Law, Activism, and Democracy in the Midwest, 1890–1970

Type: Paper Session

Tags: Gender; Legal and Constitutional; Midwest

Abstract

This panel contributes to the recent renewal of Midwestern history by centering on legal change, activism, and democracy in the region between 1890 and the 1970s. The relationship between law and democracy is fraught, with law sometimes serving as a path and other times as an obstacle. Legal institutions tend to be sites and legal language a vocabulary through which people seek to extend and to limit democratization. This panel argues that there is a distinct Midwestern legal history relevant to this dynamic that has been understudied. By bringing attention to several revealing episodes in Midwestern activism and legal change, the panel contributes to this growing regional awareness. In so doing, the panel also challenges and complicates common claims and themes in legal history that are rooted in the field’s tendency to generalize based on other regions. Nate Holdren’s paper argues that Illinois was a site of innovation in labor and employment law; a case study of this state clarifies larger patterns of contestation over the democratization of employment. Elizabeth Katz contends that historians and legal scholars have overlooked Midwestern states’ novel experiments in family law, innovations that directly challenge conventional wisdom about courts’ supposed reticence to regulate family affairs. Emily Prifogle demonstrates that women in the rural Midwest engaged in activism and legal mobilization and had their own vibrant political culture. Taken together, the panel emphasizes the persistence of regional and local variation in legal change and demonstrates the promise of devoting greater attention to the Midwest.

Papers Presented

Women’s Political Activism in the Post-War Midwest

While the history of the women’s rights movement of the long post-WWII era is well-trodden ground, historians have payed relatively less attention to Midwestern women’s activism, and almost no attention to rural women’s activism during the same time period. This paper considers three sites of rural women’s activism in the Midwest to consider what made their activism both distinct from, and a part of, the activism of their peers on both coasts. The first site of study is the rural church women of the Michigan Migrant Ministry, whose outreach to migrant laborers was complicated by rural norms confining the scope of their reform efforts from the 1940s to the 1960s. The second site of study is the work of one woman, Margery Burns, in her efforts to halt rural school consolidation legislation in Minnesota the late 1960s and early 1970s. As a Republican, she mustered together both liberal feminist activism with conservative norms of education to raise awareness of the value and vibrancy of rural schools. And finally, the third site the battle for the ratification of the Equal Rights Amendment in Indiana. In this example, a largely bipartisan group of women used largely subdued tactics through local political channels and state election efforts to overcome the efforts of Phyllis Schafly’s group, supported largely by rural Hoosier women, to stop the ERA and secure ratification in the early 1970s. Each example shows how rural Midwestern women utilized the tactics familiar to scholars of coastal second wave feminism, but illuminates how their activism was bounded and shaped by rural Midwestern norms of religion, gender, and race.

Presented By
Emily A. Prifogle, University of Michigan Law School

Civic Subjects, Economic Objects: Illinois Miners and the Contested Legal Construction of Class

Legal scholars have long argued that law constructs society and culture. These arguments often bundle together two discrete claims: law participates in making social structures, and law influences how ordinary people understand and act in response to social structures. This paper argues that greater attention to social class can clarify the differences between these claims, and why those differences matter. The paper argues the point through investigation of Illinois coal miners and both state and federal laws governing coal mining in the early to mid-twentieth century. Illinois’s mining industry and miners’ union were both highly important within the larger U.S. economy, labor movement, and networks of experts discussing labor and employment law. As a result, Illinois coal mining shaped an emerging regime of law governing the employment relationship. Through this case study, the paper argues that labor and employment law over time has oscillated between three ways of conceptualizing working class people: as legitimate civic actors with rights to govern parts of society (typically through trade unions, but also mechanisms like state commissions), as vulnerable populations in need of state protection because they are incapable of effective self-advocacy, and as economic objects to be rationally allocated. In addition, the paper examines the degrees to which miners themselves shaped, departed from, and saw themselves within the terms of the law. Taken together, the paper shows the Midwest as a site of innovation within the legal, economic, and cultural construction of class in the twentieth century United States.

Presented By
Nate Holdren, Drake University

The Forgotten Family Law of the Midwest

Histories of family law in the United States typically depict tentative state legislatures and conservative judiciaries slowly and begrudgingly improving the treatment of wives upon marital dissolution. Financial provision for broken families, historians assert, was mostly a private matter in which lawmakers were loath to intervene. This paper identifies and interrogates a body of family law particular to the Midwest that challenges this account. It posits that existing scholarship provides a mostly compelling analysis of the family laws of the Northeast, and especially New York, but overlooks crucial regional distinctions. In the late nineteenth and early twentieth centuries, Midwestern legislatures experimented with novel statutes to resolve family financial litigation in a manner they deemed more equitable. They also invented court officials to investigate claims and oversee proceedings (most notably “divorce proctors”), belying scholars’ characterization of courts as standoffish about marital interventions. Midwestern supreme courts tended to be more open to these doctrinal and institutional innovations than their brethren in other regions. Indeed, in some instances Midwestern appellate judges furthered the progressive intent of legislatures, whereas Northeastern judiciaries construed liberalizing statutes as narrowly as possible. Journalists and law review contributors recognized these regional variations, and such commenters usually preferred their local jurisdiction’s approach. Legal traditions, social norms, and other factors fostered this unique and mostly forgotten family law of the Midwest.

Presented By
Elizabeth D. Katz, Washington University in St. Louis School of Law

Session Participants

Chair: Amy Dru Stanley, University of Chicago
Amy Dru Stanley is a historian of the United States, with particular interest in law, capitalism, freedom and unfreedom, human rights, the relationship between the household and economic life, and the historical experience of moral problems. Her work has appeared in scholarly books and journals, as well as in the New York Times, the Nation, Dissent, Slate, and Jacobin. She has received the Quantrell Award for Excellence in Undergraduate Teaching and the Faculty Award for Excellence in Graduate Teaching and Mentoring. In 2018, she was the jury chair for the Pulitzer Prize in history.

Presenter: Nate Holdren, Drake University
Nate Holdren is a legal historian of American capitalism. He has published an article in Enterprise & Society and has a forthcoming book, both on the history of employee injury law in the late 19th and early 20th century United States. He is especially interested in how Marxist legal theory and historical inquiry into the history of capitalism can enrich one another. He holds a PhD in history from the University of Minnesota and is an Assistant Professor in the Program in Law, Politics, and Society at Drake University.

Presenter: Elizabeth D. Katz, Washington University in St. Louis School of Law
Elizabeth D. Katz is an Associate Professor of Law at Washington University in St. Louis. She is legal historian whose work focuses on family law, criminal law, the legal profession, and the operation of state courts. She received her Ph.D. in History from Harvard University and her B.A., M.A., and J.D. from the University of Virginia. Professor Katz’s scholarship has appeared or is forthcoming in the Stanford Law Review, the University of Chicago Law Review, the Virginia Law Review, and the William & Mary Journal of Women and the Law. Her research has been supported by the William Nelson Cromwell Foundation Early Career Scholar Fellowship awarded by the American Society for Legal History; an Albert J. Beveridge Grant from the American Historical Association; a fellowship from the Stanford Center for Law and History; the Carrie Chapman Catt Center’s Prize for Research on Women and Politics; a fellowship and grant from Harvard’s Center for American Political Studies; and a fellowship in the Harvard Kennedy School of Government’s History and Public Policy Initiative in the Ash Center for Democratic Governance. In 2009, the American Society for Legal History named Professor Katz a Kathryn T. Preyer Scholar.

Presenter: Emily A. Prifogle, University of Michigan Law School
Prifogle is a Faculty Fellow at the University of Michigan Law School. Her primary fields of interest are in social and legal history and include the study of place, local governance, gender and sexuality, and race. Prifogle’s current book project is transforming her dissertation, “Cows, Cars, and Criminals: The Legal Landscape of the Rural Midwest, 1920-1975,” into a monograph. The work argues that the legal remaking of rural communities was a central feature of twentieth-century America. The project utilizes case studies to examine critical topics that historians and legal scholars have framed as quintessentially urban issues—land use and zoning, policing and prosecution, education equality, labor and economic opportunity, local community organizing and advocacy, and infrastructure and mobility—and reveals their manifestations in rural geographies, economies, and social norms. The result is a new legal history that tells not a story of rural decline but a story of the rural Midwest in a constant process of transformation along lines of class, race, and gender.

Prifogle received her BA in history and art history from Indiana University, a MSc in comparative social policy from Oxford, a JD from the University of California, Berkeley, and a MA and PhD in history at Princeton University. She also clerked for Judge David Hamilton on the Seventh Circuit. She is a co-founder of both Women Also Know History and Women Also Know Law. Prifogle’s interdisciplinary background continues to inform her scholarship and interest in public history, as well as other research that is focused on recovering marginalized voices within twentieth century social movements.

Commentator: Evan Zoldan, University of Toledo College of Law
Evan C. Zoldan is a professor of law at the University of Toledo College of Law, where he researches the role that legislation plays in policy creation. His work has considered the historical origins of the Constitution’s Ex Post Facto Clause and the circumstances surrounding the nineteenth century incorporation of special legislation prohibitions into state constitutions. His article on targeted legislation, The Equal Protection Component of Legislative Generality, was selected for presentation at the Yale / Stanford / Harvard Junior Faculty Forum at Yale Law School to represent the category of Constitutional Law: Theoretical Foundations. His work on legislation has been cited by both federal and state appellate courts and in briefs, treatises, and scholarly works. Professor Zoldan is also a coauthor of a casebook on State and Local Government Law. He has provided legal commentary for national media outlets including the Washington Post and Bloomberg News. Professor Zoldan is a past chair of the Association of American Law Schools Section on Legal History and the Section on Legislation and Law of the Political Process.