AMERICANS WITHOUT LAW: THE RACIAL BOUNDARIES OF CITIZENSHIP

Vol. 16 No. 10 (October, 2006) pp.792-796

AMERICANS WITHOUT LAW: THE RACIAL BOUNDARIES OF CITIZENSHIP, by Mark S. Weiner. New York and London: New York University Press, 2006. 205pp. Hardback. $45.00. ISBN: 0814793649.

Reviewed by John Paul Ryan, The Education, Public Policy and Marketing Group, Inc. Email: johnpryan [at] ameritech.net.

The story of race, ethnicity, and American culture is a complex and contested one, influenced both by the actual flow of events and the political values of the storyteller. In some versions, there is a steady progression from exclusionary laws and practices to an inclusive society. Others choose to emphasize our nation’s troubled past, riddled with state-sanctioned discrimination, hate, and exclusion, and see little hope that new groups will avoid these old burdens. Legal scholar Mark Weiner, a Rutgers University law professor, fashions a story that draws on both traditions in his new book about law, race, and the boundaries of citizenship.

Four stories (or case studies) form the basis of AMERICANS WITHOUT LAW. The first traces Native Americans in the late 19th century, followed by residents of the U.S. possessions of Puerto Rico, Hawaii, and the Philippines after the Spanish American War, Japanese immigration in the early 20th century, and the march toward civil rights by and for African-Americans in the middle of the 20th century. What is new and distinctive about Weiner’s analysis of these four familiar cases are the biographical, cultural, and interdisciplinary tones that he weaves together. Law is still the anchor – Weiner thoroughly analyzes a series of Supreme Court decisions, and some congressional statutes, within each story. His discussions focus less on the actual Court holdings and more on the jurisprudential lines of reasoning that flow from the majority opinions, concurring opinions, and dissents. For each story, Weiner argues that judicial reasoning reflects leading intellectual thinking of the day embodied in key individuals – the naturalist and geographer John Wesley Powell for the Native American case study; Senator Henry Cabot Lodge for the story about citizenship in the U.S. possessions; Madison Grant, a lawyer and social critic for the study of Japanese immigration; and the social science scholar Gunnar Myrdal for the story of civil rights and BROWN. These key individuals, Weiner seeks to demonstrate, influenced both political discourse and Supreme Court opinions of the day.

Weiner’s primary thesis is that racial minorities in the 19th and early 20th centuries were kept outside of our nation’s civic boundaries by law, in particular by “a culturally potent and institutionally productive language of law” (p.1) that he labels “juridical racialism.” This function of law, which he believes has gone largely unexamined, both reflected and promoted forms of institutional racism and nativism. Weiner also argues that juridical racialism promoted national [*793] economic growth and development, often at the expense of racial groups unprotected by law. Finally, he weaves historical and modern concepts of culture into his arguments, relying on the work of German anthropologist Franz Boas, who was a leading contributor to scholarship on culture during the era of his case studies. Weiner argues that Boas’ transformation of the idea of culture (to something more than a proxy for race) is illuminated by juridical racialism – in particular by “encouraging new rubrics for thinking about the nature of race in relation to the concept of law – rubrics . . . that were absorbed into the law itself” (p.15).

The first story, “Laws of Development, Laws of Land” is an analysis of Native Americans, law, and tribal land at the close of the 19th century, focusing especially on the years between 1883 and 1887 when Congress passed the Dawes Act and the Supreme Court weighed in on two cases (CROW DOG, 1883 and U.S. v. KAGAMA, 1886) involving the extension of federal jurisdiction over what Weiner loosely calls “Indian crime.” He traces the personal background, experiences, and occupations of John Wesley Powell from scientist and teacher to a military engineer in the Civil War to the founder and director of the Bureau of American Ethnology, where he published many anthropological studies, among them descriptions and classifications of the culture and language of North American Indians. Weiner argues that the assimilationist-era Indian reforms advocated by Powell were “put into practice with the Dawes Act” (p.36), a policy [of abolishing Indian tribal property] that Weiner and most other contemporary scholars label as a disaster. Moreover, he argues that the “intellectual themes of John Wesley Powell’s personal and professional life sounded through” (p.38) the CROW DOG and KAGAMA cases, which he tries to demonstrate through a detailed analysis of the language of Justice Stanley Matthews’ and Samuel Miller’s opinions for the Court.

The INSULAR CASES form the legal basis for Weiner’s second story, “Teutonic Constitutionalism and the Spanish-American War.” Here, he examines the U.S. possessions acquired from the Spanish-American War – Puerto Rico, Hawaii, and the Philippines – through the biographical lens of Senator Henry Cabot Lodge, an influential advocate of American expansionism who served in the Senate from 1893-1924, and the myriad of Supreme Court cases between 1901 and 1904 testing the application of the Constitution and the Bill of Rights to the peoples of these colonial lands. Questions of race, racial inferiority, intellectual capacity, and the potential for self-government (and ultimately, statehood) underlay these cases as well as the thinking of foreign policy architects of the time. Weiner observes: “In his work in Congress . . . Lodge consistently spoke in the language of Teutonic juridical racialism, his political concerns deeply driven by its worldview” (p.64). Lodge’s worldview was reflected in some but not all of the judicial opinions and writings of the period, which Weiner classifies into two camps – “judicial traditionalists” (like Justice John Marshall Harlan) who [*794] believed that the Constitution follows the flag, and “judicial modernists” (like Justices Edward White and Henry Billings Brown) who believed that Congress rightfully intended the residents of these possessions to live outside of the shadow of constitutional protections. For Weiner, this story – like the first one about the redistribution of Indian lands – is also about the expansion of U.S. economic growth, in this case through increased access to overseas markets afforded by the Spanish-American War and its aftermath.

The changing faces of immigration in the 1920s provide the backdrop for Weiner’s third case study, “The Biological Politics of Japanese Exclusion.” The Immigration Act of 1924 is the focal point of discussion, in particular a key provision that effectively barred Asian entry to the United States. Weiner selects environmentalist and lawyer Madison Grant, who was also an advocate of immigration restrictions, to develop and highlight a story of racial eugenics that circulated in varying subtleties among one school of anthropologists, public officeholders including key members of Congress, and one wing of the U.S. Supreme Court. Weiner deftly portrays a complex Madison Grant, praised today for his work as zoologist and protector of redwoods and bison just as he is reviled for his stereotypical and racist views of Asians who were “constitutionally incapable of recognizing the authority relationships grounding Western democracy” (p.90), but views that also included fears of economic competition from Japanese immigrants in western states. He also ties Grant to his politically influential and conservative brother and ultimately to a key member of Congress, Albert Johnson (a westerner, the chair of the House Immigration Committee, and co-sponsor of the Immigration Act of 1924), whom Madison Grant visited, advised and lobbied on behalf of immigration reform and restrictions. As part of a broader discussion that also includes the Chinese Exclusion Cases of the 1880s and 1890s, Weiner analyzes the 1922 Supreme Court case of OZAWA v. U.S., including Justice Sutherland’s opinion for the Court. He situates OZAWA as the logical precursor to, and effective test case for, the draconian immigration restrictions to follow, pointing out that the Court was not willing to explicitly consider certain anthropological views of race that proved influential to Congress just two years later.

The African-American struggle for civil rights, culminating in BROWN v. BOARD OF EDUCATION (1954), forms the basis of Weiner’s final story, “Culture, Personality and Racial Liberalism.” His particular interest in BROWN centers on footnote number 11 and the cited works of social science scholars Kenneth Clark and Gunnar Myrdal. It is the Swedish-born economist Myrdal, author of “the most important mid-century study of race relations in the United States” (p.108), to whom Weiner primarily turns to explore the connections between race and self-esteem that are at the heart of AN AMERICAN DILEMMA (1944) and the Court’s opinion in BROWN. Weiner sees Myrdal’s work as the one that [*795] turned the formulations of thinkers like Madison Grant, Henry Cabot Lodge, and John Wesley Powell on their head. Now, “all citizens were capable of holding the full range of legal rights [and] Myrdal’s view of civic belonging . . . nationalized the idea of law itself, breaking the strict association of law with racial essence that inhered in earlier forms of juridical racialism” (p.118). BROWN is the logical culmination of the Court’s newly-formed due process and commerce clause jurisprudence of the late 1930s, reflected in such cases as WEST COAST HOTEL v. PARRISH (1937) and U.S. v. CAROLENE PRODUCTS (1938). For Weiner, BROWN brought to an end the juridical-racial tradition, while at the same time also fostering national economic growth that flowed easily from a more powerful federal government boldly enacting anti-discrimination laws and programs.

AMERICANS WITHOUT LAW has many strengths. It addresses a powerful topic. It is a conceptually creative piece of scholarship, forged from a sophisticated interdisciplinary viewpoint. The case studies are well-researched, attentive to detail, and amply documented. The biographies of key intellectuals and political figures are substantial and relevant to the issues discussed. The analyses of law move comfortably between congressional statutes and Supreme Court opinions, illustrating how the “law in action” arises from multiple sources. Yet, the book also has weaknesses, some of them flowing from apparent strengths or from the interests of particular readerships.

Weiner has formulated the book broadly, setting forth expansive theories of law, race, and American society. But his implementation, through the four stories, is relatively narrow. These four cases are important to the book’s theme and to our nation’s history, but there are others that could have been chosen in addition or instead. Why these four? Weiner never really addresses this fundamental question, although he does a good job of linking the four stories together, drawing parallels where possible.

The use of biographies as an integral part of Weiner’s analysis is creative but also troubling. Particularly problematic is the sense of inevitability as Weiner marches through the individual’s personal background and early life experiences, which inexorably lead to the person’s mature views and political actions. Individuals never rise above their background or deviate from it. Furthermore, the links between the individuals and the political or jurisprudential outcomes they sought to accomplish are tenuous; positivists would find the supporting evidence that Weiner provides to be unconvincing – casual or associational rather than causal.

Weiner’s story of juridical racialism ends a bit surprisingly and abruptly with BROWN. Many readers, including critical race theorists, will view this as an overly optimistic reading of BROWN and of our likely future jurisprudence. Yet Weiner offers little in the way of mapping the future. In his short, three-page conclusion, he barely discusses post-BROWN America, let alone new racial and ethnic tensions arising from [*796] September 11th. He confines himself closely to the four stories and allows his theoretical arguments to be fully bounded by them.

Finally, political scientists may find fault with Weiner’s emphases and omissions. He relies primarily upon the discipline of anthropology, and its intra-disciplinary quarrels, in talking about culture and race. And political actors such as Henry Cabot Lodge seem driven more by broad worldviews and ideologies than any practical political considerations. Indeed, Weiner’s attribution of “political” motives to politicians and judges is quite thin, and he does not cite or explicitly draw upon much work in political science (one notable exception is the recent work of Rogers Smith on civic ideals and political membership).

The racial boundaries of citizenship, or civic belonging, in the United States have narrowed, resulting in a far more inclusive society today. Legal scholar Mark Weiner does not provide the complete picture of who, when, and why, but he does frame a story that most socio-legal scholars will find worth reading.

REFERENCES:

Myrdal, Gunnar. 1944. AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY. New York: Harper.

Smith, Rogers. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven: Yale University Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

Ex Parte CROW DOG, 109 US 556 (1883).

OZAWA v. U.S., 260 US 178 (1922).

U.S. v. CAROLENE PRODUCTS, 304 US 144 (1938).

U.S. v. KAGAMA, 118 US 375 (1886).

WEST COAST HOTEL v. PARRISH, 300 US 379 (1937).

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