Monday, September 13, 2010

THE PERSONAL AND THE HISTORICAL: Jews, Law and Identity Politics in the Progressive Era, Part II

On Wednesday, I took up my job as guest blogger and began a series of some recent short and informal work that’s a bit more personal than usual. “This first one,” I wrote, “is about Jewish lawyers and Jewish immigration in the Progressive Era. When you think about how many legal historians are Jews, it’s surprising that more hasn’t been written by us about Jewishness and lawyering. Or so it seemed to me in writing this lecture (en route to becoming an essay, but still, as you’ll see, quite rough) for the Lapidis Lecture in American Jewish History at Princeton, last Spring. It treats characters and events a century ago, but its themes are still vividly personal, at least for many Jews of my generation, who came of age in the U.S. of the 1960s: Jewish assimilation and difference; Jews’ relationship to “race”; Jews’ identification with the liberal Constitution; and Jews’ courtships and identifications with the New England Protestant elite.” Here’s part II:
photo credit


The most senior of these four gentlemen was Simon Wolf, a Washington attorney and lay leader of the Reform union of American Hebrew congregations. Wolf was the German-Jewish Reform elite’s unofficial representative in the corridors of Executive power for almost two decades at the end of the 19th century.

So, it was Simon Wolf who responded when in 1898, the Immigration Bureau decided it was time to begin counting the newcomers from southern and Eastern Europe according to their race. To nativists and most pro-new-immigrant advocates alike, it was a given that the new immigrants belonged to “races” – they were not white ethnics but members of the Greek, Slavic, or Hebrew “race.”

“Race” was a notion that defied the line we draw today between biology and culture. “Race” ran through one’s blood, and yet it covered moral, intellectual and emotional qualities. It covered qualities like meekness and impulsiveness, and human capacities like rationality. So, “race” seemed salient for sorting out which of these new immigrant groups were fit for self-government and American citizenship.

In the 1880s to 1900s, remember, we’re in a Lamarckian universe. People thought that these “racial traits” were at once heritable and also changeable in response to new environments. But they disagreed about just how changeable or hard-wired the traits were. So, it seemed crucial to find out just how many of these different races were arriving and making their way by the hundreds of thousands to U.S. cities and industrial heartlands. Once our social knowledge reached that far, then “we” – the new state- and university-based producers of such social knowledge - could track down what traits and capacities they were revealing or acquiring, and how they were fitting in.

If the “peoples” or “races” to which the new immigrants belonged simply matched their “nationalities,” then identifying, counting, and tracking them would have posed no special problems. But most of the new immigrants came from multi-national empires like Russia and Austro-Hungary. Thus, collecting data about place of birth, as the Bureau already did, was “useless.” Russia, the Commissioner at Ellis Island pointed out in a 1898 Report to the Commissioner General in D.C., had “over a score” of different “races or peoples” within its borders; the Austro-Hungarian monarchy “at least fifteen.” The “Hebrews…flocking to this country” from both those empires were a case in point. These Jewish immigrants “[had] changed conditions completely in certain trades here…but statistically we have no record of their arrival.”[1] The “Immigration Bureau fails to give a clew to the size of this movement” of “Jews from Russia”; instead, “they are lumped up with the Poles, people of a distinct race and of different capacities and who have gone into entirely different fields of industry.”[2]
President Roosevelt visits Ell... Digital ID: 1693104. New York Public Library
So, with a go-ahead from the Commissioner General, the Commissioner at Ellis Island consulted with anthropologists and other racial scientists at the Museum of Natural History and pieced together a list of the world’s “races or peoples.” He added this list along with several new questions to the forms filled out by his front-line Inspectors and printed up instructions about how to categorize each newcomer. You asked and noted down his mother tongue, his country, and his religion, and then you did your best to infer which of the forty-one “races or peoples” he belonged to.[3]

Although nationalism was burgeoning in Southern and Eastern Europe, most of the new immigrants from these regions were rural peasants and laborers who may have thought of themselves more as natives of a village or region than as members of a nation, race or people. In this, the new Jewish immigrants, with their fervent sense of people-hood and varieties of Jewish nationalism, may have been the exception. Garibaldi’s portrait hung in some Sicilian peasants’ home; rural laborers were often touched by the clamor for independence among urban Poles, Czechs, Finns and Croats. But for the majority of newcomers to the U.S., becoming immigrants in America created stronger European national and racial identities than they’d had at home. At home, they were the subjects of an empire; spoke particular languages; were adherents of one or another religion, and saw a certain province or village as home.[4] But thanks to the Immigration Bureau’s new requirement of determining their “race,” their first encounter with American officialdom also began a process of naming a new identity of people- or nationhood, keyed, usually, to the language they spoke. Identity in the U.S. was, in some measure, literally, a matter of being counted as identical.

This lesson of belonging to a race or nation found reinforcement in U.S. cities - in immigrant politics, churches and civic associations, in the national identities imparted by immigrant church leaders, newspapers, trade unionists and party bosses. Migration itself actually stirred national identities. For in migration, chains of kin were indispensable: relaying news, job prospects and remittances along the lines of movement. Along these same lines, people with ties to the same region, who spoke the same language, stood in as relatives, uniting the kin of home with adopted kin in an expanding web of obligation and affection. These were the social processes on which rested new “national” identities. Between the 1890s and the 1910s, many new immigrants submerged their provincialisms into a broader patriotism, their local dialects into a language. Thus, as Robert Wiebe has put it, it is “not paradoxical that the first Lithuanian newspaper was published in the U.S., that the Erse revival began in Boston, or that the Czechoslovak nation was launched at a meeting in Pittsburg.”[5] As much as the new immigrants became Americans, they also became Italians, Lithuanians, and Czechs; and as Italian-, Lithuanian-, and Czech-Americans, they defended their rights and the rights of their countrymen to come, contribute, and belong to America; and they supported nationalist movements to liberate oppressed countrymen at home.

America’s Reform Jewish elite found it no blessing, however, that so many Jewish newcomers arrived with a well-developed sense of Jewish nationhood. Other immigrant groups might want to express their national longings and do so in the language of race and blood. Not the Jews! Or rather, not these Jews! Not Simon Wolf, Oscar Straus or Max Kohler.

Among Central and East European and Russian Jewry, Yiddish flowered during the second half of the nineteenth century as a vital “national language” from which a new literature, drama, and poetry emerged. Likewise, various brands of spiritual and secular, often socialist, Zionism took shape, taking inspiration from nationalist thinkers and movements all around 19th century Europe, giving modern voice to the old religious ideals of Jewish nationhood and a Jewish homeland. Yet, the Reform Jews in England, Western Europe and the U.S. – those the Zionists and nationalists dubbed “assimilationists” - wanted no part of this Jewish national revival. The estrangement ran deep. It went to the heart of what I’ve called the nineteenth-century Reform Jewish leadership’s classical liberal conception of Jewish belonging in America.

On that view, becoming free and equal citizens of the republic meant forsaking a distinctive national life and a distinctive body of Jewish law and legal authorities. Only thus, Reform Rabbis and lay leaders like Simon Wolf insisted, did Judaism enjoy “perfect harmony with the law of the land.” Our whole “aim,” said Rabbi David Philipson, 1890s leader of the Central Conference of American Rabbis and the first rabbi to deliver a blessing at the U.S. Senate, “is to see that [our Americanness and our Jewishness] shall never come in conflict.” By putting them into conflict, Philipson warned, the Russian newcomers posed “a great danger to the whole of Judaism in its relation to the republic.” The religious among the new Jewish immigrants Philipson dubbed “neo-Orthodox”: practicing “meaningless Oriental rites” and resurrecting “rabbinical legalism. ” Even worse, many of the secular ones were “neo-nationalists,” preaching Zionism and the separate destiny of their “race” and “blood” in a national homeland in Palestine. And religious or secular, they all spoke a language (Yiddish) that expressed “antagonism to American institutions.”

Zionism threatened to re-awaken the issue of Jewish patriotism and loyalty that Reform Judaism had struggled to put to rest. Zionism, the Central Conference of American Rabbis complained, stirred up the old hate-filled allegations that Jews “are foreigners in the countries in which they are at home.” Said Simon Wolf: “Speaking as an American, I cannot for a moment concede that one can be at the same time a true American and an honest adherent of the Zionist movement.” Zionism placed “a prior lien” on the citizenship of American Jews.

Not every prominent Reform Jew encountered the world of the new immigrants in this way. For some, the new immigrants’ exuberant Yiddishkeit and impassioned meld of socialist and Zionist ideals held out the promise of a more vibrant and “modern,” but also more deeply Jewish, kind of American Jew. Thus, a handful of important Reform rabbis like Stephen Wise and Judah Magnes became leaders of American Zionism in the 1890s, embracing and hoping to harness the new immigrants’ cultural and political energies and identifying with their Jewish nationalism. Their writings would be a thorn in Simon Wolf’s side, as he sprang into action against the Immigration Bureau’s new practice of inquiring into new immigrants’ religion and classifying the Jewish newcomers as members of the “Hebrew race.”

Speaking for the Union of Reform Congregations and other associations of the German Reform Jewish elite, Wolf protested to the Commissioner General of Immigration. Wolf expounded the precepts of Reform Judaism to the Commissioner: Judaism was not a race, and Jews were not a people or a nation. Judaism was a religion, and here “Jews alone” were being “singled out” for religious classification. Such a classification was “contrary to the spirit and genius of our institutions.” Enumerating groups – or one group – by religion, the government was using its “administrative functions” in a way “never contemplated in the Constitution.”[6] The Reform Jewish Congressman from Chicago Adolph Sabath raised the issue with the Commissioner of Ellis Island at an 1899 hearing of the U.S. Industrial Commission in New York. “Hebrew,” Sabath complained, “is the only religion that is distinctively and particularly brought out in the [Immigration Bureau’s] last annual report.” The Commissioner was unapologetic. The Bureau was interested in “races,” not religions. “In some cases the mother tongue might give us an idea of the races, but sometimes the tongue would not do that, and then we had to ask what their religion was…[A]sking the religion is simply a means to this end.”[7] Wolf’s protests, however, won half a loaf. The forms filled out by front-line inspectors no longer included a question about religion. But the forms continued to list “Hebrew” as a race or people, inspectors continued to determine who was a “Hebrew,” and “Hebrews” continued to be tallied.

The matter came to a head again a few years later in more bitter and protracted fashion as the work of the famous Dillingham Commission got underway in the mid-1900s. [explain Dillingham Comsn and its 42-volume study of the “new immigrants.” ] The Commission adopted the Immigration Bureau’s list of “races or peoples” and sent out scores of investigators and social scientists into the cities and industrial regions of the nation to compile statistics about where the different new immigrant races were settling, what trades they pursued, what work they did, and what impact they had upon labor markets and industries, unions and schools. What portion was in prison or on poor relief? Did these racial newcomers assimilate? The Commission’s massive surveys brought the new racial classifications from the official head counts at the ports into the creation of social knowledge about the nation’s cities and industrial heartlands.

Then, as the surveys got underway, the Commission lit upon the idea of extending these investigations to the entire population, via the U.S. Census. The 1910 Census was coming up. Senator Dillingham took the idea to Congress. Of course, there already was a race question on the census forms. This was the “color” question – and it was designed to classify the population as White, Negro, American Indian, and Oriental. But according to Senator Dillingham, adding the Immigration Bureau’s new list of races or peoples would teach volumes about the “other white races” who were arriving every day.

Two days of hearings ensued. Wolf and the leading organizations of the German-Jewish elite responded in high dudgeon. They had seen enough of how Jews fared with the racial sciences of Europe. Race science was the modern dress of anti-Semitism.

If the Russian Jews on the Lower East Side wanted to trumpet Zionism and Yiddishkeit, that was hard to stop. But loose race talk had no place in the official Census’s categorization of the American citizenry. You had only to look at the legal fate of other racial others – the Jews in Russia or the blacks and Asians here - to see that.

So Simon Wolf explained to the Senators that Jews had no national identity besides the allegiances they gladly gave up on becoming American citizens. Their Jewishness was their religion. It was not a nationality and not a race. Henry Cabot Lodge (the Senate’s brilliant patrician nativist) was unconvinced. What about Disraeli? A Christian convert. But proud of his Jewish blood. And what about Jewish non-believers, were they not Jews? And if so, wasn’t it by dint of race? Simon Wolf stumbled. Then Lodge turned to other writings. Many learned American Jews – Rabbis Stephen Wise and Judah Magnes among them - said that Jews were indeed a race and a nation!

Wolf changed tack, and turned to the Constitution. “So far as citizenship of the U.S. is concerned, we know only the great divisions of the human family – White, Black, American Indian and others. Otherwise, we will land ourselves in justifying discrimination against classes of citizens, which will result in a destruction of the American idea of the equality of all citizens.”

Lodge made no comment on the arresting constitutional distinction Wolf drew between the “great [color-coded racial] divisions of the human family” and the new racial divisions among whites that Lodge championed and Wolf opposed. It seems a distant precursor of the distinction we draw between “racial” and “ethnic” groups, and in the Q and the genealogy of this distinction is a vexed one, since both “ethnicity” and “race” are thought to run through kinship and “blood lines.” Yet, the ways we use them emphasize the chosen and culturally constructed elements of the “ethnicity” idea, and the unchosen and supposedly hard-wired, biologically given elements of the “race” idea. So, even today, much seems to turn on whether a particular minority is seen as a “race” or an “ethnic group.”

Reform Jews of Wolf’s generation, however, did not want to offer U.S. lawmakers and administrative-state officaldom some more historical, less biological, concept like “ethnicity” with which to categorize Jews as a group. They didn’t want the state to categorize Jews as a group at all! Jewishness, they insisted, was a religion and nothing else. Unlike the Zionists and other Jewish nationalists, who bulked large among the new immigrants, for Simon Wolf and the German Jewish elite he represented, Jews had no “national” identity, “other than that [American one] to which he has sworn or longs to swear allegiance, and to which he owes obedience.” Jews had no “racial” identity that marked them off as “Hebrew” or “other”; and of course, according to the “great divisions of the human family,” they were “White.”

This did not suit Henry Cabot Lodge or the Immigration Bureau; neither did it suit the next generation of Jewish American thinkers. It is only somewhat of a simplification to say that this next generation of Jewish American thinkers, in the 1910s and ‘20s, invented the “ethnic group” idea, to acknowledge and safeguard rather than suppress group difference, while averting the “racial classification” of Jews. Still other Jewish American thinkers in the 1910s and ‘20s, preeminently Franz Boas and his students, forged the modern concept of “cultural difference” to overturn the very idea of hard-wired, biologically given morally or politically salient “racial differences,” as applied to any group: whether the old color-coded “racial” groups or the new immigrant “races.”

Pursuing this story (which we have not time for today), we’d run into such well-known Progressive Era Jews as Boas and Horace Kallen and such obscure ones as Isaac Berkson. We’d find prominent Jewish attorneys working with uneven success to translate these various new ideas about group differences into legal and constitutional discourse. Here in this talk, we’ll catch a glimpse of this process when we arrive in the 1910s and encounter Louis Brandeis, his association with Kallen, and his emergence as spokesman of American Zionism and champion of “group rights” and “group equality.”

But that lies in the future. For now, what Wolf and the newly formed American Jewish Committee could not win through debate with the Senators from New England, they won through political clout. Dillingham and Lodge’s idea of incorporating the new list of races into the Census died in committee; neither “Hebrew” nor “Slav” or “Southern Italian,” nor any of the other new racial categories entered the nation’s official Population. All of them remained simply “White” in the official Census of Population. Uncounted as different “races,” they were on their way to becoming “ethnicities.”

second photo:  NY Public Library

[1] Edward F. McSweeney, Report to T.V. Powderly, June 18th, 1898, Office of U.S. Commissioner of Immigration, New York, N.Y., p. 3, File 16464, Box 143, Immigration Subject Correspondence, RG 85, National Archives, Washington, D.C.
[2] Victor Safford, Letter to T.V. Powderly, from Barge Office, New York, June 8, 1898, page 2, Box 143, Immigration Subject Correspondence, RG 85, National Archives, Washington, D.C.
[3] For an account of the cobbling together of the list of “Races or Peoples,” and the new forms and instructions for front-line inspectors, see the testimony of Dr. M. Victor Safford, Surgeon, United States Immigration Service, Port of New York, to the U.S. Industrial Commission of 1899. XV Reports of the Industrial Commission 131 (1901).
[4] Thus, “Italian” immigrants “had familial, local, regional, and religious – but not national – identities: they were Catholics, Sicilians, or Sambucari.”  Donna Babaccia, “Is Everywhere Nowhere? Nomads, Nations, and the Immigrant Paradigm of United States History,” 86 J. Am. Hist.  (1999).
[5] Robert Wiebe, Who We Are: A History of Popular Nationalism     (2002).
[6] Simon Wolf, Presidents I have Known 239-40 (    ).   The Commissioner General at the time was Terrence V. Powderly, former leader of the Knights of Labor, who had gained his post by campaigning for McKinley in the ’96 election.  Powderly wrote Wolf about the inclusion of “Hebrews” among the new racial classifications, appealing to group pride and clout.  “I believe that when our method of gathering statistics is understood, the Jews of this country will be the first to approve the measure.”  For  it will “tend to show that they are a power in the United States…[M]any of my associates in the industrial movements were Jews, and I cannot recall a day when the Jew…did not stand for law and order.”  Id. at 259-63.
[7] U.S. Industrial Commission, XV Reports of the Industrial Commission 91-92 (1901)(testimony of Edward F. McSweeney).