Sep 13, 2024 Sara Mayeux
Frequently I drink iced coffee at a local shop in my Tennessee neighborhood. I could pay with cash, but most often I hand over a credit card issued by a New York corporation (though the sign-up paperwork came from Utah), and later I pay the bill using funds in my checking account at a California bank (which funds I can also access with a Visa-branded debit card, which I could alternatively have used to buy the coffee). In the five minutes it takes to buy a drink in Nashville, both I and the vendor participate a web of financial transactions and legal agreements with banks, corporations, and sub-entities headquartered around the country, both of us potentially paying interest and fees at each node along the way.
How did routine purchases become so complicated? As meticulously chronicled in Plastic Capitalism, the way I pay in 2024 required decades of technological, legal, and policy change to become part of everyday life. The book is not merely a narration of the rise of credit cards, however, although that would be fascinating enough. Blending legal, political, and business history, Sean H. Vanatta uses the card industry as a case study in the eclipse of New Deal liberalism and the erosion of what Vanatta calls “the place-based regulatory order” (P. 292).
Political historians have written extensively about how New Deal-style economic regulation gave way to neoliberalism and deregulation. Plastic Capitalism adds to that literature by providing an especially granular look at the role of legal history in the shift, and by attending to state-level legislative debates and court cases in addition to Congress and federal agencies. This approach presents deregulation as a longer, more gradual and iterative process than is sometimes implied by timelines of congressional enactments.
Plastic Capitalism begins with an overview of the New Deal regulatory framework. That framework was characterized by limits on banking—geographic restrictions, industry silos, and price caps—as well as by a structural arrangement that Vanatta terms “financial federalism.” Depression-era reforms introduced federal deposit insurance and other forms of government backing but nevertheless “preserved the existing structure of primarily small, local banks” (P. 15). Banks remained prohibited from branching across state lines, and the states retained an important regulatory role, particularly with regard to interest rates on loans.
In subsequent chapters, Plastic Capitalism reconstructs how banks innovated new products and legal arguments to pursue profits within (and sometimes around) those regulatory limits. The reader learns about department store credit, travel cards, how metal charge plates became plastic cards, and the buildout of payment card interchange networks, with colorful anecdotes along the way—but also clear explanations of exactly how different forms of consumer lending were structured legally, financially, and even materially.
Interchange networks proved pivotal in transforming credit from localized service into free-floating commodity. Banks began administering small-scale charge account programs within their communities mainly as a service for local retailers. By the 1960s, some bankers had begun to reimagine the charge account as a standalone profitable product that could be marketed directly to consumers, offering revolving credit at relatively high interest rates. Still, even the pioneering BankAmericard, launched in 1958, was initially a regional California offering; Bank of America advertised “statewide shopping convenience” (P. 84, emphasis in original).
Then, Bank of America began licensing its card technology to banks in other states and developing what became a national and ultimately international payment network. BankAmericard was eventually rebranded as Visa (and a rival, Master Charge, became MasterCard). Formally, merchants were recruited, and consumers were issued cards by local banks. But consumers increasingly “associated their credit with the network,” and experienced cards as a deracinated payment technology rather than a loan from a neighborhood banker, especially as banks adopted the practice of mass-mailing unsolicited cards to prospective customers (P. 107).
Credit cards raised novel legal questions. At the time, most states imposed usury limits on money loans; now, attorneys had to litigate whether those laws already applied to credit cards, and legislators debated whether states should specifically regulate credit card interest rates. Given the new varieties of fraud facilitated by cards, policymakers confronted where to locate liability for unauthorized purchases, and whether federal or state prosecutors could handle a potential new tide of cases. Bankers, regulators, and consumer advocates went back and forth over whether to prioritize widespread access to credit (given the history of racial and gender-based exclusion from lending markets) or consumer protection against predatory lending.
In Vanatta’s telling, the first wave of regulatory responses left much of the New Deal order in place, even while accommodating credit cards to that order. By the mid-1970s, most states had capped credit card interest at around 18 percent, while Congress had imposed disclosure requirements and banned unsolicited mailings. These and other consumer protection measures “legitimized the bank card industry by regulating it, in effect binding credit cards within postwar liberalism’s regime of (relatively) low-cost, safe consumer credit” (P. 157).
But the story would not end there: “Bankers … had gotten into the card business to break free of the New Deal order’s onerous restrictions,” and “some would continue to seek and seize opportunities to innovate around the rules” (P. 157). In the New Deal order’s final demise, a key development was the Supreme Court’s 1978 decision in Marquette National Bank of Minneapolis v. First of Omaha Service Corporation, to which Vanatta devotes an illuminating chapter. In effect, Marquette decided which state’s usury laws applied to a credit card: the state where the card issuer was based, or the state where the cardholder lived? Under Nebraska law, the First National Bank of Omaha could charge 18 percent interest on credit cards. But many cardholders lived in Minnesota, which capped interest at 12 percent. The Court held unanimously that the bank was “located” for purposes of banking law in Nebraska, and therefore Nebraska’s more permissive limit reigned.
Citibank took quick advantage of Marquette, announcing in 1980 “that it would relocate its card operation from New York to South Dakota, a state with no applicable usury laws” (P. 265). A deregulatory cascade ensued in statehouses around the country. By the 1980s, almost every state had “either loosened or lifted [its] usury laws” (P. 280), and card issuers gravitated to states that had loosened their usury laws the most. In this new iteration of financial federalism, states still mattered for banking regulation, but in a different way: “By 2003 almost three-quarters of credit card loans in the United States originated from states, including South Dakota and Delaware, containing just 4 percent of the country’s population. Importantly, Citibank’s relocation did not make state interest rate regulation irrelevant; rather, it made the interest rate regulation of a few states national policy” (P. 290).
Another chronicler of this history might have presented a triumphant tale of inventive capitalists upending outdated regulatory structures; Vanatta instead worries about the consequences for democratic control over economic life. Some would argue that overly restrictive usury limits disincentivize banks from extending credit at all. Vanatta acknowledges that state-driven deregulation “opened credit markets and made credit available to underserved consumers,” but he argues that the tradeoffs between “unrestrained markets and consumer protection” are subject to political debate—a debate in which bankers now held the upper hand (P. 280). Indeed, much of Plastic Capitalism is devoted to recounting how bankers, policymakers, and consumers engaged in just that debate over the decades.
While “never perfectly democratic,” Vanatta concludes, the New Deal order “compelled bankers to negotiate the price and terms of credit with local stakeholders”; once banks escaped geography, “consumers lost their grip on the regulatory levers” (P. 297). Beyond its specific insights about credit cards, then, Plastic Capitalism offers much fodder for reflection about the modern disjuncture between the structure of political representation, which has remained rooted in geography, and the structure of economic and social life, in which even a $5 visit to a local coffee shop might involve contracting with entities that have no real geographic location at all, or whose geographic locations are something of a legal fiction.
Jun 27, 2024 Reuel Schiller
Here’s a narrative jewel from Margot Canaday’s stunning new book Queer Career: Sexuality and Work in Modern America: Canaday is interviewing a queer woman who drove a cab in Buffalo during the years following World War II. Apparently, taxi driving was a common profession for lesbians at the time. In fact, the cabbie believed that half the drivers in the company were queer. “The owner liked to hire lesbians—it was a transient job, but lesbians tended to stay. ‘Got any friends?’ he would ask. ‘Send them in.’” It was the kind of job, the driver told Canaday, that allowed her to live life the way she wanted. The informal nature of the work gave her the flexibility to socialize in gay spaces and to present herself authentically without fear of reprisal at work. During her years as a driver “she wore pants, a shirt, and a binder to work.” (P. 83.)
If you’re anything like me—a reader familiar with the standard narrative of the development of postwar liberalism—this story is disorienting. Driving a cab in postwar Buffalo was a congenial profession for lesbians? So congenial that half the employees were queer? So congenial that the boss actively tried to recruit lesbian drivers? So congenial that drivers felt comfortable being out at work? Wasn’t this the era of the Lavender Scare, when rampant homophobia and government persecution drove queer Americans out of the workforce and deep into the closet? This story is just one of many convincing, counterintuitive pieces of evidence that substantiate Canaday’s central claim: When you look at the world of “queer careers” through the lens of the Lavender Scare, you don’t see the employment experiences of most gay and lesbian workers. In fact, when you closely examine these experiences, as Canaday has done with an unprecedented degree of detail, you see a very different story. You see that for many gay and lesbian workers, the workplace became less hospitable as the twentieth century wore on.
By demonstrating this fact, Canaday is not painting some sort of rose-tinted image of a sexually egalitarian past. Far from it. In fact, the relationship between the social marginalization of queer people and the nature of their work lives is the fundamental story that Queer Career tells. The book traces the path that gay and lesbian workers took through the workplace in the second half of the twentieth century, showing the dramatic changes in the nature of their employment experiences. Canaday begins with an examination of a bifurcated world of “Gay Labor” in the years immediately after World War Two. There were “straight jobs”—professional, high-status, white-collar work—that were available to (mostly male) queer employees if they were willing to enter an implicit bargain with their employers. Employees would pretend to not be gay, and their employers would pretend to not notice that they were. Thus, contrary to the received historical wisdom, Canaday shows that gay and lesbian employees did not need to descend deep into the closet to get some of the financial and status benefits of America’s postwar economic boom. They simply had to participate in the demeaning pretense of “don’t ask/don’t tell.”
It’s obvious why many queer workers would embrace this bargain, but what was in it for the employers? Canaday’s answer to this question is compelling. America’s employers were not secret homophiles. Instead, they recognized that gay and lesbian employees “were valuable because they were vulnerable.” (P. 68.) They were workers without legal protections, living in a world of fear, where public employment was often unavailable and where they might be fired for no reason other than their choice of romantic companions. The law thus made the employment lives of queer workers especially precarious. In the years following the Second World War, many employers were happy to take advantage of that precarity. Gay and lesbian employees would work extra hours, take crap assignments, not complain if they were paid less, and not make a fuss if they were dismissed. Gay men did not have to be paid a family wage. Lesbians would not marry, become pregnant, and drop out of the workplace at a time that was inconvenient to their employers. In a postwar work world that was characterized by the expense and rigidity of the family wage and the collective bargaining agreement, queer employees were a “pressure-release valve” that allowed employers to reduce costs and increase efficiency. (P. 63.)
Of course, not all workers wished to take the benefits of this bargain. After all, it was premised on repression and exploitation: hiding your intimate relationships, comporting your behavior and appearance to straight norms, and accepting less pay for more work. For these workers, there existed a second world of work: “queer jobs.” Some, like that of the cab driver, were low-status, low-pay positions in industrial or peripheral labor markets. Others were in professions where, even in buttoned-up postwar America, “queerness” was part of the “package and brand”: hairdressers, cruise ship employees, and department store salesmen, for example. (P. 83.) Other jobs—in libraries, the garment industry, or the performing arts—were less queer-branded but had reputations as queer occupations. Finally, there were jobs within the gay demimonde: the employees of gay bars, drag performers, and sex workers. What this diverse set of jobs had in common was that they allowed workers to opt out of the bargain that the straight workplace required. These jobs might pay less, provide few opportunities for professional advancement, and have low status, but they nonetheless allowed gay workers to be more open with their sexuality. They were “pockets of relative safety,” that allowed workers to express their identity. (P. 100.)
Having described this world of queer labor, Canaday turns her attention to how it changed in the era of gay liberation, the period from the late 1960s to the early 1980s, bookended by the emancipatory impulses of Stonewall and the beginning of the AIDS crisis. She details the hard fought but largely unsuccessful effort to forge legal employment protections for gay and lesbian workers analogous to the prohibitions of race and sex discrimination embodied in Title VII of the Civil Rights Act of 1964. These legal battles occurred as the gay liberation movement pursued nonlegal strategies to empower gay and lesbian Americans. Ironically, the most prominent of these strategies—abandoning the closet—had the effect of making work more precarious for many queer workers. While the postwar bargain did not require a complete retreat into the closet, it did require a kind of discretion that was contrary to the liberationist ethos. Consequently, as more workers came out, employers abandoned the bargain. Indeed, even for workers who wished to keep to its terms, the rise of gay liberation increased the precariousness of their jobs. Employers worried about hiring gay and lesbian employees lest they accidentally employ someone who might adopt a liberationist posture, abandoning the straight norms of appearance and behavior that the bargain required. Thus, employers increasingly viewed any sign of possible queerness—an odd haircut, an unmarried thirty-five-year old, too many phone calls at work from same-sex friends—as a reason to fire a worker, or not hire them in the first place. Like the civil rights movements for people of color and straight women, gay liberation generated “a revolution in consciousness,” demonstrated by a public pride in one’s identity and demands for equal treatment. Unlike those other liberation struggles, however, gay liberation had no parallel “revolution in law.” (P. 149.) Lesbian and gay Americans had to assert their rights in the workplace without legal protections.
The AIDS epidemic increased the cost of this lack of legal protection dramatically. AIDS destroyed what remained of the postwar bargain. Panicked fears of contagion and concerns about the costs of employing queer workers—at risk of falling ill and dying—led to an increase in homophobia and discrimination in the workplace. While Canaday demonstrates, in some of Queer Career’s most moving passages, that the epidemic created deeply meaningful work for members of the community in healthcare and legal advocacy, she also shows how it drove many workers back into the closet. At height of the epidemic, a gay employee’s runny nose or a day off to care for a sick partner could result in dismissal. In the absence of meaningful anti-discrimination laws, the closet became the only option for many queer workers.
The lack of a “revolution in law” to protect the rights of gay and lesbian employees had another effect. If the government was not going to protect those rights, perhaps turning to private actors—the employers themselves—would be more effective. In Canaday’s final chapter, she demonstrates that this was, in fact, the choice that many queer workers made. By the end of the twentieth century, it was a select group of private employers, acting in response to pressures from their gay and lesbian employees, that provided a measure of dignity, recognition, and meaningful employment benefits to queer workers. Starting in the technology sector and in businesses in more diverse cities, employers began to support their queer employees. They slowly and haltingly recognized queer employee groups, celebrated Pride Week, and targeted gay consumers. Eventually, they put their money whether their mouths were by providing benefits to their employees’ domestic partners. Canaday shows that the recognition of these benefits was not easily achieved noblesse oblige by forward thinking employers. Nor was it the cooptation of the gay rights movement by cynical corporations. Instead, it was the result of grassroots organizing by workers who were willing to take the substantial risk of engaging in queer advocacy despite the lack of any legal protections. It also required connecting gay liberation to fin-de-siecle political economy. By supporting gay rights, the advocates argued, a business could retain its employees, find new markets, and reap the economic benefits of a diverse workforce. Canaday makes the irony palpable. For gays and lesbians in the United States, the most effective way to gain rights at work was to “disassociate” their movement from rights and law altogether. Supporting your queer employees “was about business efficiency and becoming an employer of choice.” It was about “being best equipped to tap into the resources of an increasingly diverse workforce.” (P. 255.)
The analytic pay-off of Canaday’s narrative is enormous. Her discovery of the postwar bargain and its decline should transform the narrative of postwar liberalism. Queer Career also speaks to debates about the nature of the gay rights movement: its alleged domination by whiteness and affluence and its alleged subservience to consumer capitalism. Both claims are ones that Canaday’s narrative convincingly refutes. For legal historians, her descriptions of the campaigns to expand civil rights legislation, combat governmental employment discrimination, and use existing civil rights statutes to curb discrimination against HIV-positive individuals are presented with a degree of detail missing from the existing literature. Even more significant is the way Canaday uses these stories to explain the mechanisms of queer employment precarity and its connection to postwar capitalism. The impact of these mechanisms, as she elegantly points out, should inform contemporary thinking about all workers. After all, Queer Career convincingly demonstrates that the characteristics of queer careers since 1945—profound imbalances of bargaining power, episodic gig work, invasive monitoring, employer demands for flexibility—sound an awful lot like the neoliberal workplace that most workers, gay and straight, inhabit today.
As powerful as Canaday’s arguments are, the triumph of this book is in the individual stories it tells. Queer Career is, first and foremost, a book is about the lives of working people. It is a book brimming with workers, some found in traditional documentary sources, and others made visible by the more than 150 interviews that Canaday conducted. At its center are joyous, heartbreaking, funny, cruel, and fundamentally human stories. We learn about Frank Kameny, the astronomer who used “the politics of annoyance” (P. 114) to challenge the federal government’s antigay hiring practices; about Ginny Berson, a founder of the Olivia Records Collective, a record company that catalogued its recordings with numbers prefaced by “LF,” which stood for “lesbian feminist”; and about Cliff Morrison, the clinical coordinator of Ward 5B, San Francisco General Hospital pathbreaking in-patient AIDS unit. We also meet hundreds of anonymous clerk-typists, computers scientists, bartenders, and project managers for whom work was a central component of their identity. Lost, but now found by Canaday, she has illuminated their lives to show how the history of queer work is a “history of vulnerability,” but also a history of how work of all kinds dignifies and gives meaning to life. (P. 280.)
May 31, 2024 William Smiley
Refugees, it seems, are scary. The movement of people fleeing violence and oppression attracts sympathy, but increasingly also fear. We hear talk of “carnage” and “chaos” at the US border as Central Americans flee political violence; the EU agrees to limit asylum-seekers; the UK plans to deport all asylum-seekers to Rwanda; in last year’s Turkish election, both President Erdoğan and his challenger promised to send home millions of Syrian refugees. Amidst these challenges to the global refugee regime, many turn to its founding documents, dating to the aftermath of World War II. Scholars of humanitarianism suggest the system’s roots lie a quarter-century earlier, in American and Western European responses to the collapse of the Romanov, Habsburg, and Ottoman Empires. In either case, the emergence of a legal regime for managing refugees is seen as driven by western, and particularly Christian, sympathies and solidarities. Vladimir Hamed-Troyansky’s new book challenges that view, arguing that as early as the 1850s, the Ottoman Empire—a state ruled by Muslims and often seen as outside the European world—“created its own nonwestern and nonsecular system of categorizing, sheltering, and resettling refugees.” (P. 3.)
Hamed-Troyansky makes this argument as part of a larger study of the immense migration (over a million people) of North Caucasian Muslims from the Russian Empire to the Ottoman Empire in the late nineteenth century. As the Russians consolidated their control over the Caucasus Mountains, they drove out many of the Muslims who lived there. In particular, the Circassians/Adyghe were extirpated so thoroughly that some have termed it a genocide. Most of these refugees fled to the Ottoman Empire, which responded by creating a legal and bureaucratic system to aid them and resettle them on its lands, from the Balkans to Jordan. Over the following decades, as the Ottoman Empire contracted, the North Caucasians were joined by many more Muslim refugees who fled (or were expelled from) the newly independent states of the Balkans. To tell this story, Hamed-Troyansky relies on a breathtaking diversity and depth of sources: twenty-three archives across ten countries, private papers and letters, and even interviews. He tells stories of imperial politics, local bureaucratic management, urban socioeconomic changes, and family microhistories.
For scholars of law, however, what will be most interesting about Hamed-Troyansky’s work is his reconstruction of the Ottoman refugee system, and what it can tell us about refugee law and politics even in our own day. The Ottoman state had long welcomed those who fled other domains, from Sephardic Jews in the fifteenth century to Hungarian nationalists in the nineteenth. The state’s landmark 1857 Immigration/Refugee (Muhacirin) Law, which inaugurated the Ottoman refugee system, likewise made no religious distinctions. But in practice, Hamed-Troyansky shows, it was sympathy for suffering Muslims that drove “Ottoman humanitarianism.” (P. 69.) Non-Muslim migrants received less help from the state, often required pre-authorization, and were not even referred to as refugees (muhacir). Jewish migration to Palestine attracted particular restrictions. “A refugee being Muslim,” Hamed-Troyansky concludes, “while not a codified requirement, was an expectation and raison d’être of the Ottoman refugee regime.” (P. 5.) In this sympathy for co-religionists, Ottoman humanitarianism looks familiar. Davide Rodogno has argued that European humanitarianism in the nineteenth century was more likely to favor Christian victims; India has adopted laws making it harder for Muslim refugees to receive citizenship than for others; and we have seen how some European governments reject Syrian refugees, but welcome Ukrainians.
Hamed-Troyansky also situates his story in its nineteenth-century context: this was an age of globalization and mass migration. Even as Muslim subjects of Russia came to the Ottoman Empire, so did Jewish ones, bound for Palestine; these stories were parallel “in the specific directionality and religious mandate of emigration as well as in their origins in persecution and mass flight.” (P. 11.) Even more famous, of course, are the stories of Europeans coming to America. But Hamed-Troyansky notes there were really two major migratory waves: in one, white Europeans settled the American, African, and Pacific frontiers; in the other, the peoples they displaced were themselves compelled to settle elsewhere. “The North Caucasians’ migration,” Hamed-Troyansky suggests, “was both of these stories.” (P. 7.) The domino effect of displacement, flight, settlement, and displacement of others is a theme running through the book, and invites questions about how many other migration stories were “both.”
The Ottoman refugee system, however, aimed at more than just humanitarian resettlement; it was also designed to further state interests. Some of these were fairly benign, such as the desire to establish prosperous farms that could be taxed. But others were less so: as the Ottoman Empire’s power waned, its leaders learned “the importance of counting people to stake out territorial claims.” (P. 80.) The best way to hold territory in the face of European demands was to have large numbers of Muslims living there. And the North Caucasians were conveniently Muslim, an identity “which the government regarded as a guarantee of their loyalty to the Ottoman state.” (P. 80.) The Ottoman resettlement system thus aimed to establish Circassian communities in places where the empire wanted a more favorable demographic balance, especially against Christian minorities. This, too, has echoes today. Turkey, for example, has recently settled displaced Sunni Syrians in formerly Kurdish areas along its border, helping refugees but also drawing allegations of “demographic engineering”: replacing a local population seen as a security threat with one perceived as more reliable.
At times the Ottoman state went further, aiming to reduce the “undesirable” population through population exchanges, deportations, and massacres. Some Muslim refugees played prominent roles in the Armenian Genocide (1915-1917), and the property of deported or murdered Christians was even handed over to refugee communities.
Hamed-Troyansky’s story thus reveals an uncomfortable truth: “ethnic cleansing and refugee relief are imagined as polar opposites: one is a war crime…and the other is a humanitarian good,” but “[i]n reality, they often overlap.” (P. 85.) For the Ottoman state, helping North Caucasian victims of Russian abuses seamlessly gave way to using those victims to further its own abuses against others. This dimension of Hamed-Troyansky’s work is perhaps the most valuable for scholars of law and humanitarianism—his attention to the nuanced and often Janus-faced nature of sympathy for “the other.” Giving aid is never impartial and can be inextricably connected with doing harm to another, less sympathetic, “other.”
May 2, 2024 Anders Walker
Edward J. Larson will probably be banned in Florida. His new book, American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795, plunges headfirst into a roiling debate over America’s racist origins, a debate that splashed across Internet platforms five years ago when The New York Times Magazine published The 1619 Project, a collection of hard-hitting essays on America’s anti-Black past. Headed by investigative journalist Nikole Hannah-Jones, the project claimed that the true founding of the United States was 1619, the year the first Africans arrived in British North America, and that the true story of the United States was – and remains – one of relentless racism against Black people. Even the Revolution, argued Hannah-Jones, was motivated by a racist desire to preserve slavery.
Hannah-Jones received mixed reviews for her polemic from historians, but she captivated progressive audiences with a national speaking tour, a Hulu documentary, and a “1619 Curriculum” for public schools. Conservatives countered with their own “1776 Project” (sponsored by the Trump White House) and a Senate bill aimed at “Saving American History” sponsored by Tom Cotton, Marsha Blackburn, and others. “The 1619 Project is based on false narrative,” declared Senator Blackburn, “and a stack of lies about our country.”
Into this “partisan minefield,” as he puts it, steps Larson, a Pulitzer Prize-winning historian and law professor who takes up many of the points made by The 1619 Project and elaborates on them by deftly weaving together an array of familiar secondary sources and not-so-familiar primary ones. Out of this comes a frank look at just how prevalent racial prejudice was in America during the late 18th Century, both North and South. For example, Larson provides us with a startling look at the racial views of Benjamin Franklin, a Framer who did not own enslaved people but nevertheless imagined that America would be better off without Blacks. “Why increase Sons of Africa,” complained Franklin, “by Planting them in America [?]”
Larson also takes up the controversial argument that racism fueled the Revolution and argues that yes, some Americans did indeed fight Britain to save slavery and preserve white supremacy, including white southerners who rankled at Lord Mansfield’s 1772 opinion in Somerset v. Stewart, and white Americans generally who balked at the 1775 announcement by Virginia governor John Murray, the Earl of Dunsmore, that all Black men who joined the British army during the Revolution were free. Dunsmore’s Proclamation, argues Larson, “probably [did] more to boost the patriot cause than the loyalist one,” for many white Americans were simply not prepared to see themselves subdued by Black soldiers. (P. 98.)
Larson shows persuasively that a general prejudice against Black people existed throughout the thirteen colonies, even in places where the majority opposed slavery. And slavery, Larson continues, provided colonists with a useful trope for opposing Britain. Again and again, white colonists compared their plight to that of slaves, and argued that the British were treating them like Black people, a rhetorical move that helped them build support not simply for reform, but for revolution. “[P]rosperous colonial lawyers, planters, and merchants from New England to the Carolinas,” writes Larson, asserted that they “would become Parliament’s Negroes” if they did not resist oppressive measures like the Stamp Act. (P. 34.) Even John Adams, who never owned slaves, stoked revolutionary sentiment by invoking race, arguing on the one hand that Parliament was enslaving whites and – on the other – that whites had to either resist or become Black. “We won’t be their negroes [sic],” he declared, using racism to fuel patriotism. (P. 44.)
Here, Larson’s account dovetails with Edmund S. Morgan’s story about colonial Virginia in his Pulitzer Prize winning book American Slavery, American Freedom: The Ordeal of Colonial Virginia. Published in 1975, Morgan’s book suggests there was nothing hypocritical about white slave owners like Jefferson, Madison, and Washington lobbying for liberty, since their very status as slave-owners was precisely what made them free.
Larson locates his work firmly “in the tradition” of Morgan, pitching it as sort of a sequel to American Slavery, American Freedom. “Where Morgan focused on seventeenth-century Virginia,” argues Larson, “this book center on the thirty core years of the Revolutionary Era, 1765-1795, and broadens the lens to include Blacks and whites, patriots and loyalists, politics and warfare, and all the states from New England to the lower South.” Morgan’s argument therefore dances in the background of Larson’s tale.
Both historians suggest that slavery and race were not problems in American history, so much as solutions. For Morgan, race solved the problem of class by dividing the poor and reducing the odds of armed uprisings like Bacon’s Rebellion. For Larson, race galvanized white colonists by giving them a unifying identity that transcended their ancient European grudges, and rallying cry that helped them to cast obedience to England as racial betrayal. Whether they were English, Irish, German or Dutch, in other words, white Americans all agreed that they were not Black, and only Blacks could – in their minds – be treated like slaves. The very fact that they identified themselves as white people was – in a way – revolutionary. (P. vii.)
Often cast as America’s “original sin,” racism in Larson’s book looks more like original glue, a bonding agent that united whites – North and South, rich and poor – and helped them stick together as they embark on a risky political voyage without a monarch or a church. Which leads to a question that Larson does not answer. If racism truly is part of America’s inheritance from the founding generation on, just like the Declaration of Independence or the Constitution, how can we ever hope to be rid of it? What other “glue” might there be to hold us together as we begin to imagine a truly interracial democracy?
Perhaps it is, as Jill Lepore argues, “these truths,” the very abstract ideals that Thomas Jefferson invoked in the Declaration of Independence. Though he and his founding brothers may have been racists, as Larson demonstrates, their ideals were not. And the future need not be either.
Apr 1, 2024 Jedidiah Kroncke
There is an oddity to the place of constitutional law in the modern American legal academy. Law faculties invariably have multiple scholars devoted to its study, it is considered a core curricular course, and yet most law graduates will never directly practice it in any form. There have been debates about its pedagogical merits revolving around assumptions that the Constitution is not just the foundational document structuring our legal system but has also always served as its deepest reservoir for exploring our most critical collective challenges. As such, constitutional scholarship sits atop an implicit hierarchy of legal inquiry shaping the litigation that putatively confronts, and resolves, the most pressing issues of our day. In turn, the Supreme Court is worthy of center stage in the social production of legal intellectual prestige.
In his mid-career opus, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, Aziz Rana attempts to deconstruct this and other such elevations of modern constitutionalism in American society. Most fundamentally, he seeks to denaturalize this state of “constitutional veneration” in which the legal academy is but one facet of the broader American embrace of “creedal constitutionalism.” The near deification of constitutional law, the Supreme Court, and the Constitution as core elements of American identity, Rana argues, is a relative novelty in American history. Every element of our current reverential preoccupation with the Constitution, whether in the legal academy or in our larger social politics, simply did not exist for most of the nation’s collective history.
For Rana, this reverence is in fact the product of a range of contingent mid-20th developments deeply intertwined with the rise of America as a global empire. The sacralization of the Constitution was built on a rewriting of American history which read these contingencies back into the American past and sidelined its settler colonial, ethno-nationalist, and imperial dimensions. In doing so, the naturalization of this “creedal constitutionalism” as central to modern American identity submerged and erased both a far more complex and contingent place for the Constitution in American political discourse as well as many competing constitutional visions once fervently fought over in the last two centuries.
The cost of this erasure is acute—manifest in an inability to confront the deeply anti-democratic elements of the Constitution whose operation, however ameliorated at particular historical junctures, has contributed to many of the social and political pathologies roiling American society today.
The ambition of Rana’s project is simultaneously diagnostic, expository, and reconstructive as Bind reaches nearly seven hundred pages before giving way to its footnotes. It builds directly on Rana’s first monograph, The Two Faces of American Freedom, which confronted related issues from the 18th through the 19th century. In turn, Bind is divided into four parts and sixteen chapters which bring us from the 1890s to the present. Bind’s more explicitly transnational orientation has each part framed by the development of American empire: the late 19th-century rise of American global power, the dynamics of World Wars I and II, and what might be called the early and late stages of the Cold War.
As a grand synthetic work of intellectual history, what Bind achieves in each of these eras is to demonstrate both the empirical marginality of our contemporary “creedal constitutionalism” and its progressive construction through a combination of social campaigns, state repression and political contests which reconfigured American identity as interwoven with global primacy. All while radical constitutional visions were coopted as the very strategic terrain on which those seeking to democratize American society was reshaped.
To start his longue durée, Rana identifies the relative irony that his “creedal constitutionalism”–identified as combining a commitment to racial equality with textual devotion to the Constitution–was an oddity in a 19th century American society. It was first practiced by radical abolitionists embracing a redemptive understanding of the document’s core commitments. The cultural universalism pursued by such radicals stood out in a country still openly possessed by a masculine ethno-nationalist concept of settler citizenship. It was also an era when the Supreme Court’s status was barely enough to attract investment for its material infrastructure, immigrant naturalization made little reference to the Constitution, and a wide range of social movements coalesced around deep critiques of the Constitution as irredeemably flawed. Even the Constitution’s first centennial was anemic at best, and constitutional law was absent from any formal legal curriculums.
Bind’s sequel-like relationship to Two Faces manifests as Rana chronicles how this 19th century American identity–the “settler compact”–collapsed after the Civil War under the concurrent pressures of industrialization, urbanization, and mass immigration. What came to be normalized as “American” cultural traits were in fact but a minor subset of the diverse reactions to this collapse. If anything, American society was still localized enough that suspicion of the national, and with it the Constitution, undergirded sentiments that the “Constitution was an aristocratic victory of propertied elites against the mass of ordinary settlers.” (P. 93.)
The shift away from this culture of Constitutional suspicion required fusing “creedalism, constitutional devotion, and US [global] primacy into a cohesive framework.” (24) Rana’s engagement with the US occupation of the Philippines outlines how the original ethno-nationalist exclusion of Filipinos from democratic inclusion was reformulated into a formally de-racialized universalism soon to be impactful at home. The inter-relationship of American empire with domestic constitutional discourse would later cast Mexico’s 1917 constitution as an antagonistic comparator to stigmatize socialist admirers, and Nazi Germany and the Soviet Union foregrounded as existential threats to creedal constitutionalism. Herein, the Constitution was reborn as the original post-colonial statement of exceptional American self-determination, and a gift that could then be transmitted to a world.
Rana shows how this new vision was initially far from dominant, but it was these transnational elements that eventually provided the fulcrum on which its ascendance turned. For they created a sense of perpetual emergency where promotion of the Constitution’s civil liberties was necessary to serve as a bulwark against overseas fascism, even if, paradoxically, those very liberties had to be suppressed at home in service of this global mission. Nowhere was this clearer than in the concurrence of novel celebrations of the Bill of the Rights and endorsements of Japanese internment.
This “divided liberal mind” could thus have a flexible sense of cultural pluralism as long as newly included groups accepted militarism abroad, national security at home, and abandoned radical critiques of the Constitution. Varied coalitions of economic interests also opportunistically injected market capitalism into this mix, with “pro-Constitution advocacy closely bound itself to a remarkably authoritarian statecraft, one that tarred anti-war, anti-Constitution, and anti-capitalist speech as interrelated threats to Americanism.” (P. 251.)
The ultimate success of this new constellation of “American” virtues was built on the growth of the post-World War II middle class and the accomplishments of an array of social movements—most evident in women’s enfranchisement and the Civil Rights Act—through accepting the terms of this accommodation. Rana does not discount these successes but shows that this accommodation accelerated the disciplinary power of the national security state and its private allies to rework what was considered “American” forms of social resistance. Thus, the energies of these movements were redirected to entrench constitutional veneration when their popular force could not be overtly resisted—presenting them as natural outgrowths of the redemptive function of even the Constitution’s own counter-majoritarian elements.
Bind traces this dynamic of accommodation several times over as Rana recovers the undermining of “radical movements on behalf of workers, women, Black Americans, and Indigenous communities.” (16) In each instance, the prospect of immediate concessions is held out to allow the tamed inclusion of any radical charge into the redemptive arc of American constitutional history. This further then allowed favored leaders to portray marginalized groups as truer to the Constitution’s project than the dominant social interests they oppose.
The seeds of our contemporary crises then lie in these now deified political constraints–the books titular “binds”–which removed “from public dispute critical questions that had long been central in American public life—questions about the basic organization and principles of the legal-political system, the economy, and the emerging national security state.” (P. 390.)
In its actual unfolding, the book is anything but a march of abstractions. Rana’s general objective of denaturalizing contemporary constitutional veneration is matched by a sustained project of historical recovery. Each chapter relates a rich tapestry of once vibrant, if now suppressed, voices who struggled to democratize American society only to later be reductively characterized as unprincipled and dangerous populists when remembered at all.
There are several figures who recur in his chapters, each either demonstrative of larger transitions or as avatars of the solidaristic social vision close to Rana’s own sensibilities. Woodrow Wilson and W.E.B DuBois stand out in the former category for their shifting views of both the Constitution and American imperialism. Hubert Harrison and Crystal Eastman stand out in the latter category—their legacies obscured exactly because they refused to surrender their expansive visions of democratic social change, rejected constitutional veneration, and remained steadfast opponents of imperial expansion.
Bind does not conclude with clear prescriptions. Rana’s overarching motivation is to highlight the contingency of our modern sensibilities exactly because he sees the “Cold War consensus” of the mid-20th century unraveling in much the same way as the “settler compact” unraveled at the end of the 19th century. His history aims to refocus us on what previous reformers were asked to set aside: basic structural distributions of democratic power that are not dependent on compensatory developments that only episodically paper over the defects in Constitution. Genuine democratization will require being honest about our history, and especially the cost that American global primacy has extracted at home and abroad. It also requires rejecting resurgent elements of our settler colonial past.
If it seemed odd that this review began with a discussion of the American legal academy given the scope of Bind’s narrative, its salience becomes clear in the more personal notes of Rana’s conclusion. He is, by vocation, a constitutional law professor. While many have recently expressed despair that the current Supreme Court has sabotaged American constitutionalism, Rana sees the presumptions of this “loss” as presuming the very contingent imagination that he and many others had already found naturalized when they first entered law school.
Thus, Bind’s conclusion makes a plea to the legal elites most empowered by constitutional veneration that a necessary step is to let go of its false promise. The American legal academy, the American Bar Association, and the Supreme Court were often at the vanguard of the suppression and accommodation he highlights, as they helped stigmatize more radical visions even within their own ranks. Such complicity was rewarded with the Warren Court notion of transformative constitutionalism which placed lawyers at the forefront of social change.
Rana’s account of the New Deal is integral here, noting how even once strident constitutional critics such as Charles Beard succumbed to the idea that constitutional veneration would constructively provide lawyers roles as “definitive guardians of constitutional meaning and possibility.” And constitutional lawyers and the Supreme Court, bound together through myriad social and professional practices, would be the most empowered of all as textual interpreters if they rejected any dreams of institutional redesign. Whatever accomplishments may mark some of the recent past, it is not through Supreme Court commissions or other technocratic legal exercises that Rana’s constitutional reimagination will happen. Much like American primacy abroad, it will only be with a collective acceptance that this empowerment has come at too great a cost.
I did not use the term opus causally. The Constitutional Bind requires much of a reader set to engage it in one sitting. But its very sense of overflowing detail and overlapping narratives relays the richness of American constitutional visions that have been lost. Even if one wants to look to history to recovery something more authentically American, Rana is committed to showing us that this is no inspirational straitjacket. If there is anything that has been consistent in visions of American democracy, it is their diversity and conflict. Once recognized this renders possible futures free of our self-imposed, and self-sabotaging constraints.
Mar 1, 2024 Taisu Zhang
There is a traditional narrative about law and legality that scholars have told, in various forms, since the late nineteenth century. In this telling, generalized, formal law emerged as an institutional response to sociopolitical flattening and socioeconomic distancing. As societies transitioned from “status to contract,” abandoning traditional hierarchies in favor of ideals of individual equality, formal equality before the law became more attractive.
Similarly, as economic activities expanded beyond the horizon of closely knit social networks, the institutional need for stranger-oriented transactions and collaboration created immense demand for formal legal institutions that supplied uniformity and reliability across highly diverse socioeconomic terrain. Correspondingly, new ideas of “law,” “legality,” and “the rule of law” emerged.
What has too often been missing from these narratives is a compelling account of the transition itself: how socioeconomic need translated into concrete political, intellectual, institutional change. The idea that demand produces supply over the long term may well be correct, but the specific mechanisms of that supply nonetheless deserve careful study, not least because it tends to affect the final institutional product in both form and substance.
In Redefining the Rule of Law: An Eighteenth-Century Case Study, Christian R. Burset provides a precisely argued, expertly documented, and intellectually sophisticated account of one such mechanism. Through an examination of legal-political dialogue in the eighteenth-century British empire, Burset demonstrates that the specific experience of colonialism generated much of the intellectual and political energy behind modern “rule of law” ideals that have gained both dialogical and institutional dominance in the Anglosphere.
While there was indeed a “rule of law” tradition that had been developed “organically” in Britain, it was a qualitatively “thicker” tradition that often indulged in nationalism and therefore emphasized British uniqueness. It was the British empire’s legal extension into its colonies, North American, Indian, and other, that decisively swung legal-political discourse towards a “thinner,” more abstract “rule of law” ideal that later become the paradigm for modern legality.
Burset’s account offers a clear “before and after” contrast. In the “before” paradigm, which his article traces to Whiggish discourses of the seventeenth century, “rule of law” was not the rule of any law that met generalized criteria, but rather a very specific ideal that was closely tailored to British institutional realities. In this formulation, the ideal had “three core features” (P. 664): first, it was “institutional specific,” in the sense that it identified not with abstract principles but with concrete British legal institutions such as juries, habeas corpus, and freehold land tenure. Second, it was often unabashedly nationalist, juxtaposing British law with negative comparisons to foreign systems. Sometimes, the “other” was the French, whose politicized judges were contrasted with supposedly neutral English juries. In other contexts, the “other” could be Spanish regimes or Asian ones. Sometimes, the comparison was not geographical but temporal, between Whig legality and England’s Stuart past.
Third and perhaps most importantly, the traditional ideal was “thick,” in the sense that it “incorporated substantive goals for society.” (P. 665.) The “rule of law” was not merely the dominance of formalized laws over amorphous politics, but more importantly the rule of good laws—laws that pursued the common good of all British subjects. Specifically, it meant the application of law to protect a measure of freedom, secure property, and equality for qualified subjects, and furthermore to promote Protestantism and the growth of industry. Law therefore became fundamentally intertwined with core religious, political and economic components of British identity.
Compared to this highly historically contextualized “before” paradigm, the “after” paradigm that Burset lays out hews much closer to modern ideals of abstraction and generalization. By the eighteenth century, a new, “thinner” ideal of the “rule of law” had become influential among legal commentators and political actors. Centering around notions of legal certainty and generalizability, this new ideal cast doubt on a number of traditional British legal institutions, including bills of attainder and even the use of judicial precedent itself.
Although not all traditional institutions appeared deficient under this new theory of law, enough did that, by the late eighteenth century, the dominant view among jurists was that British law was “defectively uncertain” (P. 672) and “potentially inconsistent with the rule of law.” (P. 678.) To be sure, ideals of certainty and generalizability played some role even in the traditional, thicker notion of “rule of law,” but there, they were negotiable aspirations, and could be occasionally diluted without perceived damage to the foundations of legality. (P. 677.) The new ideal essentially elevated them to the status of fundamental, inviolable principles, without which the entire enterprise of law and legality would collapse.
This meant, of course, that the new ideal had to drop some of the thicker components of the old ideal: given the perceived failings of traditional British legal institutions, overt nationalism gave way to more politically neutral perceptions of legal functionality. Theoretically, the new ideal would be able to accommodate concepts of the common good, but on that dimension, too, the British system was now recast as a work-in-progress. As a result, “rule of law” now became a thinner and more abstract concept, something anchored in intellectual principles rather than institutional reality.
But what mechanisms bridged this transition from before to after? Here, Burset’s article gestures towards a number of classic explanations, including the demand-supply narrative discussed at the outset of this review, but ultimately, Burset identifies the British colonial experience with legal pluralism as the indispensable force behind the shift. Starting in the eighteenth century, the British Empire began to accommodate more forms of legal pluralism in its colonies, choosing to recognize local laws and customs as legitimately enforceable rather than to force compliance with British law. Much of this was, of course, by sheer functional necessity: as became increasingly obvious with the territorial expansion of the empire, exporting British law to all of its corners required enormous amounts of fiscal and administrative investment, and all too often produced worse outcomes, in terms of socioeconomic order and compliance, than simply preserving local institutions. Correspondingly, British politics came to tolerate, even embrace a more decentralized mode of legal and political governance, thereby producing enormous amounts of institutional pluralism in the empire’s peripheries.
These on-the-ground realities demanded a certain amount of intellectual accommodation by jurists. If only traditional British law met “rule of law” standards, then the kind of legal pluralism that was now proliferating across the colonies clearly fell short of those standards, and in fact offered no hope of ever reaching them. This was a problematic idea for British elites to digest, committed as they were to the self-aggrandizing belief that they were exporting civilization and progress to the colonies.
Under these kinds of intellectual pressures, the new, “thinner” and more abstract ideal of “rule of law” as certainty and generalizability gained enormous appeal. It allowed legal and political commentators to characterize colonial legal pluralism simply as variations of “the rule of law,” thereby preserving the idea that empire and conquest were forces for progress and civilizational elevation. At the same time, this broader ideal synergized with a new, more cosmopolitan worldview among the British elite, in which they imagined themselves the masters of a universal global enterprise, rather than merely the guardians of a parochial local tradition.
Burset’s article echoes recent trends in legal history, international law, and comparative law, in which developments at the peripheries of empire have powerful feedback effects on its center. What distinguishes his account, however, is its extension of that feedback effect to the very core of British legal identity—not merely to specific institutions or politics, but to the very highest ideals of legal discourse. If “the rule of law” is the centerpiece of legal modernity, then at least one highly influential strand of its initial formation was built upon the experience of imperial expansion and governance.
This is a very powerful idea, one that Burset illustrates with due precision and empirical care. His core actors are, for the most part, familiar legal figures like Blackstone or Mansfield or major political figures like Mostyn or Hastings, but given the article’s focus on elite discourse, this is a fully defensible move. Within that rarefied sociopolitical world, the article excavates ideas and dialogues in a fairly muscular fashion, drawing out intellectual patterns, some extending across multiple decades, in a fairly direct and unapologetic fashion. Nonetheless, when the occasion calls for finesse and subtlety, such as in the temporal contrast between traditional and modern ideals of “rule of law,” the article generally supplies them with considerable skill.
One cannot help but wonder about the potential generalizability of Burset’s thesis: the experience of empire was a common one among eighteenth- and nineteenth-century Eurasian powers, and the move towards a more abstract ideal of law and legality was certainly not a uniquely British experience. One wonders, therefore, if the encounter with and toleration of institutional pluralism—something of a basic necessity for any aspirational imperial power, given the resource constraints of eighteenth-century states—had a similar effect elsewhere, pushing elite legal discourse across Eurasia, or at least Europe, in a more cosmopolitan and intellectually abstract direction. At least one other recent work on legal history, Natasha Wheatley’s The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty also points in this direction, offering an account of Hapsburg legal-political discourse as responding to experiences of institutional diversity created by empire.
Burset’s article also offers some fairly compelling insights at the level of political theory. It shows, for example, how ideological change in the realm of law occurred not in direct response to slow, gradual shifts in domestic socioeconomic circumstances, but rather to short bursts of major realignment in geopolitical position. The article does not exactly rule out the former, but it does illustrate the latter’s arguably superior political salience among British elites.
Moreover, it demonstrates the importance of internal coherence to political worldviews: to a large extent, the shift to modern “rule of law” ideals came as a result of elite ideas working themselves into a coherent, self-reinforcing whole, in which different components—about law, about imperial governance, about “Britishness”—tended to mutually support each other. Both of these insights resonate powerfully with recent research on the formulation and sustenance of political ideologies, in which ideological change happens in lurches rather than gradually, with long periods of self-entrenching cohesion in-between.
In an era where much historical writing no longer speaks to broader issues of causality and theoretical mechanism, Burset’s article offers a refreshing divergence from the norm, tackling those issues head-on, but without sacrificing empirical richness or analytical care. It is a significant achievement, one that deserves widespread attention and engagement among the legal historian community and beyond.
Jan 30, 2024 Mary Ziegler
In the aftermath of Dobbs v. Jackson Women’s Health Organization, abortion is once again a crime in large swaths of the United States. Abortion opponents have taken a particularly keen interest in criminally punishing physicians and other abortion providers. Nicholas Syrett’s masterful study of the nation’s most famous “abortionist,” Madame Restell, is at once the story of a significant and poorly understood woman and an illuminating origin story of criminal abortion laws. Restell, née Anna Lohman, was born in England in 1812 immigrated to the United States, and became a single mother before at some point gaining medical training and reemerging as Madame Restell, an unapologetic and famous “female physician.”
Syrett offers a compelling portrait of Restell and the wide range of patients she served. The Trials of Madame Restell also tells the story of the reporters, anti-vice activists, and prosecutors who invented “Restell,” the abortionist who embodied a form of moral decay that her critics called “Restellism.” (P. 2, 58.) Syrett’s book brings to life the world of nineteenth-century New York. Yet despite—or perhaps because—Syrett’s story is deeply rooted within a particular time and place, The Trials of Madame Restell feels all too relevant to post-Dobbs America. Syrett captures the complexity of both pregnancy and its medical treatment, as well as the way that politicians, social movements, and prosecutors deliberately blind themselves to this nuance.
Madame Restell has inspired a number of impressive studies, including Jennifer Wright’s Madame Restell: The Life, Death, and Resurrection of Old New York’s Most Fabulous, Famous, and Fearless Abortionist, which appeared the same year as The Trials of Madame Restell. While Lohman, like many of her contemporaries, had no medical license or obvious formal training, Syrett makes the revealing choice to refer to Restell as she saw herself: as a female physician, “a female practitioner who saw women patients, like midwives had been doing for centuries.”(P. 6.) He draws upon meticulous spadework to tell the story of Anna Lohman, mining sparse records to paint a complex portrait. Syrett’s Restell is one of a kind, a compassionate provider and ambitious businesswoman, but she is also something entirely ordinary, a midwife, who assisted with contraception and childbirth as much as abortion. Syrett acknowledges mysteries surrounding Restell that historians have not yet conclusively resolved—where Restell learned her trade, for example, or what she thought in private moments.
But The Trials of Madame Restell is at much a story of Madame Restell’s era as it is a biography of a single figure. Anna Lohman could become a figure of nationwide notoriety, Syrett writes, because her career coincided with a moment when changes to Americans’ reproductive lives, together with challenges to gender roles and growing urbanization and immigration, inspired a backlash, and ultimately a campaign to criminalize abortion. Restell became the living symbol of “abortionists,” Syrett shows, not only because of her extraordinary success—she had a lavish mansion on Fifth Avenue and did nothing to hide her wealth (P. 223)—but because she defended herself, and at least by implication, the women who sought to manage their fertility. Restell’s advertisements appealed to married women whose health was threatened by pregnancy. Faced with prosecution, she wrote letters to the public defending herself. She thus made herself a target, Syrett convincingly argues, by openly justifying changes to gender roles and reproduction that many preferred be left unspoken.
The Trials of Madame Restell also offers rich portrayals of Restell’s business rivals and patients, many of whom she charged on a sliding scale. (P.56.) Tellingly, Restell and her clients saw her services—abortion, contraception, childbirth, and brokering adoptions—as interrelated, the natural jobs of a “female physician.” Syrett contrasts this understanding with the one developed by Restell’s chief antagonist, Anthony Comstock, the most visible leader of the then-burgeoning anti-vice movement. Comstock helped draft the eponymous 1873 Comstock Act, a federal statute criminalizing the mailing of a vague category of obscene materials, including contraceptive and abortion-related items.
In some ways, Comstock and Restell were cut from the same cloth: both were self-made celebrities and unapologetic about their views. It was for this reason, Syrett suggests, that Restell so infuriated Comstock: she unashamedly embodied the ongoing changes in women’s lives that he railed against. Comstock secured a serious conviction against Restell by changing New York obscenity law—lobbying alongside the New York Young Men’s Christian Association—and, more generally, by changing how men in New York understood her work. Abortion and contraception, Comstock urged, were not part of the standard repertoire of a female physician but antithetical to women’s sexual purity and family obligations. Converting Restell from a female physician into an abortionist was a necessary step for those seeking to convict her.
Restell’s suicide brought a tragic end to a complex and consequential life. Comstock, Syrett reminds us, would brag not only about bringing down Restell but also about encouraging her to take her own life. But The Trials of Madame Restell shows that her legacy lives on. For activists like Comstock, Restell was a convenient symbol of what they called the abortionist: someone who helped women escape the consequences of nonprocreative sex and made a handsome profit in doing so. For patients of her generation, Restell symbolized the opportunity to shape a different life through managing reproduction. And in the years beyond, Restell’s words lived on. As one of the rare nineteenth-century voices questioning the wisdom of criminalizing abortion or contraception, she remained an example to later mobilizations.
Syrett’s Restell emerges as both a singular figure and the product of the period in which she lived, and yet her story has all too many parallels to today. Contemporary anti-abortion groups seek to revive the Comstock Act as a de facto ban on all abortions, while conservative politicians seek to replicate Comstock’s feat of stigmatizing abortion providers as aberrational rather than regular physicians. Supporters of abortion rights have sought, like Restell, to normalize abortion as a medical service and to position it as a part of a broader agenda for reproductive autonomy rather than a stand-alone issue. As Syrett reminds us, we may still be living in Madame Restell’s America more than we would care to admit.
Cite as: Mary Ziegler,
The Invention of the Abortionist, JOTWELL
(January 30, 2024) (reviewing Nicholas Syrett,
The Trials of Madame Restell: Nineteenth-Century America’s Most Famous Female Physician and the Campaign to Make Abortion a Crime (2023)),
https://legalhist.jotwell.com/the-invention-of-the-abortionist/.
Jan 3, 2024 Sara Mayeux
On the day in 1853 when Franklin Pierce was inaugurated as president of the United States, his vice president, William Rufus King, took the oath of office remotely—from his sugar plantation in Cuba, where he was dying of tuberculosis. An Alabama cotton planter, King also owned an estate on the island and was resting there in the hopes (which proved futile) that the tropical air might cure him. As Ada Ferrer writes when recounting this anecdote in her awe-inspiring, Pulitzer Prize-winning work, Cuba: An American History: “The story of the inauguration of an American vice president in Cuba is unexpected” (P. 109).
I’ll say! As the holder of an advanced degree in U.S. history, I would like to think I know a little bit about the twists and turns of American designs on Cuba, but I must admit I did not know this story. As Ferrer goes on to explain, “the spectacle of an Alabama slaveholder taking office as vice president of the United States in the heart of Cuban sugar country” is not merely a fun piece of historical trivia but exemplifies just how intertwined the island and its northern neighbor have always been throughout their respective histories, initially through the economic system of slavery and also through the persistent dreams of prominent Americans that the United States might one day annex Cuba as a territory (Pp. 109-10).
In the prologue, Ferrer aptly describes her book as “a history of Cuba that functions also as a kind of history of the United States” (P. 6). The book’s organizing theme is the two-way (if “uneven”) relationship between the two countries (P. 3). Today, decades into the post-revolutionary period, the full complexity of that relationship has been obscured in popular understanding. While many Americans may recognize the influence of U.S. policy on Cuba, Ferrer posits that they are unaware of Cuba’s full significance as a reciprocal influence upon U.S. history: “The exigencies of the Cold War meant that for decades Americans generally understood Cuba primarily as a small—if dangerously proximate—satellite of the Soviet Union” (P. 5).
Ferrer’s magisterial work includes an excellent overview of the relevant Cold War history, but also makes clear that the 1959 revolution can only be fully understood within the context of the full sweep of Cuban history. The book is panoramic, chronicling Columbus’s arrival, empire and slavery, the Spanish-American War, Fidel Castro’s rise to power, the fall of the Soviet Union, and Castro’s death in 2016. While accessible to a general readership, it also serves as a helpful synthesis of the literature for scholars who are not Cuba specialists.
It is also beautifully written. Ferrer, who emigrated from Havana to the United States as an infant, weaves into the narrative pieces of her own family story, but only intermittently and always in an inobtrusive and enlightening manner. Thus, beyond its Cuba-specific insights, this book also offers a model for how to incorporate a personal voice into scholarly writing.
Cuba is packed with rewarding insights for many different audiences and types of readers. I myself enjoyed and learned a lot from the book on many different levels. In the remainder of this jot, however, I want to highlight two reasons why I found the book thought-provoking on a professional level, as a law professor and legal historian of the twentieth-century United States.
First, the chapters on twentieth-century Cuba, from independence and the transition into a republic through the Castro revolution, are packed with legal and constitutional history. Because I teach constitutional law courses covering the Fourteenth Amendment, which contains the U.S. Constitution’s guarantee of equal treatment, I was especially interested to learn more about Cuban efforts to write equality into foundational legal texts. Cuba’s 1901 constitution declared: “All Cubans are equal before the law.” But the 1940 Constitutional Convention added a provision criminalizing discrimination: “All discrimination due to sex, race, class, or any other motive harmful to human dignity is declared illegal and punishable. The law will establish sanctions for those who violate these norms” (P. 254). Black Cuban leaders argued that a formal declaration of equality was insufficient without an explicit commitment to enforcement. Even with that additional language, this and other progressive provisions still went largely unenforced, although Ferrer notes that the 1940 constitution “became an outsized presence in Cuban politics”; leaders—including Castro—rallied support by trumpeting “their commitment to making it real” (P. 258).
After the revolution, communist leaders sought to mandate equality even within the most intimate relationships. The 1975 Family Code, for example, defined marriage to require “equal rights and duties for both partners” and required families to divide household tasks “according to the principles of socialist morality” (P. 390). It will probably not surprise Jotwell readers that such decrees did not produce marital utopia, but Ferrer includes fascinating material about how Cubans debated, questioned, made sense of, and lived under such reforms. The revolution prompted “abstract debate about human nature itself”—could the state turn Cubans into “new people,” liberated from all of their traditions?—as well as a variety of more specific debates about “concrete government policies on labor, education, and the economy” (P. 395).
These examples are just two of many episodes that made me eager to think about how my teaching on U.S. legal history could be enriched by assigning students some comparative reading from other legal traditions. Second and more generally, the book prompted me to wonder what U.S. legal history might look like if more of the research in the field was pan-American in scope. (To be sure, there are many historians who do take transnational perspectives, but my own work has heretofore been fairly parochial; as Taylor Swift would say, “I’m the problem.”) What U.S. legal histories, I wonder, might we write through the histories of other countries (and vice versa)? That question is among the many that this book left me with, and I finished reading newly energized to expand my own horizons as a legal historian.
Editor’s Note: Reviewers choose what to review without input from Section Editors. Jotwell Legal History Section Editor Sara Mayeux, had no role in the editing of this article.
Nov 17, 2023 Kunal Parker
Rules are everywhere. Given not only the immense variety of rules, but also the great variety of registers through which rules might be understood, one might well ask: is a historical account of rules even possible? In Rules: A Short History of What We Live By, the historian of science Lorraine Daston takes on this daunting task.
Even as she restricts herself largely to the Euro-American world, Daston ranges across a truly dazzling array of rules: rules of conduct in medieval monasteries; the forms of ancient and modern algorithms; the changing structure of recipes in cookbooks; sanitary and traffic regulations in early modern cities such as Amsterdam, London and Paris; the changing rules governing work; the rules of language and grammar; the relationship between law and equity; the emergence of ideas of natural law and laws of nature; the career of casuistical reasoning; notions of sovereign exceptions in political theory; and a great deal more. This is in itself a considerable scholarly achievement.
But Daston offers a great deal more: she advances a broad and suggestive account of historical change between pre-modern and modern rules. According to Daston, pre-modern rules consisted of what she calls rules-as-models. One began with a model or a case, something recognized as particular, specific, and rooted in context, and then used it to order something also recognized as particular, specific, and rooted in context. The application of rules-as models to new problems and situations thus entailed a move from particular to particular, bringing with it a sensitivity to context, an awareness of exceptions, and an acceptance of discretion in applying rules.
Pre-modern rules were “thick” rules, incorporating into their forms the lived realities of their origins and applications. By contrast, modern rules are rigid rules, devoid of exceptions, limits, and qualifications, insensitive to contexts and specificities, embracing the pretention that they can be applied to anything and everything. The realm to which modern rules are applied is a kind of passive material, something to which rules are applied, rather than a universe of specific cases that can speak back to the rules and modify their application through discussion, judgment, and the exercise of discretion.
Indeed, when it comes to modern rules, the discretion that was inevitably part of the application of pre-modern rules-as-models tends to be viewed with suspicion as something to be excised or at least minimized. Modern rules are “thin” rules. For legal scholars, if they keep in mind that the analogy is rough and inexact, a helpful way of thinking about the distinction between “thick” versus “thin” rules might be the distinction between the common law and codes.
Daston is far too sophisticated a historian to insist on any clean historical transition from “thick” rules to “thin” ones. Indeed, she argues that her object in tracing the historical transition from “thick” rules to “thin” ones is not only to tell us a story of change over time. Her object is at least as much to offer an account of when “thick” or “thin” rules are likely to arise and predominate. As she puts it:
This book has traced a historical arc that partially justifies the distinction between pre-modern and modern rules, but only partially.
The chronological terms pre-modern and modern distract from the underlying pre-conditions of stability and standardization that are more domain- than period-specific. Wherever pockets of predictability and uniformity emerge, thick rules can be slimmed down into thin rules; flexible rules (as all thick rules must be) can stiffen into rigid ones” (P. 266; emphasis in original).
In other words, when man creates “pockets of predictability and uniformity,” “thin” rules predominate. Where predictability and uniformity are more elusive, “thick” rules are likely to do so.
According to Daston, the modern West has generated (or at least entertains the conceit that it has generated) more and more “pockets of predictability and uniformity.” As a result, it has sidelined “thick” rules, with their sensitivity to context and their appeal to discretion, in favor of “thin” ones. For Daston, this is an undesirable development. This is because hers is not simply a historical account of how “thick” rules give way to “thin” ones, or even an account of when “thick” and “thin” rules are likely to predominate, but ultimately an expression of a strong preference for “thick” rules.
Daston offers several reasons for her preference. First, the zones of stability in which “thin” rules work well are, she argues, inevitably fragile. Their failure—and our ensuing lapse into conditions of instability and uncertainty—mean that we inevitably turn to “thick” rules. Second, “thick” rules seem to be better than “thin” ones because they encourage human creativity and thought. Because they keep us shuttling between specificities, “thick” rules keep us alert, compelling us to be ever awake to the multiple possibilities they present. Third, Daston argues that “thick” rules are simply more efficient than “thin” ones. Thus: “[F]ollowing models remains a more efficient and flexible way to learn than following explicit rules” (P. 272).
Finally, in Daston’s account, we get occasional flashes that we might even be “hardwired” for “thick” rules. This comes out, for instance, in Daston’s discussion of the frequently doomed attempt to rationalize spelling rules. Why is it, she asks, that there has been such vociferous opposition to getting rid of older spelling rules laden with exceptions and idiosyncrasies and replacing them with “thin” ones that better track sounds? Daston’s response: “Cognitive psychologist Stanislas Dehaene argues that learning to read colonizes parts of the brain originally devoted to facial recognition” (P. 206). In other words, our brains apprehend words in a holistic way, as “thick” specificities irreducible to “thin” rules.
One does not need to share all of Daston’s investments in “thick” rules to admire (and learn from) her account of rules-as-models. We are always in need of more ways of doing things, better ways of thinking through our many problems. To the extent that history can furnish us with models for how to think and work differently, Daston’s rendering of rules-as-models as thinking from particulars to particulars is brilliant, intriguing, and generative. Why not see early modern casuistry anew and recognize its usefulness for our world?
That said, one could raise a few questions about Daston’s account.
To begin with, it would be interesting to know whether the premodern purveyors of “thick” rules themselves viewed them the way Daston does. Were “thick” rules seen as “thick” or just as rules? Were they viewed as better ways of thinking? Was there a sense that they were more efficient? If so, relative to what? It might be impossible to tell in many instances. But I suspect that it is likely that the appreciation of “thick” rules qua “thick” rules is something that only becomes available in a modern world in which a contrast with “thin” rules becomes ever more pronounced. There are no “thick” rules without “thin” ones.
To the extent that Daston’s appreciation of “thick” rules only makes sense relative to “thin” rules, her account can be further complicated on the ground that many of her particular claims about “thick” rules—about their inevitability, their rootedness in our cognition, their generative powers, their superior efficiency—might be made (and have been made) with just as much fluency and energy and enthusiasm about “thin” rules. For Anglo-American lawyers, the endless nineteenth-century debates between codifiers and common lawyers are a case in point. Daston’s account is a tilted in one direction, but it could just as well have been tilted in another.
Given that the very same attributes can be attached as often to “thick” as to “thin” rules, we might come up with a more nuanced picture of “thin” rules. This is not merely because the modern world of “thin” rules might have struck its rationalizing partisans as a salutary step away from the “thick” rule-bound world of royal favors and papal indulgences. In Daston’s account, “thin” rules make sense in zones of uniformity and predictability (which, she argues, inevitably fail us). Where uniformity and predictability are missing, she argues, we need “thick” rules, we need to work from particularity to particularity.
But precisely the opposite might be true. The world of the rule-as-model that Daston celebrates was a relatively circumscribed world in which the rule-as-model worked best when its possible “applications” were not terribly different from it to begin with. This was, ultimately, a world of uniformity and predictability. The pious abbot in the medieval monastery could be a model for other monks. The master craftsman’s world of highly specific, exception-laden techniques rested on presumptions that his apprentices shared his background and could understand the interplay of rule and exception. But in the modern world, with its breaking down of the boundaries of the local and familiar, rules-as-models might have worked less well. Rules-as-models might not have translated across far-flung territories and societies. What was needed was, precisely, the “thin” rule, the rule that could travel.
This was not necessarily a rule that disdained context, as Daston suggests, but rather a rule designed for a world of many contexts, where the old rules-as-models might not serve. There is a lesson here in the fate of the common law in the Anglo-American world around 1900. When it came to substantive law, common lawyerly precedent-based jurisprudence—a set of “thick” rules, if there ever was one—ceded to a set of thinner “procedural” rules so that substantive law-making became the preserve of legislatures and administrative agencies in the twentieth century. But this was because common law judges were simply not up to the task of judging in a complex world in which the common law’s individual-centered, fault-based doctrines were increasingly inapposite. In a wider and more complicated world, “thick” rules could simply not do the job.
The point of my observation is that “thin” rules might be as useful and efficient—perhaps even as worthy of celebration and romantic attachment—as “thick” ones. Daston will agree that context should guide us.
Nov 1, 2023 Thomas J. McSweeney
Lorren Eldridge’s Law and the Medieval Village Community is a call to historians of English law to return to the study of local, community-generated customary law, a type of law that governed the lives of many of England’s people, but that has been pushed to the periphery in favor of the study of the common law. Eldridge presents the medieval village as a space where customary law was generated, a customary law that, while it was informed by the common law made in the king’s courts, differed from it in important respects.
Law and the Medieval Village Community is as much about the historiography of the village community as it is about its history, and Eldridge has a knack for making historical debate exciting and relevant. She tells the story of how scholars of English law, who once saw the village community as central to the history of English law (and indeed to contemporary legal theory), turned away from the village in the early twentieth century in favor of the records of the central royal courts. This shift proved enduring and has yielded a distorted picture of English law, generating a historiography that focuses on elite spaces and elite litigation to the exclusion of the law that was used and created in local communities.
Frederic William Maitland, as one of the few nineteenth-century scholars whose work is still read by graduate students, has shaped the contours of scholarship in English legal history to an extent that is difficult to overstate. In the case of scholarship on the village community, however, Eldridge argues that Maitland’s influence has had something of a malign effect. Although Maitland was critical of the legal philosopher John Austin’s positivist view of the law, he inadvertently reproduced it in his work, treating the law created in the king’s courts as the “real” law of the realm and the custom that governed life in medieval villages as something that only became law if and when it was recognized by the king’s courts.
Why was Maitland so insistent that medieval village communities were not sites where “real” law was generated? The answer has to do with the context in which he was writing. Eldridge carefully situates Maitland’s work within contemporary debates over the village community. The medieval village community and its law had been central to a number of debates of the late nineteenth century, some of which were highly politicized. Maitland was responding specifically to scholars of the “Germanist” school, who thought that they could see the origins of modern democracy in autochthonous village communities. Maitland had legitimate reasons to be skeptical of this scholarship, but he overcorrected.
The story of the marginalization of village custom, as Eldridge tells it, was one of those contingencies of history: just as the history of English law was beginning to professionalize, Maitland, one of the main drivers of its professionalization, became involved in a political debate that caused him to elevate the common law and push local custom to the side. That choice has set the agenda for historians of English law ever since. As a result, the study of the village community would be taken up instead by social historians, who have over the past century done a brilliant job of describing the world of the English village. That world that was much more complex than the records of the king’s courts, which focus largely on the relationship between tenant and lord, would have us believe.
The social historians have not been as interested in the law these communities created, however, and this is where Eldridge calls legal historians to action. She looks at some ways in which the study of village custom might enrich our view of English law in the Middle Ages. The common law treated the unfree tenant as wholly subject to his lord’s whim, and beyond the protection of the king’s court. But a “general commitment to a legality principle” that “is evidenced throughout medieval English society, at all levels of hierarchy” meant that lords often abided by the decisions of their own manorial courts, applying village custom, even when those decisions went against their own interests (P. 170).
Eldridge also presents us with some examples of ways in which the custom applied in local courts could differ from the common law of the realm. To give just one example, Eldridge cites cases in which a condition that would have been void at common law was placed upon a conveyance and was considered perfectly valid in the context of a villein tenure transferred according to local custom (P. 304). When we tell the story of English land law in American property courses, we tend to draw the line back to the strict and technical rules of the royal courts, which applied to free tenements. Eldridge demonstrates that there was an alternate tradition of local custom that applied to a large percentage of the land in England and that was potentially more flexible in its application.
Eldridge’s book is at least in part a call to decenter the common law of the king’s courts in the story of English law, to view it as one part of a broader legal landscape that includes the customary law of the local village community. But Eldridge calls on us to do more than that. In the late nineteenth and early twentieth centuries, the study of the medieval village community was considered important to the construction of legal theory. Scholars believed that legal history could help us to answer big, theoretical questions such as whether property rights are “inherently individualistic” or whether law is “fundamentally a tool which facilitates co-operation, or perpetuates oppression” (P. 15). Eldridge encourages the reader to return to thinking about what legal history can offer to contemporary legal theory, to consider whether “the practice of law across time and space fit[s] with the theoretical or doctrinal models we use to describe ‘law’” (P. 17). As the second half of the title puts it, she calls on us to reinvigorate historical jurisprudence.
