Harvard University Press Blog

What Does it Mean to Represent a Race?

Kenneth W. Mack’s Representing the Race is a collective biography of a group of African American civil rights lawyers during the era of segregation. Mack moves away from the standard telling of 20th century American race relations (“stories of protest and accommodation, heroes and villains, assimilation and black separatism, movement building and backlash, progress and retrenchment”) to focus instead on what he calls an “enduring paradox” of race relations:

From their beginnings, Americans imagined that they inhabited a country composed of distinct racial, ethnic, and religious groups that somehow constituted a unified nation—an idea that, for some, is encapsulated in their historic national motto, e pluribus unum. Just as assuredly, since the time of the nation’s founding Americans have imagined that certain minority groups fit uneasily, or perhaps not at all, into the national whole. Among the most prominent of these groups have been African Americans, and what has connected this particular minority group to the larger nation has been its representatives—those who claimed to speak for, stand in for, and advocate for the interests of the larger group.

The usual story of black civil rights lawyers in American history is that these lawyers represented the interests of a unified minority group that wanted to be integrated into the core fabric of the nation—or, as more-recent accounts have described them, perhaps these lawyers failed at their task of representation. But the story was not so simple as either of these accounts would have it. Rather, from their beginnings, black civil rights lawyers were people caught between the needs and desires of the larger, white-dominated culture, and those of their own racial group, and there was no simple way out of that dilemma.

We recently spoke with Mack about the book, and in the video below he describes how the career of Thurgood Marshall, the most famous figure he discusses in Representing the Race, demonstrates the challenging melding of authenticity and exceptionalism still demanded of those said to “represent a race.”

 

Kenneth Mack will discuss Representing the Race at the Harvard Book Store’s Friday Forum this afternoon at 3pm.

A Nation Among Nations

In his compelling new book, historian Eliga H. Gould argues that the United States at its founding faced a paradox that’s now rarely acknowledged. As Gould explains in Among the Powers of the Earth, the young Union’s desired state of independence could only actually be achieved by claiming—and being granted—full membership in the community of nations. “We think of the American Revolution as the moment when Americans began to make their own history,” Gould notes in the video below. “It actually would be much more accurate to say it’s the moment when we began to make the history that others were prepared to let us make.”

 

 

 

Gould makes the case that the Declaration of Independence and many of the other founding documents from the American Revolutionary period demonstrate that what Americans actually sought was independence under the law of nations, rather than some sort of complete freedom from external obligations. So, even in that moment when a budding nation was determined to free itself from the constraints of colonial rule, the American founders were conscious of the need to conform to what other nations deemed legal.

To Gould, even the United States Constitution should be understood as an attempt to secure international recognition, rather than just a document outlining American liberties and rights. And one of the fascinating implications of Gould’s argument is what this American conformity meant for the spread of what was previously a particularly European law of nations. In the course of staking its independence in the New World, then, the United States also served as a new outpost for and exporter of a distinctly European sense of sovereignty, which had tremendous global and local implications.

It says a lot about the United States as a nation that this early need for approval and membership is largely absent from the stories we tell ourselves about the country’s founding. It’s not surprising, of course, given the still-thriving streak of American exceptionalism that’s always characterized America’s conception of itself.

To Gould, though, Among the Powers of the Earth doesn’t simply force us to reconceive American origin stories. The book should also help to assuage some of the concerns of those made uneasy by the prospect of a world in which the United States is but a member nation, no longer a singular leader, master of its own destiny. “I think it’s comforting to know that the founders faced a very similar set of problems and that even though there were moments when they made missteps, that they also came through it. And certainly the hope is that we too, today, will find our way through it as they did then.”

Someday All This Will Be Yours

In a piece published this weekend, Hendrik Hartog, author of Someday All This Will Be Yours, explained that the predominant view of the history of elder care in America isn’t actually very accurate. When thinking of the time before social security, senior homes, and assisted living, people too often imagine families in which children cared for aging parents out of familial love and filial duty, routinely piling three generations into houses together.

But, as Hartog writes, “this portrait is too rosy”:

If we confront what old-age support once looked like — what actually happened when care was almost fully privatized, when the old depended on their families, without the bureaucratic structures and the (under)paid caregivers we take for granted — a different picture emerges.

For the past decade I have been researching cases of family conflict over old-age care in the decades before Social Security. I have found extraordinary testimony about the intimate management of family care: how the old negotiated with the young for what they called retirement, and the exertions of caregiving at a time when support by relatives was the only sustenance available for the old.

In that world, older people could not rely on habit or culture or nature if they wanted their children to support them when they became frail. In an America strongly identified with economic and physical mobility, parents had to offer inducements. Usually, the bait they used was the promise of an inheritance: stay and take care of me and your mother, and someday you will get the house and the farm or the store or the bank account.

But of course what was at stake was never just an economic bargain between rational actors. Older people negotiated with the young to receive love, to be cared for with affection, not just self-interest.

Someday All This Will Be Yours presents the decade of research Hartog conducted, a project he first undertook during an extended stay near his own elderly mother. He eventually assembled a database of more than 200 cases in which a caretaker brought suit, alleging that the deceased had failed to make good on a promise of quid pro quo. In each case, the plaintiff claimed to have been promised, either implicitly or explicitly, that, in exchange for late-life care of their relative, employer, neighbor, or friend, they’d been promised some later recompense such as money or land. As Hartog explains, in order to win the case the aggrieved would have to prove both that a bargain existed and that they’d upheld their half. More often than not, they were unable to do so and were left with nothing.

Such cases, Hartog found, were essentially standard legal business; run-of-the-mill trials evidencing a social dynamic that we’ve somehow largely forgotten in our age of social services. Hartog’s goal for the project was to better understand this history of intimate transaction:

Two Takes on Two Migrations

Earlier this fall we published The Collapse of American Criminal Justice, by William J. Stuntz. The book is a deeply researched examination of the legal machinations that have left the United States with a criminal justice system that seems no longer to be ruled by law. Writing in the New York Review of Books, former U.S. Supreme Court Justice John Paul Stevens praised Stuntz for accurately describing “the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans,” and described the book as containing “a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement.”

Stuntz opens the book with a chapter titled “Two Migrations,” in which he considers the massive influx of European immigrants to the United States in the seventy years after World War I together with the northern migration of African Americans in the first two-thirds of the twentieth century. The two migrations had many structural similarities, and both triggered urban crime waves, which Stuntz notes is mostly to be expected: “Millions of mostly poor young men uprooted from their homes and moving into crowded slums sounds like a recipe for violence and lawlessness.” But, despite their similarities, Stunts shows that the crime waves actually differed enormously; the first was “short-lived and mild,” the second “long-lasting and severe.”

Comparing these two situations is an incredibly complicated exercise, and Stuntz’s willingness and ability to accept the challenge of such complexity is central to the accomplishment of The Collapse of American Criminal Justice. Of the many factors he points to in his consideration of the differing outcomes of these two migrations, one to which he gives great weight is the discrepancy between the political accomplishments of European immigrants and African American migrants: “By the late nineteenth century—when crime in immigrant-dominated cities was mostly falling, not rising—working-class immigrants and their offspring largely governed the justice system that governed them. Even today, African Americans have no such power.”

Khalil Gibran Muhammad’s The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, newly available in paperback, also addresses the differing outcomes of these two migrations. The book chronicles the emergence of a now-deeply embedded cultural notion of African American criminality, one that Muhammad shows to have grown from a dangerously misguided reliance on statistical “evidence.” He contrasts the treatment of African Americans in the urban North to that of working-class whites and European immigrants, and, like Stuntz, helps us to understand how those historical episodes continue to shape our society. 

Stuntz’s book, while wide-ranging and interdisciplinary, is based in his work as a legal scholar; Muhammad’s reflects his training as a historian, and his deep interest in the social sciences. Where Stuntz gives a focus on legal developments and statistical comparison, Muhammad sifts through the cultural and scholarly discourse surrounding those developments and statistics. And for Muhammad, a key to understanding the differing criminal patterns of these two migrations is the fact that the sociological establishment mobilized itself to argue for the integration of European immigrants, but left African Americans out of that effort, believing as they did that black people committing crimes were merely reflecting either their cultural or racial inferiority, and that sociological resources shouldn’t be wasted on them. As Muhammad explained it to us in a recent conversation:

By and large, the entire edifice of sociology (was) deploying its resources against eugenics and Social Darwinism to say that immigrants are not infecting American society with their degenerate blood… “They’re providing real energy and effort to our labor pool, they’re helping us build America. And that some of them should fall into a life of crime is more our fault than theirs, because we haven’t given them a fair opportunity. We stigmatize them, and our nativist proclivities make it very difficult for immigrants to live the lives that they came here to pursue.” And basically they never put black people into that equation. They left black people out of that kind of very structuralist, environmental critique of the origins of white European or white ethnic criminality.

You can hear Muhammad make that point and others in the video below.

 

So in the comparison of these two migrations, where Stuntz shows us political advancement for European immigrants and subsequent demographic shifts that largely prevented African Americans from making similar gains, Muhammad highlights a formidable social apparatus undergirding the rise of one group and helping to maintain the lower status of the other.

These two books, covering similar ground in different ways, help to remind us how important it is to reach across disciplinary lines in our attempts to understand the world in which we live. 

Arguing the Death Penalty

In 1820 Thomas Jefferson wrote a letter to John Holmes, a Massachusetts Congressman angling to become a Maine Senator. The letter contains a famous line for which Jefferson has often been credited with predicting the Civil War. On the matter of black slavery, he wrote: “this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the union.”

A year earlier when Congress was considering Missouri’s admission to the Union, debate hinged on whether the new state would have slavery. The eventual deal—the Missouri Compromise—called for the admission of Missouri as a slave state, balanced against the partitioning of Maine from Massachusetts as its own free state. John Holmes had supported this deal but had opposed an earlier version, written by New York Representative James Tallmadge, which would have included provisions towards Missouri eventually becoming a free state. When Jefferson wrote his letter in 1820 he was attempting to help Holmes, now seeking a Maine Senate seat, rationalize his seemingly pro-Southern opposition to the Tallmadge proposal.

In the letter Jefferson wrote of slavery: “We have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other.” This reflected Jefferson’s mistaken belief that emancipation posed such a dire physical threat to white masters that “self-preservation” could not yet allow the freeing of black slaves. In the letter to Holmes Jefferson presents what William J. Stuntz describes in The Collapse of American Criminal Justice as the “antislavery case for slavery’s expansion.” Here’s Stuntz:

As long as slaves were concentrated in a small portion of the country, white masters’ fear of emancipation’s consequences would bar all thoughts of abolition. “Justice is in one scale, and self-preservation in the other”— notice which scale Jefferson thought weightier. The only way to avoid choosing between a permanent slave population and mass slaughter of white masters, Jefferson suggested, was to permit slavery to spread out across a larger fraction of the country so that whites might everywhere outnumber the blacks whom they so feared. By this logic, the true friends of emancipation had voted with John Holmes, not with James Tallmadge.

Backed into a political corner, Jefferson presented an argument for the preservation of an unjust system on the grounds that only its spread could assuage the fears of those opposing its abolition.

That passage from Stuntz was brought to mind by Ross Douthat’s NYT column over the weekend, in which he can be said to present the “anti-death penalty case for the death penalty’s retention.” In the column, entitled “Justice After Troy Davis,” Douthat advances the interesting argument that those working to reform criminal justice are actually contradicting that goal by fighting to end the death penalty. His take on the Davis case is that the threat of the death penalty actually helped Davis argue for his innocence:

After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.

Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for. And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.

Books for Understanding the Execution of Troy Davis

Last night, in the face of powerful reasons to doubt his guilt, the state of Georgia executed Troy Davis. Since his initial conviction, seven of the nine witnesses have either changed or recanted their testimony. Some have said that they were coerced by police to testify against Davis. There’s reason to believe another man committed the murder for which Davis was convicted. Hundreds of thousands of people signed petitions calling for a stay. Jimmy Carter, Desmond Tutu, 51 members of Congress, Amnesty International, the Innocence Project, and even a former FBI Director asked for clemency. But late last night the United States Supreme Court unanimously denied a stay, and Troy Davis was put to death.

What a terribly crass moment to think of hawking books. So forget about that. Nobody here is trying to sell you anything today. But moments like this, when power acts in inexplicable and indefensible ways, are also when we most need the knowledge that books can give. The case of Troy Davis puts us in mind of three books we've recently published, a trio that together help us to understand how we’ve arrived at what feels so much like a miscarriage of justice.

The first is William J. Stuntz’s The Collapse of American Criminal Justice, which is looking more and more like the book that many of us have been waiting for. Stuntz, a leading legal scholar who passed away earlier this year, wrote the book in an attempt to help bring this large, multi-faceted issue into focus. The historians, economists, sociologists, and law professors who study crime, criminal justice, and the surrounding politics have had too little to say to each other, he wrote. The Collapse of American Criminal Justice tells the larger story by making the connections so as to better understand why our criminal justice system tolerates so much crime and produces so little justice, especially for poor people and for African Americans. It’s a big, complicated web that Stuntz was uniquely positioned to unravel. The justice system is broken in large part because it’s no longer driven by law, Stuntz found, but instead by the discretion of officials who no longer accurately represent the localities they’re appointed to serve. Discretionary justice too often amounts to discriminatory justice, where police are free to make choices and bend rules and prosecutors are free to pursue cases like the one against Troy Davis. We’ll have more to say about this immensely important book in the months ahead.

From the collapse of law to the utter fallibility of the procedures meant to enforce it. Brandon L. Garrett’s Convicting the Innocent, a book we’ve been proud to see get its rightful attention since publication earlier this year, is a systematic study of what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing. This week Garrett wrote a powerful commentary on the Troy Davis case, illustrating just how flawed his prosecution had been and calling it a “perfect storm of botched eyewitness-identification procedures.” He continued:

The eyewitness identifications in the Troy Davis case do not remotely pass muster based on what we know today about eyewitness memory—they were not double-blind, they were not conducted properly, and the staged re-enactment was blatantly suggestive. Nor is there any other indication that these witnesses were reliable… The Troy Davis case is a case about the death penalty and also about how much risk of error we as a society can tolerate. It is a case about judicial reluctance to meaningfully examine new evidence of innocence, including witness recantations. It is a case about jailhouse informants. But the Troy Davis case is finally a case about the fragility and malleability of eyewitness memory. And the eyes of the world are now on Georgia.

Finally, from collapsed law and fallible prosecution to the death penalty in the United States, the only Western nation to still practice capital punishment. While Stuntz and Garrett have written passionate books that make clear recommendations for improving our systems, David Garland’s Peculiar Institution is a cool, clear-eyed sociological look at what purpose the death penalty serves in America. His answer is that it’s largely a cultural function, not one of justice. He argues that the death penalty in America continues the long legacy of slavery, Jim Crow, southern lynching, and racial discrimination. He explained his book’s title in a post here last year:

The American death penalty is peculiar insofar as it is the only capital punishment system still in use in the West. It is peculiar insofar as the forms through which it is now enacted are ambivalent and poorly adapted to the stated purposes of criminal justice. And it is peculiar inasmuch as today’s capital punishment law and practice have been shaped, time and time again, by the nation’s history of racial violence and the legal struggle against it.

That analysis has been echoed over and over in discussion of the Troy Davis case.

The Collapse of American Criminal Justice. Convicting the Innocent. Peculiar Institution. Strange how their very titles map the sad, sorry course of what this country did to Troy Davis last night.

The West Memphis Three and False Confessions

Today’s post comes from Brandon L. Garrett, Professor of Law at the University of Virginia School of Law, and author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

-----

This past Friday at a hearing in Jonesboro, Arkansas, the West Memphis Three, who had been convicted in 1994 of murdering three young boys, but had long claimed their innocence, finally became free men by entering a rare deal in which they officially pleaded guilty while maintaining their innocence. Over the years, the cases against the Three had come into doubt. One of the Three, Jessie Misskelley Jr., had implicated the other two after a long police interrogation. His confession was the basis for the arrests. The alleged ringleader, Damien Echols, had been sentenced to death and had been on death row for 18 years. However, new DNA tests excluded all of the Three and instead matched one of the victim’s step-fathers. With that evidence in hand the Three seemed headed towards a new trial, one in which the prosecution acknowledges the men would likely have been acquitted. This deal securing their release preempts the staging of a new trial, though the prosecutor maintains that Misskelley’s confession was true and all three are guilty.

The case has received national attention over the years, particularly after a remarkable movie about the case, Paradise Lost: The Child Murders at Robin Hood Hills, was released in 1996. The case of the West Memphis Three is the latest high-profile case of a contested police interrogation that was not carefully recorded, making it far more difficult to unravel who said what. The lawyers for the Three maintained that Misskelley’s confession was false, unreliable and included all sorts of statements totally inconsistent with how the crime happened. Misskelley was borderline mentally retarded, with an IQ of 72, yet police persisted with his lengthy interrogation. The few recorded pieces of the interrogations showed police using leading questions to try to tell him what had happened, something that interrogators are trained not to do because it contaminates a confession. We do not know what threats or other techniques were used to secure that confession. Misskelley had promptly recanted his confession, but it was used to arrest and convict him.

In my book, Convicting the Innocent, I discuss what went wrong in the first 250 cases in which DNA cleared innocent people in the U.S. Chapter Two of the book focuses on the forty cases where DNA brought false confessions to light. Many of the forty were young or mentally disabled, partially explaining why they may have been susceptible to police pressure. In addition, all but two of their confession statements were reported to have “inside information” that only the true culprit could have known. Those details may have been fed by police. However, none of the forty false confessions that I studied was recorded in its entirely. We do not know everything that happened in those interrogation rooms. As a result, until DNA technology was developed and provided decisive evidence of innocence, those false confessions appeared to powerfully support the convictions.

A new multimedia resource, called “Getting it Right,” co-produced with the Innocence Project, with support from the Open-Society Foundations, shows how wrongful convictions display patterns that can tell us how to improve our criminal justice system. The resource includes video from the false confession of Frank Sterling, who endured a grueling twelve hour interrogation. His case illustrates the importance of requiring the videotaping of entire
interrogations. “Getting it Right” offers a series of links to research and resources for those interested in reading more about false confessions. “Getting it Right” also features an incredibly moving video featuring Jennifer Thompson (pictured at right), describing how she misidentified Ronald Cotton as the man who raped her and how poor lineup procedures played a role. There are also interactive resources on informants and forensic evidence, and on the roles played by law enforcement and lawyers.

The vast majority of criminal cases lack usable DNA evidence. Like the West Memphis Three case, the 250 cases that I studied are all unusual cases in which the “truth machine” of DNA can call into question seemingly rock-solid evidence. That is why it is so important to learn from the wrongful convictions that do come to light – so that we can get it right.

Who Owns Your Face?

We’re sure you’ve heard, because this is important: Kim Kardashian is suing Old Navy for putting a Kardashian lookalike in a television commercial earlier this year. The lawsuit claims that Old Navy intended to capitalize on Kardashian’s hard-earned fame and credibility by casting the doppelganger. (In the picture at right, Kardashian is on the left, and alleged clone Melissa Molinaro is on the right).  We’ll let justice run its course on this front, but the case reminds us of our ever-evolving rights to control our own image. There was a time when a company like Old Navy could have legally employed in their advertisements not just celebrity lookalikes, but anyone they wanted. In the following excerpt from American Property: A History of How, Why, and What We Own, Stuart Banner details a landmark case that prompted so much outrage that it led to the firm establishment in American law of the ownership of one’s own image.

-----

Abigail Roberson was a Rochester teenager who had her portrait taken at a local photographic studio. Somehow her picture ended up on 25,000 posters advertising the flour made by Franklin Mills of nearby Lockport. The photographer most likely sold the negative to whoever designed the posters, but however it happened, no one obtained Roberson’s consent. The picture showed Roberson’s head and shoulders in profile. Above her head the advertisement read “Flour of the Family.” Franklin Mills placed the posters in stores, warehouses, and saloons, including some in Rochester, where Roberson’s acquaintances could recognize her. The resulting humiliation caused her to suffer a severe nervous shock, which confined her to bed and required treatment by a physician. Her lawsuit sought $15,000 in damages and an order forbidding Franklin Mills from continuing to use her picture in its advertising.

The defendants (Franklin Mills and the Rochester Folding-Box Company, who apparently produced the posters) sought to have the case dismissed, on the ground that they had the right to use Roberson’s picture. “The substance of this contention,” responded the trial judge, “is that the feelings of the plaintiff may be outraged with impunity by any person,” and that was too much for him to bear. “If such were a fact,” he declared, “it would certainly be a blot upon our boasted system of jurisprudence that the courts were powerless to prevent the doing of a wrongful act which would wound in the most cruel manner the feelings of a sensitive person.” The case would be different, the judge explained, if the defendants had used the picture of someone who was already in the public eye, because such a person could hardly complain about unwanted publicity. But “any modest and refined young woman might naturally be extremely shocked and wounded in seeing a lithographic likeness of herself posted in public places.” Such a display violated the very core of “the sacred right of privacy.” If Abigail Roberson’s image, “owing to its beauty, is of great value as a trade-mark or an advertising medium,” he concluded, “it is a property right which belongs to her.”

The case attracted an unusual amount of positive attention, even while it was in the trial court. The trial judge’s decision “has elicited general approval from the press,” remarked one lawyers’ journal. The decision would likely be sustained on appeal, “and we certainly think it ought to be,” noted another. There was something disturbing about forcing a young woman into the harsh commercial world, something that grated on conventional ideas about the proper role of women and the sanctity of the home. When the decision was affirmed by New York’s intermediate appellate court the following year, another round of approving commentary followed. If ever there was a litigant who could attract public sympathy in favor of a right to control the display of one’s image, it was Abigail Roberson.

That sympathy reached its peak in 1902, when the New York Court of Appeals, by a 4– 3 vote, reversed the decision and held that Roberson had no right to prevent Franklin Mills from using her picture. “The so-called ‘right of privacy’ has not as yet found an abiding place in our jurisprudence,” Chief Judge Alton Parker decided. Like the earlier judges who had rejected the notion, Parker and his colleagues in the majority were worried about the threat to the freedom of expression posed by allowing people to control the use of their images. “If such a principle be incorporated into the body of the law through the instrumentality of a court,” Parker feared, “the attempts to logically apply the principle will necessarily result not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of a publication of a likeness, but must necessarily embrace as well the publication of a word picture, a comment upon one’s looks, conduct, domestic relations or habits.” And that was only the start. If there was a right to privacy that applied to printed matter, “it would necessarily be held to include the same things if spoken instead of printed, for one, as well as the other, invades the right to be absolutely let alone.” A legislature might make distinctions between pictures and names, or between print and speech, Parker explained, but because a court had to decide cases on general principles, a decision for Abigail Roberson threatened to swallow up public discourse.

Few court decisions have been so unpopular. One lawyers’ magazine lamented that “the ordinary citizen, man or woman, has absolutely no redress against the machinations of any advertising agent who, with a sense of delicacy equal to that of an elephant, may choose to utilize the picture of any reputable and retiring member of the community.” Another suggested that some cigar maker should use Parker’s picture on a line of “Chief Justice” cigars. “New terrors are added to life,” fretted the New York Times, while one correspondent to the paper was nervous that if “some enterprising and adventurous advertising agent by fraudulent stealth procures a snapshot of my lady at the bath” the photo might appear in advertisements. Some lawyers criticized the Court of Appeals for grossly overestimating the effects of a decision for Roberson on forms of speech other than advertising. Others criticized the court’s timidity in failing to make new law to keep up with the times. After a few months of attacks, Denis O’Brien, one of the judges in the majority on the Court of Appeals, took the extraordinary step of defending the decision in an article in the Columbia Law Review. The Roberson case had transformed the right to privacy from a novel and uncertain legal issue into a popular cause, among lawyers and in the wider world.

Serena Mayeri on Reasoning from Race

This Spring we published Serena Mayeri’s Reasoning from Race: Feminism, Law, and the Civil Rights Revolution. The book looks at how analogies between sex and race discrimination became a key strategy in the legal battle for women’s rights in the 1960s and ’70s, though one that Mayeri shows to have been complicated from its very beginning.

The University of Pennsylvania Law School, where Mayeri is Assistant Professor of Law and History, recently produced the following short video interview with Mayeri about her book. A partial transcript is below.

 

Serena Mayeri: The book is called Reasoning from Race, and what I mean by that is a number of different strategies that feminists used during the 1960s and ‘70s to make the case that sex discrimination was a problem that was worthy of attention.

The most fun part of researching and writing this book was the opportunity to have access to the papers of various individuals and groups who were involved in the litigation and legislative campaigns and other advocacy efforts that I’m talking about. I looked at the papers of individuals like Pauli Murray, who is a central figure in my story - she was an African American lawyer who pioneered these race-sex analogies as the reasoning for the race strategy in the early ‘60s up through the early ’70s, which was then picked up by people like Ruth Bader Ginsburg, now a U.S. Supreme Court Justice, who litigated a lot of the sex equality cases in the 1970s.

One case that I found particularly fascinating in my research was a challenge by a young African American woman, Katie Mae Andrews, to a policy in New Orleans where the schools districts banned unwed mothers from teaching school. Miss Andrews wanted to be a teacher and she went to a local civil rights attorney, who then collaborated with feminists at the Center for Constitutional Rights in New York. They made arguments to the federal court in Mississippi, and later took the case to the U.S. Supreme Court.

But when it got there, the very rich intersections between race and sex and sexuality and employment and reproductive freedom were bleached out of the case. And I use this case as an example to show how, in many instances, African American women plaintiffs brought really pivotal sex equality cases to the courts, only to find that by the time they reached the Supreme Court, the really compelling aspects of their case were obscured.

One of the things I’m trying to do in the book is to dispel what I think is the myth about 1970s feminist legal advocacy - that feminists were very focused on the concerns of white middle class women, not concerned with racial justice or with economic justice, or with the connections between reproductive freedom and economic and racial equality.

What came out of the Supreme Court was not what feminists put in, but was something much more limited – a much less capacious vision of equality than what feminists were advancing. And I hope that my book, along a number of different dimensions, can give a richer picture of what feminists did present to the court, much of which was rejected, but is still, I think, really worthy of being exhumed.

Crossing Borders - Arizona's Immigration Laws

Dorothee Schneider is the author of Crossing Borders: Migration and Citizenship in the Twentieth-Century United States, new this Spring. In the book she juxtaposes the personal stories of immigrant experiences with the Federal and local immigration policy debates that swirl endlessly. Below, Schneider explains how a Supreme Court ruling last week reflects the historical push and pull between Federal immigration law and local enforcement.

-----

On May 26, the United States Supreme Court upheld a 2007 Arizona law that allows the state of Arizona to close down businesses found to knowingly ignore the Federal prohibition against hiring undocumented workers. A majority of justices found that states can enhance or even override Federal laws dealing with immigrants. This precedent will likely provide momentum to the growing movement to pass ever-tighter immigration restrictions on the state and local levels.

But some states and cities are also tugging at Federal immigration law from another direction. On May 6 Illinois Governor Pat Quinn officially withdrew from the Federal “Secure Communities” program, which requires local law enforcement officers to report any apprehension to a Federal databank linked to immigration enforcement. That same day the Illinois State Senate passed its own version of the DREAM Act, preparing to set up a scholarship fund for undocumented foreign students at Illinois public colleges. Other states and localities have made similar moves, opting out of strict Federal provisions or enhancing the possibilities for higher education access for undocumented students.

The tension between Federal immigration law and state and local politics has bedeviled immigration policy for over a century, and enforcement of immigration law has varied greatly in different parts of the country. Early in the twentieth century, a concern over the spread of prostitution through immigration led to numerous investigations in American cities. But only on the West Coast did Asian women face prosecution and deportation on charges of prostitution. Police in Eastern U.S. cities were reluctant to send suspected immigrant prostitutes back to Europe. Authorities in the Pacific Northwest proved eager to arrest and deport suspected anarchists early in the twentieth century—too eager for the Federal authorities. But when “Deportation Fever” gripped the nation as part of the Red Scare during and after World War I, the Immigration Service filled up a good part of its “Deportation Train” with suspected communists from the Pacific Northwest. In Chicago and other Midwestern cities, on the other hand, police refused to cooperate in the hunt for suspected revolutionaries. In 1928 when Texas authorities and the Federal Border patrol staged raids to deport undocumented workers in some borderland communities, the white citizens of Donna, Texas, protested, protecting “their” Mexicans, and writing to their congressmen in a successful effort to have the raids called off. From Spokane to New York to Donna, immigrants and the “immigration problem,” while subject to uniform Federal law, were also part of local communities and widely different social contexts.

The twenty-first century is no different. Federal immigration law is uniform, but on the ground immigration policy is shaped and enforced in diverse regional contexts. States and cities where immigrants quickly found a voice as voters and politically active citizens have always pushed against restrictionist measures by the Federal government, sometimes with the help of local legislators. Regions where immigrants were less politically empowered were more easily swayed to support restrictionist measures. But the twentieth century also shows that in the ever-changing landscape of American immigration, political allegiances can shift quite rapidly. In this context neither Federal nor state laws will provide the permanent bulwark against newcomers that restrictionist politicians seek.