Studies in Law, Politics, and Society: Volume 83

In the nineteenth and twentieth centuries, lawyers and judges used history for various purposes. Their works reflected the trends in historical treatments done by historians but was produced for instrumental ends. They drew upon history in their work of making the law and in shaping the profession. Lawyers and judges used history to justify existing law, to bolster calls for change in the law, to provide a defense against critique of the profession, or to provide a shining example for the profession to emulate. This long view of the use of law by the legal profession contextualizes the much-commented phenomena of law office history, which has proved a subject of a contention between the professions of law and history.

This chapter uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Muller is typically considered a labor law decision permitting the regulation of women’s work hours. However, this chapter argues that through particular attention to the specific context in which the labor dispute took place – the laundry industry in Portland, Oregon – the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. This chapter investigates the most important conflicts behind the Muller decision, namely the entangled histories of white laundresses’ labor and labor activism in Portland, as well as the labor of their competitors – Chinese laundrymen. In so doing, this chapter offers an intersectional reading of Muller that incorporates regulations on Chinese laundries and places the decision in conversation with a long line of anti-Chinese laundry legislation on the West Coast, including that at issue in Yick Wo v. Hopkins (1886).

This chapter provides a genealogy of the Gladue–Ipeelee principle of special consideration of Indigenous circumstances at sentencing. The principle is codified in the 1996 statutory requirement that “all available sanctions other than imprisonment … should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” (s. 718.2e of the Criminal Code of Canada). Using the Foucaultian genealogy method to produce a “history of the present,” this chapter eschews normative questions of how s. 718.2e has “failed” to reduce Indigenous over-incarceration to instead focus on how practices of “special consideration” reproduce settler-state paternalism. This chapter addresses three key components of the Gladue–Ipeelee principle: the collection of circumstances information, the characterization of those circumstances, and finally their consideration at sentencing. Part one focuses on questions of legitimacy and authority and explicates how authority and responsibility to produce Indigenous circumstances knowledge was transferred from the Department of Indian Affairs (DIA) to Indigenous Courtworker organizations in the late 1960s/early 1970s. Part two identifies how authority shapes problematization by examining the characterization of Indigenous circumstances in the two eras, finding that present-day Gladue reports articulate an Indigenous history and critique of colonialism as the root cause of Indigenous criminalization, whereas DIA reports prior to 1970 generally characterized this criminalization as a “failure to assimilate.” Part three focuses on the structural reproduction of power relations by exploring historical continuities in judicial and executive-branch consideration of Indigenous circumstances, suggesting that the Gladue–Ipeelee principle reinscribes a colonial “mercy” framework of diminished responsibility. The author discusses how the principle operates in the shadow of Indigenous over-incarceration as a form of state “recognition” and a technique of governance to encourage Indigenous participation in the settler justice system and suggests that the Gladue–Ipeelee principle produces a governing effect that reinforces settler-state authority by recirculating colonial practices and discourses of settler superiority.

The Department of Homeland Security (DHS) states in 2018 that safeguarding “civil liberties is critical” to their official duties. The Office for Civil Rights and Civil Liberties within DHS, as its website explains,

reviews and assesses complaints from the public in areas such as: physical or other abuse; discrimination based on race, ethnicity, national origin, religion, gender, sexual orientation, or disability; inappropriate conditions of confinement; infringements of free speech; violation of right to due process … and any other civil rights or civil liberties violation related to a Department program or activity.

My chapter tracks the centrality of deportability in shaping the civil liberties and rights that DHS is tasked with enforcing. Over the course of the twentieth century, people on US soil saw an expanding list of civil liberties and civil rights. Important scholarship concentrates on the role of the courts, state and federal governments, advocacy groups, social movements, and foreign policy driving these constitutional and cultural changes. For instance, the scholarship illustrates that coming out of World War I, the US Supreme Court ruled that the First Amendment did not protect something the Justices labeled “irresponsible speech.” The Supreme Court soon changed course, opening up an era ever since of more robust First Amendment rights. What has not been undertaken in the literature is an examination of the relationship of deportability to the sweep of civil liberties and civil rights. Starting in the second decade of the twentieth century, federal immigration policymakers began multiplying types of immigration statuses. A century later, among many others, there is the H2A status for temporary low-wage workers, the H2B for skilled labor, and permanent residents with green cards. The deportability of each status constrains access to certain liberties and rights. Thus, in 2016, when people from the Office for Civil Rights and Civil Liberties within DHS act, they are not enforcing a uniform body of rights and liberties that applies equally to citizens and immigrants, or even within the large category of immigrants. Instead, they do so within a complicated matrix of liberties and rights attenuated by deportability, which has been shaped by the history of the twentieth century.

Historians have long understood that transforming people into property was the defining characteristic of Atlantic World slavery. This chapter examines litigation in British colonial Vice Admiralty Courts in order to show how English legal categories and procedures facilitated this process of dehumanization. In colonies where people were classified as chattel property, litigants transformed local Vice Admiralty Courts into slave courts by analogizing human beings to ships and cargo. Doing so made sound economic sense from their perspective; it gave colonists instant access to an early modern English legal system that was centered on procedures and categories. But for people of African descent, it had decidedly negative consequences. Indeed, when colonists treated slaves as property, they helped to create a world in which Africans were not just like things, they were things. Through the very act of categorization, they rendered factual what had been a mere supposition: that Africans were less than human.