Sunday, November 24, 2019

ASLH Guest Post: Walker Covers "Legal History and the Persistent Power of State and Local Government"

We have the first of our guest posts covering a panel or other convening at the 2019 meeting of the American Society for Legal History. Thanks to former guest blogger Anders Walker (St. Louis University School of Law) for this fantastic recap of the preconference symposium on "Legal History and the Persistent Power of State and Local Government." The following is from Walker (with our gratitude):

The preconference symposium on state and local governments was not to be missed.  Organized by Brooke Depenbusch (Colgate University) and Rabia Belt (Stanford University), the program sought to ask new questions about the state, moving away from narrow conceptions of centralized, metropolitan bureaucracies and towards more decentralized, disaggregated models, models perhaps more familiar to historians of the United States (itself a conglomeration of local, state, and federal entities, agencies, and administrations).

The first panel focused on “Historiographical Interventions” and featured Kate Masur (Northwestern University), William Novak (University of Michigan), Karen Tani (University of California, Berkeley), and Laura Edwards (Duke University).  Novak began by suggesting that the tendency to see the state as a centralized, bureaucratic apparatus does not necessarily apply in America.  Rather, we are better served by focusing on a more pragmatic, pluralistic notion of the state as multidimensional, undetermined, and defined more by its functions than any preconceived forms.  Such a view opens up new horizons, argued Novak, including merging legal with social and cultural history.  Masur raised James Scott’s Seeing Like a State, noting that historians differ from political scientists by looking not so much as what the state qua state sees or does, but rather how people within the state act, in a contingent, often limited way, circumscribed by limitations in technology, manpower, and resistance, yielding a disconnect between what states say they want to do and actually do.  Tani noted the need to move beyond a sense that the federal government alone comprises the state in America, and argued instead for a broad understanding of what counts as the work of the state, not simply infrastructure or war-making, for example, but policing, welfare, and other functions.  Tani noted that new iterations of the state have emerged in the United States, yielding a shifting landscape of “states.” Edwards observed that she had not set out to examine the “state,” per se in her work, but has arrived at insights into the role that local governments play in the American system, and how an emphasis on local history yields a more diverse sense of state.  “We see different elements of the state, as well as change over time,” she observed, noting that top-down approaches to the state miss the voices of local people, missing a “wide array of discussion and debate over what government and the state look like.” 

Belt asked how recent literature has informed notions of the state, including the changing nature of the relationship between state and federal government.  Masur responded by mentioning Catherine Jones’s book, Intimate Reconstructions: Children in Post-emancipation Virginia, which focuses on children’s lives through the lens of the institutions that they belonged to, including schools.  Masur also mentioned her project with Greg Downs The World the Civil War Made, in which their Introduction formulated the idea of the “stockade state” ("stockade" referring to the system of forts and other outposts that the federal government built across the South and West in the Civil War era). Tani cited new work that traces flows of money from the federal government to state and local governments, including Elizabeth Hinton’s book From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, about anti-poverty and anti-crime funding.  Also a recent collection edited by Brent Cebul, Lily Geismer, and Mason B. Williams, Shaped by the State: Toward a New Political History of the Twentieth Century, which suggests some new directions in the field, including the political imaginations of local people.  Novak mentioned Margo Canaday, Nancy Cott, and Robert Self’s forthcoming anthology "The Intimate State: Gender, Sex, and Governance in the Modern U.S. History" which focuses on the policing of private life, as well as an older book by Bruce Wyman, The Principles of the Administrative Law: Governing the Relations of Public Officers (1903).  Edwards focused on the power of the narrative of “state formation,” and argued for moving beyond it.  She reiterated new work on “the stockade state” and new work generally focusing on the material reality of state functions, and how people interact with the state on the ground.  Also, new work on law’s plasticity, i.e. the sense that law is not a monolith, but rather a “mess of stuff,” a variety of written sources, personal experiences, and also the ways that people use the law – which in turn takes the written sources in new directions.  Also, a new attention to access and logic, not just who has access to the law, but also the logic by which one accesses the law. 

One theme that emerged, and that carried through the afternoon, was the challenge of “writing against the grain,” i.e., telling the stories of individuals excluded from positions of state influence, but nevertheless subjected to state power.  Tani commented on the importance of underscoring the ways that people of different backgrounds might experience the state, and state activity.  Masur noted that historians who work on race, say African American history, may simply not view the state as their primary subject, but rather a force that operates on their subjects.  Novak mentioned Martha Jones’s Birthright Citizens: A History of Race and Rights in Antebellum America, extolling its ability to merge African American history with the history of the state.

The second panel focused on “Narrative Choices” and featured Barbara Welke (University of Minnesota), Christopher Tomlins (University of California, Berkeley) and Emily Prifogle (University of Michigan).  Depenbusch began with a question on state function/s, and how to best capture such functions from a methodological angle. Welke noted that the idea of “the state” obscures the multifaceted nature of the state, and that local people must be brought in.  Prifogle noted that at the local level, many of the multifaceted aspects of the state join in single local entities, with small groups of local people.  Tomlins countered by arguing that we not forget that the state qua state is something real, to be studied on its own terms in the aggregate.  He provided mass incarceration as an example, noting that an adequate comprehension of mass incarceration in America may not necessarily be reached by focusing on local stories, or personal narratives.  Rather, we need to keep in mind the place of macro-history, or grand narrative.  Tomlins noted that history has become too defined by a reaction to grand narrative, and warned that we not go down the same road with the grand narrative of the state.  He attributed this to the “irresponsibility of post-structuralism,” which is moving us away from an actual understanding of how the state works.  “The state is real and not something that we should collapse.”

Prifogle responded by arguing that we can tell the story of the state in a narrative way by focusing on the local, but need to relate that local back to the larger, national, or grand narrative.  Welke agreed, adding that individual stories might ultimately be the best way to tell the story of macro events, including mass incarceration.  Micro subjects, in other words, do not necessarily preclude the ability to tell macro stories.  Prifogle confirmed that piecing together the stories of individual people provides an opportunity to incorporate larger histories, and historiographies, into narrative.
Depenbusch then raised the question of region, asking how that plays into narrative choices.  Prifogle responded by wondering whether the Midwest holds together as a region, in the same way that the South does.  She discussed the role that region has played in decisions between writing urban history versus suburban history, and cited Lisa Tolbert’s Constructing Townscapes: Space and Society in Antebellum Tennessee, which focuses on county in Tennessee to tell the story of slavery.  Prifogle went on to explain that in her own project, she chose case studies in 5 different states, and relied on 5 different types of law, hoping that by taking individual examples seriously she could also capture a larger story about local law and change over time.  Together, such cases allow her to draw conclusions about what Midwestern rural law might look like, confounding simple narratives of progression or declension.

The third panel focused on sources and featured Felicity Turner (Georgia Southern University), Sally Hadden (Western Michigan University) and Kellen Funk (Columbia University).  Funk began by noting that much of early legal practice in New York was oral, and therefore a challenge to study.  However, Kellen mentioned workarounds, including justices of the peace, whose records can be found in private papers.  Funk went on to discuss digital history, noting that constructing digital archives is time consuming, and not too different from working with real sources.  However, digital databases do provide certain search advantages, and may also serve to make early, handwritten sources more legible.  That in mind, decisions of what goes into digital archives are themselves laden with value judgments.

Turner remarked that she focuses on infanticide, and initially thought that she would have problems finding sources.  However, what she considered a source evolved over time.  One example was blood, or descriptions of blood, which provided clues into the causes of childrens’ deaths, yet require considerable interpretation.  Also sound proved to be a source, i.e. accounts of what was heard or not heard when a baby was born. 

Hadden mentioned that her first work was on slave patrols, and that her current work is on lawyers in colonial America.  For the patrol work, Hadden found that patrollers were simply not considered very important, and their records were largely discarded.  In lieu of such sources, following the money proved helpful, including how patrollers were paid. Hadden suggested talking to senior archivists.  She noted, for example, that county records in North Carolina during the antebellum period did not sort information by either slave or patrol, and that many of the topics she was looking for had been dumped into large files simply labelled “miscellaneous.”

Belt asked about the archives that the panel used, and why they chose them. Turner noted that she relied on North Carolina, in part because she was there for graduate school but also because North Carolina had good archives.  Less good was Illinois, where the archives had been organized for genealogists, not by subject.  Also, records remained largely in county court houses, not central archives. Funk noted that in cases where there were few legal sources, local newspapers could provide insight into legislatures.

Belt asked whether source decisions should make it into narrative. The panel provided varying responses. Hadden noted that some decisions that affected sources were not related to the narrative, and therefore excluded. Funk argued that in his work, New York sent their laws out to other states, making it influential.  However, other states, like southern states, did not send out their codes, and remain largely unknown, a story that is worth telling.

Belt then asked how historians might find evidence of corruption. Hadden suggested that historians look for victims. Funk cited Bruce Mann’s history of debtor prisons in New York, noting that affluent prisoners tended to leave better records than the poor.  Turner commented on inquest records, and other proceedings, also focusing on potential victims.  Hadden reiterated one of the main themes of the day, namely the challenge of reading against the grain, i.e. looking for sources dealing with the marginalized/voiceless. Turner noted that many of her subjects did not speak of their violence. White men investigating the crimes, however, did, which in turn provided insight into women.

Belt asked the concluding question, namely what opportunities state and local sources provide for rewriting national history.  Turner argued that inquests dealing with unknown infants at the local level raise questions about national trends in terms of regulating private life and intimate space.  Hadden noted that getting at some large stories, like regime change, require going into local and territorial records, following the shift in control from Spanish to English to Americans, and so on. She then introduced a handout that noted when various states began to require that local records be preserved. 

-- Anders Walker