Empire Before Nationhood

Sep 20, 2013 Christina Duffy Ponsa

Christina Duffy Ponsa

One of the challenges of reviewing Eliga Gould’s international history of the American Revolution, Among the Powers of the Earth, is that the book makes you feel like you’re looking at history through a 360-degree lens. A legal, diplomatic, and intellectual history spanning from the mid-18^th century to the declaration of the Monroe Doctrine in 1823, the book situates the Revolution in the context of the evolving law of nations in a strikingly rich and detailed account. Everything, it seems, is in there.

Partly it’s Gould’s writing style. Rich in narrative and streamlined in argument, its movements back and forth between the two are unlabored.

Partly it’s Gould’s obvious love of the stories he tells. He writes as if he had been there and remembers it all, and having seen it firsthand, wants to sit down with you and tell you all about it. When he gets going, you feel like the historical actors are his neighbors and the plotlines are the latest gossip in town.

And partly it’s Gould’s ideas, which are as capacious as his narrative. But before I turn to the one that I found most intriguing, I should say that if I overstate the case, I will do a disservice to the book, which among its many strengths boasts that of not overstating its case. So let me catch my breath and say, first, that Gould’s book makes an important contribution to the literature on the international legal history of the American Revolution and Founding era, and second, that there’s one thing about the book I confess I don’t “like lots,” and that is the phrase “treaty-worthy.” As in, Gould argues that in order truly to achieve the status of an independent nation, Americans had to prove that they were “treaty-worthy.” Apart from being slightly too clunky to do justice to the rest of Gould’s writing, the phrase feels to me as if it fails to capture—just barely, but still—one of Gould’s own most compelling insights: namely, that to be treaty-worthy, a nation had to be more than treaty-worthy. To be treaty-worthy, that is, a nation had to be an empire.

Gould alludes early on to Americans’ “drive to be accepted as a treaty-worthy nation in Europe.” (P. 11.) What he then shows is that Americans’ drive for acceptance succeeded only when it was no longer up to Europe whether to accept or not accept. It would be a mistake, that is, to believe that Americans became a treaty-worthy nation when European powers finally “accepted” them as such. Not only would formal recognition, while itself a crucial step toward independence, not suffice; neither would outside acceptance of the United States’ “treaty-worthiness.” This is because, as Gould shows, treaty-worthiness is ultimately accomplished not by acceptance but by imposition: upon external powers and upon internal minorities. Gould ably sheds light on the subjugation of Native Americans and blacks by showing how it was essential to the United States’ ascent into treaty-worthiness. The United States increasingly gained control over its own extended domain and, eventually, made clear that it was willing and able to project its power beyond its boundaries as well as within them. Ultimately, this was what it took to make it a treaty-worthy nation, in Gould’s persuasive account. But if that is the case, then the difference between a treaty-worthy nation and an empire would seem to be no difference at all.

With this insight into the imperial preconditions of nationhood comes a curious twist in periodization. It is true, as one reviewer puts it, that Gould “extend[s] the founding moment beyond the 1770s and 1780s in both directions,” showing “a real continuity between the new nation and its imperial antecedent.”¹ But does Gould do more? If one takes seriously the idea that it took an empire to make a treaty-worthy nation, then one is left wondering whether the “imperial antecedent” to the “new nation” that Gould is writing about isn’t really the newly formed United States itself: at first a weak and overextended federation tenuously asserting its sovereignty over core and peripheral territories alike (what’s not imperial about that?), and only later, as a result of its gradually amassing, consolidating, and demonstrating its power, a nation with a credible claim to treaty-worthiness.

1. James E. Lewis Jr., H-Diplo Roundtable Book Review, H-Net: Humanities and Social Sciences Online, Apr. 01, 2013.

The State Origins of Federal Plenary Power

Aug 5, 2013 Allison Brownell Tirres

Allison Brownell Tirres

Where does federal plenary power over immigration come from? For a long time now, scholars have pinpointed the definitive starting point in the 1889 Supreme Court case of Chae Chan Ping v. U.S. (aka The Chinese Exclusion Case), which announced that immigration control was “an incident of sovereignty” and thus a matter for Congressional—not state or judicial—power. In an excellent new article, historian Hidetaka Hirota challenges this basic assumption. He argues convincingly that federal plenary power arose not only from the Court’s reading of international and constitutional law, but also from a long history of state practices of migrant policing and control. The federal government took political, administrative, and procedural cues from the state immigration regimes that predated Chinese Exclusion, particularly those in the influential states of New York and Massachusetts.

Hirota is not the first to look at state immigration power. As he acknowledges, Gerald Neuman and Kunal Parker have done foundational work in this area, exploring the ways that state regulation of the poor and of fugitive slaves served as precursors to federal immigration control. Hirota’s focus is on the ways that states dealt with foreigners arriving from Europe in ports along the Atlantic coast. The border that mattered in this period was a coastal one, not a land border. With no modern visa system in place, state officials had no control over who would seek to land on their shores. Hirota recounts how the Atlantic seaboard states developed a comprehensive approach to preventing or limiting the migration of the poor, as well as removing them after entry if necessary. State officials created boards of immigration to oversee efforts and devised systems of bonds and taxes. Ship captains who brought passengers who were “likely to become permanently a public charge” had to supply bonds in the event that a passenger required poor relief. If the ship companies did not provide the bonds for those passengers, state officials would prohibit the passengers in question from landing. Ship companies would have to return the passengers to Europe on their own dime. States also charged a head tax (in lieu of bonds or in combination with them), which was a fee on all healthy passengers. This was used to offset the cost of receiving destitute passengers. Of course, these taxes would give rise to the Passenger Cases in 1849 and to Henderson v. New York in 1876. In combination, these cases greatly limited the states’ power to tax passengers, based on the Supreme Court’s interpretation of the Commerce Clause.

The story so far recounted is a relatively familiar one, but what follows is new. Hirota demonstrates that the state experience with barring destitute migrants led directly to federal exclusionary measures. He connects the dots with clear evidence. States, fearful of the loss of revenue after Henderson, worked together to pass federal legislation that looked just like the extant state laws. State officials in New York and Massachusetts collaborated on draft bills that were sent to Congress. As a Massachusetts official explained of a draft bill, it was “an extension to the whole nation and under the authority of law, of the old state system of dealing with immigration.” (P. 1097.) The resulting federal Immigration Act of 1882 had several provisions that were taken directly from state practices: the bill included a tax to pay for the care of destitute migrants, it excluded those “likely to become a public charge,” as well as criminals and the mentally disabled, and it made ship captains liable for the cost of return passage of excluded migrants.

The influence of state governments over federal exclusion went deeper than legislative lobbying to include the implementation and administration of the new act. For almost a decade, the federal government relied on state officials to inspect migrants entering the ports and to decide who was excludable. Federal officials even reimbursed state boards for the cost of removing excludable immigrants after entry. After 1891, this “state-federal joint administration” was nationalized: Congress created a federal core of officials to administer the law. But state influence continued; as Hirota recounts, many of these new federal officials were themselves former state inspectors.

Hirota argues that the presence and active involvement of state officials had a lasting impact on the treatment of migrants themselves in the federalized system. His research helps to explain a long-standing conundrum about immigration law: the remarkable lack of due process protections and the enduring presence of unchecked discretion. He recounts how state officials had acted with virtual impunity before the 1880s in removing paupers. He argues that this approach, which vested broad discretion in state officials, was then taken on and naturalized in federal efforts. As he writes, “In making federal immigration law more comprehensive, policy makers simply codified what had become the norm in the practical enforcement of immigrant exclusion and deportation.” That norm included “practically unrestricted power over immigrants.” (P. 1107.)

Hirota successfully moves nineteenth-century immigration history out of the powerful shadow of Chinese Exclusion. He demonstrates that state economies, not just racial animus, were at the heart of decisions about exclusion of migrants, and that the Atlantic seaboard states had a disproportionate influence on the federal legislation and procedure that resulted. His work is an excellent corrective to the standard narrative of federalism and migration control and it is sure to stimulate new historical inquiry.

Law And The City

Jul 19, 2013 Elizabeth Ruth Dale

Elizabeth Ruth Dale

When I was growing up in Chicago in the 1970s, I obsessed about Jane Jacobs’ Death and Life of Great American Cities (1961). The book captured much about what I loved about living in the city: The differences one discovered walking down that street instead of this one, the various faces a single block could present at different moments of the day, the way the little independent stores that sold small market journals or Asian specialties butted up against the more generic stores that sold the Snickers bars and Dr. Peppers that I lived on in high school. But there were also things about Chicago that the book did not address: The fact that there were areas not far from my home that I could not go into as a white teenager and other areas that my classmates could not go as teenaged blacks. The way that those spaces were defined as much by the city government’s decisions not to enforce laws or to fail to enforce laws equally, as they were by local preferences. The fact that Chicago’s neighborhoods, and the racial tensions between them, were defined as much by choices to ignore federal laws against redlining, racial steering, or housing discrimination as they were by community norms. And, finally Jacobs’ celebration of the local did not capture the extent to which the struggles over those problems were defined by national, and sometimes even international, debates.

I started reading Mariana Valverde’s recent book, Everyday Law on the Street: City Governance in an Age of Diversity (2012), a study of street-level urban governance in Toronto, because it promised a law and society alternative to Jacobs’ work. But while I came, so to speak, for the law and society recasting of Jacobs, I stayed for the reminders her work offers legal historians.

Of course, there have been important legal histories of cities before; one thinks of Dirk Hartog’s Public Property and Private Power (1989). Valverde’s book, although not directly a history (though history plays a role in her account), is clearly in that vein. But her book is more than a reminder of important law and society contributions to the legal history of urban life. It is a constitutional story of how people negotiate multi-layered sovereignty (from the local to international) that shows us how historical actors are shaped by, and shape, a mix of legal regimes. Her descriptions of the grey and informal spaces where laws, regulations, government agents, and members of the public interact, demonstrate how blurry the lines between formal law and popular constitutionalism or extralegal justice can often be. And by unpacking that in-between space of quasi-law and discretion, she points us in the direction of the important work being done in Latin American legal history by scholars like Amy Chazkel (Law’s of Chance: Brazil’s Clandestine Lottery and the Making of Urban Public Life (2011)) and Pablo Piccato (City of Suspects: Crime in Mexico City, 1900-1931 (2001)). Valverde focuses on land use and regulation, while Chazkel and Piccato look at criminal law, but all three works describe cities where law and the legal system are merely a part (albeit an important part) of a larger social system. In the process, they also show us how constitutional claims (from state power to the scope of citizenship and individual rights and privileges) are defined, in all senses of the term, by the enforcement, non-enforcement, or disregard of laws and regulations on the ground.

Ultimately, by peeling back the elements of law in Toronto, Valverde’s book shows us just how variegated a city can be; it also reminds us how amorphous the subject of legal history is.

Colonizing Humanity

Jul 5, 2013 Kunal Parker

Kunal Parker

Samera Esmeir’s ambitious book, Juridical Humanity: A Colonial History, explores the legal transformation of British-ruled Egypt between the 1880s and the 1930s. With news from Egypt the subject of daily headlines, the book is timely and important. However, it is Esmeir’s innovative treatment of her subject that truly makes this book deserving of the widest readership. In contradistinction to a powerful tradition of writing about colonialism, Esmeir sees in the legal colonization of Egypt not the occlusion of Egyptians’ intrinsic humanity, but instead the instantiation of “humanity” as the object of colonial law’s solicitude. This is the “juridical humanity” of the book’s title.

Naming “humanity” as its teleology, Esmeir argues, colonial law sought to reconfigure Egyptian society according to “humanity”’s logic. The pre-colonial legal tradition, one with which the overwhelming majority of Egyptians identified, came to be roundly dismissed as inhuman, barbaric, and violent. With the goal of “humanizing” Egyptian society, colonial law reconfigured Egyptian social relations in a range of contexts: labor, gender, incarceration, the treatment of animals, and so on. European and Egyptian legal elites participated enthusiastically in this “humanizing” project. As Esmeir skillfully shows, however, the effect was not to rid Egyptian society of violence, but rather to produce a different relationship to violence: one that carefully measured, calibrated, and fitted violence to the imperatives of “humanity.” It is hard not to recognize in Esmeir’s account the pre-history of the human rights-led imperialism of our own day, with its lurid depictions of various social oppressions in the non-Western world that legitimize Western military intervention. Esmeir clearly has this in mind.

But Esmeir is also doing more. She sees in the inauguration of “juridical humanity” in Egypt a problem not just for Egypt, but for the modern world at large. For the legal reconfigurations of social practices according to the logic of “humanity” that she traces in Egypt, she would maintain, are to be discerned all over the modern world, in the historical experiences of the West, Asia, and elsewhere.

This sweeping and provocative argument might be troubling to adherents of a rather more specific understanding of colonialism, especially those scholars who have self-consciously followed in the wake of Edward Said’s pathbreaking 1978 book, Orientalism. For if the “colonial,” in Esmeir’s reading, really refers to the operation of modern law in its imposition of the logic of “humanity” on pre-existing social practices, whether in Europe or elsewhere, what becomes of the “colonial” understood more narrowly as Europe’s relationship of dominance vis-à-vis the rest of the world?

Precisely because Esmeir’s book sees itself as tracing through Egyptian materials the instantiation of a general and global problematic—namely, the emergence of “juridical humanity” as the teleology of modern law—I sometimes had the sense that I was missing the specificity of the situation of the British-ruled Egypt. Juridical Humanity can sometimes read like the reproduction of a Western debate—the modern versus the anti-modern—in the context of colonial Egypt, rather than something that emerges from what is particular to Egypt. Esmeir achieves this effect stylistically. Unlike what most professional historians might do, she frequently interrupts a discussion of Egypt to take an extended detour into the writings of Walter Benjamin, or Hannah Arendt, or Bruno Latour, or Donna Haraway. At other times, she suggests that nineteenth and early twentieth century Egyptians made arguments that mirrored—or that could unproblematically be set in dialogue with—the writings of Western legal thinkers working in entirely different contexts. Take, for example, Esmeir’s statement (p. 51): “Mursi and Mustafa’s definition of positive law as inclusive of all forms of legal ordering recognized by the government anticipated by many years H.L.A. Hart’s theory of positive law as articulated in The Concept of Law, published in 1961.”

As someone who thinks about, and seeks to think beyond, the prison of historical context, I do not care to insist on the priority of the framework of disciplinary history. Sometimes, however, I found Esmeir’s shuttling between, say, Walter Benjamin and an Egyptian legal scholar a bit infelicitous, not because Esmeir was stepping out of the framework of disciplinary history, but because I sometimes had the sense that Egypt and Egyptians were being pressed into the service of a set of arguments that they might not have cared about. I would have liked more Egypt in this book than Esmeir elected to put in.

This mild criticism notwithstanding, the book Esmeir has written is a pathbreaking account of the colonialism of the modern legal project that merits the attention of scholars in a range of disciplines: law, history, Middle Eastern studies, critical theory, science studies, and more.

Property and (Not “vs.”) the State

Jun 4, 2013 Roman Hoyos

Roman Hoyos

One of my favorite cases is Shelley v. Kraemer (1948), which held that racially restrictive covenants (restrictions barring a racial or ethnic group(s) from owning a home in a particular neighborhood) were unenforceable. In fact, I use this case, along with State v. Mann, Commonwealth v. Alger, and Johnson v. M’Intosh, to help frame my Property course. I use Alger and Johnson to get my students to think about the statist dimensions of property. I then bring in Shelley to explore the relationship between courts and the state, pushing them to see how a judicial decision concerning property rights is an allocation of those rights by the state. Richard Brooks and Carol Rose’s book, Saving the Neighborhood, is a wonderful doctrinal history of Shelley that both confirms and complicates the story I tell my students. More importantly for this piece, it also complicates our understanding of an important period in American legal history.

Saving the Neighborhood charts the rise, fall, and curious persistence of racially restrictive covenants. What particularly grabs Brooks and Rose’s attention is Shelley’s failure to eradicate these covenants. Their persistence is illustrated dramatically by the discovery during Justice Rehnquist’s confirmation hearings for Chief Justice that he owned properties subject to racial covenants (pp. 1-2). This persistence leads Brooks and Rose to an exploration of the relationship between law and social norms. They argue that the covenants’ utility was more about signaling to both insiders and outsiders who was desirable as a neighbor than it was about enforceability. Covenants assured those already within the neighborhood, while warning out racial others who might want to move into it.

While not the central theme of Saving the Neighborhood, Brooks and Rose’s history of racially restrictive covenants in the early twentieth century exposes a relationship between law and the state not easily captured by classical legal thought, which continues to frame our understanding of the period. One strand of this interpretation posits law (and property) as antagonistic to the state. Thus, in the so-called “Lochner era” we find courts striking down statutes on a regular basis in order to protect property rights.  In fact, in 1917, the U.S. Supreme Court struck down a racial zoning ordinance in Buchanan v. Warley, which eventually led to the rise of racial covenants (pp. 35-46).

Brooks and Rose’s account, though, offers a different view of property rights and their legal status. Their history of these ostensibly private agreements destabilizes the very idea of private property rights. Racial covenants were unstable legal devices that highlighted, as Shelley would demonstrate, that property law is centrally concerned with policing through the allocation of property rights. As Brooks and Rose demonstrate, the rise and fall of the enforcement of race covenants was the result of policy considerations.

The history of race covenants began with white real estate developers and neighborhood homeowner associations seeking to “save their neighborhoods.” The more legally vulnerable covenants were those created by neighborhood associations, as they lacked a key formal element required for creating a covenant: privity (pp. 78-87). Horizontal privity of estate required the covenant to be created at the time of the lease or sale of land, which was lacking when homeowner associations created covenants.

But covenant law also posed problems for developer-imposed covenants. For example, a covenant must “touch and concern” the property restricted (pp. 87-93). Traditionally, this element required a restriction on the physical use of property. But who could own property involved ownership, not the use of property. Early attempts to enforce developer covenants often floundered on this element. However, as “touch and concern” was broadened to include “value” (the protection of which is the chief purpose behind a covenant), courts began to recognize and enforce race covenants.

Changes in how courts approached the formal elements were tied to courts’ shifting policy concerns. For instance, in early cases courts invoked the proscription of unreasonable restraints on alienation to invalidate racial covenants (pp. 56-62). Apparently, a race-neutral market system was preferable to race covenants. But as judges began to work their way through the reasonableness of the restraint on alienation, they came to countervailing policy considerations: maintaining property values and alleviating social tensions (ch. 5). In redefining “reasonableness” courts reversed course to uphold race covenants, promoting both racial purity and a racialized market system in the process.

It is here where we can begin to see the line between state and courts begin to dissolve. Racial zoning ordinances, which were struck down by the Court in Buchanan, were exercises of the state’s police power to “protect the public health, safety, welfare, and morals” of the community. Maintaining property values and protecting the public peace was simply a judicial form of policing. It is this similarity between “policy” and “police” that points the way toward understanding courts as state actors, and property law as the delimitation of property rights by the state in its judicial mode.

Brooks and Rose’s history of race covenant law illustrates how dependent property rights are. Any dispute over property rights ultimately raises the question of whose rights are to be protected. Courts must choose. In doing so, they must identify interests beyond the parties to be protected; and this is a policy question. Even the decision to rely on formal elements of the law is ultimately a policy decision. It is thus policy that connects the state, courts, and property.

Saving the Neighborhood, like Shelley v. Kraemer, wonderfully disturbs our notions of legal liberalism and its artificial separation of public from private, state from law, and law from violence (which ultimately lay behind race covenants). Their book is a model that can help us to redraw the connections between law and the state during an important period in American legal history, especially in areas of ostensibly “private” law.

The Global Community of Ideas that Created Neoliberalism

Apr 30, 2013 Christopher W. Schmidt

Christopher W. Schmidt

In The Great Persuasion: Reinventing Free Markets since the Great Depression, Angus Burgin, a historian at Johns Hopkins, offers the fascinating story of a trans-Atlantic group of intellectuals who, beginning in the 1930s, came together in an effort to articulate and promote an alternative vision to the then-dominant ideas of Keynesian economics.  In this short essay, I describe Burgin’s impressive contribution to the intellectual history of modern conservatism, and then offer some concluding thoughts on neoliberalism as a constitutional value today.

The basic story of the resurgence of conservatism, including free market ideology, in the second half of the twentieth century is well known.  What this fine book adds is a sensitive and nuanced portrait of those thinkers—economists, mostly, but not exclusively—who, through several generations of struggle, among themselves and with their antagonists, shaped the ideas of what has come to be known as neoliberalism.  Burgin’s overriding argument is that these people made possible the eventual triumphs of free market ideas in the public sphere.  Although often articulated in abstract and technical terms, these were ideas that would have a profound impact on American life and politics.

In making his case for the significance of this vanguard of free market intellectuals, Burgin advances several claims.  One is that inter-personal relationships and the “networks and processes of intellectual exchange” played a critical role in the development of the free-market movement.  At the center of this collective enterprise was the Mont Pelerin Society, a forum that Friedrich Hayek created in 1947 to bring together critics of the modern welfare state scattered throughout Europe and the United States.  As Burgin describes it, “individuals who were secluded in their national environments became, through the acts of congregation and communication, participants in a purposive community.”  The Great Persuasion is, in part, a history of this important but underappreciated “global community of ideas.”

Another claim Burgin presses (a standard, perhaps even essential, one for the modern intellectual historian) is for the importance of ideas.  Ideas matter because under the right circumstances they can be influential: the resurgent political commitment to free-market ideology of the 1970s and 1980s “could not have occurred without the committed efforts of a transnational community of ideas.”  They matter because they cannot be reduced to mere rationalizations for political or materialist interests.  Modern conservatism emerged in part because it seemed to provide a stable antidote to the anxieties of modern life; in part because of what Kim Phillips-Fein has called the “hidden hands” of wealthy business interests; and in part because of the racial anxieties of white America.  But, as Burgin persuasively argues, it cannot be reduced to these factors.  The idea makers at the heart of the book were far from paranoid or irrational; they relied on outside funding, but were militantly protective of their intellectual independence; and, at least according to the sources Burgin examines, racial politics simply did not cross their radar screen in any significant way.  (And when it does, they could be unpredictable: Milton Friedman opposed the Civil Rights Act of 1964 on libertarian grounds, while Hayek, although sympathetic to the libertarian concerns, believed the law was needed.)  They were true believers in the moral and instrumental supremacy of the free market.  This is not to say that their ideas were unaffected by political and material influences; but it is to say that they cannot be explained away by them.

Having made his case for why we should give considered attention to this collection of thinkers, Burgin then turns to exploring what they actually thought.  Here is where Burgin’s careful research into voluminous archival sources, in the U.S. and in Europe, yields an ultimately unsurprising but still quite valuable insight: their thinking was nuanced, tentative, and conflicted, and they regularly disagreed with one another.  Contrary to the caricatured images of Hayek and others that populate our contemporary debates, these were hardly doctrinaire free marketers.  Their heterogeneity was particularly evident in the 1930s, 40s, and 50s, when the movement was just finding its footing.  The early generations of free market advocates were united in their concern with increasing government intervention into the market.  Beyond this point of convergence, however, they struggled to agree on much of anything, especially when discussion turned from critique to alternatives.  The extent to which they embraced unfettered markets varied considerably.  They also struggled with the proper relationship of their project to the world of politics and policymaking.  These men (yes, all men here) were dedicated intellectuals who wanted to influence public affairs, but also feared the inevitable simplifications that would come from practical application of their ideas.  A major contribution of this book is to capture the rich complexity of the thought that gave rise to neoliberalism.

With the emergence of Milton Friedman as the leading public proponent of free market ideas, beginning with his publication of Capitalism and Freedom in 1962, a forceful, politically engaged simplicity became the new style of the movement.  In the second half of The Great Persuasion, Friedman takes center stage.  The University of Chicago economist built off the work of his predecessors, but he also seemed willing to push aside much of the intellectual humility that defined their project.  By the 1970s, free market advocacy had evolved into something quite different from what it had been in the early postwar period.  “Friedman’s confident language,” writes Burgin, “signaled that the moral quandaries and programmatic ambiguities of an earlier generation had been left behind, and a great persuasion had begun.”  Neoliberalism had found its public voice.

So what does this thought-provoking book tell us about the development of law and conservatism in the second half of the twentieth century?  This is a work of intellectual history; legal issues are only occasionally touched on.  Burgin evaluates the influence of free market ideas on economists and policymakers, not courts and lawyers.  Yet if we consider the dissemination of these ideas into the realm of American law, we find that its victory here was much more limited than in the realm of economics and policymaking.

Burgin’s protagonists defended their commitment to reducing government involvement in the market on two grounds.  One was pragmatic and functional—the free market, on balance, works; government is simply not good at managing the economy; the costs of government interference outweigh the benefits. The other was more idealistic—market regulation implicates individual liberty, and government regulation of economic relations can have liberty-curtailing spillover effects beyond the market.  Through the rise of the law and economics movement, the functional argument has clearly left its mark on the development of private law.  The idealistic argument has shaped how the public and their representatives talk about government regulation, yet its impact on the law—specifically the realm of public law, where liberty values are most obviously at issue—has been distinctly qualified.

The reason for this, of course, is the shadow of the Lochner era on modern constitutionalism.  American constitutional law in the post-New Deal era has identified certain non-economic rights as meriting judicial protection, while relegating economic rights to the democratic process.  Regardless of whether one is persuaded by the justifications for this approach (most of which emphasize limits of judicial competence and majoritarian pathologies that place non-economic rights at particular risk), it is worth at least noting that there is something aberrant about the virtual exclusion of economic liberty from constitutional law.  Over the past half century, neoliberal ideology has deeply affected popular attitudes about the relationship of government and society.  It has changed the way policymakers talk about their responsibility to the American people.  But when it comes to judicial understandings of the relationship of the Constitution to the economy, we still live under basically the same regime left us by the New Deal.  Modern progressives have written about social welfare rights as constitutional norms that are judicially underenforced.  After reading Burgin’s examination of the intellectual underpinnings of the post-New Deal transformation of public attitudes toward market regulation, it is hard to escape the conclusion that there is an even stronger case for some forms of economic liberty as constitutional norms that are currently underenforced by the courts.

In this way, The Great Persuasion invites further inquiry into exactly who was persuaded by these ideas and who was not—an issue of particular relevance for those hoping to better understand the uncertain (but still quite real) status of economic liberty in American life and law today.

Bargaining with the Soul at Stake: Early Modern Catholic Scholastics and Contract Law

Apr 1, 2013 Richard J. Ross1 comment

Richard J. Ross

Decock’s judicious and insightful book participates in the rediscovery of the theological foundations of modern Western law.  With great precision he uncovers the debt that our contract law owes to early modern Catholic scholastic theologians such as Domingo de Soto, Luis de Molina, Leonardus Lessius, and Francisco Suárez.  These writers treated contracts not only as devices for the exchange of property.  They understood that contracting involved moral choices that could advance or retard justice and the prospects for the salvation of one’s soul.  In order to clarify these ethical dilemmas for Catholic confessors and for laymen wrestling with their consciences, scholastic theologians commented upon the ordinances of their own communities and the Roman law used throughout late medieval Europe (the ius commune).  Their works influenced early modern canonists, civilians, and natural lawyers and, through them, left an important mark on modern European and American contract law.

Decock focuses on how the theologians’ speculations led to the rise of the principle of “freedom of contract,” understood as the imposition of legal obligation solely through the consent of the parties.  The late medieval ius commune, drawing on Roman law, had allowed the creation of legal obligation through mutual consent only in certain areas, such as sales, leases, and partnership.  James Gordley and other distinguished legal historians have noted that scholastics went well beyond this inheritance to craft a generalized, consensualist “freedom of contract.”  But why in the sixteenth and early-seventeenth century?  The dominant interpretation has been that the acceleration of trade in the early modern period and the stirrings of “market capitalism” invited moral theologians to consider commercial transactions not adequately treated in the ius commune.  Although Decock accepts this interpretation as a partial explanation, he innovates by insisting that theologians thought that freedom of contract would facilitate the saving of souls.  The greater the realm of freedom among contracting parties, the greater their ability to pursue virtue, accept moral responsibility, and encourage trust—or the reverse.

Decock pursues his theme in a number of steps.  He first reconstructs the context within which his Catholic scholastics operated: rivalries between religious and secular authorities; extensive legal pluralism featuring numerous conflicting tribunals and sources of doctrine; theologians’ service as dispute resolvers and as advisors to rulers; and the profound “juridification,” or melding of law and theology, in early modern works on conscience.  He then explores how theologians reworked the ius commune to generate the concept of “freedom of contract” based on the mutual consent of the parties.  But this principle was not absolute.   The scholastics’ theological preoccupations led them to impose a number of limits on freedom of contract, a theme pursued at length in the final portion of the book.  “Vices of the will” might negate the meeting of the minds essential to contracting through consent.  In the pursuit of the common good, rulers could impose formalities that required more than consent alone to create contracts.  Finally, theologians ruled out unethical bargains (prostitution, for instance) and contracts that too greatly upset norms of fairness in exchange.

Decock’s deeply researched, judicious monograph is of interest to scholars of contract and to early modernists.  To the former he offers an alternative historical genealogy for the regime of freedom of contract (and its accompanying limits).  Although the impact of scholastic texts has long been noticed, Decock recovers the moral and eschatological motivations for legal ideas that we now discuss in practical and economic terms, having forgotten their theological provenance.

Early modernists will deepen their appreciation of the cross-fertilization of religious and legal ideas and the jurisdictional conflict involved in the governance of conscience.  Late medieval and Renaissance Christians subjected the soul no less than the body to rules and discipline.  They spoke of the conscience as an internal forum, a kind of jurisdiction, operating in the believer’s heart and mind and in the confessional.  This internal forum cooperated with the external forum of the state but was not reducible to it.  In respect to contract, theologians fused divine, natural and civil law to craft the principles governing the believer’s conscience and to suggest principles for the ruler’s tribunals.  This sustained effort by early modern theologians and jurists to chart the rules of the internal and external tribunals and to lay out the boundaries and modes of interaction between them was present not only in contract law but in nearly every contested area of life, from political oaths and allegiance to tithes, usury, and church/state relations.  Decock’s careful study of scholastic contract law thus illuminates larger issues.  First, the tension between the conscience and the state—understood as a kind of jurisdictional conflict between internal and external fora—adds another layer to our understanding of early modern legal pluralism.  Second, Romans 13:5 instructed Christians to obey rulers’ law not only for fear of temporal punishment, but for conscience’s sake.  Protestants as well as Catholics understood this verse to mean that violation of certain laws, if unrepented, put the soul in danger of damnation.  Scholastics worked so carefully on contract, as on other legal/theological issues, in order to alert the conscience to dangers and to offer reassurance to jittery or over-scrupulous Christians wary of acting.  The threat of damnation made the stakes profound.  Decock’s study, of great value in its chosen field of contract law, helps us better understand the implications of the juridification of conscience for early modern politics and society.

Family Matters: The Sexual Revolution in American Politics

Feb 18, 2013 Serena Mayeri

Serena Mayeri

After reading Robert Self’s ambitious new book, it is almost impossible to imagine a satisfying history of the last half-century of American politics that does not place gender, sexuality, and the family at the center of analysis. Self’s story begins at the dawn of the Kennedy Administration and ends with John Kerry’s 2004 presidential defeat but focuses primarily on the period between the mid-1960s and the mid-1980s, when radicals, liberals, and conservatives contested and transformed the meaning of family. The central trope of All in the Family is a shift in the reigning paradigm of American politics from “breadwinner liberalism” to “breadwinner conservatism.” Breadwinner liberalism, the organizing principle of the New Deal welfare state, promoted households headed by male breadwinners supporting dependent wives and children. Government policies—from Social Security to the tax code to military benefits to labor and employment regulations—shored up this family wage model of household political economy.

By the late 1960s, breadwinner liberalism was under siege from the left. Feminists challenged the idealization of domesticity and the primacy of homemaking and motherhood over gainful employment for women. Anti-war activists questioned the equation of bellicose masculinity with patriotic citizenship. The gay rights and gay liberation movements mobilized against cultural and political norms that violently repressed and pathologized homosexuality. These movements succeeded in unseating breadwinner liberalism, Self writes. But ideological fragmentation, economic scarcity, and vehement opposition prevented them from inventing a replacement. Instead, in the second half of the 1970s and into the 1980s, breadwinner conservatism filled the vacuum, fueled by antifeminism, anti-statism, homophobia, and the displacements of de-industrialization. This new breadwinner ideal—even less consonant with lived reality than it had been in the 1950s and 1960s—celebrated unfettered capitalism, denigrated government, and combated the uncertainties of post-industrial life with the unwavering conviction that not only countercultural permissiveness but liberal economic policies threatened social order. Abortion rights, feminism, the Equal Rights Amendment, the “homosexual agenda,” and “secular humanism” joined busing, affirmative action, and anti-war protesters as targets of rage and antipathy.

Breadwinner conservatism is the key to understanding the otherwise puzzling coalition between so-called economic and cultural conservatives in the modern Republican Party, Self argues. “What’s the matter with Kansas” is not that affluent Sun Belt conservatives duped working-class religious voters into voting their consciences rather than their pocketbooks. Instead, a shared view that a capacious role for the government undermined America’s fiscal solvency and its moral fabric united these seemingly disparate interests. Breadwinner conservatives, Self stresses, saw government overreach everywhere, including in seemingly libertarian trends such as the liberalization of abortion laws.

The end result, according to Self, was that although progressive social movements succeeded in winning “negative liberties” such as the decriminalization of birth control, abortion, and sodomy, and prohibitions on overt discrimination based on race and sex, they fell short of obtaining the “positive rights” necessary to make those freedoms meaningful to many Americans. Increasing income and wealth inequality rendered new liberties fully accessible only to a privileged few. From Nixon’s veto of universal child care legislation and the denial of public funds for reproductive health care to Clinton’s embrace of welfare reform, neoliberalism triumphed.

All in the Family weaves together secondary literature and primary sources in a seamless account that builds on and adds to the work of other historians of the period. Scholars such as Alice Kessler-Harris, Nancy MacLean, and Marissa Chappell have observed the similarities between the liberal family wage consensus of the 1960s and the conservative gender ideology that emerged in the 1970s and 1980s. Others, including legal historian Anders Walker, have documented how ostensibly race-neutral policies concerning personal and family morality maintained racial hierarchy when overt appeals to white supremacy became politically untenable.  Among other things, Self provides a compelling account of internal social movement struggle, foregrounding tensions between radicalism and respectability, assimilation and transformation that were common across the black freedom, feminist, and gay movements. The result is an elegantly written synthesis that is more than the sum of its parts.

Social movements are the stars of Self’s narrative, with law playing an important supporting role. Law frequently appears as a double-edged sword in his account. The grounding of reproductive rights in the constitutional right to privacy rather than in equal protection for women or the poor is a key example of the limitations of negative liberty. Title VII granted women “market liberty” but failed to provide supports—such as generous paid family leave and affordable, high-quality child care—that would enable women (and men) to flourish both at work and at home. Resort to law often meant uncomfortable political alliances and compromises. The anti-rape movement succeeded in part because of its appeal to law-and-order conservatives as well as feminists. The quest for anti-pornography laws similarly produced strange bedfellows as well as divisions among liberals and feminists.

Self’s application of Isaiah Berlin’s distinction between positive and negative rights is illuminating, although like any dichotomy, imperfect. At times Self appears to use “positive rights” as a stand-in for government involvement, regardless of who bears the cost. For instance, he refers to women in same-sex relationships claiming custody of their children from different-sex marriages as seeking positive rights, and indeed they did invoke the power of the state to vindicate their parental prerogatives. But like child support enforcement, which (in contrast to lesbian custody rights) attracted allies across the political spectrum during this period, custody rights do not strain the public fisc. At other times, Self emphasizes the distinction between liberty and equality: whereas liberty requires government to step back, equality commands government intervention. But equality comes in more or less expensive guises. Substantive equality usually requires a greater redistribution of resources than formal equality. Moreover, it matters who is paying. Employment discrimination laws often shift costs to private employers, or, more controversially, to other employees. In contrast, a robust social safety net financed by taxpayers, nationalized universal health care provision, and other unachieved progressive reforms socialize the costs of dependency. It is this distinction, between privatizing and socializing the costs of caring for individuals and families, which arguably correlates best with the success or failure of reform attempts since 1970.

Nancy Fraser’s distinction between the “politics of recognition” and the “politics of redistribution” may also be useful here, especially in light of current debates over same-sex marriage. Marriage equality, as Self recognizes, implicates both negative liberties and positive rights—not merely the legal imprimatur of a marriage license but many material benefits as well. In theory, marriage equality could mean not only the triumph of gender egalitarianism but the leading edge of greater acceptance and social supports for all family structures—dealing a final death blow to breadwinner liberalism and conservatism. But like many of the successful reforms Self describes, marriage equality does not necessarily advance the politics of redistribution. Notwithstanding its associated public and private benefits, a principal goal of marriage is to privatize dependency, to render a robust welfare state unnecessary. As marriage increasingly correlates with higher levels of education and income, the unmarried generally, and single mothers in particular, are left with no (second) breadwinner and no state support.  If marriage continues to become the province of the privileged, marriage rights for same-sex couples may join the other “negative rights” that Self laments are the primary legacy of late twentieth-century social movement struggle.

Race, Gender, and, Feminist Legal Advocacy during the Long Civil Rights Movement

Nov 26, 2012 Felice Batlan

Felice Batlan

Scholars have understood well that second wave feminism has deep roots in the Civil Rights Movement. Only in recent years, however, have historians explored the full extent of the material and ideological connections between these two movements.  Reasoning from Race brings this agenda to the field of legal history.  It examines what it meant for feminist legal advocates to use race analogies, how this changed over time, and how ultimately civil rights lawyers then attempted to reason from sex. In doing so, Mayeri seeks to demonstrate that the Civil Rights Movement and the Women’s Rights Movement cannot be understood in isolation from each other. Rather the movements were in dialogue with one another, taking the lead from and piggybacking on each other at different times.

Reasoning from Race makes three overlapping central arguments. The first is that women legal advocates used the tools, legal strategies, arguments, and precedent that African-American civil rights lawyers first developed. The second is that some of the leading architects and plaintiffs in sex discrimination cases were African-American women, and the third is that race and sex are intertwined categories.  Mayeri also intervenes in the periodization of the Civil Rights Movement, arguing that the Women’s Movement must be considered part of the larger Civil Rights Movement. Thus the Civil Rights Movement began in the 1950s and continued into the 1980s. Yet the height of the Women’s Movement also corresponded to the beginning of the backlash against the Civil Rights Movement.  This would have important implications in regard to legal strategies.

Mayeri continues the recent attention paid to Pauli Murray as a figure who knits together the Civil Rights Movement and the Women’s Movement.  Meyeri writes, “No one did more than Murray to make race-sex analogies the legal currency of feminism.” (P. 14.) In her famous memorandum, written for the 1961 President’s Commission on the Status of Women, Pauli analogized racial discrimination to discrimination against women and strategized that Fourteenth Amendment litigation was key to ending legal discrimination against women. This strategy, in part, was intended to end the impasse amongst women’s organizations that feared that the Equal Rights Amendment would end legislation that protected women.  Rather Fourteenth Amendment litigation would allow for a more flexible approach. It also explicitly linked together the Civil Rights Movement and the growing Women Rights Movement. Yet where liberals might be convinced that racial segregation was odious, many were less certain that sex segregation was discriminatory, especially when laws seemed benign or to the advantage of women. For a time, feminist and civil rights organizations cooperated in a number of important law suits, and built a variety of coalitions.

Reasoning from Race most clearly contributes to our historical knowledge when discussing some of the less well known civil rights cases. For example, Andrews v. Drew (1973) involved an African- American woman who challenged a Mississippi school board’s policy of not hiring unmarried parents.  This supposedly race and gender neutral policy was a subterfuge for not hiring African-American women. In other words, it was a policy based on white supremacy and sex discrimination that the school board packaged as neutral morals regulation. The suit brought to the fore issues of race, sexuality, gender, and reproduction. Famed civil rights leader Fannie Lou Hamer testified as an expert regarding black community morals, black women’s attempts to gain economic independence, and how moral regulations were applied in a racially discriminatory manner.  As decided by the courts in a series of decisions that stretched from 1973 to 1976, the racial dimensions of the case, as well as those involving reproductive freedom, became lost and the courts instead treated it as a case of pure sex discrimination.  In doing so, they refused to apply a standard of strict scrutiny used in race discrimination cases and instead used a more lenient rational basis standard.  When the Supreme Court dismissed certiorari as improvidently granted, Mayeri writes that the opportunity was lost for Andrews to become part of the “feminist canon.” (P. 165.)

Mayeri produces a litany of cases with African-American women plaintiffs, some involving desegregation of schools and others involving jury service, which combined sex and race discrimination.  She explains this pattern as part of the temporal lag between the height of the Civil Rights Movement and the Women’s Movement and importantly argues that white supremacy adapted itself.  When overt race discrimination was no longer tolerated, it masked itself in sex discrimination.  Moreover, in terms of the larger narrative of sex equality, the race of the plaintiff disappeared, especially in higher court decisions.  Sex discrimination law was literally whitewashed by the courts.  Mayeri argues, if courts had been able to see and understand the connections between race and sex, a more robust and honest jurisprudence would have emerged that reflected lived experiences and which could fulfill the emancipatory potential of the Civil Rights and Women’s Movement.  By the late 1970s, feminists had generally won those cases involving explicit classifications by sex but had limited success with disparate impact claims. In other words, law could get at the tip of the iceberg but it could not dismantle the super structure of patriarchy.

As the book concludes, in the early 1980s, feminists were still fighting for the Equal Rights Amendment which Mayeri argues demanded a real substantive equality that did not materialize fully through feminists use of Fourteenth Amendment litigation.  Mayeri writes, “Feminists now reasoned beyond race” and needed new strategies. (P. 215.)  Women of color also insisted that comparisons between race and sex further enshrined white women’s privilege.  During the same period, the conservative movement grew, and the feminist movement became a straw woman blamed for its own defeats and for a narrow focus on white privileged women which belied its true diversity and elided the role of African- American women.

Reasoning from Race is squarely a legal history focused on courts and litigation and relying primarily on an extensive range of legal sources.  These are very valid choices but at certain moments the book becomes slightly bogged down in analyzing the feminist legal canon of Supreme Court cases.  Instead, it would have made for an even richer story, if the work had focused a bit more on grassroots feminist organizations such as the Chicago Women’s Union or Boston’s Bread and Roses. One is left wondering how did these more radical organizations respond to the work of legal feminists. What was the relationship between grass roots feminism, feminist legal advocacy, and the strategies that lawyers employed? How did reasoning from race affect the larger feminist movement and for that matter how did the Black Power Movement influence and affect reasoning from race? Even with these slight limitations, Reasoning from Race provides a crucial new narrative of feminist legal advocacy.

Not My Welfare State, or the Taxpayer’s Lament

Oct 31, 2012 Karen Tani

Karen Tani

Molly Michelmore’s new book could not be more timely. This summer the Supreme Court upheld the Affordable Care Act’s controversial individual mandate provision, through a majority opinion that links healthcare directly to the federal government’s tax power. Meanwhile, the lead-up to the presidential election has been riddled with references to tax burdens (and evasions), social welfare spending, and government “dependency.”

Historians and social scientists have much to add to this conversation, but little faith that they will be heard. A recurring theme in post-World War Two U.S. political history is how greatly the government has assisted working- and middle-class Americans (especially white men and their families) and how rarely those Americans have acknowledged that fact. This paradox persists today. Most Americans will rely at some point on a means-tested government support program, such as food stamps or Temporary Aid to Needy Families.¹ Many more will accept Social Security benefits, tax credits, and other government subsidies.² Yet these same Americans often resent the “welfare state.” In Michelmore’s words, “Americans hate government, but demand and expect, almost as a matter of right, the privileges, security, and mobility that government offers.” (p. 2-3)

“Unravel[ing] this apparent contradiction” is Michelmore’s goal, and she is largely successful. (p. 3) Tracing the federal government’s tax and spending policy from the New Deal through the “Reagan Revolution,” she shows that liberal policymakers created an enduring “social compact” with the American people, consisting of “both economic security and low individual tax rates.” (p. 14) They kept their promise by steadily expanding social welfare programs, but devising “ever more complicated and obscure” financing mechanisms. (p. 20) In doing so, they “effectively divorced” the public benefits of the non-poor majority “from the taxes that paid for them, the government that provided them, and the more direct forms of public assistance they resembled.” (p. 20) Phrased differently, liberal policymakers “widened the gap between the obligations of citizenship and its benefits,” while “help[ing] to instill in the rising white middle class a sense of uncomplicated and individual entitlement to the fruits of postwar prosperity.” (p. 45)

Michelmore’s story truly begins after the war, when Americans had come to expect decent housing, a secure income, and free education, as well as protection against disease, disaster, and foreign aggression. They saw taxation not as payment for these services, but as a civic duty, and they believed that rates should remain modest. When disappointed, they blamed the nation’s most visible social programs – for what else could be devouring tax dollars so fast? It is no coincidence, Michelmore shows, that postwar complaints about excessive taxation accompanied demands for investigation of “relief chiselers.” (p. 24)

In the 1950s and early 1960s, economic growth allowed liberal policymakers to avoid the contradiction at the heart of the social compact, while Cold War politics deterred them from celebrating the state’s vast role in supporting the middle class. By the end of the Kennedy-Johnson years, however, liberals were in an untenable position. They had again promised tax cuts, this time paired with prominent (though financially modest) commitments to racial minorities and the poor. The benefits to non-poor Americans remained hidden, fostering in some an ironic sense of injustice and neglect. As the economy turned sour and perceived “tax eaters” (rioters, welfare mothers, black schoolchildren) became bolder, this “Silent Majority” found its voice.

The conservative ascendancy did not bring with it a new social compact, however. The Republican right “articulated a coherent and politically viable alternative to postwar liberalism,” centered on tax reduction and cuts to means-tested welfare programs. (p. 125) But even Reagan left untouched large, expensive pieces of the liberal state, such as Social Security and Medicare. Americans demanded of Reagan what they had been promised by Roosevelt, Michelmore explains: low tax burdens and economic security – just this time without so much government.

Aspects of this story have been told before. Michelmore is not the first to identify the welfare state hidden within the U.S. tax code, or to note conservatives’ inability to roll back middle-class entitlements. The right, once caricatured, is now the subject of serious scholarly investigations, several focusing on anti-tax sentiment. But Tax and Spend has much to offer. Michelmore unearths real historical gems, such as the 1980 debut of a monopoly-styled board game titled “Public Assistance: Why Work For a Living When You Can Play This Great Welfare Game.” (p. 123)  More important, she encourages scholars to do the unglamorous work of connecting social programs to their financing mechanisms and revenue sources, real and perceived. For example, we cannot understand the long-term significance of the Social Security Act of 1935, she shows, without considering the Revenue Act of 1942.

Tax and Spend is also relevant to our current political situation. Most Americans see themselves as taxpayers rather than “tax eaters.” That is why the Supreme Court’s healthcare decision, with its reliance on the tax power, may be a political liability for President Obama, even as it shields a significant legislative accomplishment. It confirms some Americans’ suspicions that their paychecks are financing other people’s healthcare. But the decision also offers Americans an opportunity – and a reason – to question the social compact that Michelmore has identified. Since the mid-twentieth century, politicians from both parties have promised low taxes and security, but the absence of health security is undeniable, and now viscerally felt.  With universal healthcare in sight, as well as a fuller understanding of its costs, will Americans finally be prepared to reject the liberal social compact and strike a different bargain? Maybe. But if Michelmore is right, it is a rare politician indeed who will offer them one.

1. Suzanne Mettler, The Submerged State: How Invisible Government Policies Undermine American Democracy (2011).
2. Mark R. Rank & Thomas A. Hirschl, Welfare Use as a Life Course Event: Toward a New Understanding of the U.S. Safety Net, 47 Soc. Work 237, 241-43 (2002).