Oct 2, 2023 Anders Walker
Pekka Hämäläinen has written a startling book. Building on his earlier histories of the Lakota and Comanche, Hämäläinen’s Indigenous Continent tells the entire saga of Native America, recasting it not as a story of dispossession and defeat, but resistance and – amazingly – resurgence. The story is counterintuitive, a story not simply of white genocide and plunder but also of Indian power and influence, a story of a complicated group of peoples who fought against Europeans for over 400 years, and fight on today.
Beginning his story in 11,000 BC, Hämäläinen traces Native Americans back to Asia, showing how large groups of people left for North America by traveling across land bridges and along kelp highways. Such people formed large, centralized civilizations in places like the Colorado Plateau and the Mississippi River Valley, fostering large-scale agriculture, developing political/religious elites, and constructing massive monuments.
Then came climate change.
A “global cooling period” hit North America in 1300, argues Hämäläinen, forever changing indigenous life. “The Little Ice Age ushered in a new world,” he argues, “where almost everything had to be smaller: harvests, markets, settlements, mounds, alliances, and ambitions.” (P. 19.) Native America’s move to smallness led to a bewildering number of “decentralized, kinship-based, and egalitarian political regimes,” regimes that foiled European conquest and complicated European settlement. (P. 51.)
The sheer number of these “egalitarian political regimes” proved staggering. In Florida alone, for example, indigenous people divided themselves into Calusas, Timucuas, Apalachees, Miccosukees, Yamasees, Guales, and – finally – Seminoles. In New England, there were Wabanakis, Wampanoags, Nausets, Patuxets, Pequots, Abenakis, Algonquins, and others. By bringing together the histories of so many different groups, Hämäläinen tells a fascinating story about Native America that only tangentially involves Europeans.
In fact, Europeans emerge in Hämäläinen’s story mainly as pests. They encroach on Native land, take Native food, and make people sick. Only occasionally do they perform a service, usually by providing Native Americans with weapons. For example, the Five Nations League “made peace with New France because they thought that the colony, beaten down as it was, could still be useful as a source of arms and goods.” (P. 114.) Meanwhile, the Lakota policed the Missouri River, “forcing traders to pay for upriver access with guns, powder, lead, and other goods, turning the Missouri Valley into a tribute-leading yielding machine.” (P. 355.)
Hämäläinen shows that Indian power grew from the very “smallness” of North America’s “decentralized, kinship-based, and egalitarian political regimes,” which served to slow European conquest. This became apparent early on to the Spanish, who subjugated large Indian civilizations in Central and South America but struggled to conquer the more disperse, disaggregated indigenous communities of North America. “[H]ow could relatively small Native groups defy Spanish colonialism in the north,” asks Hämäläinen, “when the formidable Aztec, Inca, and Maya Empires had fallen so easily?” The answer, he suggests, was that North America’s “decentralized, kinship-based, and egalitarian political regimes made poor targets for imperial entradas.” (P. 51.)
Gradually, however, Native dependence on European arms proved detrimental to indigenous people. For example, “the Indian Confederacy and other Ohio Country nations joined forces to protect their lands,” notes Hämäläinen, “and they desperately needed British guns, powder, and lead to prevail.” (P. 332.) Out West, the “pent-up demand for guns, powder, lead, and metal tools, fueled intense rivalries for trading privileges in the upper Missouri Valley, where several Indigenous nations had suffered for years with unreliable access to European technology and goods.” (P. 353.)
Though Hämäläinen focuses mainly on violence, his story puts the legal history of Native America into new perspective. Did, for example, indigenous Americans use Anglo law much like they used guns? Hämäläinen shows clearly that once Native Americans acquired European weaponry, they then used that weaponry to advance their own interests, often against Europeans. The same might have held true for Anglo American law. Once Native Americans learned the law, they then used that law against Europeans as well. To illustrate, take legal historian Stuart Banner’s book How the Indians Lost Their Land: Law and Power on the Frontier, which shows that white/Indian land transfers in North America began primarily as sales thanks to legal fictions like “Indian title.” Was this European conquest? Or was this Native Americans using European law? According to Hämäläinen, Native Americans desperately wanted European technology, and land proved one of the few things they could sell to get it. Considering that there were only five million indigenous people on the entire continent at first contact, this may have been a smart business strategy for Indians. Why not view it as such? If Hämäläinen is right, then Native Americans used Europeans. Not vice versa.
Gradually, of course, the federal government moved to discourage the direct sale of land by Indians to white settlers, moving instead to a treaty system by which Native Americans dealt directly with federal agents, as if they were foreign powers. According to Hämäläinen, “treaties became the United States’s most effective means to divest Native Americans of their land.” (P. 381.) That is the prevailing wisdom, to be sure. But if we adopt Hämäläinen’s own thesis and apply it to the legal history of white/Indian relations over time, a different conclusion arises. For example, Hämäläinen ends his book by showing that Native Americans retain over fifty million acres of federally protected land in the United States today, a number that breaks down to roughly 200 acres per person. Not the whole continent, certainly, but still more than most average Americans can claim.
And that was under the treaty system, not the land sale regime. Imagine, for a moment, that the federal government had never intervened and simply allowed private land sales between Native Americans and white settlers to continue. William S. Coker and Thomas D. Watson suggest that precisely such a scenario played out in Spanish Florida before 1819, when the Panton, Leslie, & Forbes Company began to extend credit to Native Americans and accepted land as collateral. Native Americans became completely dependent on the firm’s goods, struggled to pay back their loans and ended up losing one million acres in the process.
Spain never went down the treaty road, but America did. And Native Americans may have been smart to play along, shifting from one legal strategy to another. As Hämäläinen puts it, “the continent is speckled with hundreds of native nations that preserve Indigenous sovereignty and nationhood. Each of them embodies the centuries-long Indigenous resistance to colonial violence and expansion.” (P. 461.)
Of course, some might argue that Hämäläinen paints too rosy a picture of Indian resistance, but comparing Indigenous Continent to Banner’s How the Indians Lost Their Land remains an interesting exercise. Both books focus on Native American agency, and both books complicate the popular narrative that Native Americans were simply victims of white genocide. Banner’s book is based largely on the nineteenth-century and is ultimately a legal story. But Hämäläinen goes back farther to a period when Native Americans used force, not law, to dictate terms. That period occupies seven out of eight sections of the book, providing detailed and at times disturbing accounts of the violent struggles between Native Americans and Europeans that filled the sixteenth, seventeenth, and eighteenth centuries. Even the nineteenth century, argues Hämäläinen, witnessed Native American dominance, as evidenced by the Lakota and Comanche Empires.
Looked at in the longue durée, maybe Native Americans played their cards more effectively than we have previously thought. And maybe law was just another gun.
Aug 28, 2023 Nick Allard
For months I have been carrying, wherever I take my briefcase, a captivating new book of American constitutional history and analysis which offers a brilliant lens for examining American federalism. That is because whenever time permits, I want to read, reread, and think about the book’s meticulous, original, deep research and the illuminating insights that the author has packed neatly within his single volume. My near constant companion has been Christian Fritz’s fascinating and exquisitely timely Monitoring American Federalism: The History of State Legislative Resistance. His book addresses in a fresh and comprehensive way the great unsolved conundrum of the founding of our republic: how America’s unprecedented theory of a federal system of dual sovereigns, involving national and state governments which are both empowered by the citizens of overlapping geographies, can and should work in practice.
Monitoring American Federalism is a rich source that likely will become an essential text about the distribution and exercise of constitutional powers for scholars and educators who are experts in the subject matter. Yet it also is accessible to a broader audience of readers, including those who wish to be better informed while navigating real contemporary questions about balancing federal and state power. This latest book by Professor Fritz, in my opinion, is a must-read for those interested in examining, questioning, teaching, judging, upholding, and more fully grasping the constantly evolving complexity of our brilliantly conceived but flawed, cantilevered, self-correcting constitutional democratic form of limited representative government, a model of government which depends upon the informed consent of the governed.
Caveat liber lector. Monitoring American Federalism is a serious book. It is no beach read. But it is both readable and compelling. Like the work involved in picking the delicious meat from steamed crabs, which inevitably prompts lively conversation in good company, as the Fritz book surely will do, it’s well worth the effort to read and be able to discuss this seminal work.
Fritz’s impressive book begins with the ratification process and the early days of the new nation, focusing on conceptual debates about how state legislatures might monitor and resist constitutional overreach by the national government. Fritz then traces in great detail several early examples of state resistance, moving forward in time from the founding through the antebellum period and the cataclysm of the Civil War. This in-depth analysis foreshadows his narrative about the major federal-state battles of the reconstruction era and the twentieth century, and it is also the foundation of his concluding thoughts about how our democracy might be maintained amidst the all too familiar existential threats it faces today.
Fritz’s unique contribution is to tell the largely untold story of the idea of using state “interposition” to “monitor” and when deemed necessary “sound the alarm” to challenge, within constitutional bounds, the law and policies of the national government. He defines interposition as a formal state protest designed to focus public attention and generate interstate political pressure to reverse the national government’s unconstitutional action. The author’s exposition of this idea is based upon a painstaking reading of mostly overlooked passages by Madison and Hamilton in the Federalist Papers, as well as post-ratification state resolutions and related correspondence between Madison and Jefferson. His historical analysis traces the lineage of interposition and vigorously rebuts the concept’s eventual bastardization by John C. Calhoun and others into justifications for state nullification and secession.
Three of the many richly illustrated perspectives afforded to this reader by Professor Fritz’s historical tour de force are:
–American federalism is an unfinished symphony. If it endures its final pages will never be written; at least not until or unless the beautiful but often dissonant clanging of our democracy expires under the weight of the existential challenges of our times. Fritz convincingly demonstrates that the precise balance of power between the national and state sovereigns was not decided by the founders, much less mapped out with clear boundaries, before, during, or immediately after ratification of the Constitution. Instead, it has always been and has remained to this day a fluid, evolving system. Properly understood, then, the essence of American federalism is not static but a dynamic process. This necessarily intentional ambiguous and flexible constitutional design is a strength, not a weakness, of our system of government.
— State legislative resistance, including “interposition,” has often, perhaps mainly, been associated with America’s original sin of slavery, and the history of unconstitutional misuses of state resistance represented by state nullification and secession from the union. Professor Fritz acknowledges and emphasizes this tragic history throughout his book.
However, Fritz also demonstrates that historically there have been many other instances of state legislative resistance, such as the ratification of the Eleventh Amendment to include state sovereign immunity in the Constitution; the ultimately successful effort to allow the Alien and Sedition Acts to expire; and both successful and unsuccessful acts of state opposition to taxes and tariffs. Such political initiatives have arisen from both Southern and Northern states, and more recently from both “red” and “blue” states. Cases such as state opposition to the Fugitive Slave Act demonstrate that interposition is not presumptively bad, contrary to Hamilton’s overwrought description of interposition to the National Bank as “the first symptom of a spirit which must either be killed or will kill the constitution of the United States.”
From the original form of legislative interposition as revealed and described by Fritz, to the various shapes it has morphed into over two hundred years, serious disputes have been resolved within constitutional parameters, without relying by default on a Supreme Court decision or on the use of force. Multistate driven conversations about contentious issues have led to political consensus by elected federal and state representatives of the people.This more nuanced understanding of state resistance comports with Justice Louis Brandeis’ famous observation that “states are the laboratories of democracy.” It also calls to mind the prodigious work of the late New York State Chief Judge Judith Kaye, who recognized that the federal system provides a dual source of protection for the rights of our citizens. Judge Kaye was a leading advocate for upholding individual rights and liberties through state constitutions.
— Finally, Monitoring American Federalism offers ample reasons for being earnestly hopeful and committed to the hard work of sustaining our democracy. Our present political disagreements may appear unresolvable amidst seemingly unbridgeable partisan divides and institutional dysfunctionthat seemingly precludes solving the currently cascading threats to democracy, justice, the rule of law, equality, and the peaceful well-being of people and the natural world we share.
Nevertheless, the book reminds us that fraught political disagreements are nothing new. Another is that the history of interstate interposition and thinking about the memory of times past and recent, times when state and federal government officials including military leaders did their best to execute their duties and successfully upheld their oath of office to preserve, protect, and defend the Constitution of the United States, remind us that our complex, evolving federal system provides for appropriate avenues for political discourse and even resistance that comply with the Constitution. Unilateral state vetoes, nullification, and insurrection are not among them. Patience and time are required. America’s long-standing experiment with federalism by trial and sometimes error, rests on the acceptance of the sovereignty of the people. That constitutional premise in turn depends on the willingness and engagement of citizens to take their responsibilities seriously with respect to keeping abreast of what their government officials are doing and to exercise their right and duty to vote.
Professor Fritz’s book hardly will have the last word on the important path-clearing conversation he has initiated looking back and looking forward at American federalism. That is because, if for no other reason, his provocative constitutional history suggests multiple new lines of research and scholarly discourse about the origin, legitimate uses, relevance, and practical feasibility of what he calls “sounding the alarm state interposition.”
His work also suggests new possibilities for lawyers and legal educators as they engage in civic legal education and outreach to the public about the Constitution. After all, the people are empowered to interpose their views about government action by the protections afforded in the First Amendment. These rights are, like Professor Fritz’s understanding of interposition, avenues for advocating values, opposing illegal and corrupt exercises of power, and holding the government accountable. If the federal and state branches of government are the large instrumental sections in our constitutional orchestra, there are many others, thanks to the Constitution and the Bill of Rights, who can play key parts in the unfinished symphony of American federalism. Each performance of the Founders’ magnum opus ultimately relies on “we the people” to know the score, keep time, and conduct the players.
Jul 13, 2023 Allison Brownell Tirres
What did indigenous peoples think of the Constitution at the time of its drafting and in the first decades following ratification? This is the intriguing question at the heart of a compelling new article by Gregory Ablavsky and W. Tanner Allread. The answers they provide to this question turn constitutional history in a new direction: rather than considering the relationship of Native peoples to the Constitution through the perspectives of Anglo-American drafters, we are asked to listen to the voices of Native peoples themselves as they scrutinized and debated the new Constitution and then eventually utilized it, despite their misgivings, to try to defend their rights to property and sovereignty. The article makes a strong case for expanding our definition of constitutional discourse to include the reactions and engagement of Native peoples, many of whom were well aware of the legal sea changes afoot during the Founding Era and were concerned about the impact of those changes on their communities.
Ablavsky and Allread are straightforward about their aims. They are interested not only in shedding light on the evidence of constitutional discourse – which they draw primarily from research on several well-known Native nations in the South, Midwest and Northeast – but also convincing readers of the broader theoretical and methodological payoff. As they write, “The goal is less to offer a definitive account than to provide proof of concept: to show that we can, in fact, incorporate these voices into our constitutional histories.” (P. 248.) Ultimately, the authors deliver on their promise, encouraging us to move outside of rigid formulations and consider the wider reach of constitutional discourse.
The article begins with a persuasive description of what the authors call the “diplomatic constitution,” a set of syncretic legal practices developed over two centuries of encounter between European colonists and Native peoples that predated the Revolutionary Era. To paraphrase Daniel Hulsebosch, this constitution “was not a thing” the way we think of constitutions today, but was instead a set of agreed-upon norms, practices and discourses that structured power and defined lines of authority between colonizers and indigenous peoples. At its heart were the widely adopted practices of diplomacy and negotiation that were vital to ensuring peace in a hybrid legal zone. While not always observed consistently, these principles and practices were generally acknowledged as the fabric governing relations between indigenous and colonial powers. All sides relied on it; as the authors note, “Native and Anglo-American leaders alike recognized it as a binding body of law that governed how their distinct communities were supposed to interact.” (P. 263.) The authors make a striking claim here, that will be of interest to historians and theorists alike: that the diplomatic constitution should be read alongside other sources of law, like English common law, natural law, and the law of nations, as informing our understandings of the U.S. Constitution.
The article next turns to the “native ratification debates,” describing the efforts of federal officials to convince Native leaders of the soundness of the new Constitution and the varying opinions of Native peoples who, like those involved in state ratification debates, sometimes had divergent views. Even though they could not vote to ratify the Constitution, indigenous peoples were nevertheless a key audience for those in the new federal government who sought to build support. The authors show how the diplomatic constitution directly influenced the ways that federal officials promoted the Constitution and Native peoples conceptualized it. The fear among Native skeptics was not that the federal government would be too strong – a common concern voiced in the state ratification debates – but that it would be too weak. Federal officials hastened to reassure Native leaders that the Constitution ensured a centralized federal government that would be able to protect them from incursions on their land and sovereignty by individual settlers and state governments.
After the Constitution’s adoption, Native peoples actively participated in promoting a vision of strong federal power and strong tribal sovereignty, qualities that were a direct reflection of principles enshrined in the diplomatic constitution. This interpretation became a matter of life or death in the years following ratification, as state governments sought to exterminate indigenous peoples or to banish them from their territory. Native leaders were active participants in challenging these actions in the courts. The Cherokee Nation, for example, made a concerted and successful attempt to protect their sovereignty before the Supreme Court using the Constitution as their primary source.
These legal efforts were hampered by President Andrew Jackson’s refusal to interfere with state plans for mass deportation, but they should not be discounted on that account. As the authors show, Native defenses of their own autonomy – as guaranteed by the Constitution – gained traction in later decades, informing a reevaluation of indigenous rights in the modern era.
The article concludes with a discussion of the possible theoretical and doctrinal implications of these historical findings. As Ablavsky and Allread make clear, including Native peoples in their rightful place as “co-creators of constitutional law” has the potential to upend constitutional history as well as legal theory. They sound a cautionary note for originalists, whose work often assumes an artificial and inaccurate closed world of legal thought during the Founding Era. How we think about the “original public meaning” of the Constitution changes profoundly, for example, if we take seriously the capaciousness of “the public,” acknowledging that even those who were formally marginalized in society had an influential voice in the interpretation of law. Surfacing these voices enables us to see constitutional history and legal discourse in an entirely new light.
Editor’s note: For another review of this article, also published today, see Bethany Berger, Expanding the Constitutional Lens, JOTWELL (July 12, 2023).
Jun 12, 2023 Jedidiah Kroncke
In the contemporary moment, discussions of international law are difficult to disengage from questions regarding the role of China. Some cast China as a new, revolutionary force set to upend or hasten the demise of the post-World War II order. Others cast China as a binding force for exactly the same order, especially in contrast to the noticeable retreat of its dominant architect, the United States. Moreover, the Chinese Communist Party actively brands its particular engagement with international law as a defining part of its own system of governance—often casting itself in equally contradictory terms as both stalwart and revolutionary.
Such diverse viewpoints draw upon their own versions of the history of international law, both in and outside of China. Ryan Mitchell’s Recentering the World lays out this history—and its relationship to many of these contemporary claims—with China center stage in the development of international law since the mid-19th century. Mitchell does so by synthesizing novel multilingual archival research with a global view of cutting-edge international legal scholarship.
Mitchell works incisively to bring the Chinese historical experience with international law out of a state of exception and into the main narrative of international legal history. In the modern revisionist tradition of Arnulf Becker Lorca’s Mestizo International Law or Jennifer Pitt’s Boundaries of the International, Mitchell aims to correct any impression that China “rejected” international law. Instead, he establishes how Chinese actors engaged in a process of reinterpretation and reappropriation first within their own historical tradition of international law and later as a powerful constitutive element within the evolution of the modern international legal order.
Starting in the mid-19th century, Recentering the World lays out this project in three parts, each containing three chapters: “Stateliness” 1850-1894, “Asserting Sovereignty” 1895-1921, and “Internationalisms” 1922-2001. In each era, Mitchell puts his multilingual fluency to work tracing the iterative re-workings of Chinese language translations of key terms of Western international law. His linguistic focus helps him relate a discourse truly situated locally in the Chinese context, but also in its regional relationship with Japan. As such, Chinese language terms permeate the book’s chapters as they are reinterpreted over time based on domestic, regional, and transnational struggles.
Yet, Mitchell’s history unfolds not purely through shifts in terminology, but also through a lively narrative told largely through the biographies and ambitions of various Chinese actors pursuing their ambitions—personal and national—through the apertures presented by the rapidly shifting geopolitical and domestic arenas of the 19th and 20th centuries. The nexus points for Mitchell’s histories are key moments of international negotiation and institutional formation in which these actors develop their strategies for righting China’s subordinated status in the international legal order. From the 1850s onward, Mitchell narrates this dynamic process with a fine-grained attention to the local disputes they engendered, the specific provenance and contents of various texts’ translations, and the role of foreign interlocutors who developed a keen interest in China’s engagement with international law.
Herein, Mitchell’s ability to work with Japanese and German materials shines through, as he is able to deploy the same linguistic sensitivity and sensibility to Japanese interpretations of Western international law concepts, and then in return plausibly relate their interaction with Chinese choices and stratagems. Some of this occurs interpersonally—through the direct interaction of people and texts—and some of this occurs geopolitically as Japan increasingly frames its regional hegemony through international law itself. In particular, Chapter 3 of Recentering the World has to be considered a masterwork in multilingual archival international law historiography.
It is the driving force of Western commercial empire, especially the elevation of property rights as a counterweight to national sovereignty, which is the most consistent thread in Recentering the World. The mutually constitutive relationship of capitalist expansion and international law is well-recognized today, but Mitchell places the Chinese experience at the center of this dynamic—not just in some receiving “periphery.” From describing the public-private hybrid British Maritime Customs Service founded in the 1850s to the forced creation of Chinese state debt to finance foreign-led military interventions, Mitchell shows how the imperium of Qing state authority was often circumvented by the dominium of Western commercial interests grounded in the language of private property rights to rationalize foreign commercial interests. Notably, Mitchell is able to show how the United States was particularly important in this process, as American actors ground their actions in the asserted mutualism of political liberalism and capitalist development for China’s own putative improvement—most notable in the aftermath of the 1899 Boxer Rebellion.
The importance of China in this process of dual reconciliation was not lost on Chinese participants, who wrote openly of how colonial militarism and commerce work in tandem to subvert local sovereignty. The global interconnection and importance of the Chinese experience is perhaps most fascinatingly related for American international and constitutional scholars when Mitchell discusses how Native Americans were described at “America’s Red Miao” to analogize their status to non-Han people in Yunnan.
The true material heart of these broader themes in Recentering the World’s chapter remains the cohorts of international law-engaged Chinese actors who came to serve successive Chinese regimes after the fall of the Qing Dynasty in 1911. While Mitchell gives great attention to the import of China’s pre-1911 cohort, his energies for the mid- to late chapters chiefly focus on the ambitions and aspirations of a relatively set, and socially homogenous, group of international law experts now members of a growing set of their own interrelated educational and professional international law institutions.
It is in these chapters that you can feel the sympathies underlying Mitchell’s reconstructive projects. Two members of this cohort, Wang Chonghui and Gu Weijun (known in English as Wellington Koo), take up star roles as each carried with them the emblematic hope that their efforts would help restrain Western imperialism and begin China’s path back to global political equality. Yet, Mitchell shows how the individual brilliance of each man, among others, crashed against the shores of the national interests and suffered personal indignities of racial discrimination overt and covert. Beyond retelling their formal accomplishments, even high-status appointments to international legal bodies, Mitchell relates the public and private praise of their Western interlocutors, revealing even some of the more private shame felt by those who acknowledged that Wang and Koo were undermined by a system which should have validated their intelligence.
Mitchell’s generational approach shifts in the 1920s to emphasize the place of international law in the tumults of domestic Chinese politics dominated by the Guomindang (GMD) and the Chinese Communist Party (CCP)—in particular the drive to end the practice of foreign extraterritorial jurisdiction. A more radical generation of Chinese international legal thinkers emerged who more forthrightly embraced fundamental critique of the international legal system and the never-reached promise of relinquishing extraterritorial privileges based on Chinese self-reform. Here, Mitchell notably excavates pan-Asian and other sentiments of transnational solidarity that he sees as presaging Third-Worldism, or even as precedents for the more contemporary emergence of Third World Approaches to International Law (TWAIL). Sentiments all of which are bound together by rejection of the primacy of property rights or trade over political equality and territorial integrity—or the guise of formally equal and legalized dispute resolution that intensify national subordination.
The driving force that quickens Mitchell’s final chapters is the victory of the CCP in 1949. The Chinese Civil War had already sparked quite substantial divergences among the generations of once relatively united international law scholars and practitioners. Many of the younger generation stayed to work within the CCP and many of the older generation moved with the GMD to Taiwan. Chapter Nine outlines how the CCP, initially a formal outcast from the international legal system, worked after 1949 to find its place in this system while attempting to articulate for itself a vanguard role in challenging Western colonialism and the interventionist logics to which many post-colonial states were still subject to. We are then treated to a quick outline of China’s post-1978 proactive engagement with international law now as a central node in the global economy.
Mitchell’s wide-ranging but linguistically and biographically sensitive history leaves us to contemplate exactly the meaning of his revisionist undertaking. Throughout, we see a discourse on international law more authentically grounded in the Chinese context, and clearly substantiating of a far more materially important role for China in the historical development of international law itself. But we also see legal brilliance orthogonal to actual outcomes, and the centering of Chinese national interest—rather than some truly cosmopolitan sentiment. Does Mitchell’s re-centering then simply provide further fuel for the cynical conclusion that international law is ever an epiphenomenon of power asymmetries? At one point he notes, after detailing once again the deft maneuvers of various Chinese practitioners, that “more radical changes would later come via war and revolution, not conferences.” (P. 156.) It has always been notable that even the United States only ended its extraterritorial privileges in China—after decades of public and private conferences, reports, and judicial studies—when the strategic realities of World War II demanded it. Moreover, were these individually brilliant voices ever something that resonated domestically anywhere beyond the most elite strata of Chinese society?
This returns us to the title of the review, cribbing from Anthea Roberts’ Is International Law International? The history Mitchell relates is most legibly human—a subordinate people use all the tools available to them to achieve their emancipation. And he does find plausible moments of Third World solidarity. Yet, moments where such is strategically consonant with, never sacrificing of, national rejuvenation. As such, this history does then forthrightly make sense of China’s post-1978 active embrace of international institutions from a position of rapidly diminishing asymmetry, especially with Japan and the United States. Mitchell expresses a pang of regret here at a radical opportunity lost, but this type of inherent strategic opportunism is the one true constant of the history of national rejuvenation he relates. We are left then to consider whether today’s “Chinese international law” is something truly different, or simply the recalibration any rising power would pursue.
Ultimately, Recentering the World falls into the category of required reading for both the history of international law and Chinese legal history. If anything remains less explored, it is the synergy of this work with the larger, explosive surge in Chinese legal history of recent decades, which has worked to correct and complexify the manifold mischaracterizations of Chinese law present in many historiographical arenas. Nothing more could be asked of a scholar’s first book.
May 11, 2023 Christopher W. Schmidt
While working my way through Brad Snyder’s terrific new book, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, I found myself spending inordinate amounts of time admiring his endnotes. There are a lot of them to admire (almost 200 pages worth); they are clear and precise, and they allow the reader to peek behind the curtain and appreciate the stunning amount of research that went into creating this biography.
Frankfurter left behind a massive paper trail. He was a prodigious writer of articles, books, memos, and letters. He was also a lifelong cultivator of relationships with the kinds of people who were themselves energetic writers. The book’s endnotes tell the story of the years Snyder spent reading Frankfurter’s published works, interviewing people who knew him, and scouring the voluminous collections of Frankfurter’s papers and scores of archives around the country. This book, the first comprehensive biography of one of the most important figures in twentieth-century American law, is a major achievement.
Democratic Justice demonstrates the continued intellectual value of even the most traditional of historical genres, the “great man” biography. Frankfurter reached the heights of traditional power structures—an influential Harvard Law professor and then a Supreme Court justice—and in his day he was widely recognized as an exceptional individual.
Snyder presents a standard chronological narrative that never strays far from his subject. His thesis, which appears throughout the book but mostly operates in the background, is the standard claim of the biographer, namely that the subject of the biography merits more sympathetic attention than they have received. There’s nothing particularly innovative or unexpected here—just a lot of careful research, attention to biographical craft, and a scholar who wants to share with the reader their admiration for their subject. It’s not new, but it works.
In capturing Frankfurter, Snyder has written a serious history of ideas, law, and politics leavened by a touch of soap opera. This is a book to be enjoyed as well as admired. Snyder’s prose is filled with colorful detail and texture drawn from the source material. He thankfully avoids lengthy summaries of Frankfurter’s academic and judicial writing (a kiss-of-death for any biography of a Supreme Court justice that aspires to readability).
Snyder’s subject also helps to make this a lively read. Frankfurter thrived in battling for those he admired and against those he did not. He was passionate. He expressed strong opinions about everything and everybody. His politics, his personality, and his Jewish identity meant that many people had strong opinions about him.
Frankfurter was always advocating for his views of the world. He did this in letters to friends and followers, in conversation (the contents of which regularly found their way into the written record), in memos he self-consciously wrote “for the record,” and in his famously lengthy Supreme Court concurrences and dissents. He worked hard to make sure that those around him—as well as future biographers—knew exactly where he stood and why. Frankfurter’s exhaustive efforts at self-advocacy allow Snyder to argue for Frankfurter’s continued significance simply by presenting his life, placing the reader alongside Frankfurter as he waged his battles. Frankfurter was famous for collecting acolytes. Snyder invites the reader to join those ranks.
Frankfurter would surely have been disappointed with the state of his reputation as a Supreme Court justice. By the time of his death in 1965, Frankfurter had become the Warren Court’s cranky, lecturing conservative. His opinions defending judicial restraint left him on the wrong side of history—he would have upheld a compulsory flag salute in public schools; he resisted the application of criminal justice provisions of the Bill of Rights to the states; and he urged the federal courts away from the “political thicket” of electoral districting. For generations of scholars and law students who admired the idea of a boldly progressive Court, Frankfurter’s judicial career was a cautionary tale.
Maybe the time is right for a reappraisal of Frankfurter’s legacy. The possibility of a boldly progressive Court has become distant. Viewed through the lens of recent decades, the Warren Court’s liberal achievements appear less impressive, and the Warren Court itself looks more and more like an historical aberration. The Court’s bold actions of late (and for the foreseeable future) have been aimed toward defeating liberal causes. In aligning itself with the interests of a dedicated conservative minority, today’s Supreme Court echoes the Court of the Lochner Era, when Frankfurter’s passionate advocacy of judicial restraint placed him at the forefront of liberal constitutionalism. For those who don’t like the direction our current Court is taking, Frankfurter’s voice may resonate.
I’m not convinced Frankfurter merits a full-blown revival. He was too elitist and too arrogant. He misjudged too many critical issues during his time on the Court. But Frankfurter deserves to be reconsidered. In light of current events, his modest conception of the Court’s role and his principled defense of judicial restraint deserve more sympathetic appraisal. Snyder’s biography provides a magnificent foundation on which to have this discussion.
Apr 11, 2023 Sara Mayeux
Notwithstanding the title, The War on Drugs: A History, this illuminating book is not “a” history of “the” War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.
But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the “carceral state.” It certainly offers insights for those burgeoning subfields. But it contains a little something for everyone—well, everyone in the legal academy—whether they focus on the administrative state, on international law and foreign relations, or even on corporations. Indeed, one lesson reinforced by this book is that siloing the fields I just listed into separate scholarly communities, publications, and curriculums can hinder understanding of the various forms of relief and suffering, power and oppression, wealth and poverty produced by the drug trade and efforts to control that trade.
In law schools, the War on Drugs is often categorized as a “criminal law” topic or, in recent years, a “mass incarceration” topic. Should policymakers treat drug use as a crime or a public health issue? How should we understand and respond to racial disparities in arrest and imprisonment rates? These are important questions but, considered in isolation, could give students the distorted impression that narcotics have somehow been an idiosyncratic concern of U.S. politicians, rather than global commodities with long, complex, and transnational histories.
Drug historians, instead, have long written about the War on Drugs, in its Nixon-Reagan-Clinton-era iterations, as part of those longer and global histories. Law matters in this venerable and often eye-popping historiography, but domestic criminal law is only one piece of the story, since the initial decision to define any given substance as illicit has often been made somewhere else before getting backed up with local criminal prohibition. The War on Drugs is best understood as a “law” topic writ large, encompassing multilateral treaties, import-export regimes, taxation, corporate governance, and a variety of other legal arrangements, all of which have historically combined to decide, for example, which coca derivatives would become dental anesthetics or soda flavoring, and which were destined only for a future as street-grade cocaine.
The multifaceted nature of the topic explains why I found this book so useful. Edited collections can feel like a disconnected group of papers, but in this case, the fact that each chapter has a different approach and preoccupation, and yet they can all be perused together in one sitting, is (as they say) a feature rather than a bug. What is the War on Drugs, after all, but a collection of historical phenomena—cultural developments, entrepreneurial adventures, policy programs, military crackdowns, etc.—undertaken by a range of actors, both state-backed and otherwise, all around the world, all with different approaches and preoccupations?
To glimpse the War on Drugs in totality, you need to think about, say, the Chicago Police Department in the 1980s, poppy growers in Afghanistan in the 1970s, Mexico’s Partido Revolucionario Institucional in the 1960s, whatever happened to Quaaludes, and then puzzle all those things around in your mind and see how you might fit them all together. By reading this book, you can have that very experience.
In a Jot, there is not space to summarize each of the book’s chapters, so I will briefly highlight two that spotlight different dimensions of the legal history of greater Chicagoland. Elaine Carey’s “The Mexico-Chicago Heroin Connection” chronicles the Herrera drug trafficking organization; Peter Pihos’s “The Local War on Drugs” reconstructs how police and prosecutors ramped up the number of drug convictions in the 1980s.
These chapters exemplify a recurring theme throughout this volume (and drug historiography more generally): the interplay between drug enforcement and state-building. By the late twentieth century, scholars generally deem the American state fairly “built,” yet these chapters reveal deep caverns of ignorance, discoordination, and fragmentation beneath the surface. They show lawmakers and enforcers bumbling into processes and organizations they did not fully understand. An arrest might not be the end of an investigation but the tip-off to begin one. State actors used the tools of criminal law to map the drug trade, not just police it, and then, in an iterative loop, used their newfound knowledge to ask legislators for more tools.
Structured around the concept of “punitive capacity,” Pihos’s chapter documents how local actors pieced together over time the power to incarcerate large numbers of Chicago residents. New law-on-the-books, alone, could not and did not automatically produce mass incarceration; law-in-action also had to change. As late as 1980, Chicago police were making lots of arrests, but Cook County judges were only sentencing “half of a percent of drug-related arrestees to prison.” (P. 131.) Then, Richard M. Daley, elected state’s attorney on a tough-on-crime platform, commanded line prosecutors “to take many more cases to trial” and to file monthly reports documenting “their success in sending people to prison.” (P. 138.) He established special drug teams, staffed with especially “aggressive prosecutors,” and beefed up warrant applications to make sure that evidence held up in court. (P. 139.)
Carey provides complementary insights into the state’s investigative capacity (or lack thereof). A theme of Carey’s chapter is how little state agents knew about the Herrera organization. In 1973, when two dozen members were caught up in a Chicago gang bust, a police captain claimed that the ring had existed for “four to five years”; actually, they had been operating throughout Mexico and the United States for two decades. (Pp. 70-71.) Into the 1970s, law enforcement agencies employed few Spanish-speaking officers; ignorance of basic Mexican naming conventions generated confusion about the family tree and “which Herreras they needed to surveil.” (Pp. 72-74.)
Racial stereotypes reinforced this tendency to underestimate and misunderstand. Policymakers described Mexican drug labs as “primitive” in contrast to European ones—ignoring, Carey notes, Mexico’s “robust” pharmaceutical industry and university chemistry programs. (Pp. 67-69.) Over time, some of these gaps were addressed. Local arrests triggered more in-depth investigations by congressional committees and federal agencies. By the 1980s, the DEA had invested in bilingual agents, while also mastering new lawfare tactics recently authorized by Congress such as wiretapping and asset forfeiture. (Pp. 79-82.)
Together, these chapters underscore the importance, for legal historians, of attending to the state’s weaknesses and discontinuities. The various nodes and pathways of influence connecting state actors must always be charted and documented with evidence at a particular point in time, not assumed. We cannot presume that a Zeus-like “state” already existed at Point A and then decided at Point B to direct some lightning bolts towards drugs, thus reducing the historiographical debate into questions of why “the state” made that decision or whether it should have. Decisions to police drugs could set in motion events through which state entities gained new powers, and these powers presented more options to policymakers, making the War on Drugs ever less aspirational (and ever less metaphorical) over time.
In addition to the collection’s scholarly value, I would also recommend The War on Drugs: A History as a teaching resource. If your university library offers access to the e-book, it is easy to assign a chapter or two (which students can download as individual PDFs). And the book has a companion website linking to related images and primary sources.
Mar 2, 2023 Angela Fernandez
Sierra Club v. Morton is a seminal 1972 U.S. Supreme Court case on standing, the essential procedural question of who has a legal right to initiate a lawsuit based on a plaintiff’s alleged injury traceable to a defendant’s unlawful conduct. Daniel Selmi’s new book provides a deep dive into the history and context of this famous case, showing that it was about much more than the majority decision’s denial of the Sierra Club’s standing. And it was not, as some have claimed, launched as a test case to establish standing for environmental groups or the entities themselves, the possibility William O. Douglas went into in his famous dissent dear to the hearts of those interested in the Rights of Nature.
The story begins in the mid-1960s with a decision by the Forest Service to allow the Disney Company to develop a ski resort in the Mineral King area of California’s Sierra Nevada mountains. The Sierra Club was initially supportive of the project. However, they turned against it, as younger members of the Board came to believe they should be protecting wilderness rather than facilitating its use and development, even for skiing, an important out-of-doors activity for Club members. Selmi emphasizes that the Club changed tack at a time when their odds of winning were slim to nil. They (surprisingly) won at trial before a judge who barely registered the standing question (P. 135) and then lost at the Supreme Court. Yet, the war was ultimately won when longstanding transportation issues (for example, expanding an existing road versus building a cog railway) could not be resolved, and political support for the project fell apart. Then, in 1978, Congress decided to make Mineral King part of Sequoia National Park.
Among the surprising things I learned in the book was the military context of support for skiing in the United States. “Old guard” members of the club, most notably its Executive Director David Brower, had, along with Wilfred “Slim” Davis of the Forestry Department, been members of the something called the 10th Mountain Division during World War II. (Pp. 15, 21.) This division of the United States Army trained men for mountain warfare and included expert skiers. (Pp. 8-9.) These men carried their wartime experience over into civilian enthusiasm for the sport and its post-war development, effectively establishing the ski industry. Selmi writes that members scattered after the war but kept in touch. (P. 9.)
The coziness created by such connections became important because one of the major issues in the proposed Mineral King project was the trust the Forest Service placed in its partner in the project, the Disney corporation, and its failure to place any limits on Disney’s development plans. (P. 89.) Selmi draws on a brochure put out by the Disney Company in 1966, signed by the man himself, who died in December of that year, promising that the area’s natural beauty would be preserved but which also stated, “I guess you might say that it won’t ever be finished.” (P. 62.) This idea was that the resort would keep growing and growing, Disney would never say what the limit was, and the Forest Service was just fine with that. (P. 181.) This blank check created a fundamental problem for the credibility of Disney’s promise to be able to protect the area (land, trees, animals). As Selmi puts it, “[a] large development would inevitably change Mineral King[…]Disney and the Forest Service never directly confronted that reality.” (P. 265.)
The unfettered and unstructured nature of Disney’s proposal and the discretion used to approve it also explains why the defendant in the case was Rogers C.B. Morton, the newly appointed Secretary of the Interior in 1971. (P. 168.) The lawsuit was against public agencies in charge of public lands making important decisions about those lands without public input or regulatory requirements. Hence Selmi’s decision to frame the case as a product of distrust about deferring to government expertise, “a development stemming in part from dissatisfaction with management of the Vietnam War.” (P. 260.)
Disney, for its part, kept its distance from the lawsuit because it wanted to create the impression that “if a legal problem existed, it originated with the Forest Service. Disney was a bystander, not an instigator of a legal violation.” (P. 140.) There were also concerns about actively opposing the Sierra Club, a conservation group with a lineage that went back to John Muir. (P. 130.) Disney himself was an honorary lifetime member of the Club, legendary for his many ground-breaking nature films. (P. 151.)
For the Sierra Club’s part, it left Disney out of the lawsuit, given the high regard in which Walt Disney and the company were held. As one Sierra Club member put it, “‘[t]o sue Disney…would be like suing motherhood, the Flag, and the Boy Scouts all at once’” (P. 121.) Also, as a large successful company, they had a lot of resources, which could be used to hire many lawyers who would make it more difficult (and expensive) to fight the case and win. (P. 122.)
Despite the fact that Selmi seeks to de-center standing in his history of the case, or at least destabilize the understanding that standing was what Sierra Club v. Morton was always meant to be about, he presents an excellent and thorough discussion of the issue. Selmi explains that the Sierra Club insisted on its general interest in a case that would impact the environment of concern to its members rather than Club members’ actual use of the area, which the Supreme Court indicated it would have accepted. As Justice White reportedly put it: “Why didn’t the Sierra Club have one goddamn member walk through the park and then there would have been standing to sue.” (P. 204.)
However, the Club’s “loss” did nonetheless help establish that an aesthetic non-economic interest (specifically an environmental harm) could ground a lawsuit. (P. 199.) In subsequent lawsuits, relatively few environmental plaintiffs were denied standing. (P. 258.) Sierra Club v. Morton provided clear instruction: establish use and an individual harm, and the courtroom door would be open. Sierra Club’s lawyer Lee Selna’s resistance to “the use theory” comes across as stubborn and slightly irrational. However, Selmi points out that there was also a logic to it, given the fact that users, for example, fishers, campers, guides, would be likely to support development. (P. 206.) Users then, like the Forest Service itself, could not be trusted to keep the ecological interests of the area at the forefront. Hence the dissent’s suggestion that the case should be framed as Mineral King v. Morton, even if the Sierra Club was appointed or otherwise empowered to speak for Mineral King.
In trying to answer the question, who really speaks for Mineral King Valley, the Sierra Club asked: “Is there anybody who really believes that if Mineral King could answer, it would say: “Walt Disney Productions, Inc.’” (P. 226.) The answer to this question, which might have been yes from a trusting public in 1955 or 1965, became a hard no by the 1970s. In this way, Selmi’s book situates the rise of U.S. environmental law in the problem of public agency discretion run amuck in the face of effective lobbying by private interests. While establishing that the non-economic or aesthetic interest of the Sierra Club was one that could be legally vindicated, it was still the interest (general or use-based) of humans; not the non or other-than-human interests of plants, trees, nonhuman animals themselves. This dogged anthropocentrism must be one of the most important legacies of the case to the field of environmental law, which it helped to establish.
Jan 31, 2023 Mary Ziegler
In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh expressed hope that reversing Roe v. Wade would help deescalate the national abortion conflict. Instead, the months following the decision have opened a new front in the war over reproduction, one in which states have not only criminalized abortion but also explored unprecedented and possibly unconstitutional methods of enforcing criminal laws. Alicia Gutierrez-Romine’s timely, meticulous study of the world of criminal abortion in California offers a powerful glimpse of where we might be heading next. Gutierrez-Romine carefully documents familiar inequities facing low-income and primarily nonwhite patients caught up in criminal investigations, but her book adds to our understanding of the workings of criminal abortion by focusing on a wider cast of characters, especially those facing prosecution for performing or aiding and abetting abortion and providers, including doctors and midwives of color, whose stories are less well known.
Historians such as Leslie Reagan have established that after states criminalized pre-quickening abortion in the later nineteenth century, criminal prosecutions were the exception rather than the rule, at least before the 1940s, and most often took place when a pregnant patient died to medical negligence. Gutierrez-Romine adds nuance to this narrative, exploring the different fates of abortion providers of different races, sexes, and professional statuses. At least at times, status helped to shield white male doctors from the harshest effects of criminal abortion laws—and allowed them to effectively advocate for reform when they did face prosecution. By contrast, physicians of color and midwives faced more scrutiny from the press, from jurors, and from prosecutors. Gutierrez-Romine paints a compelling picture of a system of unequal justice that may closely resemble one emerging in the post-Roe era.
Gutierrez-Romine begins by making sense of a familiar riddle: how abortion came to be broadly criminalized and yet rarely prosecuted. Much as physicians in the American Medical Association successfully convinced legislators to bar abortion in the late nineteenth century, abortions remained invisible when safely performed. (Pp. 41-42.) As Gutierrez-Romine argues, the fact that most prosecutions involved the death of a patient transformed legal and cultural understandings of the crime of abortion.
The heart of her story is the world of criminal abortion (and abortion prosecutions) in California. The justice that met well-known doctors accused of performing abortions in cities Los Angeles, Gutierrez-Romine shows, involved more shame than concrete consequences. Prominent, white physicians in her story faced prosecution, won acquittals, temporarily lost their medical licenses but then soon found their way back into medicine. The courts enlisted these physicians in a form of mythmaking about abortion: women on their death beds were forced to reveal the names of the men who fathered their children and then presented as victims of wayward seducers. This narrative stood in stark contrast with reality: 80 percent of those who died due to abortions in Los Angeles were married.
Defendants’ experience in the world of criminal abortion varied significantly by race. Gutierrez-Romine documents how male physicians of color mobilized their status to marshal significant support from within their own communities, presenting themselves as “pillars of respectability” (P. 88) who modeled respectability and success in a world of profound segregation. These physicians won the support of the Black press and community organizations of color but still fared poorly in court, often being convicted of serious charges and remaining in prison for years. Gutierrez-Romine shows that female defendants, too, faced harsher consequences, many of them framed as “the mid-wife type,” a woman without the expertise, status, or professional support of male physicians.
In Gutierrez-Romine’s telling, the late 1930s and 1940s proved to be a turning point in California, one driven at least as much by the opportunities available to ambitious prosecutors than by the rise of pronatalism or shifting ideas about “rackets” and organized crime. She shows that key prosecutions can serve as a kind of trial balloon: prosecutors successfully prosecuted the members of the Pacific Coast Abortion Ring “in the absence of patient deaths and complications.” (P. 151.) The easier prosecutions became, the more arrests and prosecutions ensued.
The next chapter in Gutierrez-Romine’s story will be familiar to those following the story of post-Dobbs developments: networks of criminal surveillance pushed those seeking abortion to travel out of the state and often the country, as many crossed the border into Mexico. She mines state files on the revocation of physician licenses, state coroner’s records, city council files, and grand jury records to paint a picture of criminal punishment of abortion in the state in the aftermath of the Pacific Coast Abortion Ring. Travel for abortion again led prosecutors and reporters alike to thread narratives of race into their understandings of abortion.
Tijuana abortions play a contradictory role in the history Gutierrez-Romine narrates. On the one hand, these procedures were broadly unregulated, leading to an influx of patients in California hospitals. This surge in patients encouraged hospitals to develop therapeutic abortion committees—and to suggest that some abortions were more legitimate than others. By demonizing Tijuana procedures as unsafe, supporters of limited reform presented the mostly white physicians practicing in hospitals as more legitimate—and as members of a medical community rather than criminal actors. Abortion opponents condemned what they saw as “Tijuana abortions,” framed as a distinctly un-American phenomenon. In reality, travel for abortion also involved physicians from California traveling to Mexico to perform procedures there. At first, complicated questions of choice of law made it hard to win prosecutions: even if physicians arguably conspired in California, jurors and judges alike were unsure of the state’s power to regulate out-of-state conduct.
Understanding Gutierrez-Romine’s history is urgent because she makes clear that there was nothing inevitable about the transition from cross-border abortion to reform. Even as some portrayed cross-border abortion as a sign that the law was broken, California lawmakers were searching for ways to close the “loophole” that allowed these procedures to continue, expanding ideas of aiding or abetting or conspiracy to reach a broader class of defendants. Her book offers a chilling perspective on the internal logic of criminal abortion—one in which experiments with criminal charges lead to new criminal charges, one defined not only by unequal justice but also by travel and the legal transformations required to prevent it.
Jan 2, 2023 Kunal Parker
Elizabeth Popp Berman’s Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy is a very smart book that deserves a wide audience. The book explores the rise to prominence of an economic “style of reasoning” in U.S. policymaking in the post-World War II decades. Between 1950 and 1980, Popp Berman shows, this style pervaded realm after realm of policymaking, from social welfare programs to the regulation of markets to the management of the environment.
The chief institutionalizers of the economic style of reasoning were not neoliberals or libertarians (these would become truly prominent in government only after the election of Ronald Reagan in 1980). Instead, they were Democrat-appointed economists and the bureaucrats they worked with and influenced. Albeit not ideologically opposed either to social programs or to market intervention, these economists and bureaucrats insisted that social goals be met as efficiently as possible and that market solutions were generally preferable to interventionist ones. Wherever possible, they pushed cost-benefit analyses and reviews within administrative agencies, urged the dismantling of early-twentieth-century market controls, and sought to achieve ends by creating markets for entitlements rather than by imposing standards by fiat. In all this, they shared much with those further to their right.
By the time Ronald Reagan was elected president, the economic style introduced during the Kennedy and Johnson years had become thoroughly entrenched. Indeed, it had become the hegemonic approach to solving all manner of public problems, its ubiquity and self-evidence continually reinforcing each other. Reagan Republicans would employ the economic style, but the ground had been laid for them decades earlier by Democrats. Indeed, Popp Berman argues, Democrats proved far less strategic in using the economic style than Reaganites. Democrats privileged it as a method in context after context and allowed it to subsume their substantive ends. By contrast, Reaganites were more selective and often successfully subordinated it to their substantive ends.
In Popp Berman’s rendering, the economic style in the 1950s, 1960s, and 1970s was resolutely microeconomic. As she puts it: “It starts with basic microeconomic concepts, like incentives, various forms of efficiency, and externalities. It takes a distinctive approach to policy problems that includes using models to simplify, quantifying, weighing costs and benefits, and thinking at the margin.” (P. 5.) By focusing on the microeconomic at a time when Keynesian macroeconomics was at the height of its prestige, Popp Berman is doing something highly original: directing the reader’s attention away from the well-worn secondary literature on postwar macroeconomic debates toward a vital and burgeoning realm of activity, one where microeconomic styles of reasoning were actively being instantiated within administrative agencies. She is also doing something extremely valuable in showing her readers that left-of-center thinkers, rather than those to their right, were the progenitors of the economic style in American government. Thanks to Popp Berman, we get not only a sense of the complex roots of our current market-oriented approaches, but also a sense that market approaches were not—and hence need not be—the exclusive preserve of the Right. To my mind, however, Thinking Like an Economist’s real strength lies in its detailed examination of the instantiation of the economic style. This is not an account of high economic theory, but a delving into the tangled politics of regulation, agency by agency, sector by sector.
It is precisely the richness of Popp Berman’s account that enables my interrogation of the “from”/“to” account she provides. The subtitle of the book is: “How Efficiency Replaced Equality in U.S. Public Policy.” At least to me, this suggests that “equality” was temporally prior to “efficiency,” that equality oriented the U.S. public policy (at least in the areas Popp Berman focuses on) before it was displaced by efficiency.
For a book that claims to take us from equality to efficiency, however, Thinking Like an Economist devotes rather little space to exploring what equality looked like in U.S. public policy and bureaucratic practice before efficiency dislodged it. Indeed, Popp Berman herself provides evidence that a commitment to equality might not have been especially robust before the economists took over.
It is certainly true that Johnson’s Great Society programs, as Popp Berman characterizes them, were committed to some kind of equality insofar as they were premised on logics of social insurance, political participation, racial equality, and rights. (P. 126.) But this is not true of many areas Popp Berman explores, where the economic style eventually came to predominate.
Consider Popp Berman’s description of the orienting logics of American market regulation during the first half of the twentieth century that the economic style later took apart. She writes:
“Between the late nineteenth century and the New Deal era, the United States established a legal and organizational framework for governing both market competition in general (antitrust policy), and a range of specific markets that showed tendencies towards monopoly or where stability or broad access were concerns (or example, transportation, energy, and banking)…Although the exact motivations for regulating varied, none focused on the promotion of efficiency.” (P. 152.)
But if efficiency might not have been a key motivation, it is hardly clear that equality was. Stability, the orienting principle behind the regulation of financial markets since the New Deal, is not equality (and might even have entrenched inequality). The same might be said of regulation in sectors like energy and transportation.
Within administrative agencies as well, it is not clear that equality-oriented decision making was the norm before the economists assumed control. Of the culture of the Antitrust Division of the Justice Department, Popp Berman writes: “Antitrust lawyers were not generally interested in evaluating whether existing law was bad, or whether a particular merger would increase productive efficiency or reduce allocative efficiency. They were interested in winning cases: prosecuting as many violations as the law would allow in order to gain litigation experience.” (P. 85.) The same is true of lawyers at the Environmental Protection Agency (EPA), who shared a “‘culture of enforcement’ that interpreted success through the lens of winnable cases.” (P. 163.) However one might characterize this lawyerly orientation, it does not seem to be particularly oriented towards equality.
When it comes to scientists employed within agencies like the EPA, one might tell a similar story. Scientists enshrined the protection of ecosystems as a supreme value in ways that resisted logics of efficiency and equality. The first generation of environmental legislation treated environmental concerns as absolutes. Popp Berman tells us that it “built ambitious and relatively rigid rules—like simply banning water pollution unless the ‘best available technology’ for pollution control was used—because they saw inflexibility as a tool for preventing [legislative] capture.” (P. 155.)
From the foregoing, one might conclude that, when postwar economists and economistic bureaucrats implemented the economic style of reasoning within administrative agencies and pushed for deregulation of markets, it was by no means clear that they were, as a general matter, replacing equality with efficiency. Quite apart from the role that mid-twentieth-century bureaucracy played in exacerbating race-based inequalities, one might conclude from Popp Berman’s own complex account that the prior animating logics and the actual practices of American regulators were extremely varied, directed towards ensuring stability, minimizing market fluctuations, winning cases, protecting the environment seemingly regardless of cost, as well as what we might more conventionally call promoting equality.
I wish to conclude this review by drawing attention to something else that Popp Berman’s account makes visible. In my view, her rendering of the contest between environmental scientists, who placed the protection of the environment as an absolute beyond calculation in terms of costs and benefits, and economists, who insisted on viewing the protection of the environment in terms of the logic of matching limited means to multiple ends, reveals something important about economics and, indeed, about our own modern condition.
Like many realms of intellectual endeavor that underwent the modernist turn, in the late nineteenth century, economics shed its concern with given truths, ends, and foundations and became, albeit slowly, a science of matching limited means to multiple ends (to paraphrase the economist Lionel Robbins’ famous definition). What Popp Berman calls the economic style is a style for a world without ultimate truths. As economists describe their own endeavors, all they offer is a way of maximizing multiple ends given limited resources; they take ends as they come, without enshrining any one above others. God, in modern economics, really is dead. Popp Berman recognizes as much toward the end of Thinking Like an Economist where, in a section entitled “Lessons for the Practically Minded,” she tells her readers: “[T]he economic style does not allow for commitment to absolute principles—for moral values that are ends in themselves, rather than objectives to be evaluated in terms of costs, benefits, and trade-offs.” (P. 225.)
In a gesture of opposition to the economic style, Popp Berman urges those who would resist it to continue to make absolute claims. But going back to a pre-modernist world of ultimate truths, ends, and foundations might not be that easy. The way Popp Berman urges her readers to challenge the economic style suggests as much: “But even if one recognizes that rights are rarely absolute in practice, starting out with absolute claims is both morally powerful and politically useful.” (P. 225; emphasis added.) Those who invoke absolutes must recognize that there are no real absolutes, Popp Berman informs us, but they must nonetheless persist because absolute claims are “useful.” They must act “as if” their truth claims were true, just as (I would argue) economists have long modeled the world “as if” economic actors are rational. In this sense, moral claims, like the economic style Popp Berman would have them oppose, are techniques. How these different techniques will battle for hegemony in the future is, of course, another story. But it does suggest that vanquishing the economic style will be no easy task.
Thinking Like an Economist is a protean book. It draws attention to a vitally important (and hitherto understudied) feature of postwar American governance. At the same time, its open-ended account enables not only an interrogation of its own narrative, but also a meditation on the nature of knowledge. Legal historians will profit from reading it.
Cite as: Kunal Parker,
The Economic Style, JOTWELL
(January 2, 2023) (reviewing Elizabeth Popp Berman,
Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (2022)),
https://legalhist.jotwell.com/the-economic-style/.
Nov 17, 2022 Allison Madar
In Thrice Condemned: Enslaved Women, Violence, and the Practice of Leniency in Antebellum Virginia Courts, Tamika Y. Nunley examines “the homicides of white Virginians and the enslaved women held responsible for their deaths.” Murder (and attempted murder), she asserts, “was a form of enslaved women’s resistance” and not all of the accused women who stood trial in nineteenth-century Virginia were put to death for their crimes. (P. 5.) In fact, some had their sentences commuted in “what nineteenth-century jurists referred to as acts of ‘leniency’ or ‘mercy.’” Nunley argues that these acts of mercy help to illustrate both “competing ideas about the relationship of gender, paternalism, and leniency” and “the contradictions built into the meaning and administration of justice in antebellum Virginia.” (P. 6.)
Nunley brings together a number of fields of historical study in her work, as she explores not only slavery and the laws of Virginia, but also gender, resistance, and local legal culture. Her engagement with the work of Philip J. Schwarz’s Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865 (1988) is evident in her title. In Schwarz’s telling, enslaved laborers tried for crimes in Virginia courts were “‘twice condemned’ by southern law and slavery.” (P. 6.) In Nunley’s telling, enslaved women accused of capital crimes were, in fact, thrice condemned. They were not only condemned by southern law and slavery, she argues, but also by the courts’ use of “racialized gender stereotypes” to decide their fates. (P. 6.) Thrice Condemned, then, makes clear the “interconnectedness of gender, slavery, and southern law,” and the variety of ways in which Virginia communities reacted to the convictions of women who violently resisted their enslavement. (P. 34.)
The historical record rarely provides scholars with the voices of the enslaved, and Nunley’s experience in the archive was no different. In many instances, she found “legal records with only a few lines and little to no information about the enslaved women involved;” however, she also uncovered some truly rich cases and supplemented them, when possible, with newspapers and the papers of Virginia governors. (P. 10.) The stories of women like Nelly, Jane Williams, and Agnes serve as anchors for Nunley’s article. But throughout, she also provides evidence of other enslaved women who stood before the court for having killed, or attempted to kill, either their own masters and mistresses, or other white Virginians, both young and old, in their communities. (P. 10.)
Nunley first discusses the case of Nelly, an enslaved woman who appeared before the Prince William County Court in the late 1850s for the death of George E. Green, her master. Alongside Nelly stood her children and her grandchildren. The court found all five enslaved laborers guilty and sentenced them to death. Nelly and her two children, Betsy and James, hanged for their crime. Ellen and Elias, Nelly’s twin grandchildren, did not. Instead, after receiving petitions from residents of Prince William County and neighboring counties—some of which called for Ellen and Elias’s hanging and others that called for leniency—Governor Henry A. Wise commuted the twins’ sentences and ordered they be transported out of the county.
At first glance, it might seem as though Wise’s decision was a merciful one, one that saved the twins from certain death. But, in commuting their sentence to transportation, Nunley makes clear that Wise ensured the twins “remained in bondage without the elders who raised them and who had perhaps offered daily examples of generational resistance and their own ideas about justice when they were alive.” It is also likely that part of Wise’s calculations centered on the twins’ “capacity for long-term labor,” being only fourteen at the time of the trial. (P. 16.) Absent from Wise’s pardon was any acknowledgment of the brutality of slavery or the particular cruelty of George E. Green. His so-called leniency, then, much like that displayed in the other cases Nunley examines, took “gender, age, race, and sex” into account but also made sure to protect slaveholders and the institution of slavery itself. (P. 6.)
Nunley’s careful reading and analysis of Commonwealth v. Nelly and others is just one example among many in Thrice Condemned in which she teases out the reasoning behind the decisions made in Virginia courts. She does much the same with the case of Jane Williams, an enslaved woman who attacked a Richmond family for whom she periodically worked, killing the wife and severely injuring the baby and husband, and again with Agnes, an enslaved woman who murdered Gerard Mason, a particularly “sadistic” slaveowner and the grandson of George Mason. (P. 29.) While Nelly, Jane, and Agnes died for their crimes, the intricacies and nuances of each case bolster Nunley’s arguments regarding the contradictory nature in which Virginia courts administered justice in the nineteenth century. Even when communities stepped in to “temper the discourse to reflect a morally critical community,” they did not do so out of any kindness toward, or consideration of, the enslaved, but, instead, to defend “the ‘moral good’ and ‘necessity’ of slavery.” (P. 34.)
Also included in Nunley’s study are the trials of Caroline, Rebecca, Suckey and Kelsie, Annie, Susan, Mildred Ware, and Rose, women whose cases are not as detailed as those of Nelly, Jane, and Agnes, but provide insight into the different ways that Virginia courts came to their decisions and the justifications some courts made for commutations. Taken together, these cases elucidate the ways in which enslaved women, were, indeed, thrice condemned. Nunley’s study of enslaved women accused of crimes in nineteenth-century Virginia is a significant contribution not only to the existing scholarship on slavery and the law, but also to that on enslaved women’s resistance.
Cite as: Allison Madar,
Enslaved Women’s Resistance, Leniency, and Justice in Nineteenth-Century Virginia Courts, JOTWELL
(November 17, 2022) (reviewing Tamika Y. Nunley,
Thrice Condemned: Enslaved Women, Violence, and the Practice of Leniency in Antebellum Virginia Courts, 87
J. of S. Hist. 5 (2021)),
https://legalhist.jotwell.com/enslaved-womens-resistance-leniency-and-justice-in-nineteenth-century-virginia-courts/.
