Oct 3, 2012 Stuart Banner
I think history is most fun to read when it upsets the conventional understanding of something in the present day. That’s a hard trick to pull off. Most conventional understandings are pretty close to the truth – otherwise they would have been abandoned already. And if you want to buck the conventional wisdom about something in the present, you’re more likely to succeed simply by explaining why it’s wrong in the present rather than by detailing its past. It takes an unusual combination of insight and luck to find a topic you can make readers see completely differently by writing its history.
Before I read Jed Shugerman’s The People’s Courts, I would never have guessed that judicial elections were that kind of topic. Like most lawyers, I suppose, I thought judicial elections were a little silly at best, and sometimes downright pernicious. How are voters supposed to know who the good judges are? And worse, how can elected judges prevent politics from leaking into their decisions? The last thing we want is for a judge to be keeping an eye on his reelection when he’s deciding, say, whether a notorious murderer’s rights have been violated, or whether a popular new law is unconstitutional. If you’ve ever been in a state with contested judicial elections and seen the TV commercials in which the candidates all claim to be the toughest on crime, you start to worry about the intrusion of politics. I imagine that’s the conventional understanding of judicial elections. It was certainly mine.
No other country has this system, so why do we? To the extent there is a conventional historical account, it is that judicial elections were a product of Jacksonian democracy. The idea was to reduce the independence of judges, to bring them closer to the will of the people, to shift power from insulated elites to accountable citizens. That’s a plausible enough story. I believed it.
In The People’s Courts, Shugerman shows that this isn’t true at all. It’s more nearly the opposite. Most states moved to judicial elections in the mid-19th century to get politics out of judging, not in. The problem that elections were intended to solve was the danger of political pressure from the governors and legislatures who appointed judges. Americans wanted their judges to be independent – independent from the other two branches of government. Judicial elections are not the only way that politics can influence the judiciary. When judges are appointed by politicians, political pressures can be just as strong. “With direct popular elections, we watch the sausage-making,” Shugerman explains in his introduction. “With appointments, the sausage-making is out of sight, out of mind.” (P. 5) One of the great virtues of the book is how Shugerman demonstrates that in the mid-19th century it was the other sort of sausage-making that people were mostly worried about.
Shugerman then goes on to show that these new judicial elections worked just as they were intended. Judges actually did become more independent when they were elected, as measured by the frequency with which they struck down legislation as unconstitutional. That’s a result completely different from the one we would expect if the Jacksonian democracy story were true, but it’s a result that makes perfect sense if the purpose of electing judges was to insulate them from behind-the-scenes political pressure.
Once you understand the history of judicial elections this way, it’s hard not to see them differently in the present, and Shugerman turns to this issue at the end of the book. No matter how judges are selected, he points out, politics will creep in one way or the other. Anything we do to shift judges away from one kind of politics will only bring them closer to another kind. We can’t talk intelligently about how to pick our judges without acknowledging these inevitable tradeoffs.
There’s a lot more to The People’s Courts than this. The book is a complete history of judicial selection methods in the United States, from the 18th century through the big-money judicial campaigns of our own time. That’s a really valuable contribution in its own right; indeed, it’s surprising that no one has written a book like this before. But the best part is the chapters on the origin of judicial elections.
Sep 7, 2012 Roman Hoyos
Tabatha Abu El-Haj,
Changing the People: Legal Regulation and American Democracy, 86 N.Y.U. L. Rev. 1 (2011),
available at SSRN.
A while back over at the Legal History Blog, there was a brief discussion about the relevance of legal history to the legal academy. On the heels of this discussion, Pierre Schlag posted a typically hilarious paper on SSRN about the faculty workshop that in part demonstrated the irrelevance of legal history, or at least the inability of legal scholars to access historians’ questions. This is probably the main source of anxiety/frustration of legal historians who work in the legal academy, despite the (apparently “whiggish”) historical turn in constitutional scholarship. History these days seems to be relevant to legal scholarship only in the context of debates over original meaning/intent. What makes this particularly frustrating for historians is that the quality and quantity of legal history, produced by professionally-trained historians, has increased dramatically in recent years. The last two decades, in particular, has witnessed the emergence of a bountiful body of scholarship, that is both theoretically and forensically rich, and that engages some of the biggest questions about law: its nature and function, and its relationship to various other macro-institutions such as society, the market, the polity, the state, and democracy. (For starters, just look at the work by the contributing editors to the legal history section here.) And yet we still find it difficult to engage our colleagues and convince them of the importance of our work; for many institutions we remain a “luxury.” Historians have long worried about our declining ability to reach popular audiences. Apparently, we are losing some colleagues too.
This is where I find Tabatha Abu El-Haj’s recent article heartening. What struck me immediately about the article was how Abu El-Haj framed it. In a seven-page introduction she spends two paragraphs on legal historiography; her main target is law and democracy scholarship. Consciously or not, Abu El-Haj has offered an example of how to smooth the ground between historian and legal scholar. Translating between disciplines, Elizabeth Mertz has told us, is a project fraught with misunderstanding. But, perhaps because of her training in a law and society program, Abu El-Haj appears to have both the fluency and willingness to attempt an effective translation. In this article, for example, she uses “the repertoire of democratic political practices” in the past to expose and undermine two major assumptions of modern law and democracy scholarship.
The first assumption Abu El-Haj critiques is the idea that “the political process necessarily will be structured by law” (p. 5). Although there has always been some regulation of the political process in the United States, in the nineteenth century there were wide swaths of the public sphere where law (in the sense of rules produced by legislative, administrative, and judicial institutions) was absent. As Abu El-Haj explains, “Public meetings, petitions, local and national festivities, and even juries and mobs were the normal channels through which citizens, ordinary and elite, enfranchised and disenfranchised, participated in their new democracies,” and “regulatory controls were relatively weak and often exercised only intermittently” (p. 3). The imposition of legal controls on these practices in the period between 1880 and 1930 either eliminated or narrowed them, giving the state greater power to determine the direction of politics and popular engagement in self-government. Abu El-Haj thus denaturalizes the assumed relationship between law and democracy that modern scholars posit.
The second major assumption held by scholars writing in the law and democracy field that Abu El-Haj critiques is the idea that democracy consists solely of elections. Democracy as both a concept and a practice is enormously complex; reducing it to elections robs it of its richness, and reduces it to a caricature. Assembly, for instance, has long been a tool in popular politics. This “neglected right,” which Abu El-Haj discusses more fully in another article, is now neglected precisely because law has had such a powerful effect on the ways in which people can gather. The simple requirement that people get a permit before assembling, Abu El-Haj demonstrates, means that the state rather than the “demos” controls when and where people can gather, undermining, indeed criminalizing, spontaneous political action. In fact, gaining control of the streets long has been a crucial if largely hidden site for the expansion of state power, often at the expense of popular politics. The history Abu El-Haj has unearthed, as well as the rise and demise of the Occupy movement, demonstrate the continuing relevance to democracy of the use and control of streets. Abu El-Haj thus challenges legal scholars to search for connections between law and democracy in less obvious sites and practices, rather than focusing myopically on electoral issues.
One of the defining characteristics of good scholarship, it seems to me, is to ask interesting questions going into a project, or to raise interesting questions coming out of it. Although Abu El-Haj does not draw this conclusion herself, she seems to call into question the plausibility of “law and democracy” as an area of law. If the imposition of law on political practices has narrowed their scope and made them subject to state regulation, refining legal rules would seem only to change the nature of the state regulation of politics. If the state can determine the time, place, and manner, and through them the nature of popular politics, what is left of “democracy” as a political practice? Perhaps the proper conjunction should be “or” rather than “and” when discussing the relationship between “law” and “democracy.” In fine, Abu El-Haj’s article is a good example of the ways in which historians can challenge the boundaries of legal scholarship. Let’s hope our colleagues are game for it.
Jul 9, 2012 Allison Brownell Tirres
Recently, thousands of people participated in the forty-seventh anniversary of the historic 1965 marches from Selma to Montgomery. Now, as in 1965, voting rights were front and center: marchers protested against the recent passage of restrictive voting laws in many states, arguing that such provisions disproportionately disenfranchise voters of color. This was familiar ground for civil rights organizers in the South. This year, however, there was a new theme: immigrant rights. Those marching joined in opposition to Alabama’s H.B. 56, which targets undocumented immigrants in the state. The tone, as recounted by Trymaine Lee for the Huffington Post, was one of solidarity: marchers commented on the shared struggle and shared aims of those of African, Asian and Latin American descent, of citizens and non-citizens.
Alabama is in a new phase of its own civil rights history, but this multiracial rights frontier itself is not new. The deep South now grapples with issues of inter-group coalition building that were at the forefront in California more than a half-century ago. In his impressive new book, The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978, Mark Brilliant demonstrates that California experienced the challenges and rewards of “multiracial civil rights making” starting in the 1940s. (p. 12.) He chronicles the post-World War II struggles for civil rights of African Americans, Asian Americans and Mexican Americans, as they attempted to dismantle segregation and legislate antidiscrimination. In its diverse population, California was not an outlier in the history of civil rights but rather the vanguard.
The book is loosely divided into two parts. The first four chapters trace efforts to dismantle legalized segregation in housing, education, marital relations, and the workplace. California in the mid-twentieth century perpetuated a “multi-racial system of legalized segregation,” side-by-side with practices of private discrimination. (P. 106.) Yet the extension of state and private discrimination was not uniform in either application or experience. Not every racial minority experienced segregation in the same way; a particular experience of racism led to differing legal priorities. As Brilliant argues, “distinct civil rights priorities reflected distinct racialized experiences.” (P. 9.) Different experiences of racism led to strategies that were often parallel – in terms of aiming to dismantle segregation – but along different tracks. Asian American groups like the Japanese American Citizens League worked towards eradication of alien land laws; African American groups like the West Coast arm of the NAACP for equality in employment and housing; Mexican American groups like the Community Service Organization against school segregation of those of Mexican descent. There were moments of overlap, such as in the battles against racially restrictive housing covenants and segregated schools, but these coalitions were “tenuous and fleeting rather than thick and enduring.” (P. 61.)
Due in large part to the disparate efforts of the diverse civil rights groups, state-sponsored segregation was largely eradicated in California by the end of the 1940s. (As Brilliant points out, “the toppling of statutory segregation that would not begin in the South until 1954…managed to be compressed in California into less than a decade in the 1940s.”) (P. 114.) Yet by no means were civil rights for all racial and ethnic minorities fully secured. The second four chapters recount efforts of civil rights leaders to pass anti-discrimination legislation. The passage of effective antidiscrimination legislation in employment, housing, and education turned out to be a far harder task than dismantling state-sponsored segregation. Brilliant’s final chapters deftly recount the political quagmire of California in the 1960s and 1970s, when the tentative coalitions formed between diverse groups fell apart. Now, instead of running on parallel tracks, groups came into opposition against each other. Debates over education provide a powerful example. The NAACP brought successful suits to end de facto segregation in the schools, forcing districts to bus students to other schools in order to create diverse student bodies. These efforts were directly opposed by language-minority groups – those representing persons of Mexican and Asian descent – because of fears that decentralization would impede bilingual education. Conservative politicians, foremost among them Ronald Reagan, exploited these differences in order to divide the liberal electorate.
Brilliant encourages us to rethink civil rights history in significant ways. The most obvious new perspectives offered are regional and racial: civil rights movements did not just occur in the South and North, and they did not just concern blacks and whites. But there is an additional new perspective offered here that may be less obvious but is equally compelling: the interplay of alienage with civil rights struggles. Scholars of citizenship in American legal history often break out into two separate camps: those who study the rights struggles of American “second-class citizens” – women, African Americans, and others who were territorial citizens but lacked full political and legal rights; and those who study non-citizens – immigrants who had no territorial rights and may or may not have any political, social, economic or legal rights. Brilliant bridges this divide, demonstrating that the rights of non-citizens were sometimes in harmony with and other times in opposition to those of citizens. Mexican American and Asian American groups were attentive to the problems of non-citizens and they set their civil rights goals accordingly. Yet even within these groups the issue of alienage could divide. Brilliant shows, for example, how Mexican American leaders in the farmworkers movement struggled to be anti-immigration (particulary anti-Bracero) without becoming anti-immigrant.
The Color of America Has Changed provides both a chronicle of civil rights successes and a cautionary tale. The paths of various civil rights groups in California “occasionally crossed but never coalesced into something more enduring.” (P. 55.) There were impressive gains but equally tragic losses. As Brilliant shows, failures grew in part out of blind assumptions of common ground between groups with diverse interests and needs. Those now building coalitions across diverse groups would do well to take this history into consideration, thereby entering the struggle with eyes open both to the possibilities and the constraints.
May 30, 2012 Hendrik Hartog
The November 2011 issue of the Law and History Review is devoted to an illuminating symposium on new directions in the study of slavery, edited by Rebecca Scott. The symposium includes an amazing article by Natalie Davis. Since this is a blog devoted to enthusiasms, indulge me as I indulge myself.
I am a historian today in large part because of Natalie Zemon Davis. Back 44 years ago, as an undergraduate at Carleton College, I had just decided that I would try to be a music major because I had decided, in my naiveté, that historians were boring people. And then I was talked into going to hear a visiting speaker — a Professor Davis from Toronto — who made sixteenth century strikes in Lyons sound so fascinating and who, unlike anyone I had heard to that point, took her audience into the process of thinking reflexively about history. I was hooked. I changed my major.
Fifteen or sixteen years later, while teaching at the University of Wisconsin, and in the midst of a crisis of confidence about what I was doing as a historian in a law school, I heard Davis’s Curti lectures on the gift relationship. I felt renewed — challenged and inspired. And then (I knew there would be one more “then”), I had the privilege — the gift — of being her colleague for a half dozen years, before Davis “retired” from Princeton.
Now, many years beyond her official “retirement,” Davis publishes “Judges, Masters, Diviners: Slaves’ Experience of Criminal Justice in Colonial Suriname,” as part of her continuing inquiry into slaveholding and the lives of slaves in the Dutch colony of Suriname. Her larger project of reconstructing life in early modern Suriname has required her to learn new languages and literatures. It has resulted in provocative and illuminating studies of the ironic situation of Jews who moved to Suriname to found a radically free place for themselves and who then, of course, became slaveholders. But the Law and History Review article pursues a different question, about the various meanings of what “criminal law” meant in a radically violent slave society.
The argument is complex and multifaceted, and it rests on readings of an amazing range of sources in many different languages. It offers a brilliant and imaginative exploration of legal pluralism as it would have been experienced in a place defined by radically unequal power relations — how slaveholders punished slaves, how the weak state punished or contemplated punishing an occasional, excessively violent slaveholder, and how members of the slave community thought and talked about punishment and criminality. As befits someone whose scholarly work has for the most part been located in early modern Europe, there are continuing references to the European social history of crime and also reflections on why the violence in places Suriname played no part in the official European legal culture.
The opening pages pursue a relatively conventional and conventionally horrific portrait of the violence and cruelty of punishments that slaveholders visited on slaves in early eighteenth century Suriname. The illustrations (better viewed on line than in the paper version of the review) are marvelous, but to this point the story told is one that readers in the global slavery literature will have heard before — about sadism and brutality and unconvincing rationalizations.
But then the essay confounds the reader by asking her/him to contemplate what slaves would have understood as punishable offenses and how they would have punished offenders. And there follows a dizzying exploration of the relationships between ordeals and tortures, and of the multiplicity of legal traditions and practices that shaped this confused and confusing place, Suriname.
The very notion of combining a portrait of what slaveholders called “punishment” for “crimes” with sketches of what Africans would have understood at that time as legitimate punishments for harms done to others leaves the reader slightly queasy and uncertain. There is something odd or disruptive about asking what were legitimately punishable wrongs, in a context filled with so much sadistic violence. Still, to “do” history from the “bottom up” means presuming that the slaves themselves carried understandings of criminality and criminal justice. It might be easier just to leave captured Africa slaves as victims of white power. Davis, however, leads the reader to ask harder questions: How would recently captured Africans have understood criminality? How might they have meant to police themselves? What would they have regarded as legitimate punishments for harms done to others within their communities?
This is a work at the cutting edge of so many subfields of history. And yet, at the same time, it is a fascinatingly old fashioned work. Old fashioned in one particular sense: it is framed by an optimistic (a hard word to use in the context of what is being explored) commitment to the exercise of the historical imagination and to the partial knowability of historical pasts. For Davis and her readers, torture and punishment — the manifest content of what happened in eighteenth century Suriname — become something more than discursive constructs. To read Davis is to read something more than a reporting on the contexts of texts. It is to experience and to imagine killings and tortures authorized by the state and by the controlled and out of control violence of slaveholders. It is also to remind the reader that the task of understanding historical subjects, of imagining them in their present tense, requires one to reconstruct their memories, their pasts, and their inherited practices. Their present — their real lives at a particular historical moment — incorporates many histories (including many languages and complex understandings), just as ours does.
“Judges, Masters, Diviners” is a triumph of the moral and historical imagination.
Cite as: Hendrik Hartog,
Crime in Suriname, JOTWELL
(May 30, 2012) (reviewing Natalie Zemon Davis, Judges, Masters, Diviners: Slaves’ Experience of Criminal Justice in Colonial Suriname, 29
Law and Hist. Rev., 925 (2011)),
https://legalhist.jotwell.com/crime-in-suriname/.
May 2, 2012 Joanna Grisinger
Kimberley S. Johnson’s recent article, “Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940,” is part of a valuable turn evident in recent scholarship on governance in the twentieth century. Bringing together politics and race to understand agricultural policies and institutions, Johnson asks, “[w]hen does race matter; and how does race matter when thinking about the shaping of the American state?” (P. 144) The answer? Race has shaped agricultural policy in some surprising and not-so-surprising ways.
In her study of the “agricultural welfare state,” Johnson examines the shifting ways in which the federal government provided farmers with services and subsidies in the decades following the Civil War. Responding to scholarship centered on interest group relations and partisan politics, Johnson stresses the importance of considering the political machinations involved in agricultural policy in the specific historical context in which these programs were designed and implemented. She describes in detail the numerous agricultural programs that came out of Congress in the years before the New Deal, and examines how their design and implementation occurred against a backdrop of legalized white supremacy in the rural South. The segregated nature of Southern agriculture combined with the power of Southern Democrats in Congress meant that national agricultural programs reflected the assumptions and preferences of powerful southern interests in maintaining racial hierarchies and allowed local authorities significant discretion in the distribution of assistance. Although the federal government consistently acknowledged its role in protecting farmers from economic dislocation, racial calculations, she argues, destroyed early on any possibility that the federal government would establish universal agricultural benefits as a matter of right.
While this part of her story is not a surprise to readers familiar with scholarship on social welfare programs, she pushes further to demonstrate how the design of these early agricultural programs constrained the options available to Congress and the USDA in shaping later ones. As the USDA learned to work with American farmers and implement agricultural programs, it gained experience doing so through a bifurcated system of benefits that privileged white farmers over African American ones and wealthy farmers over poorer ones. Although membership in each tier varied over time, the two-tiered model remained constant. As Southern Democrats’ power waxed and waned, and as agricultural services gave way to subsidies, more powerful farming interests turned this localism to their advantage and pushed to include themselves in the preferred class of recipients.
By the New Deal, then, “an administrative structure created to partially govern on the basis of race became an important tool by which to govern on the basis of class and land-tenure status.” (P. 145) The New Deal’s expansive programs were built on the foundations of these older ones and adopted the bifurcated model. Rather than rebuilding the agricultural state or rethinking its design, New Dealers aimed certain programs at wealthier landowners while using others to target poorer tenant farmers. Relying on these previously established structures, she argues, meant that “any inequality established at the beginning became cumulative in scope.” (P. 161)
Johnson’s contributions are several. First, it is apparent how much is gained from looking at policies in their historical context. Broadening the frame beyond the parties directly involved in policy creation offers readers a richer and more complicated narrative about agricultural policy that indicates how closely tied these decisions were to other areas of policy and practice. At the same time, taking racial policy seriously as an influence opens up opportunities to rethink the development of economic regulation more generally. The Interstate Commerce Commission and the Federal Trade Commission both came of age during the period Johnson describes, and the Federal Communications Commission, Maritime Commission, and Civilian Aeronautics Board were not far behind. Examining how contemporary racial orders influenced policy and institutional development in each would greatly enrich our understanding of the modern state.
Finally, it is clear that these observations tell us much about the American state as a whole. As Johnson argues, this “agricultural welfare state” was “America’s first welfare state” (P. 144) and benefits from the kinds of analysis scholars like Ira Katznelson, Robert Lieberman, Linda Gordon, and Suzanne Mettler have applied to social welfare programs like those established by the Social Security Act and the GI Bill. In a variety of areas, deference to local power was built into federal policy in order to entrench the racial and gender status quo. The administration of policies is, these studies demonstrate, as important as the policies themselves; at the same time, scholarship on path dependence makes clear that governance decisions lock in policies and limit future choices. As Johnson makes clear, the USDA offers a remarkable place to see these ideas play out.
Apr 6, 2012 Christina Duffy Ponsa
Rose Cuison Villazor,
The Other Loving
: Uncovering the Federal Government’s Racial Regulation of Marriage,
86 N.Y.U. L. Rev. 1361 (2011).
Legal historians: Find a window to read Rose Cuison Villazor’s “The Other Loving,” published in the NYU Law Review last fall. Although Villazor, Associate Professor of Law at Hofstra, does not identify primarily as a legal historian, she has written more than one historical work well worth a read. An earlier article examined alien land laws in the United States, telling the story of Oyama v. California (1948), which held unconstitutional a provision of California’s Alien Land Law that discriminated against owners of property bought by parents who were ineligible to become U.S. citizens. This more recent article, in turn, explores how immigration, citizenship, and military statutes and regulations in the period around World War II interacted to produce federal anti-miscegenation law, with both domestic and extraterritorial effects. Carefully researched and engagingly written, Villazor’s article seeks to challenge the conventional view that legal restrictions on marriage have traditionally been the sole domain of state, not federal, law—with implications for historical scholarship and for current political debates.
Villazor opens the piece with the story of Helene and John Bouiss, a half-Japanese, half-German woman and her white American husband, who in the spring of 1946 arrived in Seattle, Washington aboard a military ship, having been married at sea by the captain days earlier. Despite the passage of the so-called War Brides Act the year before, officials stopped Helene at the border on the ground that immigration law prohibited the entry of persons ineligible to become U.S. citizens. At the time, U.S. law put citizenship off-limits to persons identified as belonging to certain racial and ethnic groups, including Japanese. Helene, a Swedish citizen on the basis of a prior marriage, was a person of “mixed racial blood,” including that of a citizenship-ineligible group, in the eyes of the relevant immigration regulations; she was therefore covered by the prohibition. Her marriage to a U.S. citizen soldier honorably discharged from the military did not help; nor did the Ninth Circuit Court of Appeals, which upheld the exclusion. (The case never made it to the U.S. Supreme Court.)
Unlike Loving, Bonham v. Bouiss mostly faded from memory. But it is worth remembering, argues Villazor, for it opens a window onto an under-examined chapter in the history of family law that, once explored, calls into question familiar understandings of the role of the federal government in marriage regulation; moreover, this revised understanding of the relationship between marriage and federalism has implications for ongoing debates over same-sex marriage, where the received wisdom that family law belongs to the states, not the federal government, continues to hold sway, despite scattered challenges to it.
Villazor follows her account of the Bouiss’ experience at the border with a thorough explanation of the relevant aspects of each of the three bodies of law she identifies at the outset—citizenship, immigration, and military—and detailed analysis of how their interaction produced the “federal marriage law” that the Bouisses, and thousands of other couples facing the same predicament, found themselves confronted with in the aftermath of World War II. While none of these bodies of law directly or explicitly prohibited interracial marriages in quite the way that the state laws at issue in cases like Loving did, their effect was essentially the same. The way in which citizenship and immigration law did so appears plainly in the Bouiss’s experience at the border. What Villazor goes on to explain is how military regulations and policy aided and abetted those immigration-related racial restrictions on entry and the acquisition of citizenship. Military rules required that soldiers obtain permission to marry, and the relevant regulations instructed military officers to deny such requests in cases of interracial marriage, except in rare special circumstances. While the Bouisses overcame these obstacles with the cooperation of a sympathetic ship captain, many soldiers made unsuccessful requests; untold others never even bothered to ask. Villazor quotes a heartbreaking letter: “I am a [sic] Army Corporal serving with the Occupation Forces in Japan…. During this time, I have become one of the hundreds of GIs, who have become fathers to children born of Japanese mothers. As you know, the laws of the Army and of the country make it almost entirely impossible for GIs to marry women of Japanese blood…. Every day, I come in contact with soldiers of my unit and of others that, [sic] are suffering from broken hearts and are left helpless when they inquire for advice or consideration from authorities.” (P. 1411)
More than a hook for an interesting history, the Bouiss case helped inspire legal changes—albeit temporary ones—in the legal landscape affecting the Bouisses and many others like them. Despite their defeat in court, the Bouiss’ case resurfaced in congressional debates over the impact of immigration and citizenship law on U.S. citizen soldiers’ families formed abroad. Moved by these stories, Congress twice amended the War Brides Act to exempt, for a limited period, the otherwise racially inadmissible spouses of American citizens from the prohibitions on their entry into the United States. Helene Bouiss herself was admitted in 1948 pursuant to one of these amendments. Villazor’s article ends with a discussion of the possible implications that a revised understanding of the relationship between marriage and federalism could have on the struggle over the right to same-sex marriage. Her hope is that the Bouiss’ story will once again help inspire changes that will enable couples who have been separated by law to be united. More than a rewarding read, her article could help inspire those changes. It is an admirable contribution to efforts toward that end.
Cite as: Christina Duffy Ponsa,
Love and War, JOTWELL
(April 6, 2012) (reviewing Rose Cuison Villazor,
The Other Loving
: Uncovering the Federal Government’s Racial Regulation of Marriage, 86
N.Y.U. L. Rev. 1361 (2011)),
https://legalhist.jotwell.com/love-and-war/.
Mar 12, 2012 Serena Mayeri
Modern medicine, the rise of the welfare state, and profound cultural shifts have transformed old age in the industrialized world. Or have they? Hendrik Hartog’s history of inheritance disputes from 1850 to 1950 excavates a world both familiar and foreign. Then, older people who dreaded loneliness and destitution promised generous bequests of property in exchange for care and solicitude from younger adults. In turn, younger adults sacrificed opportunities—independence, mobility, marriage, fortune-seeking—to remain close to home and to provide arduous and intimate care in the hope of recompense, often in the form of real estate.
Disappointment, resentment, and recrimination predictably ensued—at least in many of the cases Hartog describes. He takes us deep into the lives of middle-class New Jersey families, as revealed in trial transcripts from law suits brought by frustrated would-be heirs. Hartog first explores the world of the aging adults who attempted—with varying degrees of calculation and desperation—to exercise control over their “retirement” years, particularly their anticipated physical and mental decline.
In a time before social insurance and nursing homes, elder care happened at home. Many of New Jersey’s immigrants hailed from traditional societies where adult children rarely strayed far from their families of origin. But in nineteenth- and early twentieth-centuryAmerica, free labor and geographic mobility made staying close to home much less attractive. To guard against abandonment, older adults often promised their children (or nephews or nieces) that if they stayed, if they provided care and company, they would inherit the house or the farm or a valuable tract of land.
Hartog next examines these bargains from the perspectives of those who relied on such promises, only to be left with nothing when their would-be benefactors died intestate or otherwise reneged, intentionally or not. He describes how circumstances, legal rules, and sometimes deceit deprived the younger parties of property they believed they had earned through such bargains.
The second part of the book, “Death and Lawyers,” takes us into the lawyers’ offices and courtrooms where the ensuing legal disputes unfolded. Here is the first sustained discussion of legal doctrine, though Hartog emphasizes how law profoundly shaped the consciousness and actions of his characters. Testators’ freedom, the Statute of Frauds, concepts of undue influence, and shared understandings about contractual obligations and their limits, structured both legal outcomes and the carefully laid plans of the aging and the young.
Hartog weaves such legal concepts seamlessly into his narrative. Family relationships, old age, intergenerational conflict and cooperation—not to mention a century of caselaw from New Jersey’s equity courts—are messy. Hartog imposes order while preserving nuance and complexity. His imaginative use of the sources exemplifies sophisticated yet accessible legal history. At one point, where the sources speak less clearly, he invites the reader to envision an extended conversation between lawyer and client. Far from fanciful, his grounded speculations provide a compelling picture of the doctrinal and cultural constraints that likely shaped legal counsel and its reception. Throughout, Hartog treats his protagonists with empathy yet without sentimentality.
Hartog’s story is full of paradoxes. The young women who performed much of the caregiving labor for the aged confronted the expectation that such work was unexceptional and non-remunerative—the ordinary obligation of a daughter, or daughter-in-law, rather than evidence of a contract to inherit property or receive other compensation. Others were accused of exercising “undue influence” over their elderly charges, invalidating wills that explicitly provided for inheritance. Ironically, younger people who revealed in court that they had stayed with their aging relatives and performed care work out of love or a sense of familial duty often sabotaged their claim that they labored because of an enforceable contractual understanding.
Over time, Hartog shows, more of the work of elder care came to be seen as compensable. But by the middle of the twentieth century, his protagonists were “not yet in a normative universe…where direct care of the aged is presumptively provided by way of paid contracted work by strangers.” (P. 265) The book’s brief epilogue reflects upon what has changed—the temporal extension of “retirement,” the partial public financing of old age, the expansion of housing and care options, the political mobilization of elderly Americans, the ethic of consumption outpacing that of saving. Older Americans are more likely to share wealth with the younger generation not through “strategic bequests” but through investments in human capital (higher education) and sometimes in real estate (helping out with a down payment on a young couple’s first home). Today, we often see inherited wealth as “unearned.” As Hartog perceptively notes, such a concept would have been incomprehensible a century ago.
Continuity also characterizes our modern world of elder care, however, even as the legal disputes Hartog chronicles have all but disappeared from the case reports. Much uncompensated care for the aged is still provided by spouses and adult children. As Hartog emphasizes, the labor performed now is primarily caretaking—decisionmaking, coordinating, navigating medical and other bureaucracies—in addition to or even instead of caregiving. He makes a persuasive case for significant “discontinuity” between past and present. But as a moving coda acknowledges, Hartog’s account of family conflict, wrenching financial and emotional trade-offs, and the abject terror of planning for an ultimately uncertain future also provokes a shiver of recognition in modern readers.
Cite as: Serena Mayeri,
The Law of Aging, JOTWELL
(March 12, 2012) (reviewing Hendrik Hartog,
Someday All This Will Be Yours: A History of Inheritance and Old Age (Harvard University Press, 2012)),
https://legalhist.jotwell.com/the-law-of-aging/.
Feb 6, 2012 Angela Fernandez
Samuel Moyn,
From Antiwar Politics to Antitorture Politics, available at
SSRN.
Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto. I write about it here on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.
Moyn’s thesis is that international law in the human rights era has moved from a Nuremberg-informed concern with the crime of waging aggressive war to a preoccupation which he thinks first developed in the later stages of the Vietnam War with crimes committed in the conduct of war itself, with the means and methods of warfare so familiar to us now in post-9/11 debates about the detainment and torture of prisoners in the “War on Terror.” Until My Lai in 1969, Moyn argues, Americans were shockingly cavalier about illegal military acts committed in the Vietnam War that were widely known to be occurring – mistreatment of POWs (direct military shootings and torture of suspected South Vietnamese subversives), search and destroy missions that made little or no effort to distinguish between combatants and civilians, and massive aerial bombardments, including unauthorized bombings in Cambodia and Laos. When American lawyers entered the debate about the legality of the war, Moyn shows that they paid little attention to crimes committed in the conduct of the war. Here he focuses on the activities of “The Lawyers Committee Concerning American Policy in Vietnam” between 1965 and 1969. This group concentrated on aggression and the legality of American intervention in Vietnam and nowhere addressed the law governing the conduct of warfare. Things did change. Moyn gives a central place in his story to Richard Falk, a member of this group and an academic lawyer who eventually became very vocal in his opposition to the war, including an emphasis on illegal methods of conducting it. The second person who features prominently in his paper is a more conservative critic, Telford Taylor, a military man who had been a prosecutor at Nuremberg, whose popular book Nuremberg and Vietnam: An American Tragedy (1970) condemned the war. Taylor made the allegations of war crimes committed in Vietnam “respectable,” as he could not be seen as relying on spurious accounts from the far left or dismissed as a Communist sympathizer. Taylor followed the post-My Lai trend of emphasizing war crimes, casting doubt on the whole idea of aggressive war from Nuremberg. Taylor appreciated that “unlike at Nuremberg where it was obvious who had started World War II, the Vietnam era showed that one man’s aggressor was another man’s victim (and vice versa).”
Now these legal arguments were more or less redundant in the face of massive widespread social and political opposition to the war. Moyn contrasts this with our own times, in which wars that have not relied on the draft (e.g. Iraq and Afghanistan) have elicited little social or political protest, at least in the United States. In these wars, incidents like Abu Ghraib and the human faces of detainees at Guantanamo Bay have loomed large. Politically, the fact that there turned out to be no “weapons of mass destruction” in Iraq, the reason George Bush gave for starting that war, was something I recall people cared very much about. United Kingdom international lawyers expressed their initial opposition to the Iraq invasion in legalistic terms that included an emphasis on going to war in the absence of authorization from the United Nations Security Council. See the famous letter to the Guardian from March 7, 2003. This was legal anti-war politics not an anti-torture politics. Although the very idea of aggressive war sounds antiquated, as Moyn put it in his talk, people do certainly continue to speak in the older language of just and unjust wars (e.g. Michael Walzer’s Just and Unjust Wars: A Moral Argument with Historical Illustrations, which was first published in 1977 with new editions to 2006). Nonetheless, I think Moyn is correct to say that we have generally moved away from aggressive war. Consider, by contrast, the central role that the charge played at the Tokyo Trial, sometimes called “the Forgotten Nuremberg.” Yet it proved to be problematic at Tokyo for the same reason Telford Taylor pointed to in Vietnam, namely, that what looked like Japanese aggression to Westerners and the Chinese, looked to others in South Asia like anti-imperialism and anti-colonialism, a perspective the judge from India on that tribunal voiced strongly in his dissent. General MacArthur’s decision to charge those defendants (but not the Emperor) when nothing was said or done about Hiroshima or Nagasaki has always looked like the height of hypocrisy, the pure politics of “Victor’s Justice,” as it was often said, especially by the Japanese. MacArthur felt he needed the Emperor to rule post-war Japan, and the nuclear bombs were what they were. Most of us in the West grew up being told that they were necessary to stop the war.
As Mary Dudziak has argued in her work and her just published book, War Time: An Idea, Its History, Its Consequences, the United States has been at war almost continuously for as long as anyone who is now alive has been living, and so the idea of war as a time of exception, a time when the ordinarily unacceptable becomes acceptable is utterly untenable. If war has been normalized in this way, then what will catch our attention is something like Abu Ghraib, i.e. “scandalous news of atrocity.” War itself seems (tragically) to be a given. Moyn wants to tell us about the Vietnam War and all the atrocity that was committed there, which found no uptake (legally and politically) until a very late date, in order to make it clear that what went on under the Bush administration post-9/11 was not out of keeping or out of step with the way that the United States has always behaved in its wars. In fact, what happened in Vietnam was probably worse. That does not make post-9/11 behavior ok; it does mean that we cannot talk about it or understand it as an aberration.
The broader point about the shift away from the crime of aggression to atrocity in war, Moyn argues, is that it allows conservatives to avoid having to contend with the legal restraints on going to war in the first place, while at the same time encouraging liberals to humanize war without dealing with its basic illegality. It is true that the executive should not be allowed to torture; however, it should also not be allowed to fight wherever and whenever it wishes. The focus on atrocity has done some work on us here, including our historical sense. So, for instance, Moyn points out how we have forgotten that the war crime central to Nuremberg actually was aggressive war. There may be a story here about the way in which Nuremberg came to stand as a precedent and even a paradigm for the future world in a way that actually became quite difficult to apply to other conflicts, even those as close in time as Tokyo. Moyn’s paper however would caution against thinking of the crime of aggressive war in that way, challenging us to think about our orientation towards atrocity and torture and what it might be doing to the possibilities of an anti-war politics, not just legal anti-war politics that emanates from international lawyers but political anti-war politics, which rejects going to war in the first place or, to draw on Dudziack’s insight, rejects being at war all the time. I highly recommend Moyn’s piece.
Sep 19, 2011 Sophia Z. Lee
While histories of the United States are just beginning to creep into the 1980s, Daniel Rodgers has produced a panoptic intellectual history that takes his readers into the twenty-first century. As someone who came of age in what Rodgers compellingly titles the “age of fracture,” I found it disconcerting to read about my own intellectual development in a history book. Okay, what I really mean is that it made me feel old. But I suspect that it would make Rodgers happy to learn that his book stretched out and rematerialized time for this reader. After all, coursing through the book is dismay at how the abstraction of time and discounting of history has impoverished everything from economic to political theory. In other words, his book is, in part, a historian’s lament, and it should appeal to historians for this reason alone. The Age of Fracture is also a meditation on the causes of America’s current tattered social welfare state, a capstone to the story begun by Rodgers in his equally breathtaking Atlantic Crossings: Social Politics in a Progressive Age (1998). Legal historians should take particular interest in the book. It places in historical context a number of trends in legal thought, from law and economics to originalism.
Rodgers argues that during the closing decades of the twentieth century, liberals’ and conservatives’ concepts of power, time, identity, wealth, and community fragmented, becoming thinner, smaller, and more malleable. Individual choices replaced historical and structural forces as explanatory variables. Rodgers deftly interweaves trends from across the political spectrum. He argues that the Foucauldian turn among leftist academics was of a piece with conservatives’ embrace of rational choice theory (both trends dematerialized power). Colorblind constitutionalism, Rodgers also contends, shared implications with black intellectuals’ “celebration of paradox, improvisation, and hybridity” in 1990s race theory (both discounted the heavy hand of the past in shaping the present). (140)
In The Age of Fracture, ideas, economies, and public policy are both causal engine and historical effect. According to Rodgers, a new age of ideas dawned because reigning economic theories failed to explain or ameliorate the stagflation of the 1970s. The resulting crisis created an opening for previously peripheral ideas like Milton Friedman’s monetarism and new ones like supply-side economics. Rodgers attends to how markets drove ideas in more implicit and localized ways as well, arguing, for instance, that poststructuralist theory became dominant among feminist scholars because it allowed women breaking into the academy to vie discursively in continental-theory-heavy, male-dominated faculties. But if economics drives ideas, ideas drive policy. Rodgers traces carefully the way theories of the micro, the plastic, and the volitional on the left and the right eroded support for an interventionist state. Thanks to both libertarian and communitarian theory, for example, “[t]he domain of citizenship, which had expanded in the post-World War II years, . . . began to shrink.” (198) Public policy, in turn, shaped economies, a point driven home by a devastating account of the shock therapy that transition economics prescribed for Eastern Europe’s emerging nations during the 1990s.
The legal academy should feel validated by The Age of Fracture. It is represented in nearly every chapter of the book (more attention, I should note, than historians receive). Rodgers also depicts legal theory as a driver of intellectual trends, not merely an echo of innovations in the social sciences and humanities. Law and economics features prominently in his chapter “The Rediscovery of the Market,” colorblind constitutionalism and critical race theory in “Race and Social Memory,” employment discrimination and critical legal studies in “Gender and Certainty,” hate speech and communitarian-driven education policy in “The Little Platoons of Society,” and originalism in “Wrinkles in Time.” The primary intellectual histories of twentieth-century legal thought, Laura Kalman’s The Strange Career of Legal Liberalism (1996) and Morton J. Horwitz’s The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992) are less concerned with the broader intellectual contribution of legal scholars, with Kalman focusing on the impact of intellectual trends on legal thought and Horwitz focusing on the impact of legal thought on the law. This makes The Age of Fracture not only an appealing book for legal academics, but an important book for legal historians.
To give a taste of what you can expect, Rodgers has an almost subversive account of originalism. It was, Rodgers argues, “Constitutional conservatism’s flirtation with timelessness.” (242) For Rodgers, originalism, despite its practitioners’ excavation of historical sources and efforts to divine the historical meaning of language, has much in common with postmodern and deconstructionist theory. Rodgers contends that end-of-days fiction like Tim LaHaye’s Left Behind series laid the ground for conservatives to accept originalism, because both “short-circuit[ed] time” by “making not only the past but the future immediately accessible to the present.” (231) In this deft move, Rodgers synchronizes originalism’s promise to transport us back to 1788 or 1868 with the temporal pastiche found in postmodern aesthetics. Originalism, Rodgers observes, marked a change in conservatives’ relationship to time. Traditionally associated with Burkean incrementalism and stability, conservatives now sought to “to locate a trap door through which one could reach beyond history and find a simpler place outside of it.” (241) For conservative constitutionalists, as for transition economists, Rodgers suggests, trying to “slip[] instantly across time” in the name of stabilization could have profoundly destabilizing effects. (241)
Rodgers’s reading of originalism or of the age of fracture is not the final word. The splitters among us could look at all Rodgers has lumped together and find far more difference than similarity (this might be missing the point, however: bold and sweeping synthesis, Rodgers implies, is what is needed in an age of fracture). The book, however, is an incredibly well-crafted and provocative offering, one that prods legal historians to look for counterintuitive connections and to place legal thought in the broader swim of ideas. If it sounds intriguing to ponder what Robert Bork and the Crits, not to mention Charles Murray and Judith Butler, had in common, The Age of Fracture is the book for you.
Jul 4, 2011 Laura Edwards
Barbara Welke’s Law and Borders of Belonging in the Long Nineteenth Century United States provides an elegant synthesis of the existing literature on rights and citizenship while also delivering a challenging and original argument of its own. Welke manages this difficult feat by incorporating a wide range of scholarship, beyond the field of legal history, into her analysis. She then uses that historiographical base to recast the progressive narrative of legal change, which posits a steady extension of rights to previously excluded groups and a consequent expansion in the meaning and reach of citizenship. Instead, she argues that there was firm commitment to conceptions of rights and citizenship that privileged the status of white men at the expense of other, marginalized people. The book is part of the series, The Cambridge History of Law in America, edited by Christopher Tomlins and Michael Grossberg. One of the series’ goals is to provide an accessible introduction to the material, with an eye toward classroom use. Law and the Borders of Belonging will be a useful teaching tool because its narrative is so gracefully constructed. But it would be a shame to leave this book to students because it also makes such an important contribution to nineteenth-century legal history.
Law and the Borders of Belonging uncouples rights from citizenship. In so doing, Welke draws on recent scholarship in legal history. But her analysis moves in different directions because of her background in feminist theory, women’s history, and the literature on race, ethnicity, and disability. By separating rights and citizenship, Welke is distinguishing between the positive claims that individuals can make on the state through the legal system and the various demands that the state can make on individuals. Women in the nineteenth century, for instance, did not have the full array of individual rights even though they were citizens. For them and for other Americans who were not white and male, as Welke argues, citizenship implied only responsibilities, restrictions, and regulations. The acquisition of rights resulted not in citizenship, but in legal personhood. Citizenship, however, still gave meaning to legal personhood, because rights, alone, did not always guarantee the state’s protection or support.
Uncoupling rights and citizenship allows Welke to explore the nuances of individuals’ positive and negative connections to the state. Her approach also allows her to explore the relationship between the positive and negative elements of individuals’ relationships to the state—the dynamic to which the term “borders of belonging” refers. Borders of belonging is a purposefully ambiguous concept, rendering unstable what the scholarship now tends to treats as definitive. As Welke shows, neither legal personhood nor citizenship determined the borders of belonging. It was a mix of the two that determined the borders. But even possession of both did not always guarantee belonging.
This analytical framework then leads Welke to a very different view of the trajectory of rights and citizenship in the nineteenth century. Instead of focusing on the attainment of rights as the standard by which to measure individuals’ legal statuses and their positions within the nation, Welke focuses on various groups’ actual ability to use the law and to call on the state to defend their interests. The first chapter, “Constructing a Universal Legal Person: Able White Manhood,” deals with those individuals who could use the law and could claim the status of legal personhood. Their status as such determined the meaning of citizenship for them, placing them within the borders of belonging and giving them access to state authority that others did not have. The second chapter, “Subjects of Law: Disabled Persons, Racialized Others, and Women,” focuses on those people were not able to use the law. As Welke argues, these people were not only subjects in law, but also subject to those individuals with the status of legal personhood. They did not fit within the border of belonging in the same way as white men, even though they were subjects of the law. The third and final chapter then explores the resulting conflicts, as those who were legally disabled sought to obtain the benefits of belonging purported to be universal, but were not. Welke argues that the entire century was marked by continuities that remade existing inequalities so as to exclude and subordinate on the basis of gender, race, ethnicity, and ability. Those inequalities were built into the new republic’s legal system at its birth, and they continued to structure legal statuses and people’s relationships to the state throughout the entire nineteenth century. Even the Civil War, emancipation, and the Reconstruction amendments did not alter the basic structure.
As Welke’s analysis suggests, the progressive narratives of rights and citizenship are problematic because they are based on the impossible. Legal personhood and citizenship, as they were defined in the nineteenth century, are predicated on subordination and exclusion. As such, they cannot be extended easily, if at all, to those groups of people who were subordinated and excluded. By implication, Welke also raises fundamental questions about the construction of the nation more generally. These larger points build on the analyses of feminist scholars and critical race theorists, who have revealed the gender and racial subtext of the supposedly universal liberal subject. It is Welke’s command of the evidence that makes her analysis so compelling. Her larger claims emerge from her explication of the material so that readers see familiar dynamics in very different terms. Law and the Borders of Belonging is quietly transformative. Students will think that her take on the nineteenth century is conventional because it is so well done. Their professors will know otherwise.
