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A Provocative Journey through the Arcades of Legal History

Christopher Tomlins, Historicism and Materiality in Legal Theory, in Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian Del Mar & Michael Lobban eds., 2016).

Christopher Tomlins’ fascinating essay, Historicism and Materiality in Legal Theory, reconsiders the purpose of legal history and its utility for legal theory. For the last three decades, Robert W. Gordon’s landmark article, Critical Legal Histories, has served as the shining lighthouse by which the discipline navigated the murky waters between fact and theory, description and normativity.1 Departing from the evolutionary functionalism of law and society and law and economics scholarship, Gordon extolled the virtues of a critical historicism. In showing the indeterminate character of law’s past, this historicism destabilizes its present. As Tomlins sees it, critical historicism offers a post-structuralist interpretation of law, marked by contingency, complexity, and contradiction. The project of locating law in its socio-temporal context, he argues, generates an almost infinite set of relationships for examination. If critical historicism contends that the relationship between law and society is underdetermined, then Tomlins yearns for bolder causal explanations about legal and social change. Building on several prior pieces, Tomlins’ essay calls for an alternative paradigm to historicism, what he terms “materiality.” (P. 59.)

The essay begins by arguing that historicism has two problems. First, there exists a problem of intelligibility. If historical meaning takes shape only in its context, how can an observer—allegedly objective but also situated in time and place—access this meaning? Second, drawing on the work of legal philosopher Pierre Schlag, Tomlins elucidates the problem of differentiation.2 This is no smaller than the problem of how to distinguish what authoritative texts, corps of experts, institutions, and ritualized practices constitute law. If law and society are mutually constitutive, how do we differentiate between them? Tomlins suggests that the project of legal history should be to examine the process of legal differentiation itself. The essay discusses historical works that illustrate this methodology. Cornelia Visman’s study of state records, for example, explores the process by which administrative technologies produce law.

Tomlins offers Walter Benjamin’s historical materialism as a mechanism by which to resolve the “differentiation problematic through attention to the material fabrication of the category ‘law’….”3 (P. 73.) The apex of Tomlins’ essay discusses how Benjamin’s attention to materiality, in particular the philosopher’s use of montage and allegory, might resolve the problem of differentiation. He also suggests that Benjamin’s dialectical approach might enable historians to explore the conjuncture between past and present, while avoiding the fallacy of objective historical understanding.

Tomlins’ writing is characteristically erudite. While dense, the essay is accessible to a legal historian such as myself who is not an expert in the continental philosophy it engages. I found the essay exciting to read as I near completion of a book manuscript for a couple of different reasons. To begin, Tomlins concludes that legal historians too often retreat from theory. He urges scholars to reject ever-spiraling complexities of factual description in favor of stronger causal explanations. One might understand this as a mere stylistic challenge, but it is at heart a methodological and philosophical one. I took from Tomlins’ essay the warning that legal historians risk giving up explanatory authority when they attribute the relationship between change in law and society wholly to contingency.

One question I had in reading the essay is how to explain structure without falling into the trap of the structure itself becoming a historical actor. Is there a risk that the historian might derive her structural account of legal change from a theory, rather than from a careful examination of archival sources? This would imperil the integrity of the historical project. Might materiality pose some of the same perils as the functionalism that Gordon criticized?

Of even greater significance is Tomlins’ idea that the legal historian’s understanding derives from a confrontation between past and present. Tomlins’ essay offers insight for many who are concerned with the relationship between their professional discipline and present-day commitments. As I analyze the legal history of feminism in the late twentieth century, I am ineluctably engaged in its consequences for our present moment. The normative seems to me inescapable: it guides the research questions I ask and the analytic structure I endeavor to give historical facts. Of course, we are all perennially wary of law-office history: the use of historical narratives to advance predetermined ends, whether it be legitimating the status quo or recovering the vision of an alternative order. Yet acknowledging that one’s normative commitments shape one’s historical research does not lead inexorably to such instrumentalism. Indeed, it might lead a historian to be more self-conscious, analytic, and explicit about the way that such normativity shapes one’s encounter with the historical record.

Tomlins’ essay is part of a larger volume, edited by Maksymilian Del Mar and Michael Lobban, which reinvigorates a dialogue between history and theory. The wide-ranging essays examine the relevance of history to the study of jurisprudence. One quibble is that feminism’s history and feminist jurisprudence receive barely a passing mention in the volume. A related but not equivalent criticism is that women scholars wrote only two of the seventeen essays in the volume. A reader might consider these absences a contingent product of the editors’ selection process. Tomlins might instead point us toward a structural explanation: perhaps the artificiality of a divide between jurisprudence and the study of law’s social effects, or the enduring role that gender plays in the construction of academic networks.

  1. Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984).
  2. Pierre Schlag, The Dedifferentiation Problem, 42 Continental Phil. Rev. 35 (2009).
  3. Tomlins’ essay takes as inspiration and partial subject Walter Benjamin, The Arcades Project (1999).
Cite as: Deborah Dinner, A Provocative Journey through the Arcades of Legal History, JOTWELL (November 6, 2017) (reviewing Christopher Tomlins, Historicism and Materiality in Legal Theory, in Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian Del Mar & Michael Lobban eds., 2016)),

Administrative Constitutionalism in Immigration Law

Kristin A. Collins, Bureaucracy as the Border: Administrative Law and the Citizen Family, 66 Duke L.J. 1727 (2017).

Kristin A. Collins’s recent article ties together “two foundational ‘borders of belonging’ in American law: the rules that determine family membership and the rules that determine political membership.” (P. 1730.) More specifically, Collins, in a case study of the evolution of derivative citizenship, demonstrates how immigration administrators fashioned rules to guide their own decisionmaking in this area and embedded those rules in statutes and legal precedents.

Collins pushes back against the all too common idea that immigration administration is more lawless and discretionary than regulation at the economic regulatory agencies that are the usual focus of scholarship on the administrative state. Instead, Collins observes immigration officials engaged in the same kind of “administrative constitutionalism” practiced by bureaucrats elsewhere.

Gillian Metzger has defined administrative constitutionalism as not only “the application of established constitutional requirements by administrative agencies” but also “the elaboration of new constitutional understandings by administrative actors, as well as the construction (or ‘constitution’) of the administrative state through structural and substantive measures.”1 The rich and growing scholarship on the topic (by scholars including Sophia Z. Lee, Jeremy K. Kessler, and William N. Eskridge Jr. and John Ferejohn) examines such lawmaking by administrators at agencies including the NLRB, the War Department, and the EEOC. Like these “mezzo-level” bureaucrats (to use Daniel Carpenter’s phrase), Collins argues, immigration officials in the Labor Department, State Department, and Justice Department “played an active role in crafting important substantive and procedural legal principles that reflected their understanding of foundational legal and constitutional norms.” (P. 1732.)

Relying on archival sources and case law, Collins demonstrates how immigration officials in the early twentieth century developed rules to govern how children born outside the United States could derive citizenship from their U.S. citizen parents. Her clear and engaging narrative makes clear both the key role of bureaucrats in lawmaking throughout the twentieth century and the way bureaucrats’ racialized and gendered concerns about immigration and citizenship in the early twentieth century became embedded into federal law for decades to come.

From the early republic on, federal law provided that children born abroad became U.S. citizens if their parents were U.S. citizens; similarly, the children of naturalizing parents became naturalized themselves. When Congress in 1855 specified that this applied only to children of U.S. citizen fathers, judges and administrators understood the law to mean only married fathers. Harsh common law rules treated nonmarital children as fatherless, and “in the nineteenth century, judicial and administrative precedents had incorporated that rule into American nationality law, thus excluding from citizenship the foreign-born nonmarital children of American fathers.” (P. 1737.)

In the early twentieth century, however, the State Department began acknowledging the citizenship of children whose parents later married. In adopting a policy based on fathers’ “legitimating” their children, however, officials had to determine what it meant to “legitimate” a child. This was not, Collins emphasizes, “a lawless or purely discretionary endeavor.” (P. 1743.) Instead, in developing internal rules to govern their own decisionmaking, officials looked to family law legitimation rules, which varied by state (these rules included subsequent marriage, formal acknowledgement, and/or judicial order). At the same time, officials drew on federal immigration policies and their own institutional priorities grounded in racial exclusion. Immigration officials thus were guided by a rule (approved by the Attorney General) that approved derivative citizenship in cases where a father had legitimated his child under the appropriate state’s law, but adopted a “more restrictive interpretation of the derivative citizenship statute” when the fathers were American citizens of Chinese heritage. (P. 1739.) In a more inclusive act of administrative lawmaking, officials chose to interpret statutory language regarding American fathers to include American mothers, allowing the latter to pass on citizenship to their foreign-born children. These administrator-drafted rules were subsequently adopted by Congress in the Nationality Act of 1940 and the Immigration and Nationality Act of 1952 (which relied on local law to define “legitimation”), demonstrating administrators’ role in lawmaking outside as well as inside the agency.

As family law evolved, however, administrators clung to a narrower idea of what constituted “legitimation” than many state statutes did. Collins draws on arguments before the Board of Immigration Appeals to demonstrate that administrators “crafted an interpretive rule that in most jurisdictions required the father to marry the child’s mother.” (P. 1753.) These guidelines proved durable even as family law itself underwent radical changes in the 1960s and 1970s. States made it easier for fathers to legitimate their children, and courts drew on the Equal Protection and Due Process clauses to destabilize the marital and sexist presumptions in domestic family law. State family law and federal citizenship law thus increasingly diverged.

Immigration officials, supported by federal courts, continued to embrace a marriage-centric definition of “legitimation,” and courts were similarly loath to eliminate provisions in citizenship law that burdened unmarried fathers but not mothers. The Supreme Court, in one such challenge, chose to defer to the federal government’s plenary power over immigration rather than bringing federal law into conformity with family law trends. And while the Immigration Reform and Control Act of 1986 eliminated formal legitimation requirements for some areas of immigration law, it did not apply to derivative citizenship. The law moved away from a marital model of legitimation but contained different requirements for unmarried mothers and fathers seeking to award citizenship to their children.

Collins was writing on the eve of the Supreme Court’s decision in Sessions v. Morales-Santana (2017), in which Morales-Santana challenged the different residency requirements for unmarried mothers and fathers contained in federal law regarding derivative citizenship. In June, the Supreme Court struck down the provisions (which Justice Ruth Bader Ginsburg, writing for the Court, called “stunningly anachronistic”2). Collins (whose earlier work on derivative citizenship was cited by Justice Ginsburg in the opinion) suggests in conclusion that this case may not be the end of the story. It might instead be another opportunity for administrative lawmaking both in and out of the administrative state.

  1. Gillian Metzger, Administrative Constitutionalism, 91 Tex. L. Rev. 1897, 1900 (2013).
  2. Morales-Santana at p. 14.
Cite as: Joanna Grisinger, Administrative Constitutionalism in Immigration Law, JOTWELL (October 9, 2017) (reviewing Kristin A. Collins, Bureaucracy as the Border: Administrative Law and the Citizen Family, 66 Duke L.J. 1727 (2017)),

The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law

Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017).

“#DearBetsy,” tweeted civil rights activist Alexandra Brodsky on July 6, 2017, “Rescinding Title IX guidance moves us backwards when we desperately need progress in ending campus sexual violence.” The hashtag linked the message to many others, including personal accounts of sexual assault and also (contrary to original intentions) demands for greater protections for the accused. All these missives are aimed directly at Secretary of Education Betsy DeVos.1 And they are fascinating, for they suggest a regulatory landscape different from the one we teach in law school—a landscape in which savvy use of social media may be as important as the Administrative Procedure Act and in which people who lack conventional markers of influence demand the ear of top administrators. Fortunately, we have an excellent resource for understanding this landscape: a crop of historical work on petitions to government administrators. A particularly enlightening example is political scientist Daniel Carpenter’s contribution to Administrative Law from the Inside Out, On the Emergence of the Administrative Petition.

My first encounter with this vein of research was legal historian Kristin Collins’ work on military widows and their petitions for public pensions in the nineteenth century.2 More recently, through a draft article by legal scholar Maggie McKinley, I learned of the North American Petitions Project, a collaborative effort to digitize hundreds of thousands of petitions to government officials between the colonial era and the mid-twentieth century. McKinley uses these data to tell a story about petitioning Congress and how such activity helped give rise to the modern administrative state.3 By contrast, Carpenter—who is a co-principal investigator on the North American Petitions Project and has been at the forefront of digitization efforts—starts this particular chapter in the administrative realm. Drawing on original archival research, as well as on the work of historians Tiya Miles, Laurence Hauptman, and others, Carpenter reminds legal scholars that well before the formation of the Interstate Commerce Commission and other “modern” regulatory bodies, “thousands upon thousands of groups, organizations, and individuals petitioned administrative agencies both formally and informally.” (P. 350.) Carpenter then digs into a striking feature of this early body of petitions: “indigenous North Americans petitioned administrative agencies as much or more than any other population.” (P. 351.)

Carpenter identifies several factors that contributed to Native Americans’4 early and robust use of the administrative petition. One factor was a pattern of congressional deference to the President in matters relating to Indian policy. Presidents, in turn, delegated great power to administrators within the War Department and, later, the Department of the Interior. A second important factor was that these administrators had no intention of leaving Native Americans alone, but rather embarked on prolonged campaigns of dispossession and subordination. In other words, Native Americans had every reason to want to influence administrative decisionmaking. A third factor, Carpenter argues, was a tradition of “complaint and supplication” among indigenous North Americans that was already well established by the time of the Founding. (P. 358.) According to this tradition, all types of authority (i.e., administrators as well as legislators) were appropriate subjects of entreaty.

I could go on about Carpenter’s fascinating examples, but what I find even more compelling is how Carpenter addresses the “so what” question. He offers several answers, generally phrased as possibilities that merit more research. First, we should care about Native American petitions because sometimes they worked—that is, sometimes they resulted in administrative decisions or accommodations that reflected the petitioner’s preferences. Carpenter sees this as “plausibl[e]” in at least some instances of negotiations over indigenous ancestral lands. (P. 351.)

Second, the sheer volume of petitioning shows that Native Americans were never passive subjects of the U.S. government. There was a power differential, to be sure, but petitions suggest an active relationship with state power—a relationship of “monitoring, contestation, and issue framing.” (P. 370.) Moreover, official responses to those petitions demonstrate “the need and desire among early administrative officials for dialogue” with indigenous Americans—a recognition that although they were not “constituents or voters,” they were “more than dependents or mere obstacles to white settlers.” (Id.) In keeping with other exciting recent historical work, the implication here is that we must define “the state” in a way that fits the messy, on-the-ground work of governance and that does not neglect people who lacked formal authority.

Third, Native American petitions displayed interesting commonalities—in their style, in their content, and in their authorship. Carpenter notes, for example, the prominent involvement of women and a tendency over time toward legal and philosophical argumentation. These same patterns, Carpenter suggests, are discernible in later instances of petitioning by non-indigenous Americans, although the nature and degree of influence awaits future study.

I have saved for last one more answer to the “so what” question, because it brings me to the value of the edited collection as a whole (which also includes terrific chapters by legal historians Sophia Lee and William Novak). Drawing on history, Carpenter calls our attention to a feature of contemporary American governance that we know almost nothing about. Petitions to administrative agencies are “an everyday reality for many regulatory agencies,” Carpenter notes, but owing to the predilections of mainstream administrative law scholarship, we remain in a state of “collective ignorance” about them. (P. 350.) Like the work of Jerry Mashaw, which this collection honors, Carpenter’s chapter helps us look with fresh eyes on territory that we imagined had been thoroughly mapped and invites a more diverse set of scholars to join the expedition.

  1. On the launch of this social media campaign, see Brittney McNamara, This Campaign Wants Donald Trump to Take Sexual Assault More Seriously, Teen Vogue, Jan. 11, 2017.
  2. Kristin A. Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Public Marriage-Based Entitlements, 31 Law & Hist. Rev. 1 (2013).
  3. Maggie McKinley, Petitioning and the Making of the Administrative State, Yale L.J. (forthcoming 2018) (on file with author).
  4. In my own work, for reasons I explain there, I have used the term “American Indians” to refer to indigenous North Americans. Karen M. Tani, States’ Rights, Welfare Rights, and the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935-1954, 33 Law & Hist. Rev. 1, 3 n.6 (2015). I adopt here the terminology that Carpenter employs.
Cite as: Karen Tani, The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law, JOTWELL (September 11, 2017) (reviewing Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017)),

Democracy’s Golden Rules

These are interesting times to be an historian of democracy. Historians are beginning to explore the myriad ways that people outside of and even within political officialdom have pressed their claims for recognition, respect, and inclusion in politics, governance, and society. This work is steadily reshaping our understanding of the historical relationships between law, democracy, and the state. At the same time, we have witnessed recently the emergence of a politics that appears to many to have up-ended many of our ideas and practices of democracy. Political ethics of virulent self-aggrandizement, relentless short-term thinking, and total retaliation, in particular, are increasingly prominent. In this moment of heightened attention the question persists: what is democracy?

Too often we reduce democracy to principles like majoritarianism, egalitarianism, or to institutions like voting and elections. In Toward Democracy, James Kloppenberg refuses to be cabined by reductionist or essentialist conceptions of democracy. Instead, his focus is on how Western thinkers developed an ethical (as opposed to an institutional) framework for democracy, a set of “principles” and “premises” which, he claims, grew out of Christianity. These ethics form a dissonant political harmony that makes democracy a fragile political experiment, containing both the highest aspirations of humanity and the seeds for their betrayal.

Toward Democracy falls within the “monumental” category of books, both in terms of size and scope. Not only is the book around 900 pages of text and reference footnotes, but Kloppenberg also has made available separately 500 pages of historiographical notes. Substantively, his intellectual history surveys more than two millennia of ideas impacting the development of democracy in Western civilization, focusing mostly on French, English, and American ideas and practices from the 16th-19th centuries. However, Kloppenberg is most interested in understanding and explaining both the emergence of a democratic system in the United States and its transatlantic effects. Along the way he offers novel re-interpretations of the work and significance of thinkers from John Winthrop and Roger Sherman to John Locke, Montesquieu, John Adams, James Madison, and Alexis de Tocqueville.

But what caught my attention about this book, and what I want to focus on here, is Kloppenberg’s conception of democracy, which he defines broadly as the “shared assumption that all citizens should have the capacity to shape their own lives within boundaries established by the standards and traditions of their communities, and that all citizens should be able to participate equally in shaping those standards and revising those traditions.” (P. 5.)   This shared assumption of what would come to be known in the nineteenth century as “ordered liberty” attempts to develop simultaneously the capacities of both the individual and the community, and is founded upon a set of basic “principles” — popular sovereignty, autonomy, and equality. The question, of course, how exactly democratic theorists sought to achieve this simultaneous cultivation of individual autonomy and public good?

For Kloppenberg, democracy is as much “an ethical ideal” as a set of institutions. In fact, I think it’s fair to say that he prioritizes the ethical over the institutional. One of his most important insights is that democracy’s ethical ideal can be traced to basic Judeo-Christian principles—especially the golden rule which admonishes believers to treat others with respect. Christianity helped to shape democracy by inculcating ethics of humility, mercy, forgiveness, and equal respect for others, which shaped democracy’s “underlying premises”: deliberation, pluralism, and reciprocity.

Kloppenberg argues that the ethic of reciprocity is perhaps the most important democratic premise. It forces citizens to respect and weigh distinct aspirations and worldviews, facilitates ancillary ethics of modesty, humility, and benevolence, and recognizes the human inability to identify absolute truths. Pluralism and deliberation are the means by which reciprocity is extended politically. Pluralism denies any “fixed unitary conception of the good life,” while deliberation is a mechanism for generating “provisional truths” through a process of “free inquiry.” (P. 9-11.)

These premises – reciprocity, pluralism, and deliberation — provide popular sovereignty’s motive power. Popular sovereignty can operate only if truth is provisional. Once truth becomes absolute self-government (in both senses) is at an end, individuals can no longer shape their own destiny, nor can they participate in shaping or revising the standard and traditions of their communities.

Democracy’s promise, however, is always haunted by its potential for irony and tragedy. As Kloppenberg explains, “recurrent creations of social and political arrangements that, although often initially appearing to mirror popular desires, ended up either freeing previously repressed impulses that undermined democracy or generating other pressures that produced new and unanticipated forms of dependency and hierarchy.” (P. 13.) If political victory is interpreted as the final rather than the provisional Word, for instance, and the institutions supporting and promoting deliberation, pluralism, and reciprocity are weak, the results can be catastrophic, as in the French Revolution, the Revolutions of 1848, or later, in the Weimar Republic.

It is impossible to read Toward Democracy without thinking about our current political climate. The democratic principles and premises that Kloppenberg develops seem a long way from the emerging ethics of self-aggrandizement, short-term thinking, and total retaliation. Total retaliation (the impulse to tear down political and economic institutions) can only subvert democracy’s principles and premises. American institutions are, of course, stronger and more developed than those of nineteenth-century European nations, but it is fair to ponder where we sit today between the promise and tragedy of democracy. Kloppenberg has given us a set of tools for reflecting upon and thinking through this question both as historians and citizens.

Cite as: Roman Hoyos, Democracy’s Golden Rules, JOTWELL (July 25, 2017) (reviewing James T. Kloppenberg, Toward Democracy: The Struggle for Self-Rule in European and American Thought (2016)),

The Lawless Workplace

Law is simultaneously at the center and the periphery of Premilla Nadasen’s engaging study of the domestic workers’ movement of the 1960s and 1970s. The absence of regulation made the household a largely lawless space in which the shadow of the law—and of the civil rights movement—nevertheless loomed large. Though not primarily a legal history, Household Workers Unite highlights how the law’s limitations can foster collective action in sometimes surprising ways. Beyond the reach of New Deal legislation and of labor and employment regulation generally, the African American women who dominated the ranks of household laborers for much of the twentieth century campaigned not only for legal rights but for material and dignitary benefits beyond the law, pioneering new organizing strategies that paved the way for the twenty-first century labor movement.

The power of storytelling is central both to Nadasen’s book and to the legal and extralegal activism of the women she profiles therein. In spare, accessible prose, Nadasen introduces little-known characters who made history: Dorothy Bolden, a civil rights and economic justice activist who used city bus lines as an organizing site; Geraldine Roberts of Cleveland, Ohio, whose functional illiteracy did not stop her from launching one of the first domestic workers’ organizations; Josephine Hulett, a household worker in Youngstown, Ohio who mediated between local workers’ rights groups and the National Committee on Household Employment (NCHE); Edith Barksdale Sloan, the granddaughter of a domestic workers who became a lawyer and activist who facilitated the formation of the first national organization of household workers; Carolyn Reed, who used money earned from her household labor to gain financial and emotional independence from a loveless adoptive family and later became a national organizer and head of the NCHE.  Better-known figures such as civil rights icon Rosa Parks, Women’s Bureau head Esther Peterson, National Council for Negro Women leader Dorothy Height, and Representative Shirley Chisholm also make appearances, but it is household workers themselves whose stories rightfully dominate this thoughtful, often riveting narrative.

The long civil rights struggle spurred many domestic workers from private indignation to public action—action that Nadasen persuasively argues should place them not in the shadows but at the forefront of labor and social movement history. Accounts of Depression-era “slave markets,” in which housewives selected domestic workers as casual day laborers resonated with African American women who began to see their own struggles not as isolated instances of unfairness but as part of an intergenerational pattern of injustice.  Local organizing in cities throughout the country followed, often deeply connected to racial and economic justice movements.

Domestic worker organizing had historical antecedents, but it accelerated at midcentury, when a perceived convergence of interests between middle-class and professional (white) women, on the one hand, and domestic workers, mostly women of color, on the other, prompted professionalization initiatives to provide training, combat stigma, and improve working conditions. Labor feminists hoped these efforts would counter the casualization and de-skilling of household labor brought about by technological and social change while assuaging the domestic labor shortage that attended married white women’s increasing labor force participation. The work of national organizations such as the NCHE also dovetailed with the anti-welfare discourse that emerged as public assistance increasingly became associated with single black mothers rather than the “deserving” white widows and deserted wives who dominated early twentieth-century images of mothers’ aid programs. Nadasen identifies the late 1960s as a new departure for domestic worker activism at the national level, as Edith Barksdale Sloan took the helm at NCHE and household workers themselves increasingly assumed a leadership role in defining the organization’s goals and strategies. This shift toward grassroots organization and self-determination reflected a broader political ethos of community empowerment that enjoyed a brief ascendancy during the War on Poverty.

Nadasen explores the fraught relationships between employers and employees in the home and the intimate nature and location of work in a domain usually considered intensely private and proprietary. While workers’ stories of unjust treatment rightfully predominated in the rhetorical arsenal of household labor activists, accounts of “good” employers served to underscore that domestic work was not an inherently oppressive occupation: it was possible to create working conditions and relationships based in mutual respect and fair remuneration. Employers’ stories conveying the depth of their appreciation for the difficult and valuable work of caring for loved ones and maintaining a home could further workers’ efforts to bolster the dignity and honor of their profession. But at the same time, Nadasen notes, these tales of devotion above and beyond the call of duty reinforced employer values of loyalty and self-sacrifice at the expense of the health and well-being of household workers and their own families. As Nadasen writes, “even though household workers expressed love of their labor, they did not see their work as a labor of love.” (P. 88.)  As household worker and activist Carolyn Reed said, “I don’t need a family. I only want a job.” (P. 89.)

The home as workplace reinscribed racial and class boundaries, contributed to the degradation of domestic labor and the commodification of domestic workers’ bodies, character, and emotional labor. Nadasen’s account recalls Dorothy Roberts’ classic analysis of “spiritual and menial housework,” in which white women’s maternal labor is valorized as intimate and nurturing, while the carework of women of color is demoted to the status of manual labor. She draws explicitly upon the work of Darlene Clark Hine on African American women’s “culture of dissemblance” to understand how household workers often presented a congenial and open countenance to mask their closely guarded private thoughts and selves. At the same time, Nadasen notes that “[t]he personal relationship that made this job so capricious and unpredictable could also be a source of power for domestic workers.” (P. 109.) Protagonists’ stories include small but satisfying moments of resistance: “accidentally” spilling a tray of hot food on a disrespectful dinner guest; telling an abusive employer off; quitting without notice.

The challenges facing domestic labor organizing were manifold and profound: chief among them, isolation in homes where household workers were often their employers’ sole employees; the lack of a regular labor market or a structure for collective bargaining; and, of course, the exemption of domestic workers from legal protections and benefits, such as minimum wage laws, workers’ compensation, the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA). Employers could insist that workers perform duties outside their original job description and work inhumanely long hours for no additional compensation and if they refused, fire them with impunity. Wage theft, dangerous and exploitative working and living conditions, undercompensation, and emotional abuse were more difficult to combat under conditions of isolation and extreme power imbalances.

Distrustful of traditional unions with their frequent disregard for marginalized workers generally and women and men of color in particular, household workers pursued looser and more democratic organizing styles. Lacking a centralized workplace, they often organized in public spaces. Organizing strategies included not only collective action and mobilization but also empowering individual workers to engage in one-on-one negotiations with their employers, sometimes with the help of mediators. They also engaged in law reform advocacy, accelerating in the 1970s with a “strategic alliance” between predominantly white middle-class feminists and household labor activists who campaigned to amend FLSA to extend minimum wage protections to private household workers. Thanks in large part to earlier feminist labor activism, by the 1970s household employees were among the few categories of workers excluded from minimum wage protections. To claim protection from labor laws and fight for access to the “fringe benefits” many American workers took for granted was a powerful statement of social and economic citizenship. Congressional opponents raised the specter of “the federal bureaucracy” invading “the kitchen of the American housewife,” but Nadasen contends that a deeper fear motivated their resistance to the regulation of domestic employment—the fear that combating the devaluation of household labor would denaturalize the gendered division of family labor itself. As Secretary of Labor Peter Brennan pithily put it, recognizing the value of household labor would “open the door to a lot of trouble. Your wife will want to get paid.” (P. 132.)

Once again, the household workers’ movement effectively capitalized on the convergence of interests between feminists primarily interested in expanding opportunities for women outside the home and household workers themselves. Not only did professional and middle-class working mothers depend upon household labor, some came to understand its devaluation as affecting most or all women across class and racial lines. Nadasen rightfully emphasizes the limitations of this alliance: for one thing, many middle- and upper-class feminists prioritized equal employment opportunity, and antidiscrimination laws did little to alleviate racial and economic inequality. For another, household workers’ movements had more in common with welfare and economic rights movements in their ideological and experiential roots.

Notwithstanding the penultimate chapter’s focus on the legislative battle over FLSA extension, what is perhaps more striking about the role of law in Nadasen’s narrative is its absence. And even when domestic workers succeeded in winning inclusion in FLSA protections, the law had a “mixed legacy,” stemming in part from the failure to create an effective enforcement apparatus to make real the “abstract construct of individual equality.” Nadasen makes clear that while rights were important to domestic workers, they were more a means to the end of building “a profession that is respected and pays adequately,” in the words of worker-activist Josephine Hulett. (P. 145-46.)

Further, by the 1970s many domestic workers were leaving private household employment and turning instead to agency-mediated home health-care work—which was exempt from the FLSA amendments. So too was live-in employment, increasingly the province of immigrants. Nadasen’s final chapter addresses the status of immigrants in the overwhelmingly African American household workers’ movement. The immigration reforms of 1965 both increased migration from previously restricted countries in Asia and Africa and tightened controls at the Mexican border; migration from the Caribbean and from Puerto Rico also increased during this period. Although activists worried that an influx of immigrants and migrants would further degrade wages and working conditions, Nadasen notes that domestic workers’ organizations did not resort to the xenophobia that elsewhere fueled calls for the deportation of undocumented immigrants. Leaders’ efforts to reach out to immigrant workers enjoyed limited success, but Nadasen suggests that they were both symbolically important and reflective of the movement’s inclusive conception of labor rights. Moreover, domestic workers joined a larger campaign to organize low-wage workers, offering a critical perspective on feminist activism that often minimized or overlooked the concerns of low-income women at the margins of the labor force.

From the vantage point of the twenty-first century, the world described in Household Workers Unite is largely familiar—for better and for worse. Familiar in the relative lawlessness of the home as a workplace, despite some significant advances at the local state and federal levels. Familiar in the complicated relationships between employers and employees in the sphere of intimate labor. And, unfortunately, all too familiar in the stories of degradation, exploitation, and abuse that continue to characterize the experiences of many marginalized workers.

Also familiar is the courageous activism of domestic workers who continue to organize and to forge uneasy but sometimes powerful alliances with employers and with feminist organizations. As Nadasen suggests, the organizing model pioneered by African American domestic workers in the 1960s and 1970s informed the larger labor movement in subsequent decades. And, increasingly, domestic workers’ organizations have begun to win significant victories—promoting a Domestic Workers’ Bill of Rights, promulgating model employment contracts, passing legislation to protect household employees at the state and local level, and encouraging the prosecution of some of the most egregious abuses.

The most striking shift, already underway in the 1970s, is the emergence of the transnational market that now characterizes domestic work and the predominance of immigrants among household employees, especially in major population centers. Now the lawlessness that enabled exploitation with impunity stems in part from exemptions from legal protections and in part from the precarious immigration status of many domestic workers. Today, undocumented workers and noncitizens suffer from a vulnerability which exacerbates preexisting power imbalances and renders the isolation of domestic employment all the more dangerous and terrifying.

Cite as: Serena Mayeri, The Lawless Workplace, JOTWELL (June 29, 2017) (reviewing Premilla Nadasen, Household Workers Unite: The Untold Story of the African American Women Who Built a Movement (2015)),

Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution

Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.

Yet Klarman manages to give us a story that demands reading despite its familiarity. There are three reasons why The Framers’ Coup succeeds despite covering a subject that doesn’t lack for historical attention. First, the narrative he relates is both exhaustive and sparkling. It is encyclopedic without being an encyclopedia. The story moves along briskly because Klarman’s prose is simple and propulsive. Yet any fact that a reader would like to know about the framing and ratification of the Constitution is in here. We get the comforting reassurance of hearing well-told versions of stories we already know, such as the famous large state-small state compromise over representation in Congress. But Klarman also highlights the importance of issues that have slipped out of the traditional narrative. Only an expert in eighteenth-century political history would know of the profound effect that John Jay’s failed yearlong negotiations with the Spanish over navigation rights on the Mississippi had on the deliberations at the Philadelphia and subsequent ratifying conventions. (Klarman convincingly argues that Jay’s attempt to bargain away these rights in exchange for a favorable commercial treaty with Spain did more to engender southern fears about a powerful, northern-dominated federal government than any other issue, slavery included.)

The narrative is also replete with lesser-known tales of political skullduggery: the Pennsylvania legislature’s decision not to pay the state’s delegates to the convention, thereby decreasing the likelihood that less elite delegates would attend; and Patrick Henry’s ultimately unsuccessful attempt to gerrymander James Madison out of the first Congress. The existence of these and many other examples of “bare knuckled” political tactics (P. 612) are central, as we shall see, to Klarman’s analytic framework for his story, but they also make for excellent reading.

The second thing that makes The Framers’ Coup such a pleasure to read is Klarman’s decision to emphasize the contingency of his narrative. This is most noticeable in his chapter on the ratifying conventions. Klarman shows that many of these contests, particularly in the largest states, were decided by slim margins. He makes clear that the entire process could have come out the other way for a variety of reasons, not the least of which was the Antifederalists’ tactical error of holding the New York and Virginia conventions after most of the other states had ratified the Constitution, thereby presenting these crucially important and closely divided conventions with what was essentially a fait accompli.

Other such contingencies abound. What if Washington had refused to attend the Constitutional Convention, thereby denying it his unquestioned legitimacy? (Klarman demonstrates that it took some real arm-twisting to get the General to go.) On the other hand, what if Patrick Henry had decided to go, thereby adding to the deliberations a politically savvy and exceptionally gifted orator who was opposed to the centralizing preferences of most delegates? (Klarman reports that the historical record is unclear as to why Henry refused to attend the convention despite the fact that the Virginia legislature appointed him.)

As for the actual substance of the Constitution, the complexity of the document, combined with time constraints and a focus on certain controversial subjects (particularly the nature of each state’s representation in Congress), meant that many parts of the proposed Constitution were sent to the ratifying conventions without much thought or debate. Thus, Klarman demonstrates that some of its most important provisions, such as how the president was selected, “seemed” to be the product of “an almost random solution.” (P. 599.) By highlighting all these contingencies – would more Antifederalist delegates have gone if there hadn’t been an outbreak of smallpox in Philadelphia that summer? – Klarman creates a narrative with many of the characteristics of an action movie. We know that our “hero” (the Constitution) will triumph in the end, but we are thrilled by each of the multitude of close escapes it makes.

Finally, The Framers’ Coup is an engaging read because of Klarman’s forthright and, I imagine, controversial interpretation of the events he recounts. It’s all there in his title. Klarman views the framing and ratification of the Constitution as a coup d’état. It was a political outcome, he repeatedly argues, that did not reflect the desires of the majority of Americans. Most people may have been frustrated with the Articles of Confederation, but the creation of a completely new governing document that dramatically increased the power of the federal government was not the solution most would have wanted. Instead, that outcome reflected the desires of the emergent national elites who were appalled by the redistributive, leveling actions of many state legislatures in the 1780s. It was adopted, not because of its popularity, but because of the political savvy of the Federalists, their willingness to use underhanded tactics, their domination of the national press, the gross malapportionment of many of the ratifying conventions, the tactical ineptitude of the Antifederalists, and, quite frankly, a dose of good luck.

This brief description of Klarman’s analytic framework risks portraying The Framer’s Coup as nothing more than recycled Charles Beard: a reassertion that the Constitution was a document proposed by mercantile elites to protect their depreciating securities. Yet, Klarman is much more subtle than this. First of all, his focus on the contingency would have no place in Beard’s reductionist account. Second, he catalogues a whole host of interests – political, economic, religious – that determined why any individual would support or oppose the proposed Constitution. Unlike Beard, Klarman’s primary point is not that the framing of the Constitution was designed to further the economic interests of a particular group of people. Instead, Klarman wishes to emphasize that the framing was a political act that was supported by people for a host of reasons. The main thing he impresses on his readers is not that some particular class benefited from the Constitution’s adoption, but that all the actors in the drama of framing and ratification were engaged in a political struggle rather than a philosophical one.

Thus, Klarman’s story of the framing is not one of brilliant political philosophers collaborating on a document to preserve their republican revolution. Instead, it is one of “ordinary politics” (p. 8) in which each side attempted to create a federal government that would further its mundane political interests. While the debates at the Constitutional Convention frequently became philosophical, Klarman suggests that these arguments changed no one’s mind. They were simply rationalizations for particularized interests. In Klarman’s decidedly unromantic view of the Framers’ political thought, ideas such as popular sovereignty or Federalist No. 10’s famous theory of factions were simply stalking horses for increasing the power of the federal government in order to prevent state-level public policies that the elites disliked. There is no doubt, Klarman tells us, that James Madison was a genius, but that genius was as much political as philosophical. Our graduate school debates about “liberalism versus republicanism,” or the importance of “civic virtue” are gone from the narrative of the framing. Instead, we are left with a story of politics and power.

It seems likely that The Framers’ Coup will engender a strong reaction. Slaying sacred cows can be a dangerous business. Klarman seeks to replace the often reflexive adulation that the Framers engender in our popular culture with a more realistic portrayal of their motives. He also takes aim at an academic literature that has often emphasized intellectual history and political thought at the expense of politics. Wherever one stands in these debates, however, it is impossible to imagine that The Framers’ Coup will not become an essential text for understanding the intent of the Framers and the history of the Constitution.

Cite as: Reuel Schiller, Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution, JOTWELL (May 31, 2017) (reviewing Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (2016). ),

“Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications

Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by present-day legal scholars.

Herman Melville famously wrote in Moby-Dick that whalemen settled their disputes using “hard words and harder knocks – the Coke-Upon-Littleton of the fist” (Moby-Dick, Chapter 89). As Deal shows, however, little violence actually sprung up when the crews of two (or more) ships pursued a whale but only one took it.

Deal’s explanation is that captains had incentives to engage in negotiations in a gentlemanly manner. Ownership of a whale (or shares in its blubber, sperm, or bone) was a question for the captains to negotiate and, if they could not agree, the owners of the ships could decide to pursue arbitration or, in extremely rare cases, litigation. Litigation was unpopular because it was slow and expensive. These usual problems were exacerbated in an industry where witnesses would quickly be unavailable and onto their next voyage, Deal explains. Captains spoke often about personal ethics and “laws of honor.” Good relations between captains were imperative to survival on whaling voyages because one captain might well need to turn to another for assistance if his ship ran into trouble in ice or the high winds and waves of storms at sea.

Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)

So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163.) Hence, Coke-Upon-Littleton, i.e. legal rules, were only a very small part of what was in operation.

It is certainly true that lawyers and judges tried to generate firm rules from the handful of whaling cases that did appear before them. However, when they did so, they were not apt to follow custom or care very much about what whalemen actually did. And so when they issued rules like “fast-fish, loose-fish” (the whale was yours as long and for only as long as you remained attached to it), as the British courts did in whaling cases coming from the Greenland fishery, they deliberately ignored the rival custom that was certainly alive in that industry of “iron-holds-the-whale” (the whale went to the first ship to affix an iron with its mark on it regardless of whether it remained attached). Or they did worse, misunderstanding or misapplying custom, as American courts did dealing with disputes that arose in the Sea of Okhotsk (as in the Massachusetts United States District Court cases Swift v. Gifford (1872) and Taber v. Jenny (1856), as Deal explains).

Deal’s principal argument in the book is that whalemen “largely ignored judicial pronouncements as to the customs of whaling and continued to operate in ways that made sense to them in their relentless quest to kill whales.” (P. 2.) And “Anglo-American courts failed to understand how whalemen settled disputes [because] lawyers and judges were never all that interested in or concerned about whaling practices.” (Id.) Hence, there was a fundamental disconnect between the two worlds, impossible to see in the few litigated cases, which give the impression that whalemen operated according to settled customs that the judges turned into (or refused to turn into) rules. However, the reality was much more complicated. The customs were much less settled, the judges did not seem to understand them or preferred to ignore them, and the rules the judges made were probably of little consequence to the whalemen.

What happened to whales under the pressure of this relentlessly extractive industry is a tragedy, although Deal argues it was not technically a “tragedy of the commons.” Why? Because it is unclear, at least before 1850, that it was understood to be possible to hunt whales to extinction. Hence, whalers were not taking from the commons knowing that it was hurting the collective resource but doing so anyway in order to further their own economic short-term interest. They could not then have been knowingly engaged in a race to the bottom, Deal argues, because the ocean was (conveniently) thought to be boundless, its bounties limitless, the whale mythical and hence indestructible. When it became increasingly difficult to find whales, they were thought to be retreating further and further away, (romantically) hiding like the great White Whale from Ahab, rather than disappearing. This might seem laughable and implausible to us sitting now where we do with our current ecological consciousness.

Deal explains at the end of the book how petroleum developed as an alternate fuel for lighting and machine oil lubrication, a move that, fortunately for them, saved the whales. This is an arresting historical irony given our current crisis and the very well-grounded fears we have about who or what technological innovation will save us from our relentlessly extractive pursuit of oil and gas given the turn towards tremendously environmentally destructive processes such as fracking.

This book is an excellent read. Given its exploration of the great gulf between law-on-the-ground and law-in-the-courts, it has the potential to become a classic law and society study. It is particularly useful for legal historians interested in the way that history complicates our understanding of economic self-interest. The whalemen were primarily motivated by economic self-interest, there is no question. Yet the tight-knit nature of their group and their hazardous physical surroundings made ethical conduct (at least towards one another if not the whales) essential. That conduct required a certain kind of flexibility that we fail to understand if we continue to insist, as judges and lawyers of the day did, on reducing the norms they followed to a legal rule or custom.

This was a point that Herman Melville probably well appreciated when he surely intentionally mashed together the law of “fast-fish, loose-fish” and the custom of “iron-holds-the-whale” in his famous Chapter 89 in Moby-Dick. He might well have been trying to make the point that Deal demonstrates through his historical research – namely, that this was not an industry governed by pure law or custom; it was both of these plus more, a mishmash of different norms and priorities. The ways that all of these forces interrelated were loosely grasped even by participants themselves. Hence, the order that famously prevailed in the industry (emphasized in Ellickson’s Order Without Law) was neither a consequence of law, Melville’s Coke-Upon-Littleton, nor a product of well-settled understandings. It was more fluid and complicated than either of these.

Cite as: Angela Fernandez, “Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications, JOTWELL (May 1, 2017) (reviewing Robert Deal, The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (2016)),

The Science of Sexuality

Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34 Law & Hist. Rev. 487 (2016), available at SSRN.

Marie-Amélie George’s meticulously researched, provocative study of early gay-and-lesbian custody cases focuses on the power of social science research to reshape both the law and the larger society. George takes us inside the courtroom fights, landmark parenting studies, and conservative strategies that have defined debates about the meaning and origins of homosexuality. Using published opinions, rare trial records, oral histories, personal correspondence, and social-movement records, The Custody Crucible describes how social-science arguments made the difference to gay and lesbian parents seeking to prove that their sexual orientation in no way harmed their children.

But the relationship between scientific research and litigation that George excavates is complex. She convincingly argues that courtroom battles sparked new research about the impact of gay or lesbian parenting on the sexual orientation and gender identity of children. As importantly, the progress made by gay and lesbian parents helped set the agenda of conservative organizations intent on demonstrating that homosexual parents were often sexually abusive, impoverished, and unable to stop their children from becoming deviant. Nuanced and thoughtful, The Custody Crucible contributes to a rich literature on the relationship between cause-lawyering and social change. However, George breaks out of the framework often governing these studies, looking beyond the overall benefit a movement can expect from winning or losing in court. The Custody Crucible illuminates how litigation can help frame scientific questions that resonate well beyond the courtroom.

George begins with a comprehensive survey of available gay-and-lesbian custody cases decided between the 1970s and 1990s. Her research challenges the narrative of growing tolerance of homosexuality often told in histories of sexual orientation. Indeed, she suggests that regional and ideological differences among states played a definitive role for more than a decade. While acknowledging the limits of the remaining evidence, George compellingly argues that courts became more receptive to the demands of gay and lesbian parents only in certain places and only in response to an emerging body of scientific research on child development.

As George argues, the social-science research that would transform attitudes toward homosexuality developed partly in response to a shift in custody doctrine in state courts. Gradually abandoning the assumption that gay or lesbian parents were necessarily unfit, many jurisdictions in the 1970s began moving toward the so-called nexus approach, asking whether a child suffered any harm as a result of her parents’ sexual orientation. While interpretations of the new requirement varied widely, it opened the door to different scientific strategies. In particular, throughout the period George studies, courts remained preoccupied with the idea that children raised in a gay-friendly environment would become gay, lesbian, or transgender themselves. Under pressure because of this new approach, gay-rights organizations developed a roster of expert witnesses willing to testify that the children of gay and lesbian parents were no more likely to become homosexual than anyone else.

The nexus test also inspired scientific researchers convinced that they could put an end to the uncertainty surrounding gay-and-lesbian parenting. Legal issues—the best interests of the child and the prospect of harm to children—shaped the questions researchers asked and the length and timing of their studies. Scholars consistently maintained that having gay and lesbian parents made no difference to their children’s sexual development. As this body of work grew, many parents saw their chances in court improve substantially, particularly on the East and West Coasts.

However hopeful George’s story appears at first, the flourishing of social-science research on sexual orientation was not without its dark side. To begin with, some courts ignored the emerging work on sexual orientation, seeing custody as a matter of morals rather than social science. Even when courts legitimized pro-gay parenting studies, case law and research inadvertently reinforced the conclusion that homosexuality was the kind of harm that should be avoided at all costs.

Nor, as George shows, did the receptiveness of some courts cut short scientific battles about homosexuality and child-rearing. She recaptures the tactics of conservative researchers, legal academics, and lawyers who recommitted to preserving the status quo challenged by gay and lesbian parents. At first, conservatives worked primarily outside the courts, never fully immersing themselves in the custody cases that continued to unfold across the country. It was not until the 1990s that conservative groups meaningfully intervened in litigation, participating in co-parent cases that conservatives feared would undermine the traditional definition of the family. Nevertheless, George reveals the influence of anti-gay researchers like George Rekers, Paul Cameron, and Joseph Nicolosi on subsequent battles about the treatment of AIDS victims and the justification for discrimination against gays and lesbians across legal domains.

The Custody Crucible makes an important contribution to a growing tradition of legal and historical studies that focus not only on social movements’ reliance on law but also on the intersection between legal outcomes and scientific research. George’s piece sheds light on these issues at a time when they are becoming more politically and legally urgent. Scientific questions about the impact of global warming define national elections and legal disputes. In the aftermath of the Supreme Court’s last major abortion decision, research on everything from fetal pain to the risks of later abortions is becoming more common, well-funded, and legally crucial. The history that George preserves reminds us how much litigation may revolutionize these scientific debates and tells us that what is at stake may be neither as predictable nor as promising as we now believe.

Cite as: Mary Ziegler, The Science of Sexuality, JOTWELL (March 31, 2017) (reviewing Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34 Law & Hist. Rev. 487 (2016), available at SSRN),

Exceptions and Baselines in American Political and Legal History

In The Great Exception: The New Deal and the Limits of American Politics, Jefferson Cowie has written a slim, brisk work of historical synthesis in which he seeks to reframe how we understand twentieth-century American political history. In this essay, I describe Cowie’s insightful and provocative revisionist account of the New Deal and its place in American history. At the end of the essay, I consider some questions the book raises for legal historians.

Cowie’s target in The Great Exception is the idea that the New Deal was a definitive turning point in American political history. Most historical accounts describe the New Deal as the period when, after decades of struggle, liberals pushed back laissez-faire ideology, installed the American version of the social welfare state, and transformed the nation’s political culture along more egalitarian and pluralistic lines. Today liberals praise the New Deal, conservatives criticize it, but all sides generally agree it marked a significant and lasting shift in the relationship between the American people and their government.

According to Cowie, this interpretation exaggerates the achievements of the New Deal and underplays the durability of American conservatism. The New Deal, he argues, was “less the linear triumph of the welfare state than the product of very specific, and short-lived, historical circumstances.” (P. 9.) Rather than a turning point, the New Deal was an aberration. The nation’s most severe economic crisis arrived at just the moment when social and political developments lowered barriers that had stood in the way of large-scale social welfare reform. Out of this this brief window of historical fortuity came the New Deal, a “burst of economic experimentation” (P. 227) aimed toward empowering working-class people.

Cowie dedicates much of his book to examining the “historic fault lines of American political culture” (P. 7) that the New Dealers had to overcome, which he identifies as ideological commitments to individualism and anti-statism along with religious, racial, and ethnic identity. Together, these fault lines functioned as barriers to the kind of broad, working-class coalitions that might lead to national-level redistributive social welfare policies. Only when these “core themes” of American history “underwent an incomplete suspension, a mitigation” (P. 13) between the 1930s and the 1960s could a different sort of politics reign, Cowie argues. Immigration restriction in the 1920s lessened ethnic divisions; a secularist trend in the first half of the twentieth century reduced religion’s divisive role in public life; generations of reform agitation and labor organizing combined with the demands brought about by economic disaster to loosen the allure of individualism and anti-statism.

These trends could not last. The fall of the New Deal order and the ascendance of the New Right in the 1970s and 1980s, according to Cowie, was a reestablishment of the American political norm. It was “a return to a sharply more conservative, individualistic reading of constitutional rights and liberties; a return to economic policies in which the state looks after the corporation; and a return to a working class fragmented by race, religion, immigration, and culture.” Ronald Reagan’s conservative “restoration” was “axiomatic,” even “inevitable.” (P. 29.)

Cowie’s argument about America’s ideological baseline provides the foundation for his second major claim: that the New Deal, while a dramatic rupture of American political tradition, was compromised and qualified from inception. The political alliances on which it was built were “truncated,” “brittle,” “precarious.” Federal recognition of collective economic rights, which Cowie identifies as the New Deal’s signature innovation, was always an “experiment,” and an “unstable” one at that. Indeed, according to Cowie, the policymaking innovations began and ended during just “a few charmed years” (P. 89) in the late 1930s. For most of the roughly four-decade period of the New Deal order, New Deal liberals struggled to maintain fracturing alliances and defend past achievements.

In the book’s conclusion, Cowie explains how his revisionist history illuminates our current political situation. An appreciation of the durable conservatism of U.S. political culture and the exceptional nature of the New Deal should give pause to those on the left who call for a new New Deal today, he argues. The “freewheeling historical analogies based on an extraordinarily unique period in American history” that New Deal revivalists rely on amount to little more than “chasing ghosts.” (P. 229.) If liberals are searching American history for inspiration, perhaps, Cowie suggests, they should turn to the Progressive Era. Unlike the New Deal, and like today, this was a period when liberal reformers squarely faced the obstacles of American conservatism. They pioneered diffuse and localized reform efforts, and they found ways to channel dominant conservative tendencies for their own causes. Something along these lines, Cowie concludes, might better capture the best hope for progressive politics today. The election of Donald Trump only further reinforces Cowie’s portrait of post-New-Deal American politics, as well as his strategic recommendations for today’s liberals.

For anyone who has followed recent trends in the study of American political history, none of the component parts of The Great Exception’s arguments will seem particularly new. Liberal critiques of the limits of New Deal policy are as old as the New Deal itself. A recent generation of historians has been urging a greater appreciation for the conservative forces of American history. Others have suggested the Progressives as a useful historical analogue for today’s progressives. Cowie fully recognizes his intellectual debts, filling his pages with appreciative references to the work of other historians. Yet even if one knows all the parts of the story, Cowie’s achievement is to piece them together in a way that feels fresh and urgent. The value of Cowie’s book is in his ability to synthesize the work of other historians in order to advance a sharp, provocative assessment of its larger significance. Cowie makes big, bold claims without abandoning the nuances and texture of the historical record. The result is a book that is challenging and rewarding.

The Great Exception made me wonder whether American constitutional history (a topic Cowie touches on only lightly) is ripe for an analogous synthetic revisionist account. We seem to be trending in a similar direction, with a number of books and articles questioning the durability and significance of the Warren Court, the New-Deal-like moment of modern American constitutional history. As the Warren Court recedes further into history, its version of legal liberalism seems more and more aberrant in the grand scheme of American constitutional history. The ideal of the Supreme Court’s using the Constitution as the bulwark of protection for the disempowered has faded in recent decades. Although some liberals continue to hope for the return of a Warren Court, the center of gravity for today’s legal liberalism revolves around a more chastened vision of the courts and the Constitution, one that celebrates the occasional breakthrough, while centering most of its energies on protecting precedents and blocking judicial challenges to existing policy.

Today, conservatives are the ones with the more ambitious visions for the courts. Whereas recent liberal judicial victories, such as the Supreme Court’s 2015 gay marriage decision, have tended to reaffirm and solidify larger policy shifts, conservative judicial victories—in areas such as gun rights, campaign finance, and religious freedom—have reshaped political debate. Just as liberal political commentators warn that conservative economic policy has brought a “New Gilded Age,” liberal legal commentators accuse the Court in recent years of returning to the constitutional libertarianism of the Lochner Era.

Perhaps a next turn in constitutional history will be to consolidate the past generation of revisionist scholarship into Cowie-style synthetic narratives that urge us to rethink what we treat as baselines of constitutional history and what we treat as exceptions. Such an analysis would highlight the long-term historical factors that have supported and encouraged judicial conservatism, some of which would track Cowie’s factors, some of which would focus on the distinctive world of lawyers and courts. It would also revisit the Warren Court era, offering new explanations of how this exceptional period in constitutional history took shape, what it accomplished, and the reasons legal liberalism ultimately proved so fragile. For liberals, a constitutional history in which the Court of Earl Warren is the great exception and the Courts of William Taft and John Roberts are the baselines may be, as Cowie describes his revisionist political history, an “American tragedy.” (P. 32.) But it may also offer what Cowie hopefully describes as “a more thorough and realistic understanding of our recent past in the hope that it can provide a more stable intellectual foundation for discussions of past and future politics” (P. 228)—and, one might add, the past and future of constitutional law.

Cite as: Christopher W. Schmidt, Exceptions and Baselines in American Political and Legal History, JOTWELL (March 6, 2017) (reviewing Jefferson Cowie, The Great Exception: The New Deal and the Limits of American Politics (2016)),

Faustian Bargain? American State Formation and the Crisis of Legitimacy

As a field, legal history has long been centrally concerned with the patterns and trajectories of American political development and state formation. In his recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, 2015), Gary Gerstle offers a compact and highly readable synthesis of the long arc of the battles over the idea of a strong and central American state, from the constitutional founding through recent clashes between the Obama administration and the Tea Party. Gerstle and his work are of course well-known in the field. In this new book, he offers a cautionary narrative about this long process of state formation, and how it has set in place pathologies that fuel recurring crises of governance and legitimacy.

The central premise of the book is that there is a fundamental tension baked into the legal and constitutional structure of American government: the congenital unease with a powerful state on the one hand (“liberty”) and the starting premise of unchecked “police power” on the part of state governments (“coercion”) on the other. A powerful federal state was, in theory, at odds with both of these principles, endowed with specific enumerated powers in the Constitution rather than general police powers, and restrained by both constitutional and normative commitments to individual liberty. Law and the Supreme Court play a central role in Gerstle’s narrative, as the source of the original constraints on expansive federal power—and thus the key arena in which statebuilders had to innovate forms of modern, centralized governance that could navigate these tensions between liberty and coercion. In Gerstle’s account, the federal government gained its modern powers only in response to a trio of crises that prompted shifts in the basic structure of governance: the Great Depression, the “total war” mobilization of World War II, and the civil rights movement. As a result, the federal government suddenly found itself possessing a degree of fiscal and legal authority previously unknown in the early republic.

By taking as a starting point both of these premises of the early American republic, Gerstle usefully reframes the narrative of American state formation away from an older tradition of focusing on the battles between libertarian and centralizing tendencies. Instead he presents the problem of American governance not as one over whether there should be strong governmental presence, but rather in what form. In this, Gerstle calls out to and builds on many of the advances in legal history over recent decades, highlighting the expansive role of state police power, and the ways in which federal and private actors engaged in state-like governance functions throughout the republic. For Gerstle, the American state is not weak per se—it develops genuinely powerful capacities—but it does so in ways that generate chronic problems of capture (the undue influence of special interest groups), and related problems of governmental unaccountability and illegitimacy.

Indeed, where Gerstle’s account offers its most helpful contribution is in developing a framework and critique of the strategies employed by statebuilders to overcome the constitutional compromises of the founding. For Gerstle, the emergence of centralized federal power is a product of “improvisation rather than transformation.” (P. 5.) Gerstle defines three distinct improvisational strategies by which statebuilders expanded federal power, despite the limits of constitutional authority and normative hostility: exemptions, where the Supreme Court creates carve-outs for expanded federal power outside of the bounds of ordinary Constitutional limits, such as in cases of emergency, rebellion, and, increasingly, foreign policy; surrogacy, where the Court extends a de facto federal police power through other routes such as an expanded Commerce Clause power from the New Deal onwards; and finally privatization, where the powers of the federal state are magnified and implemented through improvised public-private partnerships, from deputizing corporations and businesses in providing safety-net protections to co-regulation, to public-private utilities.

These three strategies comprise the common thread throughout Gerstle’s narrative. Thus, conventionally “state-like” functions are in Gerstle’s account structured through a tradition of “reliance on private citizens to do public work,” from militia to voluntary organizations. (P. 122.) Even in the New Deal expansion of federal power under the pressures of the Depression and World War II, Gerstle highlights these strategies in play. After decades of mobilization and activism, farmers found a willing partner in the Agricultural Adjustment Act (AAA), which creates a vast regulatory and safety-net apparatus, but continues to take shortcuts such as privatizing benefits by making them contingent on full-time employment. Similar improvisational compromises shaped the rise of the twentieth-century labor regime as labor leaders like Samuel Gompers stressed “private regulation” through collective bargaining. (P. 221.) These compromises were necessary to overcome the historical distrust of federal power, and to respond to ongoing social conflict over the substantive goals of state action–whether over issues of racial integration or worker empowerment. But the irony of these strategies of state formation for Gerstle is that they seeded the very crises of legitimacy that now cripple twenty-first-century American governance. Meanwhile, the exemption of many war-related functions from constitutional limits has helped enable the rapid growth of the surveillance and security state. (P. 278.)

This sense that statebuilders paid a dangerous price is most vividly illustrated by Gerstle’s recurring critiques of the political system. For Gerstle, the original sin of American public administration is that it was a product of these improvisational state-building strategies of exemption, surrogacy, and privatization. Political parties, for example, became the critical connective tissue of government across federal, state, and local levels, a necessary kind of political infrastructure and an “arm of public administration” needed to overcome the decentralized and coalitional nature of American politics, yet they remain private organizations, perpetually embedded in networks of donors, funders, and private interests. (P. 154.) Captured civil service is similar: though the civil service did grow and bureaucratize, it remained a relatively low-capacity system, dependent on private collaboration and support to execute governmental imperatives. (P. 176.)

These compromises laid the groundwork for the modern American state’s multiple crises of legitimacy. Throughout Gerstle’s historical narrative, he correctly presents racism as a central driver of opposition to attempts to expand federal power. But Gerstle seems to suggest that the aspiration to construct and defend white supremacy and racial segregation—whether formal or informal—dovetailed with more practical and legal resistance to these strategies for statebuilding. Exemption, surrogacy, and privatization were “not sufficient to bestow on the federal government constitutional authority commensurate with its expanded power.” (P. 8.) The problem was not just one of legal authority, but rather a deeper problem of legitimacy. As Gerstle explains:

Improvisation was a source of weakness as well as strength. The government’s heavy reliance on privatization made its agencies chronically susceptible to the influence of private and frequently monied interests. … Meanwhile, the excessive use of exemption eroded the liberal basis of the republic by sparing large swaths of government from constitutional scrutiny. And too great a use of surrogacy made the central government vulnerable to the charge of indirection.

(P. 346-47.)

These very real concerns about capture, accountability, and legitimacy stem directly from the use of strategies of exemption, surrogacy, and privatization. But the use of these strategies also provided a fertile substrate for ongoing racialized attacks on the use of state power to promote racial integration and equality. Thus by the 1970s, “three distinct grounds of opposition to a large, centralized state— pragmatic, racial, and libertarian— coalesced” to form the modern conservative movement. (P. 318.)

So what then are twenty-first-century statebuilders to do? Gerstle closes his book by calling for a frontal engagement with the Constitution itself. Constitutional text—and more importantly, public constitutional discourse—must openly embrace the modern demands of government rather than grounding the functions of a modern state on the stop-gap strategies of exemption, surrogacy, and privatization. Constitutional amendments would be ideal, Gerstle suggests, but even if amendments do not come to pass, engaging head-on in a public argument for a more expansive understanding of constitutional powers and purposes will create greater discursive space for law, policy, and politics. (P. 351.)

This call for a richer constitutional discourse will resonate with similar appeals from constitutional law scholars responding to the politics and inequities of the Great Recession era. Gerstle’s narrative raises (but does not directly resolve) a number of tensions in understanding the challenges of statebuilding: the role of movements, ideas, and policy innovators to expand state power on the one hand, and legal restraint in the form of Constitutional text, doctrine, and discourse as understood by the Supreme Court on the other; the tension and fusion among racial, libertarian, and pragmatic critiques of statebuilding strategies; the at times ambiguous relationship between aspirations to greater federal power and values of democracy, inclusion, and economic or social justice. These are the very tensions that animate the policy battles of today’s Great Recession. Today’s reformers, advocates, and policymakers are in the process improvising new modes of governance and statebuilding. Whether they will repeat, or remedy, the dynamics described by Gerstle remains to be seen.

Cite as: K. Sabeel Rahman, Faustian Bargain? American State Formation and the Crisis of Legitimacy, JOTWELL (February 6, 2017) (reviewing Gary Gerstle, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (2015)),