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Jim Crow’s Unwritten Code

In The Jim Crow Routine, historian Stephen Berrey brings fresh eyes to the intricate set of legal rules that maintained racial segregation in the American South. Building on works like Leon Litwack’s Trouble in Mind: Black Southerners in the Age of Jim Crow and Neil R. McMillen’s Dark Journey: Black Mississippians in the Age of Jim Crow, Berrey focuses not on the rise or demise of Jim Crow so much as the manner in which it disciplined daily life. For average folks, argues Berrey, Jim Crow turned the South into a stage where whites and blacks learned to negotiate one another’s presence on the street, in stores, at the post office, and at work – according to elaborate, albeit unwritten, scripts.

Taking Mississippi as a point of focus, Berrey demonstrates that Jim Crow involved a complex set of scripted “exchange[s]” between whites and blacks that were at once “subtle and dynamic, intimate and volatile,” exchanges that in a sense formed a customary law of interaction independent of legislatures and courts. (P. 4.) Closely linked to this were strategies of resistance that African Americans developed to avoid white recriminations, as well as strategies that whites developed to enhance, or modernize, the legal challenges of racial control. Such modernizations exploded dramatically following the Supreme Court’s decision in Brown v. Board of Education in 1954, as southern states moved quickly to erase overt racial classifications from their law, meanwhile imposing new, more subtle forms of surveillance rooted in the rubrics of maintaining the peace, protecting property, and preventing crime.

At least one startling observation emerges from Berrey’s study. First, as much as southern law worked to achieve racial separation, whites and blacks in the Deep South interacted and existed in a near constant state of racial togetherness, working, playing, shopping, fishing, and even eating in close proximity to one another, often to the point that racial segregation was adhered to only in the flimsiest, most ad hoc fashion. For example, Berrey presents us with stories of whites and blacks attending the same functions divided only by a row of stools (P. 19), attending the same theaters separated only by a rope (P. 25), eating together in fishing boats separated only by a casually placed stick (P. 24), and sitting in the same rows in courthouses with only one extra space between them (P. 27). Such divisions, which hardly kept the races apart, were further compromised by outright concessions that allowed for black servants to join their employers on train cars and trolleys and even live in their homes.

As Berrey puts it, “even within a segregated system, African Americans and whites regularly interacted in public spaces such as bars and on buses and in the private spaces of the home.” (P. 22.) Precisely because such interactions were ubiquitous, argues Berrey, Jim Crow frequently manifested itself less as a legal system of physical separation than an implicit script of social performance, a customary law that required blacks not to avoid contact with whites, which was impossible, but rather to pay them deference. To take just a few examples, blacks were expected to remove their hats when meeting whites in the street, to make way for whites in line at the post office, and to refrain from calling whites by their first names. (P. 31.)

This is important. In his recent book Bind Us Apart: How Enlightened Americans Invented Racial Segregation, Nicholas Guyatt argues that the origins of Jim Crow lay in antebellum debates about colonization, i.e., the idea that African Americans should be transported back to Africa upon emancipation, lest the races engage in “amalgamation.” Berrey suggests the opposite, namely that segregation had less to do with separating the races than keeping them together, a point that calls to mind the distinction between segregation and exclusion first articulated by historian Howard Rabinowitz. Rabinowitz maintained that colonization was a form of exclusion that needed to be distinguished from segregation, which actually allowed significant amounts of interracial contact.

Berrey takes Rabinowitz’s thesis in new directions, suggesting that segregation was really more about performances of deference than separation, and that the laws of Jim Crow were themselves designed to remind blacks not of their isolation from whites, but rather their subordination to them. Berrey locates the origins of segregation not in calls to exclude blacks from southern society, but rather in efforts to counter black demands for equality following the Civil War. Citing historian Leon Litwack, Berrey notes that post-bellum white southerners became concerned that emancipated blacks were “less-deferential” than their enslaved ancestors, even to the point of becoming “aggressive” about their right to be considered “social equals.” (P. 21.)

Closely related to this was a fear that newly emancipated blacks might try to blur racial boundaries, either by engaging in intimate relations with whites or passing (a practice by which light-skinned African Americans held themselves out as white). (P. 21.) Here, Berrey provides us with an alternate hypothesis to explain how southerners dealt with questions of amalgamation, or interracial sex. While Guyatt argues that the favored solution was colonization, Berrey suggests that it was segregation, a system that barred interracial liaisons and maintained racial “difference” precisely because it demanded racial deference. (P. 21.)

The second half of The Jim Crow Routine focuses on the transition from Jim Crow to what came after, the legal system that we currently have in place today. According to Berrey, pressure from black activists, the federal government, and the national media intensified so much during the civil rights era that white southerners abandoned the formal law of segregation and the elaborate unwritten scripts that went along with it, moving instead toward more subtle forms of control, most revolving around prisons and police. In a revealing passage, for example, Berrey provides evidence that the Mississippi Sovereignty Commission deliberately and surreptitiously tracked civil rights activists in the state, often harrying them with arrests for minor quality-of-life offenses, traffic violations, and so on – not violations of Jim Crow law.

This is a significant find, foreshadowing a move to the very type of colorblindness that Michelle Alexander has argued characterizes the “New Jim Crow,” a system of racial repression that relies on the biased enforcement of ostensibly neutral criminal laws. And, while Alexander argues that the New Jim Crow began during the War on Drugs in the 1980s, Berrey provides evidence that it actually emerged earlier, in the 1960s.

However, Berrey misses an opportunity to take his rich understanding of Jim Crow and bring it to bear on Alexander’s argument about legacies. For example, Berrey’s attention to codes of social performance forged in the Jim Crow South provides new perspective on how those codes may have evolved during the 1950s and 60s, and travelled to the urban North. According to conservative social theorist Thomas Sowell, for example, southern blacks learned violent codes of honor from southern whites, and took those codes with them as they migrated out of the South during and after World War II. These codes, which sociologist Elijah Anderson has termed “codes of the street” were arguably descendants of the Jim Crow routine, unwritten rules that demanded a certain deference, or respect, that, if not met, invited violence. According to criminologist Barry Latzer, such codes of violence, forged in the American South, help explain spikes in urban violence following southern migrations to the urban North in the 1960s, and continue to plague urban communities even today, a point Latzer raises in his new book, The Rise and Fall of Violent Crime in America.

Berrey’s take on Latzer, Anderson, and Sowell would be of interest, not least because their discussions of unwritten codes of honor, forged in the South, seem to dovetail with Berrey’s formulation of the Jim Crow routine, suggesting that the extreme violence that characterized southern white society came gradually to influence southern black society as well. As it stands, however, The Jim Crow Routine remains important for what it tells us about the intersection of customary law and legal codes in the post-bellum, pre-Brown South. If Berrey is right, then the written law of Jim Crow may not have been as important as previously thought, an elaborate artifice, to be sure, but not as critical to the ordering of southern life as unwritten norms, or what Berrey terms the “Jim Crow routine.”

Cite as: Anders Walker, Jim Crow’s Unwritten Code, JOTWELL (January 16, 2017) (reviewing Stephen A. Berrey, The Jim Crow Routine: Everyday Performances of Race, Civil Rights, and Segregation in Mississippi (2015)), https://legalhist.jotwell.com/jim-crows-unwritten-code/.

Engendering the History of Legal Aid

The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.

Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910. Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government.

Male attorneys began to assert control over the provision of legal services to the poor with the first national conference on legal aid in 1911. Batlan shows how these attorneys endeavored to professionalize legal aid, narrowing its scope in the process. The types of claims changed. As the male breadwinner became the archetypical client, legal aid services began increasingly to exclude women whose claims regarding spousal abuse or mothers’ custody were perceived to disrupt the family. In addition, the nature of the lawyer-client relationship changed. Female lay lawyers had approached the lawyer-client relationship holistically, offering sympathy and a range of social and financial supports along with legal guidance. Male legal aid attorneys eschewed emotion in favor of objectivity and restricted their practice to technical legal services. The masculinization and professionalization of legal aid accelerated through the 1920s, until federal funding opportunities during the Depression encouraged legal aid organizations to once again conceptualize themselves as a form of social service. A period of enhanced cooperation between lawyers and social workers continued through World War II—a trend that also empowered women clients. In the late 1950s and through the 1960s, however, legal aid attorneys again began to distance themselves from social workers. The retirement of leading female aid attorneys coincided with several trends: an increasing emphasis on prestigious educational credentials as criteria for a new crop of legal aid attorneys, the formalization of organizational structures, and a turn toward aggressive, rights-oriented litigation.

Gender inflected the practice of both male and female legal aid lawyers, influencing their view of their clients and their framing of clients’ claims. In a particularly fascinating chapter, Batlan examines how the attorneys of the New York Legal Aid Society, steeped in a masculine legal culture focused on rights and constitutionalism, used gender as a measuring stick to evaluate their clients. They perceived Jewish men as excessively feminine and, therefore, undeserving; sailors, by contrast, were hyper-masculine and, consequently, deserving of rights. Female domestic servants, meanwhile, lacked rights precisely because they toiled in a physical and social space constructed as feminine and harmonious. Batlan’s examination of domestic workers provides further evidence that coverture persisted far beyond the passage of the Married Women’s Property Acts in the 1840s and 1850s. Legal aid lawyers did not view female workers as fully independent contractual actors and, as a consequence, were reluctant to impose obligations on employers to pay quantum meruit to domestic workers who quit early. Even when women legal aid lawyers brought wage claims on behalf of domestic workers, they represented employers’ failure to pay as fraud rather than breach of contract. Batlan’s deft analysis shows how gender ideologies had real effects on social experience.

A second, only slightly less explicit theme explores the place of legal aid in the legal history of capitalism. Ever since Morton Horwitz’s Transformation of American Law in 1977, we have understood the importance of class and capitalism to changes in legal doctrine. Batlan shows us that emerging legal histories of capitalism should include the history of lawyering itself. The development of legal aid, she argues, was inextricably linked with efforts to discipline immigrants to capitalism’s norms. Early women lay lawyers believed that the noble and right thing was to provide legal services free of charge. Charging a fee to poor clients who could not afford it would only exacerbate their dependence. Professional legal aid lawyers subsequently inverted the reasoning of earlier women’s groups, associating charitable legal services with dependency. Instead they argued that fees for service would promote the kind of independence necessary for democratic citizenship.

Women and Justice for the Poor opens up avenues for further research on gender and legal history of capitalism. In particular, it illustrates how maternalist reform has served as a check on capitalist rationality. Women lay lawyers, influenced by maternalist ideologies, embraced a holistic and empathic approach to the lawyer-client relationship. They pursued dignitary as well as monetary remedies and viewed no claim as too small to merit litigation. As legal services professionalized, male attorneys grew more preoccupied with the efficiency of their services and dismissive of clients viewed as bad bets. Maternalism, however, functions as a double-edged sword in Batlan’s narrative, as it does in much of women’s legal history. At moments, Batlan suggests that cross-class alliances existed between elite women lay lawyers and their working-class clients. That conclusion may be justified. Yet source limitations meant that Batlan was able to give a fuller portrait of elite actors in her story, though she does an admirable job of gleaning the archives for insight into non-elite perspectives. Moreover, as Batlan observes, the idealization of the home obscured the exploitation and negated the rights of domestic workers. Ultimately, Batlan argues persuasively that substantive justice concerns not only material outcomes of litigation but also the nature of the lawyer-client relationship. This is an important point for law students as well as historians, providing another reason—if you need more—to consider assigning excerpts of this book in a seminar.

Engendering the history of legal aid raises a host of historical and normative questions. How and why did the provision of legal services become separated from a range of social support services? Should the lawyer-client relationship remain isolated from social work? To what extent should the legal profession retain a monopoly on legal services? Historians and legal scholars interested in answering these questions should move Women and Justice for the Poor to the top of their reading lists.

Cite as: Deborah Dinner, Engendering the History of Legal Aid, JOTWELL (January 4, 2017) (reviewing Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)), https://legalhist.jotwell.com/engendering-the-history-of-legal-aid/.

Worth More Than a Thousand Words

Sherally Munshi, “You Will See My Family Became So American”: Toward a Minor Comparativism, 63 Am. J. Comp. L. 655 (2015), available at SSRN.

Sherally Munshi has written a thoughtful and moving article about the relationship among race, citizenship, immigration, and the visual imagery of assimilation and difference. In “You Will See My Family Became So American,” she tells the story of Dinshah Ghadiali, a Parsi Zoroastrian born and raised in India who immigrated to the United States in 1911, became a U.S. citizen in 1917, and prevailed over the federal government’s effort to strip him of that citizenship in 1932. Along with Ghadiali himself—proud American, soldier, erstwhile inventor, political activist, and all in all memorable character with a larger-than-life personality—the protagonists in the story are a striking series of photographs Ghadiali submitted into evidence in his denaturalization trial. Munshi’s bold and ranging exploration of a variety of themes in the legal history of race, citizenship, and immigration culminates in a close reading of these photographs, in which she shows how the images reveal the tension between the “effortful displays of Americanization… and unwitting disclosures of racial identity.” (P. 693.)

Munshi frames her discussion with a central doctrinal precedent and a proposed theoretical framework. The precedent is the Supreme Court’s decision in Thind v. United States, which in 1923 held that Bhaghat Singh Thind, “a high caste Hindu, of full Indian blood, born [in] India” was not “a white person” under the naturalization laws. Along with the previous year’s Ozawa v. United States (1922), which had held the same with respect to a Japanese man, Takao Ozawa (though with different reasoning—more on that below), the decision in Thind gave rise to efforts to denaturalize some who had become citizens before the decisions but were deemed ineligible afterwards, and formed the basis for Ghadiali’s (unsuccessful) denaturalization trial.

The theoretical framework is the “minor comparativism” of the article’s subtitle. Munshi briefly outlines what she takes to be the salient strengths and weaknesses of comparative law scholarship, and brings these insights to bear in proposing a version of a comparative approach to the study of history within, rather than across, national boundaries. The strength she has in mind is the “self-reflexive” orientation of comparative law scholarship, which “inclines the scholar outward, beyond her immediate world and towards the worlds of others with the anticipation that, through her study of another society, she might begin to question her own.” (P. 664.) The weaknesses are comparative law’s tendency, in spite of itself, to entrench statism; its focus on formal law; and its failure to treat the migrant as central, rather than peripheral, to the formation of the modern state. Munshi’s minor comparativism, in contrast, “adopt[s] the perspective of those who remain foreign within one’s own country,” and in this way brings a comparativist sensibility to the study of domestic history, which in turn “decenters the state,” replaces formalism with attention to “the unreported, unwritten, and often inchoate character of the law and its effects,” and places the migrant at the center of narratives of state formation. (Pp. 664-66.) While these are not novel approaches to the study of legal history, the idea that one should pursue “comparativism” within rather than across national boundaries is intriguing and refreshing, and contributes to a heightened awareness of what constitutes the “American” in “American legal history.”

At the center of the story are the images submitted by Ghadiali at his denaturalization trial and analyzed in detail by Munshi. Were we to base our historical understanding principally on sources like the Court’s decisions in Ozawa and Thind, we might conclude that what Ghadiali tried to do, and did successfully, was convince the judge in his trial that he was “white.” But what are the chances? More apt and illuminating is what Munshi suggests: “Perhaps having failed to convince the judge of his essential whiteness, Ghadiali sought to persuade him that, even if he did not look white, he did look American.” (P. 660.)

The series begins with a photograph of Ghadiali on a police report, of all things: he submitted it because in the relevant section, the report labeled him “White.” The next one shows his family: himself, his (also Indian) wife, and his two children, all wearing coats and hats (the wife, a scarf). The third shows him and his two children—no wife (she’d returned to India). The fourth shows him as a commander in the New York Police Reserve Air Service, alongside a few dozen men also in uniform (though not all commanders). The fifth shows his five children from his second marriage, all wearing the same outfits and little white hats and sitting on bicycles—no wife (though this time, he had one—a second wife—now German, and white, and a citizen herself), and no Ghadiali either.

I’m not going to summarize what Munshi says about all of these, but I will quote Ghadiali’s plea to the judge: “He explained that he was deserted by his first wife ‘because I would become a Citizen. Now America throws me out and my second wife will desert me because I did not become a Citizen. The government puts me in a funny position.’” (P. 714.) Ghadiali did prevail and remain a citizen. Those photographs surely helped, though the judge ended up deciding the case on res judicata grounds, treating Ghadiali’s 1917 admission into citizenship as having settled the matter.

Ghadiali’s story serves as both anchor and springboard for the larger legal history of race, citizenship, and immigration Munshi offers in this piece. With each episode, she engages provocatively with relevant secondary literatures. Discussing Ozawa and Thind, she invokes Ian Haney Lopez on the legal construction of racial categories, and goes on to offer her own take, explaining what she finds most remarkable about the shift in the Court’s reasoning. In Ozawa, the Court seemed to rely principally on what was then the state-of-the-art science of race to conclude that a Japanese person was not “Caucasian” within the meaning of the naturalization statutes. But in Thind, it had to answer the argument that, as an Indian, Thind belonged squarely in the category of “Caucasians.” The Court couldn’t disagree, so it shifted emphasis and focused on common (read: white people’s) understandings of race instead of scientific ones, relying on those to reject Thind’s claim to citizenship as well. Munshi does not disagree—how could one?—that the two cases together are an especially blatant example of the law’s construction of race, but she turns our attention to what she finds even more intriguing about the Court’s reasoning in Thind: Justice Sutherland’s reliance on what he perceived as “instincts” about race. Munshi quotes Sutherland, explaining that “‘Hindus’ ‘racial difference’ was ‘of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.’” (P. 674.) This is not as much about common knowledge, Munshi observes, as it is about common “sense”—about something “visceral.” (Pp. 674-75.) “Here, the power to designate racial qualification for citizenship is withdrawn not only from the language of race experts but from language altogether.” (P. 674, emphasis added.) By force of the Court’s ruling in Thind, she adds—pushing herself and her reader just a little harder (as she does throughout)—the phrase “free white persons” itself “gains a flesh and corporeality” by virtue of the Court’s investing in “white persons” the power to interpret the phrase “white persons.” (P. 675.)

Munshi turns back to look at Plessy v. Ferguson (1896) and the “colorblind” Constitution, a discussion that yields among its insights the observation that “[c]olorblindness imposes a visual management of difference on the part of the observed, who is burdened with proving, over and over, that her difference does not disqualify her from equal membership.” (P. 679.) A discussion of Elk v. Wilkins (1884), which rejected the claim to citizenship of a Native American who had left his tribe and tried to register to vote, takes issue with the received understanding that the United States has always conferred jus soli citizenship, concluding from this and other histories of exclusion that “[i]n the United States, for much of the nineteenth century, a right of blood masqueraded as a right of soil.” (P. 687.) Also in this discussion, she proposes that for Native Americans, Congress devised a “contractual model of citizenship,” conditioned on “the destruction of tribal identity” (Id.)—a model that, revised, comes to play a role in Ghadiali’s trial. Elsewhere, she discusses a photograph of Thind in an army uniform. This photograph, she notes, is often printed without explicit analysis, “as if the image speaks for itself.” (P. 679.) Munshi then offers her own analysis, discussing “the apparent tension between racial or ethnic particularity, on the one hand, and the project of national unity, on the other.” (P. 680.) In other words, what “we” all know when we look at it is that Thind’s turban and beard signal his “difference” while his uniform signals his assimilation, and what Munshi argues is that this tension is crucial to what we imagine as an inclusive multiculturalism: “Thind can only project racial inclusiveness by first appearing to us as raced.” (P. 681.)

Along with all of the above—a compelling story, a memorable historical figure, rich primary sources, a fascinating series of legal developments, a useful theoretical framing—Munshi writes with sensitivity and empathy, such as when she observes that an account published by Ghadiali recounting his own denaturalization trial “expresses an anguish and alienation that was widely experienced by minorities in the United States but barely understood by the larger national community.” (P. 669.) The nature of law, the instability of boundaries, the relationship among persons, place, and the state—all of this, yes, and also, the things that make us want to cry: Munshi wants us to think hard about it all.

Cite as: Christina Duffy Ponsa, Worth More Than a Thousand Words, JOTWELL (November 22, 2016) (reviewing Sherally Munshi, “You Will See My Family Became So American”: Toward a Minor Comparativism, 63 Am. J. Comp. L. 655 (2015), available at SSRN), https://legalhist.jotwell.com/worth-more-than-a-thousand-words/.

Minding American Law

Every law student worth her salt has read, or at least heard of, Oliver Wendell Holmes and The Common Law.1 His formulation of the reasonable man (or, as we call it now, reasonable person) standard structures the foundation of the law school curriculum. Susanna Blumenthal’s Law and the Modern Mind sheds light on a curious figure lurking behind that reasonable man – the “default legal person,” a phrase of Blumenthal’s creation. The default legal person standard, the determination whether people were mentally competent and thus legally responsible, “stood at the borderline of legal capacity, identifying those who were properly exempted from the rules of law that were applicable to everyone else.” (P. 12.) This quirky character “effectively delimited the universe of capable individuals who could be made subject to the prescriptive authority of the reasonable man…. [He] was supposed to remain at the margins of the common law, standing for the presumption of sanity that, jurists expected, would be warranted in most cases.” (Id.) On the one side lay rationality and legal responsibility; on the other, madness and legal exoneration. It was up to jurists, with the aid of mental health doctors, to discern the difference between the two, and therein lies the project of Blumenthal’s book.

When scholars have examined the mind and the law, they have largely centered their investigations upon the criminal law and the lurid, sensational insane murderer. Blumenthal turns our attention instead to private law, where mental capacity suits were “a common occurrence.” (P. 10.) While these cases were less bloody than their criminal law counterparts, they nonetheless spilled over the pages of the press, created voluminous records, and tied judges in evidentiary knots.

Surveying an astounding number of private capacity suits, Blumenthal traces the life and times of the default legal person from the late eighteenth century to the beginning of the twentieth century. In an area where legal history scholarship tends to emphasize socioeconomics as the engine of change (P. 16), Blumenthal offers a marked intervention. She looks to religion and science in her exploration of the mind, arguing: “the oft-noted ‘concern for objectivity’ in this period had deeper spiritual roots and higher ideological stakes than previous scholars have recognized” (Id.).

The book begins with early republic lawyers, doctors, and other elites grappling with the repercussions of the potential freedom of the new United States and also a new prevailing philosophy of mind. The self-governing individual of Scottish Common Sense philosophy provided the model for the default legal person in American jurisprudence, with mental capacity determining legal liability. This optimistic ethos replaced Calvinism, which was ordered by divine intention of human behavior and innate human corruption. At the same time, doctors within the emerging field of medical jurisprudence pushed an increasingly capacious idea of mental disorder. These twin developments – that mental capacity is foundational to legal liability and that insanity encompassed a wide variety of behavior – spurred the legal confusion that subsequently occurred. Litigants and their lawyers took advantage of the voluminous medical jurisprudence to throw into doubt their mental competency, and thus their legal liability.

Part two of the book examines this legal and medical tangle from the vantage point of legal doctrines, from wills to torts. Blumenthal surveys thousands of cases, mostly involving propertied white men, and highlights the dilemmas that jurists faced when trying to create a unified theory of the default legal person. If jurists produced too broad a definition of legal incompetency, then legal responsibility went out the window. At the same time, though, jurists wanted to protect the truly incompetent from legal liability. Could the self-governing man also perform unreasonable actions? Ultimately, jurists had to answer “yes” in order to preserve a robust understanding of legal responsibility. The default legal person remained a hurdle, but a low one to clear.

By the 1870s, it was clear that the tangled jurisprudence of mental competency led to no clear standard of legal liability. The initial receptivity by judges to medical jurisprudence in the courtroom gave way to skepticism over contradictory and capacious treatises and alarm that the growing field of insanity would fundamentally undermine the very notion of legal responsibility. Ultimately, Blumenthal writes, “courts adopted frankly pragmatic models of legal personhood, drawing a distinctly legal definition of sanity and human agency.” (P. 142.) Strikingly, this forced them to conduct highly individualistic and fact-intensive investigations as a way to identify insane litigants. This insight is an important rejoinder to the scholarly consensus that at the end of the nineteenth century the law was moving towards more objective standards and bureaucratic proceedings.

Blumenthal’s insightful and groundbreaking work opens up considerable and exciting ground for further scholarship. It would be interesting to compare her account of the legal and medical jurisprudence on mental competency with more plebeian understandings of mental competency. How did ordinary witnesses in the cases she investigates, for instance, frame their accounts of litigant competency? How did newspaper accounts differ from elite formulations of insanity? Perhaps class is one of the main explanations for the legal/medical confusion. It might have been that when elites surveyed the American landscape, they worried about creating legal methods and describing medical means to contain what they saw as the out-of-control masses. Their accounts were necessarily voluminous as they tried to catalogue all of the different types of alarming behaviors they observed. When it came to a particular case, however, especially when it involved prosperous white men like themselves, jurists were perhaps less likely to deny the litigant his mental and legal freedom.

Blumenthal’s book also offers a great resource for scholars interested in exploring the issue of the mind from the angle of race and gender. For example, several of the cases in the will section of the book concern white men who were charged with insanity for bequeathing property to black women who were their illicit sexual partners. Their purported insanity therefore reflected denial of the social reality that white men had sexual relationships and children with black women, including black enslaved women. Fundamentally, jurists and doctors had to figure out how to delineate within the law a space for the quirky white man, one who made mistakes, surprised people, did silly things – in short, acted like an actual person. This space of mental freedom, however, was for a privileged group. White women and people of color were bracketed out of this mental landscape and classified as mentally incompetent according to treatise literature. Their mental and legal subordination stands in sharp contrast to the default legal person, who ostensibly supplied a common legal standard.

Overall, Blumenthal’s book is crucial reading across numerous fields, such as the history of psychiatry, nineteenth-century legal history, and the history of capitalism. For a book that covers over 100 years of legal and medical developments as well as thousands of cases, Law and the Modern Mind is a strikingly brisk and engaging read. Blumenthal’s default legal person will take its place in the legal lexicon next to the reasonable person.

  1. Oliver Wendell Holmes, The Common Law (1881). []
Cite as: Rabia Belt, Minding American Law, JOTWELL (November 3, 2016) (reviewing Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016)), https://legalhist.jotwell.com/minding-american-law/.

The Crimes of Punishment

Crook County: Racism and Injustice in America’s Largest Criminal Court, by Nicole Gonzalez Van Cleve, is a call to action. “Go,” she writes in her conclusion. “Go to the courts. Bear witness to what attorneys and judges do and bear witness en masse. Don’t let them show you trials, sensationalized murder cases, or heroic acts of litigation. Go as an everyday person, wearing jeans, hoodies, and the like, and take some field notes and some court-watching forms while you are at it.” (P. 189.) And then, she writes, act. Vote based on what you see, serve on juries, take pro bono cases, and “slow down the ceremonial charade.” (P. 190.) Nothing less, she says, will help us turn the islands of racial punishment that comprise the nation’s courtrooms into parts of a just system of law.

As that suggests, Van Cleve has written a stark criticism of the criminal courts at the start of the twenty-first century. Her focus is on Cook County, specifically the felony courts at 26th and California, in Chicago. But the book condemns state criminal courts more generally. Her ethnographic study, based on a thousand hours of interviews and observations conducted by students and court watchers, describes the familiar elements of the modern criminal justice system—plea bargains, inadequate representation—but also highlights recurring moments of racial degradation and racist assumptions at the hands of court personnel, moments that Van Cleve argues distort nearly every interaction in the courts.

The problem of how court actors engage in acts of racialized justice, distorting the promises of due process and other constitutional rights, is the crux of her tale. And in that respect, her work consciously builds on other works that have argued that the “justice” practiced in the criminal courts of the United States is actually punishment. If the idea that the process is the punishment is not unique to Van Cleve, her own contribution is to show, with a degree of detail that is often excruciating and painful, that the punishment provided by legal process is a specifically racial punishment (P. 189).

It is a book that is written in the present, and for the present. Yet her call to action should be answered by legal historians and historians of criminal justice, not just mobilized citizens. Van Cleve’s study directly challenges the conventional, if lazy, wisdom that criminal justice in the twentieth century was marked by the rise of rights and the protections of due process. It also nudges us away from the more complicated, but still incomplete, idea that criminal justice over the past hundred years has seen efforts at reform pushed back by policymakers intent on appearing tough on crime. In Van Cleve’s account, criminal justice is not so much a system as it is a collection of everyday enactments of Jim Crow.

While many aspects of her book invite inquiry into the histories of the wrongs she describes, two in in particular stand out: First, her observation that what was practiced in the courtrooms is “street law,” a system of informal adjudication that prioritizes ad hoc punishment over due process. In other parts of the book, she ties that street law to lawless (and often racist) traditions of popular justice, an argument that echoes observations by others, including Jonathan Simon, Michael Pfeifer, and David Garland, that specific court reforms often snuck popular justice into the courts at the expense of the rule of law. Yet Van Cleve’s discussion goes well beyond theirs, suggesting that the entire criminal justice system has become a space of ad hoc, and explicitly racial, injustice. That is a dramatic claim. It is one that historians of criminal law and criminal justice would do well to pursue in more detail.

Equally notable is her second suggestion that while all court personnel—judges, lawyers, and staff—practice racialized justice, the police drive the process. In her study, police officers openly expressed contempt for judges, and used the threat of their ability to destroy a prosecution’s case—by forgetting to appear at trial or at a crucial hearing—to force prosecutors to overlook police misconduct. I found similar moments in my own recent study of criminal justice in Chicago between 1871 and 1971, which suggest the problem has a longer history than that recorded by Van Cleve’s study. This is, again, a matter of some consequence. As Van Cleve notes, the picture of a court system in thrall of the police, and unable to check police misconduct as a result, explains how Jon Burge and his associates could abuse defendants for so long. It is another problem that deserves greater study by legal historians and other students of criminal justice.

Cite as: Elizabeth Ruth Dale, The Crimes of Punishment, JOTWELL (October 21, 2016) (reviewing Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court (2016)), https://legalhist.jotwell.com/the-crimes-of-punishment/.

Law, Legend, and Forgotten Histories of Survivance

In 2016, legal history is a capacious field – one with a catholic view of what counts as law and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.

Legal Codes and Talking Trees centers on the legal encounters of six Indigenous women in “borderlands” communities, spaces marked by competing territorial claims, overlapping legal jurisdictions, and mixed populations. Three of the cases come from the Sonoran Southwest (encompassing parts of present-day Arizona, California, and Northwest Mexico) and three from the Puget Sound region (including parts of present-day Washington and British Columbia). Jagodinsky selected these two regions because of the different approaches that white settlers took to the Indigenous populations there. But when it came to Indigenous women’s “bodies, progeny, and lands,” she discovered “remarkably similar demands from [American] citizen men and women” (P. 11).

The demands were those of “settler colonialism”: a type of colonization characterized by the colonizers’ “permanent and intimate residence” among the people they planned to exploit and the resources they hoped to extract (P. 4). Consider, for example, the demands made on Lucía Martínez, the focus of Chapter 2: she became the captive of King S. Woolsey, an Arizona territorial senator and renowned Indian-fighter, when he caught her fleeing a previous set of captors (Apache raiders who had targeted Martínez’s Yaqui tribe). Woolsey brought Martínez back to his ranch, where she performed domestic tasks and eventually bore him three children, the first when she was thirteen. Rebecca Lena Graham, profiled in Chapter 5, represents another variation of settler colonialism’s demands. Her parents’ consensual interracial union was a legacy of an era of collaboration between the Duwamish tribe and the American settlers who helped build Seattle in the mid-nineteenth century, before Duwamish and American interests diverged so starkly.

Jagodinsky is not the first, of course, to detail the legal practices that facilitated settler colonialism. What is new here is her detailed documentation of “survivance”1 on the part of the presumed victims of this process. The women in Legal Codes and Talking Trees formulated “a legal culture and practice to challenge their dispossession” (P. 11) – apparent, for example, in Lucía Martínez’s use of a habeas corpus petition to demand custody of her children and in Rebecca Lena Graham’s dogged pursuit of her inheritance in the face of anti-miscegenation laws that disadvantaged her. Another woman whom Jagodinsky profiles triggered a rape prosecution and used her mixed-race status to claim the privilege of testifying (generally unavailable to Native women in her jurisdiction), while a fourth engaged complex federal bureaucratic machinery to attempt to reclaim her family’s land. Others practiced legal avoidance, by locating themselves in spaces where the state’s jurisdiction over their bodies was ambiguous and contestable.

Sometimes these women succeeded in their aims and sometimes not. To Jagodinsky, however, success is not really the point. The contribution of Legal Codes and Talking Trees is critique, in several senses. First, Jagodinsky shows that Indigenous women used the resources available to them to contest and comment upon their own vulnerability. Here, critique is a historical fact, carefully documented and creatively reconstructed. This finding leads to a second critique: of a history of Native legal activism that has privileged battles for political and territorial sovereignty over the claims of corporeal sovereignty that mattered so greatly to women. Jagodinsky demands a Native American legal history in which women figure centrally, not marginally.

Last, Jagodinsky offers a subtle but important critique of the discipline of history itself, in the form of a beautifully written final chapter on her archival journeys. As I read it, this chapter is not only a summary of Jagodinsky’s methodology, but also a reminder that historical research is a combination of craft and politics, and that we should continually reflect on both aspects. Jagodinsky writes about how she chose to approach archivists, contemporary Indian communities, and descendants, and what she did when people were not inclined to cooperate with her. She discusses empathy and compassion as “analytical lenses” that, among others, should inform our readings of primary sources. And she is clear and unapologetic about why she pursued this endeavor in the first place: “The women in this book fought the same forces that promote a disregard for Native women’s political and corporeal sovereignty today,” she writes in the book’s concluding paragraph. Recovering their histories is a way of surfacing “the legacies of inequality that remain embedded in the law” (P. 266).

  1. Jagodinsky uses this term to refer to “the combined acts of survival and resistance in the face of colonial denigration and dispossession” (P. 4). []
Cite as: Karen Tani, Law, Legend, and Forgotten Histories of Survivance, JOTWELL (September 22, 2016) (reviewing Katrina Jagodinsky, Legal Codes and Talking Trees: Indigenous Women’s Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946 (2016)), https://legalhist.jotwell.com/law-legend-and-forgotten-histories-of-survivance/.

The Lost Promise of Title VII

Katherine Turk’s elegantly written, deftly argued study of Title VII’s first half-century spotlights working-class women’s distinctive legal activism, deepening our understanding of the promise and limitations of American antidiscrimination law in an era of increasing income and wealth inequality. Using fine-grained case studies as emblematic of larger themes, Turk takes us deep into ground-level campaigns and controversies in a diverse array of workplaces, organizations, and government agencies, from the New York Times and the National Organization for Women (NOW) to municipal employees’ unions to hospitals and hotels where women and men struggled for better and fairer conditions for all workers. Working women built cross-class and interracial coalitions with labor and feminist organizations to fight for pay equity, comparable worth, higher safety standards and workplace protections, paid family and medical leave, occupational mobility, and accommodation of family responsibilities.

Equality on Trial documents how the expansive visions of workplace justice that animated workers and their advocates collided with formidable obstacles: class divisions among women, gender divides among workers, declines in union density and power, conservative counter-mobilizations against civil rights enforcement, and a neoliberal politics that elevated individual opportunity over structural reform. The result is a class-stratified world of gender and work, in which privileged women enjoy the limited benefits of formal equal treatment while their working-class counterparts languish in low-wage, contingent jobs where sex equality means the right to be treated as poorly as men. Elite women gained access to white-collar male-dominated occupations, but failed to unsettle the expectation that the ideal worker outsource all reproductive labor to unpaid spouses or underpaid domestic help. Working-class women, Turk contends, benefited little from the paltry concessions feminists won in the late twentieth century: stingy, unpaid family leave for which many low-income women are ineligible and few can afford to take; desexualized but hardly de-gendered working environments; equal pay for equal (but not comparable) work; freedom from pregnancy discrimination without an entitlement to accommodation; the right to work under the same dangerous and soul-crushing conditions as men.

Grim as this denouement may sound, Equality on Trial is a story of promise as well as loss. Even where Turk reveals the darker side of conventional triumphalist narratives, she suggests the power of both individual imagination and collective action to engage in transformative projects of legal and social reform. Her chapter on the early years of the Equal Employment Opportunity Commission (EEOC), for instance, complicates dominant accounts that depict the agency’s initial implementation of Title VII’s sex discrimination provision as anemic and even obstructionist. In Turk’s telling, the Commission, though hampered by its weak enforcement powers, grappled earnestly with the conundrum of how to reconcile Title VII with sex-specific state protective laws. In the late 1960s, the EEOC pioneered “time-intensive, industry-specific” approaches to early sex discrimination claims, which envisioned Title VII as a tool to achieve substantive fairness, measured not in comparison to men but against working women’s own conception of justice. By taking seriously the wide-ranging aspirations articulated in women’s early Title VII complaints, Turk reveals what was lost as well as gained when the EEOC became a more powerful, bureaucratized entity that increasingly relied on statistical evidence of segregation and exclusion and “aggressively pursue[d] individual women’s complaints only where they pointed to entrenched patterns of discrimination by major corporations.” (P. 39.) In subsequent chapters, she uncovers important, if short-lived, coalitions that attempted to bridge class divisions among women, including the New York Times Women’s Caucus, which briefly united journalists with copy editors and clerical staff, and the feminist attack on discrimination and segregation at Sears, Roebuck & Company, where middle-class activists channeled the concerns of pink-collar workers in a grassroots campaign for substantive sex equality.

But the actions against the New York Times and Sears ended in disappointment for working-class women. And in a tragedy of poor timing that is unfortunately typical of second-wave feminist legal advocacy generally, by the time labor and feminist advocates united behind a workplace justice agenda—the pay equity movement of the 1980s—the political and economic tide had turned. Support for comparable worth, strong before 1970, flagged during feminists’ heyday and reignited in the Reagan era just as a conservative retrenchment swept federal agencies and courts. A similar temporal disjuncture afflicted hotel workers who campaigned for higher pay and better working conditions in the sex-segregated occupation of housekeeping. Female room attendants argued for equitable compensation based on the inherent difficulty and dignity of their sex-specific duties, but legal and political constraints pushed their lawyers to minimize gender differences and frame housekeepers’ demands as the right to be treated the same as the “housemen” who traditionally performed less repetitive but heavier lifting and cleaning tasks. In one of the book’s most poignant passages, Turk describes how hotel employers eventually pulled the rug out from under sex equality efforts by transferring housemen’s heavy labor tasks to maids, making their working conditions more onerous without offering commensurate wage increases. Eventually, a literally and figuratively emasculated union “agreed to a settlement that proffered all housekeepers the same back-breaking work: equality without protection.” (P. 128.)

Turk’s book is a worthy addition to a rich tradition of social and political histories that prominently feature working-class women’s use of the law, and intersects with pathbreaking legal-historical scholarship such as Deborah Dinner’s work on protective legislation, reproductive labor, and the neoliberal functions of anti-discrimination law. And Equality on Trial appears at a critical juncture in the debates Turk so evocatively excavates and historicizes. Gay plaintiffs’ late twentieth-century efforts to win protection from discrimination met with limited and localized success, as Turk details. But the tide may have begun to turn, with recent EEOC and federal court decisions reinterpreting Title VII’s sex provision to prohibit discrimination based on sexual orientation and gender identity. Advocates creatively interpret the Americans with Disabilities Amendments Act of 2008 in conjunction with the 1978 Pregnancy Discrimination Act to require accommodations for pregnant workers; a smattering of local ordinances do the same. Paid family leave, early childhood education, equal pay, sexual assault and harassment, and income inequality itself headline the national political agenda. The history recounted in Equality on Trial reminds us how fragile and fleeting these advances may be, and what is at stake in preserving and extending their reach.

Cite as: Serena Mayeri, The Lost Promise of Title VII, JOTWELL (August 8, 2016) (reviewing Katherine Turk, Equality on Trial: Gender and Rights in the Modern American Workplace (2016)), https://legalhist.jotwell.com/the-lost-promise-of-title-vii/.

The People and Their Sovereignty in the Longue Duree

In Inventing the People (1988), Edmund Morgan famously argued that the doctrine, or “fiction” as he termed it, of popular sovereignty was invented in middle seventeenth-century England as Parliament and the king engaged in civil war. Initially, the idea that the people were the basis and purpose of government was not intended to overthrow the king, or the then-prevailing doctrine of the divine right of kings that connected king to God. It simply sought to place the king in proper relationship to government by resting his authority upon both God and the people. But the basic idea of popular sovereignty, that the people could “begin, change, and end governments,” had radical implications (Morgan, P. 59), which became real when Americans rediscovered popular sovereignty in the late eighteenth century to overthrow monarchy and create new republican governments based solely upon popular authority.

But while Morgan adverted to earlier thinking about the people, principally the sixteenth-century French monarchomachs (“king killers”), he did not give it sustained attention. He is not alone, of course. It is a curious thing that what is perhaps the master concept in Western constitutionalism has until recently received scarcely any attention. To the extent it has been examined, it is usually presented as both cause and consequence of late eighteenth-century revolutionary politics in America and France. Daniel Lee’s new book on popular sovereignty in early modern legal and political thought offers a corrective, and challenges us to rethink the nature and meaning of popular sovereignty as it emerged in the late eighteenth century, a point in a longue duree that he traces back to the Roman Republic.

What we now know as popular sovereignty grew out of several not always compatible concepts of Roman public and private law, including dominium, imperium, and iurisdictio. The root concept, however, was the lex regia (“royal law”), “the legal device or instrument by which Roman popular sovereignty was fully alienated and transferred to the Roman Emperor as ‘lord,’ or dominus, of all the world” (Lee, P. 26). While superficially this concept could appear to lead directly to a more modern idea of popular sovereignty, in reality the path from former to latter was long and at times dizzying. Lee does a wonderful job of tracing this idea and its shadows through various intellectual traditions from scholasticism, humanism, and natural law, to French and English radical and absolutist thought in the sixteenth and seventeenth centuries. While the analysis is anatomical in detail at times, he frames each chapter so that the reader can understand or at least contemplate the relationship between the ligaments of analysis and the body of the narrative.

While there are many themes dancing around within this book, a couple particularly captured my attention. One concerns the origins of the idea of the constituent power—the idea, as Morgan put it, that the people can begin, change, and end government. The origin of this idea is commonly traced to Emmanuel Sieyès, a thinker in and of the French Revolution. Lee, however, traces this concept to the sixteenth-century French monarchomachs, who introduced both a theory of resistance into popular sovereignty and the idea that “the people always bear the proper and exclusive right of sovereignty” (P. 157). This was a first step toward linking popular sovereignty to revolution, a connection realized a couple of centuries later, in the late eighteenth century.

A couple of other themes revolve around the concept lex regia itself, and demonstrate that there was never a single concept of popular sovereignty. One concerns whether the Roman people ever actually conveyed their authority to the emperor. While there is some scanty evidence of such conveyance, Lee concludes that ultimately the lex regia operated as a fiction to legitimate the Roman emperor’s authority. But this was a problem that would plague the development of popular sovereignty throughout the early modern period, as various polities also tried to account for their own moment of popular creation in the absence of clear evidence. Although beyond the scope of Lee’s book, this problem would be resolved by the French and American revolutionary experiences in the late eighteenth century, which tied the constituent assembly to the people transforming popular sovereignty as both idea and practice.

A final theme of Lee’s book is also important for understanding the legacy of early modern ideas of popular sovereignty. This theme concerns the question of whether the popular grant of authority to the princeps (“prince”) was a complete alienation of popular authority (translatio), or a temporary grant that could be later recalled (concessio). In the early modern period this debate helped to frame the questions concerning the nature and legitimacy of the prince’s political authority. Variations of this debate persisted well beyond the early modern period. I have seen it in nineteenth-century America. As popular sovereignty sunk deep roots in constitutional development, variations of the debate over full or temporary alienation, this time to constituted authority, were part of a debate over how to limit the political authority of the people themselves.

Lee lays out well the intellectual debates, and provides us with the intellectual context of the history of popular sovereignty over a longue duree, a history that has been lacking for far too long. Lee’s book is now the starting point for any study of popular sovereignty, popular constitutionalism, and, I would say, the rise of constitutionalism more generally.

Cite as: Roman Hoyos, The People and Their Sovereignty in the Longue Duree, JOTWELL (July 6, 2016) (reviewing Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought (2016)), https://legalhist.jotwell.com/the-people-and-their-sovereignty-in-the-longue-duree/.

The Turn to Procedure

Daniel Ernst’s book, Tocqueville’s Nightmare: The Administrative State in America, is a significant addition to the growing literature on the history of the administrative state. However, it also compels a rethinking of the received historiography of twentieth century American legal thought. It is to the latter contribution that I will devote this brief review.

When Alexis de Tocqueville visited the United States in the 1830s, he observed that the country—in contrast to the states of continental Europe–had very little in the way of centralized bureaucracy. This, for Tocqueville, was a good thing: powerful centralized bureaucracies threatened a significant abridgment of democracy in a country as diverse and spread out as the United States. The “Tocqueville’s nightmare” of Ernst’s title refers, then, to the situation in which too much power might become vested in the hands of bureaucrats unanswerable to the people.

Beginning in the late nineteenth century, the first federal bureaucracies began to emerge in the United States. By 1940, a vast centralized administration had developed. This was in large part a result of the efforts of early twentieth century reformers, who called for systematic, scientific, bureaucratically-managed resolutions of the country’s economic and social problems. But the shadow of “Tocqueville’s nightmare” fell over the new administrative state. Many worried that the United States had shrugged off “the despotism of a supreme autocrat” only to make way for “the petty despotism which may come from vesting final discretion to regulate individual conduct in the hands of lesser officials” (P. 1; emphasis in original). How was this “nightmare” to be averted?

Ernst argues that the “nightmare” was averted because Americans—in a gesture Tocqueville identified as characteristic of American political culture–turned to the courts. Ernst traces meticulously how the courts—and law in general—structured the new administrative state. During the first half of the twentieth century, courts repeatedly refused to surrender their right to hold administrators accountable; demanded that administrators adhere to norms of due process in administrative proceedings; and insisted that administrators assume a quasi-judicial impartiality vis-à-vis subordinates who argued cases on behalf of the government. Indeed, according to Ernst, the courts’ influence on the administrative state “went beyond the structure of an agency; it reached deep into the thought processes of administrators and taught them to justify their actions in a particularly legalistic way.” (P. 3.) The distinctly legalistic cast of the American administrative state distinguished it, Ernst maintains, from its far less restrained and far more dangerous contemporaries in Hitler’s Germany, Mussolini’s Italy, and Stalin’s Soviet Union. At the same time, the country’s common lawyers, traditionally more comfortable arguing before judges than making their case before bureaucrats, shed their hostility towards the latter and developed lucrative specialized practices that involved close relationships with agencies.

This narrative, fascinating in its own right, raises all sorts of questions for the historiography of American legal thought. An important origin point for the historiography of twentieth century American legal thought is the case of Lochner v. New York (1905), in which the U.S. Supreme Court read common lawyerly ideas of freedom of contract into the Due Process Clause of the Fourteenth Amendment in order to strike down a New York law that established the maximum length of the work day in the baking trade. Lochner, and other cases like it, incensed Progressive-era critics of the federal courts. These critics argued that unelected, conservative, common lawyerly federal judges were reading their political preferences into “law” and thereby encroaching on the turf of democratic “politics,” denying democratic majorities the right to govern themselves. In making such arguments, these critics of the courts were joining forces with an ongoing philosophical critique of law. Beginning in the late nineteenth century, pragmatic legal thinkers such as Oliver Wendell Holmes, Jr. had argued that law’s foundations in logic, morality, reason, and so on were essentially spurious. Because “law” could not meaningfully distinguish itself from “politics,” Holmes appeared to argue, common law judges should cede control over law-making to the forces of democratic “politics.”

We often tell the history of American legal thought in the first half of the twentieth century as a history of the retreat of “law” before the advance of democratic “politics.” The New Deal, accompanied by the U.S. Supreme Court’s decision to rethink its position in Lochner, represents the triumph of democratic “politics,” the displacement of law generated by a common lawyerly judiciary by law generated by legislatures and the administrative agencies they created.

Ernst’s book complicates this story considerably. If one follows the implications of his account, the story of the contest between “law” and democratic “politics” in the first half of the twentieth century is not any simple story of the retreat of “law” before the forces of democratic “politics.” It is instead a story of how “law,” by giving up its ability to check democratic “politics” on substantive grounds, instead suffused democratic “politics”—one important locus of which was the new administrative state—by becoming procedure. Through his study of politics of the early twentieth century administrative state, Ernst thus gives us rich substantive account of one important site of the changing career of “law” in relationship to democratic “politics,” of its emerging ontology as procedure.

The idea that law in the early twentieth century would transform itself into procedure as it ceded ground to the new expert knowledges of the administrative state is made clear in the writings of Felix Frankfurter, an important intellectual architect of the American administrative state and someone who features prominently in Ernst’s book. Towards the end of his career, Frankfurter recalled something he had written in the summer of 1913, as he contemplated taking up a teaching position at the Harvard Law School. In his recollection, we have a breathtakingly clear understanding of the new procedural conception of law:

The problems ahead are economic and sociological, and the added adjustments of a government under a written constitution, steeped in legalistic traditions, to the assumption of the right solution of such problems. To an important degree therefore, the problems are problems of jurisprudence,–not only the shaping of a jurisprudence to meet the social and industrial needs of the time, but the great procedural problems of administration and legislation, because of the inevitable link between law and legislation, the lawyers’ natural relation to these issues, the close connection between all legislation and constitutional law, and the traditional, easily accountable dominance of the lawyer in our public affairs. In the synthesis of thinking that must shape the Great State, the lawyer is in many ways the coordinator, the mediator, between the various social sciences (emphasis added).1

Ernst’s account of how law suffused the new administrative state is offered as a corrective to the Tea Party movement’s view that that Americans in the early twentieth century abandoned the country’s tradition of individualism when they built up the administrative state. Instead, Ernst wants to show that “the reformers who supposedly sent the Constitution into exile . . . actually designed the principles of individual rights, limited government, and due process into the administrative state” (Pp. 7–8.)

As a corrective to the Tea Party’s simplistic view of America’s past, Ernst’s account is indeed valuable. It is important to emphasize, however, that the transformation of law’s ontology into procedure in the early twentieth century was a complex and variegated affair, pointing in many different directions. The career of Felix Frankfurter, who was an ardent New Dealer and then a kind of proceduralist conservative on the Warren Court, suggests how complicated the various strands of law’s self-transformation into procedure could be. In Tocqueville’s Nightmare, Ernst is not concerned with exploring these issues. But his book is enormously suggestive. As such, it deserves a wide readership.

  1. Felix Frankfurter & Harlan B. Phillips, Felix Frankfurter Reminisces; Recorded in Talks with Dr. Harlan B. Phillips 81 (New York: Reynal & Company, 1960). []
Cite as: Kunal Parker, The Turn to Procedure, JOTWELL (June 13, 2016) (reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (2014)), https://legalhist.jotwell.com/the-turn-to-procedure/.

The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State

When I was growing up in New York City, there was a rite of passage that you went through when you turned 14. You got your “working papers.” For a middle class kid, the process was one of your first encounters with the administrative state. You went to the dingy building in downtown Brooklyn that housed the New York State Department of Labor’s Kings County office. There you submitted a form, signed by your parents, along with a copy of your birth certificate. The form itself was a stock item of the postwar, pre-digital bureaucracy: four sheets of stacked, bound, carbonless copy paper (white, yellow, pink, and blue with an instruction to press hard enough to create legible words on the blue copy). The birth certificate was a photocopy – white text on a black background – with a raised seal. The form and the birth certificate were reviewed and stamped by a clerk behind a counter who then returned to you a copy of the form (the pink one, I seem to recall). You now had the permission of the State of New York to be a camp counselor, or to peddle Dove Bars and frozen lemonade from a cart in front of Rockefeller Center

Behind this banal bureaucratic process was over one hundred years of state building, some of it quite familiar. As anyone who remembers their AP American History class will tell you, the substance of the regulatory regime (children can’t work until they’re 14 and even then they are prohibited from industrial labor), and its institutional manifestation (the Department of Labor) are products of the Progressive era campaign against child labor. However, as Susan J. Pearson’s richly detailed article demonstrates, before the political impulse to protect children from the dangers of industrial labor could succeed, the administrative state had to assert its power in another way. The most fundamental obstacle to abolishing child labor was not political resistance from business interests or immigrant families in need of income. Nor was it hostile courts with their concerns about federalism and freedom of contract. The most intransigent barrier to abolishing child labor was the fact that well into the twentieth century, the state had no way of knowing how old somebody was. In a world without state-issued birth certificates, enforcing age-based prohibitions on work was impossible.

This, then, is the story that Pearson tells: how the states and the federal government created the bureaucratic infrastructure to ensure that every child born in the United States had a government-issued birth certificate to verify their age. In nineteenth-century America, she explains, chronological age was not defined with the precision we are used to today. Many Americans “understood their age in approximate terms.” (P. 1150.) This fact was particularly true in immigrant and non-white communities. Consequently, for most Americans, the age at which a child should start working was viewed not as precise boundary (the chronological age of 14, for example), but instead as a contextual calculation related to the economic circumstances of the family and the actual maturity of the child at issue.

In order to make child labor laws work, Progressive reformers had to impose a different conception of age on working families. The evidence that was traditionally used to determine a child’s age, such as parental affidavits, notations in family bibles, or baptismal certificates, was gradually replaced during the first third of the twentieth century by standardized, state-issued birth certificates in which chronological age could be attested to by experts: the doctor, nurse, or midwife who was present at birth. Pearson demonstrates that this transition was not a smooth one. Parents resisted this profound loss of authority over their children. The ultimate judge of a child’s maturity became the government, not than the parents. To do this, states and the federal government had to build out a considerable bureaucracy. Legislation created state and federal child labor agencies that worked with the Census Bureau and state and local health agencies to promote and, ultimately, require birth registration.

As Pearson notes, a definitive determination of chronological age was necessary not only to prevent child labor. It was also a prerequisite for implementation of other Progressive-era reforms such as compulsory schooling and juvenile courts. The same was true of the emergent New Deal welfare state. Age, after all, was the fundamental basis for awarding Social Security payments. Indeed, the significance of the shift that Pearson describes from parental to state control over the definition of a child’s age is what makes her article so important. Like all the best historical writing, it uncovers a historical process obscured by our modern perspective. Our understanding of a person’s age – as defined by an objective measure of the number of times the earth has orbited the sun since that person’s birth – is, in fact, the creation of early twentieth-century reformers intent on furthering particular policy goals. That policy impulse, and the state-building that was required to implement it, favored a particular definition of age so powerfully that we can now scarcely imagine any other definition.

Cite as: Reuel Schiller, The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State, JOTWELL (May 13, 2016) (reviewing Susan J. Pearson, "Age Ought to be a Fact": The Campaign Against Child Labor and the Rise of the Birth CertificateJ. of Am. Hist. 101 (2015)), https://legalhist.jotwell.com/the-birth-of-the-birth-certificate-age-child-labor-and-the-growth-of-the-administrative-state/.