After Prohibition took effect on January 17, 1920, it soon became clear that not all Americans felt obliged to stop drinking. Alternative sources of procuring liquor mushroomed, increasing the popularity of physicians, who could legally prescribe “medicinal” spirits or beer for their patients. By June of 1920, more than 15,000 physicians and over 57,000 pharmacists had obtained licenses to dispense liquor.

Prescription forms for medicinal alcohol, via the Rose Melnick Medical Museum

During the 1920 presidential campaign, Republican nominee Warren G. Harding pledged to enforce the Volstead Act (the informal name of the enabling legislation for the Eighteenth Amendment), which prohibited the sale of alcohol “as a fundamental principle of the American conscience,” implying that the Wilson administration had neglected its duty. Once inaugurated, President Harding tried to fulfill his campaign promise. On November 23, 1921, he signed the Willis-Campbell Act, popularly known as the “anti-beer bill”, prohibiting doctors from prescribing any malt liquor for medicinal purposes and severely limited the prescription of wine or beer for such purposes. 
(In early 1923, having become convinced of the importance of personal example, Harding gave up his own clandestine drinking.)

President Warren G. Harding

The medical profession grew alarmed at what it considered to be interference with the practice of medicine, and court challenges proliferated. In 1923, Dean Emeritus of the College of Physicians and Surgeons of Columbia University, Dr. Samuel W. Lambert, obtained a District Court injunction forbidding the local prohibition director from interfering with his prescription of wines and spirits. He claimed that the Willis-Campbell Act had “no real or substantial relation to the appropriate enforcement of the Eighteenth Amendment.” Thus, he argued, Congress had exceeded the powers delegated to it by the Amendment, and thereby violated his fundamental rights as a physician to treat his patients according to his judgment and training.

Justice Brandeis cited evidence that practicing physicians differed on the value of alcohol for medicinal purposes, and that in any event, at least some of the liquor was being diverted to beverage uses. He also disagreed that the Act had no relation to the enforcement of the Eighteenth Amendment, observing:

The opportunity to manufacture, sell and prescribe intoxicating malt liquors for `medicinal purposes,’ opens many doors to clandestine traffic in them as beverages under the guise of medicines; facilitates many frauds, subterfuges and artifices; aids evasion; and, thereby and to that extent, hampers and obstructs the enforcement of the Eighteenth Amendment.”

Justice Louis D. Brandeis

He also spoke about the problems of “craving,” “hardihood,” “fraud,” and “cupidity” – all tending to circumvent the Amendment.

Finally, and most importantly, Brandeis stated,

…there is no right to practice medicine which is not subordinate to the police power of the States, and also to the power of Congress to make laws necessary and proper for carrying into execution the Eighteenth Amendment. When the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by some or all of the incidents which attend the exercise by a State of its police power. The Eighteenth Amendment confers upon the Federal Government the power to prohibit the sale of intoxicating liquor for beverage purposes. Under it, as under the “necessary and proper” clause of Article I, § 8 of the Constitution, Congress has power to enforce prohibition “by appropriate legislation.” (272 U.S. 596-7, citations omitted).

Brandeis was joined in his opinion by Chief Justice William H. Taft and Justices Oliver W. Holmes, Willis Van Devanter, and Edward T. Sanford.

Justices George Sutherland, James C. McReynolds, Pierce Butler, and Harlan F. Stone dissented. They argued that the Eighteenth Amendment authorizing the federal government to regulate “the manufacture, sale, or transportation of intoxicating liquors” was expressly limited to those used “for beverage purposes.” To the extent such liquors were used for other purposes (e.g. medicinal purposes), their regulation was beyond authority granted by the Amendment. In their opinion, only the states could regulate the sale of liquor for medicinal purposes.

This case is interesting for several reasons. First, it combined a legal positivism approach to the law with a conservative belief in social control. Robert Post contends that “This fusion disappeared from judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicial conservatism finally came to terms with the entrenchment of the American administrative state.” [Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 1 (2006)].

Second, one could argue this is another example of the Court relying on the so-called “Brandeis brief” [i.e., as in the landmark case Muller v. Oregon (1908), facts drawn from the publications of medical, physiological, and sociological authorities are given at least as much weight if not more than legal precedents].

And third, the precedent it set continues to be important today with the medical marijuana issue winding its way through the court system.

In 1910, former undefeated heavyweight champion James J. Jeffries (“The Boilermaker”) came out of retirement declaring:

I feel obligated to the sporting public at least to make an effort to reclaim the heavyweight championship for the white race. . . . I should step into the ring again and demonstrate that a white man is king of them all.”

The fight took place on July 4, 1910 in 110 degree heat, at a ring built just for the occasion in downtown Reno, Nevada. In the fifteenth round Jefferies was knocked down for the first time in his career. By the third knockdown in the round, the referee stopped the fight declaring Johnson the winner. His boxing critics were silenced but not the critics of his race.

The outcome of the fight triggered race riots that evening — the Fourth of July — in twenty-five states. At least twenty-six deaths (all but two of them of blacks) were attributed to the riots. Hundreds more were injured Moreover, police interrupted several attempted lynchings.

Johnson continued to alienate whites by refusing to pay deference to the color line. He dated white women and married three of them. Two southern ministers called for his lynching.

On October 18, 1912, Johnson was arrested on the grounds that his relationship with Lucille Cameron (who later became his second wife) violated the White Slave Traffic Act (also known as the Mann Act) against “transporting women across state lines for immoral purposes.” Cameron refused to testify. Described by a prosecutor as “the foremost example of the evil in permitting the intermarriage of whites and blacks,” less than a month later Johnson was arrested again on similar charges. This time the woman, a prostitute with whom Johnson had been involved in 1909 and 1910, testified against him, and he was convicted by a jury in June 1913. The conviction was upheld despite the fact that the incidents used to convict him took place prior to passage of the Mann Act. Johnson was sentenced to a year and a day in prison. [Forty-seven years later, even in the changed racial climate of 1960, black rock and roll composer-performer Chuck Berry served twenty months in jail on a Mann Act conviction, the punishment for his admitted "fondness for women . . . of all colors" (David Langum. Crossing Over the Line: Legislating Morality and the Mann Act, 1994, p. 186.]

Illinois Congressman James Robert Mann, author of the White Slave Traffic Act

Johnson skipped bail and fled the country, returning to the U.S. seven years later. He surrendered to Federal agents at the Mexican border and was sent to the United States Penitentiary at Leavenworth to serve his sentence.

On June 10, 1946, Johnson died in a car crash on U.S. Highway 1 in North Carolina, after racing angrily from a diner that refused to serve him. He was 68 years old at the time of his death.

As Ken Burns remarked in his documentary, Unforgivable Blackness: The Rise and Fall of Jack Johnson:

Jack Johnson wished to live his life nothing short of a free man,” says Burns. “And that was a dangerous choice for an African-American in the first two decades of the 20th century.”

Justice Oliver Wendell Holmes, Jr.

Albert Priddy, a eugenics advocate, was superintendent of the State Colony for Epileptics and Feeble-Minded at Lynchburg, Virginia during the 1910s. [Eugenics is a form of selective breeding by which society, not nature, determines who is fit to reproduce.] With encouragement of the colony’s board of directors, Priddy sterilized some seventy-five to one hundred young women without their consent. However, the Virginia legislature had not clearly endorsed sterilization, and after a malpractice lawsuit, Priddy discontinued the operations in 1918. But Priddy was not ready to give up the practice: he and his like-minded associates lobbied the legislature for a clear sterilization law, which was enacted in 1924. (The new legislation was drafted by the Colony’s lawyer.) The statute provided for the sterilization of “mental defectives” and “feeble-minded” persons who were confined to certain state institutions, when, in the judgment of the superintendents of those institutions, “the best interests of the patients and of society” would be served by their being made incapable of producing offspring.

Albert Priddy

In 1924, a Virginia state court adjudged 18-year-old Carrie Buck to be “feeble-minded” within the meaning of the Virginia law and committed her to the Virginia State Colony for Epileptics and Feeble-Minded. Nine months later, Priddy filed a petition to his Board of Directors to sterilize her, stating that although she was 18 years old, her mental age was 9. Priddy maintained that Buck represented a genetic threat to society. Buck’s mother was also considered feeble-minded, and Buck had “immorally” produced an illegitimate feeble-minded child. The institution’s board approved Priddy’s petition after giving Buck notice and the opportunity to be heard at a hearing in which evidence was presented supporting the requested order. (We now know that her alleged “immorality” was the result of a rape, a fact that does not appear in the U.S. Supreme Court opinion. Later historians contend that Carrie’s commitment was an attempt by her family to save their reputation. Moreover, it should also be noted that Buck’s daughter had been officially labeled “feebleminded” at the ripe old age of one month. Carrie herself had attended school only until the sixth grade. Even so, her report cards showed she was not feeble-minded, irrespective of the findings of the Virginia court.)

Buck challenged the statute in the local county Circuit Court. Her suit was filed against Dr. J.H. Bell, who had succeeded Priddy as superintendent.

Dr. J. H. Bell

Buck raised two principle arguments.

First, she argued that the sterilization law violated her substantive due process rights guaranteed by the Fifth and Fourteenth Amendments. Her suit did not challenge the procedures by which Buck was ordered sterilized. Instead, she contended that the due process clause guarantees all adults the substantive constitutional right to procreate and that the Virginia law infringed that right.

Second, she argued that the Virginia law violated the equal protection clause of the Fourteenth Amendment, which guarantees that the law treat similarly situated people alike. The sterilization law failed to provide equal protection because it singled out “feeble-minded” patients at only certain state institutions identified in the statute, but did not apply to “feeble-minded” persons at other state institutions or to “feebleminded” persons who were not committed or confined.

The county court upheld the law and affirmed the sterilization order. Buck appealed to the Virginia Supreme Court of Appeals, which also affirmed.

The Virginia high court said that neither the Equal Protection Clause nor the Due Process Clause were designed to interfere with the state’s police power to prescribe regulations that promote the health, peace, morals, education, and good order of the people.

When the case reached the U.S. Supreme Court, Chief Justice William Howard Taft assigned the job of writing the opinion to Associate Justice Oliver Wendell Holmes Jr., then 86-years old. Holmes began his opinion by detailing the procedural safeguards that supposedly were afforded Buck, though neither Buck nor her representative had taken issue with them. Holmes observed that Buck had received notice of the superintendent’s petition for sterilization, Buck was given the opportunity to appear at a hearing where the propriety of her sterilization was determined based on the evidence presented, and Buck had the right to appeal all the way to the highest court in the United States. Holmes concluded, “so far as procedure is concerned, the rights of the patient [we]re most carefully considered” and that as the order was entered “in scrupulous compliance with the statute and after months of observation, there is no doubt that, in that respect, the plaintiff in error has had due process of law.” As we will see later, the procedures actually followed would not pass muster today, and probably would not have satisfied the Court then if it had been aware of their deficiencies.

Carrie Buck

Holmes next addressed Buck’s substantive due process claim that she had a constitutional liberty to procreate. “Carrie Buck is a feebleminded white woman …. She is the daughter of a feeble-minded mother … and the mother of an illegitimate feeble-minded child,” Holmes wrote. Then Holmes compared Buck’s sacrifice of procreative freedom to the sacrifice other U.S. citizens make when called into military duty:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.”

Holmes noted that once sterilized, Buck could be released from the institution to become a productive member of society. He then said, “It is better for the entire world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” He concluded his argument with the now infamous rhetorical flourish, “Three generations of imbeciles are enough.”

Holmes then neatly dodged the equal protection argument by stating “so far as the [institution's] operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.” In other words, if we sterilize these people fast enough, then turn them loose, there will be enough room in the institutions to round up the rest of them.

Justice Pierce Butler dissented, but did not file an opinion.

On October 19, 1927, Dr. Bell sterilized Carrie Buck. Buck was paroled following the procedure, but remained under the control of the Colony and was forced to make annual medical visits to Dr. Bell. Her marriage to William Eagle after she left the colony lasted for twenty-five years, until his death.

Although compulsory sterilization is now seen as an abuse of human rights and eugenics is a discredited science, Buck v. Bell was never overturned, and Virginia did not repeal its sterilization law until 1974.

On May 2, 2002, the seventy-fifth anniversary of the Buck decision, Virginia governor Mark Warner apologized for Virginia’s eugenics program, calling the movement “a shameful effort in which state government never should have been involved.” A state historical highway marker was dedicated to Buck v. Bell in Charlottesville on that day.

Modern historians and legal scholars have criticized Holmes’s opinion for being unenlightened and unduly harsh, pointing to portions of the opinion where Holmes assumed that disabled persons were not among the “best citizens,” that the “degenerate offspring” of “feeble-minded” persons would either become criminals or starve, and that unless such persons were sterilized society would become swamped by incompetence.

In Holmes’s defense, the Virginia sterilization law was written by a democratically elected state legislature, and its judgment was entitled to some deference. Moreover, compulsory sterilization was part of the Eugenics Movement, a popular but paternalistic reform movement that was based on the premises that the “lower classes” were too ignorant to practice birth control or otherwise take care of themselves and that eradicating “feeble-minded” persons from the population was humane.

Subsequent historians have also criticized the results of the case on grounds of which the Supreme Court was not aware. In fact, the procedural due process with which the case was conducted was quite tainted. It turns out that Carrie’s lawyer, Irving Whitehead, was on the Board of Directors for the Virginia State Colony of the Feeble Minded. Furthermore, he was a major supporter of sterilization and of Dr. Albert Priddy. Paul Lombardo, whose book Three Generation, No Imbeciles: Eugenics, The Supreme Court and Buck v. Bell (Johns Hopkins University Press, 2008) tells the story behind this trial, reports that “following his failure at trial, Whitehead secretly met with Priddy and the Board and voiced satisfaction that the case was proceeding as planned.”

Attorney Irving Whitehead

While the Supreme Court was unaware of Buck’s fraudulent representation, it too had biases. The Supreme Court Chief Justice, William Howard Taft was himself an active member of the national eugenics movement. Lombardo indicates that “[Taft] encouraged Justice Holmes to write an opinion that concentrated on the Buck family’s inherited defects.”

The Buck case had international repercussions. Hitler’s 1933 law “For the Prevention of Hereditarily Diseased Offspring” resulted in more than four thousand sterilizations; at the Nuremberg trials, Nazi doctors read from the Buck opinion, claiming the U.S. precedent as a defense.

But compulsory sterilization laws remained in force.

In 1942, the U.S. Supreme Court declared it unconstitutional to sterilize persons as a punishment for a crime on grounds that “[m]arriage and procreation are fundamental to the very existence and survival of the race.” Skinner v. State of Oklahoma, ex. Rel. Williamson, 316 US 535 (1942). But other reasons for this practice were not affected by this decision.

What was the rationale of people who supported compulsory sterilization? Two main arguments were offered in support of this policy. One was the desire to remove problematic behavior from the social environment (and “to prevent our being swamped with incompetence” as Justice Holmes put it). The second was to reduce social costs imposed by the unfit on the fit.

According to a history of involuntary sterilization in the United States by Philip Reilly (who is a lawyer, physician, and author of Genetics, Law and Social Policy (Reilly 1977), “from 1900 to 1960, more than 60,000 mentally ill or mentally retarded adults in the United states were sterilized without their consent for eugenic reasons.” (Philip R. Reilly, The Surgical Solution: A History of Involuntary Sterilization in the United States, Baltimore, MD: Johns Hopkins Univ. Press, 1991). The Oregon Board of Eugenics, later renamed the Board of Social Protection, existed until 1983, with the last forcible sterilization occurring in 1981.

Forced sterilization has now been recognized as a crime against humanity if the action is part of a widespread or systematic practice by the Rome Statute Explanatory Memorandum, which defines the jurisdiction of the International Criminal Court.

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

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

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

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

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

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

I am quite aware that owing to some of its scenes Ulysses is a rather strong draught to ask some sensitive though normal person to take. But my considered opinion, after long reflection, is that whilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.”

Marilyn Monroe Reading Ulysses

—from Judge John Woolsey’s decision on this day in 1933 that James Joyce’s novel could be admitted to the U. S., because it was not “dirt for dirt’s sake,” written with the “leer of the sensualist,” but “a sincere and serious attempt to devise a new literary method for the observation and description of mankind.”