Saturday, September 25, 2010

THE PERSONAL AND THE HISTORICAL: Jews, Law and Identity Politics, Part III

Wrapping up Jewish lawyers and identity politics in the Progressive Era, here is the last installment:


Melting Pot
Meanwhile, the new immigrants kept coming and the immigration inspectors continued tallying them by “race” at the nation’s gates. Given the hostility toward the waves of new immigrants, it’s really a wonder that the gates remained open for as long as they did. Congress tried to shut the gates much sooner. Four times between 1891 and 1917, Congress enacted a stern literacy test intended to keep out the bulk of new immigrants from Southern and Eastern Europe, including, especially, the Jews. And four times Presidents Cleveland, Taft and Wilson vetoed the measures. Teddy Roosevelt kept the literacy test and other harsh exclusionary measures from ever reaching a vote.

Party politics kept the gates open. Even when a majority in Congress favored harsh immigration restrictions, neither party could afford to become a national vehicle for anti-immigrant politics. The pro- and anti-immigrant coalitions cut across party lines. The anti-immigration coalition was an unholy marriage of progressive reformers, on one hand, and patrician and plebian nativists, on the other. The latter loathed the new immigrants on racial grounds; the former wanted to stem the economic reserve army of poor newcomers pushing down labor standards. Of course, the racists and labor market types also overlapped. And both included lawmakers with rural constituencies whose native-born sons and daughters were flooding into the same urban and industrial labor markets as the new immigrants: the largest internal migration in U.S. history collided with the largest immigration from abroad.

Nathan Straus, Louis Brandies & Rabbi Stephen Samuel Wise
The pro-immigration coalition was an alliance of industrial employers who wanted the gates kept open for cheap labor and the new immigrants’ own political organizations, which could and did sway the presidential election in crucial cities and states. However, if every president until World War I felt compelled to veto the harsh, racially coded restrictions, every president also needed something to offer the anti-immigration crowd.

The main solutions took shape under Teddy Roosevelt. Roosevelt learned about them principally from a German-Jewish lawyer named Oscar Straus, the nation’s first Jewish cabinet member. Straus was Roosevelt’s Secretary of Commerce and Labor, where he stood atop the Immigration Bureau. Straus was not only Roosevelt’s go-to guy on immigration policy; he also was a key contributor to what I’m calling the classical liberal variant of American-Jewish identity.

The Jewish “Origins” of the “Republican Form of Government” in America

Straus’s family left Germany and settled in Georgia before the Civil War. There they became successful merchants, and he attended Baptist Sunday school. But Straus made no effort to hide his Jewishness as he went off to Columbia University and Columbia Law School in the early 1870s, when being a Jew at Columbia still marked one as an outsider. Both the Sunday school and the Columbia experiences may have encouraged the scholarly young lawyer to write a book while practicing law in New York. The more direct inspiration was probably the much admired work on Anglo-American legal history by Henry Adams and his famous research seminar at Harvard in the late 1870s. That work centered on the “Teutonic” origins of “Anglo-Saxon Law” and the “Teutonic germ” of American law and liberty. In the 1880s, Adams’s gifted student and co-author, Henry Cabot Lodge, soon to become the Senator from Massachusetts whom we’ve already met, and other like-minded statesmen and public intellectuals put the “Teutonic germ” thesis to work in public debate, calling into doubt the fitness of Jews and other “alien races” for the rigors of republican self-rule and American citizenship. Straus’s 1885 book, The Origin of Republican Form of Government in the United States of America, was a reply, a “Jewish germ” theory.

The book is about the deep roots of the U.S. Constitution in ancient Israel and the “Hebrew Commonwealth.” This was a trope already common in Reform rabbis’ weekly sermons in the 1880s. Thus, Kaufman Kohler would tell his congregants that the “Founding Fathers took the heroes of ancient Israel as their models for the championship of liberty and democracy, framing their constitution on the principles underlying the Law of Sinai.” We Jews share in the spiritual lineage of America’s civil religion. Our traditions are its taproot. American liberty, equality, rule of law all flow out of the Hebrew Bible. But Straus’s book marked the trope’s first elaborate, scholarly treatment.

“The Hebrew Commonwealth,” claimed Straus, was the world’s “First Federal Republic,” and its “influence was paramount in inspiring the U.S. Constitution.” Straus was conversant with what mid-nineteenth-century scholars in Germany and France had begun to call the “Hebraism” of seventeenth-century religious and political thought. Thus, Straus knew that the Puritans in Massachusetts Bay were not alone in studying the Old Testament in the original Hebrew; that Cotton Mather’s custom of sporting a kippah as he studied Torah in colonial Boston was not as wacky in the Atlantic culture of his day as one might imagine. The seventeenth century saw a major revival of Hebrew learning – of gentiles reading not only the Torah but rabbinic materials in Hebrew. Thinkers like Locke, Grotius, Selden, and Milton viewed the Hebrew Bible as a kind of “political constitution designed by God for the children of Israel,” a “guide to the perfect republic.”[1]

For his part, Straus focused chiefly on eighteenth-century New England, where the evidence of constitutional Hebraism was abundant. The colonists’ break with England, their rejection of monarchy and mixed government, and their embrace of republicanism all demanded religious sanction. “Ministers preached politics as well as religion,” Straus observed. “The pulpit was the most direct way of reaching the people.” From the pulpit, the colonists heard the lessons of the Hebrew Commonwealth and the prophets’ stern warnings about the perils of human monarchs and God’s preference that his chosen people choose “a free commonwealth and to have himself for their king.” (119) Straus’s book parses dozens of sermons, from the 1770s and ‘80s, including this election day sermon “delivered before the Honorable Congress of Massachusetts Bay” in 1775 by “Samuel Langdon, D.D., the President of Harvard College, who, afterwards, in 1788, was a member of the New Hampshire convention when the constitution came before that body for adoption”:

The Jewish government, according to the original constitution which was divinely established, was a perfect republic. And let them who cry up the divine right of kings consider, that the form of government which had a proper claim to a divine establishment was so far from including the idea of a king, that it was a high crime for Israel to ask to be in this respect like other nations, and when they were thus gratified, it was rather as a just punishment for their folly. Every nation, when able and agreed, has a right to set up over itself any form of government which to it may appear most conducive to its common welfare. The civil polity of Israel is doubtless an excellent general model. (120-21).

Straus goes on to trace how the “civil polity of Israel” informed the Founders’ conceptions of popular sovereignty, republicanism, the separation of powers, federalism or the division of power between national and subnational governments and so on. Straus also imbues the “Hebrew Commonwealth” with more up-to-date, nineteenth-century marks of enlightened constitutionalism:

[T]he children of Israel, who had just emerged from centuries of bondage, not only recognized the guiding principles of civil and religious liberty that “all men are created equal,” that God and the law are the only kings, but also established a free commonwealth, a pure democratic-republic under a written constitution, “a government of the people, by the people, and for the people.” (117)

Thus along with the ancient Israelites’ affinity with Abe Lincoln, the book showed off Straus’s Americanism, his scholarly chops and his claim as a Jew to what Adams and Lodge treated as a WASP heritage. For our purposes, what matters is not the historical accuracy of Straus’s Jewish origins thesis. It is the work the thesis did in outfitting the Reform Jewish elite’s identification with America’s WASP “founding fathers,” with its basic law and with the task of safeguarding and elaborating that law - and the work those identifications would do for generations and varieties of American Jews in decades to come.

“Rigid Enforcement” of “Liberal Laws”- the “Individual Qualities of the Individual Man”

Straus brought this identification with the liberal Constitution to bear on his work for Roosevelt, as he penned the President’s scorching critiques of race-laden immigration reform bills afoot in Congress, along with the President’s demand for measures to diminish immigration’s pressure on “the standard of wages of our own laboring men, whether these be of native or foreign birth,” while shunning any “illiberal, un-American” restrictions or classifications that hinged on “the man’s creed or nationality or race.” Straus applauded Roosevelt’s impromptu barbs at his fellow patrician Republican, Senator Lodge and the “anxious Teutonic crowd.”

And Straus and his lieutenants in the Immigration Bureau supplied two key solutions to the President’s immigration problem. The first was to expand the scope and stiffen enforcement of the “existing laws.” The liberal virtue of these laws was that they determined exclusion by the “individual qualities of the individual man,” not “his race or creed.” Not only that, Straus explained, the existing laws picked out for exclusion individuals who lacked the qualities of material and moral independence that a liberal Constitution demanded and prized. We’ll return to these laws in a moment.

The second answer was what Straus and other reformers called “Distribution.” The problem, Straus and most of the rest of New York’s Jewish elite agreed, was not the numbers of new immigrants as such, but the “congestion” of new immigrants in the nation’s cities, like the hundreds of thousands of poor Jews flocking to New York City’s Lower East Side. Thanks to them, Jews were approaching twenty-five percent of the city’s population. There were vastly more poor unassimilated Jews in the city than the Jewish elite could manage or the gentile elite could stomach.

The solution was not exclusion. It was to divert or remove them from these “festering urban colonies” and distribute them across the country, where their labor would be welcome, and they would more readily assimilate. Distribution sounded in a Progressive key. Use the machinery of government to make the nation’s labor markets more efficient and enable individuals to find their highest and best use. With Straus’s and Roosevelt’s support and assistance, Jewish philanthropists would take the lead in creating a private model for this public innovation. But in the end, the experiment would get snared by Straus and Roosevelt’s other important offering to the anti-immigration crowd: stiffening enforcement and fixing loopholes of existing immigration restrictions.

The virtue of these existing laws, in contrast to the ones championed by Senator Lodge and the nativists in Congress, was their liberal tenor. They rested exclusion on the “qualities of the individual” not “his race or creed.” The laws excluded persons “likely to become a public charge” and go on poor relief; or “imported” to the U.S. by American manufacturers as “contract labor.” The laws also set up a presumption of excludability against “assisted immigrants,” whose passage was paid not by family or friends, but by American employers or labor brokers, or by foreign governments anxious to unburden their own poor relief rolls.

A constitutional standard unified the laws as Straus saw it. That standard was at the heart of cases like Lochner v. New York, which struck down a maximum hours law for interfering with workers’ freedom. The true American worker was a free-standing actor selling his labor as he thought best. The ideal immigrant fitted this standard. The proper test was whether he had the grit to save up and get himself and his family and dependents to the U.S. by himself and the capacity to support them once they were here. The valid reason to exclude a would-be immigrant and his family must be his failure to measure up to this sternly individualistic ideal.

Thus, the infirm, feeble-minded or just plain all-but-penniless immigrant was “likely to become a public charge.” In old-fashioned terms, he or she was a pauper, and therefore excludable. The same concern warranted the presumption against “assisted immigrants”; they were dependent, exploitable, and/or “likely to become public charges.” Likewise, “imported laborers” were excludable on this ground. These were brought over by unscrupulous padrones or labor brokers. The padrones or brokers contracted with American employers – and paid the fares of the poor benighted immigrants, who were thus in their debt. These indentured, imported laborers from Eastern and Southern Europe were no better than serfs. They brought down the labor markets, and probably lacked the “independence to live under our republican form of self-government.”

Tutored by Straus and the Immigration Bureau, Roosevelt set out to expand these existing laws and give them more teeth. He successfully urged Congress to add bars on those who came in response to less formal promises of work and to expand the presumption against “assisted immigrants” to those whose way was paid by foreign governments or other foreign organizations seeking to rid their old world cities of unwanted paupers. Finally, Straus sent out directives to the Commissioners of the great immigration stations to apply all these provisions, including “likely to become a public charge,” with greater vigor.

Troubles at Ellis Island - Max Kohler Joins the Fray
Unfortunately, just as Roosevelt’s sterner regime was getting underway at Ellis Island, violence in Russia brought new urgency to Jewish emigration. Reports of the Kishinev Pogrom of 1903 spurred Reform Jewish elites in New York City, London, Paris, and Berlin to ratchet up their already substantial efforts to aid Jewish emigration from Russia. The leading figure in New York was Jacob Schiff, a tireless German Jewish philanthropist and chief of the second largest invest banking house on Wall Street, Kuhn, Loeb and Company. As the leading financier among New York’s German-Jewish elite, Schiff was the U.S. counterpart to England’s and Europe’s Baron de Hirsch and Rothschilds. In the wake of Kishinev, Schiff, the Rothschilds and other Jewish philanthropists set about expanding the network of agencies to help Russian Jews emigrate.

This returns us to Max Kohler, who sat with Schiff on the board of New York’s Baron de Hirsch Fund, and with Wolf on the Executive Committee of the Union of American Hebrew Congregations. If Wolf was the elder statesman of the old German-Jewish elite in Washington and Straus its first representative in the highest reaches of the Executive Branch, Max Kohler was among its premier litigators and did most of the challenging law work in respect of immigration.

Kohler was well equipped to handle the work, because in 1892, after graduating from Columbia, Kohler became an Assistant U.S. District Attorney [as they were called then] for the Southern District of New York, and there between 1894 and ’98, he was given a special assignment to prosecute the Chinese Exclusion Law. Leaving government, Kohler became a partner in the firm of Lewinson, Kohler, and Schattman, and began representing Chinese facing deportations from New York. Switching from prosecution to defense was common then as now. A number of assistant U.S. district attorneys in San Francisco took this route, and worked on retainer to the city’s wealthy Chinese merchants. But Kohler did his immigration law work for free. His grandfather and father had preached that the Constitution was “our rock and redeemer”; for it recognized the equality of all races and creeds and guaranteed equal liberty to all newcomers who would accept its mandates. Max Kohler tried to bring that precept down to earth.

In November, 1901, a few months before Congress would contemplate renewing the Chinese Exclusion Act, Kohler published a pair of passionate and densely argued articles in the New York Times: “Our Chinese Exclusion Laws: Should They Not Be Modified or Repealed?” Having had “the duty of representing the Government in this class of cases…and since then [having] argued many cases under these laws on behalf of Chinese applicants,” he set about “exposing to the reading public” the harsh and summary deportation proceedings to which Congress had consigned would-be Chinese immigrants and native-born Chinese-Americans returning from abroad (and alleged to be newcomers by hostile officials). He described the scant fact-finding and stacked deck of evidentiary presumptions, the bar on judicial review and obstacles to administrative review, the “ignorant, biased, petty officials,” and the general “reign of terror” that this extra-constitutional deportation system had produced in the Chinese community. The law would not have taken the form that it did were it not for the Chinese-Americans’ lack of political clout. (No matter how longstanding their residence in the U.S., Asians were “ineligible of [naturalized] citizenship” and barred from the ballot). Above all, Kohler assailed the dehumanizing racism that seemed to explain these disabilities.

If only the Chinese were subject to the “general immigration laws” and not statutes aimed at the Chinese in particular, matters might be better. While the general immigration laws also provided for administrative finality, there “though errors in administration doubtless occasionally bar out persons whom the courts would admit if the matter were open for consideration there, still paupers and contract laborers are dealt with” in ways that are generally fair. But Kohler drew back. The “principle of non-reviewability” simply can’t fairly be “applied to Chinese exclusion” until we are rid of “the present ideas embedded in our statutes [that] Chinese are to be treated as people unlike all others, having no rights that our petty or high officials or other citizens need respect.”

Eliminating from the immigration laws the “racial classification” of the Chinese as a people apart, then, could be a vital step in changing the “atmosphere of oppression and prejudice and intolerance among Government officials.” With its promise of “equal protection of the law,” the Constitution might seem to demand this, but, Kohler points out, that promise applies only to the states, and, in any case, the Court has indicated that judicially enforceable “constitutional limitations” have little force in the immigration arena. Congress, however, can and should apply “our fundamental principles” to its own work more forthrightly.

Here, Kohler sets up the “Constitutional principle against class legislation” as the heart of equal protection, citing the leading Gilded Age constitutional treatise, Cooley’s classical liberal classic, Constitutional Limitations, for the proposition that “proper classification and not race discrimination ought to underlie legislation.” Within “certain limits,” at least, the Court has condemned “legislation based upon race discriminations.” Kohler quotes lavishly from Yick Wo, in which the Court condemned city officials’ “race discrimination” against Chinese laundry owners in San Francisco, proudly affirming the 14th Amendment’s embodiment of the Declaration’s “fundamental rights to life, liberty and pursuit of happiness, considered as individual possessions, secured by those maxims of constitutional law which are monuments showing the victorious progress of the [American] race in securing to men the blessings of civilization under the reign of just and equal laws.” Kohler rightly saw in Yick Wo a generous expression of classical liberal notions of freedom to pursue ordinary callings (“considered as [an] individual possession”) and of basic civil rights (here against arbitrary -because racially motivated - deprivation of that liberty) extended, in the Court’s words, “equally [to citizens and to] the strangers and aliens who now invoke the jurisdiction of the court.”

And so too with “federal statutes and treaties.” Thus, Kohler highlighted the Civil Rights Act of 1875 in which Congress broadly “outlawed race discrimination,” only to be struck down by the Court “as an encroachment upon state power.” Likewise, after enacting the 14th Amendment, Congress struck “color distinctions from our naturalization laws.” And as another instance of this same classical liberal outlook at the intersection of race and immigration in international relations, Kohler quotes President Hayes’ veto message against the first Chinese Exclusion Law of 1882 as a violation of the Burlingame Treaty that Hayes had negotiated with China: “Up to this time,” Hayes declared, “our uncovenanted hospitality to the immigrant, our fearless liberality of citizenship, and our promise of equal justice to all inhabitants…has made all comers welcome.”

Instead of fearless liberality, the problem with the Court’s jurisprudence was that “while many state laws discriminating against either Asians or Negroes have been struck down, a large number have been sustained on separate but equal grounds.” Yet, “[i]t is difficult to escape the conclusion that [such laws and the decisions upholding them] are inconsistent with the spirit of American Government.”

So, Max Kohler, like Oscar Straus, steeped himself in liberal legal learning; he continued publishing in scholarly outlets and journals of opinion, his articles replete with international-legal, historical, anthropological and philosophical references. But with Kohler the focus almost always was on gripping matters at hand, crafting, again and again, the case against “racial classifications and distinctions” in the laws that defined and policed the nation’s borders.

Perhaps it was to expiate his complicity (while exploiting his expertise) in the deportation of hundreds of Chinese immigrants. Those expelled by “this vicious, barbarous procedure” included not only laborers but also often merchants. Subjecting the latter to harsh rituals of status degradation evoked the treatment of Jewish merchants in contemporary Russia and parts of Europe. [2] Some portion of Kohler’s rage in the ’01 articles may have flowed from that recognition: One racially persecuted “market minority” seeing itself in the other. Perhaps, the stirrings of mass immigration of Russian Jews in the 1890s, led Kohler to guess he’d soon invoke the same learning on their behalf. Or perhaps not: being assigned as a young District Attorney to master the machinery of expulsion, while being heir to the family-forged faith in America as the “new Zion of freedom and human rights” and the liberal Constitution as the new “Covenant,” may have made defending the rights of racial others at America’s gates seem destiny.[3] Over the next two decades, Kohler would become the nation’s leading litigator, and scholarly expounder of the anti-classification/anti-discrimination principle and other liberal legal and constitutional precepts, in the service of racialized new immigrants.

By 1905, two years after Kishinev, the number of Jews arriving at Ellis Island was burgeoning. And at the same time, Roosevelt appointed a new Commissioner for the port of entry, committed to a sterner application of the immigration law. Clashes erupted, along with protest meetings, as thousands of poor Russian Jews began to be deported because they were deemed paupers or “assisted immigrants” under the stringent new regime.

The Yiddish papers proclaimed: “250 persons detained in the inquisition Bastille yesterday”; “pity is unknown at Ellis Island; severe discipline”; “Russian conditions prevail; only the lash is wanting.” “The masses are rising against the tyranny on Ellis Island. The people of the east side are planning to make a demonstration against the barbarous new interpretations of the immigration laws.” “Deported and excluded people number thousands!”

Max Kohler appreciated the irony: the “barbarous new interpretations” were prompted by none other than his good friend Oscar Straus to help the President stave off bills in Congress that aimed to shut out far more immigrants, bills openly hostile to Jewish immigrants and other supposed racial others. Still, what had seemed true in 1901 was no longer so: the general immigration laws no longer seemed generally fair in their administration at Ellis Island. Kohler filed a bundle of habeas corpus petitions, which landed in the hands of the newly appointed federal district court judge, Learned Hand. His clients, Kohler argued, forty-two detainees at Ellis Island, were about to be deported based on readings of the immigration laws that the statutes wouldn’t support. The new Commissioner was making up new law under the guise of administration. He was violating “our Constitution and our legal traditions.”

What was more, Kohler observed, the immigration inspectors labeled and referred to Kohler’s clients as “Russian Hebrews.” The record didn’t show that this “racial identification” was the reason for the decisions to deport them, and Kohler didn’t claim it was. But after arguing his case on statutory grounds, he ended by raising a constitutional worry: he repeated the Reform Jews’ objections to the notion that Jews were a “race” and their objections to government singling out any group on the basis of religion. By categorizing his clients as “Hebrews,” the Immigration Bureau invited prejudice on the part of the “uneducated, underpaid [immigration] inspectors.” Quoting the Harvard philosopher Josiah Royce, Kohler concluded: “Give men’s apprehensions a name – and they dignify it.”

Learned Hand ruled against the government’s jurisdictional objections and looked likely to rule in Kohler’s favor on the merits. To avoid that, the new Commissioner at Ellis Island released the detainees, and the Yiddish press rejoiced.

At the same time, Jacob Schiff took matters into his own hands and scheduled a meeting with Straus. Before the meeting took place, Straus and Roosevelt fired the new Commissioner at Ellis Island, and the numbers of deportees happily plummeted.

One thing remained vexing. The Commissioner had taken note of the new Jewish agencies that Kohler, Schiff and the Rothschilds had launched to aid Russian Jews.

Kohler himself had insisted that this far-flung system of aid and guidance must avoid paying steamship fares of Jews across the Atlantic. That would have constituted “assisted immigration” under the new law. But other kinds of costs were being covered; and besides, the Jewish agencies were plastering the Jewish communities of Russia with advertisements and sending out agents touting the opportunity to emigrate to America. By the Commissioner’s lights, all this violated the letter and spirit of the immigration laws.


This tension would come home to roost at a port a thousand miles from Ellis Island, in Galveston, Texas. Galveston was the destination that Schiff, Kohler and Straus had chosen for their experiment in Distribution. Schiff told the New York Times he had “grabbed history by the forelock.” He aimed to divert some part of the vast flow of Russian Jews away from New York and direct them to the hinterlands west of the Mississippi.

New Orleans was his first choice as the new port of entry. But his friend Straus objected. The Russian Jews would end up settling there and create a new Lower East Side. Better to send them further west to a smaller city on the Gulf Coast: Galveston. As the high official in charge of these things, Straus promptly set up a new Immigration Station at Galveston, and to head the effort in Galveston, Schiff enlisted a well-regarded rabbi, London-born Henry Cohen who’d been the rabbi of Galveston for years – and whose papers are at my university, UT Austin. The first boats of Russian Jews arrived a year later, and Rabbi Cohen welcomed them and sent them on their way in small groups to B’nai B’riths and tiny Jewish communities in towns and cities along the Mississippi and west as far as California.

Of course, the Galveston project also needed a leader to orchestrate the undertaking on the Russian and European side. Jacob Schiff was an ardent foe of Zionism. But he hired a leading Zionist for the job. Israel Zangwill was a London-born Jew and the most widely read Jewish writer in England and the U.S. He also was the leader of the Jewish Territorial Organization (JTO) – a branch of Zionism, determined to find a homeland wherever possible – in Uganda, if not in Palestine. But as the search for a homeland floundered, and the pogroms raged, Zangwill and his organization were willing to be co-opted by Schiff. Galveston was a second-best way to get the Russian Jews away from oppression; and a way for the JTO to gain experience in organizing mass emigration, in preparation for when a homeland materialized.

Zangwill saw no middle ground between assimilation and separation; and he was drawn to both extremes. Granted equal rights and citizenship, Jews in the Diaspora (American Jews, above all), Zangwill declared, were bound to “fuse” into the dominant culture - to “die without knowing.” “Assimilation is evaporation.” President Roosevelt made no bones about it, Zangwill observed. Hadn’t he declared “the different peoples coming to our shores should not remain separate, but should fuse into one”?

So, a Jewish homeland was essential for Jewish life, language and tradition to continue. Yet, Zionism was shot through with dilemmas. Palestine was not empty; most of its land was owned by Arabs, “who have no disposition to part with it, and they must be dealt with fairly.” It was “Rabbinic opportunism” to claim otherwise. “No country in the world has its original inhabitants. Application of such a principle would make all mankind homeless.” That was why Zangwill and the Territorialists insisted that the “goal is not to fulfill national ideology but to end Jewish suffering” - to find “land to be colonized” and create a homeland wherever “climate, geography and social and political conditions” allowed, for Jews “who cannot or will not remain” in the Diaspora.

Zangwill was inclined to remain in the Diaspora. He wrote eloquently about the German Jewish Enlightenment. Sounding the same key as Kaufman Kohler, Zangwill could ask: “How can a God of justice and the world…be confined to Israel? Religion, not race, has always been the guiding principle in Jewish history.” Both the Old and the New Testament “reveal the aspirations of the old Jewish race for a righteous social order and the ultimate unification of mankind…Jewish literature preserves this aspiration as the Jewish mission…The Jewish masses, however, have transformed it into the narrow concept of nationalism.” Yet, unlike Kohler, Zangwill’s chronicles of this “enlightened” tradition end in irony and paradox. The tradition’s pioneers were “Jewish apostates,” its “heroes” include Jesus, its “philosophy” ends up in some secularized kind of Christianity.

Caught between the modernist, assimiliationist and the anti-modernist, particularist poles of Jewish identity, Zangwill embraced contradictions. A Zionist but also an assimilationist. Married to a gentile, he pilloried intermarriage. A champion of a Jewish homeland and also of the Melting Pot. Indeed, he wrote the famous play, The Melting Pot, the same year he signed on to Jacob Schiff’s Galveston Project. He described the play as a “dramatic brief” for the Project.

The play is a hymn to the new immigrants as new Americans – and to America as a crucible in which the races are fusing into a “new American race.” The play echoed Roosevelt, and Roosevelt echoed the play. Roosevelt wrote a rave review after seeing it on opening night at Columbia Theater in Washington in October ’05, and Zangwill dedicated the play’s published version to the President. The Melting Pot’s lesson is that the “true American” is not the old-stock WASP but the newcomer, not the American by descent and “blood,” but the American by choice and consent, who embraces America’s liberal ideals afresh - personified in the play by David Quixano, a Russian Jew, orphaned by a pogrom and recently emigrated with an elderly uncle to New York. The play also involves the most radical kind of Jewish assimilation: intermarriage between Jew and gentile and the conflicts it provokes.

David, the Jewish orphan-turned-composer-genius falls in love with Vera Revendal, the daughter of an anti-Semitic baron from the very same city, Kishinev, where David’s parents had been killed during the infamous 1903 massacre which claimed hundreds of Jewish lives (and spurred Schiff, Kohler and Straus to launch their new projects in aid of Russian immigrants). Vera, for her part, has broken from her aristocratic family, become a radical, and fled her “reactionary” father and the Czar’s police to dwell in New York among the city’s liberal and cultivated elite, volunteering in a Lower East Side settlement house, where an immigrant orchestra is rehearsing David’s New World Symphony. The plot turns on the obstacles to David and Vera’s union and overcoming them. Vera’s father and stepmother show up from the old world and try to stop the affair; a native-born WASP millionaire makes advances to Vera; and David’s uncle warns him not to defy the call of blood.[4]

The WASP suitor, Quincy Davenport, mocks David’s ode to America: “Your America, forsooth, you Jew-immigrant!” To which David replies in terms that evoke Oscar Straus’s “Jewish origins” thesis and its sub-text of Jewish belonging, turned into melodrama: “Yes--Jew-immigrant! But a Jew who knows that your Pilgrim Fathers came straight out of his Old Testament, and that our Jew-immigrants are a greater factor in the glory of this great commonwealth than…you, freak-fashionables, who are undoing the work of Washington and Lincoln, vulgarising your high heritage, and turning the last and noblest hope of humanity into a caricature.”

The gulf separating David and Vera widens when David learns that Vera’s aristocratic father is the “Butcher of Kishineff,” the very baron who led the pogrom in which his parents and brother were slaughtered. Yet, with the help of his “New World Symphony” and the persistent vision of America as God’s melting pot, David overcomes this final obstacle. At the play’s end, after the first performance of the symphony, David and Vera are united on the rooftop of the settlement house. The idealistic composer realizes that he must live up to his own ideals and begs Vera: “[C]ling to me till all these ghosts [of Kishineff] are exorcised, cling to me till our love triumphs over death.” The lovers kiss, and the play ends with the reaffirmation of David’s vision against a glorious sunset.

Thus, The Melting Pot enshrines loving consent as the melting away and banishing of prejudices of racial descent. Fidelity to the beloved is elevated as loyalties to parents, kin, “race,” and religion are spurned. From David’s point of view, his love must overcome the severe wounds of the past and is thus proof that any parental past, any legacy of “race” and descent, can be redeemed by consenting youths. As with true love, so with true Americanness. It is founded on active consent, active embrace - not inherited, not based on blood and racial descent.

Under the dispensation of Roosevelt’s liberal nationalism, every new immigrant from every old world “race” was a welcome new citizen, a “true American,” and a “future mother or father of the [new American] race,” as long as s/he had the grit and independence to come to our shores, forsake the racial ties of the old world, and freely consent to all our laws and customs. The Melting Pot is this liberal dispensation as love story between Jew and gentile. In contrast to the Reform Jews’ account of becoming American, the play’s version of becoming American entails making a “new race” by forsaking the race/religion of the fathers. So, while the play drew a rave from Roosevelt, it prompted far more ambivalent responses from the likes of Schiff, Kohler, Straus and Wolf, who were vexed by its celebration of intermarriage and rejection of what David’s uncle dubbed “the call of our blood through immemorial generations.”

For them, the play expressed Zangwill’s stark view of the logic of assimilation and his anguished sense of what he called the modern Jew’s “strange polarities”: “the most tenacious preservation of his past and the swiftest surrender of it…entering with such passionate patriotism into almost every life on earth but his own…” “The fall of the ghetto has left him dazed in the sunlight of the wider world, his gabardine half off and half on.”

So, as the Galveston Project got underway, Schiff and Zangwill clashed constantly. Schiff would write: Send us no one who won’t work on Shabbat. Send no one without a marketable trade. Send no more old rabbis and no more mohels! And Zangwill resisted. The Galveston project also met resistance in the Yiddish press. The Daily Forward ran outlandish horror stories of Jews sent by Schiff into semi-slavery along the Mississippi. And it editorialized: the West was a spiritual wasteland. The Russian Jew should settle where he wills, and not be bullied, cajoled and diverted away from his people.

But thousands of Jews passed through Galveston until the 1908 elections brought Taft to the White House and with him a new commerce secretary and commissioner general. Taft continued Roosevelt’s immigration policies. But he had no special fondness for Galveston, and his senior officials saw it as a vast violation of the bar on assisted immigration. They assigned a new commissioner to Galveston who began excluding scores of Jews.

In spite of Kohler’s brilliant briefs, Taft’s Commissioner General concluded: “The original purpose of this enterprise was to distribute immigrants away from New York City to avoid congestion...but its leaders have carried it beyond that to provide a refuge in this country for their race. It violates our laws against assisting and soliciting immigration.” The fiercely individualistic immigration laws the Reform Jews had helped promote cut down their collective efforts to distribute and Americanize their fellow Jews.

Zangwill was not sad to see it end. Schiff’s notions of Americanization galled him. Galveston and the American West were not a homeland. The Melting Pot was merciless. To Zangwill the polarities seemed irreconcilable. Assimilation and Americanization on one hand; Jewish self-assertion and nationhood, homeland, and spiritual and cultural flowering on the other.


But Zangwill may have been teamed up with the wrong Jewish lawyers. Maybe only a Jewish lawyer as serenely secure in the legal elite as Louis Brandeis could break so decisively with the old formulas. Zionism and Jewish nationalism were not bad for Americanization. They were the essence of it. Famously, Brandeis declared, an American Jew became a better and truer American by becoming a Zionist. By contrast, we’ve seen, Wolf and Straus, Schiff and Kohler all loudly echoed Roosevelt’s and Wilson’s dark warnings that hyphenated Americans were not true Americans. Brandeis turned the warning on its head.

Brandeis had no use for the Reform Jewish establishment. To him, Jacob Schiff was just another plutocrat and a parvenu. Unlike Schiff, though, until the 1910s and until he was over 50, Brandeis had contributed precious little of his own fortune and even less of his formidable energies to Jewish causes. Brandeis belonged to no temple or synagogue nor any other Jewish organizations. He socialized little with Jews outside his family circle. He immersed himself in the social and cultural world of the Boston Brahmins. Unlike Wolf, Straus or Kohler, his law partners were WASPs not Jews; unlike them, he summered and socialized and found his closest companions among liberal gentiles. Until roughly 1910, a part of him fancied he was a Brahmin. His few lectures to Jewish audiences prior to that time were laced with stern talk about loyalty and condemnations of “hyphenated Americanism.” Looking back, Brandeis observed, he “knew almost nothing about Judaism.”

But Brandeis’s relations with Boston WASPdom, even with some of his fondest Brahmin associates, grew increasingly strained as his public attacks on the investment banking and business communities hit home. He was deeply shaken by the Anti-Semitic counter-attacks from much of the Boston business elite, and from the past and present presidents of the ABA, and scores of other ruling class WASP acquaintances when President Wilson mooted his name for a cabinet post and, a few years later, for a Supreme Court nomination.

As this hurt and estrangement were beginning, Brandeis happened to be brought in to mediate the great garment workers strike in New York. The Russian and Eastern European Jewish trade unionists inspired him with their intellectual and moral passions and personal warmth. Their radical brand of Jewishness, combining various strains of socialism, Yiddishkeit and Jewish nationalism, and his own cooler, more rationalistic brand of progressive democracy seemed made for each other. He felt at home – and he identified that home with Jewish nationalism. He plunged into Zionist literature. He “thrilled” to the talks given by Zionist settlers, cultivating new strains of “wild wheat” in the rocky soil of Palestine, and he wrote his wife about the new access of “deep love” he felt on visiting there. More so than with the dozens of other movements for which he’d served as advocate and counselor, Brandeis gave himself to this one. It “echoed in [his] soul” and gave the profoundly reticent Brandeis a new sense of belonging.

It helped that the Jewish homeland of his imagination was bathed in Progressive light, a scene of small-scale, cooperative agriculture and enterprise, imbued with science and participatory democracy. After Brandeis had become leader of American Zionism in 1915, and had helped craft and bring Wilson on board the Balfour Declaration in 1917, he drew up a plan for the reconstruction of Palestine, which was adopted by American Zionist organizations. The 1918 “Pittsburg Programme,” as it came to be called, rang out the changes on Brandeis’s brand of progressive democracy:

1. We declare for political and civil equality irrespective of race, sex or faith for all inhabitants of the land.

2. To insure in the Jewish National Home in Palestine equality of opportunity we favour a policy which, with due regard to existing rights, shall tend to establish the ownership and control by the whole people of the land, of all natural resources and of all public utilities.

3. All land, owned or controlled by the whole people, should be leased on such conditions as will insure the fullest opportunity for development and continuity of possession.

4. The co-operative principle should be applied so far as feasible in the organisation of all agricultural, industrial, commercial, and financial undertakings.

5. The system of free public instruction which is to be established should embrace all grades and departments of education.

Thus, the national homeland was to be governed by a “Jewish spirit” that was “essentially modern” and in harmony with Brandeis’s Jeffersonian brand of advanced American Progressivism. Meanwhile, the experience of finding a kind of spiritual home in Zionism reshaped Brandeis’s view of what he’d hitherto seen in staunchly conventional, assimiliationist terms: the problem of “hyphenated Americanism” or new immigrants’ “divided loyalties” should they remain wedded to national identities besides American. The experience also reshaped his understanding of the “Jewish Question.” In respect of “hyphenated Americanism,” Brandeis borrowed from his friend and fellow Zionist, Horace Kallen’s critique of the melting pot ideal and Kallen’s half-baked ideas about cultural pluralism and the value of “racial” or national group identities. (Kallen was every bit as much a racial essentialist as were Lodge, Madison Grant and the Teutonic crowd. Said Kallen, “you can’t choose your grandfather”; and that, for him, made you who you are. Brandeis would introduce a more social, or what today’s scholars would call constructivist, perspective, which underscored “multiple,” changeable “loyalties.”) About the Jewish Question, Brandeis borrowed from Zionist thinkers like Herzl and Hess. He added insights of his own, and he wove it all into a constitutional theory and vision.

The gist of that theory was that free and equal individuals only developed and flourished in the context of free and equal groups; such groups, in turn, needed “group rights” and “group equality.” Neither Jews nor members of the U.S.’s other “minority races and nationalities” could flourish in America without such constitutional precepts. Jewishness was not merely a private and individual faith; it was a public group identity, a nationality. And it was the right and duty of observant and non-observant Jews alike to “assert” their “Jewish nationality”! Only thus would Jews overcome the anomie and “demoralization” that, paradoxically, followed on the rise of liberalism and the tearing down of the ghetto walls. (This was Brandeis’s drier rendering of Zangwill’s “strange polarities” of the emancipated Jew: “the most tenacious preservation of his past and the swiftest surrender of it…entering with such passionate patriotism into almost every life on earth but his own…” “The fall of the ghetto has left him dazed in the sunlight of the wider world, his gabardine half off and half on.”) Happily, the true genius of the American Constitution was that it constituted us as a community of free and equal individuals constituted, in turn, by free and equal groups, nations and peoples. Under this dispensation, the modern Jew could be both an American patriot and a Jewish one. “Multiple loyalties” like these brought moral depth, enlarged knowledge, and a greater taste and capacity for participation in the polity.

Or so Brandeis claimed, and a new generation of “hyphenated Americans” agreed. Here was a notion of democratic citizenship that cracked apart the melting pot and offered a vision of Americanization closer to the new immigrants’ own social and cultural practices: invested in American patriotism but also in the history and (invented) “traditions” of Greece or Italy, in securing Irish “home rule” or a Jewish “homeland.”[5]

And a view of governing difference that sought to extend liberalism’s regard for freewheeling “individuality” to the plane of groups, “nationalities” and “peoples.”

Speaking to a conference of Reform rabbis in 1916 on “The Jewish Problem: How to Solve It,” Brandeis began with the same theme as Kaufman and Max Kohler and Oscar Straus: the harmony of the Jewish spirit and the American spirit, the notion that the historical roots of the U.S. Constitution and American democracy lie in Hebrew sources. “The Jews gave to the world its…reverence for law and the highest conceptions of morality…Our [Jewish] teaching of brotherhood and righteousness, has, under the name of democracy and social justice, become the twentieth century striving of America and western Europe. Our [Jewish] conception of law is embodied in the American constitution which proclaims this to be a `government of laws and not of men.’”

But unlike the other Jewish lawyers we’ve met, Brandeis came not to praise classical liberal constitutionalism but to bury it. When it came to the “Jewish Problem,” Brandeis told the rabbis, “Liberalism” was a “failure.” Liberalism promised Jews equality but supplied no ground to build up group dignity and self-respect and to combat and overcome Anti-Semitism. In fact, it seemed to foster it. The “concrete gains through liberalism were indeed large.”

Equality before the law was established throughout the western hemisphere…But the anti-Jewish prejudice was not extinguished even in those countries of Europe in which the triumph of civil liberty and democracy extended fully to Jews `the rights of man.’ The anti-Semitic movement arose in Germany a year after the granting of universal suffrage. It broke out violently in France, and culminated in the Dreyfus case, a century after the French Revolution…And in the United States the Saratoga incident reminded us, long ago, that we too have a Jewish question.

The problem with liberalism was that it gave Jews (and members of other minority groups and races) individual rights and individual equality before the law. But we cannot “protect as individuals those constituting a minority,” until “we realize that protection cannot be complete unless group equality also is recognized.” “Group equality” and “group rights” implied a right to public political action and organization based on group difference and national aspirations and a regime of social governance that allowed and fostered group-based educational, cultural and political associations.[6] “Group equality” and “group rights,” on Brandeis’s account, were precepts for governing difference that extended liberalism’s regard for “individuality” to the plane of groups and “peoples.” (“We recognize that with each child the aim of education should be to develop his own individuality, not to make him an imitator, not to assimilate him to others. Shall we fail to recognize this truth when applied to whole peoples? And what people in the world has shown greater individuality than the Jews? Has any a nobler past? Does any possess common ideas better worth expressing? Has any marked traits worthier of development?”) Not “assimilation,” in other words, not coerced Americanization on WASP terms, and not merely individual equality of opportunity and careers open to talent, but instead a constitutional order that prized group and national differences and fostered their free development was essential for the Jews and “the Jewish Renaissance,” and also essential for the U.S., if the latter was to gain “the full benefit of [the Jews’] great inheritance.”

Posing the “Assertion of Jewish Nationality” as the solution to Anti-Semitism, Brandeis was following Zionism’s founders in their romance with 19th century nationalism. Assimilation, on this account, was not only a kind of “noble suicide.” Assimilation also was a source of modern Anti-Semitism; for it produced among gentiles the fear that Jews, emancipated from the exclusions and disabilities of the old order, were “sail[ing] under false colors and conceal[ing] their true identity.” Zionism, by contrast, held out the promise of gentiles’ respect and recognition; it enabled Jews “to shake off the false shame which has led men who ought to be proud of their Jewish race to assume so many alien disguises…The Zionists and the orthodox Jewish nationalists have long ago won the respect and admiration of the world.” The project of establishing a Jewish homeland, where “Jewish life can be fully protected…and the Jewish spirit reach its full and natural development,” was inspiring Jews everywhere, including those with no intention of lighting out for Palestine to “glory in the power and pertinacity of the race…to look the world frankly in the face and to enjoy the luxury of moral and intellectual honesty.”

Just as the Zionists’ critique of assimilation may have held some appeal for Brandeis at this moment, in the context of wounds inflicted by the WASP world, so the romance of nationalism may have resonated for him, at this moment, as Wilson’s confidant and advisor, in the context of a “cruel war” that was “making clear the value of small nations.” In a world in which “every other people [besides Jews] …[was] striving for development by asserting its nationality,” and in the context of a U.S. foreign policy that dreamt of the end of empires and a new international order committed to the protection of national minorities, it was timid and backward-looking for the Reform Jews to shun Jewish Nationalism. If his critique of the melting pot and his notions of pluralism derived from Kallen, his vocabulary of “group equality” and “group rights” derived from international law.

The claim that the U.S. Constitution embodied these ideas was the purest legal fiction. But as Brandeis declared it to Jewish audiences, it became a cultural fact. “Asserting Jewish Nationality” was a matter of “group equality” under “our Constitution,” and it made one a “truer American,” so said Justice Brandeis. What Jewish nationhood and Jewish nationalism meant would continue to vary and change, taking many forms Brandeis might have lamented. But the first Jewish Supreme Court Justice brought this thicker, modern, hyphenated conception of American Jewishness into the mainstream for the first time. It was a conception closer to what the new immigrant “Jewish masses” fashioned for themselves in their everyday lives than the more thoroughgoing assimilationist one on offer from Brandeis’s foes in the Reform Jewish establishment. That, I think, is why - despite (or perhaps because of) his profoundly successful assimilation into American life and institutions, which existed alongside his bold assertion of Jews’ public “individuality” and Jewish nationalism - Stephen Wise called Brandeis the “first American Jew.”


What is it to be an American? What is it to be a Jew? What commitments and loyalties and what traits define each, and do they clash? What commitments and traits do we inherit and what do we choose? How does one embrace being an American while keeping one’s separate identity as a Jew?

These questions fueling the politics of Jewish-American identity in the Progressive Era, and these four sketches have illustrated my notion that law and lawyers and the contending ideas and ideals of the era’s legal culture – about individuals and groups and the boundaries of public and private action - played important, protean parts in the ways Jews answered them. Of course, the paths along which late 19th and early 20th century American Jews wedded Jewishness and Americanness were complex and various. These sketches have left many paths unexplored. Most Jews were not lawyers, and most Jewish lawyers were not as powerful as these four. Because they were powerful, however – as litigators, advocates and publicists (in the nineteenth-century sense of producing public discourse about international law), policy makers and high state officials, founders and leaders of some of the most important national Jewish organizations – they helped fashion important and durable terms of Jewish and immigrant entry and belonging to America.

Why should law and lawyers have been especially important? Part of the answer is that lawyers wielded the language of state power; and the state was in the business of labeling and identifying newcomers and determining who was welcome. But law was important for deeper reasons. Nation states were under construction in Western Europe as well as in the U.S. in the 19th century. Only here, however, were the felt attachments of identity and ideology that were coming to be called nationalism so deeply bound up with the very legal texts on which the state rested. Only in the U.S. was the nation - “We, the People” - so deeply constituted and defined by law. Over the course of the 19th century, the U.S. Constitution became the text of a “civil religion.” To make one’s way into the legal elite was to gain not only a prestigious career but also access to the very language of national belonging and, perchance, opportunities to interpret, elaborate, and even shape its meaning.

For most of the 19th century, the law- and constitution-based language of American nationalism had a distinctly liberal tenor as far as European immigration was concerned. Every European newcomer, in becoming an American citizen, re-enacts the Founders’ freely given consent to the laws and Constitution of the new republic and becomes a member of “We, the People.” No matter what our ancestors, our shared loyalty to this ongoing experiment in self-rule binds us together as a nation. This is the narrative around which Zangwill constructed The Melting Pot. The true American is not the American by descent but the American by active consent, replenishing the nation’s liberal ideals and contributing to the ever-new “race” of an immigrant nation.

Zangwill’s fictional Quentin Davenport and Simon Wolf’s real-life interlocutor, Henry Cabot Lodge stood for the rival ascriptive, descent-based strain of American nationalism. They held that the thin gloss of consent-based constitutional patriotism was not enough to make foreigners into Americans. Only some groups of would-be Americans - Anglo-Saxon or Teutonic and Protestant, in their view – had the right stuff to make them into new members of the national community. For Blacks, Asians, and Native Americans, this racialized, blood and descent-based American nationalism was the dominant one throughout most of the 19th and early 20th centuries, against which the liberal, inclusive promises of the 14th Amendment strained. (Blacks were “America’s Jews” was an observation common among both Black and Jewish writers and journalists in the Progressive Era.)

What clinched the centrality of law and lawyers for Jewish American (and other group) identities was the clash between these rival conceptions of American nationhood, which broke out on the plane of European immigration at the end of the 19th century, with the mass immigration from Russia and the peripheries of Europe. Whether these new foreign “races” and the “Hebrews,” in particular, were fit to be Americans, why and on what terms – was the terrain on which lawyers like Wolf, Straus, Kohler and Brandeis crafted and recrafted Jewish and American identities out of the materials of law and constitutionalism.

None of the lawyers set out to craft identities. Phrases like “racial identities” and questions like “What is it to be a Jew?” and “Are Jews a race?” were in the air, but they didn’t set out to address them. They were lawyers, not theorists. Practical exigencies and personal crises pushed them. Louis Brandeis did not get up one day with the aim of justifying a thicker “hyphenated” public identity for American Jews. His contribution was the by-product of being pressed into service as war-time leader of American Zionism, when the loyalty and patriotism of Zionists were a problem for Reform Jews as well as gentiles. That problem plus Brandeis’s distinctive standing and legal voice and authority as the nation’s leading Progressive attorney and Supreme Court Justice, his wounds at the hands of the Brahmin and broader WASP communities, his take on Wilsonian foreign policy and international law and, finally, the somewhat half-baked ideas of Brandeis’s Zionist friend, the philosopher and cultural critic, Horace Kallen combined to produce a critique of assimilation and a defense of “group rights,” “multiple loyalties” and “Jewish National Assertion” on the part of a deeply assimilated, profoundly “American” upper-class Jew. And these supplied a new vocabulary for many of the aspirations and lived experiences of becoming American for poor Jewish newcomers from Russia and Eastern Europe.

Poor Russian Jews chafed under the Americanization programs underwritten by the Reform Jewish establishment leaders like Jacob Schiff and the three lawyers we studied, Wolf, Straus and Kohler. These men were ardent assimilationists when it came to nudging Russian Jews away from orthodoxy, nationalism, Yiddishkeit and the Lower East Side. They declared Jews were not a race or nationality, while Brandeis blithely affirmed the contrary. At the same time, they were more steeped in both new and old Jewish traditions than he. Jacob Schiff insisted that Zangwill send no more Jews unwilling to break the Sabbath. But Schiff wore tefillin and prayed every morning, established a conservative Jewish seminary to bridge the gap between Reform Judaism and orthodoxy, and happily spoke Yiddish with the new immigrants in the settlement houses his wealth supported. Wolf was not much different. And Straus and Kohler were ardent historians of the Jewish “race” and the “germs” of modern justice and morality Jews carried, even as they wrote briefs and testimony invoking modern anthropological and ethnographic authorities to deny Jews were a “race.” So, we shouldn’t confuse the ideological contours and categories of the classical liberal Reform Jewish American identity with the fullness and untidiness of imagination and lived commitments and practices.

Nor should we overlook that like Brandeis’s, Wolf, Straus and Kohler’s identity-crafting and ideological handiwork arose in a particular and pressing political context: keeping the gates open to all the new immigrant “races” during three decades of mass immigration; averting the racial categorization of Jews in American law; crafting more or less liberal immigration reforms to appease a Congressional majority that favored harshly restrictive and racialized laws against the new immigrants; advocating against stern and illiberal application of the very laws they had helped craft. And all this in a context in which the vastness of the Jewish exodus from Russia and Eastern Europe combined with the newcomers’ poverty, their unsettling, thick and “foreign” kinds of Jewishness, their Yiddishkeit – and the hostility the Jewish newcomers met from much of gentile America - to put the small, recently established community of German Reform Jews’ sense of belonging into doubt.

The strategy they invented, the liberal grammar of Jewish belonging they devised – along with its compromises and evasions[7] – would outlive the particular doubts and dilemmas that inspired it. Defending the rights of Jews and other racial others, Wolf, Straus and Kohler associated American Jewishness with the liberal Constitution, affirming Jews’ place at the heart of American civil religion and national identity by taking a leading part in defining and defending the liberal nation and the rights of “others” to equal standing in it. That Constitution, in its individualism, its promise of religious liberty, equal rights and careers open to talent, its condemnation of “class legislation” in general and racial classifications in particular, harmonized with their Reform Jewish outlook and their social aspirations. These lawyers melded the Reform Jewish and classical liberal constitutional creeds into an American Jewish identity.[8]

What I’ve called Wolf, Straus and Kohler’s classical liberal grammar of Jewish American identity might have sounded like this, if one of them were to have brought its basic structure of ideas and feelings to the surface: We, Reform Jews, have stripped away the old, anachronistic features of Judaism as a communal form of self-government (and what some of us even call a “ghetto religion”). “Enlightened” and “modern,” we no longer conceive our faith in the old “legalistic” and “ritualistic,” “Oriental” ways; we hew to its “universal” and “Western” “core.” Our faith, then, has a structure akin to our Protestant neighbors’. Religion occupies the private sphere of our lives, as it does theirs. It is not (any longer) government; and government has no business with it. By the same token, we no longer see ourselves as a separate people, race or nation. Our “Zion” is “America.” Our “law and Covenant” are the Constitution.

But don’t mistake our liberality for softness. We are dead serious about upholding our “new covenant.” It is as fundamental as the old one. We are not only claimants of the constitutional promise of equal rights and liberty; we are its champions and arbiters. For us, the heart of the 14th Amendment is these promises: no racial classifications and every individual on his own merits. We are not racial others; and we won’t allow government to classify or cast out our co-religionists as racial others. For us these are fighting matters. We’ll take them up for all people whom the government classifies and spurns as racial others.[9] We were “strangers in the land”; we are destined to hold the nation to its deepest liberal commitments.

Finally, if we are going to talk about blood and race (and Reform Jews never actually ceased doing so), remember this. Our Jewish ancestors bequeathed to your Pilgrim ancestors and Founding Fathers their first and holiest examples of the rule of law, equal justice, and republican self rule.

That, at least, is roughly how I imagine a Wolf, Straus or Kohler might have imagined key elements of his Jewish Americanness. Like Brandeis’s contributions and often fused with them, they would have a long life.

[1] See generally Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought (2010).

[2] In the Times Kohler had written, “the system devised for the expulsion of the Moors from Spain and of the Jews from Russia in our day…are gentle and humane compared with the barbarities of our existing `American’ methods for the deportation of alleged Chinese persons…”

[3] The treatment of racial outsiders at the gates lay, as we’ve seen, at the intersection of two rich veins of classical liberal constitutionalism: racial liberalism and what would come to be called the anti-discrimination or anti-classification principle; and the clash between procedural due process and unfettered bureaucratic administration. As a matter of doctrine, however, these veins ran out quickly in the arena of immigration. But Kohler mined them for all they were worth and carved out space for judicial review of “non-reviewable” administrative determinations, appealing to the courts’ skepticism about administrative finality. He also usually prevailed on the merits, with various constitutionally-inflected statutory arguments, often served up with precepts from international law. In the process, he succeeded in weaving emergent norms of asylum for victims of religious persecution into U.S. law; he also got the courts to strike down “Progressive” efforts at Ellis Island to use the “likely to become a public charge” standard to exclude immigrants whose trades and occupations were “overcrowded” in U.S. labor markets and who were thought, therefore, to threaten the “American standard” of wages and livelihoods. All these victories, in turn, rested on the affinities he and his outlook found with liberal constitutionalism interpreted by WASP jurists from Learned Hand, on the Progressive side, to Justice Brown and others on the conservative end.

[4] “[J]ust think! She was bred up to despise Jews – her father was a Russian Baron”… “No, you cannot marry her.”… “Uncle! Then your hankering after the synagogue was serious after all”… “It is not so much the synagogue – it is the call of our blood through immemorial generations”…”You say that! You who have come to the heart of the crucible, where the roaring fires of God are fusing our race with all the others”… “[With prophetic fury] Not our race, not your race and mine!..The Jew has been tried in a thousand fires and only tempered…Many countries have gathered us. Holland took us when we were driven from Spain—but we did not become Dutchmen. Turkey took us when Germany oppressed us, but we have not become Turks.”…. “These countries were not in the making. They were old civilisations stamped with the seal of creed. In such countries the Jew may be right to stand out. But here in this new secular Republic we must look forward.” … “We must look backwards, too.”… “[Hysterically] To what? To Kishineff?”

[5] By the 1910s, “patriotic” “national” organizations of such new immigrant groups as Lithuanian-, Greek-, Hungarian-, Italian-Americans had taken root. While war-time made some new immigrants’ “multiple loyalties” more disturbing than ever for state authorities, Wilson’s dream of a post-war Europe in which the Nationality Question and the destiny of “small nations” and “national minorities” would be put on new liberal democratic foundations encouraged Brandeis to call on Reform Jewish leaders to shed their timidity about Jewish nationalism and catch up.

[6] Remember it is 1916 and the air is thick with war preparations, coercive government-sponsored Americanization campaigns and suppression of “foreign” immigrant organizations.

[7] Wolf, Straus, and Brandeis all proved willing to draw a circle around what Brandeis called “the white nationalities” and Wolf the “great [racial] divisions of the human family – White, Black, American Indian and others,” excluding non-whites from their working definitions of the national community constituted by the Constitution. This was a craven bow to racist actualities; it implicated them in the fraught historical construction I mentioned earlier - the distinction between the emerging category of white “ethnic groups” whose differences were chiefly cultural and the category of color-coded “races” whose differences were somehow deeper and more natural. Kohler didn’t bow. He rarely failed to condemn Jim Crow and Asian exclusion laws as “inconsistent” with the liberal Constitution he was expounding.

[8] It is no coincidence – but also no part of this essay to recount - how many of the lawyers combating all kinds of racial classifications in Progressive Era courts were Reform Jews like these – Reform Jews who hewed to a classical liberal legal outlook, militant about racial classifications and almost equally so about economic individualism. For them, the anti-classification precept went hand in hand with the equality of opportunity and careers-open-to-talent ideals animating constitutional laissez faire along with their own visions of American life. This was true of these lawyers’ friend and fellow founder of the American Jewish Committee, Louis Marshall, who also helped found the NAACP and served - along with the liberal WASP Moorfield Storey - as its leading Supreme Court advocate in these same years. The anti-classification principle and its attendant individualism would have a long life among the Reform Jewish establishment. They animated Reform Jewish organizations’ attacks on California’s alien land laws against Asian land ownership and Jim Crow laws in the South, and framed the AJC’s opposition to affirmative action decades later.

[9] See note 12, but also see note 11, supra.