Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.” During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.
This election episode epitomizes the declining relationship among tax, civic identity, and citizenship, which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions.
Spanning most of the twentieth century, Likhovski’s book is divided into three parts. Part I analyzes the transition from arbitrary and corrupt Ottoman taxation, extracted primarily by tax farmers (for-profit non-state intermediaries responsible for tax assessment and collection), towards a more rational taxation system, levied directly by a centralized Ottoman and later British state. With more accurate and detailed information about their subjects, these bureaucratic states were able to assess and levy taxes more equitably and efficiently. Part II, “The Ascendancy of Social Norms,” explores the final years of the British Mandate and the first years of Israeli statehood, an era when reliance on community norms to encourage compliance thrived. Drawing on the tradition of community taxes in the Jewish Diaspora and on Zionist civic republican ideology, Palestine’s Jewish inhabitants began introducing an array of self-imposed, “voluntary compulsory” taxes to support various causes: self-defense, unemployment benefits, public works, and the rescue of European Jewry, to name a few.
Though some organizations such as the Kartell Jüdischer Verbindungen, an organization of German-Zionist academics in Palestine, sought to impose these taxes through legal and quasi-legal mechanisms, taxes were enforced primarily through social networks. (P. 122.) The Jewish Agency encouraged payment through various media, such as literature and art propaganda, but without any formal backing (and despite certain reservations) of state officials and state law. Even resort to shaming through mechanisms such as “evader lists” was rare. Still, these taxes generated more than double the revenue collected by the colonial state, even after the British introduced an income tax in 1941. This civic republican ethos carried into the first decades of Israeli statehood. By creating a strong sense of community, the new “intimate fiscal state” successfully instilled a sense of duty, loyalty, and trust. It conveyed to its citizens the importance of paying for the establishment and maintenance of “their” state.
But this era was short-lived, lasting only two decades: As Likhovski explains in Part III, a convergence of related social, political, and cultural factors, such as an abating security threat, greater social heterogeneity, and (perhaps most importantly) the waning of collectivism, led to the decline of social norms concerning tax compliance. This social transformation contributed to the rising influence of tax professionals, namely, accountants and lawyers. Likhovski carefully and skillfully analyzes the interplay between their increasing involvement and the transformation of tax norms, which reflected—and were designed to counter—their involvement.
Likhovski argues that the connection between taxes and citizenship became even more tenuous as these experts became more deeply involved as intermediaries and policy designers, and as they began to reorient their duties from the state towards their clients—the individual tax-payers. Initially viewing their charge as ensuring that “tax laws be implemented justly and equally,” (P. 233) accountants fulfilled an educational role and enjoyed the trust of the state and taxpayer alike. But by the 1960s their statist rhetoric gave way to a more client-friendly approach. They also began openly criticizing tax policy, advocating tax simplification to eliminate state bureaucracy and to secure the interests of individuals, investors, and corporations. The legal profession followed a similar pattern: lawyers, who initially fit rather uncomfortably within the collectivist, industrial Zionist ethos, managed to establish their position in the Israeli collective as promoters of respect for the law and for the state. (P. 240.) Yet by the late 1960s, they too increasingly began perceiving their duty as primarily shielding clients from tax responsibilities rather than enforcing the state’s interests. Finally, during this same period, Israeli economists reexamined their fundamental assumptions regarding what may be called the “Homo Israelicus.” Initially convinced of Zionist exceptionalism, which placed the collective ahead of individual interest, by the 1970s Israeli economists were designing tax policy in a more scientific, universalist fashion. They reoriented their perspective from statist to individualist. This growing involvement of experts transformed tax legal norms in Israel, which became more flexible and intrusive to counter non-compliance and overly creative professional “tax planning.”
Some readers might criticize the disproportionate attention the book pays to Palestine and Israel’s Jewish community. Though Arab subjects and citizens do receive some consideration, the book focuses primarily on the Jewish community (and on Zionist Jews in particular) even though Palestine’s Arab population was significantly larger during most of the period analyzed. Still, given Likhovski’s inquiry, his selection is judicious. Though one may glean useful insights regarding the connection between tax and civic identity by thoroughly examining “outsider” groups, it is through the transformation in the social norms of insiders that this social phenomenon—namely, the weakening of the relationship between tax and civic identity—is best explored. It is within this group that one may observe the greatest ebb and flow in social norms concerning tax compliance, from voluntary to compliant to cautiously avoidant.
Though Likhovski’s account is, as he acknowledges, primarily top-down, he draws on a broad array of sources to depict a vivid social and cultural history of taxation. He relies not only on judicial decisions and legislative histories but also on propaganda films, posters, and literature produced by Israeli taxation authorities and Israel’s Tax Museum, and on children’s books and satire. The result is a highly entertaining read. Likhovski once again demonstrates his outstanding aptitude for storytelling that combines a keen eye for unusual details with broad theoretical insights. Though Likhovski’s book focuses on Palestine/Israel, it offers broader insights concerning fiscal citizenship and how tax evasion has transformed over time from vice to virtue. As one visitor to Israel’s Tax Museum noted: “I do not believe that one [could] find such a subject, that is really so dry, exciting, but I did.” (P. 175.) I think most readers will agree.
Over the past few decades, historians have enriched our understanding of the concept and experience of citizenship in United States history. The historiography shares some common features. Narratives of citizenship and immigration tend to be progressive: that is, they demonstrate the ever-widening circle of inclusion of “others” over time (think, for example, of histories of married women’s property rights, the civil rights movement, or the immigration acts from 1924 to 1965). Despite this commonality, for the most part, histories of citizenship and immigration have really been histories of citizenship or immigration: even though these terms are usually uttered together as a phrase, the scholarship tends to be divided into those who study “second-class citizens” – that is, those who were born in the United States but excluded from various rights and obligations, including racial and ethnic minorities and women – and those who study the foreign-born.
Kunal Parker’s compelling book, Making Foreigners: Immigration and Citizenship Law in America, 1600-2000, upends the division that is commonplace in the study of citizenship “or” immigrants. He challenges what he perceives as a false dichotomy between foreigners and non-foreigners in the extant literature. His central claim is that histories of citizenship and immigration are tightly linked: that territorial insiders and territorial outsiders – that is, those born here and those not – have been subjected to similar processes of regulation, rejection, exclusion, and removal throughout American history. As he writes, at various points in our history, women, blacks, Native Americans, Asian Americans, and Latino Americans have all been “rendered foreign,” sharing more in common with territorial outsiders – or so-called “aliens” – than with those who were native-born. In other words, the experience of foreignness was not limited to those who were foreign-born. Parker is not the first to demonstrate the interconnectedness of territorial outsiders and insiders, but his book provides a comprehensive frame, making the most successful argument to date for this reconceptualization.
The book aspires to be a concise synthesis of immigration and citizenship law over four centuries. This is an ambitious goal, one that Parker meets successfully. This is a synthesis that has a point of view and is driven by a conceptual framework. As such, it does not attempt to be comprehensive. Notably less prominent in the narrative are the voices and actions of immigrants and minorities themselves. The focus instead is on the architecture of exclusion: the state, local, and federal laws and policies that recreated foreignness in various guises. The evidence supporting the argument is voluminous: the book charts a wide range of powerful forces that pushed in various ways to render citizens as foreigners, and gives many specific examples (restrictions on the right to travel for poor people, Native American relocation, loss of citizenship for women married to foreigners, Japanese internment, and Mexican repatriation, to name a few). Parker concludes with an excellent bibliographic essay that supplements the text.
The first chapters of the book draw on a wealth of sources to demonstrate that the legal status of many native-born residents was strikingly similar to that of foreigners. During the colonial and early national periods, a majority of native-born residents shared the same legal disabilities as aliens, including an inability to own property and vulnerability to state powers of removal and exclusion. The latter chapters of the book show that, beginning in the twentieth century, the experiences of insiders and outsiders began to diverge: as the nation developed a strong formal definition of citizenship, aliens lost legal status. As the boundaries of citizenship hardened over time, the gap between alien and citizen widened. Rather than an upward progressive line of expansion in rights for all, there were diverging patterns between citizen and alien. This insight helps to contextualize the draconian treatment of immigrants in American law today, pushing against a more familiar – and, Parker would argue, less accurate – narrative of inclusion and expansion of rights.
Importantly, Parker shows that the narratives of insider and outsider were mutually constitutive: a strong, legally bounded definition of citizenship meant that something, and someone, needed to be on the outside of that category. This is a powerful illustration of the ways that citizenship becomes, to quote Rogers Brubaker, “both an instrument and an object of [social] closure.” Ultimately, Parker makes a convincing argument that one cannot tell the story of citizenship without the story of immigration. We cannot understand the growth of the federal immigration bureaucracy without understanding the demise of slavery; we cannot make sense of the development of deportation law without understanding the vast regime of local settlement laws that excluded the poor – both citizen and noncitizen – from communities; and we cannot understand the rise of guest worker programs after World War II without understanding the expansion of rights, including workplace protections, to formerly vulnerable citizens of color. This insight into the connectedness of these narratives across the long arc of American history is a key contribution, making the book required reading for those who study citizenship and immigration in the United States.
Making Foreigners is a masterful history that changes the way we think about multiple fields. Reading the book in 2017, one cannot help but reflect on how these dynamics of exclusion are still alive and well in our current era. These mechanisms of rendering citizens as foreigners have not disappeared but instead have taken on new guises. A retrospective look at Donald Trump’s campaign provides a seemingly never-ending list of examples relevant to the book’s core argument: the birther movement, the threat to build a border wall, the demeaning of women, the portrayal of blacks as living in “hell,” the attack on a Mexican-American judge, the attack on a Muslim-American veteran and his family. After reading Parker’s book, one sees all these examples differently, not as throwbacks to an outmoded era or rantings of an unhinged politician, but instead as the latest instances of a political strategy to render foreign whole swaths of people in this country. We have to hope that other narratives will prevail, but we cannot deny that this one will continue to haunt us for years to come.
Christopher Tomlins’ fascinating essay, Historicism and Materiality in Legal Theory, reconsiders the purpose of legal history and its utility for legal theory. For the last three decades, Robert W. Gordon’s landmark article, Critical Legal Histories, has served as the shining lighthouse by which the discipline navigated the murky waters between fact and theory, description and normativity. Departing from the evolutionary functionalism of law and society and law and economics scholarship, Gordon extolled the virtues of a critical historicism. In showing the indeterminate character of law’s past, this historicism destabilizes its present. As Tomlins sees it, critical historicism offers a post-structuralist interpretation of law, marked by contingency, complexity, and contradiction. The project of locating law in its socio-temporal context, he argues, generates an almost infinite set of relationships for examination. If critical historicism contends that the relationship between law and society is underdetermined, then Tomlins yearns for bolder causal explanations about legal and social change. Building on several prior pieces, Tomlins’ essay calls for an alternative paradigm to historicism, what he terms “materiality.” (P. 59.)
The essay begins by arguing that historicism has two problems. First, there exists a problem of intelligibility. If historical meaning takes shape only in its context, how can an observer—allegedly objective but also situated in time and place—access this meaning? Second, drawing on the work of legal philosopher Pierre Schlag, Tomlins elucidates the problem of differentiation. This is no smaller than the problem of how to distinguish what authoritative texts, corps of experts, institutions, and ritualized practices constitute law. If law and society are mutually constitutive, how do we differentiate between them? Tomlins suggests that the project of legal history should be to examine the process of legal differentiation itself. The essay discusses historical works that illustrate this methodology. Cornelia Visman’s study of state records, for example, explores the process by which administrative technologies produce law.
Tomlins offers Walter Benjamin’s historical materialism as a mechanism by which to resolve the “differentiation problematic through attention to the material fabrication of the category ‘law’….” (P. 73.) The apex of Tomlins’ essay discusses how Benjamin’s attention to materiality, in particular the philosopher’s use of montage and allegory, might resolve the problem of differentiation. He also suggests that Benjamin’s dialectical approach might enable historians to explore the conjuncture between past and present, while avoiding the fallacy of objective historical understanding.
Tomlins’ writing is characteristically erudite. While dense, the essay is accessible to a legal historian such as myself who is not an expert in the continental philosophy it engages. I found the essay exciting to read as I near completion of a book manuscript for a couple of different reasons. To begin, Tomlins concludes that legal historians too often retreat from theory. He urges scholars to reject ever-spiraling complexities of factual description in favor of stronger causal explanations. One might understand this as a mere stylistic challenge, but it is at heart a methodological and philosophical one. I took from Tomlins’ essay the warning that legal historians risk giving up explanatory authority when they attribute the relationship between change in law and society wholly to contingency.
One question I had in reading the essay is how to explain structure without falling into the trap of the structure itself becoming a historical actor. Is there a risk that the historian might derive her structural account of legal change from a theory, rather than from a careful examination of archival sources? This would imperil the integrity of the historical project. Might materiality pose some of the same perils as the functionalism that Gordon criticized?
Of even greater significance is Tomlins’ idea that the legal historian’s understanding derives from a confrontation between past and present. Tomlins’ essay offers insight for many who are concerned with the relationship between their professional discipline and present-day commitments. As I analyze the legal history of feminism in the late twentieth century, I am ineluctably engaged in its consequences for our present moment. The normative seems to me inescapable: it guides the research questions I ask and the analytic structure I endeavor to give historical facts. Of course, we are all perennially wary of law-office history: the use of historical narratives to advance predetermined ends, whether it be legitimating the status quo or recovering the vision of an alternative order. Yet acknowledging that one’s normative commitments shape one’s historical research does not lead inexorably to such instrumentalism. Indeed, it might lead a historian to be more self-conscious, analytic, and explicit about the way that such normativity shapes one’s encounter with the historical record.
Tomlins’ essay is part of a larger volume, edited by Maksymilian Del Mar and Michael Lobban, which reinvigorates a dialogue between history and theory. The wide-ranging essays examine the relevance of history to the study of jurisprudence. One quibble is that feminism’s history and feminist jurisprudence receive barely a passing mention in the volume. A related but not equivalent criticism is that women scholars wrote only two of the seventeen essays in the volume. A reader might consider these absences a contingent product of the editors’ selection process. Tomlins might instead point us toward a structural explanation: perhaps the artificiality of a divide between jurisprudence and the study of law’s social effects, or the enduring role that gender plays in the construction of academic networks.
Kristin A. Collins’s recent article ties together “two foundational ‘borders of belonging’ in American law: the rules that determine family membership and the rules that determine political membership.” (P. 1730.) More specifically, Collins, in a case study of the evolution of derivative citizenship, demonstrates how immigration administrators fashioned rules to guide their own decisionmaking in this area and embedded those rules in statutes and legal precedents.
Collins pushes back against the all too common idea that immigration administration is more lawless and discretionary than regulation at the economic regulatory agencies that are the usual focus of scholarship on the administrative state. Instead, Collins observes immigration officials engaged in the same kind of “administrative constitutionalism” practiced by bureaucrats elsewhere.
Gillian Metzger has defined administrative constitutionalism as not only “the application of established constitutional requirements by administrative agencies” but also “the elaboration of new constitutional understandings by administrative actors, as well as the construction (or ‘constitution’) of the administrative state through structural and substantive measures.” The rich and growing scholarship on the topic (by scholars including Sophia Z. Lee, Jeremy K. Kessler, and William N. Eskridge Jr. and John Ferejohn) examines such lawmaking by administrators at agencies including the NLRB, the War Department, and the EEOC. Like these “mezzo-level” bureaucrats (to use Daniel Carpenter’s phrase), Collins argues, immigration officials in the Labor Department, State Department, and Justice Department “played an active role in crafting important substantive and procedural legal principles that reflected their understanding of foundational legal and constitutional norms.” (P. 1732.)
Relying on archival sources and case law, Collins demonstrates how immigration officials in the early twentieth century developed rules to govern how children born outside the United States could derive citizenship from their U.S. citizen parents. Her clear and engaging narrative makes clear both the key role of bureaucrats in lawmaking throughout the twentieth century and the way bureaucrats’ racialized and gendered concerns about immigration and citizenship in the early twentieth century became embedded into federal law for decades to come.
From the early republic on, federal law provided that children born abroad became U.S. citizens if their parents were U.S. citizens; similarly, the children of naturalizing parents became naturalized themselves. When Congress in 1855 specified that this applied only to children of U.S. citizen fathers, judges and administrators understood the law to mean only married fathers. Harsh common law rules treated nonmarital children as fatherless, and “in the nineteenth century, judicial and administrative precedents had incorporated that rule into American nationality law, thus excluding from citizenship the foreign-born nonmarital children of American fathers.” (P. 1737.)
In the early twentieth century, however, the State Department began acknowledging the citizenship of children whose parents later married. In adopting a policy based on fathers’ “legitimating” their children, however, officials had to determine what it meant to “legitimate” a child. This was not, Collins emphasizes, “a lawless or purely discretionary endeavor.” (P. 1743.) Instead, in developing internal rules to govern their own decisionmaking, officials looked to family law legitimation rules, which varied by state (these rules included subsequent marriage, formal acknowledgement, and/or judicial order). At the same time, officials drew on federal immigration policies and their own institutional priorities grounded in racial exclusion. Immigration officials thus were guided by a rule (approved by the Attorney General) that approved derivative citizenship in cases where a father had legitimated his child under the appropriate state’s law, but adopted a “more restrictive interpretation of the derivative citizenship statute” when the fathers were American citizens of Chinese heritage. (P. 1739.) In a more inclusive act of administrative lawmaking, officials chose to interpret statutory language regarding American fathers to include American mothers, allowing the latter to pass on citizenship to their foreign-born children. These administrator-drafted rules were subsequently adopted by Congress in the Nationality Act of 1940 and the Immigration and Nationality Act of 1952 (which relied on local law to define “legitimation”), demonstrating administrators’ role in lawmaking outside as well as inside the agency.
As family law evolved, however, administrators clung to a narrower idea of what constituted “legitimation” than many state statutes did. Collins draws on arguments before the Board of Immigration Appeals to demonstrate that administrators “crafted an interpretive rule that in most jurisdictions required the father to marry the child’s mother.” (P. 1753.) These guidelines proved durable even as family law itself underwent radical changes in the 1960s and 1970s. States made it easier for fathers to legitimate their children, and courts drew on the Equal Protection and Due Process clauses to destabilize the marital and sexist presumptions in domestic family law. State family law and federal citizenship law thus increasingly diverged.
Immigration officials, supported by federal courts, continued to embrace a marriage-centric definition of “legitimation,” and courts were similarly loath to eliminate provisions in citizenship law that burdened unmarried fathers but not mothers. The Supreme Court, in one such challenge, chose to defer to the federal government’s plenary power over immigration rather than bringing federal law into conformity with family law trends. And while the Immigration Reform and Control Act of 1986 eliminated formal legitimation requirements for some areas of immigration law, it did not apply to derivative citizenship. The law moved away from a marital model of legitimation but contained different requirements for unmarried mothers and fathers seeking to award citizenship to their children.
Collins was writing on the eve of the Supreme Court’s decision in Sessions v. Morales-Santana (2017), in which Morales-Santana challenged the different residency requirements for unmarried mothers and fathers contained in federal law regarding derivative citizenship. In June, the Supreme Court struck down the provisions (which Justice Ruth Bader Ginsburg, writing for the Court, called “stunningly anachronistic”). Collins (whose earlier work on derivative citizenship was cited by Justice Ginsburg in the opinion) suggests in conclusion that this case may not be the end of the story. It might instead be another opportunity for administrative lawmaking both in and out of the administrative state.
“#DearBetsy,” tweeted civil rights activist Alexandra Brodsky on July 6, 2017, “Rescinding Title IX guidance moves us backwards when we desperately need progress in ending campus sexual violence.” The hashtag linked the message to many others, including personal accounts of sexual assault and also (contrary to original intentions) demands for greater protections for the accused. All these missives are aimed directly at Secretary of Education Betsy DeVos. And they are fascinating, for they suggest a regulatory landscape different from the one we teach in law school—a landscape in which savvy use of social media may be as important as the Administrative Procedure Act and in which people who lack conventional markers of influence demand the ear of top administrators. Fortunately, we have an excellent resource for understanding this landscape: a crop of historical work on petitions to government administrators. A particularly enlightening example is political scientist Daniel Carpenter’s contribution to Administrative Law from the Inside Out, On the Emergence of the Administrative Petition.
My first encounter with this vein of research was legal historian Kristin Collins’ work on military widows and their petitions for public pensions in the nineteenth century. More recently, through a draft article by legal scholar Maggie McKinley, I learned of the North American Petitions Project, a collaborative effort to digitize hundreds of thousands of petitions to government officials between the colonial era and the mid-twentieth century. McKinley uses these data to tell a story about petitioning Congress and how such activity helped give rise to the modern administrative state. By contrast, Carpenter—who is a co-principal investigator on the North American Petitions Project and has been at the forefront of digitization efforts—starts this particular chapter in the administrative realm. Drawing on original archival research, as well as on the work of historians Tiya Miles, Laurence Hauptman, and others, Carpenter reminds legal scholars that well before the formation of the Interstate Commerce Commission and other “modern” regulatory bodies, “thousands upon thousands of groups, organizations, and individuals petitioned administrative agencies both formally and informally.” (P. 350.) Carpenter then digs into a striking feature of this early body of petitions: “indigenous North Americans petitioned administrative agencies as much or more than any other population.” (P. 351.)
Carpenter identifies several factors that contributed to Native Americans’ early and robust use of the administrative petition. One factor was a pattern of congressional deference to the President in matters relating to Indian policy. Presidents, in turn, delegated great power to administrators within the War Department and, later, the Department of the Interior. A second important factor was that these administrators had no intention of leaving Native Americans alone, but rather embarked on prolonged campaigns of dispossession and subordination. In other words, Native Americans had every reason to want to influence administrative decisionmaking. A third factor, Carpenter argues, was a tradition of “complaint and supplication” among indigenous North Americans that was already well established by the time of the Founding. (P. 358.) According to this tradition, all types of authority (i.e., administrators as well as legislators) were appropriate subjects of entreaty.
I could go on about Carpenter’s fascinating examples, but what I find even more compelling is how Carpenter addresses the “so what” question. He offers several answers, generally phrased as possibilities that merit more research. First, we should care about Native American petitions because sometimes they worked—that is, sometimes they resulted in administrative decisions or accommodations that reflected the petitioner’s preferences. Carpenter sees this as “plausibl[e]” in at least some instances of negotiations over indigenous ancestral lands. (P. 351.)
Second, the sheer volume of petitioning shows that Native Americans were never passive subjects of the U.S. government. There was a power differential, to be sure, but petitions suggest an active relationship with state power—a relationship of “monitoring, contestation, and issue framing.” (P. 370.) Moreover, official responses to those petitions demonstrate “the need and desire among early administrative officials for dialogue” with indigenous Americans—a recognition that although they were not “constituents or voters,” they were “more than dependents or mere obstacles to white settlers.” (Id.) In keeping with other exciting recent historical work, the implication here is that we must define “the state” in a way that fits the messy, on-the-ground work of governance and that does not neglect people who lacked formal authority.
Third, Native American petitions displayed interesting commonalities—in their style, in their content, and in their authorship. Carpenter notes, for example, the prominent involvement of women and a tendency over time toward legal and philosophical argumentation. These same patterns, Carpenter suggests, are discernible in later instances of petitioning by non-indigenous Americans, although the nature and degree of influence awaits future study.
I have saved for last one more answer to the “so what” question, because it brings me to the value of the edited collection as a whole (which also includes terrific chapters by legal historians Sophia Lee and William Novak). Drawing on history, Carpenter calls our attention to a feature of contemporary American governance that we know almost nothing about. Petitions to administrative agencies are “an everyday reality for many regulatory agencies,” Carpenter notes, but owing to the predilections of mainstream administrative law scholarship, we remain in a state of “collective ignorance” about them. (P. 350.) Like the work of Jerry Mashaw, which this collection honors, Carpenter’s chapter helps us look with fresh eyes on territory that we imagined had been thoroughly mapped and invites a more diverse set of scholars to join the expedition.
These are interesting times to be an historian of democracy. Historians are beginning to explore the myriad ways that people outside of and even within political officialdom have pressed their claims for recognition, respect, and inclusion in politics, governance, and society. This work is steadily reshaping our understanding of the historical relationships between law, democracy, and the state. At the same time, we have witnessed recently the emergence of a politics that appears to many to have up-ended many of our ideas and practices of democracy. Political ethics of virulent self-aggrandizement, relentless short-term thinking, and total retaliation, in particular, are increasingly prominent. In this moment of heightened attention the question persists: what is democracy?
Too often we reduce democracy to principles like majoritarianism, egalitarianism, or to institutions like voting and elections. In Toward Democracy, James Kloppenberg refuses to be cabined by reductionist or essentialist conceptions of democracy. Instead, his focus is on how Western thinkers developed an ethical (as opposed to an institutional) framework for democracy, a set of “principles” and “premises” which, he claims, grew out of Christianity. These ethics form a dissonant political harmony that makes democracy a fragile political experiment, containing both the highest aspirations of humanity and the seeds for their betrayal.
Toward Democracy falls within the “monumental” category of books, both in terms of size and scope. Not only is the book around 900 pages of text and reference footnotes, but Kloppenberg also has made available separately 500 pages of historiographical notes. Substantively, his intellectual history surveys more than two millennia of ideas impacting the development of democracy in Western civilization, focusing mostly on French, English, and American ideas and practices from the 16th-19th centuries. However, Kloppenberg is most interested in understanding and explaining both the emergence of a democratic system in the United States and its transatlantic effects. Along the way he offers novel re-interpretations of the work and significance of thinkers from John Winthrop and Roger Sherman to John Locke, Montesquieu, John Adams, James Madison, and Alexis de Tocqueville.
But what caught my attention about this book, and what I want to focus on here, is Kloppenberg’s conception of democracy, which he defines broadly as the “shared assumption that all citizens should have the capacity to shape their own lives within boundaries established by the standards and traditions of their communities, and that all citizens should be able to participate equally in shaping those standards and revising those traditions.” (P. 5.) This shared assumption of what would come to be known in the nineteenth century as “ordered liberty” attempts to develop simultaneously the capacities of both the individual and the community, and is founded upon a set of basic “principles” — popular sovereignty, autonomy, and equality. The question, of course, how exactly democratic theorists sought to achieve this simultaneous cultivation of individual autonomy and public good?
For Kloppenberg, democracy is as much “an ethical ideal” as a set of institutions. In fact, I think it’s fair to say that he prioritizes the ethical over the institutional. One of his most important insights is that democracy’s ethical ideal can be traced to basic Judeo-Christian principles—especially the golden rule which admonishes believers to treat others with respect. Christianity helped to shape democracy by inculcating ethics of humility, mercy, forgiveness, and equal respect for others, which shaped democracy’s “underlying premises”: deliberation, pluralism, and reciprocity.
Kloppenberg argues that the ethic of reciprocity is perhaps the most important democratic premise. It forces citizens to respect and weigh distinct aspirations and worldviews, facilitates ancillary ethics of modesty, humility, and benevolence, and recognizes the human inability to identify absolute truths. Pluralism and deliberation are the means by which reciprocity is extended politically. Pluralism denies any “fixed unitary conception of the good life,” while deliberation is a mechanism for generating “provisional truths” through a process of “free inquiry.” (P. 9-11.)
These premises – reciprocity, pluralism, and deliberation — provide popular sovereignty’s motive power. Popular sovereignty can operate only if truth is provisional. Once truth becomes absolute self-government (in both senses) is at an end, individuals can no longer shape their own destiny, nor can they participate in shaping or revising the standard and traditions of their communities.
Democracy’s promise, however, is always haunted by its potential for irony and tragedy. As Kloppenberg explains, “recurrent creations of social and political arrangements that, although often initially appearing to mirror popular desires, ended up either freeing previously repressed impulses that undermined democracy or generating other pressures that produced new and unanticipated forms of dependency and hierarchy.” (P. 13.) If political victory is interpreted as the final rather than the provisional Word, for instance, and the institutions supporting and promoting deliberation, pluralism, and reciprocity are weak, the results can be catastrophic, as in the French Revolution, the Revolutions of 1848, or later, in the Weimar Republic.
It is impossible to read Toward Democracy without thinking about our current political climate. The democratic principles and premises that Kloppenberg develops seem a long way from the emerging ethics of self-aggrandizement, short-term thinking, and total retaliation. Total retaliation (the impulse to tear down political and economic institutions) can only subvert democracy’s principles and premises. American institutions are, of course, stronger and more developed than those of nineteenth-century European nations, but it is fair to ponder where we sit today between the promise and tragedy of democracy. Kloppenberg has given us a set of tools for reflecting upon and thinking through this question both as historians and citizens.
Law is simultaneously at the center and the periphery of Premilla Nadasen’s engaging study of the domestic workers’ movement of the 1960s and 1970s. The absence of regulation made the household a largely lawless space in which the shadow of the law—and of the civil rights movement—nevertheless loomed large. Though not primarily a legal history, Household Workers Unite highlights how the law’s limitations can foster collective action in sometimes surprising ways. Beyond the reach of New Deal legislation and of labor and employment regulation generally, the African American women who dominated the ranks of household laborers for much of the twentieth century campaigned not only for legal rights but for material and dignitary benefits beyond the law, pioneering new organizing strategies that paved the way for the twenty-first century labor movement.
The power of storytelling is central both to Nadasen’s book and to the legal and extralegal activism of the women she profiles therein. In spare, accessible prose, Nadasen introduces little-known characters who made history: Dorothy Bolden, a civil rights and economic justice activist who used city bus lines as an organizing site; Geraldine Roberts of Cleveland, Ohio, whose functional illiteracy did not stop her from launching one of the first domestic workers’ organizations; Josephine Hulett, a household worker in Youngstown, Ohio who mediated between local workers’ rights groups and the National Committee on Household Employment (NCHE); Edith Barksdale Sloan, the granddaughter of a domestic workers who became a lawyer and activist who facilitated the formation of the first national organization of household workers; Carolyn Reed, who used money earned from her household labor to gain financial and emotional independence from a loveless adoptive family and later became a national organizer and head of the NCHE. Better-known figures such as civil rights icon Rosa Parks, Women’s Bureau head Esther Peterson, National Council for Negro Women leader Dorothy Height, and Representative Shirley Chisholm also make appearances, but it is household workers themselves whose stories rightfully dominate this thoughtful, often riveting narrative.
The long civil rights struggle spurred many domestic workers from private indignation to public action—action that Nadasen persuasively argues should place them not in the shadows but at the forefront of labor and social movement history. Accounts of Depression-era “slave markets,” in which housewives selected domestic workers as casual day laborers resonated with African American women who began to see their own struggles not as isolated instances of unfairness but as part of an intergenerational pattern of injustice. Local organizing in cities throughout the country followed, often deeply connected to racial and economic justice movements.
Domestic worker organizing had historical antecedents, but it accelerated at midcentury, when a perceived convergence of interests between middle-class and professional (white) women, on the one hand, and domestic workers, mostly women of color, on the other, prompted professionalization initiatives to provide training, combat stigma, and improve working conditions. Labor feminists hoped these efforts would counter the casualization and de-skilling of household labor brought about by technological and social change while assuaging the domestic labor shortage that attended married white women’s increasing labor force participation. The work of national organizations such as the NCHE also dovetailed with the anti-welfare discourse that emerged as public assistance increasingly became associated with single black mothers rather than the “deserving” white widows and deserted wives who dominated early twentieth-century images of mothers’ aid programs. Nadasen identifies the late 1960s as a new departure for domestic worker activism at the national level, as Edith Barksdale Sloan took the helm at NCHE and household workers themselves increasingly assumed a leadership role in defining the organization’s goals and strategies. This shift toward grassroots organization and self-determination reflected a broader political ethos of community empowerment that enjoyed a brief ascendancy during the War on Poverty.
Nadasen explores the fraught relationships between employers and employees in the home and the intimate nature and location of work in a domain usually considered intensely private and proprietary. While workers’ stories of unjust treatment rightfully predominated in the rhetorical arsenal of household labor activists, accounts of “good” employers served to underscore that domestic work was not an inherently oppressive occupation: it was possible to create working conditions and relationships based in mutual respect and fair remuneration. Employers’ stories conveying the depth of their appreciation for the difficult and valuable work of caring for loved ones and maintaining a home could further workers’ efforts to bolster the dignity and honor of their profession. But at the same time, Nadasen notes, these tales of devotion above and beyond the call of duty reinforced employer values of loyalty and self-sacrifice at the expense of the health and well-being of household workers and their own families. As Nadasen writes, “even though household workers expressed love of their labor, they did not see their work as a labor of love.” (P. 88.) As household worker and activist Carolyn Reed said, “I don’t need a family. I only want a job.” (P. 89.)
The home as workplace reinscribed racial and class boundaries, contributed to the degradation of domestic labor and the commodification of domestic workers’ bodies, character, and emotional labor. Nadasen’s account recalls Dorothy Roberts’ classic analysis of “spiritual and menial housework,” in which white women’s maternal labor is valorized as intimate and nurturing, while the carework of women of color is demoted to the status of manual labor. She draws explicitly upon the work of Darlene Clark Hine on African American women’s “culture of dissemblance” to understand how household workers often presented a congenial and open countenance to mask their closely guarded private thoughts and selves. At the same time, Nadasen notes that “[t]he personal relationship that made this job so capricious and unpredictable could also be a source of power for domestic workers.” (P. 109.) Protagonists’ stories include small but satisfying moments of resistance: “accidentally” spilling a tray of hot food on a disrespectful dinner guest; telling an abusive employer off; quitting without notice.
The challenges facing domestic labor organizing were manifold and profound: chief among them, isolation in homes where household workers were often their employers’ sole employees; the lack of a regular labor market or a structure for collective bargaining; and, of course, the exemption of domestic workers from legal protections and benefits, such as minimum wage laws, workers’ compensation, the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA). Employers could insist that workers perform duties outside their original job description and work inhumanely long hours for no additional compensation and if they refused, fire them with impunity. Wage theft, dangerous and exploitative working and living conditions, undercompensation, and emotional abuse were more difficult to combat under conditions of isolation and extreme power imbalances.
Distrustful of traditional unions with their frequent disregard for marginalized workers generally and women and men of color in particular, household workers pursued looser and more democratic organizing styles. Lacking a centralized workplace, they often organized in public spaces. Organizing strategies included not only collective action and mobilization but also empowering individual workers to engage in one-on-one negotiations with their employers, sometimes with the help of mediators. They also engaged in law reform advocacy, accelerating in the 1970s with a “strategic alliance” between predominantly white middle-class feminists and household labor activists who campaigned to amend FLSA to extend minimum wage protections to private household workers. Thanks in large part to earlier feminist labor activism, by the 1970s household employees were among the few categories of workers excluded from minimum wage protections. To claim protection from labor laws and fight for access to the “fringe benefits” many American workers took for granted was a powerful statement of social and economic citizenship. Congressional opponents raised the specter of “the federal bureaucracy” invading “the kitchen of the American housewife,” but Nadasen contends that a deeper fear motivated their resistance to the regulation of domestic employment—the fear that combating the devaluation of household labor would denaturalize the gendered division of family labor itself. As Secretary of Labor Peter Brennan pithily put it, recognizing the value of household labor would “open the door to a lot of trouble. Your wife will want to get paid.” (P. 132.)
Once again, the household workers’ movement effectively capitalized on the convergence of interests between feminists primarily interested in expanding opportunities for women outside the home and household workers themselves. Not only did professional and middle-class working mothers depend upon household labor, some came to understand its devaluation as affecting most or all women across class and racial lines. Nadasen rightfully emphasizes the limitations of this alliance: for one thing, many middle- and upper-class feminists prioritized equal employment opportunity, and antidiscrimination laws did little to alleviate racial and economic inequality. For another, household workers’ movements had more in common with welfare and economic rights movements in their ideological and experiential roots.
Notwithstanding the penultimate chapter’s focus on the legislative battle over FLSA extension, what is perhaps more striking about the role of law in Nadasen’s narrative is its absence. And even when domestic workers succeeded in winning inclusion in FLSA protections, the law had a “mixed legacy,” stemming in part from the failure to create an effective enforcement apparatus to make real the “abstract construct of individual equality.” Nadasen makes clear that while rights were important to domestic workers, they were more a means to the end of building “a profession that is respected and pays adequately,” in the words of worker-activist Josephine Hulett. (P. 145-46.)
Further, by the 1970s many domestic workers were leaving private household employment and turning instead to agency-mediated home health-care work—which was exempt from the FLSA amendments. So too was live-in employment, increasingly the province of immigrants. Nadasen’s final chapter addresses the status of immigrants in the overwhelmingly African American household workers’ movement. The immigration reforms of 1965 both increased migration from previously restricted countries in Asia and Africa and tightened controls at the Mexican border; migration from the Caribbean and from Puerto Rico also increased during this period. Although activists worried that an influx of immigrants and migrants would further degrade wages and working conditions, Nadasen notes that domestic workers’ organizations did not resort to the xenophobia that elsewhere fueled calls for the deportation of undocumented immigrants. Leaders’ efforts to reach out to immigrant workers enjoyed limited success, but Nadasen suggests that they were both symbolically important and reflective of the movement’s inclusive conception of labor rights. Moreover, domestic workers joined a larger campaign to organize low-wage workers, offering a critical perspective on feminist activism that often minimized or overlooked the concerns of low-income women at the margins of the labor force.
From the vantage point of the twenty-first century, the world described in Household Workers Unite is largely familiar—for better and for worse. Familiar in the relative lawlessness of the home as a workplace, despite some significant advances at the local state and federal levels. Familiar in the complicated relationships between employers and employees in the sphere of intimate labor. And, unfortunately, all too familiar in the stories of degradation, exploitation, and abuse that continue to characterize the experiences of many marginalized workers.
Also familiar is the courageous activism of domestic workers who continue to organize and to forge uneasy but sometimes powerful alliances with employers and with feminist organizations. As Nadasen suggests, the organizing model pioneered by African American domestic workers in the 1960s and 1970s informed the larger labor movement in subsequent decades. And, increasingly, domestic workers’ organizations have begun to win significant victories—promoting a Domestic Workers’ Bill of Rights, promulgating model employment contracts, passing legislation to protect household employees at the state and local level, and encouraging the prosecution of some of the most egregious abuses.
The most striking shift, already underway in the 1970s, is the emergence of the transnational market that now characterizes domestic work and the predominance of immigrants among household employees, especially in major population centers. Now the lawlessness that enabled exploitation with impunity stems in part from exemptions from legal protections and in part from the precarious immigration status of many domestic workers. Today, undocumented workers and noncitizens suffer from a vulnerability which exacerbates preexisting power imbalances and renders the isolation of domestic employment all the more dangerous and terrifying.
Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.
Yet Klarman manages to give us a story that demands reading despite its familiarity. There are three reasons why The Framers’ Coup succeeds despite covering a subject that doesn’t lack for historical attention. First, the narrative he relates is both exhaustive and sparkling. It is encyclopedic without being an encyclopedia. The story moves along briskly because Klarman’s prose is simple and propulsive. Yet any fact that a reader would like to know about the framing and ratification of the Constitution is in here. We get the comforting reassurance of hearing well-told versions of stories we already know, such as the famous large state-small state compromise over representation in Congress. But Klarman also highlights the importance of issues that have slipped out of the traditional narrative. Only an expert in eighteenth-century political history would know of the profound effect that John Jay’s failed yearlong negotiations with the Spanish over navigation rights on the Mississippi had on the deliberations at the Philadelphia and subsequent ratifying conventions. (Klarman convincingly argues that Jay’s attempt to bargain away these rights in exchange for a favorable commercial treaty with Spain did more to engender southern fears about a powerful, northern-dominated federal government than any other issue, slavery included.)
The narrative is also replete with lesser-known tales of political skullduggery: the Pennsylvania legislature’s decision not to pay the state’s delegates to the convention, thereby decreasing the likelihood that less elite delegates would attend; and Patrick Henry’s ultimately unsuccessful attempt to gerrymander James Madison out of the first Congress. The existence of these and many other examples of “bare knuckled” political tactics (P. 612) are central, as we shall see, to Klarman’s analytic framework for his story, but they also make for excellent reading.
The second thing that makes The Framers’ Coup such a pleasure to read is Klarman’s decision to emphasize the contingency of his narrative. This is most noticeable in his chapter on the ratifying conventions. Klarman shows that many of these contests, particularly in the largest states, were decided by slim margins. He makes clear that the entire process could have come out the other way for a variety of reasons, not the least of which was the Antifederalists’ tactical error of holding the New York and Virginia conventions after most of the other states had ratified the Constitution, thereby presenting these crucially important and closely divided conventions with what was essentially a fait accompli.
Other such contingencies abound. What if Washington had refused to attend the Constitutional Convention, thereby denying it his unquestioned legitimacy? (Klarman demonstrates that it took some real arm-twisting to get the General to go.) On the other hand, what if Patrick Henry had decided to go, thereby adding to the deliberations a politically savvy and exceptionally gifted orator who was opposed to the centralizing preferences of most delegates? (Klarman reports that the historical record is unclear as to why Henry refused to attend the convention despite the fact that the Virginia legislature appointed him.)
As for the actual substance of the Constitution, the complexity of the document, combined with time constraints and a focus on certain controversial subjects (particularly the nature of each state’s representation in Congress), meant that many parts of the proposed Constitution were sent to the ratifying conventions without much thought or debate. Thus, Klarman demonstrates that some of its most important provisions, such as how the president was selected, “seemed” to be the product of “an almost random solution.” (P. 599.) By highlighting all these contingencies – would more Antifederalist delegates have gone if there hadn’t been an outbreak of smallpox in Philadelphia that summer? – Klarman creates a narrative with many of the characteristics of an action movie. We know that our “hero” (the Constitution) will triumph in the end, but we are thrilled by each of the multitude of close escapes it makes.
Finally, The Framers’ Coup is an engaging read because of Klarman’s forthright and, I imagine, controversial interpretation of the events he recounts. It’s all there in his title. Klarman views the framing and ratification of the Constitution as a coup d’état. It was a political outcome, he repeatedly argues, that did not reflect the desires of the majority of Americans. Most people may have been frustrated with the Articles of Confederation, but the creation of a completely new governing document that dramatically increased the power of the federal government was not the solution most would have wanted. Instead, that outcome reflected the desires of the emergent national elites who were appalled by the redistributive, leveling actions of many state legislatures in the 1780s. It was adopted, not because of its popularity, but because of the political savvy of the Federalists, their willingness to use underhanded tactics, their domination of the national press, the gross malapportionment of many of the ratifying conventions, the tactical ineptitude of the Antifederalists, and, quite frankly, a dose of good luck.
This brief description of Klarman’s analytic framework risks portraying The Framer’s Coup as nothing more than recycled Charles Beard: a reassertion that the Constitution was a document proposed by mercantile elites to protect their depreciating securities. Yet, Klarman is much more subtle than this. First of all, his focus on the contingency would have no place in Beard’s reductionist account. Second, he catalogues a whole host of interests – political, economic, religious – that determined why any individual would support or oppose the proposed Constitution. Unlike Beard, Klarman’s primary point is not that the framing of the Constitution was designed to further the economic interests of a particular group of people. Instead, Klarman wishes to emphasize that the framing was a political act that was supported by people for a host of reasons. The main thing he impresses on his readers is not that some particular class benefited from the Constitution’s adoption, but that all the actors in the drama of framing and ratification were engaged in a political struggle rather than a philosophical one.
Thus, Klarman’s story of the framing is not one of brilliant political philosophers collaborating on a document to preserve their republican revolution. Instead, it is one of “ordinary politics” (p. 8) in which each side attempted to create a federal government that would further its mundane political interests. While the debates at the Constitutional Convention frequently became philosophical, Klarman suggests that these arguments changed no one’s mind. They were simply rationalizations for particularized interests. In Klarman’s decidedly unromantic view of the Framers’ political thought, ideas such as popular sovereignty or Federalist No. 10’s famous theory of factions were simply stalking horses for increasing the power of the federal government in order to prevent state-level public policies that the elites disliked. There is no doubt, Klarman tells us, that James Madison was a genius, but that genius was as much political as philosophical. Our graduate school debates about “liberalism versus republicanism,” or the importance of “civic virtue” are gone from the narrative of the framing. Instead, we are left with a story of politics and power.
It seems likely that The Framers’ Coup will engender a strong reaction. Slaying sacred cows can be a dangerous business. Klarman seeks to replace the often reflexive adulation that the Framers engender in our popular culture with a more realistic portrayal of their motives. He also takes aim at an academic literature that has often emphasized intellectual history and political thought at the expense of politics. Wherever one stands in these debates, however, it is impossible to imagine that The Framers’ Coup will not become an essential text for understanding the intent of the Framers and the history of the Constitution.
Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by present-day legal scholars.
Herman Melville famously wrote in Moby-Dick that whalemen settled their disputes using “hard words and harder knocks – the Coke-Upon-Littleton of the fist” (Moby-Dick, Chapter 89). As Deal shows, however, little violence actually sprung up when the crews of two (or more) ships pursued a whale but only one took it.
Deal’s explanation is that captains had incentives to engage in negotiations in a gentlemanly manner. Ownership of a whale (or shares in its blubber, sperm, or bone) was a question for the captains to negotiate and, if they could not agree, the owners of the ships could decide to pursue arbitration or, in extremely rare cases, litigation. Litigation was unpopular because it was slow and expensive. These usual problems were exacerbated in an industry where witnesses would quickly be unavailable and onto their next voyage, Deal explains. Captains spoke often about personal ethics and “laws of honor.” Good relations between captains were imperative to survival on whaling voyages because one captain might well need to turn to another for assistance if his ship ran into trouble in ice or the high winds and waves of storms at sea.
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163.) Hence, Coke-Upon-Littleton, i.e. legal rules, were only a very small part of what was in operation.
It is certainly true that lawyers and judges tried to generate firm rules from the handful of whaling cases that did appear before them. However, when they did so, they were not apt to follow custom or care very much about what whalemen actually did. And so when they issued rules like “fast-fish, loose-fish” (the whale was yours as long and for only as long as you remained attached to it), as the British courts did in whaling cases coming from the Greenland fishery, they deliberately ignored the rival custom that was certainly alive in that industry of “iron-holds-the-whale” (the whale went to the first ship to affix an iron with its mark on it regardless of whether it remained attached). Or they did worse, misunderstanding or misapplying custom, as American courts did dealing with disputes that arose in the Sea of Okhotsk (as in the Massachusetts United States District Court cases Swift v. Gifford (1872) and Taber v. Jenny (1856), as Deal explains).
Deal’s principal argument in the book is that whalemen “largely ignored judicial pronouncements as to the customs of whaling and continued to operate in ways that made sense to them in their relentless quest to kill whales.” (P. 2.) And “Anglo-American courts failed to understand how whalemen settled disputes [because] lawyers and judges were never all that interested in or concerned about whaling practices.” (Id.) Hence, there was a fundamental disconnect between the two worlds, impossible to see in the few litigated cases, which give the impression that whalemen operated according to settled customs that the judges turned into (or refused to turn into) rules. However, the reality was much more complicated. The customs were much less settled, the judges did not seem to understand them or preferred to ignore them, and the rules the judges made were probably of little consequence to the whalemen.
What happened to whales under the pressure of this relentlessly extractive industry is a tragedy, although Deal argues it was not technically a “tragedy of the commons.” Why? Because it is unclear, at least before 1850, that it was understood to be possible to hunt whales to extinction. Hence, whalers were not taking from the commons knowing that it was hurting the collective resource but doing so anyway in order to further their own economic short-term interest. They could not then have been knowingly engaged in a race to the bottom, Deal argues, because the ocean was (conveniently) thought to be boundless, its bounties limitless, the whale mythical and hence indestructible. When it became increasingly difficult to find whales, they were thought to be retreating further and further away, (romantically) hiding like the great White Whale from Ahab, rather than disappearing. This might seem laughable and implausible to us sitting now where we do with our current ecological consciousness.
Deal explains at the end of the book how petroleum developed as an alternate fuel for lighting and machine oil lubrication, a move that, fortunately for them, saved the whales. This is an arresting historical irony given our current crisis and the very well-grounded fears we have about who or what technological innovation will save us from our relentlessly extractive pursuit of oil and gas given the turn towards tremendously environmentally destructive processes such as fracking.
This book is an excellent read. Given its exploration of the great gulf between law-on-the-ground and law-in-the-courts, it has the potential to become a classic law and society study. It is particularly useful for legal historians interested in the way that history complicates our understanding of economic self-interest. The whalemen were primarily motivated by economic self-interest, there is no question. Yet the tight-knit nature of their group and their hazardous physical surroundings made ethical conduct (at least towards one another if not the whales) essential. That conduct required a certain kind of flexibility that we fail to understand if we continue to insist, as judges and lawyers of the day did, on reducing the norms they followed to a legal rule or custom.
This was a point that Herman Melville probably well appreciated when he surely intentionally mashed together the law of “fast-fish, loose-fish” and the custom of “iron-holds-the-whale” in his famous Chapter 89 in Moby-Dick. He might well have been trying to make the point that Deal demonstrates through his historical research – namely, that this was not an industry governed by pure law or custom; it was both of these plus more, a mishmash of different norms and priorities. The ways that all of these forces interrelated were loosely grasped even by participants themselves. Hence, the order that famously prevailed in the industry (emphasized in Ellickson’s Order Without Law) was neither a consequence of law, Melville’s Coke-Upon-Littleton, nor a product of well-settled understandings. It was more fluid and complicated than either of these.
Cite as: Angela Fernandez, “Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications
(May 1, 2017) (reviewing Robert Deal, The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880
Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents
, 34 Law & Hist. Rev.
487 (2016), available at SSRN
Marie-Amélie George’s meticulously researched, provocative study of early gay-and-lesbian custody cases focuses on the power of social science research to reshape both the law and the larger society. George takes us inside the courtroom fights, landmark parenting studies, and conservative strategies that have defined debates about the meaning and origins of homosexuality. Using published opinions, rare trial records, oral histories, personal correspondence, and social-movement records, The Custody Crucible describes how social-science arguments made the difference to gay and lesbian parents seeking to prove that their sexual orientation in no way harmed their children.
But the relationship between scientific research and litigation that George excavates is complex. She convincingly argues that courtroom battles sparked new research about the impact of gay or lesbian parenting on the sexual orientation and gender identity of children. As importantly, the progress made by gay and lesbian parents helped set the agenda of conservative organizations intent on demonstrating that homosexual parents were often sexually abusive, impoverished, and unable to stop their children from becoming deviant. Nuanced and thoughtful, The Custody Crucible contributes to a rich literature on the relationship between cause-lawyering and social change. However, George breaks out of the framework often governing these studies, looking beyond the overall benefit a movement can expect from winning or losing in court. The Custody Crucible illuminates how litigation can help frame scientific questions that resonate well beyond the courtroom.
George begins with a comprehensive survey of available gay-and-lesbian custody cases decided between the 1970s and 1990s. Her research challenges the narrative of growing tolerance of homosexuality often told in histories of sexual orientation. Indeed, she suggests that regional and ideological differences among states played a definitive role for more than a decade. While acknowledging the limits of the remaining evidence, George compellingly argues that courts became more receptive to the demands of gay and lesbian parents only in certain places and only in response to an emerging body of scientific research on child development.
As George argues, the social-science research that would transform attitudes toward homosexuality developed partly in response to a shift in custody doctrine in state courts. Gradually abandoning the assumption that gay or lesbian parents were necessarily unfit, many jurisdictions in the 1970s began moving toward the so-called nexus approach, asking whether a child suffered any harm as a result of her parents’ sexual orientation. While interpretations of the new requirement varied widely, it opened the door to different scientific strategies. In particular, throughout the period George studies, courts remained preoccupied with the idea that children raised in a gay-friendly environment would become gay, lesbian, or transgender themselves. Under pressure because of this new approach, gay-rights organizations developed a roster of expert witnesses willing to testify that the children of gay and lesbian parents were no more likely to become homosexual than anyone else.
The nexus test also inspired scientific researchers convinced that they could put an end to the uncertainty surrounding gay-and-lesbian parenting. Legal issues—the best interests of the child and the prospect of harm to children—shaped the questions researchers asked and the length and timing of their studies. Scholars consistently maintained that having gay and lesbian parents made no difference to their children’s sexual development. As this body of work grew, many parents saw their chances in court improve substantially, particularly on the East and West Coasts.
However hopeful George’s story appears at first, the flourishing of social-science research on sexual orientation was not without its dark side. To begin with, some courts ignored the emerging work on sexual orientation, seeing custody as a matter of morals rather than social science. Even when courts legitimized pro-gay parenting studies, case law and research inadvertently reinforced the conclusion that homosexuality was the kind of harm that should be avoided at all costs.
Nor, as George shows, did the receptiveness of some courts cut short scientific battles about homosexuality and child-rearing. She recaptures the tactics of conservative researchers, legal academics, and lawyers who recommitted to preserving the status quo challenged by gay and lesbian parents. At first, conservatives worked primarily outside the courts, never fully immersing themselves in the custody cases that continued to unfold across the country. It was not until the 1990s that conservative groups meaningfully intervened in litigation, participating in co-parent cases that conservatives feared would undermine the traditional definition of the family. Nevertheless, George reveals the influence of anti-gay researchers like George Rekers, Paul Cameron, and Joseph Nicolosi on subsequent battles about the treatment of AIDS victims and the justification for discrimination against gays and lesbians across legal domains.
The Custody Crucible makes an important contribution to a growing tradition of legal and historical studies that focus not only on social movements’ reliance on law but also on the intersection between legal outcomes and scientific research. George’s piece sheds light on these issues at a time when they are becoming more politically and legally urgent. Scientific questions about the impact of global warming define national elections and legal disputes. In the aftermath of the Supreme Court’s last major abortion decision, research on everything from fetal pain to the risks of later abortions is becoming more common, well-funded, and legally crucial. The history that George preserves reminds us how much litigation may revolutionize these scientific debates and tells us that what is at stake may be neither as predictable nor as promising as we now believe.
Cite as: Mary Ziegler, The Science of Sexuality
(March 31, 2017) (reviewing Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents
, 34 Law & Hist. Rev.
487 (2016), available at SSRN), https://legalhist.jotwell.com/the-science-of-sexuality/