Wednesday, September 8, 2010


It's a pleasure and an honor to be a guest blogger here at the Legal History Blog.  This new assignment brought to mind a contrast: the informality of blogging and the formality of legal history writing.   We legal historians seem more reticent than others when it comes to writing about the personal – autobiographical, lived, or felt – side of our work.  Lately, I’ve found myself getting a bit more personal.  A few recent talks and essays have broached themes that are close to home.  They are short and in many ways, informal.  None of them, happily, is about me.  The characters are a lot more interesting, but the elements of self-reflection and self-recognition – and in one case, of personal friendship and intimate knowledge - are pretty clear.    Mary has suggested I post them in installments, and that’s what I’ll do over the next few weeks, interspersed with other postings.  I hope they’ll be of some interest.

This first one 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.  

I’ll post it in four installments.  Here’s the first.

Jews, Law and Identity Politics in the Progressive Era[1]
   Years ago, I did some work in the archives of the U.S. Immigration Bureau.  I was on the trail of trade unionists who’d become immigration inspectors and bureaucrats at the turn of the last century.   But something else stuck with me.   That was the fortunes of Jewish immigrants from Russia and Eastern Europe.  Compared to other new immigrant groups, they were detained more often on Ellis Island for possible exclusion and deportation. And more often than other detainees, they had lawyers.  A handful of German-Jewish attorneys from the elite ranks of the city’s older Jewish community represented them, particularly in the cases that found their way from the hearing rooms on Ellis Island to the federal court house or to the offices of the Commissioner General of Immigration in Washington and his boss the Secretary of Commerce and Labor.  The briefs and arguments were very good.   To my surprise, they had much to say about Jewish identity and the vexed question of whether Jews were a separate race or people, or whether Jewishness was simply a religious faith.  

     I was no expert on Jewish history.  But I knew the old saw that the older German American Jewish elite were predominantly Reform Jews.  They’d crafted their Reform faith in a fashion that cut away much of traditional Jewish law and ritual, declaring that Jews were no longer a nation or a corporate community; instead, they were an association of private believers – like Protestants.   By rejecting “rabbinical legalism” and centering their Judaism on the “universal” moral teachings of the prophets, Reform leaders aimed to reanimate the faith among “enlightened” Jews.   They also hoped to disarm the ages-old Anti-Semitic view of Jews as eternal foreigners, loyal to their own laws and authorities, and their own blood.   

    Often, the new Jewish immigrants were represented by an attorney named Max Kohler.  Max Kohler, I discovered, was not simply a member of the older, well-established community of Reform Jews but the grandson of Rabbi David Einhorn, who led Reform Judaism in the U.S. in the 1860s-‘70s, and the son of Rabbi Kaufman Kohler, who married Einhorn’s daughter and inherited his mantle and his New York rabbinate in the 1880s.   The leading Reform rabbi of the 1880s, Max’s father, Kaufman Kohler was chief author of the famous 1885 Platform of Reform Judaism that proclaimed:  We are no longer a nation…no longer expect to return to Palestine; no longer govern ourselves by Jewish law…   In “free America,” Rabbi Kohler declared, a Jew must choose between “loyalty to all the laws and customs of his national past [and]…unreserved acceptance of all the mandates of his newly acquired citizenship.”    The “core” of Judaism lay in the precepts of “justice and universal morality” it bequeathed to the “Pilgrim fathers” and the “framers of the Constitution.”  The Constitution was the American Jew’s “new Covenant.” 

     So, when Max Kohler assailed the Immigration Bureau’s classification of his clients as members of the “Hebrew race,” explaining that Judaism was “not a race or a nation, but only a religion,” when he challenged the Bureau’s summary expulsions at Ellis Island as flouting “our Constitutional tradition,” the lawyer-son seemed to be channeling his rabbi-father (and -grandfather).  The advocate was saying something not only about his clients but also about himself, and about American Jewishness in general.  
    There was a tender spot, though.   Another old saw I knew about the history of Jews in the U.S. was this.  The new Jewish immigrants from Russia and Eastern Europe had a different sense of Jewishness.  They were not Reform Jews.  They weren’t deeply orthodox either.  But many brought with them familiar forms of orthodoxy and retrieved those customs and practices in hundreds of tiny synagogues set up by countless landsmanshaften.  Many others embraced Yiddishkeit, Zionism and various other religious and secular forms of Jewish nationhood.   Traditional or secular, all these outlooks hewed to what Reform Judaism rejected: that Jews were a separate people and a separate nation!  So, the kind of American Jewish identity these new Jewish immigrants might aspire to could be quite different from the one that Max Kohler seemed to be fashioning as he advocated on their behalf.   This thicker kind of communal identity might not find a ready advocate in the assimilationist-minded German-Jewish elite; and in any case, it might not find means of expression in the materials available from U.S. legal culture.   The newcomers seemed to raise problems about both Jewishness and Americanness.

  But that is to get ahead of myself.  I mentioned I was no expert on Jewish history – I’m still not one.  I’m strictly an amateur – and I’m sure I have much to learn from many of you.  I have been struck by how many of my fellow U.S. legal historians – like American legal academics generally – are Jewish, and how few of us have written about Jewish lawyers.  That was an incentive to try; and Dirk’s invitation to give the Lapidis Lecture was all the prompting I needed.
    The lawyers who caught my eye did both nitty gritty legal representation on behalf of individual immigrants and also broader forms of public advocacy, legal reform, and inside-government work on their behalf.   They did this work at the high water mark of mass immigration to the U.S.   Roughly a million new immigrants arrived each year around the turn of the last century; and immigration law was the site of increasingly bitter contests about whether these huddled masses of Southern and Eastern Europe and Russia – Italians, Greeks, Poles, Slavs and Hungarians, along with Jews - were fit to become Americans at all, and about how to sift out the “unfit.”   The Jewish lawyers had a surprising impact on the era’s immigration law and policy. 

  As they did this work, the sacred text of American civil religion, the U.S. Constitution, came to occupy a sacred space in their understanding of American Jewishness.  American law and legal culture provided materials for fashioning American Jewish identities.   In fact, I’ll suggest, the lawyers contributed to shaping two such identities in swift succession – one drawing chiefly on what we legal historians call classical liberal legal thought, and a second finding its legal material principally in progressive legal thought.    

    By classical liberal legal thought – or simply classical legal thought – we mean the late nineteenth-century outlook that was intensely individualistic and prized formal legal equality, and condemned what was called “class legislation”: laws that classified and burdened individuals on the basis of race, color, nationality, or creed.   By progressive legal thought, we mean the counter-tradition, which decried the formalism and individualism of the first outlook. Its watchword was “social justice” as well as “legal justice” – insisting that formal equal treatment of individuals was not sufficient.  The law must take account of groups and group interests, and their particularities and asymmetries of power.  

      During the decades bracketing the turn of century, about two million mostly poor Russian and Eastern European Jews came to the USA; they made New York the city with the largest Jewish population in the world, and they disrupted and discombobulated the world of the old Reform Jewish elite.    Important German-Jewish elite attorneys and leaders of the German-Jewish establishment responded in myriad ways.  Among them was practicing immigration law and becoming immigration policy “experts.” Even those who did not become experts had to address the “Immigration Question.”  

   I’ll be discussing four of these lawyers.  Three may be strangers to you:  Simon Wolf, Oscar Straus, and the aforementioned Max Kohler.  Although both Straus and Kohler were Progressives of a moderate stripe and Straus, we’ll see, was an administrative state builder under Teddy Roosevelt, all three contributed to the creation of American Jewishness working with classical liberal materials.   As they defended the rights of “Hebrew” and other racial outsiders, these Jewish lawyers found ways to affirm their own belonging, identifying not only themselves but Jews and Judaism writ large with the liberal Constitution, putting them at the heart of the nation’s “civil religion.” 

    Finally, we’ll take a brief look at Louis Brandeis.  Brandeis’s contribution was forged out of the progressive counter-tradition.  Probably no prominent Jewish American of his generation tried harder to fit into the upper-class WASP world of Boston Brahmins than Brandeis.   Yet, Brandeis affirmed what the other three lawyers denied: the compatibility of Zionism and Americanism.  They assailed Zionism, insisting it clashed with loyal American citizenship.  But on Brandeis’s account, Zionism, improbably, was “true Americanism,” and his argument ran through the Constitution. He recast Jewish nationhood into the kind of group identity that a pluralist and Progressive Constitution recognized and protected as an essential of democratic citizenship.  The most assimilated of the Jewish lawyers we’re going to encounter, Brandeis used his unparalleled position of authority to help bring this thicker, more controversial, “hyphenated” kind of American Jewish identity into the mainstream.[2]      
       We’ll be looking at three moments in immigration law and politics.

1.       How would the nation categorize and count the new immigrants from southern and Eastern Europe?  Would it tally them by “race”?  And if so, would the Russian and East European Jewish arrivals be counted as belonging to the “Hebrew race”?    
2.      Immigration laws and the machinery of exclusion: who would get in and who would be sent away?  What categories and criteria would do the work?  Would they be racialized ones?  And if not, then what would be the basis for stemming some portion of this immigration, closing the open door part way?  
3.      Finally, the question of Americanization and “hyphenated Americans.”  The newcomers forced the question: Could Jews be loyal Americans and also proponents of Jewish nationhood and of various separate Jewish political and cultural identities, at the same time?  

  I am walking here in the footsteps of Jerold Auerbach who first explored this terrain in a brilliant and quirky book: Rabbis and Lawyers.   But Auerbach is not a lawyer, and he didn’t follow the tale into the archives or the actual law work Jewish lawyers did.   He also wasn’t interested in the immigration question.  Nor was he concerned with the forms and structures of legal and constitutional thought.   However, Auerbach lit on the centrality of law and lawyers to creating Jewish American identities 20 years ago.   His account has much to say about religious and historical authenticity, about traditional forms of Jewish law and Jewish life against which the embrace of American law and lawyer-leadership is judged hollow.   I’m not equipped, and in any case not disposed, to interpret the material I’ve found in that fashion.  At home in a Jewishness shaped by the ruptures and changes of modernity, Americanization and reform, I remain in Auerbach’s debt.

PARTS II, III & IV to follow

[1] © William Forbath. ROUGH DRAFT OF ESSAY BASED ON LAPIDIS LECTURE, Princeton, May 5, 2010.
[2] While it will be no more than a footnote here, all four lawyers also worked in the international realm.  As the leader of American Zionism during and after World War I, Louis Brandeis helped bring Woodrow Wilson on board the Balfour Declaration.  Like most Reform Jews of their generation, the other three attorneys were anti-Zionists.   Unlike Brandeis, their contributions in the international sphere find no mention in standard histories of Jews in America.  Yet, they were more deeply involved than he in the legal fate of Jews abroad, in the Austro-Hungarian, Russian and Ottoman empires (from whence came the new Jewish immigrants) and in the post-War break up of those empires.  Zionism’s solution to the Jewish Problem in these parts was a Jewish homeland in Palestine.   These anti-Zionists had a different solution: the right to emigrate, of course; but also, a new meld of individual (civil and political) and group (cultural, educational, linguistic) rights for “minorities,” which they helped inscribe into post-World War I international law.  For his part, Brandeis, we’ll see, boldly seized on this new international law conception of “group rights” in fashioning his pluralist account of the place of Jews and other “nationalities” in the U.S. legal and social order.