as the prototype of a genteel, educated, and civilized Puerto Rican, and took his access to power as tacit admission that others recognized that all Puerto Ricans had such potential. While this strategy did eke out some specific gains for Puerto Ricans, Erman describes how over time these smaller tactical gains helped build and gird the very constitutional basis of a more general denial of constitutional equality.
Even Erman’s other main actors, prominently Domingo Collazo and Santiago Iglesias, engaged in a racialized discourse which most often targeted the Philippines as undeserving of American inclusion. While Collazo represented the traditional land-owning elites of Puerto Rico and Iglesias started his career as a radical labor organizer, both men presumed that America would never accept Puerto Ricans as “white.” Ironically, in advancing claims about relative racial fitness for citizenship, these political rivals affirmed the very process through which denying Puerto Rico’s equal constitutional status contributed to “Latin” becoming non-white in the American racial imagination. Rationalizing a lack of full citizenship became intertwined with unease about Puerto Ricans’ belonging to Anglo-American, then Protestant, culture which had judged only itself capable of proper American self-governance.
According to Erman’s constitutional history, this strategy of cultural proximity and differentiation was never able to achieve the type of principled constitutional decision declaring all Puerto Ricans full and equal citizens which Degetauy, in particular, sought from the Supreme Court. The Supreme Court consistently engaged in a genre of what today is often called “constitutional avoidance” by consistently using narrow rulings that granted small concessions in each of the Insular Cases while leaving the larger question of Puerto Rico’s formal legal status unresolved. A process which eventually enshrined Puerto Rico’s ambiguous status through the open embrace of the doctrine of “territorial nonincorporation” in the 1922 decision Balzac v. Porto Rico. Erman reveals how this pattern of avoidance empowered the Bureau of Insular Affairs within the War Department to create what is best described as an administrative law of empire. In doing so, he shows how leading lawyers, and legal scholars, were often the strongest proponent of formal American colonialism at the turn of the 20th century. As such, “productive legal ambiguity remained the norm” (P. 144) whereby Puerto Ricans could be conscripted for war and still be denied full citizenship.
In tracing the careers of Degetauy, Collazo and Iglesias, Erman also demonstrates how tactical pragmatism in and outside the courtroom can bind later claims for justice. Iglesias is revealed to have had a close relationship to Samuel Gompers and placed his faith in the AFL as the benefactor of Puerto Rican workers. Yet Gompers’s interest in Puerto Rico was born of a cynical pragmatism akin to that of the constitutional doctrines of empire; here we see another chapter of the AFL’s self-inflicted wound of allowing racial politics to undermine true working-class solidarity. Similarly, Collazo threw his lot in with Southern Democrats whose interest in critiques of empire grew more from their own domestic concerns with racial supremacy and imagined waves of colonial immigrants than from any principled concern with constitutional equality—again leading to Collazo’s disappointment when Woodrow Wilson’s administration came to power.
Within this web of dueling ambitions and strategic misfires, Erman’s history displays how selective the voices can be that are heard in constitutional forums—even for those formally involved. His chapter on the 1904 case Gonzales v. Williams foregrounds the experience of Isabel Gonzalez, a Puerto Rican woman who was denied free entry into the United States at Ellis Island. Far from Degetauy’s image of patrician Latin gentility, Gonzalez was subject to a myriad of racial, gender and class stereotyping and discriminations which indirectly revealed the limits of Degetauy’s constitutional strategy of inclusion through exceptional personal character. While Gonzalez won her case, and the right of Puerto Ricans to freely enter the United States, she spent much of her life struggling with the public narrative of personal honor developed to argue her case, while the failed political and legal strategies of Degetauy, Collazo and even Iglesias left them with relative lives of ease. Gonzalez’s story offers the most direct insight into how far removed the daily struggles of Puerto Ricans often were from these constitutional battles.
Almost Citizens powerfully reminds us that the imperial law of the Insular Cases is a central part of our constitutional history, but also that these imperial doctrines are still binding law today. We still have imperial law. And the price of allowing this stain on our constitutional history to persist and normalize a less robust view of citizenship for all Americans by turning away from a broad commitment to equality in favor of one driven by selective inclusion. Erman demonstrates how there is no truly distinct constitutional history of empire, but one American constitutional history where “the value of citizenship was instrumental, and flexible, to be forged as opportunity allowed” (Pp. 139-140). Even by 1957, when the Supreme Court finally granted that American constitutional rights were not lost outside incorporated American territory, it did so by declining to overturn the Insular Cases or upend the governance of the now wide range of unincorporated territories the United States claimed across the Atlantic and Pacific Oceans. Erman’s disapproval of this process of avoidance never leads him to pure cynicism, but gives Almost Citizens a palpable sense of duty forsaken.
Erman’s rigor and empathy both explains how many sectors of American society continue to express indifference to the suffering of Puerto Ricans and how this indifference has been repeatedly enabled as the direct consequence of an “empire that dared not speak its name” (P. 97). It does so by achieving the promise of transnational history, showing the historical intimacy of what might have been segregated into domestic and foreign. As battles over the meaning of American citizenship and belonging now rage in contemporary legal and political debate, Almost Citizens is a reminder that an empire cannot be a republic abroad without great cost at home.
Feb 6, 2019 Mary Ziegler
The law plays a sometimes-contradictory role in the stories of female antiabortion activists described in Karissa Haugeberg’s richly researched Women Against Abortion. Haugeberg meticulously studies how gender informs the work of many of the women who have dominated the antiabortion movement in recent decades. However, Women Against Abortion also captures the complex role played by the law in a social movement only ever partly convinced that legal strategies could deliver meaningful social change. Haugeberg’s characters struggle to define a law-free space in which to fight against abortion, and some of the most skeptical find themselves drawn into policy-making. Yet legal solutions deliver far less than Haugeberg’s subjects demand. Her compelling and original study suggests that even if legal strategies inevitably pull in some pro-life activists, frustration at the pace of legal change can have a profound radicalizing effect on others.
The fascinating women who populate the world of Women Against Abortion viewed the role of legal reform with particular skepticism. These activists struggled at times to justify their careers in the pro-life movement, especially since antiabortion groups often insisted that women should prioritize motherhood. To reconcile their work, family commitments, and ideology, the women of Women Against Abortion sought to carve out roles in the movement that reflected their unique experiences as women and as mothers. Rather than prioritizing litigation or legislation, the female activists Haugeberg studies worked in crisis pregnancy centers or participated in clinic blockades. With varying degrees of success, these female activists justified their work by carving out a uniquely female form of pro-life activism, one that resembled motherhood. But as Haugeberg shows, these grassroots activists often found themselves drawn to legal change.
The characters that populate Haugeberg’s story may not be household names, but their stories illuminate the complex identities of pro-life women. Marjory Mecklenberg, the first of Haugeberg’s subjects, turned away from legal reform after unsuccessfully working to convince her colleagues to prioritize the needs of pregnant women as well as fetal rights. Working in an organization of her own, Mecklenberg prioritized the formation of crisis pregnancy centers (CPCs). While appealing to women who opposed the fetus-focused work of larger organizations, CPC work also attracted women struggling to justify work outside the home. By framing CPCs as an extension of the family, Mecklenberg and her colleagues hoped to create a space untouched by the law. However, as Women Against Abortion shows, Mecklenberg herself soon rationalized a focus on policy work. As part of the Reagan Administration, she helped to direct federal money away from established programs and toward abstinence-only initiatives.
Over time, CPCs became further and further entangled with the quest for legal reform. Law-oriented organizations pledged to elect presidents who would reshape the Supreme Court and uphold increasingly strict abortion restrictions. But CPC leaders fought for the election of the same conservative politicians. Republican lawmakers either earmarked funds for abstinence-only education under existing laws or created new programs to fund CPCs. While claiming to be largely above the legal fray, the law helped to fuel the expansion of CPCs.
Women Against Abortion shows that legal organizations also had a more complex relationship to antiabortion lawbreaking than many studies have captured. Some of the women Haugeberg studies immersed themselves in illegal!even violent activity. Shelley Shannon, the most chilling character in Women Against Abortion, tried to murder abortion provider Dr. George Tiller years before another extremist succeeded. In telling the stories of activists like Shannon, Haugeberg shows that law-oriented organizations often facilitated the work of those who illegally blockaded clinics or plotted violent attacks. Individual activists moved between legal work and law-breaking. Some swore off criminal activity as they aged or had families. Others who had prioritized legislation and litigation broke the law after giving up on more conventional reform strategies. And events hosted by law-oriented organizations provided space for those who later pursued covert operations.
Indeed, activists’ very commitment to a right to life had a radicalizing effect. Haugeberg describes the frustration of women like Shannon and Joan Andrews with the slow progress of legislation and litigation designed to end abortion. The idea of a constitutional and even God-given right to life resonated deeply with grassroots women in the pro-life movement, but after decades of struggle, women like Andrews concluded that the law would never truly protect fetal rights. Women’s very passion about a constitutional right to life led them believe that the only way to make progress was “a guerilla war against those who would kill.” The promise of constitutional change mobilized a broad range of women invested in protecting fetal life. Yet the chasm between the antiabortion movement’s legal ideals and pragmatic solutions had a radicalizing effect on many activists. Haugeberg provocatively argues that the law-oriented wing of the movement helped to shape and even nourish antiabortion violence.
Historians of social movements often pit lawyers and legislators against activists invested in direct action. Haugeberg’s impressive book reminds us that the story is never so simple. Legal reformers and radicals may resemble one another far more than we would have believed.
Jan 31, 2019 Angela Fernandez
The rhetoric of a “marriage crisis” is a familiar one. William Kuby’s excellent new book gives us an incisive history of the way that a sense of crisis was invoked in debates about a variety of forms of marital misconduct and the backlash they inspired in the progressive era. Kuby expertly marches us through the way that late nineteenth and early twentieth-century American judges, state legislators, polemicists, and reformers of all stripes relied on ideas of common sense public policy and moral decency to police marriage in each of the five instances of marital misconduct he examines.
The first form of marital misconduct Kuby describes is the use of marital advertisements and state and church marriage bureaus that sought to match bachelors with single women. The latter were used in regions of the West to encourage the formation of stable family units (e.g. in Oklahoma to find wives for lonely farmers). The former, viewed as mercenary and inappropriately commercialized, were generally frowned upon by journalists and academics, such as sociologist and criminologist Arthur MacDonald who labelled the women who responded to them “abnormal.” Even though these advertisements often stated “objective marriage” and “no triflers” (see image on P. 26), they were strongly associated with indecent (and risky) sexual and moral behavior. Innovations in transportation and the wider circulation of newspapers created “new possibilities in courtship,” Kurby writes, “finding partners beyond one’s restricted geographical location – or outside one’s narrow class or racial designations.” (P. 67.) These “expanding geographic and demographic boundaries of mate selection” display what Kuby calls “a crucial feature of modern romance.” (P. 67.)
The second type of controversial conjugal behavior Kuby explores is hasty remarriage after divorce or what was called by its critics “progressive polygamy,” including the attempt by couples to cross state lines in order to circumvent restrictions surrounding remarriage in their home state (waiting times or prohibitions on remarriage where there was adultery to an adulterous partner). The validity of such marriages created particular problems for the legitimacy of children. Kuby explains how the threat of illegitimacy ultimately undermined a policy of invalidating those marriages in Illinois, which for two decades required a one year post-divorce waiting time. “[C]ouples defied it time and again, raising repeated legal and administrative headaches over the fate of illegitimate children. Ultimately, constant disobedience of the law rendered it unsustainable.” (P. 96.)
The third category of noncompliant couples were those seeking to evade state eugenic laws by marrying out-of-state. Kuby explains the challenges that were involved when a legislature incorporated physician examination into a state’s marriage laws in order to weed out those seen to be unfit for married life and, specifically, reproduction (e.g. men with syphilis or men and women categorized as “feebleminded”). In Wisconsin, the $3 physician charge did not cover a proper examination anyway, and even doctors came to resist co-optation into this form of marriage policing. Kuby concludes that the ways that “concerned lawmakers overextended themselves by seeking overly aggressive, often implausible solutions [such as] stricter premarital health examinations and longer waiting periods, however ill-fated, demonstrate the intensity of the concerns that dysgenic unions and evasive elopements generated.” (P. 141.) Like hasty remarriage, marriage by those who would not submit themselves to medical examination demonstrate “the passions elopement sparked.” (P. 141.)
Fourthly, Kuby examines the fierce animosity sparked by “trial marriage,” an idea proposed by those who wanted to address the desire people, especially the young and inexperienced, had to try out marriage to a particular partner before having children. The childless conditional marriage was meant to ultimately improve the long-term quality and duration of marriages by releasing those who entered into ill-matched unions to form if not divorce-proof but more divorce-immune marriages with someone else. However, conservative critics were unable to embrace any variant of trial marriage given their strong “aversion to [any form of] divorce and a sense of panic over changing gender conventions and sexual morals.” (P. 182.)
Black-white intermarriage is the fifth form of matrimonial misconduct Kuby explores. Here he examines situations in which the disapproving family or friends of an interracial couple could successfully push for annulment of the marriage on the grounds of fraud and deceit relating to the race of the black spouse. In Northern states which lacked anti-miscegenation laws, interracial marriage “was legally permissible but culturally intolerable in most circles.” (P. 199.) Here are some of the most poignant stories in the book, including one of a white woman in Michigan in 1929, who after finding out her husband of five years was black, won a divorce from him on the grounds of “extreme cruelty” and surrendered all parental claims to their two children, agreeing with the judge that a white woman could not parent a nonwhite child. (P. 202.) Parents turned on adult children in these cases, often at great cost to their child’s reputation and standing in the world. (P. 207.) Family interference in interracial unions went so far as to include charges of mental illness premised on the idea that “only psychologically unsound white individuals wed across the color line.” (P. 210.) Despite the controversial status of interracial marriage in black communities, “accusations of insanity did not, however, fall on black partners in interracial unions.” (P. 213.)
Kuby’s book strongly demonstrates the sheer tenacity progressive-era Americans showed in their insistence on marriage and the great lengths to which they would go in order to marry and remarry the person of their choice. A recurring theme is the way that divergent rules in different states were used by couples to effectuate their strong desire to be wed. The behavior was often strategic on the part of those desiring the marriage and those seeking to provide the service, as marriage mills would form in one state for out-of-state clientele, be shut down, and pop up again in another state eager for the business. Time and again we see out-of-state couples seeking to evade rules on wait times before obtaining a marriage license or having to post banns at home where friends and family might object and intervene, circumventing eugenic clearance procedures in their home state, or avoiding rules relating to minimum periods between divorce and remarriage. In my favorite line of the book, Kuby quotes a Pennsylvania minister who stated about a shotgun wedding law: “It’s a great law … It won’t stop elopements though. Love always finds a way. It has lots of loopholes, too.” (P. 145.)
That very real sense of (successful) persistence comes through, as against conservative legal forces which seemed to be more successful at moving a problem around than really solving it. The law often had only limited effect. Initiatives to organize uniform marriage law were largely unsuccessful. A rising divorce rate seemed to be impervious to anything anyone was doing about elopements and remarriage wait times. People were coming to view marriage as impermanent and when disappointed about one marriage as a vehicle for individual physical and psychological fulfillment, they were eager to contract another (too much “free love” as some of the judges put it). The marriage education movement, the topic of the book’s final chapter, arose out of the realization that the law had a limited role to play in the face of seismic shifts in gender relations and attitudes towards sexuality and life-long monogamy. Yet still people desired the legitimacy marriage provided and were willing to go to great lengths to obtain it.
The highlight of the book is probably the Epilogue in which Kuby explains how marriage has been systematically privileged in American law and society as the ideal form of social organization, ironically reinforced by those engaged in different types of conjugal misconduct as they sought legitimacy for their unions. Kuby argues that this privileging has stigmatized single life and other forms of human connection. Moreover, all the predictions about the demise of matrimony by socially conservative critics responding to each of the forms of “misconduct” involved in hasty/evasive marriage actually allowed marriage’s “supreme reign to persist.” (P. 288.) Kuby writes: “Again and again, acts of conjugal misconduct have sparked perceptions of a national marriage crisis, yielding a mixture of backlash and accommodation to shifting marital trends. But ultimately the biggest victor in these crises is the institution of marriage itself.” (P. 287.) This is an important insight, very much on display in the late twentieth-century same-sex marriage debate, which Kuby deftly analyzes. The ultimate aim? The “historical knowledge of backlash in the face of perceived marriage crisis should give us all pause in our assessments of what constitutes proper marital and familial arrangements.” (P. 287.)
