Legal History and Urban History

A striking thing I learned while writing Forging Rivals was that cities were leaders in passing fair employment practices legislation in the immediate postwar period. It is commonly known that the federal government created a fair employment practices commission without enforcement powers during World War II. As the War ended, there was a contentious battle to create a peace-time commission with more expansive powers. In the increasingly conservative postwar political environment, progressives lost that fight. In the standard narrative, they then took the fight for fair employment practice legislation to state legislatures.

While it is true that in the fifteen years after the War, some state legislatures passed employment discrimination laws and set up agencies to enforce those laws, it is less well know that many cities did so as well. Indeed, a pattern emerged. When state-wide legislation failed, fair employment advocates asked liberal municipalities to pass such legislation, with a fair degree of success. (We’re currently seeing a similar pattern with respect to living wage legislation.) Consequently, by 1960, twenty-two jurisdictions had some form of anti-discrimination legislation: eleven states, and eleven municipalities.

This fact suggests that legal historians should spend a little more time studying cities, a subject that they have neglected. Twentieth-century American legal historians tend to focus on law-making by the federal government, or on high profile doctrinal areas such as constitutional law and civil rights law that are not directly related to the governance of American cities. Additionally, the legal history of cities is very much a history focused on administrative agencies and administrative law, both subjects that, until recently, legal historians have shied away from. Indeed, even the more recent interest in the administrative state has not focused on cities. We’ve started to “bring the state back in” but we’ve left out the smallest units of government, particularly as we study twentieth-century legal institutions. We need to “bring the city back in” lest we miss an important location of state-building and policy creation.

Consider, for example, the legal history of postwar urban planning. Postwar cityscapes were shaped by two conflicting visions of urban planning. The first was a centralized, expertise-driven vision that was put into effect by various public and quasi-public authorities that were remarkably independent of local political actors. It sought to create housing, economic and cultural infrastructure and transportation systems in a massive, modernist idiom. (Think Lincoln Center, Cabrini Green, or BART.) The second vision was community-based, anti-expertise, and democratic. It was a reaction to modernist central planning -- urban romanticism suffused with a love of small-scale, urban authenticity. (Think Jane Jacobs, freeway revolts, and brownstone renovators.)

Each of these visions of the postwar city came equipped with a host of legal mechanisms. The centralizing modernists created a network of agencies and authorities that linked the federal government, and its tax dollars, with local and regional planners, often bypassing traditional city governmental structures. These were ingenious, complicated legal entities that touched on and transformed a whole host of legal regimes: public finance, eminent domain, local government law. Similarly, community-based, urban romantics deployed legal mechanisms (both traditional and innovative) to further their interests: historic preservation law, environmental law, zoning.

Thus, in this one area – postwar urban planning – there is a lot of legal history that could be explored. Indeed, because cities were a locus of many different types of reform in postwar period, to truly understand the dimensions of legal liberalism, we should turn our attention to the legal history of urban America.