Kenneth W. Mack's Reading List

"Rogers Smith argues that at the heart of American political culture, since even before the founding, there have been two warring ideals. One is the ideal of an egalitarian society, where everyone who arrives on our shores has relatively equal citizenship rights. According to this ideal, when those rights are denied it is an exception rather than the rule. This view of America is rooted in its founding rhetoric encompassed in the Declaration of Independence’s famous phrase, “all men are created equal”. There is also an opposing ideal that American political culture has as its basis civic inequality. In his view America offers “ascriptive citizenship”, which means that access to rights, power and privileges are determined by race, gender, ethnicity and religion. Smith is responding to a classic question of race and the law scholarship. Is American law egalitarian at its core, or does American law impose a racial hierarchy? Smith sees both strains deeply embedded in American legal history. One can’t characterise American law as encompassing one of them without recognising the other. The main objective of the book is to demonstrate the tension between these warring ideals and show how it is reflected in law. Smith is not as explicit as he might be on that score. One of the basic questions in “race and the law” scholarship asks is: What is the relationship between law and society? Do social attitudes affect the content of law, thus making law either more racist or more egalitarian as attitudes change? Is law affecting social attitudes? Is there some more complicated relationship between the two? These are contested questions for scholars; many people have argued about that topic during the past 30 years. I think Smith is agnostic about these questions. His book shows law in concert with social attitudes but doesn’t really offer an explicit answer to the question of causality."

"Erika Lee wants to introduce readers to the fact that American law created and expanded a regime of exclusion from the country, based on race and nationality. She focuses on the Chinese Exclusion Act. The narrative that most Americans accept and learn in school is that American immigration was traditionally open and that everyone could come, as indicated by the often-quoted words from the Statue of Liberty. Lee wants you to know that for a significant group of people, identified by their race and country of origin, that has not been the case. The second thing she wants to show us is how immigration law was invented. Immigrants may or may not have been treated well when they reached America, but there were few significant legal prohibitions on their admission to the country, aside from some health and safety regulations, prior to the Chinese Exclusion Act of 1882. So the source of modern federal immigration law – which limits and regulates immigration and imposes national quotas – lies in a statute that was passed to exclude a particular racial group from the country. We should never forget that the Chinese Exclusion Act was part of a larger effort to exclude entire groups from immigrating based on their race and nationality. Particular groups, generally from Asia, were singled out and excluded for over 50 years. That’s part of our history as much as the story of welcoming immigration that is taught in school. The second thing to learn is that it deeply affected the composition of America. Who’s American? What do Americans look like? These prohibitions helped cement into American culture the idea that only people who have a certain appearance are truly American. One possible end point of Lee’s story is the Immigration Act of 1965. It adjusted the immigration quotas, which had restricted or prohibited immigration from certain countries. Those quotas, set in place in the early 20th century, were put in place to favour immigration from northern and western Europe. Because of the 1965 Act, the quotas were adjusted, which made it possible for more immigrants to come from, for instance, Asia. One can date the increased presence of Asian immigrants in the United States to that time. We have now had governors of South Asian descent in South Carolina and Louisiana, Nikki Haley and Bobby Jindal, in part because the Immigration Act of 1965 helped change the colour of America. Slowly, over time, American expectations of what Americans could look like began to change as well. But the story doesn’t end there – we are having a related discussion today about the Americanness of newer immigrant groups. Most notably, the “Gentleman’s Agreement” of 1907, whereby Theodore Roosevelt’s administration and the Japanese government agreed to prohibit further immigration of labourers from Japan, and the Immigration Act of 1917, which established an exclusion zone that prohibited immigration from a substantial portion of Asia. In fact, there are two sets of legal rules that were relevant in this area – rules that come under the rubrics of immigration and naturalisation law. Immigration law generally regulates the terms of admission to the country. Naturalisation law defines, among other things, who can become an American citizen after they arrive. The first American naturalisation law was passed by the first Congress in 1790 – a Congress that included a significant number of the framers of the United States Constitution. That law limited naturalisation to what was called “free white persons”. The explicit racial restrictions on naturalisation weren’t completely lifted until the middle of the 20th century. So for most of American history, there was a basic assumption written into federal naturalisation law that the United States was a white person’s country, which raised the question of who was actually white – one that many judges wrestled with. Non-whites could not naturalise, although for the most part their children would be American citizens if they were born here. This became very important during the World War II-era Japanese internment; when the assumption that American citizens and longtime US residents of Japanese descent were not truly Americans helped justify the internment. It was an assumption that influenced everyone from military officers to the Supreme Court justices who had to rule on the constitutionality of the internment."

"Mae Ngai helps us understand what we can learn from the history of the idea of an “illegal immigrant”. Before the Chinese Exclusion Act there were, for the most part, no illegal immigrants because there was very little immigration law. Lee’s book shows how an immigration bureaucracy was created and began to grow for the purpose of excluding Chinese immigrants. Ngai takes the story into the 20th century, and shows how the idea of the illegal migrant was invented, along with the construction of Mexican-Americans as illegals. “Before the Chinese Exclusion Act there were, for the most part, no illegal immigrants because there was very little immigration law.” Ngai wants you to understand, among other things, why and how Mexican-Americans came to represent the “illegal immigrant” in the American mind. For various reasons, immigration quotas and other political and demographic changes lessened the flow of migrants from Europe. But the United States still needed – as it does today – unskilled labour, and immigrants from Mexico began to fill that gap. At the same time, the immigration bureaucracy was reaching inside United States territory to identify illegal immigrants. It is partly for this historically contingent reason that Americans attach an entirely different normative significance to recent Latino immigrants than they do to immigrants from the often romanticised period of immigration in the late 19th and early 20th centuries. It’s being fought out today in the ongoing debate about changing American law to deny citizenship to the children of illegal immigrants. For over a century most Americans, including Supreme Court Justices , believed that the question of birthright citizenship had been settled. That debate is an extension of the controversy that emerged in the wake of the Court’s 1857 decision in Dred Scott v. Sandford , where Chief Justice Roger Taney ruled that no African American could be a United States citizen. (Taney’s decision was reversed by the 14th Amendment, which seemed to establish birthright citizenship.) That was a question that goes back to the founding, and to whether Americans created egalitarian or ascriptive citizenship. Over two centuries after the founding, we are still debating the basic question of what type of citizenship comports with core American values."

"Sullivan’s book is a story that all Americans, and many people around the world, should know – the story of how we moved from a society whose basic law imposed a racial hierarchy to one where the basic principle, although not always complied with, is equality. She wants you to understand the true story of that change. Sullivan tells us how American law became egalitarian, and the story of the NAACP as a key actor in that process. The NAACP’s litigation programme resulted in Brown v. Board of Education . The story of reform litigation is often told as the story of elite lawyers arguing before courts. Sullivan doesn’t just tell you about trials and appeals, she wants you to understand how much work it took on the local level, to produce a landmark Supreme Court victory. Local communities had to organise to support litigation, organisationally and financially. Lawyers had to solicit their support and strategise with community organisers. To get the Supreme Court to decide a case took effort that went all the way down to the grass roots of African American society, and to the white reformers who supported their efforts. It has become fashionable to discount major court decisions – decisions such Roe v. Wade or Brown v. Board of Education , or the Warren Court’s criminal procedure decisions. There is a tendency to say that the decisions were not very effective, and that all they did was mobilise opposition and invite backlash. One thing to keep in mind is that many of these cases had unexpected effects on American society. To give you one example, Dr Martin Luther King Junior was an unknown southern black minister until the Montgomery bus boycott catapulted him to national prominence. The boycott, where black Americans in Montgomery, Alabama, refused to ride segregated buses from 1955 to 1956, eventually forced local authorities to integrate the buses and helped set the stage for the civil rights protests of the 1960s. What is less well known is that the boycotters also filed a lawsuit challenging Alabama’s bus segregation law. That suit reached the Supreme Court just as the local authorities were preparing to squelch the boycott, and the Court invalidated the bus segregation law in a short opinion that cited Brown as authority for the Court’s action. Many people argue that Brown did little to change American life, but without Brown the boycott arguably fails and a very important period in American history plays itself out differently from the history that is now familiar to all of us. Litigation was intertwined with grassroots activism, as leaders like Martin Luther King knew quite well. There are many ways in which landmark Supreme Court decisions affect society. It’s important not to overlook that fact in an era when liberal Americans in particular have become pessimistic about law, and the Supreme Court. That is one of the main points of Sullivan’s book and it is the reason I included it in the list. She shows you that NAACP, from its inception, understood how activism assisted litigation and how litigation could forward the cause of activists. “Litigation was intertwined with grassroots activism, as leaders like Martin Luther King knew quite well. ” They understood they had to mobilise all the way down to the grassroots to support a litigation programme, and that litigation could be a mobilising tool that would help them raise funds and establish local chapters. Sullivan also serves as a reminder that the egalitarian tradition among scholars of American citizenship is alive and well."

"Michelle Alexander begins by reminding us that there used to be laws and statutes that said if you were African American you had a different set of voting rights than other Americans, a different set of unemployment rights than other Americans, and differentiated citizenship rights in many other areas. Many of the basic freedoms we now take for granted were explicitly circumscribed by law. Today, according to Alexander, although we have a purportedly colourblind society, the same thing is happening. But today it is done by imposing differentiated citizenship rights on convicted felons. Because of the war on drugs, according to Alexander, a disproportionate number of convicted felons are black. For example, in many states felons are stripped of the right to vote. So, in her view, we have a system that resembles and is related to the old Jim Crow system of law, but we can’t see this because the “New Jim Crow” doesn’t base its prohibitions explicitly on race. Under American law, only discriminations based on protected categories are prohibited. Those categories are: Race, gender, religion, disability, nationality, and to a much lesser extent sexual orientation. If I want to discriminate against people wearing red shirts, for the most part that discrimination will receive very little scrutiny under American law. Alexander points out that because felons don’t fall into any of the statutory categories that prohibit discrimination, it is perfectly permissible and quite common to discriminate against people who have been to prison. She wants us to see that the people who are in the category of felon, particularly drug offenders, are disproportionately of one race – African American. She reminds us that if we explicitly prohibited a large number of black Americans from voting, or explicitly exempted a large number of African Americans from anti-discrimination laws, we would all see those actions as immoral and illegal. She shows us that American society is doing something indirectly that would be unconstitutional if done directly. Alexander says very explicitly in the introduction of her book that the system of Jim Crow has simply reasserted itself in different form. She doesn’t say why. I’d be surprised if she believes that there is a conspiracy to do this. I interpret Alexander as saying that there is a marked indifference to the basic citizenship rights of African Americans. That indifference allows our society to accept laws that would not be accepted if the people who were being disproportionately disfranchised were white. That is how I would characterise what she’s saying. Her book is also a strongly argued example of scholarship that views the American citizenship tradition as inegalitarian at its core. The New Black is a series of forward-looking essays by legal scholars, political scientists, sociologists, historians, all of whom are trying to forecast and think through newly-emerging questions in race relations. In the 21st century, how should we think through race and politics? How should we think about the Voting Rights Act, and its continued role in American politics? How, if at all, should we modify civil rights laws? How should we write history differently? How should we rethink accepted debates, analyses and categories in light of the fact that we live in a very different era of race relations than existed in the sixties, seventies and eighties, when much our current thinking on this subject was formed? Discrimination against people who have been part of the penal system is a problem with incredibly widespread repercussions, whether or not one agrees with Alexander’s argument in The New Jim Cro w. Its importance probably dwarfs those of all the other civil rights issues of today. We need to find alternatives to incarcerating a large class of our citizens and giving them little opportunity to become responsible members of society, even upon release. We want those who have been in the penal system to have the chance to reestablish their basic citizenship rights. It’s an incredibly complicated problem of law, morality, and public policy of course. There are no easy answers. But if I were a civil rights lawyer looking to attack systematic inequality in the 21st century, this is an issue that would be at the top of my list. This interview was published on April 23rd, 2012"