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Book Review
| Mark S. Weiner, Americans without Law: The Racial Boundaries of Citizenship, New York: New York University Press, 2006. Pp. 197. $45.00 (ISBN 0-8147-9364-9).
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| Mark Weiner, a professor of law at Rutgers, Newark, has set himself a demanding task. "I believe the history of anthropology can shed light on the history of American law, not simply to the extent that the judiciary has relied factually on anthropology in its rulings, but also because the social and civic vision of anthropology appears in broad, iterated patterns in legal doctrine concerning American citizenship" (109). Weiner presents an essay on law and anthropology that is full of insights, enthusiasm, and admonition. Indeed, this book is as much moral tract as social science essay. |
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For "juridical racialism" (3) was never neutral. Judges used or ignored anthropological findings according to their racial views, looking for and finding friends in the writings of like-minded anthropologists. The legal discourse exuded faux modernization—exclusion of the native Americans and Asians "furthered national economic growth . . . helped secure better access to overseas markets ... [and] served the goal of stabilizing domestic labor markets" (4). Juridical racialism defined who was in the circle of citizenship and who was outside. |
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In a clever and often convincing analytical move, Weiner pairs an anthropological writer with a key Supreme Court case from the same era on the same topic. Chapter 1's Native Americans were reduced to subjects of national sovereignty because John Wesley Powell and Justice Stanley Matthews agreed that the Indians had to be lifted out of their savagery. Henry Cabot Lodge, among others, provided the anthropological grist for the Insular Cases to mill into empire. Madison Grant's Nordic supremacy theories neatly fit the immigration acts of 1920 and 1924, keeping out unwanted Asians. By contrast, Gunnar Myrdal's reading of segregation helped the Warren Court to visualize the end of the Color Line. |
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There are some slips in the argument. Weiner has a gift for powerful generalization that does not always serve him well. He is so focused on the academic contribution to racism that he slights its powerful resonance in the folkways of Americans. He relies too much on neologisms and jargon. One page offers "ascriptive anti-liberal hierarchy," "civil myths," "minimal units of social and political theory discourse ... called ideologemes" and "ethno-racial blocs" (6). These he has borrowed from other academics, but they play little part in the story he tells. Nor does he need the "ethno-legal rhetoric" that leads to "patterned oppositions" like "the association of law with human civilization in contrast to the proximity of myth to nature" (8), even if the result is the "materialization of conceptual antitheses" (9). |
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Weiner's desire to find the connections between contemporary anthropological thinking and judicial opinions sometimes leads to curious historical mistakes. At the start of Chapter 1, in order to attach judicial racism to post–Civil War writing about Indians, Weiner announces that "the discourse of juridical racialism formed in the United States only in the wake of the Civil War" (22). Anyone reading Taney's opinion in Dred Scott (1857) would find plenty of evidence of juridical racialism—and in fact Taney had at hand a bookshelf of physical anthropologists' work confirming his own view of the civic incapacity of African Americans. Weiner also backdates the rise of "the newly professional social sciences" to fit his dating scheme. The economists, sociologists, and political scientists did not form professional associations or confer advanced degrees in their specialties until the next generation. The Powells and Lewis Henry Morgans who wrote in the 1860s were gifted amateurs. The "conquest by kindness" of the Indians under the not-so-kind Dawes Act was not invented in the post war period, but echoed Thomas Jefferson's very similar policies, nearly seventy years earlier. The dating of The Insular Cases, from 1901–1904, presumably so that Weiner can focus on Downes (1901), is wrong—the cases continued well into the century. |
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Weiner's determination to focus on certain thematic connections leads him astray as well. For example, though he presents very persuasive evidence that Madison Grant's opposition to immigration was rooted in anti-Semitism, "he was particularly troubled by the growing presence of eastern European Jews" in his own city of New York, Weiner segues abruptly to "then there was his beloved West, threatened by immigration not so much from Europe, but, worse, from Asia" (87). How could that be, when the Chinese Exclusion Acts of the 1880s had shut that door, and the Gentleman's Agreement effectively ended Japanese immigration? In light of these, the treatment of Asians in the 1920 and 1924 Immigration Acts and the Japanese Exclusion Act of 1924 was nasty but gratuitous. The real purpose of the noxious legislation was limitation of eastern and southern European immigration. |
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Weiner concludes that "the opinion of the Court in Brown v. Board of Education effectively signaled the end of the juridical-racial tradition in American cultural history" (131). If that tradition relies on the tie with academic anthropology, the statement is unexceptionable. Franz Boas and advocates of cultural diversity had won the day over earlier ideas of stages of civilization. But if juridical racialism has other supports than academic anthropology—for example, certain kinds of historical writing steeped in Euro-centrism—then it is not surprising that one can find it lurking behind more recent High Court opinions on affirmative action and civil rights litigation. |
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Weiner's own view of this initially pernicious marriage of bad anthropology and narrow-minded jurisprudence is obvious. His contribution is not merely tender-minded liberalism, however. He makes a strong case that one-sided and arrogantly condescending concordances of pseudo-science and legal trimming—think of the defense the Attorney General of the United States made for torturing suspected terrorists—reappear in a myriad of guises. Quibbles and quarrels aside, this is bright and well-informed book and deserves a wide readership. |
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| Peter Charles Hoffer
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| University of Georgia |
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