Vagrant Nation Research Articles

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

Review: <i>Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s</i> by Risa Goluboff

Constitutionalization as Statecraft: Vagrant Nation and the Modern American State

This essay showcases the contribution of Risa Goluboff's Vagrant Nation (2016) to one field of scholarship that the book scarcely mentions: the historical literature on the American state. In Goluboff's account of the fall of the “vagrancy law regime” in the “long 1960s” I see vital questions about the nature of the modern American state and the endurance of older, seemingly antithetical modes of governance. Given the trends that state-focused scholars have illuminated—for example, toward centralization of power and the protection of individual rights—what allowed for vague, locally enforced vagrancy laws to survive so late into the twentieth century? What ultimately triggered their demise? In mining Vagrant Nation for answers, this essay also urges scholars to contemplate “constitutionalization” as a form of statecraft. In giving a constitutional law framing to the grievances of “vagrants,” federal courts reinforced key tenets of the modern American state, including the supremacy of national law over competing legal orders and the desirability of being a rights-bearing member of the nation-state. Simultaneously, these court decisions left open other, more “modern” possibilities for regulating the kinds of people (poor, nonwhite, unpopular) whom vagrancy laws once ensnared.

The Vagrancy Law Challenge and the Vagaries of Legal Change

This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.

The Vagrancy Law Challenge and the Vagaries of Legal Change

This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade’s upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.

Making Sense of the Messy Sixties: Introduction to a Review Symposium on Risa Goluboff's Vagrant Nation

This essay provides a summary and critical appraisal of Risa Goluboff's Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, a book that interweaves the stories of an eclectic cast of characters who were the targets of vagrancy law prosecutions with stories of the lawyers who challenged these prosecutions. In charting the demise of what she terms a “vagrancy law regime,” Goluboff provides insights on the major social and political developments of the 1940s through the 1970s, including the labor movement, the black freedom struggle, the antiwar movement, and the sexual revolution. Goluboff's most significant achievement is her ability to identify in seemingly scattered challenges to vagrancy law a coherent and historically significant episode of constitutional change. Although I question whether the book delivers on its promise to reframe the way we understand the “long 1960s,” Vagrant Nation nonetheless offers a model of how to integrate social history and doctrinal history into a compelling narrative of constitutional change.

Writing Vagrant Nation

In my response to reviews by Christopher Agee, Christopher Schmidt, Karen Tani, and Laura Weinrib, I explain some of the challenges of writing Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s. In particular, I explore the challenge of creating narrative coherence without losing the essential multiplicity of the story or compromising my methodological commitment to constitutional history across the many actors involved in the legal change process. I ultimately constructed such coherence on three levels: narrative, thematic, and doctrinal. Narratively, I settled on a larger role for the Supreme Court than initially anticipated, while still de-centering the Court substantively, methodologically, and causally. I located thematic coherence largely in a new vision of the “sixties.” The decade that emerges was marked by a common claim against the idea that everyone had a proscribed place from which they could not escape; an evolving if incomplete effort to disentangle difference from danger; and the crucial role of both sympathy and empathy in the success of the challenge to vagrancy laws. Though numerous legal arguments ran through that challenge, doctrinal multiplicity—the refusal to flatten or narrow the complex set of arguments and harms that vagrancy cases presented—became its own form of coherence.

From the Vagrancy Law Regime to the Carceral State

The recent burst of scholarship on policing in 1960s America has produced two literatures that have often spoken past one another. One literature has taken a presentist perspective and has found in the 1960s the roots of the current carceral state. A second literature has characterized the 1960s as a period in which a century-old policing system collapsed. This essay uses Risa Goluboff's Vagrant Nation to tie these two literatures together, arguing that the terms on which Papachristou (1972) tore down the “vagrancy law regime” prompted and channeled the growth of the carceral state. The elimination of vagrancy law encouraged the state to expand the institutional and political reach of the police, ultimately helping produce a police power that was more intractable.

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

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

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

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.

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

A Russian-born soapbox orator preached left-wing politics in 1949 Los Angeles. One decade later, a black man who worked odd jobs and occasionally drank in public waited for a bus in Louisville. A bohemian played guitar in Dupont Circle in Washington, D.C. In 1969 two young blonde women rode in a car, heading to a Jacksonville nightclub with their African American male companions. Across time and space these individuals shared a common experience: arrest for vagrancy. For centuries, laws criminalizing vagrancy had served as “the go-to response against anyone who threatened … to move ‘out of place’ socially, culturally, politically, racially, sexually, economically, or spatially” (p. 3). Risa Goluboff's Vagrant Nation tells the fascinating story of how this legal regime lost its constitutional validity in just two dramatic decades. Featuring a lively narrative, strong argumentation, and acute analysis, the book offers an integrated history of the social movements that composed the “long 1960s.” Vagrancy regulation constrained the freedom of poor people, civil rights activists, hippies, prostitutes, and gays and lesbians. These movements targeted vagrancy laws in fighting for the right to transgress social and spatial boundaries. Litigants built on each other's legal arguments and established precedents that held utility for other groups. Goluboff thereby reveals a common thread unifying social struggles often treated by historians as fragmented. Her analysis offers an important picture of advocacy focused not on particular identity characteristics but rather on the limits of state power to regulate social difference.

Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s. By Risa Goluboff (New York, Oxford University Press, 2016) 471 pp. $34.95

<i>Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s</i>. By Risa Goluboff (New York, Oxford University Press, 2016) 471 pp. $34.95

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

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

Vagrant nation: police power, constitutional change, and the making of the 1960s

In 1950s America, it was remarkably easy for police to arrest almost anyone for almost any reason. The criminal justice system — and especially age-old law of vagrancy — served not only to maintain safety and order but also to enforce conventional standards of morality and propriety. A person could be arrested for sporting a beard, making a speech, or working too little. Yet by end of 1960s, vagrancy laws were discredited and American society was fundamentally transformed. What happened? Vagrant Nation answers that question by showing how constitutional challenges to vagrancy laws shaped multiple movements that made the 1960s. Vagrancy laws were so broad and flexible that they made it possible for police to arrest anyone out of place: Beats and hippies; Communists and Vietnam War protestors; racial minorities and civil rights activists; gays, single women, and prostitutes. As hundreds of these vagrants and their lawyers challenged vagrancy laws in court, laws became a flashpoint for debates about radically different visions of order and freedom. In describing those challenges, Vagrant Nation offers a new, integrated history of civil rights, peace, gay rights, welfare rights, sexual, and cultural revolutions. It also demonstrates how ordinary people, with help of lawyers and judges, can change meaning of Constitution. The Supreme Court's 1972 decision declaring vagrancy laws unconstitutional continues to shape conflicts between police power and constitutional rights, including clashes over stop-and-frisk, homelessness, sexual freedom, and public protests. Since downfall of vagrancy law, battles over what, if anything, should replace it, like battles over legacy of sixties transformations themselves, are far from over.