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A Diplomatic Nightmare and the Growth of American Sovereignty

In an era when refugees prize crossing American borders – and when political debates turn on whether to build a “beautiful wall” to stop them – we learn in Under the Starry Flag about a time that the United States lacked the power it has today to alter the citizenship of migrants. Lucy Salyer’s fine monograph tells a story of Irish emigration to the U.S. in British and American law and politics. We learn that the great migrations across the Atlantic in the nineteenth century occurred in something of a legal vacuum. Nobody was quite sure what the consequences of such migration would be. Even if migrants naturalized as American citizens, Britain and other European powers denied that their former subjects had severed their obligations to the homeland. If migrants returned to visit family, they were liable to arrest for failure to serve in the military, for example. If they returned and sought to foment rebellion, they were subject to prosecution for treason. Most people didn’t know this; others learned the hard way.

The Irish immigrants studied here were caught in the crosshairs.  They already objected strenuously to the discrimination they suffered at the hands of American snobs (think, “no Irish need apply”) in the nineteenth century. They dreamed of sticking it to elite Bostonians and New Yorkers. But most of all, they hated the English. They became entangled in transatlantic diplomatic crises that they milked for publicity and personal celebrity. They were unlikely heroes, untutored in the many ways that their actions had crossed tacit boundaries and stirred already troubled waters. But they were stubborn, brave (for the most part), and idealistic. The reader is forced into grudging admiration.

It all started with great foolhardiness. A painfully small (40 men) group of Irish Americans – convinced of their prowess, apparently, by their experience fighting for the Union in the U.S. Civil War as well as news of a (quickly squashed) Irish uprising led by a group known as the Fenians in early 1867 – persuaded themselves that they could liberate Ireland from the cruel oppression of the British. They set sail in a rickety boat and disembarked in Ireland far from their original target, only to be arrested almost immediately. The British government and its emissaries in Ireland were in no mood to treat gently this rag-tag group that brought rifles and revolutionary rhetoric back with them to Ireland. The Irish had made trouble for their overlords for centuries, who in turn had become seasoned and remorseless oppressors, economically (75% of rural Irish lived in dire poverty), culturally (English-language only national schools), and of course legally. As Salyer puts it, British officials had no qualms about prosecuting Irish Americans for treason, because “corrupt American influences” underlay the most recent trouble, the Fenian project of the 1860s. (P. 47.) To eradicate Fenianism once and for all, American emigrants had to pay the price.

Therein lay the rub. Despite their arrogance and long-standing annoyance at “thin-skinned” Americans and their demands to be recognized as a sovereign nation among others, Britons were impressed that the U.S. had survived its devastating Civil War.  Now American diplomats demanded Britain pay for losses inflicted by the notorious British-built Confederate raider C.S.S. Alabama. The beleaguered (and whiny) U.S. Minister Charles Francis Adams was loath to add American Fenians to his list of diplomatic problems, but he was forced to by the influence of Irish immigrants in American politics, and their effective cultivation of support in letters home that complained of wretched conditions and solitary confinement and were reprinted in the popular press. The Irish-born defendant John Warren brilliantly turned his trial into a showcase for the suffering of an American patriot at the hands of an empire of torturers.1 The British countered that the “excitable” Americans should forgive and forget the Alabama and leave punishment of the Fenians to the Queen’s justice. (Pp. 57, 174.)

Relations between the two countries deteriorated dangerously. Cooling tempers to avoid war in the late 1860s required all of Adams’s considerable savoir faire. In addition, the question whether emigration to America and naturalization there resulted in “expatriation” – that is, the end of obligation to one sovereign and the acquisition of a new citizenship under a different sovereign – became the question du jour for an emerging trend in legal thought and advocacy. Now, German immigrant Francis Lieber (best known to legal scholars today as the author of Lincoln’s Code of War) and other international “publicists” entered the picture. They argued that the old ways of seeing subjecthood as unchangeable were hopelessly antiquated because they rested on feudal notions of the divine right of kings. The modern era, by contrast, was governed by vast commercial networks that were made possible by nation-states. “Global capitalism and global migration” went hand-in-glove with new ideas of sovereignty, “smoothing and broadening the paths of commerce.” (Pp.180-81.) International law in the productive sense of the term was possible only by adapting to the new reality.

After many fits and starts that featured repeated and difficult negotiations between American and British and failed attempts to pass legislation on both sides, as well as constant rabble-rousing and political activism from Warren and his allies, the question of a right to expatriation was resolved in 1870 by legislation on both sides and a treaty. For the first time, Britain recognized the right to leave, as well as the possibility of naturalization for immigrants. At the same time, both sides hardened the boundaries, specifying that a married woman automatically took the citizenship of her husband. Equally important, Americans scrambled to explain how it was that Irish and German and Italian immigrants could be naturalized, but Chinese and persons of color had no such prospects. For their part, American Fenians were key supporters of the “white man’s government” that emerged from their otherwise unsuccessful foray into freedom-fighting. (P. 141.)

Salyer acknowledges that one might be tempted to conclude that victory for the Fenians in America means her story has a happy ending. The rest of the nineteenth century, however, saw increasingly virulent anti-Chinese activism and legislation, experiments in expulsion of communists in the twentieth century, and all kinds of shenanigans in the twenty-first. The Fenian legacy has been tarnished, pretty much from the start.

But the murkiness of the morals behind the story should not obscure the importance of Salyer’s work. Her remarkable deftness lies in crafting a page-turner that nonetheless yields deep insights into how the law of immigration affected diplomacy, politics, and especially the law of citizenship. The characters in Under the Starry Flag are painted with such fine attention to detail and telling attributes, that the reader is drawn in. The lessons of the tale – including the power of a new sovereign to supplant the obligations due to the former one, and the role of commerce in smoothing the paths of emigrants – make great sense as a result.

Scholars of capitalism, transatlantic and global migration, the changing face of white supremacy, and more, will find much to admire here. Students will find the text manageable thanks to Salyer’s historical craft. And for immigration lawyers, who grapple with the ways that the law of citizenship and migration had been under-theorized for the entire first century of American national history, Salyer’s work enriches and complicates our earlier understanding. Like Gerald Neuman’s now classic The Lost Century of American Immigration Law, Salyer challenges scholars to take a new perspective. This time, however, the focus is not just on U.S. laws of immigration, but the ways that claims of a right to expatriate posed uncomfortable questions for the British Empire.  Ireland – the first colony of that empire – was at the center of the trouble, and the former colonies that had become a favored destination of the suffering Irish poured flames on the smoldering embers.

Less than 30 years later, the United States embarked on its own inaugural colonization project in Puerto Rico – now the world’s oldest colony. The many questions involving citizenship raised by the accession of the island and its inhabitants have also yielded fine work in legal history.2 Students of British and American legal history are teaching us that frequently the real action is at the periphery. This lesson is valuable for anyone studying the shifting contours of citizenship, as well as the role of commerce in the contours of empire.

  1. Perhaps my favorite chapter, “All the World’s a Stage.” (Pp. 106-24.)
  2. See Sam Erman, Almost Citizens:  Puerto Rico, the U.S. Constitution, and Empire (2018).
Cite as: Sarah Barringer Gordon, A Diplomatic Nightmare and the Growth of American Sovereignty, JOTWELL (November 11, 2019) (reviewing Lucy E. Salyer, Under the Starry Flag: How a Band of Irish Americans Joined the Fenian Revolt and Sparked a Crisis of Citizenship (2018)),

Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine

As a procedural field, evidence law is often portrayed as technical and even arbitrary; the handmaid of substantive law. Orna Alyagon-Darr’s new book, Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine, dispels this notion, highlighting the ways in which evidence law—and procedure more generally—provides a reflection of the societies in which they operate, and may therefore serve as a rich source of social history. Precisely because procedural law is often depicted as morally and culturally neutral, it offers inadvertent clues to the thought process of various legal actors which substantive legal fields do not.1 In this book Alyagon-Darr, the author of Marks of an Absolute Witch (a study of witchcraft trials in sixteenth to eighteenth century England, the rules of evidence that governed them, and the social context these rules convey), turns her keen eye for fascinating and unusual details to another period and place: the interwar Middle East.

Plausible Crime Stories offers a fascinating analysis of the colonial archive of sex offenses in the Middle East during the interwar period. Based on 147 cases decided in the Haifa District between the years 1933-1948, Alyagon-Darr recounts the social and political histories of sex crimes in Mandate Palestine. To provide a richer and broader context, Alyagon-Darr also skillfully employs media coverage, in English, Arabic and Hebrew, to tease out public opinion towards such criminality within each of Palestine’s communities.

To examine “the meeting point of culture and law within the process of proof,” the framing principle at the center of Alyagon-Darr’s analysis is “plausibility.” (P. 6.) By focusing on plausibility, she proposes that we use legal and non-legal texts to “detect indicators of socially embedded elements.” (P. 6). In other words, she suggests that by reading legal texts and media accounts about the law critically we might uncover the underlying assumptions of the authors and the audiences for whom they wrote. These underlying assumptions are only rarely made explicit because authors found them unnecessary to articulate, making them far more telling of their world views.

The book begins with a 1944 case of attempted rape. In her husband’s absence, Nafsieh was sleeping with her baby on the roof of their family house when the defendant—her neighbor Nimr—appeared and allegedly tried to rape her. Despite the physical evidence of her torn shirt, her immediate report of the crime, and family members’ reports that they were awoken by a loud cry, British judge Curry found Nafsieh’s account “implausible”: first, he found it implausible that a woman would sleep alone on the roof of her own house, even on a hot summer night, in the absence of her husband; second, he found it “strange for a man in the middle of the night, to come commit an indecent act upon a woman unless there has been some friendship or encouragement to hope that he would not be badly received.” (P. 1.) Judge Curry found it far more plausible that Nafsieh would invite a neighbor to have sex with her on the roof of her husband’s family home in the presence of her baby; moreover, he found it plausible that when discovered, she would concoct rape allegations to protect her honor. The book portrays many such incidents, highlighting the various prisms mediating reality as perceived by legal and non-legal actors.

Readers will recognize many of the tropes analyzed in Alyagon-Darr’s accounts from feminist critiques of both substantive and evidentiary common law doctrines pertaining to sex crimes: the notorious corroboration requirement, the requirement of “resistance to the utmost”—and its implication, namely that intercourse simply cannot be achieved by a man of average strength against the will of an average woman. Alyagon-Darr’s analysis, however, brings the colonial context to bear on these issues, underlining the intersectionality of gender, sexual orientation, race and nationalism (to name a few). Mandate Palestine provides a particularly rich case study, as it allows for both the study of self-representation and the representation of others within Palestine’s various communities. For example, Alyagon-Darr analyzes Palestine’s distinctive statutory treatment of sodomy (which criminalized non-consensual penetration), as opposed to “offenses against the order of nature” (which penalized both parties in consensual, unnatural sexual relations). Alyagon-Darr meticulously traces the origins of this legislative distinction, contrasting between both the metropole and colony and between the British colonies themselves, to illustrate how perceptions of Middle Eastern sexuality informed such distinctive criminal provisions.

Beyond analyzing the distinctiveness of Palestine’s law in the books, Alyagon-Darr goes a step further in exploring the law in action: for example, she shows how in practice, “unnatural offenses” were typically only prosecuted against Arab defendants in cases where the authorities were forced to intervene, and typically in instances of power imbalances between the parties involved (be they physical, mental, or economical). Her explanation, once again, relates to plausibility: the notion that two men could share an emotional bond that would lead to homosexual relations, and that a man would voluntarily consent to penetration, was simply unfathomable. Additional facts had to be assumed for such a story to become conceivable: typically, the cases prosecuted involved an older and more powerful party, who exchanged money for sex. In crafting their defenses, litigants conformed to these judicial perceptions and tailored their stories accordingly, even when the record suggests that the relations were clearly consensual. In some cases Alyagon-Darr is even able to trace the changes that occurred in the defendant’s account from the moment they were caught until they stood trial, to conform with judicial and social expectations. In another chapter Alyagon-Darr demonstrates how perceptions concerning the plausibility of inter-communal intimate relations—particularly between Arab men and Jewish women—shaped judicial approaches to such cases, and the stories told by criminal defendants accused of crimes such as statutory rape: such relationships could only be deemed plausible when the Jewish girl in question was from a marginal group or a broken home.

Alyagon-Darr’s fascinating study is beautifully written, displaying keen attention to detail and sensitivity to the highly contentious subject matter. It is highly recommended for anyone interested in the history of sex crimes, the cultural history of legal procedure, or the complex relationship between law and colonialism.

  1. For parallels in the world of art, detective fiction, and psychoanalysis, see Anna Davin & Carlo Ginzburg, Morelli, Freud and Sherlock Holmes: Clues and Scientific Method, 9 History Workshop (1980).
Cite as: Binyamin Blum, Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine, JOTWELL (October 4, 2019) (reviewing Orna Alyagon Darr, Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine (2018)),

New Approaches to the History of Originalism

Law and History Review’s recently published symposium, Originalism and Legal History: Rethinking the Special Relationship, offers a fascinating collection of articles, some by familiar commentators on constitutional originalism, some by newer voices. In the former category are Bernadette Meyler’s powerful critique of the Supreme Court’s reading of the history of the Sixth Amendment’s Confrontation Clause; Saul Cornell’s challenge to originalists to meet the standards of a“genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available”;1 William Baude and Stephen E. Sachs’s defense of originalist analysis as “ordinary lawyer’s work,” distinct from and more limited than the historian’s task of understanding the past;2 and Logan Sawyer’s account of the role that academic historians played in the rise of modern originalism in the 1970s and 1980s.

The symposium also includes a number of contributions from scholars who are newer to the scene. Lindsay M. Chervinsky examines George Washington’s understanding of executive authority, as revealed in newly available writings by the first president. Michael Douma explores the history surrounding two early Dutch translations of the United States Constitution. Aaron Hall considers how participants in mid-nineteenth-century debates over slavery turned to the history of the Founding as authority for their positions. And Paul Baumgardner looks to the history of law schools in the 1980s to trace the foundations of modern originalism rise to prominence in the legal academy. The symposium issue also includes Kevin Arlyck’s illuminating review of Jonathan Gienapp’s important new book, The Second Creation: Fixing the American Constitution in the Founding Era.

Although this latest round of contributions on the history and theory of constitutional originalism offers an array of insights and provocations that merit more attention, in this review essay I focus on the fresh perspective on the history of originalism offered in the articles by Aaron Hall and Paul Baumgardner. Building on the work of Robert Post and Reva Siegel,3 Jamal Greene,4 and others,5 they explore the genealogy of originalism as a phenomenon not only of legal theory but of American cultural and political history. Side-stepping the issues that have dominated discussions about originalism in recent decades—debates about the merits of originalism as a theory of constitutional interpretation, about whether originalist analysis and historical inquiry are reconcilable, about the original meaning of particular constitutional provisions—Hall and Baumgardner instead focus on how this particular theory has become such a dominant presence in American life. Central to this line of scholarship is the close attention they give to how developments outside the courts made possible the success of originalism inside the courts.

In Originalism and the Academy in Exile, Baumgardner, a Ph.D. candidate in Politics at Princeton University, presents the rise of originalism as a story of legal academic politics. He argues that the early 1980s—a time when “originalist scholars and scholarship held marginal and dubious status in the American legal academy”6—was in fact a seminal moment in the emergence of modern originalism. Drawing on interviews he conducted with legal scholars involved in the academic battles of the 1980s, along with archival and published sources, Baumgardner describes legal education in the 1980s as a period of expansion, experimentation, and uncertainty. Faculty at elite law schools were becoming more interested in interdisciplinary scholarship, with Critical Legal Studies riling the waters on the ideological left and law-and-economics gaining stature among more conservative scholars. Within this increasingly dynamic world of the legal academy, there was little space, however, for the early advocates of originalism as a theory of constitutional interpretation. The pioneers of originalism in the 1970s and early 1980s generally worked outside the legal academy or on its fringes. Among mainstream legal scholars, most of the attention originalism arguments received came in the form of debunking efforts. Whereas Critical Legal Studies and law-and-economics were home-grown products, conceptualized and cultivated within the academy, originalism had to be outsourced.

The key player in Baumgardner’s story was the Department of Justice under the leadership of Attorney General Edwin Meese. In a speech before the American Bar Association, Meese declared advancing “a Jurisprudence of Original Intention” the official policy of the Justice Department. (P. 797.) “In the cases we file and those we join as amicus, we will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” (P. 797.) The Justice Department, according to Gary Lawson, who served in the DOJ in the mid-1980s, was an “academy in exile” for originalism in its formative years. (P. 798.) Instead of attending law school workshops, young conservative lawyers were participating in seminars and informal discussions at the Justice Department; instead of publishing law review articles, they were writing memoranda on the history of the framing of the Constitution and its significance for constitutional interpretation. In 1987, Justice Department lawyers produced Original Meaning Jurisprudence: A SourcebookThe following year they produced Guidelines on Constitutional Litigation, which explained that an originalist approach to constitutional analysis “should presumptively be followed.” (P. 799.)

With the Justice Department in the Reagan years serving as the essential incubator and promoter of originalism as a viable theory of constitutional interpretation, developments in American politics further bolstered the stature of originalism on the constitutional scene. Justice Antonin Scalia joined the Supreme Court in 1986 and soon became originalism’s most effective booster. The following year Reagan nominated another defender of originalism, Robert Bork, to the Court. His defeat in the Senate prompted critics of originalism to once again announce its demise. Bork’s originalist views, wrote Ronald Dworkin, “were so thoroughly discredited in the hearings, and proved so generally unpopular, that I doubt that they will any longer be advanced even by lawyers and judges who found them congenial before.” (P. 801.) This prediction proved dead wrong of course. If anything, conservative anger at Bork’s defeat bolstered support for originalism. The Justice Department continued to promote originalism and it gradually gained a foothold within the federal judiciary. In 1992, Clarence Thomas joined the Court and soon proved himself to the be most committed originalist to ever sit on the Court.

Baumgardner explains how these developments outside the legal academy had the effect of advancing the stature of originalism in the law schools. Justice Department lawyers became law professors, some of them rising to the ranks of nation’s leading constitutional scholars. Among conservative legal scholars, originalism became the dominant theory of constitutional interpretation. It was the focus of countless articles, symposia, and debates. In the academy, the Justice Department’s more practical, results-oriented approach to originalism gained more analytical rigor. Although accounts of the historical trajectory of political and legal concepts often focus on their translation from the world of ideas to the world of practice, Baumgardner makes a persuasive case for giving attention to the flow of ideas in the other direction. His history of originalism shows how an idea that gained substance and stature outside the academy then shaped debates and careers within the academy.

Aaron Hall’s Plant Yourselves on its Primal Granite: Slavery, History and the Antebellum Roots of Originalism is a compellingly argued and elegantly expressed account of constitutional contestation in the first half of the nineteenth century. Hall examines how lawyers and judges in antebellum American called upon the history of the framing of the Constitution to legitimate their constitutional arguments about slavery. The authority of the Founding in American constitutional culture was never a given; it had to be constructed, and that construction, Hall argues, was in large part the product of antebellum debates over slavery.

Drawing on material in his recently completely history Ph.D. dissertation, Hall argues that it was in debates over slavery, more than any other subject of constitutional contestation in the nineteenth century, that jurists turned to the Founding for authority. Cases involving slavery, “inspired an effort to produce settled authoritative answers through stories about original promises, expectations, and intentions, an approach that recruited popular history and faith in a fathers’ Constitution.”7 This turn to cultural authority to bolster formal legal claims Hall terms “vernacular constitutionalism.”8

The text of the Constitution could only provide so much. But crafting stories about the Founding that resonated with the anxieties and desires of Americans in the antebellum period could do much more, expanding the possibilities of constitutionalism to provide seemingly definitive answers to the issues that were tearing the nation apart. These projects of “narrative world building,” as Hall terms it, resonated with speakers and audiences at an emotional level. (P. 749.) References to the Founding were gilded with mysticism or religion—the framers were “inspired,” the Constitution touched by the “finger of God.” (P. 754.) Actively cultivated by lawyers, vernacular constitutionalism became an accepted register of argumentation for judges as well. “As courts leaned upon its legitimating authority, public constitutional history became a kind of constitutional law” in the decades leading up to the Civil War. (P. 752.) “[P]opular historical authority and formal legal justification would move together.” (P. 752.) Hall shows how this dynamic played out in the 1842 Supreme Court case Prigg v. Pennsylvania, in which the “justices constituted themselves as a court of history to govern slavery.” (P. 755.)

Hall argues that this nineteenth-century history helps to explain the “deep roots of originalism’s appeal.” (P. 747.) More than just a theory of constitutional interpretation, originalism, Hall explains, “can be understood as a form of constitutional engagement both in court and out of doors that integrates public memory culture and legal reasoning.” (P. 747.) Understanding originalism in this way “directs attention toward the formation of the constitutional culture that sustains originalism.” (P. 748.) Hall describes the entwinement of “public memory culture and legal reasoning” as the “taproot of originalism.” (P. 760.)

While Baumgardner remains agnostic on what his historical account says about the value of originalism as a method of constitutional engagement, Hall, in his conclusion, directs his history analysis in a critical direction. Originalism then, like originalism today, “dispossess[es] living generations of interpretive and policy-making authority” and “obscures the act of choosing meaning and making policy.” (P. 761.)

One of the puzzles of the history of originalism is why a theory of constitutional interpretation that legal scholars and historians alike have so regularly and thoroughly critiqued, denounced, and dismissed remains such a vital force in American constitutional discourse. In these important new articles, Hall and Baumgardner help to answer this puzzle.

  1. Saul Cornell, Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning, 37 Law & Hist. Rev. 821, 822 (2019).
  2. William Baude and Stephen E. Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 811 (2019).
  3. Robert Post & Reva Siegel, Originalism as a Political Practice: The Right’s Living Constitution, 75 Fordham L. Rev. 545 (2006).
  4. Jamal Greene, Selling Originalism, 97 Geo. L.J. 657 (2009).
  5. See, e.g., Logan E. Sawyer III, Principle and Politics in the New History of Originalism, 57 American Journal of Legal History 198 (2017); Mary Ziegler, Originalism Talk: A Legal History, BYU L. Rev. 869 (2015).
  6. Paul Baumgardner, Originalism and the Academy in Exile, 37 Law & Hist. Rev. 787, 792 (2019).
  7. Aaron Hall, “Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism, 37 Law & Hist. Rev. 743, 746 (2019).
  8. Id.
Cite as: Christopher W. Schmidt, New Approaches to the History of Originalism, JOTWELL (Sept. 13, 2019) (reviewing Paul Baumgardner, Originalism and the Academy in Exile, 37 Law & Hist. Rev. 787 (2019); Aaron Hall, “Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism, 37 Law & Hist. Rev. 743 (2019)), https://legalhist.jotwellcom/new-approaches-to-the-history-of-originalism.

A Case for Legal History

Laura F. Edwards, Sarah Allingham’s Sheet and Other Lessons from Legal History, 38 J. of the Early Republic 121 (2018).

Making a case for the value of legal history on a forum dedicated to the study and celebration of the field might seem unnecessary, but Laura Edwards’s historiographical essay in the Spring 2018 Journal of the Early Republic (JER) is too good not to bring to the attention of legal scholars.

Edwards not only makes the case for the importance of the study of legal history as more than a subfield within larger explorations of the era of the early republic, but also illuminates (or, for legal historians reading the piece, reinforces) just how complicated “the law” was and the role it played in people’s everyday lives. “Law was not the authority to which people deferred,” she insists. “It was the authority they made. As such, it is impossible to understand the early republic without it.” (P. 147.) While these contentions might seem obvious to historians of the law, there is much to gain for specialists and non-specialists alike by reading—and teaching—Edwards’s notable article.

Edwards’s goals in “Sarah Allingham’s Sheet and Other Lessons from Legal History” are twofold. First, she aims to introduce recent scholarship that has moved “beyond the written records, legal officials, and designated institutions that other historians usually rely on to account for [the law’s] presence and influence.” (P. 122.) Second, Edwards challenges the idea that, in the nineteenth century, the law was either “simple” or “straightforward.” (P. 122). It was “the law’s very complexity,” she argues, that “made it more accessible to a wide range of people” (P. 122.) Edwards illustrates her aims through the story of a dispute over a bedsheet in New York City during the early nineteenth century, which she skillfully weaves throughout the essay, and then shifts to a discussion of both well-known and more recent work in the field of legal history.

Despite Hendrik Hartog’s consideration of the law in both “legal institutions” and “the streets of New York” (P. 123) in Pigs and Positivism,1 Edwards suggests that most historians of the era still “[tend] to locate the law within the governing institutions of the state.” (P. 123.) Edwards then discusses the ways in which early Americanists have, since the 1980s, taken a different approach, which has led them to wider studies of law and society. For scholars of early America, the shift away from “concerns with the ultimate emergence of the state” (P. 127) began in the 1980s and continued into the 1990s with a turn that extended both the chronological and geographical boundaries of the field. That turn, Edwards explains, included inclusion of the early nineteenth century and work that examines the persistence of colonialism even after the American Revolution. By the early 2000s, leading legal historians took up the mantle, and in a 2001 edited collection, The Many Legalities of Early America, demonstrated in essay after essay “that law was essential to understanding the colonial past more generally.” (P. 130.) These “scholarly currents” (P. 131) remain relevant in some of the most recent scholarship in what is now, in the late 2010s, referred to as “vast early America.”

Edwards also argues that “scholarship on coverture . . . has changed our understanding of the meaning and operation of legal principles” (P. 132), and dives into an analysis of some of the best existing work on the topic, including work by Holly Brewer, Cornelia Dayton Hughes, Mary Ritter Beard, Michael Grossberg, and others. From there, Edwards elucidates how legal scholars of the nineteenth-century United States have worked to link “[t]he institutional context of the early republic . . . to its colonial past” (P. 134) through investigations of legal institutions at the state and municipal levels. “The post-Revolutionary ‘state,’” Edwards suggests, “now looks far less coherent” (P. 136), as do the “legal relationships between localities, states, and the federal government.” (P. 137.)

In the remaining pages of the essay, Edwards touches on the pervasiveness of the law in the lives of ordinary people with a discussion of existing work on both credit and debt and religion, namely, disestablishment. Legal historians, she states “have moved law well beyond the boundaries that once contained it” (P. 141), and, over the last several years, scholars have started to include just how intertwined the law is with “cultural context.” (P. 142.) Moreover, Edwards’s convincingly argues that “law infused all aspects of life, even the lives of those without resources and with tenuous claims to rights.” (P. 146.)

Edwards’s historiographical examination of the complexities of legal history is both engaging and informative. Therefore, if you’re looking for an up-to-date discussion of some of the most recent scholarship on “the law” and the early republic, trying to find a classroom resource to introduce students to the studies of the law and legal history in that era, or just want a model for how to write an effective historiographical essay, Laura Edwards’s JER article is a good place to start.

  1. Hendrik Hartog, Pigs and Positivism, 1985 Wis. L. Rev. 899.
Cite as: Allison Madar, A Case for Legal History, JOTWELL (June 19, 2019) (reviewing Laura F. Edwards, Sarah Allingham’s Sheet and Other Lessons from Legal History, 38 J. of the Early Republic 121 (2018)),

The Federal Trade Commission as National Nanny

Rachel Louise Moran, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019).

The new essay collection Shaped by the State: Toward a New Political History of the Twentieth Century, edited by Brent Cebul, Lily Geismer, and Mason B. Williams, makes a strong case for thinking about political history as deeply tied to broader strands in American history. The essays in the book describe the growth and evolution of the modern state in light of “long-standing structures and ideologies of markets and social power defined by race, gender, class, and hierarchies of citizenship.” (P. 8.) As the table of contents makes clear, regulation and the administrative state are key parts of this story of the modern state. Rachel Louise Moran’s contribution to the collection, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, approaches regulatory history in this expansive way, unpacking the gendered nature of both regulation and resistance.

Moran takes as her topic efforts by the Federal Trade Commission (FTC) in the late 1970s to limit children’s exposure to junk food advertising on television. One might assume that the FTC’s attempts to prevent greedy corporations from using sugar to entice children would make regulators the heroes in a modern fairy tale. Moran describes how in 1977 the Center for Science in the Public Interest “dramatically sent 170 decayed teeth (and petitions signed by ten thousand health professionals) in a bag to the Federal Trade Commission, along with a request the FTC regulate the advertising of foods to children.” (P. 320.) Instead, however, the 1978 Children’s Advertising Rule investigation–soon known as “KidVid”–collided with concerns about an overstepping state voiced by industry opponents, media skeptics, and parents protective of their own authority.

The FTC’s statutory authority allowed it to regulate unfair and deceptive market behavior; regulators claimed that ads targeting children—by definition low-information consumers—were unfair. Since the FTC had traditionally focused on policing deceptive market behavior, there was little precedent for this regulation, and, Moran describes, “the unfairness principle was almost instantly portrayed as FTC overreach, as a bureaucracy pulling extra powers out of its hat.” (P. 323.) Moran quickly sketches the outlines of the political history: an extensive investigation with more than two hundred witnesses and thousands of pages in the record resulted in negative press, industry lawsuits, congressional pushback, and a failed rulemaking.

This alone is an interesting story, at least to those of us fascinated by bureaucratic behavior. But Moran provides more than a straightforward political history of regulation and resistance by focusing on the gendered framework at play in “the earliest sustained debate over the nanny state in U.S. politics[.]” (P. 321.) “Nanny state” language emerged first in British politics but Americans had long considered their own government in turn paternalist and maternalist. The latter framework came to dominate as the state expanded its authority to look out for citizens’ welfare by providing them with benefits and regulating their environments. More specifically, the FTC was described at various points in its history as “‘the little old lady of Pennsylvania Avenue’” and “‘the national nanny.’” (P. 318.) The issues involved in the KidVid episode were particularly fraught. Regulating what American children ate challenged mothers’ presumed responsibility for raising children and fathers’ presumed responsibility for supervising the family; regulating what children were exposed on tv did the same.

This specific regulatory intervention touched on broader issues of the expansion of consumer regulation, the changing legal status of women, the rise of dual-income (white middle class and elite) families, and the dangers (real or imagined) of overly permissive parenting. As Moran argues, “It is no coincidence that as the reality of a breadwinning man evaporated, the image maintained a stranglehold on the American political imaginary since a nanny state appeared to undermine masculine independence, self-sufficiency, and individual freedom.” (Pp. 333-34.) In light of changing parental roles, opponents argued, parents (and particularly mothers) should step up their parenting instead of asking the state to step in as a substitute parent. (The voices of mothers who welcomed this help were generally dismissed.) These claims about an overbearing state were loud enough that Congress pulled authority from the FTC so it couldn’t do anything like it again.

Moran concludes by tracing the continued power of “nanny state” language to fight regulation—of health care, of large sodas (as in the recent New York City contretemps), and of vaccination and school lunches. Overall, the essay points to the importance of bringing gender (and race, and class, and sexuality, and ability, and other categories of analysis) into political history generally and into regulatory history in particular. Moran clearly demonstrates how broad debates over the boundaries of public and private were tied up with the nature of (and threats to) traditional gender roles, and how gendered concepts of antistatism can be.

Cite as: Joanna Grisinger, The Federal Trade Commission as National Nanny, JOTWELL (June 6, 2019) (reviewing Rachel Louise Moran, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019)),

Law and Public History: The Legal History of Memory Regulation in Twentieth-Century Europe

The United States is in the midst of a memory war. Every month brings a new political and legal dispute over how our nation should portray its past in its public spaces. At the center of this struggle are the myriad of Confederate war memorials that dot the South.  Southern localities and educational institutions have tried to remove these memorials. State legislatures have fought back, passing “heritage protection laws” that prohibit their removal or alteration. As the horrific events that took place in Charlottesville in 2017 demonstrated, the notion that this conflict over interpreting our nation’s past as a “war” is not always metaphorical. Nor are these fights over Confederate statuary the only battles in this war. From the content of high school textbooks to the identity of college mascots, we are constantly engaged in skirmishes in memory wars, as activists, policy-makers, and politicians deploy law and political advocacy to shape how we understand contentious events in our nation’s past, be they the Civil War, westward expansion, or the decision to drop the atomic bomb.

Nikolay Koposov’s compelling, encyclopedic history of the regulation of historical memory in Europe, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, is a must read for anyone determined to think deeply about these battles over how the past should be remembered. At its center is a fascinating story about the relationship among law, history, and public memory. Memory Laws, Memory Wars recounts the emergence of the regulation of historical memory in Europe. This story starts in Western Europe in the early 1980s when West Germany and France considered legislation criminalizing Holocaust denial. These attempts came to fruition in 1990, when France enacted the Gassyot Act. That law imposed a one year prison term and a 45,000 Euro fine on people who publically disputed the existence or dimensions of the Holocaust – the crimes against humanity that were defined by the Nuremburg Tribunal at the end of World War II.

During the 1990s, this sort of law spread throughout the European Union. This spread was marked by two changes. First, the number of historical events that fell within the ambit of these laws expanded. Historical assessments of the Armenian genocide, fascist repression in Spain, the violent legacy of European colonialism, and Europe’s role in the slave trade were all made subject to state regulation. Second, the administrative mechanisms deployed to regulate memory became more diverse. Though most Western European countries maintained criminal sanctions for Holocaust denial, as the palate of problematic histories expanded, different counties regulated them differently, often in a less punitive manner: curricular requirements in schools, or simple acknowledgements and apologies by culpable nations.

The collapse of the Soviet Union and the eastward expansion of the European Union generated another dramatic change in memory regulation. As Eastern European countries gained autonomy, they brought the evils of Soviet domination into the ambit of memory regulations. Denial of Stalinist atrocities was placed on a par with Holocaust denialism and thus subjected to criminal sanction in Eastern Europe. More significantly, the expansion of memory laws to Eastern Europe saw a frightening shift in their emphasis. The original wave of memory laws that sprang from Western Europe’s encounter with the Holocaust were premised on the idea of repentance: our nation did something horrible and only by preserving the memory of that horror can we ensure that we don’t err again.  Memory regulation in the East, however, focused on the denial of responsibility for evil acts. These laws were designed to “promote nationalist mythology” by shifting “the blame for historical injustices entirely to others” (Pp. 308-309). Thus, Turkey criminalized references to the Armenian Genocide, Russia criminalized criticism of Soviet acts during the Second World War, Poland prohibited assertions that “the Polish nation” was complicit in the Holocaust, and Hungary whitewashed the fascist antecedents of its current regime by criminalizing claims that Hungarian anti-Soviet fascists were anything other than heroic freedom fighters. The confessions of national culpability that defined the initial set of memory laws had been replaced by laws that criminalized “the denial of other nations’ misdeeds” in order to promote reactionary nationalism based on “self-victimization” (P. 305).

This thumbnail description of Koposov’s narrative doesn’t do justice to the complexity of this story and subtlety with which he tells it. He effortlessly takes the reader through the fiendishly complex political history of post-Cold War Eastern Europe, demonstrating how different attempts at nation-building yielded different types of memory regulation. He details the changing sentiments of Western European intellectuals, who initially supported the criminalization of Holocaust denial, but then adopted a considerably more libertarian approach to speech regulation as the utility of memory regulation to illiberal regimes in Eastern Europe became apparent. Finally, he recounts the relationship between the lost possibility of a liberal, democratic post-Soviet Russia and the profoundly sinister turn that memory law and politics took as Vladimir Putin consolidated power in the first decade of the twenty-first century.

Koposov also places his narrative within a compelling analytical framework. He demonstrates how emergent nationalism and the need for state-building in Eastern Europe transformed memory laws into tools for would-be totalitarians. Even more fascinating is his analysis of why memory regulation emerged in the first place. The causes, Koposov demonstrates, are numerous: the emergence of the Holocaust as the central feature of Western European historical consciousness in the 1970s; the end of the Cold War and the flourishing of Eastern European nationalism; the rise of humanistic attitudes towards oppressed groups and the concomitant flourishing of identity politics; the historical profession’s turn towards social history; the emergence of human rights protection as a political and legal goal; the rise of  both neoconservative politics with its emphasis on recapturing a national heroic past, and of neoliberal politics, with its tendency to “annihilate history as a dimension of human experience” by suggesting that societies are shaped solely by universal, timeless, economic “laws” (P. 59). Other historians, such as Peter Novick and Daniel Rodgers, have told pieces of this story, but Koposov weaves all the strands together in the specific context of memory regulation. He shows how admirable political and cultural innovations – the increasing salience of human rights, the desire to tell the histories of subaltern groups, the collapse of Soviet totalitarianism – combined with less praiseworthy features of late twentieth-century politics. This mixture generated the Orwellian regulation of historical memory that currently characterizes the increasingly authoritarian regimes in Eastern Europe and, though Koposov doesn’t say it, the forces of illiberalism here in the United States.

Indeed, it is the obvious parallels with American memory politics that make Memory Laws, Memory Wars such a compelling read.  Koposov’s description of the purposes of Russian memory regulation are no different from the purposes of the heritage protection acts that have sprung up throughout the American south in recent years: creating a heroic, mythic past; suppressing evidence of morally repugnant behavior; perpetuating a narrative in which the perpetrators of crimes against humanity become the victims of outside aggression.  Thus, Memory Laws, Memory Wars should remind us of the stakes at issue in our own memory wars. It suggests that professional historians and others who are committed to a public history that teaches critical thinking rather than myth-making must assert the values of our profession in the public sphere. The politics of memory too often ignore the importance of these values: free inquiry, fidelity to sources, a commitment to using sound historical methods, and truth-seeking in the context of multiple perspectives. Historical memory, Kaposov shows  us, is too important to be left to the politicians.

Cite as: Reuel Schiller, Law and Public History: The Legal History of Memory Regulation in Twentieth-Century Europe, JOTWELL (May 13, 2019) (reviewing Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (2018)),

Living Under Imperial Constitutional Law in Puerto Rico

Sam Erman, Almost Citizens (2018).

Sam Erman ends his new book Almost Citizens by describing Puerto Rico as “the oldest colony in the world” (P. 161). This word, colony, might strike some as an overstatement, for the United States is never supposed to have had colonies. Others might offer up “protectorate” or other alternate terms to capture Puerto Rico’s constitutional ambiguity as something less than that of a state—none of which would be any less descriptively coherent than the island’s technical designation as “an unincorporated territory.” Erman ends his long-awaited monograph with this statement exactly because his careful and compassionate history takes direct aim at the legal ambiguity that has denied Puerto Ricans their full equality as American citizens. Erman’s story of American empire makes plain that conceptual or doctrinal equivocation has never altered the substantive reality that Puerto Ricans still live today with the very real legacy of American colonialism.

There is an underlying tone of moral indignation and loss in Almost Citizens that is all too easy to appreciate today. In the recent aftermath of Hurricane Maria, it is quite evident that many are still comfortable with Puerto Rican’s liminal status in our constitutional system, and happy to engage in a victim-blaming denial of their full inclusion as Americans. Erman’s monograph shows how Puerto Rico’s ambiguous status persisted alongside grand American claims to the promotion of democracy worldwide. It argues further that by sustaining  this dissonance, the Supreme Court lessened constitutional citizenship for all Americans. Erman repeatedly shows how what he calls the “Reconstruction Constitution” of the post-civil War was “sacrificed…on the altar of empire” (P. 21). To decouple the presumption that territory and citizenship were co-terminus, the Court necessarily hollowed out the American franchise as it was extended to some at home and denied to others abroad.

Still, Almost Citizens is far from a rhetorical polemic. Erman melds meticulous archival research with the acuity of a serious constitutional lawyer in tracing his constitutional history of empire. As with many of the new legal historians of empire, Erman shows how grand narratives of racial supremacy and geopolitical ambition were enabled by the pragmatic legal reasoning of both Supreme Court Justices and the lawyers who brought claims regarding citizenship before them. By repeatedly elevating necessity over principle, over time the constitutional debate over Puerto Rico purely served the extra-legal purposes of assuaging America’s racial anxieties.

Just as the Reconstruction Amendments challenged the racialized and gendered nature of 18th century American citizenship, the broad post-Civil War commitment to social equality was at odds with new attempts to claim that territorial expansion did not bring with it full American citizenship. Erman reveals how even the infamous Dred Scott decision was part of an existing doctrinal tradition that established that American territorial acquisition would always imply future statehood.

A robust transnational history, Erman’s narratives are full of unappreciated interconnections between international and domestic elements in the making of modern American constitutional law. Even before the events of the Spanish American War that presented these questions of territory and citizenship, Erman shows how resistance to Spanish colonialism preconfigured how Puerto Ricans would engage with American conquest. The import of this experience grounded the many diverse and often conflicting agendas that Puerto Rican political leaders would pursue in the aftermath of 1898. Furthermore, Erman also shows how these agendas engaged with stateside politics where domestic concerns and ambitions drove positions on American empire.

One of the intriguing aspects of Almost Citizens is how diverse Puerto Rican views were on American racial politics and their role therein. Puerto Rican often leaders drew contrasts between themselves and other minoritized groups, in an effort to achieve inclusion within American “whiteness.” They sacrificed potential solidarity against racialized constitutional exclusion. Recurrently, the Philippines, along with Native American and African-Americans, emerged as cultural foils for Puerto Ricans. Thus in the cases dealing directly with the constitutional status of the territories acquired after the Spanish American War, commonly called the Insular Cases, there was a stark division between the strategies of Puerto Rican litigants and those from other conquered territories.

A central character in Erman’s narrative, and the one directly and intimately involved in the constitutional litigation giving rise to the Insular Cases, was Federico Degetauy. Degetauy embraced a liberal cosmopolitanism that he believed the American judiciary shared, and he thus built his litigation strategy around emphasizing his own patrician character as an exemplification of Puerto Rican cultural proximity. He repeatedly held himself out as the prototype of a genteel, educated, and civilized Puerto Rican, and took his access to power as tacit admission that others recognized that all Puerto Ricans had such potential. While this strategy did eke out some specific gains for Puerto Ricans, Erman describes how over time these smaller tactical gains helped build and gird the very constitutional basis of a more general denial of constitutional equality.

Even Erman’s other main actors, prominently Domingo Collazo and Santiago Iglesias, engaged in a racialized discourse which most often targeted the Philippines as undeserving of American inclusion. While Collazo represented the traditional land-owning elites of Puerto Rico and Iglesias started his career as a radical labor organizer, both men presumed that America would never accept Puerto Ricans as “white.” Ironically, in advancing claims about relative racial fitness for citizenship, these political rivals affirmed the very process through which denying Puerto Rico’s equal constitutional status contributed to “Latin” becoming non-white in the American racial imagination. Rationalizing a lack of full citizenship became intertwined with unease about Puerto Ricans’ belonging to Anglo-American, then Protestant, culture which had judged only itself capable of proper American self-governance.

According to Erman’s constitutional history, this strategy of cultural proximity and differentiation was never able to achieve the type of principled constitutional decision declaring all Puerto Ricans full and equal citizens which Degetauy, in particular, sought from the Supreme Court. The Supreme Court consistently engaged in a genre of what today is often called “constitutional avoidance” by consistently using narrow rulings that granted small concessions in each of the Insular Cases while leaving the larger question of Puerto Rico’s formal legal status unresolved. A process which eventually enshrined Puerto Rico’s ambiguous status through the open embrace of the doctrine of “territorial nonincorporation” in the 1922 decision Balzac v. Porto RicoErman reveals how this pattern of avoidance empowered the Bureau of Insular Affairs within the War Department to create what is best described as an administrative law of empire. In doing so, he shows how leading lawyers, and legal scholars, were often the strongest proponent of formal American colonialism at the turn of the 20th century. As such, “productive legal ambiguity remained the norm” (P. 144) whereby Puerto Ricans could be conscripted for war and still be denied full citizenship.

In tracing the careers of Degetauy, Collazo and Iglesias, Erman also demonstrates how tactical pragmatism in and outside the courtroom can bind later claims for justice. Iglesias is revealed to have had a close relationship to Samuel Gompers and placed his faith in the AFL as the benefactor of Puerto Rican workers. Yet Gompers’s interest in Puerto Rico was born of a cynical pragmatism akin to that of the constitutional doctrines of empire; here we see another chapter of the AFL’s self-inflicted wound of allowing racial politics to undermine true working-class solidarity. Similarly, Collazo threw his lot in with Southern Democrats whose interest in critiques of empire grew more from their own domestic concerns with racial supremacy and imagined waves of colonial immigrants than from any principled concern with constitutional equality—again leading to Collazo’s disappointment when Woodrow Wilson’s administration came to power.

Within this web of dueling ambitions and strategic misfires, Erman’s history displays how selective the voices can be that are heard in constitutional forums—even for those formally involved. His chapter on the 1904 case Gonzales v. Williams foregrounds the experience of Isabel Gonzalez, a Puerto Rican woman who was denied free entry into the United States at Ellis Island. Far from Degetauy’s image of patrician Latin gentility, Gonzalez was subject to a myriad of racial, gender and class stereotyping and discriminations which indirectly revealed the limits of Degetauy’s constitutional strategy of inclusion through exceptional personal character. While Gonzalez won her case, and the right of Puerto Ricans to freely enter the United States, she spent much of her life struggling with the public narrative of personal honor developed to argue her case, while the failed political and legal strategies of Degetauy, Collazo and even Iglesias left them with relative lives of ease. Gonzalez’s story offers the most direct insight into how far removed the daily struggles of Puerto Ricans often were from these constitutional battles.

Almost Citizens powerfully reminds us that the imperial law of the Insular Cases is a central part of our constitutional history, but also that these imperial doctrines are still binding law today. We still have imperial law. And the price of allowing this stain on our constitutional history to persist and normalize a less robust view of citizenship for all Americans by turning away from a broad commitment to equality in favor of one driven by selective inclusion. Erman demonstrates how there is no truly distinct constitutional history of empire, but one American constitutional history where “the value of citizenship was instrumental, and flexible, to be forged as opportunity allowed” (Pp. 139-140). Even by 1957, when the Supreme Court finally granted that American constitutional rights were not lost outside incorporated American territory, it did so by declining to overturn the Insular Cases or upend the governance of the now wide range of unincorporated territories the United States claimed across the Atlantic and Pacific Oceans. Erman’s disapproval of this process of avoidance never leads him to pure cynicism, but gives Almost Citizens a palpable sense of duty forsaken.

Erman’s rigor and empathy both explains how many sectors of American society continue to express indifference to the suffering of Puerto Ricans and how this indifference has been repeatedly enabled as the direct consequence of an “empire that dared not speak its name” (P. 97). It does so by achieving the promise of transnational history, showing the historical intimacy of what might have been segregated into domestic and foreign. As battles over the meaning of American citizenship and belonging now rage in contemporary legal and political debate, Almost Citizens is a reminder that an empire cannot be a republic abroad without great cost at home.

Cite as: Jedidiah Kroncke, Living Under Imperial Constitutional Law in Puerto Rico, JOTWELL (February 27, 2019) (reviewing Sam Erman, Almost Citizens (2018)),

The Boundary Between Law and Lawlessness

The law plays a sometimes-contradictory role in the stories of female antiabortion activists described in Karissa Haugeberg’s richly researched Women Against Abortion. Haugeberg meticulously studies how gender informs the work of many of the women who have dominated the antiabortion movement in recent decades. However, Women Against Abortion also captures the complex role played by the law in a social movement only ever partly convinced that legal strategies could deliver meaningful social change. Haugeberg’s characters struggle to define a law-free space in which to fight against abortion, and some of the most skeptical find themselves drawn into policy-making. Yet legal solutions deliver far less than Haugeberg’s subjects demand. Her compelling and original study suggests that even if legal strategies inevitably pull in some pro-life activists, frustration at the pace of legal change can have a profound radicalizing effect on others.

The fascinating women who populate the world of Women Against Abortion viewed the role of legal reform with particular skepticism. These activists struggled at times to justify their careers in the pro-life movement, especially since antiabortion groups often insisted that women should prioritize motherhood. To reconcile their work, family commitments, and ideology, the women of Women Against Abortion sought to carve out roles in the movement that reflected their unique experiences as women and as mothers. Rather than prioritizing litigation or legislation, the female activists Haugeberg studies worked in crisis pregnancy centers or participated in clinic blockades. With varying degrees of success, these female activists justified their work by carving out a uniquely female form of pro-life activism, one that resembled motherhood. But as Haugeberg shows, these grassroots activists often found themselves drawn to legal change.

The characters that populate Haugeberg’s story may not be household names, but their stories illuminate the complex identities of pro-life women. Marjory Mecklenberg, the first of Haugeberg’s subjects, turned away from legal reform after unsuccessfully working to convince her colleagues to prioritize the needs of pregnant women as well as fetal rights. Working in an organization of her own, Mecklenberg prioritized the formation of crisis pregnancy centers (CPCs). While appealing to women who opposed the fetus-focused work of larger organizations, CPC work also attracted women struggling to justify work outside the home. By framing CPCs as an extension of the family, Mecklenberg and her colleagues hoped to create a space untouched by the law. However, as Women Against Abortion shows, Mecklenberg herself soon rationalized a focus on policy work. As part of the Reagan Administration, she helped to direct federal money away from established programs and toward abstinence-only initiatives.

Over time, CPCs became further and further entangled with the quest for legal reform. Law-oriented organizations pledged to elect presidents who would reshape the Supreme Court and uphold increasingly strict abortion restrictions.  But CPC leaders fought for the election of the same conservative politicians. Republican lawmakers either earmarked funds for abstinence-only education under existing laws or created new programs to fund CPCs. While claiming to be largely above the legal fray, the law helped to fuel the expansion of CPCs.

Women Against Abortion shows that legal organizations also had a more complex relationship to antiabortion lawbreaking than many studies have captured. Some of the women Haugeberg studies immersed themselves in illegal!even violent activity. Shelley Shannon, the most chilling character in Women Against Abortion, tried to murder abortion provider Dr. George Tiller years before another extremist succeeded. In telling the stories of activists like Shannon, Haugeberg shows that law-oriented organizations often facilitated the work of those who illegally blockaded clinics or plotted violent attacks. Individual activists moved between legal work and law-breaking. Some swore off criminal activity as they aged or had families. Others who had prioritized legislation and litigation broke the law after giving up on more conventional reform strategies. And events hosted by law-oriented organizations provided space for those who later pursued covert operations.

Indeed, activists’ very commitment to a right to life had a radicalizing effect. Haugeberg describes the frustration of women like Shannon and Joan Andrews with the slow progress of legislation and litigation designed to end abortion. The idea of a constitutional and even God-given right to life resonated deeply with grassroots women in the pro-life movement, but after decades of struggle, women like Andrews concluded that the law would never truly protect fetal rights. Women’s very passion about a constitutional right to life led them believe that the only way to make progress was “a guerilla war against those who would kill.” The promise of constitutional change mobilized a broad range of women invested in protecting fetal life. Yet the chasm between the antiabortion movement’s legal ideals and pragmatic solutions had a radicalizing effect on many activists. Haugeberg provocatively argues that the law-oriented wing of the movement helped to shape and even nourish antiabortion violence.

Historians of social movements often pit lawyers and legislators against activists invested in direct action. Haugeberg’s impressive book reminds us that the story is never so simple. Legal reformers and radicals may resemble one another far more than we would have believed.

Cite as: Mary Ziegler, The Boundary Between Law and Lawlessness, JOTWELL (February 6, 2019) (reviewing Karissa Haugeberg, Women Against Abortion: Inside the Largest Moral Reform Movement of the Twentieth Century (2017)),

The Marriage Crisis and its Many Backlashes in Twentieth-Century America

The rhetoric of a “marriage crisis” is a familiar one. William Kuby’s excellent new book gives us an incisive history of the way that a sense of crisis was invoked in debates about a variety of forms of marital misconduct and the backlash they inspired in the progressive era. Kuby expertly marches us through the way that late nineteenth and early twentieth-century American judges, state legislators, polemicists, and reformers of all stripes relied on ideas of common sense public policy and moral decency to police marriage in each of the five instances of marital misconduct he examines.

The first form of marital misconduct Kuby describes is the use of marital advertisements and state and church marriage bureaus that sought to match bachelors with single women. The latter were used in regions of the West to encourage the formation of stable family units (e.g. in Oklahoma to find wives for lonely farmers). The former, viewed as mercenary and inappropriately commercialized, were generally frowned upon by journalists and academics, such as sociologist and criminologist Arthur MacDonald who labelled the women who responded to them “abnormal.” Even though these advertisements often stated “objective marriage” and “no triflers” (see image on P. 26), they were strongly associated with indecent (and risky) sexual and moral behavior. Innovations in transportation and the wider circulation of newspapers created “new possibilities in courtship,” Kurby writes, “finding partners beyond one’s restricted geographical location – or outside one’s narrow class or racial designations.” (P. 67.) These “expanding geographic and demographic boundaries of mate selection” display what Kuby calls “a crucial feature of modern romance.” (P. 67.)

The second type of controversial conjugal behavior Kuby explores is hasty remarriage after divorce or what was called by its critics “progressive polygamy,” including the attempt by couples to cross state lines in order to circumvent restrictions surrounding remarriage in their home state (waiting times or prohibitions on remarriage where there was adultery to an adulterous partner). The validity of such marriages created particular problems for the legitimacy of children. Kuby explains how the threat of illegitimacy ultimately undermined a policy of invalidating those marriages in Illinois, which for two decades required a one year post-divorce waiting time. “[C]ouples defied it time and again, raising repeated legal and administrative headaches over the fate of illegitimate children. Ultimately, constant disobedience of the law rendered it unsustainable.” (P. 96.)

The third category of noncompliant couples were those seeking to evade state eugenic laws by marrying out-of-state. Kuby explains the challenges that were involved when a legislature incorporated physician examination into a state’s marriage laws in order to weed out those seen to be unfit for married life and, specifically, reproduction (e.g. men with syphilis or men and women categorized as “feebleminded”). In Wisconsin, the $3 physician charge did not cover a proper examination anyway, and even doctors came to resist co-optation into this form of marriage policing. Kuby concludes that the ways that “concerned lawmakers overextended themselves by seeking overly aggressive, often implausible solutions [such as] stricter premarital health examinations and longer waiting periods, however ill-fated, demonstrate the intensity of the concerns that dysgenic unions and evasive elopements generated.” (P. 141.) Like hasty remarriage, marriage by those who would not submit themselves to medical examination demonstrate “the passions elopement sparked.” (P. 141.)

Fourthly, Kuby examines the fierce animosity sparked by “trial marriage,” an idea proposed by those who wanted to address the desire people, especially the young and inexperienced, had to try out marriage to a particular partner before having children. The childless conditional marriage was meant to ultimately improve the long-term quality and duration of marriages by releasing those who entered into ill-matched unions to form if not divorce-proof but more divorce-immune marriages with someone else. However, conservative critics were unable to embrace any variant of trial marriage given their strong “aversion to [any form of] divorce and a sense of panic over changing gender conventions and sexual morals.” (P. 182.)

Black-white intermarriage is the fifth form of matrimonial misconduct Kuby explores. Here he examines situations in which the disapproving family or friends of an interracial couple could successfully push for annulment of the marriage on the grounds of fraud and deceit relating to the race of the black spouse. In Northern states which lacked anti-miscegenation laws, interracial marriage “was legally permissible but culturally intolerable in most circles.” (P. 199.) Here are some of the most poignant stories in the book, including one of a white woman in Michigan in 1929, who after finding out her husband of five years was black, won a divorce from him on the grounds of “extreme cruelty” and surrendered all parental claims to their two children, agreeing with the judge that a white woman could not parent a nonwhite child. (P. 202.) Parents turned on adult children in these cases, often at great cost to their child’s reputation and standing in the world. (P. 207.) Family interference in interracial unions went so far as to include charges of mental illness premised on the idea that “only psychologically unsound white individuals wed across the color line.” (P. 210.) Despite the controversial status of interracial marriage in black communities, “accusations of insanity did not, however, fall on black partners in interracial unions.” (P. 213.)

Kuby’s book strongly demonstrates the sheer tenacity progressive-era Americans showed in their insistence on marriage and the great lengths to which they would go in order to marry and remarry the person of their choice. A recurring theme is the way that divergent rules in different states were used by couples to effectuate their strong desire to be wed. The behavior was often strategic on the part of those desiring the marriage and those seeking to provide the service, as marriage mills would form in one state for out-of-state clientele, be shut down, and pop up again in another state eager for the business. Time and again we see out-of-state couples seeking to evade rules on wait times before obtaining a marriage license or having to post banns at home where friends and family might object and intervene, circumventing eugenic clearance procedures in their home state, or avoiding rules relating to minimum periods between divorce and remarriage. In my favorite line of the book, Kuby quotes a Pennsylvania minister who stated about a shotgun wedding law: “It’s a great law … It won’t stop elopements though. Love always finds a way. It has lots of loopholes, too.” (P. 145.)

That very real sense of (successful) persistence comes through, as against conservative legal forces which seemed to be more successful at moving a problem around than really solving it. The law often had only limited effect. Initiatives to organize uniform marriage law were largely unsuccessful. A rising divorce rate seemed to be impervious to anything anyone was doing about elopements and remarriage wait times. People were coming to view marriage as impermanent and when disappointed about one marriage as a vehicle for individual physical and psychological fulfillment, they were eager to contract another (too much “free love” as some of the judges put it). The marriage education movement, the topic of the book’s final chapter, arose out of the realization that the law had a limited role to play in the face of seismic shifts in gender relations and attitudes towards sexuality and life-long monogamy. Yet still people desired the legitimacy marriage provided and were willing to go to great lengths to obtain it.

The highlight of the book is probably the Epilogue in which Kuby explains how marriage has been systematically privileged in American law and society as the ideal form of social organization, ironically reinforced by those engaged in different types of conjugal misconduct as they sought legitimacy for their unions. Kuby argues that this privileging has stigmatized single life and other forms of human connection. Moreover, all the predictions about the demise of matrimony by socially conservative critics responding to each of the forms of “misconduct” involved in hasty/evasive marriage actually allowed marriage’s “supreme reign to persist.” (P. 288.) Kuby writes: “Again and again, acts of conjugal misconduct have sparked perceptions of a national marriage crisis, yielding a mixture of backlash and accommodation to shifting marital trends. But ultimately the biggest victor in these crises is the institution of marriage itself.” (P. 287.) This is an important insight, very much on display in the late twentieth-century same-sex marriage debate, which Kuby deftly analyzes. The ultimate aim? The “historical knowledge of backlash in the face of perceived marriage crisis should give us all pause in our assessments of what constitutes proper marital and familial arrangements.” (P. 287.)

Cite as: Angela Fernandez, The Marriage Crisis and its Many Backlashes in Twentieth-Century America, JOTWELL (January 31, 2019) (reviewing William Kuby, Conjugal Misconduct Defying Marriage Law in the Twentieth-Century United States (2018)),

Taking Away Citizenship: Lessons from the British Advisory Committee

Since 2006, the United Kingdom has denaturalized more than 350 of its citizens. This represents an increase of almost four-hundred percent from the prior five decades. The United Kingdom is an outlier in this respect. Other countries have instituted denaturalization proceedings in recent years, but no western nation has done so at the rate of the British Home Office.1 How do we explain this precipitous increase in revocations of citizenship in the past decade? In their remarkable recent article, Patrick Weil and Nicholas Handler argue that a pivotal–and much overlooked–change was Parliament’s passage of a law in 2002 that abolished an advisory committee, established in 1918, that had effectively curtailed abuses of power by the government. The advisory committee was composed of persons with judicial experience, including members of the House of Lords, but it was not empowered as a court. Because of this committee, Britain saw a decrease in citizenship revocations between World Wars I and II, unlike in other countries in the west where they increased precipitously in this period. After World War II, the committee was an effective bulwark against Cold War-era attacks on the foreign-born.

What is most remarkable is that this highly influential committee was never formally empowered with the final say. The Home Secretary, who oversees the Home Office, could always overrule the committee’s decisions. How could an advisory committee with little formal legal power nevertheless have such a dramatic impact? The answer, according to the authors, lies in the way that the committee used a combination of rule of law norms, public shaming, and courageous speech to push back against politically-motivated attacks on the foreign-born. Weil and Handler use close and thorough readings of a trove of archival material to explain how the committee “effectively leveraged its ‘advisory’ role into one of de facto appellate review” (P. 354). Once the committee was disbanded in 2002, this important review power more or less disappeared.2 Like many things in life, we may only be aware of how important this kind of review is now that it is gone.

The British Parliament first granted the Home Office the denaturalization power in 1914, in the British Nationality and Status of Aliens Act. (This was twelve years after the United States created the power by statute in the Naturalization Act of 1906.3) In 1918, through a legislative compromise, liberal members of parliament managed to insert into an amended version of the Act a check on the denaturalization power in the form of an advisory committee.  On paper, the three-person committee had very little power. It was to be chaired by a person who had held “high judicial office” in the past, and it had the power to subpoena witnesses and compel the production of documents, but it was not required to hold hearings or issue public opinions. In its first incarnation, the committee was composed of a judge of the King’s Bench, who served as chair, a member of the House of Lords, and a county court judge. The Home Secretary was not required to solicit the committee’s opinion unless the denaturalization petition was based on one of three of the seven possible grounds for denaturalization. So, for example, the Secretary was obligated to refer cases to the committee if the citizen was accused of trading with the enemy during wartime but not if the citizen was accused of fraud or disloyalty. Even in those cases where the Secretary was required to refer a case, he was not required to follow the committee’s decision. The committee also served a more general advisory role, since the Secretary could solicit the committee’s opinion on a case even if he was not required to do so.

It did not take long for the committee to establish itself as an important bulwark against potential abuses of power by politicians. As the authors note, the committee “began behaving like a court” shortly after its formation despite the fact that it was not a court (P. 311). An important early case was that of Philip Laszlo de Lombos, a Hungarian-born painter and husband of Lucy Guinness, a Guinness brewing company heir. Laszlo had been accused in press accounts of spying for Germany and was interned beginning in 1916. The Home Office began denaturalization proceedings in 1919, claiming that Laszlo had been disloyal to the Crown. Laszlo’s attorney wisely used a provision in the 1918 Act that allowed respondents to request a hearing before the advisory committee. The attorney also requested that the hearing be public. What resulted was an embarrassment for home office personnel, who had clearly relied on shoddy evidence in the attempt to denaturalize Laszlo. The committee chair issued a public opinion that chastised the Home Office for its lack of evidence and reasserted the importance of procedural protections for those facing revocation of citizenship. Even though the Secretary was not required to follow the committee’s decision, he did so in this case, withdrawing the charges against Laszlo.

The committee sometimes agreed with the Home Office, issuing opinions that approved of denaturalization in some cases. Weil and Handler show how these approvals contributed to the committee’s power as well. Endorsement proved as effective as humiliation. As the authors note, “[j]ust as the committee was capable of inflicting political embarrassment in cases in which it disagreed . . . , it was also capable of providing political validation in cases in which it agreed” (P. 319). Over time, the Home Office internalized the values and norms of the committee, trying to bring cases that would win committee approval rather than disapprobation.

In addition to influencing outcomes for individuals, the committee also shaped interpretations of key words and phrases in the Nationality Act, including the terms “fraud,” “disloyalty,” and “public good.” This power was especially important in the Cold War era, when the Home Secretary was under pressure to use the denaturalization power aggressively against those with perceived subversive ideologies. The committee effectively pushed back against broad or retroactive interpretations of disloyalty. Through a series of opinions, the committee made it clear that denaturalization had to be based on something more than indirect acts or statements by the citizen; instead, the Home Office had to show that the accused had expressed actual malice toward the Crown, proven through harmful words or acts.

How did the committee members themselves escape political pressures of the day and age? After all, simply being on the judiciary does not insulate one from ideological pressure or wartime paranoia. Weil and Handler do not address this question directly; in fact, there is little here about the biographies of committee members themselves or about the process or procedure for appointing them. But their general answer seems to be one of the triumph of rule of law norms over political expediency. Members were generally committed to judicial principles of procedural regularity, due process, and independent review. They put these principles into effect even though not required to do so by the 1918 Act. As a result, the Home Office acted in accordance with these norms, and in so doing brought fewer denaturalization cases. Those cases that the office did bring were backed by stronger evidence and were better aligned with the substantive grounds in the statute.

The history recounted here is a striking example of the power of rule of law norms in the political process, and hence this article will be important for scholars of not only of legal history but also of politics and administration. It is also, of course, highly relevant to contemporary studies of citizenship and immigration law. It is remarkable that such a “subtle shift in institutional design,” as the authors aptly call it, could have such a lasting impact on the lives of so many individuals (P. 353). Those of us who are concerned about the rights of the foreign-born and about abuses of power by politicians would do well to think about the lessons of this particular history.

  1. The Trump administration may be trying to catch up, as discussed in this NPR interview with historian Mae Ngai.
  2. As the authors note, the 2002 bill did provide for judicial review but through a much more restrictive and less accessible system (Pp. 351-52).
  3. For an excellent treatment of denaturalization in the United States, see Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic (2013).
Cite as: Allison Brownell Tirres, Taking Away Citizenship: Lessons from the British Advisory Committee, JOTWELL (January 15, 2019) (reviewing Patrick Weil and Nicholas Handler, Revocation of Citizenship and the Rule of Law: How Judicial Review Defeated Britain’s First Denaturalization Regime, 36 Law & Hist. Rev. 295 (2018)),