Risa Goluboff is the Arnold H. Leon Professor of Law, Professor of History, and Dean of the Law School at the University of Virginia. She has brought us a deep reaching and comprehensive account of the constituent elements of the developments of the 1960s.
Not often enough do we recognize the bravery of people who yank the tops off garbage cans to reveal their inner contents. Professor Goluboff has undertaken to examine these contents, show their role in loosening the grip of the law and the many movements that were advanced as a consequence.
Professor Goluboff’s book Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s presents a well-thought-out examination of how long-standing, purposely vague laws were changed and our society was consequently transformed.
In accepting a Lillian Smith Book Award for 2017, Professor Goluboff observed as follows:
I am honored to receive this award and to share it with Patricia Bell-Scott. I have long been an admirer of Lillian Smith, and I try to continue in her tradition. Lillian Smith didn't think that it was incumbent upon someone else to change the world. She thought it was incumbent upon her. It takes a lot of people to think that, and to act on that, in order for the world to change.
I seek to write about people who do that like Lillian Smith - not necessarily as effectively or as publicly. Nevertheless, I hope that, in revealing the histories that we didn't know before, and in identifying people who I think are also heroes, we can be inspired to think about what the world can, be even when it seems so settled – inspired to think about what roles each of us each can play.
Conventional wisdom suggests that legal change happens somewhere else, in places such as the Supreme Court, and that it is effectuated by Supreme Court justices. I don’t believe that is true, in the main. Admittedly, Supreme Court justices play a role, and a very important one. However, cases don't come to the justices without people who bring them, and change doesn't happen until people identify the need for it. That’s what I try to write about in my scholarship.
My book is fundamentally about how legal and social change happens: In this instance, how is it possible hat an entire category of laws that had been on the books for literally four hundred years (transplanted from Elizabethan England to the American colonies) can go from being legitimate in 1952 to being illegitimate in 1972? In twenty years, the mere blink of an eye in historical terms, these laws went from being ubiquitous – regulating all kinds of people – to being unconstitutional and illegitimate.
Since, fortunately, most people today don’t know much about vagrancy laws, let me tell you about them, and about some of the people who I think are the heroes of my book.
Vagrancy laws that came to the colonies from England, and similar laws such as loitering and “suspicious persons” laws, were laws that made it a crime to be a certain kind of person - often a poor person, but not always. They made it a crime to be immoral or idle or wander about with no apparent purpose. So there were two hallmarks of vagrancy laws that made them particularly attractive to law enforcement officers.
The first hallmark is that they were status offenses, so if you think of most of our laws you have to be accused of doing something before can be prosecuted (e.g. stealing or killing). Vagrancy laws were unusual in that they made it a crime to be a certain kind of person. For example, the law that eventually came to the Supreme Court in 1972, that his was on the books in Jacksonville, Florida in 1972 (and was like many laws all across the country) begins: “rogues and vagabonds, persons who use juggling, or dissolute persons who go about begging, persons who use juggling or unlawful games or plays, common drunkards, common nightwalkers, thieves pilferers or pickpockets, traders in stolen property, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, shall be deemed vagrants” - not commit the crime of vagrancy. I live on a college campus. “Wandering or strolling around from place to place habitual loafers?” These are things we all engage in all the time. But this law sanctioned arrest by the police of virtually anyone at any time. So the first hallmark is arresting people for who they are, and not for what they do.
The second hallmark is this unbelievably broad and unlimited language of these laws, conferring virtually unlimited discretion to arrest anyone. It seems that one could always find a reason. For centuries, officials employed these laws against anyone who is out of place in any way, and not just those you would think of as “vagrants.”
Vagrancy laws were used variously to regulate and extract labor from the resident poor; to exclude poor strangers from a locality and punish them; to incapacitate any threat to the social order; to prevent the commission of “incipient crime” (i.e., before a crime has been committed); to enforce racial segregation and subordination; and to discipline minorities, dissidents, and nonconformists of all stripes. These uses were ubiquitous and they were quotidian. But by 1972 these laws were considered unconstitutional.
In this 20-year period these laws went from being completely legitimate to being illegitimate. Granted, there were people before the 1950s who thought they were illegitimate (particularly those arrested under them), but most legal professionals judges lawyers scholars they thought they were fine, even though they were different from most other criminal laws. Granted, also, that not everyone after the 1970s thought that these laws were illegitimate (especially those who deemed them necessary for public safety, and who immediately began seeking replacements for them upon their unconstitutionality).
Nevertheless, when the Supreme Court struck these laws down, it reflected a sea change in their constitutional status. The Court’s decision didn’t initiate the change, as the court was a little bit late to the party. Several other courts had already struck such laws down. Several police departments had already stopped using them. Several legislators were already looking for alternatives, because it was clear that these laws were no longer compatible with basic American values. Nevertheless, the Supreme Court's imprimatur made the invalidity of these laws that very very clear. The question explored in my book is: How did that change happen? The answer: it happened because people - regular people, everyday people, acting alone, acting in groups acting in social movements, acting with the help of lawyers – made that change.
Let me tell you about some of them.
One was Isador Edelman, a soapbox orator in Los Angeles's Pershing Square in the late 1940s. He had communist views (though he'd been kicked out of virtually every organization he'd ever joined including the Communist Party), and but for his communist views in Cold War America he was arrested 63 times in quick succession. Because of those arrests he was then arrested for vagrancy. For being a “dissolute person,” he had committed crime therefore he was “lawless,” “dissolute,” and a vagrant.
There was a nine day trial for Isador Edelman on his vagrancy charge, and his was the first case that came up to the Supreme Court, prompting the Court to start thinking about whether vagrancy laws were unconstitutional. However, in 1952 the Court couldn't quite figure it out yet, and they didn't answer the question. In fact, the Court considered more than a dozen cases between 1952 and 1972 before finally grappling with the problem and striking down this category of laws.
Then there was a man known as “Shuffling” Sam Thompson. Sam Thompson was an African-American handyman, junk peddler, and alcoholic who lived in Louisville, Kentucky. He suffered constant police harassment, usually at the Louisville bus station, where he had to go to get a ride to his home on the city’s outskirts. He stopped going to the Louisville bus station when his counsel suggested that he not go there, and he went to a bar near bus stop, located at the corner of Liberty and West Streets. It was at this bar, ironically named the Liberty End Café, that the police went looking for him and arrested him for the 55th time while shuffling his feet to the music on the jukebox and eating macaroni.
Then there was the Reverend Fred Shuttlesworth, who was described as “a notorious person in the field of civil rights in Birmingham” in his Supreme Court case on this issue. Rev. Shuttlesworth was a co-founder with Martin Luther King, Jr. of the Southern Christian Leadership Conference, and 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 department stores in his hometown of Birmingham in the spring of 1962. He paused between 12 seconds and a minute or two for that conversation.
There's also Joy Kelly, a young white hippie in Charlotte North Carolina who rented a house as a crash pad for her hippie friends. They suffered police harassment at all hours of the day and night. Finally the police arrested eighteen people who were in the house for vagrancy, including joy herself, while in the house for which she had a lease. She was told that, if she ever returned to the house, she would be arrested again.
There was Stephen Wainwright, a Tulane law student, who was unlucky enough to resemble a murder suspect when he went out for a bite to eat in the French Quarter. The murder suspect was white and young like him and had a tattoo on his arm that said “born to raise hell.” The police asked him to bare his arm on the street, and he refused (in part because, as a law student, he knew his rights - or so he thought - he was a little belligerent about them, perhaps. He raised hell but, also, he didn't want to bare his arm. When he refused, though the police were looking for a murderer, they arrested him for vagrancy
And then there was Martin Hirschhorn, who had dressed as a woman since he was seventeen years old. He was a hairstylist in Manhattan. The police found him in the hotel room in which he lived, wearing only a half slip and a brassiere, and arrested him under an old New York state law that made anyone “masquerading in public so as to conceal their identity” a vagrant, notwithstanding that that he was not in public, notwithstanding (as his lawyers argued, in one of the first gender identity cases on record) that he was actually expressing his identity, rather than concealing it, by dressing in what he viewed as his true gender.
These folks were obscure. They were not famous. They were unconnected, and they were very different from one another. They were white and black; they were men and women; they were arrested in public and private, for political protests and for seeming like a murderer. They were arrested for their sexuality, their gender identity, their poverty or their long hair. The constitutional claims that they made in the cases that followed were also very different from one another. They were about free speech and association, about the rights of criminal defendants, about cruel and unusual punishment, about involuntary servitude, about race and poverty discrimination privacy, and other fundamental rights. Their differences show the kaleidoscope that was vagrancy regulation, its ubiquity and its flexibility, its use as an ever-present police tool to keep people in their imagined places.
It is no coincidence that they represented most of the progressive social movements of the 1960s: 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 protesters, student activists, young urban minority men, and other dissidents. Folks who had been regulated by vagrancy laws were now organized, they were assertive, and they had lawyers. They realized that vagrancy laws were obstacles to their other goals, whether their goals were about sexual freedom, racial equality, or political protest.
So this is not a coincidence. If you cannot walk down the street as yourself in order to attain the other goals for which you strive, then those other goals are pretty hard to vindicate. There was a growing realization that police officers and executive officials, as much as legislators and laws, hindered the social movements of the 1960s, and equally required intervention.
As much as my book is about the individuals who put social change into motion, it is also about the lawyers who heard them, and who took their cases. They understood that the law was changing, and this had to be a part of that change. When I first started writing my book I was miffed, because I couldn't find a single lawyer, or the single organization that propelled this as a legal reform movement. I had in mind the NAACP’s highly focused vision, and the prosecution of that vision on the road to Brown v. Board of Education. My first book noted how that's oversimplified: There wasn't one road. There were many paths, and choices were made about those paths. But there was still a core idea that that the NAACP pursued.
However, I never found that here. What I found instead were lawyers - some affiliated with the NAACP, some affiliated with the ACLU, some with other organizations, some on their own, all over the country - coming up against this problem, realizing that it was a problem, and trying to advocate for their clients. At first I thought it couldn’t be as important if there wasn't a legal reform movement that looked like Brown. Eventually, I realized that how valuable this was: This problem became so apparent to so many different people because of all of the social movements that were happening at the time.
It's actually quite empowering to realize that each of us has this power. Every lawyer has this power. We each have the power to put in motion. We each can reach out to any lawyer. It's not only Thurgood Marshall, and it’s not only organizations such as the NAACP Legal Defense Fund that are able to make change.
I'll mention just a couple of the lawyers, for they are a key part of the story. They made the lived experience of the law, and the oppressions of the law, cognizable to other lawyers and legal professionals, to legislators and to judges, and they brought people into the formal mechanisms of the law and enabled that change to happen.
These were people like A. L. Wirin and Fred Okrand, who represented Isador Edelman, our soapbox orator. They were affiliated with a Southern California ACLU as early as the 1930s. A. L. Wirin represented farmworkers who were arrested for vagrancy when they tried to organize against California growers. As late as 1983, Fred Okrand was involved in a U.S. Supreme Court decision striking down a California loitering law that replaced its older, more traditional, vagrancy law that was used against an African American man who frequently walked around white neighborhoods and was arrested for being out of place. Between them A. L. Wirin and Fred Okrand spanned 50 years of vagrancy legislation and litigation
Ernest Besig was the head of the Northern California ACLU. In the 1950s, Besig simultaneously fielded fielding complaints from the Beats, from African-Americans, and from gay men and lesbians He was one of the people who first recognized the wide range of uses for vagrancy law, and who started to think systematically about it. He maintained meticulous file folders, which helped me think systematically about it and ask the question: Who did come under this law, how was it used, and how did people start to organize against it.
Then there was Anthony Amsterdam, who published a paper while he was still in law school, on why vague laws, like vagrancy laws were unconstitutional. It is still one of the most cited law review articles ever published. Immediately upon graduation, Jack Greenberg reached out to him, noting how his article could help with the growing number of sit-in demonstrators and protestors whom Greenburg and his colleagues were defending against these vague laws. Even as he pursued a career as a law professor, Anthony Amsterdam became a kind of adjunct to the NAACP Legal Defense Fund. He brought his vagrancy expertise to bear in the civil rights struggle, for Vietnam War protesters, and in Criminal Procedure cases.
My book seeks to construct a history of vagrancy laws and their downfall, and then to use that history as a lens into the history of the 1960s and all of the different people and movements that made the changes that we associate with the 1960s happen. In telling those stories I moved from the people who experienced the law, to the people who advocated for them, to the judges who decided the cases, and back again. I ultimately sought to show that the vagrancy laws were a key part of the maintenance of the establishment that existed, and that the fall of these laws was a key part of changing what that looked like, and enabling people to choose their own places, rather than being put in places by that establishment.
The pivotal moment came in 1972 with case called Papachristou v. City of Jacksonville. Among the defendants were two were white women and two African-American men who were out on the town in together in a car Jacksonville in 1969. They were pulled over and charged. The arrest sheet recited that they were charged with vagrancy for “prowling by auto,” which was not in the ordinance, but no one cared because that was the nature of vagrancy laws. In fact, someone called Margaret Papachristou’s parents from the police station and asked if they knew that their daughter was “out with a Negro tonight.” It was clear why they were pulled over in 1969 - two years after Loving v. Virginia, it was clear that anti-miscegenation laws were unconstitutional, but the police were using vagrancy laws as a stand-in to do the kind of racial regulation that they couldn't do directly.
Justice William O. Douglas wrote the opinion. He had long fancied himself a kind of vagrant himself. His memoirs include perhaps apocryphal stories about riding the rails with the hobos and the Industrial Workers of the World, about singing Woody Guthrie songs, and Hallelujah, I'm a bum!” He had vagrancy folders in his files, and he actually was an honorary member of the Hobos of America, which named him a Knight of the Open Road, and whose correspondence he meticulously kept. His opinion reads as something of an anthem for the 1960s. He had been watching vagrancy laws and the challenges to them for 20 or 30 years, and when this moment arrived, he made the most of it. After almost forty years as a Supreme Court justice, this was the opinion that he wanted read at his funeral. This fact alone illustrates how much vagrancy was about this shift that happened in the 1960s.
At the end of the book I address in broad strokes what has changed and not changed since then. I've been thinking a lot about it lately. I am the Dean at the Law School at the University of Virginia, and my home is in Charlottesville. When you watch groups of people spewing hate and intolerance identify themselves as “the new free speakers” and seek police protection, it really turns the way I think about my book, and the relationship between police and protesters on their heads.
It has been shocking and jarring to think about how my book applies in this day and age, and I'm still working to reconcile recent events with what I already know. I vacillate between two general thoughts: (1) On the one hand, I like to think that events such as the recent events in Charlottesville are a late and ultimately futile protest against a society that has undergone fundamental change for the last 60 years, in fits and starts, and incompletely, in the direction of the equality that Lillian Smith dreamt of. (2) On the other hand, hand I worry that this is not the case, and that we are instead seeing the beginning of a new and growing movement to undermine what we have already accomplished, and what Lillian Smith and millions of others have been fighting for.
Either way, it is my hope that Vagrant Nation, in the tradition of Lillian Smith, Eleanor Roosevelt and so many more, teaches us that each of us has a role to play in making the future we want to see - in shaping the law, in creating equality, and in treating each other with the full humanity that we all deserve. I, for one, stand ready to do just that. I know that many of us, with Lillian Smith fresh in our minds, will stand ready as well.