Risa Goluboff. Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s.

Abstract

To characterize Risa Goluboff’s brilliantly conceived Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s as a history of U.S. vagrancy laws is true, but scants the impressive scope, significance, and innovativeness of both her history and her achievement. Law professors and students are passingly familiar with Supreme Court decisions like Robinson v. California (1962) and Papachristou v. Jacksonville (1972)—the former voiding the criminalization of status (as opposed to conduct) under the Eighth Amendment’s punishments clause, and the latter on due process “vagueness” grounds under the Fourteenth—and Goluboff gives these due attention. But these and other decisions discussed in Goluboff’s work were law-school B-listers, if that: I learned them not in constitutional law, but in specialized courses in criminal law and procedure. Goluboff’s real subject—laws regulating public space by criminalizing, at the near total discretion of law enforcement, “people out of place” (6)—had been unjustly vitiated. First, these laws did not fall into any single legal or constitutional category. Second, in the manifold categories into which they did fall, they were considered entirely unproblematic, part of the ordinary business of responsive and responsible government shouldering its duties to maintain public order and decency: in the rare instances in which such prosecutions elicited constitutional challenge, they were perfunctorily upheld by low-level courts in obscure rulings. And, third, once—suddenly—they were taken as problematic, the laws tumbled like a house of cards, occasioning little of the controversy that makes Supreme Court decisions into landmarks. Goluboff’s story is thus not really about landmark Supreme Court decisions, or about any one area of constitutional law. It is not even exclusively about “law,” in the sense of formal rules, as distinct from the habits, internal procedures, and cultural, sociological, and political frameworks, predispositions, and assumptions of the institutions, like police departments and police courts, that enforce them. Vagrant Nation is positioned at the crossroads where these vectors, more typically examined independently, meet. Goluboff has recognized this as a major deficiency, since the determination of who gets to be in public space without harassment or arrest is no small matter.