>> From the Library of Congress in Washington, D.C.
[ Silence ]   >> Good afternoon and welcome.
My name is Roberta Shafer and I have the pleasure everyday
of serving this institution
as the Associate Librarian for Library Services.
Today's presentation will definitely will not be sorry
that you're not outside in that beautiful day.
You will have no regrets.   I assure you of that.
So I am delighted to welcome you today to a phenomenal lecture
by Professor Risa Goluboff who will--
who is the American Council for Learned Societies Burkhardt Fellow
in the Library of Congress's Kluge Center and she's going to talk
to us today about People Out of Place, The Sixties,
The Supreme Court and Vagrancy Law
but to feel comfortable introducing her, I asked three members
of the library staff, Josephus [phonetic] Nelson, Margaret Wood
and Mack Braun to collect her writings for me
and they produced an amazing pile of material.
You're only seeing part of it now because it became airplane reading
for me on a recent overseas trip and I have to say
that I couldn't bring myself to toss the paper materials.
I wouldn't throw out the Library of Congress book, I promise.
But I even wrote on this one, fantastic article.
And for those of you who regularly read law review articles,
that's not usually the marginalia that one puts
on a law review article, even the older ones.
But why so compelling?   Why so interesting?
Because beyond the initial questions of her research, she really asks us
to think about many very contemporary questions
and very compelling ones.
What is the role of government in our lives
and what can we really expect from government?
What is the role of law in reflecting and indeed implementing
and assuring our national values?
Does our law and legal system match up with some of the romantic views
of American values that poets like Whitman and Thoreau imbued
in us as school children?
What are the relationships among levels of government
and how might local regulation impact life, liberty
and our pursuits of happiness?
Think of occupy Wall Street and then think of occupy Main Street.
Risa has also been a Gugenheim fellow and her book,
shameless plug here, The Lost Promise of Civil Rights,
won the prestigious Hearst prize and it is very,
very well worth the reading.
Prior to assuming her faculty post at the University
of Virginia Law School, where she teaches subjects constitutional law,
civil rights and legal history, Risa served as a law clerk
on the Second Circuit for Gito Calibrasey and then moved right
across the garden here to Clerk Four,
Steven Brayer, on the US Supreme Court.
She's also been a full bright scholar at Cape Town University
and a visiting professor in her native New York at NYU and Columbia.
Her own formal education comes from places you've probably heard of,
Harvard, Yale Law and Princeton for her PhD.
But what makes it so exciting to her here in place with us is
that she epitomizes our goals for the Kluge Center.
She full exploits and exposes our collections across disciplines.
From them she finds new insights and connections
and presents thoughtful conclusions that can inspire dialogue
at all levels of discourse.
Might I also add that she does double duty as a special advisor
to our-- to one of our units here for an upcoming exhibition
that we are quite excited and in the process of planning,
commemorating 50 years--
yes, 50 years of the Civil Rights Act of 1964.
You may be asking yourself, how far we've come on that.
But what I love is that she even mentions libraries in the text,
not just footnotes of her writings.
And to be quite frank with you and shameless about it, to a librarian,
seeing those kinds of messages is like being
or having an ad at the Super Bowl.
When Risa asked when being awarded the All University Best Professor
Prize at the University of Virginia if she could live
in another era, what would it be?
I guess you're all going to guess right.
She answered, the sixties.   But oh, my goodness.
We are so lucky and I am so happy that fate put her in our times.
Please welcome, Professor Risa Goluboff.
[ Applause ]
>> I don't know that I can live up to
that introduction but I will try my best.
I first want to thank everyone for coming and I want
to thank the Kluge Center and especially Carolyn Brown
and Mary Lee Reker [phonetic] and Deidra Scott,
I don't know where she is now, for organizing this lecture and also
to all the wonderful folks in the manuscripts division
who have helped me with the Supreme Court papers that I've been looking
at and all the wonderful people I met
at the library who've taken an interest in me and in my work
and supported it, not least, Robert Shafer, Elizabeth Pugh
and David Mow [phonetic] and thank you for coming.
I also have to say, I see colleagues and former students here,
which is also really exciting and lovely.
So I gave a talk recently to a group of legal historians
about my methodological approach to constitutional history,
which I call the new constitutional history.
The old constitutional history focused almost exclusively
on the Supreme Court of the United States
and I obviously still focused a lot on the Supreme Court
and the manuscripts have been amazing
in helping me identify what's interesting about the Supreme Court,
but I don't focus exclusively on the Supreme Court.
And one key characteristic of the new constitutional history,
in my view, is that it's not as linear
as the old constitutional history was.
It doesn't start and end with the Supreme Court.
It includes it, but it also includes other judges,
other levels of government, lawyers, litigants and other laypeople,
social movement participants and organizations, academics,
politicians, journalists, et cetera.
So in this talk that I gave to these legal historians,
what I talked about was how hard it is to write a chapter of the book
that I'm working on because I never know where to start.
If part of your ideal is to include a lot of different groups
in the lawmaking process, then it makes you want to start
in several places at once, with the litigants, with the court,
with the lawyers, with all the different kinds of people.
If you can image that I have trouble starting a chapter,
you can imagine how difficult it is
to start a 30-minute talk about an entire book.
So it makes you want to start in several places at once.
So I'm tempted to start this way,
in 1953 the Supreme Court took its first vagrancy case
to determine whether this vagrancy law was unconstitutional.
The case came out of 1949, Los Angeles
and the defendant was a man named Isador Edelman
who is a soapbox orator in Los Angeles' Perching Square.
He had communist views, although he had been kicked
out of a communist party for being too contrarian,
and he had been arrested 63 times in short order for things like begging,
soliciting funds, distributing hand bills and my personal favorite,
defacing a park bench, this was a thick concrete park bench,
by standing on it.
So then one day he gets arrested for vagrancy.
Vagrancy laws and related laws like loitering
and suspicious persons laws that all fold into vagrancy laws
for the purposes of this talk, came to the United States
for the colonies for the [inaudible] and Elizabethan England.
Most states and localities had vagrancy laws for centuries
and there were two hallmarks of these laws
that made them particularly useful
to law enforcement authorities and local officials.
The first is that they were status offenses.
So most laws that you can think of criminalize conduct.
A person is convicted of burglary
because he has burglarized, not so vagrancy laws.
Vagrancy laws criminalizing being a particular kind of person.
Let me give you an example.
A Jacksonville, Florida ordinance in 1972 read as follows in part,
I'm not reading the whole thing, roagues [phoetic] and vagabonds
or disillude persons who go about begging, persons who use juggling
or unlawful gains or plays, common drunkards, common nightwalkers,
thieves, pilferers or pickpockets, traders and stolen property,
common railers and brawlers, persons wondering or strolling
around from place to place without any lawful purpose of object,
habitual loafers, disorderly persons shall be deemed vagrants.
Somebody described that to sounding
like a casting call for an Elizabethan play.
But the key part here is not just all those characters,
but that they shall be deemed vagrants.
They are not convicted of vagrancy violations,
they shall be deemed vagrants meant that the police could arrest people
on the basis of who they were and they would be convicted
on the basis of who they were.
>> The second theme that made vagrancy laws particularly useful,
as you can see from the law that I just read you,
is that they were very vague and very broad and, right,
think about what is it to be a habitual loafer or to wander
about from place to place without any apparent object and it gave,
vagrancy laws gave officials virtually unlimited discretion
to arrest anyone at any time.
And for centuries, that was how officials employed vagrancy laws,
not just against people you would think of as vagrants
but against lots of different kind of people.
They used vagrancy laws variously to regulate and extract labor
from the resident poor, to exclude and punish poor strangers,
to incompacitate apparent threats to the social order,
to prevent the commission of incipient crime,
to enforce racial segregation and subordination
and to discipline minorities, desistance
and non-conformists of all strives.
Isador Edelman fit into this last category.
He was a communist at the height of the Cold War and a section
of the California vagrancy law that he was arrested and convicted
under was about being a dissolute person.
Dissolute meant lawless, prior arrests meant lawless.
Because Edelman had been arrested for begging,
standing on a park bench, et cetera, he was deemed lawless,
therefore dissolute and therefore a vagrant.
By the way, he had a nine day trial in a California Court,
just people testifying about his views
and anyway, it was quite a circus.
So the Supreme Court agrees to hear the case
and it's the first time they consider a vagrancy law
but they dismissed it as improvidently granted in the lingo
of the court they digged it, D-I-G, dismisses improvidently granted.
Over the next 20 years they continued to take vagrancy cases.
They took more than a dozen.
And either digged them, dismissed them as improvidently granted,
or find ways to avoid the central constitutional question.
They were deeply interested in this question but they couldn't seem
to resolve it so they kept taking the cases
and getting rid of the cases.
Perhaps surprisingly, the warrant court, the liberal court
that transformed the constitution in so many ways, was not the court
to ultimately invalidate vagrancy laws.
It was not until Warren Burger, appointed by Richard Nixon,
was chief justice in 1972, that the Supreme Court finally invalidated
the laws.
Although the justice who wrote the opinion, William O. Douglas,
was a holdover, not from the warrant court but from the FDR court.
He was a hold over.
He'd been one of the longest running justices and he was one
of the most liberal justices of the warrant court.
The case in which the court struck
down a vagrancy law was Papachristou v. City of Jacksonville.
And in that case there were 9 defendants of all types,
but the most prominent of the defendants were two white women
and two black men on a double date in Jacksonville, Florida in 1969
who were convicted of vagrancy by prowling by auto.
Now you may have noticed that was not in the list
of ways one could be a vagrant in Jacksonville in 1969,
but the police were not deterred.   In fact, one of the-- someone
at the police station called Margaret Papachristou's parents
while she was being booked and asked if they knew
that she was out with a black man.
So anyway, that was the case that struck down a vagrancy law.
In my book and this talk is about what happened between Isador Edelman
and Margaret Papachristou.
Between the 1950s and the 1970s, vagrancy laws move
from legitimacy to illegitimacy.
Now not everyone thought that they were legitimate before the 1950s,
and in fact, they were critics of them and especially those regulated
by them didn't always think they were legitimate.
But most legal professionals thought that they were different
from most laws being status crimes,
but that they were still valid constitutionally.
And of course, not everyone after 1972 thought
that they were illegitimate or invalid but the vast weight
of legal professional authority was that they were invalid, and by 1971
and 1972, the Supreme Court strikes them down in a see change
of their constitutional status.
The question of my book is how did that change happen?
How does something that's legitimate for centuries become illegitimate
over the course of 20 years.
And a secondary question, and one that I'll get to later
on in my talk, is what happened in the aftermath.
A big part of the answer to how this change happened was the social
movements of the 1960s.
Vagrancy challenges came from, here comes the list, African Americans
and other civil rights activists, communists, labor union members,
poor people, Beats, hippies, gay men, lesbians
and other sexual minorities, women, Vietnam War protestors,
student activists, young urban minority men
and other political and social disitants.
The folks who had been regulated by vagrancy laws are now organized,
assertive and for a variety of institutional reasons, have lawyers.
And they find that vagrancy laws are obstacles to their other goals,
whether they be sexual freedom,
racial equality or political protest.
It's not a coincidence that representatives of most
of the major social movements of the period were involved
in challenging vagrancy laws.
If you can't walk down the street without a fear of being arrested
on sight simply for who you are,
then your other rights are hard to vindicate.
Another way of putting this point is that over the course
of the 1960s it became clear that police officers were
as much involved in regulating folks who were now being liberated
as were legislatures or other executive officials and were equally
in need of interventions.
So one big part of the answer to my questions is the '60s happened.
It's about the social movements of the 1960s.
Another part of the answer to the question of how this happened comes
from other legal developments of the period,
which are obviously deeply intertwined
with the social movements of the period.
There were new visions of the first amendment
and free speech during this time, of policing, criminal justice
and the protection of defendants be processed rights of the role
of the substantive law and maintaining crime control as opposed
to social control, of labor and poverty, the causes of poverty
and people's right to choose how to participate in the labor market,
of pluralism, non-conformity and privacy
and of anti-discrimination and equality.
My book shows how all of these various strands of legal,
social and [inaudible] history come together in the vagrancy attack,
and it does two things, two things
that I think historians have not done before.
The first is that it constructs a history of American vagrancy laws,
and the second is that it uses vagrancy laws history as a lens
into a legal history of the 1960s [inaudible].
That's introduction number one.   As an introduction I think
that would have been fine as far as it went.
It represents a good narrative framing of my book, but it only goes
so far towards representing the story that I'm telling.
It's too linear, it's too focused on the supreme court,
it's too triumphalous, good, the end of vagrancy laws triumphs over evil,
discriminatory policing and it's too, in my view,
still too reminiscent of the old constitutional history.
So let me try again.   Introduction number two.
I'm going to start with some folks you've probably never heard of.
You've already met Isador Edelman and Margaret Papachristou,
but I want you to meet some others.
Shuffling Sam Thompson, he was a handyman and a junk peddler,
he was an alcoholic, he was African American.
People described him as elderly even though he was only 47 at the time
of his case, but he had lived a hard life.
He was the target of constant police harassment,
usually at the Louisville bus station where he had to go in order
to catch his bus to go home to the outskirts of town.
Because of the harassment at the bus station, he started waiting
for his bus at a tavern called,
and I didn't make this up, The Liberty End Caf.
It's at the end of Liberty Street in Louisville.
The cops went there looking for him and they arrested him for loitering.
It was his 55th arrest in pretty short succession
as he ate the macaroni and shuffled his feet to the jute box,
hence his nickname, Shuffling Sam Thompson.
There's a long colloque during the argument at the Supreme Court
about the nature of his shuffling, whether it was dancing or not as if
that was central to the case.
Meet also the Reverend Fred Shuttlesworth, "a notorious person
in the field of Civil Rights in Birmingham"
as Justice Ford has described him.
He was a cofounder with Martin Luther King,
Jr. of the Southern Christian Leadership Conference,
he was arrested for loitering for refusing to vacate a street corner
on which he was talking with a few colleagues during a boycott
of downtown Birmingham department stores in the Spring of 1962.
Meet Joy Kelly, a young hippie in Charlotte, North Carolina.
She had rented a house as a crash pad for her hippie friends
and herself and they face police harassment
at all hours of the day and night.
The police arrested 18 people for vagrancy including Joy herself,
while they sat inside their home.
She was told that if she ever returned
to the house she would be arrested again.
Meet Steven Waynewright, a Tulane law student unlucky enough
to resemble a murder suspect who went out for a bite to eat
in the French Quarter one night.
The murder suspect had a born to raise hell tattoo on his arm
and when the police asked Steven to bare his arms so they could check
if he had such a tattoo, he refused being a law student who likes
to stand on his rights, and also he had a skin condition
that made him embarrassed and he didn't want
to bare his arm on the street there.
So when he refused, he was arrested for vagrancy.
Finally, meet Martin Hershorn, he had dressed as a woman
since he was 17 years old.   He was a hair stylist in Manhattan.
The police were seeking him out for another alleged crime,
which turned out he had not committed, and they found him
in his home wearing only a half slip and a bizarre.
They arrested him under a 19th century New York law
that made anyone masquerading in public a vagrant.
>> These folks are obscure, they're unconnected
and they are very different from one another.
They're white and black, men and women, gay and straight,
arrested in public, in private, arrested for political protests
and seeming like a murderer, arrested for their sexuality
or their poverty or their long hair.
They also made very different constitutional claims, free speech
and association, criminal procedure claims,
cruel and unusual punishment claims, involuntary servitude claims,
racial discrimination claims, privacy claims
and other fundamental rights claims.
Their differences show the kaleidoscope
that was vagrancy regulation, its ubiquity and its flexibility.
It's use as an ever-present police tool to keep
in their imagined places.   So that's introduction number two.
It's better methodologically, in my view, it gets at the history
of vagrancy law by identifying how that law functioned
in the everyday life of everyday people, change comes,
as historians like to say, from below,
from regular people recognizing that enforcement
of these laws was potentially problematic
and seeking redress from lawyers.   It's better, but it's not yet right.
It's too disconnected, it's too desperate.
Where are the sinues, the networks, the connections other
than my own conceptualization that bring them together?
So here's my third attempt, introduction number three.
Many of us are familiar, you get the sense where this is headed,
many of us are familiar with the story of Brown versus Board
of Education, a band of lawyers
and the NAACP methodically challenge segregation and won.
The NAACP's campaign
against segregation often provides a model of legal change.
It's discussed these days a model
for the marriage equality litigation campaign among others.
In my first book, I showed how this was oversimplified in many ways.
But I still saw how the core of the NAACP campaign remained.
That's not the case in this book.
This book is also about a legal challenge,
a challenge to the constitutionality of vagrancy laws
but it's not coordinated in New York or in Washington.
It was an incremental, loosely networked, correlated set of actions
by a whole host of linked, but not centrally connected actors.
Vagrancy cases popped up everywhere.
It wasn't the case that one person or one organization identified
as a problem and then [inaudible] to make their vision happen.
It was a result of the aggregate energy of lawyers
across the country facing down similar but different laws
in similar but different circumstances again and again.
If the Brown model of a litigation campaign is like the 1950s prom,
organized, fixed, known, even if contingent in many
of its particulars, the vagrancy challenge is more
like a 1960s happening.
No one really planned it, the guest list was unwritten,
the entertainment self-created, the location, duration
and content relatively spontaneous and open.
At first I was troubled by this lack
of central coordination I had been taught to find the center.
But now I realize that this is a very different model,
but an equally important one.   The vagrancy challenge,
the challenge that provokes 1,000 reported cases in a single decade
without a centralized coordinated litigation agenda reveals a legal
regime that is so pervasive, so centrally important
to the maintenance of a certain kind of order and hierarchy
in American society that every social movement
of the era runs smack into it and tries to push it over.
So this introduction that I'm talking about now pushes us
to examine where those connections are, how lawyers came
to show judges the vagrancy problems of desperate people
and desperate circumstances
in desperate places were actually connected.
So for this introduction, I want you to meet the lawyers.
First, meet Al Wearen [phonetic] and Fred Oakrand [phonetic]
who represented Isador Edelman, our soapbox orator.
They were both affiliated with the Southern California ACLU
and their collective experience with vagrancy laws lasted over 50 years.
Al Wearen began experiencing vagrancy laws and challenging them
in the 1930s when he represented California farm workers
who were trying to organize against growers who were using vagrancy laws
to arrest them and stop them organizing into unions.
Oakrand, his experience with vagrancy laws continued into 1983
when he represented a defendant
in a case called Colland [phonetic] v. Lawson
where an African American man was arrested repeatedly for loitering
in a white neighborhood in L.A.
and the Supreme Court struck down that law.
So between them, they span a half century
of vagrancy challenges involving questions as wide-ranging as labor,
free speech and racial discrimination.
Meet also Earnest Besick.
He was the head of the Northern California ACLU for many years.
Where Wearen and Oakrand faced different vagrancy defendants
at different times,
Besick simultaneously experienced the vagrancy law
as regulating multiple different kinds
of people during a single moment.
So in 1950 San Francisco, Besick has a whole archive called vagrancy
holders that are just called vagrancy law and he was
at that time representing Beats, gay men and lesbians
and African Americans, all against this single law and he saw,
as many would after him, how police were using vagrancy laws in all
of these different areas in order
to regulate people and keep them in place.
Finally, meet Anthony Amsterdam.
He published a paper on why vague laws were unconstitutional while
still a law student that he says he wrote in two weeks.
It was his student note.   I believe him.
He calls it a pot boiler, that would structure much of the lawyerly
and judicial thinking about vagrancy laws for decades.
He suggested that the laws were too vague
because they didn't give enough guidance to people
about what actions were criminal and they didn't give enough guidance
to law enforcement about how to not--
how to avoid arbitrary or discriminatory enforcement.
Amsterdam moved back and forth between practice and the academy.
He worked very closely with the NAACP Legal Defense Fund.
He also worked with the ACLU and he also produced a number
of other law review articles that were key to the vagrancy challenge,
including one in which he called Vagrancy Laws and Other Laws,
Crimes of Obnoxiousness and Displeasing Police Officers.
And he, Anthony Amsterdam is one of the engines
that made the vagrancy challenges run.
He moves from movement to movement, organization to organization,
legal argument to legal argument and he--
his name pops up in so many cases.
You know, once you start looking into the cases, you realize, huh,
he actually consulted on that Charlotte case
and he actually consulted on these other cases.
And so he's one of the people who really serves as one of the centers
of a network, the ACLU National Office
in [inaudible] serves another.
So lawyers began with these discrete problems brought to them
by discrete people but they began to see connections between these cases
and they began to build on the arguments about the prodian nature
of vagrancy laws and about the commonalities
of the various groups regulated by vagrancy laws.
So that's introduction number three, and again,
it works as far as it goes.
It shows how lawyers act as mediators,
although they also act as gate keepers.
They act as the centers of networks, as movers of information, norms,
politics as well as law across actors, regions
and aspects of the legal process.
But lawyers are still not the whole story.
Each of these beginnings is a false start for the real story has
to put them all together.
It has to move not only across social movements and types
of vagrancy victims, but also up and down the legal process
from defendant to lawyer to justice and back again.
Not only this, but it also has to incorporate,
as I said at the beginning, social movements, legislatures,
judges and legal scholars.
It takes a book to tackle such a task.
It takes a book to show how the Supreme Court gradually comes
to the view, that the lawyers on the ground increasingly understood
that vagrancy laws were a key part of the establishment that must fall
in order for 60 social movements to achieve their goals.
It's hard to do in a talk.
So in each chapter of the book, I show a new group
of laypeople confronting how they are regulated by vagrancy law
and how legal professionals increasingly see connections
across difference.
It was not, in 1953, obvious that vagrancy case
of a communist soapbox orator, a skid row alcoholic, a hippie,
a civil rights leader, or a genuine transvestite,
as Martin Hersham [phonetic] was called, had much in common.
But that is what the lawyers argue and even in cases
without first amendment implications, they raise a specter
of free speech violations.
The same goes with race, with privacy
and with other rights violations.
So as I said, over the course of 20 years,
the court keeps taking these cases and then finding ways to get rid
of them, in part I think because of how complex
and how many tentacles going in lots of directions.
But what the lawyers keep trying to show is the analogy and commonality
across these different categories of cases,
despite how different they might seem in other ways.
By the time Papachristou in 1972 comes to the court,
the court had come across a lot of different types of vagrancy victims
and Papachristou itself collected a bunch.
In additional to Margaret Papachristou and her friends,
the lawyers in the case who were public defenders
in Jacksonville really wanted to show that these laws were used
against lots of different types of people.
So in additional to the racial angle,
which I think really got the case taken
and was the most controversial, they show people looking for jobs
who are arrested for loitering, they show an NAACP organizer
who is arrested for vagrancy, they show young men who seem to be
up to no good but haven't actually done anything criminal-- excuse me.
They tried to show the court much of the gamut of vagrancy regulation
in brining in that single case and they succeeded.
So the Supreme Court struck down a vagrancy law because the justice is,
I think, ultimately saw these commonalities as well,
especially Justice Douglas who wrote the opinion.
And the court said that vagrancy laws were no longer legitimate.
So having spoken for some 20 minutes and given you three introductions,
I've told most of the story.
>> So, by failing to choose which introduction to tell,
I have told a lot of it and I'm ready to conclude, but of course,
that's premature, right, Papachristou is not the end
of the story and this goes to something Roberta said
on the introduction, right, this goes to the question
of what happens afterwards.
So I started with a question, the book starts with a question
of how legal change happens over this 20 year period,
how does this legal regulation go from being legitimate
to illegitimate, and that's the question I have spent
heard answering.
But the book attends, at least in small part, to Roberta's question,
to this final question, what does that change mean,
what were its implications?
I've spent years avoiding that question.
Not really avoiding it, but cogitating about it and trying
to figure out what I think that the answer is.
I think it would really take another whole book to answer
that question once the vagrancy regime is gone,
it leaves in its wake so many fragments
and so many different kinds of laws they're as difficult
as telling the story of vagrancy's demise is it is at least easier
than telling the story of its aftermath.
But this book will gesture at the aftermath
and I thought I would offer you my tentative thoughts.
The beginning of the answer to what happens after has to return
to methodological questions, and here I'm still--
I'm more strong about my conclusions.
I'm not yet tentative.
I'll tell you as I get more tentative toward the end
of the conclusion.
So just as I intend the book to offer a form
of constitutional history that crosses boundaries
by including more afters than the usual, I realized early
on that the book also needs to cross other sub-disciplinary boundaries
within history.
Parts of this story have been told but it's never been told as a story.
It's always been parts of other stories
and therefore its been multiple and its been fragmented.
In part I think this fragmentation results
from a fragmentation among scholars in the way scholars tend
to look at problems usually.
A friend of mine likes to say that whenever I talk about my project,
everybody wants to own it.
So some people say, oh, I know what your project's about.
It's about public space.
Oh, I know what your problem's about, it's about policing.
And it's about all of those things, right, but I've resisted allowing it
to become about any one of those things because scholars have divied
up these stories in lots of different ways, by litigant,
by you talking about civil rights movement, or you're talking
about skid row, are you talking about free speech,
by constitutional claim, are you challenging all the basis
of equal protection or criminal procedure and due process claims
or privacy claims and by historical sub-discipline,
are you a labor historian or a historian of sexuality or of poverty
or of race or of geography.   But no one of these perspectives,
no single scholly vocabulary can account for the story.
Everybody's been looking at different parts of the elephant
and so seeing different things and I'm trying
to look at the whole elephant.   I think a history of vagrancy--
of vagrancy law only becomes visible once one recognizes as the litigants
and the lawyers and ultimately the judges did, at least to some extent,
buy despite different emphasis and vocabularies,
vagrancy cases involved a common claim, a common insistence
on either their right to make their own place in the world,
the faultiness of the whole idea of place or both.
Just as identifying this common claim enables the construction
of a narrative about the transformation of vagrancy law,
so true it facilitates the telling of the legal history of the 1960s.
Social and cultural historians of the 1960s have described the era
as movement of movements, as overlapping moments
of social change, but there's not a lot of law in those histories
and legal histories of the 1960s have tended to be narrow,
they tend to focus on specific legal campaigns, biographies,
case histories and it's understandable as I've been learning
as I struggle to finish my book.
The sixties are huge and they're unwieldy and they're sprawling.
But I'm hoping, and I still have this hope,
that the lens of vagrancy law enables me
to integrate the 1960s while still attending
to differences among the various marginal groups
and their interactions with police power.
So I show how law function to expand cultural pluralism and tolerance,
the growth of a national legal culture, intruding on normals
of local policing and local government, I show the recognition
that law enforcement as much as other parts of government engaged
in the kind of discrimination rights violations
that '60s social movements condemned,
and I show that the same social movements condemned police behavior
and police regulation of people on the streets for who they are.
So what does this methodological point that my history
of vagrancy laws and my history--
my legal history of the 1960s through the lens
of vagrancy laws is only made possible by taking vagrancy law
on my own terms and not limiting it to any single academic framework,
what is that methodological point have to do
with what actually happened in the law and in the world
after the supreme court struck down vagrancy laws in 1972?
My answer is, a lot.
The story of the downfall of vagrancy laws is a story
of lay people and legal professionals coming
to see the many varieties of vagrancy law as linked,
a story of trying to challenge those varieties of regulation together.
And though they succeed in Papachristou
and that success was real,
I don't want to understate it, it was still partial.
In part, it was partial because some groups were left out of those
who got to walk around on the street without fearing
that they would be arrested for what they looked like or who they were.
In particular, the dismantling
of vagrancy laws did not increase toleration for sexual minorities,
and in fact, it could be said to have entrenched certain forms
of discrimination in part, but only in part the partialness
of the vagrancy laws success resulted from the way
that the supreme court invalidated laws.
And this is something that I talk about in the article
that I think reverted into a reading, which was called A Dispatch
from the Archives, and was all about papers that I found
in Justice Douglas' papers here at the Library of Congress.
So what I learned when I read those papers was
that Douglas' original draft talked about vagrancy laws
as unconstitutional because they violated fundamental individual
rights, rights to decent, to nonconformity,
to lead a life of high spirits.
But the decision, as it came down, did not base itself
on the violation of rights.
Instead, it said what the Burger Court said in 1972,
was that the law was too vague and that legislatures needed
to write more specific laws in order to replace them.
What that meant was not that you couldn't have vagrancy laws,
it was that you couldn't have these very,
very vague broad vagrancy laws.
So legislatures went back to the drawing board
and they began identifying specific types of conduct that would regulate
at least some of the same people who were being regulated before.
So you get new laws targeting potential criminal suspects,
loitering with a criminal purpose, drug possession laws,
stop and frisk traffic stops,
these replaced what vagrancy laws had been doing
to allow police officers to arrest people
that they thought were criminals but hadn't yet committed any crime.
There were new laws targeting the homeless, panhandling laws,
sleeping in parks, sleeping on benches, those kinds of things.
Police also began to use laws that they'd used in the past
but they just used them more now that seemed liked they were likely
to be more constitutional, laws prohibiting prostitution,
public drunkenness, disorderly conduct, breech of the peace,
and they constructed new legal forms to respond to new developments
like the deinstitutionalization of the mentally ill at the very moment
that the supreme court undermined law enforcement methods for dealing
with mentally ill people on the streets, as well as the increase
in drug traffic and especially the crack cocaine epidemic together
with the rise of gang violence.
The question is, what did this proliferation of new laws
and new legal forms of regulation mean for the vagrancy law story.
And I think that the answer to that question has to draw
on the methodological concerns I was just discussing.
In my view, and I'm getting more tentative,
our lack of a single scholarly, a single narrative
and a single scholarly vocabulary are failure to treat the history
of vagrancy law as an integrated whole rather than as an adjunct
to some other form of history has led us
to misunderstand both the nature of the vagrancy law challenge
and the nature of the vagrancy regulation itself.
As to misunderstanding the nature of the vagrancy law challenge,
the proliferation of these various forms of legal regulation has meant,
and I think been accompanies by a fragmentation
of social movements in the post 1972 period.
Each group challenges the particular regulations
that effect its constituents, defense lawyers,
criminal defense lawyers are not protesting panhandling regulations
and homeless advocates don't really care very much about loitering
with the intention of trafficking narcotics.
When you look backwards from this fragmentation,
I think it's been hard to see that there was a time
when different kinds of lawyers, legal aid lawyers
and free speech lawyers and the NAACP
and the ACLU all had a single target.
They had lots of other targets too,
but the vagrancy laws provided them with a single target.
And I don't want to overstate the commonalities here,
but I think they were real.
They had a single target and they had common legal arguments
that they marshaled against it.
So the end of the vagrancy laws and the proliferation of all these types
of social movements and legal challenges has meant
that we've eclipsed our ability, I think, to see the commonalities
that existed in the pre-1972 period.
What people think is that-- okay, so that's my [inaudible].
In terms of the vagrancy regulation itself, some folks look
at these new laws and this proliferation of new laws after 1972
and conclude that nothing much has changed.
The challenge to the vagrancy laws really was kind of meaningless.
If not vagrancy laws, police would use other laws, right,
they would use all these other things
and that there's no real difference
between traditional vagrancy laws and these new things.
And I think that that's the wrong way to think about what's happened
since 1972 and not only because I'm writing a book about it
so obviously, I think it matters.
>> But I have three reasons why and then I'll close.
I have three reasons why, in order of ascending importance
and descending certainty on my part why that's the wrong way
to think about it.
So first, I think that the new regulations are more transparent
and more politically salient than the old laws were,
and that actually changes their substance.
The beauty of the vagrancy law in the past was
that when a new threat arose, police were free to do
with it whatever they wanted to.
Now you got to pass a panhandling law and you've got to pass a law
to deal with drug crimes and you have to go to a legislature
and you have to make your arguments and I think that that--
the fact that these laws can't fly under the radar
as much is-- makes a difference.
That's not to say that police always act according to what laws say.
I don't want to overstate that, but I do think
that there's some difference.
The second reason why I think it's wrong to think of these forms
as legal-- of legal regulation as simply replacements
for vagrancy laws is that nothing really can replace traditional
vagrancy laws.
The very nature of vagrancy laws was that they were ubiquitous,
they were prodient, they were flexible and they were doing all
of this work under the radar.
So all of the laws that I just mentioned are only
partial replacements.
No matter how they try, they can't actually do what it is the supreme
court said you can't do, which is write a tremendously vague law
and give police total discretion on how they want to enforce it.
Finally and most tentatively, I don't think we should actually think
of these new forms of legal regulation entirely as replacements.
I think at least some parts of them are vestiges,
that vagrancy laws splintered but they didn't actually disintegrate
so we still have these various kinds of loitering laws.
I still get calls from people in practice who have clients
who are being arrested under very traditional vagrancy laws and then
of course when I help them try to challenge them, the police--
the prosecutors say, oh, forget it.
We're not going to prosecute that case, which is how they stayed
on the books for this long
because when a challenge comes up, they don't do it.
They let that person go and wait for the next time.
And there are actually still cases in which laws
that were invalidated long ago are still being enforced.
There's been some publicity about that in New York lately.
And this points, I think, to more continuity
than a sharp break and then a replacement.
Vagrancy laws ubiquity actually made it really hard to dislodge,
especially without a workable vocabulary, either a historical
or legal workable vocabulary for understanding vagrancy law.
And in this sense I don't think Justice Douglas' decision is
to blame for the proliferation.
It's not clear that there was any single way the court could upend
these laws that would do enough
to really dislodge this vagrancy regulation because it did so much.
And I think that the lack of both the legal vocabulary
and historical vocabulary has made parts
of what vagrancy law did really invisible
and therefore really wiely.
So my post optimistic then, it's not that I think
that 1972 represented a successful triumphant end to vagrancy laws,
it's my hope that my efforts to put together the many pieces
of this story to find a vocabulary for describing the whole element--
I'm sorry, the whole elephant can enable us
to see how vagrancy laws not only pervaded some historical legal
landscape, but also how they operate today.
And I think that partially because we don't have a vocabulary
and we've struggled to have a vocabulary there's been no way
to address the whole problem.
So now that we're reconstructive vagrancy laws own history
in language that's not limited by one aspect of that history,
we can see fully, I hope, how it functioned in the past,
how it continues to persist today, and how we need to think,
speak and argue about it in the future in order
to further dislodge it going forward.
Thank you.   I apologize.
[ Applause ]   >> So we do have some time
for questions even though all those introductions
and that very complicated conclusion to go along.
[ Silence ]   [ Inaudible ]
>> Yeah, so the question-- I don't know if you could all hear it,
was why the change in Justice Douglas' opinion.
So that's what this essay that I wrote was about.
And basically the answer is Rowe v. Wade.
This is being deliberated at the same time as Rowe.
And Douglas writes the opinion
and Brennan writes the memo and says, I love it.
It's great, but do you think it's maybe going to turn some people off
of Rowe because, right, Rowe, one of the things Rowe does and I'll talk
about this in my second to last chapter,
is talk about fundamental rights as being about privacy,
even though abortions aren't actually that private.
They take-- usually take place in medical facilities,
but they talk about it in terms of privacy.
And what Douglas is suggesting is
that you have fundamental rights to public behavior.
You have fundamental rights to be a certain way in public
and that looked a lot different.
And at this moment that the justices are trying to figure
out what fundamental rights are going to look like.
And so Brennan is worried that Douglas' incredibly expansive view
of fundamental rights is going to turn some people off.
One last thing on that,
Lint [phonetic] Greenhouse wrote this book
on becoming Justice Blackman right
after the Blackman papers opened here and one of the things
that she shows in that is that black men originally began the Rowe
opinion on the basis of the [inaudible] pro vagueness.
And so they actually switch and vagrancy starts out about rights
and ends up about vagueness and Rowe starts out about vagueness
and ends up about rights.
And I actually think that they are real [inaudible] implications
for that in the way we think about what fundamental rights are.
>> I am curious if your book also [inaudible] creative use
>> Yes. So occupy Wall Street will definitely have a place
in my conclusion.
There are so many things, when I wrote a list.
I think there are about 35 things that people have suggested
to me are the proper legacies that I should discuss in my last chapter,
but occupy Wall Street is one of them and not least
because in New York several occupy Wall Streeters were arrested
under the same anti-masquerading law
that Martin Hershorn [phonetic] was arrested under because--
so yes, it will definitely be a part of the last chapter.
[ Inaudible ]
>> Yeah, so one thing that I sadly didn't manage to fit
into my 30 minute talk is the perspective of those
who are enforcing the vagrancy laws and who feel the need for them.
And it's definitely the case that the book is mostly from the point
of view of the challengers, but I really do try
to understand what role vagrancy law was playing
and how people understood its importance,
and security was a big part of that, especially by the late '60s.
So the chapter that I'm writing now is about Vietnam War protests
and about race riots and, you know, there's a real sense
that the police are under siege.
They are under siege in a real way from a lot of folks
and that the whole-- I mean, on the one hand I don't think
that had you asked somebody in 1950, what do vagrancy laws do
or what is police discretion to arrest people on the streets.
Do you-- I don't think security would have been their first answer.
And I think that the answer of security is in part the success
of the social movements of the 1960s, right.
So by 1968, social movements have gotten bolder,
they've gotten more violent, they've gotten more militant and radical
and that's part of why I think police officers
or local governments were sort
of mainstream middle class folks feel the need for security.
But I also think that part of why is because the hierarchies
that had kept people in their place are crumbling
and they're breaking down.
And so a kind of security that's not a physical bodily security
but a kind of cultural and social security,
I think is really falling apart.   But one thing that I think is--
there is continuity in is that at least
by the late '60s people are talking about the need for security.
Earlier I feel like they're talking about keeping the peace,
which is hierarchical in its own right.
As Laura Edwards has shown recently in an early American book
and they're talking about order
but they're not talking as much about security.
And I think it's when the order starts to fall apart
that security becomes much more the question.
[ Inaudible ]
>> Great. So on the lay people there are a number
of different kinds of sources.
So one is newspaper accounts, which often tell you a lot more
than published cases do about what actually happened,
a second is social movement organization papers, so I've looked
at the NAACP papers and the ACLU papers
and obviously those are filtered too.
But again, Earnest Besig has handwritten notes of interviews
with people so that gives you some entry.
There's another one before I got to my fourth, but I'll think of--
if I can think of it again.
Another one is I've done some interviews.
It's hard to find the laypeople.
It's a lot easier to find the lawyers for the obvious reasons.
So I've interviewed Steven Waynewright, the Tulane law student,
I've interviewed probably four or five different defendants
or plaintiffs if they were challenging the laws affirmatively.
So that's another way and then just doing as much, you know,
biographical research on particular people as I could.
So right, following the plaintiffs or the defendants and trying to find
as much about them as I can because they usually leave more of a trail.
I've also read a lot of primer source material of social scientists
and anthropologists and folks from the period as a way of trying to get
in to see how policing on skid row worked and how, you know,
accults were treated and those kinds of things.
So there's kind of the-- there's the macral [phonetic] level laypeople,
there's the microlevel laypeople
and there are the social movement organizations.
But it is much harder and, you know, I think it's so much easier to sit
with the supreme court papers and you know who they are
and you've got a-- one
of the wonderful things [inaudible] cases is they have a beginning,
a middle and a end and you can write a narrative about it.
And so you have to do a lot more both police work and construction
in order to do the laypeople.
And the about the national, I struggled with this.
So one way that I've dealt with it is each of the chapters starts
with a case and, not a case but usually a case, but--
and so I've tried to look at the places where those cases are from,
which are very different.
So there's Louisville, Kentucky, there's San Francisco, there's L.A.,
there's Cincinnati, there's Jacksonville, so they've been--
I did purposely choose the cases to some extent and I try
to be attentive to place as I'm writing each chapter
and I really think that it is a national story and it gets played
out differently on the local level at different places
so I try to bring that out.
But part of what makes it a national story is
that everybody's doing it, you know.
And it's not an urban story and it's not a rural story.
You know, I've got one case from Plaquemines Parish, Louisiana.
You know, it's not urban and it's not rural and it's not north
and it's not south and it's not east and it's not west.
So I'm trying to show that, but I try and I don't know
that I'll succeed but I do still try to make sure that as I come
to a place, I figure out what are the politics of that place
and what's going on in that place and why are the police using this
and how does it work and so I try to be attentive to them.
>> We have time for one more.   [ Inaudible ]
>> So I try to situate it, but I don't really do more than that.
And it's interesting because when I first started the project I thought
about whether it would be a more transnational project and I think
that it's really hard to, methodologically it's really hard
to both go up and down the layers of the legal process and go
out horizontally to the international level and it seemed
to me that I would really have to flatten the story
that I was telling at one level or another.
It didn't have to be the supreme court level.
It could be a social movement story, right, but I would have
to flatten it to one or two layers in order to move out internationally
and I didn't want to do that.
So I will try to situate it within, you know, [inaudible] Spring
and all the-- that kind of thing plus the use
of vagrancy laws is not limited to the United States.
They're used all over the place and so I will nod to those things
but I don't think I will have the opportunity to do more than that.
[ Inaudible ]
>> Right. No, I think that's right and one of the things
that I've just been reading about is the use of the National Guard in,
you know, in quelling campus disturbances and things like that,
and the way people felt differently about the National Guard
from the local police but I see your question is obviously much bigger
than that, but it's just [inaudible] about lately,
but it's a good question.   Thank you.
[ Applause ]
>> This has been a presentation of the Library of Congress.