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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)),

Restaurants and Regulation

Gabriel J. Chin & John Ormonde, The War Against Chinese Restaurants, 67 Duke L.J. 681-741 (2018).

In the The War Against Chinese Restaurants, Gabriel J. Chin and John Ormonde describe how state and local actors in the late nineteenth and early twentieth centuries used legal tools to try to drive Chinese restaurants out of business. Chin and Ormonde describe a wide array of legislative, regulatory, and prosecutorial activity targeting Chinese-owned restaurants—some of it successful, some not—and argue that these local (but often nationally coordinated) efforts demonstrate white Americans’ intertwined concerns about work, immigration, urbanization, gender, and ethnicity in this era. And these concerns, once moved to the national stage, motivated Congress in 1917 and 1924 to ban almost all immigration from Asia.

Why did Chinese restaurants come in for particular scrutiny? Restaurants were among the very few business opportunities available to Chinese workers in the United States in the late nineteenth century; white lawmakers and union officials relied on restrictive licensing laws and pervasive anti-Chinese prejudice to bar Chinese workers from most jobs. Small businesses like restaurants and laundries, however, offered a path to economic independence. The history of racially discriminatory regulation of laundries is familiar to readers of Yick Wo v. Hopkins; here Chin and Ormonde describe how restaurants were similarly targeted. Chinese restaurants succeeded by offering a popular product and paying their workers less than the market standard. White restaurant owners opposed such restaurants’ success; so too did white male workers and their unions, who resisted competition from underpaid workers and resented Chinese workers’ success even in this limited market segment. Calls for boycotts failed, so, as the authors note, “[s]ince there was no law reserving the food business to whites, the unions sought to create one.” (P. 698.) White men looked to the state to drive these restaurants out of business, demanding police raids, employment restrictions, licensing laws, and zoning rules.

Chin and Ormonde draw on a rich set of primary sources—including local newspapers, industry publications, union proceedings, and legislative records—to describe a loosely coordinated nationwide effort to use whatever legal tools were at hand to drive Chinese restaurants out of business. As the authors demonstrate, white men and their unions argued that such laws were needed not to protect male workers but rather to protect white women from the allegedly degenerate and “morally hazardous” influences of Chinese restaurants. Restaurants, they argued, posed particular dangers for white women, given the (rumored) availability of interracial interactions, vice, and opium; the presence of curtained private booths only underlined the risks to white women as customers and as employees. The highly publicized murder in 1909 of Elsie Sigel, a white woman found dead in a Chinese waiter’s apartment after what appeared to be an affair gone wrong, exemplified these fears.

Motivated by these arguments, many cities and states tried to ban white women from working in and/or eating in Chinese restaurants. As Chin and Ormonde make clear, white workers’ and their unions’ efforts to restrict Chinese economic activity through legislation were often stymied by political weakness or constitutional limitations. Unions were not always sufficiently powerful to push these proposals through, and even when they were, courts often struck down blatantly discriminatory laws as violations of the due process and equal protection clauses of the Fourteenth Amendment. These decisions (framed around race, not gender, discrimination) build on and complicate the conventional story about late nineteenth-century judges’ concern for property rights and hostility to certain forms of state-sponsored racial discrimination that trampled on these property rights.

But legislative efforts were only one part of this story. Responding to workers’ demands, police used their discretionary emergency authority to raid restaurants, establish curfews, and, on occasion, simply order white women to leave Chinatowns. Lawmakers also used their administrative discretion to make it harder for Chinese restaurants to operate. Although proposals to limit restaurant licenses to citizens often failed, more broadly worded statutes that gave bureaucrats discretionary authority over licenses had the desired result. Bureaucrats denied licenses for Chinese restaurants; courts then generally deferred to these administrative decisions.

The inclusion of both unsuccessful and successful legal efforts allows the authors to tell a story focused less on legal change than on the pervasive political hostility these efforts represented and magnified. Chinese restaurants remained a popular presence in American life, but this regulatory “war” “helped propagate the idea that Chinese immigrants were morally and economically dangerous, and contributed to the passage of the Immigration Acts of 1917 and 1924, which almost completely eliminated Asian immigration to the United States.” (P. 684.) These federal laws took a much broader and more uniform approach to protecting white men’s dominance in the workplace; as the authors argue, “the unions ha[d] their cake and ate it too, as they restricted competition with Asian workers through federal immigration laws, without having to forego the opportunity to eat in Chinese restaurants.” (P. 734.)

The article makes a compelling case for studying unsuccessful legal reform alongside successful efforts and for including police enforcement practices (not just laws on the books) in this story. Taken together, Chin and Ormonde demonstrate just how much effort unions dedicated to driving Chinese workers out of one of the few areas where they had found success. The authors argue that this research fills in a gap in scholarship on Chinese restaurants specifically and Asian American history generally; although the article is less grounded in other areas of scholarship, it is also a useful contribution to existing research on labor history, gender history, immigration history, and the Progressive era more generally.1

The authors conclude by comparing these efforts to more recent state and local ones targeting immigration. “The failure and unconstitutionality of local measures did not make political impulses disappear; rather, it channeled them to the branch and level of government with the power to act, just as the drumbeat of the economic and moral danger posed by Chinese restaurants and other Asian activities—and the inability to regulate them at the state level—contributed to a climate in which Asian exclusion dramatically expanded in 1917 and 1924.” (P. 735.) And by drawing this link between local and federal action, the article demonstrates the importance of studying reform efforts at different levels of government and across multiple jurisdictions. Legal historians already do this, of course; studies of railroad and antitrust regulation in the late nineteenth century, for example, demonstrate how (and why) reform pressures began in the states and then moved to the federal level. Chin and Ormonde, however, tell a broader story of anti-Chinese lawmaking that ties local restaurant regulation to federal immigration law—to fascinating effect.

  1. The article would have benefited from more engagement with these literatures; this narrative fits somewhat awkwardly into the traditional story of Progressive-era protectionist labor legislation in ways that could use more attention.
Cite as: Joanna Grisinger, Restaurants and Regulation, JOTWELL (November 7, 2018) (reviewing Gabriel J. Chin & John Ormonde, The War Against Chinese Restaurants, 67 Duke L.J. 681-741 (2018)),

Between Mexico and the United States

When it comes to immigration to the United States in the twentieth century, there is little question that Mexico has been by far the most important sending country. Colonial conquest and domination, geographic contiguity, cultural links, wealth differentials, state policies on both sides of the border, and the pressing needs of Americans and Mexicans have made it so. We have yet to come to terms with the full significance of the impact of twentieth-century Mexican immigration on the United States’ demographics, politics, economy, society, and culture. What we do know, however, is that U.S. immigration law took form in the twentieth century in significant part to encourage, restrict, manage, and respond to migration from Mexico. Since the 1920s, border control has largely concentrated on the United States’ southern border. Mexicans have peopled all of the myriad legal categories into which twentieth-century immigrants have been slotted: non-immigrants, temporary workers, legal immigrants, and “illegal” immigrants. The debate over undocumented migrants, it scarcely bears mention, rages in Trump’s America, and the xenophobes’ target is Mexico.

Ana Raquel Minian’s important book, Undocumented Lives, provides crucial context to the figure of the Mexican undocumented migrant. Although her story begins earlier and continues after, Minian’s focus is on the period from the mid-1960s, when the bracero program ended, to the mid-1980s, when the U.S. government extended an “amnesty” to undocumented migrants but also closed the U.S.-Mexico border, making what had hitherto been a back-and-forth circular migration of the undocumented between the two countries much more difficult. Undocumented Lives covers a vast range: state policies in Mexico and the United States; explorations of the everyday lives of undocumented migrants and their communities in both countries; and the strategies undocumented migrants employed to win rights and protections for themselves in the United States. One of its goals is to represent undocumented Mexican migrants to the United States as “in between peoples” of a sort, fully incorporated in neither country, suspended in a state of rejection by both, but nevertheless forging a precarious identity. In what follows, I discuss three important contributions of the book and offer some observations about each.

First, as part of its attempt to represent Mexican undocumented migrants as “in between peoples,” Undocumented Lives shows how state policies and practices on both sides of the border have produced the Mexican undocumented migrant. Minian argues that, even as the United States sought to manage Mexican migration by proliferating legal and illegal statuses under immigration law, the Mexican government altered its policies towards its own migrating citizens. In the early twentieth century, the Mexican state sought to deter out-migration, seeing its population as a resource. When it did support out-migration to the United States, especially as part of the bracero program, it was primarily because of the benefits that returning migrants would supposedly confer on Mexico. As Mexico’s mounting economic problems made it clear that there were few opportunities for returning migrants, however, the government altered its position. By the 1970s, Mexican officials had come to understand (and rely on) out-migration to be a critical safety valve for the country’s socio-economic difficulties.

This is an important insight. However, while Minian’s characterization of Mexican undocumented migrants as rejected by both countries is compelling, it might also have limits. How might we situate her characterization in relation to the ways in which other sending countries imagine and instrumentalize their emigrating populations, whether as a “brain drain” or as heroes earning money in hard currency or as the release of a safety valve or as social problems to be removed or as a combination of all of the above?

Mexico’s attitude towards its emigrating citizens, one suspects, might not be that unique. Neither does Mexico’s failure to incorporate its poorest citizens into polity, society and economy—something Minian emphasizes to support her argument–distinguish it from many countries. Most poor countries, to say nothing of many richer ones like the United States, fail in similar ways. Is it appropriate to represent a failure to extend the social safety net as tantamount to a rejection of citizens? More to the point, it is not so clear that Mexico did reject its emigrating citizens. Unlike a country like Cuba that makes it difficult for its outgoing nationals to return, there is no question that Mexico was always willing to abide by its international law commitments and take its citizens back. Indeed, the Mexican government was often quite vocal in arguing for the protection of its nationals in the United States. It is also surely a detraction from Minian’s reading that the Mexican undocumented migrants she discusses never ceased to claim Mexico in all kinds of ways, which suggests that they did not necessarily see a lack of opportunity in Mexico as equivalent to a rejection by Mexico.

SecondUndocumented Lives offers important insights into the lives of Mexican undocumented migrants vis-à-vis the communities they left behind in Mexico and those they formed in the United States. Some of Minian’s insights are familiar from other studies of undocumented (and other) migrants in the United States: their relationship to public spaces, their sense of being trapped, their experiences of exploitation and fear, their participation in fraternal organizations contributing to the renovation of their communities “back home.”

Minian’s most fascinating insights (at least for this reader) are those relating to the interplay between U.S. immigration law and border control, on the one hand, and the shape of migrant communities in Mexico and the United States, on the other. Minian argues that, so long as circular migration between the United States and Mexico was relatively easy, undocumented migration was overwhelmingly male and straight. Married men were under special pressure to leave because they had dependents to support. Minian’s side argument that queer Mexican men were less likely to migrate—offered up as a correction of sorts to the conventional narrative of queer migration to the anonymity of non-familiar and urban settings—is intriguing but raises too many questions to be taken as a major sociological observation (relatively small sample size, the difficulty of knowing how many homosexual men were likely to get married, attitudes towards homosexuality in Mexico at the time, etc.).

But Minian’s main point is that the migration of married men bore consequences for the wives they left behind: such women were compelled to restrict their outdoor activities for fear of being tainted with the brush of marital infidelity. The absence of Mexican men thus reinforced patriarchal control of women by their absent husbands and other males in the community.  Gradually, however, the situation changed. The end of the bracero program in 1964, combined with the institution of country quotas for Mexico, increased the number of Mexicans entering the United States “illegally.” Even so, while border control remained light, circulation across borders remained a viable option for men. But the closing of the border in the mid-1980s as a consequence of heightened immigration control changed the nature of Mexican migration and hence the structure of communities on both sides of the border. As the circulation of male migrants became harder, the incentive for women and children to migrate grew. Thus, Minian argues, it was the Reagan-era “amnesty” for undocumented migrants combined with tightening of border controls that led to the wholesale transplantation of Mexican families to the United States. Minian’s sophisticated sense of the dialectic between restriction and migration, reminiscent of the work of immigration historian Mae Ngai, is one of the great strengths of this book.

Finally, Minian devotes considerable attention to the strategies that Mexican undocumented migrants employed to win greater rights for themselves in contexts ranging from workplace rights to education for their children. Their struggles brought about a gradual alteration of attitudes among U.S. labor organizations, Mexican American organizations, and the Mexican government itself. Interesting in this regard is how Minian characterizes what a socio-legal scholar might call Mexican undocumented migrants’ “rights consciousness.” In her telling, many Mexican undocumented migrants seem to be imbued with the sense that their long presence and hard labor in the United States—in short, their contributions to U.S. society and economy–entitle them to rights and protections. This is consistent with how many immigrant rights advocates have represented, and continue to represent, the claims of the undocumented. However, as Minian surely knows, a gulf yawns between undocumented migrants’ own sense of entitlement and the attitudes of those opposed to undocumented migrants, a group with considerable power in the United States today, who insist upon a kind of foundational illegality associated with the act of crossing the border without authorization that should entitle undocumented migrants to nothing.

How might this gulf be narrowed? One way is clearly to make the xenophobic camp realize that illegal presence does not in and of itself imply a complete absence of rights and protections. To endorse the extreme xenophobic position would be to go against principles at the core of the United States’ legal and political traditions. But neither does illegal presence in and of itself confer the full panoply of rights. In this regard, it might be interesting to learn more about undocumented migrants’ complex relationship to legality, how they respond to the charges of those opposed to them, how they characterize the claims of other migrants (especially more recent arrivals), and how, as a result, we might think about the broader question of how political and legal claims come to be associated with territorial presence.

Minian has written a significant book that covers a vast range of topics and mines a variety of sources. While showing how state policies produce individuals and communities, it humanizes the figure of the Mexican undocumented migrant at a time when xenophobic rhetoric in the United States is at its height. Undocumented Lives deserves a wide readership.

Cite as: Kunal Parker, Between Mexico and the United States, JOTWELL (October 4, 2018) (reviewing Ana Raquel Minian, Undocumented Lives: The Untold Story of Mexican Migration (2018). ),

Did Black Baptists Join the War on Drugs?

In Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. shows how African American voters in Washington DC lobbied for longer prison sentences and more police officers. Forman’s argument complicates the story told by Michelle Alexander in The New Jim Crow: Mass Incarceration in the Age of Colorblindnesswhich is that white conservatives increased prison sentences and police in order to impose a new system of racial control on black Americans, all under the rubric of a War on Drugs. Underlying Alexander’s argument is the claim that African Americans were not in fact the primary consumers of drugs in the United States; whites were, though they suffered comparatively lower rates of incarceration and arrest.

Forman concedes Alexander’s point about white drug use, but argues that African American leaders played a significant role in the rise of mass incarceration. As he tells it, problems with narcotics coincided with a proliferation of firearms. Guns became the weapon of choice for drug distributors, who turned to crime out of economic necessity and used extreme violence to eliminate competitors, increase market share, and create an illicit, street level, drug market. This market driven violence, maintains Forman, became so intolerable that African American majorities voted for higher prison sentences and more police, effectively joining white conservatives in what Alexander has termed “mass incarceration.” Rather than a coordinated, right wing plot, however, Forman suggests that the story in Washington was a tale of incremental choices by desperate officials who implemented radical policies that had unanticipated effects.

This is important. Forman’s story presses us to look more closely at the causes of crime in the United States in the 1960s and 1970s, and his well-researched, rich description of debates within the DC’s African American community about crime suggests that both cultural and structural forces contributed not only to mass incarceration’s rise, but its inevitability.

As startling as this may sound, Forman’s account actually dovetails with other work on the spike in crime in America in the 1960s and 70s, among them criminologist Barry Latzer’s 2017 book The Rise and Fall of Violent Crime in America. According to Latzer, two factors explain the rise of violent crime in places like Washington DC in the late 1960s and early 1970s. The first was the baby boom, which led to a surge in the number of young men – white and black – nationwide. The second was the Great Migration, the departure of six million African Americans from the rural South to the urban North between World War I and 1980. Southern migrants, argues Latzer, brought with them a culture of honor and violence that they had learned from southern whites – a culture that then exploded, like a bomb, in American cities.

Professor Forman’s study raises questions about this thesis. If southern migrants brought a culture of violence with them from the Deep South, why did a majority of those migrants become intolerant of violence? Why, in other words, did black southern voters demand increased prison sentences and more police? Why not settle scores on their own, Andrew Jackson style, with their guns?

Forman provides an intriguing response. He suggests that African Americans brought with them not a culture of crime and violence, but a culture of anti-violence and crime control. Black ministers, argues Forman, along with their congregations, viewed the rise in urban crime through a rural, Biblical lens. As white liberals lobbied for treatment as the solution to the heroin epidemic, for example, black ministers balked, opting instead for punishment. And as white liberals lobbied for decriminalization of substances like marijuana, black ministers balked again, arguing for prohibition. Both stances were classic evangelical Protestant positions, positions that actually united Protestants, white and black, across the South and Midwest. This is an important contribution, for it helps to further explain links between the white rural and suburban conservatives in Alexander’s New Jim Crow, and the black urban majorities in DC. Both were Protestant, both were socially conservative, and both were prone to viewing the problem of drugs and crime through the lens of personal moral choice, punishment, and Prohibition (Remember, evangelical Christians, Baptists in particular, endorsed abstinence not simply from alcohol but also narcotics).

American tendencies to view crime through the lens of personal moral choice, and crime control through the lens of Old Testament punishment – both stories that Forman tells – yields a paradox. At the heart of our system of punishment, lies our commitment to liberty. Most Americans view crime as a matter of  personal moral responsibility, a position reflected in the criminal codes of all 50 states, and also the Constitution of the United States, which protects liberty against government intrusion, but provides no protection against poverty, joblessness, homelessness, or any of the other structural causes of crime.

Take the rise in violent crime in the late 1960s and 1970s. According to historian Tom Sugrue, the conditions that led to the urban crisis in DC – and other American cities in the 1970s and 80s – had less to do with personal moral choice than with major demographic and economic shifts in the United States. The first, he argues, was the Great Migration.. Instead of dealing with this shift structurally, however, policy makers  dealt with it as a matter of personal choice. No public or private agency was created to assist migrants procure housing, find jobs, or receive health care or job training. No agency was created to provide child care, elder care, or anything else that the migrants might have needed. Instead, Americans viewed the move simply as a product of personal moral choice.

Then, according to Sugrue, the very people who could have provided job training, health care, housing, and employment, the middle class and affluent residents of American cities, got in their cars and drove away.  This shift, white flight, was also unmanaged and unregulated. White urbanites took their skills, their training, and their tax dollars to suburban enclaves, draining cities of resources and limiting the options available to black elected officials in places like DC. Forman notes this in passing, arguing that African Americans did not simply want police and prisons, they wanted services – in essence a Marshall Plan – but city coffers had been drained.

Then came the final blow: deindustrialization. Just as African Americans poured into cities and white tax dollars left, argues Sugrue, the factories closed. At this point, things became desperate. For some, crime ceased to assume a negative moral connotation and actually became a rational choice, a means of survival in an environment that provided no safety net. For others, an aggressive response to crime became an imperative. But the options available were limited. City coffers were empty, but state and federal dollars were available for law enforcement – in part because rural and suburban whites shared the same Old Testament values as urban blacks.

Blacks locked up their own, yes, because they had no other choice.

Editor’s note: For a previous review of Locking Up Our Own: Crime and Punishment in Black America see: Christopher Slobogin, The Causes of Punitiveness, JOTWELL (July 17, 2017).

Cite as: Anders Walker, Did Black Baptists Join the War on Drugs?, JOTWELL (September 13, 2018) (reviewing James Forman, Locking Up Our Own: Crime and Punishment in Black America (2017)),

Excavating Congress’s Relationship to the Administrative State

Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538 (2018).

I am probably too early in my career to recognize a watershed piece of scholarship, but this sure seems like one to me. In her most recent article, Maggie McKinley traces the origins of the administrative state to the historical practice of petitioning Congress for relief, as protected by the Petition Clause of the First Amendment. She details how Congress afforded petitions important procedural protections, and tells the story of how Congress eventually “siphoned off” its responsibility for resolving these petitions to boards, commissions, and other ad hoc bodies that became the foundation of the modern administrative state. Her overarching thesis is that the petition process reveals a constitutional obligation originally located in Congress, and now located in the administrative state, to ensure individualized and meaningful participation in federal lawmaking.

This thesis is, among other things, a breath of fresh air in a heated yet stale debate about the constitutional validity of the administrative state. As Kristin Hickman recently surveyed for Jotwell, this debate has fixated for decades on whether or not we can assume the constitutional validity of the administrative state from either its existence or its practical necessity to modern life. McKinley offers what I think is a truly novel argument to this contest: that the constitutional basis for the administrative state is at least partly rooted in the First Amendment’s right to petition the government. Drawing on a wide range of sources from Founding-era practices to legal process theory, her insights will interest readers on all sides of this debate.

The foundation of McKinley’s article is the Congressional Petitions Database, an original dataset compiled by McKinley and her research team at the North American Petitions Project. Drawing on congressional records, they created “a comprehensive database of all petitions introduced to the Congress from the Founding until 1950 for the Senate and from the Founding until 2013 for the House of Representatives.” (P. 1630.) This database allowed McKinley to observe trends and draw conclusions about the petition process for, as far as I know, the first time in legal scholarship. It serves as the basis for the first half of McKinley’s article, which introduces the petition process and tells the story of how that process “evolved” into the modern administrative state.

Undoubtedly, one of the lasting contributions of McKinley’s article will be her descriptive account of the petition process. The practice was as foreign as it was interesting to me. Petitions were individual requests for action from Congress. Petitioners requested everything from a pension, to comprehensive regulation of the boiler industry, to resolution of a private claim against the government, to declaration of a national policy against the slave trade. Importantly, people who otherwise had no meaningful access to Congress could submit petitions, including noncitizens (American Indians), non-voters (women), and political minorities (freed slaves). The petition process offered these groups  constitutionally-guaranteed access to the lawmaking process of their government.

Congress took its role in resolving petitions quite seriously and afforded them particular process. A petition took a specific form, and you typically sent your petition to your local representative or senator. He or she would then read your petition into the congressional record, which made your petition the public business of Congress. Petitions were placed on a docket that tracked their disposition and resolution over time. Typically, a petition was then sent to committee for a recommendation to Congress on how to resolve it.

The breadth and character of what happened next would shock the conscience of any strict departmentalist or separation-of-powers puritan. The committee itself might engage in some fact-finding. (P. 1563.) Or it might send the petition to executive officers like the Secretary of Treasury or Secretary of War “for review, investigation, and reporting.” (P. 1569.) Or it might enlist a federal court or even a state court (!) to help process the petition. (P. 1617.) McKinley found examples of each of these and more in her review of the Congressional Petitions Database, demonstrating that the type of lawmaking spurred on by the petition process looked quite different from the “legislative” process as we think of it today. While the petition process might end with a recommendation for a general law sent to the floor of Congress, “more often, resolving a petition involved what would today be perceived as nontraditional lawmaking”—namely, things that were not “legislative acts” and therefore did not require bicameralism and presentment. (P. 1563.) Yet all “were viewed as equally within Congress’s power to control” at the Founding. (Id.)

McKinley explains that petitions “dominated Congress’s docket until well into the twentieth century.” (P. 1617.) But as the country became more complex and suffered its wars, Congress increasingly “siphoned off” its responsibility for resolving petitions to more permanent administrative bodies. (P. 1579.) McKinley walks through three case studies to show how this story played out in subjects that we typically associate with administrative law: adjudication of individual claims (using the Court of Claims as an example), the provision of public benefits (the Bureau of Pensions), and nationwide regulation (the Interstate Commerce Commission). McKinley argues persuasively that this shift is essential context for understanding both the Administrative Procedure Act, which codified best practices Congress had developed in processing petitions, and its less-familiar companion the Legislative Reorganization Act, which dismantled what remained of the congressional apparatus for processing most petitions. As McKinley tells it, Congress converted the formal petition process into the administrative state, leaving any remaining access to lawmakers to the grey world of lobbying (which is a subject of McKinley’s research elsewhere).

McKinley draws two broad theoretical lessons from her observations about the evolution of the petition process. First, we should be thinking about agencies as an extension of Congress’s constitutional obligation to ensure participation in the lawmaking process, rather than as an extension of Congress’s Article I lawmaking power. For example, she recommends renaming the administrative state the “participatory state” to emphasize its role in guaranteeing “a formalized voice for individuals and minorities” in the lawmaking process over bureaucratic administration. (P. 1538.) This change in perspective, she argues, would help rebut the narrative that agencies are inconsistent with the limited-government principles of the Founding era and grew, weed-like, from managerial impulses of the New Deal.

Second, McKinley argues that the petition process reveals fundamental defects in legal process theory—namely, the theory’s strict approach to separation of powers and Footnote-Four-style reliance on the judiciary to protect political minorities. The petition process reveals, respectively, that American governance regularly crossed any boundaries between the branches, and that Congress has its own constitutional duty to ensure political minorities (and even non-citizens) have access to lawmaking. McKinley’s criticism of Hart & Sacks is particularly humbling, noting that neither “had actually spent much time working in Congress,” so their view of the legislative process as essentially majoritarian “reflected no firsthand experience.” (Pp. 1609-10.) But, McKinley maintains, modifying legal process theory to incorporate the lessons of the petition process can help reinvigorate that model with a spirit of democratic proceduralism and resist efforts to disassemble “the participatory state” out of fidelity to a strict separation of powers.

Finally, McKinley offers two concrete examples of how her insights should change case law. First, courts should not follow INS v. Chadha because the petition process—which did not necessarily require bicameralism to act on a petition—demonstrates that the Court’s reasoning for striking down the legislative veto was wrong. (Pp. 1621-22.) Second, courts should flesh out the doctrine of “administrative due process” into a “quasi-procedural due process right of the kind promised by the Petition Clause.” (P. 1623.) On that score, McKinley critiques Mathews v. Eldridge for grounding due process in a utilitarian cost-benefit framework rather than the aspirational values she views as reflected in the Petition Clause: “equality, formality, and transparency.” (P. 1625.)

McKinley’s points on Chadha and due-process balancing are well-taken, and certainly don’t lack for ambition. But they are eclipsed by her “excavation,” as she put it, of the petition process and its particular view of Congress. I keep returning to this article with the feeling: this changes everything. Not just Congress’s relationship to administrative agencies, but also the courts’ relationship to individual rights, due process, and access to justice—both relationships, I’ll readily admit, that I understand through the heavy influence of process theory. But I’m not alone in this boat. Although often implicit, most American lawyers and judges understand the everyday work of our courts through process theory’s take on the separation of powers and judicial review. To shake one is revelatory enough; to shake both makes you worry that the whole thing is going to come apart. It’s that feeling that leads me to believe rethinking Chadha and due-process balancing—again, no small feat—is only the beginning of what McKinley’s work can accomplish.

Cite as: Wyatt Sassman, Excavating Congress’s Relationship to the Administrative State, JOTWELL (July 25, 2018) (reviewing Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538 (2018)),

Victims’ Rights and White Power

By coincidence, I was reading Kathleen Belew’s book, Bring the War Home: The White Power Movement and Paramilitary America, the same week I read Jill Lepore’s recent article, The Rise of the Victims’-Rights Movement, in The New Yorker. The overlap was striking and well worth the consideration by legal historians.

Belew’s recent history is about the rise of a white power network across the United States in the years since Vietnam. It explores, through the study of a series of incidents, how a number of seemingly separate white supremacist groups came together, first on the ground and then through the internet. As Belew traces the network’s increasingly violent acts against those it considered outsiders, she shows why its racial view of the world (with its neat categories of “us” versus “them”) ultimately led it to declare war on the federal government in the early 1980s. In the process, she also describes the series of tactical decisions (and missteps) by federal prosecutors that led the government to underestimate and understate the extent of the white power movement. Her book’s great strength is revealing that network’s breadth across time, space, and a series of events culminating in the Oklahoma City bombing in 1995 (the epilogue ties the events in the book to the shooting at Emanuel A.M.E. church in Charleston).

This is a troubling book for many reasons, not just because of the scope of the white power network it reveals, though that is both disturbing and an important corrective to the insistence that white terrorists are “lone wolves” who act spontaneously and independently of one another. The book also brings the world of the white power movement home in another, very concrete way: in the week marked by yet another high school shooting, this one in Santa Fe, Texas, it was unsettling to read about Santa Fe’s connection to Klan rallies and white power activists in the late twentieth century. Many places have troubling histories and I do not mean to suggest in any way that the recent events in Santa Fe are less horrific because of events in the town’s past. But that connection, and Belew’s book more generally, raises questions about how the elements of United States culture that valorize violence and draw ready distinctions between the deserving “us” and the less deserving “them” (or between people and animals, to use an even more recent variation on the theme) contribute to mass shootings.

There are a number of points of overlap between the white power culture, as it is explored in Belew’s book, and the culture of the victims’-rights movement that Lepore’s article explored. At its broadest, Lepore’s article takes a fascinating look at the rise of victims’-rights theories in criminal justice. The book argues that the victims’-rights movement arose from a mix of feminist activism on behalf of women who were traditionally silenced in rape trials and conservative push back against the due process revolution put in motion by the Warren Court. But to unpack that story, she looks closely at the treatment of victim’s rights in the Oklahoma City bombing case, a trial (and event) that Belew examines closely as well.

In their treatment of the case, both Belew and Lepore touch on an issue that appears frequently in Belew’s book—the degree to which white power advocates like Timothy McVeigh justified their violence in terms of avenging victims, specifically white victims, of the government. Lepore quotes McVeigh as saying that he bombed the Murrah federal building because the federal government, which had failed to prosecute the government agents involved in Waco, “failed the victims who died during that siege.” (Lepore, P. 52.) Belew’s book tracks similar sentiments across the decades, from Louis Beam, who rallied whites in Texas to oppose and attack Vietnamese shrimpers whom he believed were getting welfare from the federal government while destroying white fishing interests and used similar language in talking about Waco, to Dylann Roof, who wanted to bring about a race war because Blacks were killing whites, raping white women, and taking “over our country” without being stopped by the government.

Belew treats the trajectory of white power victimhood as a shift from attacks on the other to a declaration of war against the federal government. It appears, in that sense, to be a rejection of the constitutional order. But read in light of Lepore’s article, the trajectory Belew sketches looks more like a shift to a perpetual and all-encompassing state of self-defense necessitated by the (temporary) failure of the government. The government is not so much the enemy as it is a failed state that has been unable to prevent the victimization of whites. Implicit in that are two constitutional theories: First, that the government would right itself if it understood its proper role in the racial order. And second, that so long as the government fails, the sovereign (and white people) have a right to defend themselves.

In that respect, Lepore’s article suggests that we might view Belew’s subjects as making a constitutional (as opposed to racial) argument. And Lepore also offers us a way to do so, noting that new theories of the Second Amendment arose in tandem with the rise of victims’ rights rhetoric. Although her article does not elaborate the point at length, Lepore suggests a strong connection between the two, seeing both as part of “a set of arrangements under which what was once a civil society has become a state of war.” (Lepore, P. 55.) The subjects of Belew’s book clearly made similar connections. In fact, as Belew points out, McVeigh began to plan the attack on the Murrah Federal Building just weeks after expressing exasperation (“What will it take?”) about the passage of the Violent Crime Control and Law Enforcement Act in 1994, a law that banned the use of nearly twenty different semiautomatic weapons. (Belew, P. 220.)

The idea that the people, or some of them, have a right to take the law into their own hands when the government fails to act has a long history in the United States, as does the idea that they have a legal, even constitutional, right to do so. The recent works by Belew and Lepore show those ideas still resonate and how they express themselves today.

Cite as: Elizabeth Dale, Victims’ Rights and White Power, JOTWELL (July 13, 2018) (reviewing Kathleen Belew, Bring the War Home: The White Power Movement and Paramilitary America (2018); Jill Lepore, American Chronicles: The Rise of the Victims'-Rights Movement, The New Yorker 48 (May 21, 2018)),