Winners of the Law and Society Association James Willard Hurst Jr. Prize in Socio-Legal History

Congratulations to the 2012 winners of the Law and Society Association James Willard Hurst Jr. Prize in Socio-Legal History! The two co-winners are Amy Chazkel, for Laws of Chance: Brazil’s Clandestine Lottery and the Making of Urban Public Life, Duke University Press and Daniel J. Sharfstein for The Invisible Line: Three American Families and the Secret Journey From Black to White, Penguin Press.

While I did not read Amy Chazkel’s book, it sounds quite interesting. According to The George Washington University magazine, GWmagazine:

The book explores the origins and evolution of the clandestine Brazilian lottery called the jogo do bicho, or “animal game”—a precursor to the informal economies that have become a central part of daily life in urban Latin America.”

I did read The Invisible Line, and it was wonderful. My review appeared previously, here. As I noted in my review:

This outstanding history of the concept of race in America focuses on the overlooked mass migration from black to white as many African Americans gave up their identities in return for the right to life, liberty, and the pursuit of happiness.”

The Sharfstein book is an important and creative approach to African-American history in this country. Highly recommended!

Bending and Breaking the Law: A Review of “Enemies: A History of the FBI” by Tim Weiner

Tim Weiner begins his extensively-researched history of the Federal Bureau of Investigation by observing that “Over the decades, the Bureau has best served the cause of national security by bending and breaking the law.” The 104 years of the Bureau’s existence has been a constant tug-of-war between the Nation’s need for national security and the desire of its citizens for the protection of civil liberties. And at the center of this struggle between safety and freedom was J. Edgar Hoover, who served a forty-eight year tenure as the head of the FBI.

Weiner benefited from over seventy thousand pages of recently declassified documents and more than two hundred oral histories from agents who worked for the Bureau. Weiner claims the newly unsheathed evidence shows Hoover in a new light; as not a monster but as “an American Machiavelli”: astute and cunning and a master manipulator, but also the architect (for good or evil) of American intelligence and surveillance.

The story begins in 1908 during the presidency of Theodore Roosevelt. Roosevelt’s principal concern was the anarchists, like the one who assassinated his predecessor, William McKinley. He ordered his attorney general to create an investigative service within the Department of Justice. The order resulted in the formation of the “Bureau of Investigation.” The Attorney General, Charles Bonaparte, sought the approval of Congress to start such an independent bureau, but was emphatically rejected. Bonaparte and TR merely waited until Congress adjourned, and hired 34 “special agents” with money from the Department of Justice’s expense fund. As Mark Twain observed, Roosevelt was “ready to kick the Constitution into the back yard whenever it gets in the way.” Interestingly, the FBI to this day doesn’t have a Congressional charter spelling out its role—it is the creation of an executive order!

Nationwide domestic surveillance under the Espionage Act of 1917 received a fillip when J. Edgar Hoover was appointed chief of the Justice Department’s newly created Radical Division. Originally charged with keeping tabs on radicals and other “untrustworthy” citizens during the war, Hoover turned the appointment into a life-long career.

J. Edgar Hoover and his right-hand man, Clyde Tolson, 1936

Hoover’s organization did not become known as the Federal Bureau of Investigation until the early years of Franklin Roosevelt’s presidency. The great Depression spawned a crime wave of bank robberies and hijackings. In response to the perceived lawlessness and incompetence of local law enforcement, Congress passed statutes making it a federal matter if interstate travel were involved in the commission of a crime or robbery of a federal bank. The newly christened FBI was charged with enforcing the new federal criminal statutes. With the help of numerous Hollywood movies and some professional public relations, Hoover became the public face of the government’s battle to fight crime.

Despite his public acclaim as a fearless crime fighter, Hoover always considered his primary task to be combating communism, not law enforcement. He made certain that the FBI’s principal activity was intelligence gathering, not assembly of evidence to sustain legal prosecution. Unbeknownst to the vast majority of Americans, for Hoover’s entire career, the FBI allocated the lion’s share of its resources and talent to surveillance of suspected communists.

From the 1930’s through the 1950’s the Communist Party in the United States never became a mass movement, but it did have several members well placed in the American atomic weapons program, and the Party was clearly beholden if not completely subservient to the Soviet Union. The FBI was able to infiltrate the Communist Party, but it did not identify several spies until they had already disclosed some important atomic secrets and decamped to Russia.

Hoover, left, and Tolson, right, at a 1950 hearing about Dr. Klaus Fuchs, accused of stealing atomic secrets from Los Alamos for the Russians

Ignoring the Supreme Court’s interpretation of the Fourth Amendment’s proscription of unwarranted searches and seizures, the FBI became expert at “black bag jobs”—breaking and entering private homes and foreign embassies, planting electronic listening devices, and stealing and copying personal documents. That expertise of undetected surveillance was turned on many prominent people. Hoover kept the information thus gathered very secret, but was able to use it as a kind of blackmail when he felt the need.

By the 1960’s the general awareness of the realities of Soviet communism had tarnished the ideological luster of the Communist Party. Membership in the party had shrunk to a level that it was not clear whether there were more communists in the United States or more FBI agents surveilling them. Nevertheless, Hoover saw communists everywhere, except in the Ku Klux Klan and the mafia. He completely ignored directions from Attorney General Robert Kennedy to investigate “the Mob.” He seems to have genuinely believed that the leaders of the civil rights movement were directed from Moscow. It was not until Lyndon Johnson became president and a series of horrendous murders of civil rights workers occurred that the FBI directed some attention to the Klan.

Hoover successfully badgered RFK to consent to wiretapping the activities – official and otherwise – of Martin Luther King.

The assassination of Martin Luther King proved to be a real turning point in the FBI’s priorities. Despite the fact that Hoover and President Johnson despised King, the Bureau pursued King’s assassin relentlessly and caught James Earl Ray after 53 days and one of the most intense man hunts in history.

For most of his career, Hoover paid scant attention to constitutional constraints. He seemed indifferent to the fact that much of the information in his secret files was inadmissible in court. Nevertheless, there were bounds that even he would not cross. When Richard Nixon tried to limit the FBI’s investigation of the Watergate break-in and some illegal wire taps that Henry Kissinger had planted on his own staff, Hoover refused to “call off the dogs.” Hoover died on May 2, 1972, but ultimately, it was information gathered by the FBI that brought down the Nixon presidency on August 8, 1974.

After Hoover’s death, the FBI fell into disrepute as disclosures of his illegal spying and racial prejudice became public. The Bureau faced the embarrassing task of having to investigate itself. Attorney General Edward Levi drafted the first legal guidelines in the Bureau’s history for conducting investigations. The guidelines were governed by the principle that the government should not break the law to enforce the law. He assigned Department of Justice personnel to investigate misconduct by FBI agents.

Edward H. Levi, 71st United States Attorney General

By the 1990’s the threat of communism had faded, and the Bureau redirected its attention to the threat of Muslim extremism. Surprisingly, various FBI agents had good partial information on the 9/11 plot to hijack airliners. Lack of information sharing with the CIA complicated the analysis of the various threads that were known by different people in the U.S. security apparatus. Unfortunately, the one agent who was able to connect the dots was ignored by his superiors.

Weiner is optimistic that the current agency has improved its competence and its respect for legal constraints. He points out that FBI agents protected John Ashcroft in his hospital bed when he defied Vice President Cheney’s orders to conduct a program of warrantless electronic surveillance. He notes that administrative structures to share information have been implemented. He describes numerous convictions for engaging in terrorist plots. He gives high marks to the current director, Robert Mueller.

Evaluation: This is an important book about a critical national institution. To some extent, it is also a social history of the United States for the last 100 years. The author is thorough in his research and fair in his judgments, giving credit where appropriate and vigorously criticizing the personal shortfalls of many prominent historical figures. It is not a dry history, but like Weiner’s award-winning book on the CIA, Legacy of Ashes, is full of fascinating anecdotes that make you want to run and share them with everyone you know. Highly recommended!

Rating: 4/5

Published by Random House, 2012

Review of “The New American Haggadah” edited by Jonathan Safran Foer and translated by Nathan Englander: Where Law, Hermeneutics, and Literature Come Together

Judaism has always allowed for a multiplicity of voices in the interpretation of its laws and traditions. In the Yeshivas, or institutes of learning where students study sacred texts, energetic participation is encouraged for interpretation and analysis. Early Jewish sages viewed the lack of “pure” or “objective” truth as positive: one must come to faith by active intellectual engagement. As reinforcement for this idea, a scroll of the Hebrew Scriptures must contain only consonants, forcing the reader into a creative process by having to determine contextual connections and inflections. Thus, Jewish law grows from the constant creation and interpretation of texts.

Plural understandings of Jewish law are legitimized formally in the important and widely cited Talmudic story of the conflict over the oppositional teachings of the School of Hillel and the School of Shammai. In response to prayers for a judgment as to which School was “right,” a heavenly voice is said to have proclaimed, “[T]hese and these [both] are the words of the Living God.” (Somewhat amusingly, the Talmud holds that even God has no authority in the interpretation of the Scriptures, because in Exodus (supposedly the word of God) it is said “One must incline after the majority.” Moreover, the fact that He created a myriad of people with a myriad of opinions meant that all of these opinions were ipso facto words of God! And thus “truth” can reside in any person.)

This brings us to the Haggadah, read during the holiday of Passover. Passover is a Jewish holiday and festival that celebrates the story of the Exodus, in which the ancient Israelites were freed from slavery in Egypt. [Passover in 2012 will start on Saturday, the 7th of April and will continue for 7 days until Friday, the 13th of April. Note that in the Jewish calendar, a holiday begins on the sunset of the previous day, so observing Jews will celebrate Passover on the sunset of Friday, the 6th of April.] The Haggadah is a booklet that has been used for centuries by Jews to tell the story in their homes. It is traditionally read during the first night of Passover, at a Seder, which is a ritual meal to commemorate the occasion.

This text has been used for centuries by Jews, but there is no one definitive version. On the contrary, there are more than 3,000 versions of haggadahs in existence, from denominational variations to children’s editions to those with feminist, ecological, humanist, social, and/or political orientations! None are considered to be more or less right than any other, but rather, reflect the comfort level and interests of those who choose them. The proliferation of haggadahs expresses the welcome Judaism extends to diverse interpretations of texts.

The haggadah also is an embodiment of the nature of Judaism as a religion focused on community obligation. The booklet is read in fulfillment of the biblical injunction to “Remember this day that you came forth from Egypt” (Exodus 13:3) “[a]nd you shall tell thy son” (Exodus 13:8). (Judaism, per Cover, is a religion of obligation rather than one of rights. See generally Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J. L. & Religion 65, 65-90 (1987).) Thus the Passover Seder tends to be a large gathering of family and friends, and the choice of a haggadah takes on the broader function of a social history serving to construct collective memory.

Collective memory refers to the social and political dimensions of commemoration, to the way that historical records are interpreted according to the shifting needs of current agendas. The Passover story, from the tricking of the Pharaoh by the Jews to the escape from slavery, is popular as a counter-model to the the tragic victimization of the Holocaust. The activist, survivalist message conveyed by Exodus contributes to a more positive sense of identity according to current sensibilities. Indeed, the Passover narrative reinforces the idea that unjust regimes should not receive blind obeisance; that resistance or revolution is an important part of the history of what it means to be a Jew.

Perhaps most importantly, the story, no matter in which of its 3,000 or so forms, conveys the message that social injustice is at least sometimes determined by structural inequalities rather than by questions of individual characteristics. Therefore Jews, by hearing this story over and over, are encouraged to question narratives that support prejudice or racism as a function of essentialism.

The New American Haggadah reflects these hermeneutic traditions in several ways. The most salient, perhaps, is the non-linearity of the text, echoing the layout of a Talmudic page. In the Talmud (or collection of ancient Rabbinic writings interpreting both ceremonial law and legend), annotations from scholars in different ages are arranged around the main text on the same page, symbolically representing a dialogue and encouraging readers to recognize the legitimacy of challenging authority. Unlike linearly-arranged texts, particularly those of historical or religious import, the open format denies a hegemonic interpretation of any one portion of the page, and this moreover encourages students to understand the role that media as well as message plays in presenting the “truth.”

Page of the Talmud

Similarly, the commentaries, or annotations, included in The New American Haggadah are all arrayed on the same page as the text they elucidate. This not only echoes the layout of the Talmud but further, like hypertext-linked pieces of information, it shows that the cascading rings of knowledge and interpretation for any one segment can be endless, restrained only by inclination. Running across the top of many of the pages is a timeline of Jewish history.

The commentaries, or annotations, included in The New American Haggadah stem from four different currents of thought: “Library” represents a literary/psychological perspective. “House of Study” presents religious and philosophical observations. “Nation” provides political interpretations, and “Playground” gives humorous observations from what might be a child’s point of view.

As an example, one set of commentaries pertains to the phrase “And the Lord heard our voices.” “The Library” commentator reflects on why God would generally want to hold Himself back from the sufferings of the world. “House of Study” discusses the importance of intermittently reminding God of His covenant with the Jews. The writer of “The Nation” muses on how the Jews are a vocal people: “Suffering in silence is not a Jewish virtue.” “The Playground” talks about the importance of promises.

Some of the prose in the commentary is particularly compelling. Of the phrase that ends each seder, “Next year in Jerusalem,” the “Library” commentator writes:

Next year in Jerusalem! We sing, from our places scattered around the globe, including the city of Jerusalem itself. And we will sing it year after year, no matter how history disposes of us, just so long as we are still around. Proust wrote, ‘There is no paradise but paradise lost.’ The Jerusalem with which we end the seder is a place in the Proustian dreamscape, only designated not by the ache of loss but the ache of longing.”

About the same phrase the “House of Study” asks,

So what is the wholeness that we seek when we sing ‘Next year in Jerusalem’? Is it a return from exile or the embrace of a broken heart? Is exile a punishment that distances us from God or an opportunity to get closer to him? Is it more Jewish to be broken than whole? Or is the point of Judaism the attempt to find wholeness in brokenness?”

Wholeness out of brokenness is what the celebration of Passover seeks to accomplish. “The seder,” the preface states, “is a protest against despair. The universe might appear deaf to our fears and hopes, but we are not – so we gather, and share them, and pass them down.”

The New American Haggadah does an outstanding job of articulating these hopes and fears, along with its message of redemption. Moreover, with its singular and provocative commentaries, it elevates the nature of the seder to an opportunity to discuss eternal themes and issues with multi-faceted guidance from the well-thought-out annotations. The commentaries are by Nathaniel Deutsch (“House of Study”); Jeffrey Goldberg (“Nation”); Rebecca Newberger Goldstein (“Library”); and Lemony Snicket (a.k.a. Daniel Handler) “Playground”. The Timeline was created by Mia Sara Bruch, and the beautifully-crafted design is by Oded Ezer.

Evaluation: Highly recommended for all faiths, not only because it is a biblical story relevant to most believers, but because the issues raised by the commentaries are relevant to believers of all faiths, and even non-believers. This book is not meant to appeal to each and every group that might want a haggadah, but remember that aside from this version, there are at least 2999 others! Foer wanted to be more inclusive, but ended up changing his mind:

I didn’t know what I was originally imagining, something that felt more like an anthology, more like a reference tool than a primary Haggadah. But the more I worked on it, the more I became afraid of that. … What the world does not need is a Haggadah that pats itself on the back. It needs a Haggadah that gets out of the way, that starts a conversation and gets out of the way.”

And who doesn’t think about such questions as why is there evil and suffering in the world? How do acts of violence fit in with the idea of a merciful God? How do you determine which laws are just or unjust? How should free and fortunate people best respond to those in poverty and/or slavery?

If for any reason there are those who don’t get enough to eat at a Seder, there is enough food for thought in this Haggadah to last the whole year through.

Rating: 5/5

Published by Little, Brown and Company, 2012

Review of “Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America” by Gilbert King

This masterful and riveting non-fiction book is about some of the bravest men in the history of this country. It is a useful corrective to anyone who thought (from reading The Help, for instance) that Jim Crow America wasn’t so bad. Or worse, those who thought that what was described in The Help was as bad as it got!

Gilbert King, who has written about U.S. Supreme Court history for both The Washington Post and The New York Times, argues that by the mid-1940’s, Thurgood Marshall, the grandson of a mixed-race slave, “was engineering the greatest social transformation in American since the Reconstruction era.” With a rhetorical facility (“benighted towns billeting hostile prosecutors”) that transcends the sobering subject matter, King allows you to forget you are reading non-fiction, but he never allows you to forget you are reading a genuine horror story.

Thurgood Marshall and his colleagues in the Legal Defense Fund of the NAACP traveled throughout the South in the 1950’s, trying to fight white supremacy using the weapon of the Constitution. Marshall knew he could not win cases at the local or state level, so his goal became to establish firm grounds for appeals on record. If favorable rulings on equal protection could be obtained in higher courts, these precedents could then be used as additional building blocks for the rights of blacks.

The story of Marshall’s battle is told by a focus on one particular case, that of the Groveland Boys, which was, according to King:

…key to Marshall’s perception of himself as a crusader for civil rights, as a lawyer, willing to stand up to racist judges and prosecutors, murderous law enforcement officials, and the Klan in order to save the lives of young men falsely accused of capital crimes – even if it nearly killed him.”

And he was nearly killed a number of times.

Thurgood Marshall as a young man

The case of the Groveland Boys made national news at the time, and also had a significant impact upon the NAACP’s goals for future litigation. It took place in Florida, a state that somehow escaped the bad reputation attributed to Mississippi, Georgia, or Louisiana even though it had a higher per capital lynching rate. King notes that

In the postwar decade Florida would…prove to be a state with a boundless capacity for racial inhumanity, even by measure of the rest of the South…”

In Groveland, the Klan was populated by lawmen, and blacks had no hope of protection. So it was that when four young black men were arrested for the rape of a young white girl, in spite of the fact that no semen was found in her, or that two of the boys weren’t even in the area that night, a conviction and death penalty for all four boys was a foregone conclusion. Two of the young men were in the area, and they were World War II veterans, the object of particular rancor among white southerners since these veterans no longer were acting subservient enough.

The book describes the horrific events that surrounded this case, including the beatings of suspects and murder of three of them by the sheriff, who managed to remain in office until 1972 when he was finally suspended for kicking to death a mentally retarded black prisoner in his cell; the personal risks with their lives taken by all the defense lawyers; and the jaw-dropping injustice in the courtroom. It also enumerates the pressures on Marshall, who was simultaneously working on arguments for Brown v. Board of Education to be argued before the U.S. Supreme Court. While desperate stays-of-execution were filed in the Groveland Case, Marshall was forced to respond to the Supreme Court’s order that all five of the segregation cases coalesced into Brown v. Board had to be reargued in terms of the statutory intent of the equal protection clause in the Fourteenth Amendment.

It’s an amazing story, and my respect for Marshall increased tremendously as a result of it.

Evaluation: This is a book that should be required reading. This horrifying, edge-of-your-seat tale really happened, and not that long ago. Its repercussions helped make the country what it is today. King, who unearthed FBI files that were under seal for sixty years, has done an outstanding job in telling this story which manages to be heart-breaking, inspiring, infuriating, and admirable all at once.

Rating: 5/5

Published by Harper, an imprint of HarperCollins Publishers, 2012

Review of “Pox: An American History” by Michael Willrich

Michael Willrich’s Pox is a history of the fight against smallpox near the end of the 19th century in the United States. In particular, it emphasizes the resistance to vaccination by a large segment of the American public, and the redefinition of liberty that ensued from the conflict.

At that time, prior to any regulation of the biologics industry, the manufacture of vaccines lacked quality control, and their use carried the risk of pain, disfigurement, and even death from contaminated material. Vaccine samples “crawled” with bacteria, sometimes spreading syphilis or tetanus. Moreover, many people feared compulsory removal to “pesthouses,” and rightly so, since conditions there were abhorrent, and in any event, only the lower classes were forced there for isolation. Other factors contributing to resistance included medical beliefs, religious tenets, parents’ insistence on their rights to govern their own children, and “dearly held notions of personal liberty.” Because smallpox outbreaks usually began in black communities (owing to the poverty, crowding, racism by the health care profession who often refused to treat blacks, and the itinerant nature of many blacks looking for work), whites did not want to undergo vaccination for what they perceived to be a black disease, nor did they want to use their tax money to subsidize a vaccine. Blacks themselves particularly resisted vaccination, as did recent immigrants to the U.S., since they did not trust the authorities. Another complicating issue was the fact that there were two types of smallpox: the classic, dangerous smallpox, or variola major, and a mild variety, variola minor, which was not life-threatening. In the case of the latter, the vaccine could pose more risk than the disease itself.

Color-enhanced image of Variola Major Smallpox Virus

Because of all the resistance, coupled with the medical profession’s awareness of the danger of the disease, force was often used to check for evidence of, and administer, the vaccines. (Some local doctors made matters worse by accepting bribes to provide vaccination certificates; therefore only the vaccine scar was accepted as proof of vaccination.) Blacks in particular were likely to be roughed up–many were handcuffed and vaccinated at gunpoint. And in a precedent-setting development, federal health officials persuaded many employers to deny work in cases of noncompliance. Willrich observes that this may have laid the foundation for future agreements to control labor conditions.

The most interesting part of the story, in my opinion, is the battle that ensued in the courts about where the line should be drawn between the states’ inherent “police power” and individual liberty, and indeed how personal liberty would be defined in the changing culture of the nation. Some contend this fight affected the fate of our country as much as the Revolution or the Civil War: what limits should apply to new laws and restrictions governing the fields of social and economic regulation? What was the extent of fundamental individual liberties? Does the state ever have the right to encroach on the inviolability and integrity of a citizen’s body? How should the modern state balance liberty of the individual against the greater good of society? When is “clear and present danger” adequate justification for an increase in police power by the state?

The cases brought by citizens against compulsory vaccination, and in particular, Jacobson v. Massachusetts (197 U.S. 11, 1905), set standards still invoked today for an understanding of liberty in America. The defendants challenged the state’s attempt to compel them to accept vaccination as a violation of their 14th Amendment right to liberty without “due process of law.” (The state’s jurisdiction was not questioned; rather, the question put to the Court was whether the state had overstepped its own authority.) In upholding the state’s power to compel vaccination, Justice John Marshall Harlan wrote:

[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. [my emphasis]“

Justice John Marshall Harlan

He also added a caveat, however:

…it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.

…Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. … We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it as so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. ‘All laws,’ this court has said, ‘should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of that character. The reason of the law in such cases should prevail over its letter.’”

The Jacobson ruling had wide ramifications and was hailed both by those in favor of an expansive police power and by those who emphasized civil liberties. However, a few months later, the Court seemed to reverse itself with its ruling in the famous case Lochner v. New York (198 U.S. 45, 1905). (Justice Rufus Peckham wrote the opinion; Justice Harlan along with Justice Oliver Wendell Holmes, Jr. filed dissents.) Lochner juxtaposed the right of private businesses to set up any kind of contracts they wanted against the concerns of bakers for their health and welfare. The Court found that the police power did not extend to the power to interfere with private contracts (even on the ground of seemingly sound public policy), insofar as, it opined, health hazards are often just a natural part of life, rather than a function of conditions that can be manipulated by employers. Over the next three decades, the Court employed the Lochner doctrine of “liberty of contract” to strike down numerous attempts by state governments to exercise their police power to improve working conditions or protect consumers. In other words, while Jacobson expanded police power in some circumstances, Lochner went the other direction.

Justice Rufus Peckham

Nevertheless, Willrich contends that many legal scholars continued to look to Jacobson rather than Lochner as “the authoritative statement of the almost unlimited extent of the police power in the United States.” The ensuing battle between substantive and procedural interpretation of the 14th Amendment did not end until the late 1930’s when the Court endorsed Franklin Roosevelt’s regulatory priorities. [The phrase “substantive due process” is often used to describe the Court’s approach with Lochner and similar cases of that era, using the due process clause of the 5th or 14th amendments to invalidate the substance of legislation rather than merely the procedures embodied therein or those used to enact it.]

Willrich observes that Jacobson has been cited as precedent numerous times in Supreme Court cases to defend extraordinary exercises of government power, including sterilization laws and warrantless entry. It has also, however, provided authority for the revolution in civil rights, especially with respect to bodily autonomy and integrity, as in cases of reproductive rights and medical privacy.

Evaluation: This is a fascinating and timely story not often told about the behavior of both the government and the public in the face of a widespread biological threat, and about the evolution of law that arose because of it. While the specifics of the smallpox epidemic provided more information than I may have preferred, I applaud the author’s meticulous documentation. On the other hand, while I can read about the Fourteenth Amendment all day long, some other readers might think that section of the book too detailed. In sum though, I would say this book has something to interest a wide variety of readers, and is a worthy contribution to our historical record.

Rating: 3.5/5

Review of “The Invisible Line” by Daniel J. Sharfstein

This outstanding history of the concept of race in America focuses on the overlooked mass migration from black to white as many African Americans gave up their identities in return for the right to life, liberty, and the pursuit of happiness. As blacks, they suffered restrictions on the ability to earn a living, get an education, enjoy public facilities, avoid threats and insults, and live without the fear of lynching when the mood of whites spoiled. As Sharfstein points out (and as was demonstrated in the book I reviewed earlier this week, Douglas Blackmon’s Slavery By Another Name, even years after the Civil War ended,

Countless thousands of Negroes in the South lived in conditions approximating slavery, shackled by sharecropping contracts, arrested on trumped-up charges, and sold as convict labor. Every few days a Negro was lynched: burned, shot, castrated, hacked to pieces.”

Thus, crossing the invisible line between races became more and more attractive for “racially ambiguous” people, of whom there were many. Some even chose poverty as whites over affluence as blacks to escape the poisonous consequences of racism.

This journey from black to white forced Americans to come to grips with what the meaning of race, and how much of a “melting pot” they wanted their country to be (in contrast to populist rhetoric). Ironically, in the South, white communities often let individual blacks “pass” as long as they lived and acted as whites. After all, “to insist on a stricter rule would have been dangerous to the social order, as it would have risked reclassifying an unsettling number of people.”

In order to illustrate the experience of African Americans crossing the color line, Sharfstein follows three families over two centuries. He selected these three, he writes, “because they were typical, but also extraordinary.” And in the course of documenting their experiences, he offers a close-up look at seminal events in American history from the perspective of how they affected racial classification and what it meant for the millions of Americans outside the strict classification of black or white. As Sharfstein argues, “From the colonial era well into the twentieth century, the idea of race – the notion that blood transmitted moral character and social fitness – provided a central reason why American democracy exalted some people at the enduring expense of others.” It’s a radically different and fascinating way to approach American history.

As Sharfstein emphasizes, from the very beginning of our nation, “…the consequences of being black or white were enormous. It often meant the difference between slavery and freedom, poverty and prosperity, persecution and power.”

Once the importation of slaves was forbidden, the South needed to ensure that the children of slaves remained slaves in order to have a steady supply of new slaves, in spite of the fact that many of them had white slaveholding fathers. And of course, the creation of an inferior “Other” helped to eliminate class tensions among whites.

After the Civil War, the need for sharper boundaries between black and white increased. Sharfstein postulates:

Before the war slavery had established and supported white privilege. As long as law and violent custom preserved the boundary between master and chattel, privileged whites had had little read need to insist on racial purity; allowing ambiguous people to become white only strengthened the prevailing order. [He observes that many of those in the middle claimed a Cherokee or Portuguese grandmother.] In slavery’s absence, however, preserving white privilege seemed to require new, less flexible rules about race and constant, aggressive action to enforce them.”

One of the most effective methods of fostering resistance to civil rights for newly freed slaves was to express racism through the vocabulary of sexual deviancy. Thus orators railed about the “degeneracy of black women and the “depravity” of black men justifying laws separating the races. Later, at end of the 19th Century, “scientific” reports on the races “established” that blacks were “innately stupid, lascivious, violent, and diseased.” The language used created the political reality, in spite of the fact that the “reality” suggested that it was actually the white men who couldn’t keep away from the black women.

Lawmakers had a number of incentives to legislate the definition of whiteness, because it not only designated race, but status and privilege as well. [As legal scholar Robert Cover famously pointed out, a legal tradition is part of a normative world that establishes paradigms for behavior. Because the Constitution is such a powerful symbol for most Americans, its pronouncements have enormous impact. In the Dred Scott case (60 U.S. 393, 1857), the Supreme Court declared that all people of African ancestry, whether slave or free, were not citizens of the United States. State-imposed racial segregation was upheld in Plessy v. Ferguson (163 U.S. 537, 1896). These decisions transformed the myth of white purity and the value of white privilege into “objective facts.” Thus do “legal interpretive acts signal and occasion the imposition of violence upon others." (Robert Cover, “Nomos and Narrative,” 97 Harv. L. Rev. 1, 1983 and “Violence and the Word,” 95 Yale L. J. 1601, 1986)].

Dred Scott

Legislatures and courts began to delineate “drop by drop” how much blood made a person white or black. (Of course, a drop of white blood didn’t translate into whiteness, but a drop of black blood equaled blackness, clearly demonstrating that the goal of such legislation was to solidify a social order. Moreover, as Cheryl I. Harris points out, “The acceptance of the fiction that the racial ancestry could be determined with the degree of precision called for by the relevant standards or definitions rested on false assumptions that racial categories of prior ancestors had been accurately reported, that those reporting in the past shared the definitions currently in use, and that racial purity actually existed in the United States.” Cheryl I. Harris, “Whiteness as Property,” 106 Harv. L. R. 1707, 1740, 1993)

And in fact, this is part of Sharfstein’s whole point: many white Americans are not as racially “pure” as they might think they are. Whiteness is more of an ideological construct than a reality.

And yet, as Sharfstein notes, “The harder whites made it for blacks to earn a living, educate their children, and just make it through a single day without threat or insult, the greater the incentives grew for light-skinned blacks to leave their communities and establish themselves as white.”

The color line has always functioned, Sharstein avers, “in terms of racism, not race; hierarchy as opposed to heredity; barriers instead of blood.”

Evaluation: In spite of the meticulous research and theoretical underpinnings of this book, it is eminently readable: free of academic obscurantism without sacrificing its critical authority. For those of you who prefer to pick up history from the human angle in the form of stories about memorable characters, this book is perfect: the saga of the three families selected, The Gibsons, The Spencers, and The Walls, turned out to be absolutely absorbing. In clear and compelling prose, this book tells a story that should not be missed.

Rating: 4.5/5

Review of “Slavery by Another Name” by Douglas A. Blackmon

This Pulitzer Prize winning book analyzes why blacks did not rise in American society after emancipation until the Civil Rights Movement of the 1960s. It provides an answer to those who counter the lack of black achievement with the “bootstrapping” advancement of immigrant populations. And most importantly it shows that long past the time of the Civil War, slavery was actually still alive and well in the South in all but name, with active support of the state and federal governments.

Here’s how it worked (and a vast record of documents unearthed by the author attests to this system):

“By 1900,” Blackmon writes, “the South’s judicial system had been wholly reconfigured to make one of its primary purposes the coercion of African Americans to comply with the social customs and labor demands of whites.” Thousands of random indigent black men were arrested for anything from unemployment, to not being able to prove employment at any given moment, to changing employers without “permission”, or even loud talk. In other words, they were arrested for being young black men. They were sentenced to hard labor, and bought and sold by sheriffs and judges among other opportunists to corporations such as U.S. Steel, Tennessee Coal, railroads, lumber camps, and factories. The prisoners who were sent to mines were chained to their barracks at night, and required to work all day – “subject to the whip for failure to dig the requisite amount, at risk of physical torture for disobedience, and vulnerable to the sexual predations of other miners – many of whom already had passed years or decades in their own chthonian confinement.” Hundreds died of disease, accidents, or homicide, and in fact, mass burial fields near these old mines can still be located.

Blackmon charges that the desire to industrialize the South quickly was central to the restrictions put in place to suppress blacks, since these laws allowed for easy arrest and enslavement of workers. He avers:

Repeatedly, the timing and scale of surges in arrests appeared more attuned to rises and dips in the need for cheap labor than any demonstrable acts of crime.”

But also, and quite importantly, “these bulging slave centers became a primary weapon of suppression of black aspirations.” Millions of blacks lived in a shadow of fear that they or their family members would be taken into this system. It had a profound effect on their behavior and self-esteem.

Meanwhile, the whites in the North were impatient about blacks, and saw their lack of achievement as indicative of inferiority. An 1874 article in the Chicago Tribune asked:

Is it not time for the colored race to stop playing baby? The whites of America have done nobly in outgrowing the old prejudices against them. They cannot hurry this process by law. Let them obtain social equality as every other man, woman, and child in this world obtain it — by showing themselves in their lives the social equals of those with whom they wish to consort. If they do this, year-by-year the prejudices will die away.”

As Blackmon writes:

There was no acknowledgment of the effects of cycle upon cycle of malevolent defeat, of the injury of seeing one generation rise above the cusp of poverty only to be indignantly crushed, of the impact of repeating tsunamis of violence and obliterated opportunities on each new generation of an ever-changing population out-numbered in persons and resources.”

He insists that any consideration of the progress of blacks in the United States after the Civil War must acknowledge that “slavery, real slavery, didn’t end until 1945.” Thus the parents of today are the children of those who suffered under this egregious system, and so it can be expected that the repercussions continue to inform the expectations and attitudes of those who grew up with the stories and experiences derived from this very recent chapter in their family histories.

Evaluation: The story told by Blackmon is horrific. In spite of an abundance of evidence about what happened, history about the neo-slavery that survived after the Civil War is virtually non-existent. Moreover, it is clear from the records that these offenses against blacks were permitted by the nation. The legacy of terror and defeatism has had repercussions up to our present day.

Should it be read? Absolutely! But it’s a painful read, and the text includes some ghastly pictures. And yet, as Blackmon concludes:

Only by acknowledging the full extent of slavery’s grip on U.S. society – its intimate connections to present-day wealth and power, the depth of its injury to millions of black Americans, the shocking nearness in time of its true end – can we reconcile the paradoxes of current American life.”

Rating: 4/5

Review of “Scorpions” by Noah Feldman

Harvard Law professor Noah Feldman has given us a thoroughly researched, well written, solid analysis of the inner workings of the U.S. Supreme Court during the time it was dominated by four appointees of Franklin D. Roosevelt. The appointees, the Scorpions of the title, all began as supporters of FDR’s New Deal, and thus putative “liberals.” However, over two decades on the Court their perspectives matured and diverged, and they became rivals for intellectual leadership in constitutional scholarship. Their rivalry in some case even became personal detestation.

Feldman’s account includes short, revealing mini-biographies of each subject jurist. Felix Frankfurter was an ebullient Jew [“an interesting little man but very jew” in the exact words of Eleanor Roosevelt] who began as America’s leading liberal intellectual, but evolved into its most famous judicial conservative. Hugo Black was a former Ku Klux Klansman who became a vigorous advocate of free speech and civil rights. Robert Jackson was a backcountry lawyer in Upstate New York who later became chief prosecutor in the Nuremberg trials. William O. Douglas at first sought to use his appointment to the Court as a stepping stone to the presidency, but stymied in that pursuit, expanded individual freedom “beyond what anyone before had dreamed.”

Justice Felix Frankfurter

The most pressing legal issue in FDR’s presidency was the constitutionality of various New Deal programs. Many of those programs infringed on the “liberty of contract” [such as the “liberty” to go to work at age 12 or work more than 60 hours per week in menial jobs] enunciated in the 1905 decision, Lochner v. New York. Although each individual’s “liberty” is expressly protected by the 14th Amendment, nowhere in the Constitution does the term “liberty of contract” appear. The first eight cases on the constitutionality of New Deal legislation to reach the Court resulted in 5-4 decisions against the statutes. Feldman reprises the oft-told tale of FDR’s court packing scheme; how testimony by Jackson (then Solicitor General) before Congress supported the plan; how Frankfurter opposed it; and how a change in opinion by Justice Owen Roberts obviated the scheme by providing the Court with a 5-4 majority to overrule Lochner. Ultimately, it was Frankfurter’s doctrine of “judicial restraint,” giving substantial credence to the acts of the legislature, which carried the day.

Justice Hugo LaFayette Black

Feldman deftly traces the evolution of various legal doctrines through seminal decisions rendered by the Court from the late 1930’s through the mid 1950’s. We watch a Court willing to allow the internment of Japanese citizens during World War II evolve into the champion of civil rights that outlawed racial segregation in schools in Brown v. Board of Education. Feldman’s analysis is worthy of a law review article, yet his style and diction make the material accessible to the lay man.

Non-lawyers who may not enjoy legal analysis will still be interested in Feldman’s description of the clash of personalities that produced the epic decisions:

“Frustration bred contempt. From allies sipping champagne to celebrate one another’s joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of the ‘two completely evil men I have ever met….’ Frankfurter called Douglas, Black, and Murphy [another justice] ‘the Axis.’ One-upping Frankfurter, Douglas called him ‘Der Fuehrer.’ The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson.

Justice Robert Jackson

Feldman’s account of the machinations behind making the Brown opinion unanimous is particularly compelling. When the case first came before the Court, three justices (all southerners), including Chief Justice Fred Vinson, believed that the old “separate but equal” doctrine enunciated in Plessy v. Ferguson was the correct interpretation of the Constitution. Frankfurter knew that to rule segregated public facilities were unconstitutional would effect a social revolution, and so it required as strong and forceful opinion by the Court as possible. A 6-3 decision would not project the gravitas necessary to produce willing compliance, particularly in the South. After the oral argument, he persuaded a majority of the Court to defer decision and to require a re-argument the following year. This ploy gave him time to try to convert the other justices to his views.

Justice William O. Douglas

Remarkably, before the second oral argument, Vinson died of a heart attack. Frankfurter never liked Vinson, and told a former law clerk, “[T]his is the first solid piece of evidence I’ve ever had that there really is a God.” President Eisenhower then appointed Earl Warren, a consummate politician and a strong supporter of civil rights, as Chief Justice.

Even with Warren in the camp to overturn Plessy, the battle for a unanimous opinion was far from over. Frankfurter himself had to overcome his own judicial philosophy of judicial restraint. Jackson saw nothing in the constitutional text or precedent history to make segregation unconstitutional. Accordingly, he favored frank recognition that the court was making new law despite history and precedent, a position with which none of his colleagues would agree. He, however, fell ill and finally was browbeaten by Warren to join the unanimous opinion. A combination of Frankfurter’s cogent arguments and Warren’s cajoling induced the two remaining southern judges to join the rest of the court to make the opinion unanimous. The resulting opinion, although unanimous, is something of a hodge-podge of rationales. Nevertheless, it is usually considered the most important Supreme Court case of the 20th Century.

Evaluation: There is much more to this splendid book than my review can cover in a reasonably short space. I recommend it strongly for lawyer and layman alike.

Rating: 4.5/5

Review of “Inventing George Washington” by Edward G. Lengel

Edward G. Lengel is editor in chief of the Washington Papers Project and thus has spent hours and hours “in the company” of George Washington. As someone who therefore has had the truth in hand, he has marveled over the tenacity of falsehoods about Washington. The purpose of this book is to explore both the myths and the mythmakers to determine what purposes these distorted memories of “The Father of Our Country” have served for Americans.

The study of collective memory is incredibly interesting, because, as Yael Zerubavel points out:

[It] continuously negotiates between available historical records and current social and political agendas. In this process of referring back to history, collective memory shifts its interpretation, selectively emphasizing, suppressing, and elaborating different aspects of those records. History and memory, therefore, do not operate in totally detached, opposite directions; their relationships are underlined by conflict as well as by interdependence.” In Representations 45 (Winter 1994), at 73.

Lengel presents various examples of the metamorphosis of Washington’s memory, arguing that the changes reflected whatever contemporary collective self-image Americans wanted to reinforce. I should emphasize that Lengel is not talking about the “horizon of understanding” of different eras, nor about the inevitable influence of a historian’s own conceptual lenses. Rather, he refers to intentional manipulation in the interest of serving social and political agendas.

He starts with The Life and Memorable Actions of George Washington by “Parson” Mason Locke Weems, first published in 1800, averring “it contained some of the most beloved lies of American history, including the famous cherry tree myth, and spawned scores of imitators.”

As he takes us on a tour of the historical representation of Washington through the ages, he also comments on the cultural factors that probably contributed to the ways in which Washington was portrayed. Perhaps most interesting to readers will be his analysis of the current situation, in which “spurious Washington quotations, disseminated in the name of politics and religion, have also gained renewed popularity at the beginning of the twenty-first century.” He cites misquotations by gun rights advocates, by Senator John McCain, by former Vice President Al Gore, and in the most egregious example, by Congresswoman Michele Bachmann. He also recounts anecdotes of stories about Washington and marijuana, Washington and ghosts, and of course, Washington and aliens.

George Washington and Blue Tooth

He concludes by noting:

History is always in danger of growing stale through repetition. No one wants to hear the same old tale repeated over again. … Unfortunately, the temptation to veer from the straight and narrow in the search for historical truth is well-nigh overwhelming, and nowhere more so than in the search for the truth about George Washington.”

Evaluation: Lengel has written a very readable book that dispels some of the most popular, and erroneous, myths about George Washington. He also offers insights into why the historical representation of our first president has been deemed too important to be left to just the truth.

Rating: 3.5/5

Review of “Year of Meteors” by Douglas R. Egerton

The United States presidential election of 1860 was possibly the most seminal in our history. Egerton follows the election with great care, giving the bulk of his attention to Democratic party politics. He articulates the positions of Stephen Douglas, John Breckenridge, and John Bell, and describes what happened at the various party conventions held to select these candidates.

Egerton posits several theses about the election that I believe he proves quite adequately in this book.

One is that the “fire-eating” Southerners were determined to brook no compromises; they wanted to split the Democratic party vote. Their stated goal was to get a Republican elected, so that the South would have an “excuse” to secede. The two chief engineers of this plan were the rabid secessionists William Yancey of Alabama and Robert Rhett of South Carolina. Both of them had been publicly calling for secession for years.

The second is that, in spite of what later revisionist historians claimed about the motives of Southerners, it was never about “states’ rights”; it was always about slavery. As the Vice President of the Confederate States, Alexander Stephens, declared of the new government:

…its corner-stone rests upon the great truth that the negro is not equal to the white man; that slavery – subordination to the superior race – is his natural and normal condition.”

(It should also be noted that southern planters rejected northern offers to free blacks and then colonize them in Liberia or elsewhere so the southerners wouldn’t have to deal with them. Southern “Yanceyites” had no interest in freeing blacks. In fact, they wanted more enslaved workers, not fewer, and even lobbied to get the Atlantic slave trade re-opened to “stock” the western territories.)

At the time of the 1860 election, as Egerton points out:

[white southern planters] saw no reason to disguise their message; it would only be in later years, after the Confederacy had collapsed under northern guns, that statesmen writing their memoirs would think it necessary to point to more morally acceptable causes such as economic grievances.”

Even President Buchanan, trying to diffuse the secession crisis, made a speech in which he admonished that talk of liberty and equality by northerners could cause servile insurrections and terrify plantation mistresses in dread of what could happen to them. [No one of course was concerned about the terrified young black girls in the slave quarters, whose fears were actually based on reality. This best-ever example of projecting your worst characteristics onto your enemies was repeated over and over again in the South in the reconstruction years.] (Buchanan, who wasn’t even our worst or our most racist president, endorsed Breckinridge for president in the 1860 race because Breckinridge was the only one to favor a federal slave code for the territories, as opposed to letting the territories decide based on popular sovereignty, and thereby taking the risk that some of them would be – gasp – free.)

A third theory Egerton advances is that even had the Democratic party stayed united behind Stephen A. Douglas, Lincoln still would have won. He includes an analysis of the electoral and popular voting to support his position.

Stephen A. Douglas

Stephen Douglas, no matter what else he might have been, was a staunch unionist, and when Lincoln won the election, he backed him all the way, meeting with him often to consult on the deteriorating national situation. In fact, they got on so well that Secretary of State Seward, who wanted to exert the most influence over Lincoln, was disturbed over “the growing intimacy between the senator and the president.” As it happened, Seward needn’t have worried. At President Lincoln’s request, Douglas undertook a mission to the Border States and to the Northwest to rouse Unionist sentiments among their citizenry, but the non-stop schedule and non-stop drinking wore him down. He died of typhoid fever on June 3, 1861, at the age of forty-eight.

Discussion: This excellent book covers only a small slice of antebellum politics, but is rich in detail. It is especially valuable for its focus on Douglas and his southern rivals rather than on Lincoln. I enjoyed it a great deal, but I wouldn’t recommend it to a reader unfamiliar with the broader context, or with the constitutional, territorial, and sectional issues that were roiling the nation.

Rating: 3.5/5