Race, Space, and the Law
This reading list explores the law’s historical role in the constitution of space, place, the body, and various other modalities of belonging in the U.S. The focus lies primarily on integrating legal history texts into architectural scholarship to examine race (and its intersections) and to trace changing legal notions of property, territory, nationhood, and citizenship. A range of scholarship, from disability studies, public health, architectural history, legal history, environmental justice, whiteness studies, immigration studies, gender and sexuality studies, animal studies, and housing and urban studies in addition to recent literature on prisons, militarization, and waste is included.
These texts offer a legal lens to study the ways in which the law excludes and segregates the racialized other. These texts also introduce the intergenerational and intersectional effects of enforcement of terra nullius, or the right of first possession, trespass and vagrancy laws, nuisance laws, zoning, eviction, alien land acts, covenants, redlining, utility easements, right-of-way, etc., in American urban, suburban, and rural landscapes.
The readings are organized under two major themes that explore municipal ordinances, state law, and federal laws through policy, court cases, and landmark Supreme Court decisions.
The first theme, Exclusion, is concerned with the ways in which the Right of First Possession, Trespass Laws, Vagrancy Laws, Nuisance Laws, Zoning and Eviction excludes and “others” undesirable groups.
The second, Segregation, looks at Alien Land Acts, Zoning Laws, Restrictive Covenants, Historic Districting, Redlining, Utility Easements, and Right-of-Way isolates and divides space.
Note: Thank-you to Dr. Karen Tani and Dr. Rebecca McLennan at UC Berkeley for their graduate seminar, Bodies, Boundaries, and Belongings (Spring 2017), which helped me make connections between some of these texts and the discipline of architectural history.
Creatures of Empire: How Domestic Animals Transformed Early America
Oxford University Press
This text is concerned with the theme of exclusion in terms of Right of First Possession and Trespass Law. Historian Anderson places the role of livestock in colonial America at the center of her analysis of European exploration, colonization and westward expansion. Her focus reimagines encounters and interactions of Algonquin-speaking indigenous people, English colonists, and non-human actors like livestock brought to New England and the Chesapeake colonies of Virginia and Maryland in the 17th century. Chapter Three: ‘The Company of Cattle: Domestication and Colonization,’ probes a range of ideological constructs and legal claims (including the Roman law res nullius, America as boundless space, legal claims to empty territory, first right of possession, natural vs. civil rights and English trespass law) and the tensions that arose from disputes around conflicting definitions of livestock as movable property and enclosure in the New World.
The Ugly Laws: Disability in Public
New York University Press
This text is concerned with the theme of exclusion in terms of Vagrancy and Nuisance Laws. Chicago ratified the American Ugly law in 1881. It read: “Any person who is diseased, maimed, mutilated, or in any way deformed so as to be unsightly or disgusting object, or an improper person to be allowed in the streets, highways, thoroughfares, or public places in the city shall not therein or thereon expose himself to public view, under the penalty of a fine of $1 [about $20 today] for each offense (Chicago City Code 1881).
Schweik, a disability studies scholar, offers a history of the American ways of identifying, representing, knowing, correcting and disciplining "unsightly street obstructions" through her study of municipal law in American cities from 1867 onward. She argues that the so-called ugly law was part of an arsenal of tools embedded in municipal codes to control and regulate "deformed, diseased or maimed persons." Schweik reads these "unsightly beggar ordinances" in their historical relation to policing of gender and sexual transgression to nativism, anti-semitism, and anti-immigration and also to state-imposed racial segregation and thus offers a more complete and intersectional study of urban exclusion during the City Beautiful Movement.
Whiteness as Property
Harvard Law Review
This text is concerned with the theme of exclusion in terms of Rights Frameworks. In this seminal article, Harris traces the evolution of whiteness from color to race to status to property. In doing so, she highlights a revised and reconstituted notion of property by the courts. She first examines forms of racialized property through studying relationships between Native American land seizure and through relationships between slavery, race, and property. She offers a doctrinal analysis of affirmative action cases (Mashpee Tribe v. Town of Mashpee; Regents of UC v. Bakke; City of Richmond v. J. A Croson Co; and Wygant v. Jackson Board of Education) that underscore how white privilege was legitimized as the status quo. This article is an excellent accompanying piece for architectural historian Dianne Harris's Little White Houses: How the Postwar Home Constructed Race in America to underscore concepts such as whiteness, status, privilege and property.
Uncle Sam’s Policemen: The Pursuit of Fugitives Across Borders
Harvard University Press
This text is concerned with the theme of exclusion in terms of Extradition and Deportation. Unterman’s book points out one of the central contradictions of American law system: beyond its national borders and in the face of challenges as the pursuing of fugitives, the country relies on a complex blend of legal, illegal, and extralegal arrangements. Unterman’s suggests that mechanisms such as ordinary and extraordinary renditions are not inventions launched in the aftermath of 9/11, but rather XIX century relics. Moreover, she points out that these mechanisms are not only result of complex legal and illegal, but they are also the product on long and deep-rooted ideas that conceive that the scope of American law is the entire globe and not merely the national terrain. From a spatial lens, this book explores how newly constructed railway lines, interoceanic railways, cargo ship routes etc facilitated movement of fugitives across borders and the racialized implications of extradition, exile, or deportation.
Taming Manhattan: Environmental Battles in the Antebellum City
Harvard University Press
This text is concerned with the theme of exclusion in terms of Trespass Law, Vagrancy Laws, Nuisance Laws, Zoning, and Eviction. Environmental historian McNeur offers a history of the struggles of urban environmental battles (urban livestock, parks, manure, food and shanty towns) in Antebellum New York. She argues that fast paced urbanization between the War of 1812 and the Civil War led municipal governments to consider ordinances that established a boundary between city and country to tame/civilize the city of leisure and spaces of labor. She chronicles some social battles that erupted publicly and violently, as was the case with controversies over free roaming animals (dog killing laws and hog laws), while others occurred almost silently, such as in the taxation and funding structures that planted parks in the wealthiest neighborhoods. Chapter 1, “Mad Dogs and Loose Hogs,” offers a glimpse in to racial and class struggles around the enactment of dog and hog laws and the Common Council's efforts to establish respectability and civility on city streets despite the condoning of animal cruelty. This piece pairs well with Hartog's "Pigs and Positivism," and McNeur provides additional insight into how resistance to these ordinances transcended class lines. The concept of animals as movable property and the enactment of nuisance and trespass laws can be contrasted with Anderson's Creatures of Empire and rules of enclosure in the New World.
Contagious Divides: Epidemics and Race in San Francisco’s Chinatown
University of California Press
This text is concerned with the theme of segregation in terms of Alien Land Acts and Nuisance Laws. Shah, an Asian American historian, explores how the production of Chinese difference and white norms in public health knowledge and policy impacted social lives, politics, and the urban environment in San Francisco. The book explores the proliferation of cultural concepts of health, nation, and sanitation in Chinatown, with particular attention to architecture and urban layout of this urban ghetto. Shah argues that the enactment of nuisance laws allowed the San Francisco planning and health boards to intervene to reshape human conduct in the use and habitation of Chinatown's dens, density, and labyrinths. In studying the Chinese as citizen-subjects, Shah explores how legal mechanisms (miscegenation laws, the Chinese Exclusion Act, a denial of naturalized citizenship, Alien Land Acts, temporary migratory labor recruitment, violent discrimination, etc.) made it difficult for Chinese laborers to consider permanent settlement. While Chinatowns proliferated throughout the 19th century in North America, Shah's focus on San Francisco offers a glimpse into the post-1906 earthquake reconstruction (which she describes as "a sanitized exoticism" in "the formation of an ethnic cultural enclave") and later, Chinese American assimilation, activism, and struggles for reform and public housing.
The Color of Law: A Forgotten History of How Our Government Segregated America
W. W. Norton
This text is concerned with the theme of segregation in terms of Restrictive Covenants and Redlining. Rothstein argues that the American government betrayed the commitment it made with the adoption of the 13th, 14th, and 15th Amendments by failing to ensure that black Americans could take their place as equal members in American society. The book centers on the plight of African Americans who were unconstitutionally denied the means and the rights to integration in middle class neighborhoods. His book is part of a larger provocation and attempt to draw consciousness to insidious modes of segregation (both de jure and de facto) that violated the Constitution and the Bill of Rights. Using Supreme Court cases (Shelley v. Kraemer; Pessy v. Ferguson; Brown v. Board of Education; Brown v. Board II; Bailey v. Patterson; Milliken v. Bradley, etc.), Rothstein argues: “By failing to recognize that we now live with severe, enduring effects of de jure segregation, we avoid confronting our constitutional obligation to reverse... Let bygones be bygones is not a legitimate approach if we wish to call ourselves a constitutional democracy” (p xii).
Alien Neighbors, Foreign Friends: Asian Americans, Housing and the Transformation of Urban California
University of Chicago Press
This text is concerned with the theme of segregation in terms of Nuisance Laws, Alien Land Acts, Restrictive Covenants, and Redlining. Historian Brooks provides an overview of the rapid and radical transformations of mid-century California by studying the housing struggles of Chinese Americans in San Francisco and Japanese Americans in Los Angeles. She argues that Asian Americans' unusual legal status - as racially ineligible for American citizenship - offers a nuanced history of racial segregation which disproportionately tends toward a black/white binary. Brooks situates the two ethnic groups within the larger narrative of the exclusionary policies of the Federal Housing Authority and the Home Owner's Loan Corporation and highlights how pre-existing legal mechanisms in the state of California (the Alien Land Act, in particular) barred these groups from homeownership. Brooks chronicles the transition of these groups from "alien" since the late 1800s to "foreign friends" in the late 1950s when Asian American housing opportunities expanded in Los Angeles and San Francisco.
III. EXCLUSION & SEGREGATION
Crimes Against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation
University of California Press
This text is concerned with the themes of exclusion and segregation in terms of Environmental Conservation/ Historic Preservation, Easements, Covenants, Right of Way, and Zoning. Jacoby, an environmental historian, studies changing class relationships in New York’s Adirondack forest in the post-Civil War era. He provides a nuanced account of the 19th century urban/rural divide and the heightened class hatred in response to the imposition of contested environmental conservation measures in the Adirondacks. Jacoby’s attempts to write environmental history from ‘the bottom up’ is also influenced by the environmental justice movement. However, his 19th century focus on class relations in a rural, non-industrialized setting is unique and challenges existing norms of environmental justice scholarship which tends toward people of color and their interaction with waste/toxicity in industrial, post-war America. He convincingly argues that conservation imposed a "rational scientific management of the landscape” which exacerbated distrust and suspicion already felt by “lower-class rural folk” who inhabited the American countryside. Jacoby details the ways in which the state and private entities, through the enactment of and enforcement of conservation laws, became an intrusive presence in the lives of locals.
Pigs and Positivism
Wisconsin Law Review
Hartog’s “Pigs and Positivism” bridges environmental history and the history of city life to expose how municipal efforts to control the pig population in the first half of the 1800s in New York were deeply entangled with the politics of class and race. Hartog notes that pigs were once an ordinary part of the American urban landscape. Amidst urbanization and modernization of the city, the unsightly loitering of pigs in city streets was deemed a nuisance. Hartog argues that municipal ordinances and reforms to remove pigs from cities aimed to dismantle a system in which animals and their caretakers (the working class and the urban poor) had played integral roles in food production, processing, and municipal waste management. Hartog finds evidence in municipal records and travel writing that the practice of pig-keeping persisted in spite of its formal illegality (People v. Harriet). He studies this by comparing two readings of the 1819 ruling to understand how law diverged in everyday life (law in books versus law in action) and how custom and other modes of agency, collective authority and alternative visions of legality emerged from a number of governmental and quasi-governmental institutions and practices.
Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America
Harvard University Press
Swanson, a legal historian, argues that a return to the history of body banks is necessary to understand the dichotomy in thinking about body parts and concepts of "gifting," and "donation." Swanson argues that the term "bank" is at the origins of the transformation of the body into a source of harvestable property. Management of body parts (sperm, eggs, milk, hair, blood, organs, tissues etc) took several forms: local, federal, civic, non-profit and for profit, economic, and legal. Local management often took the form of independent, non-profit centers that worked with local hospitals to supply blood that had been donated by community members. Federal management became a contested possibility as the American Medical Association and the American Association of Blood Banks (AABB) disputed the profit/not-for-profit management model of blood banks with the American Red Cross. Swanson offers insight into the history of medicine, science, and technology and highlights the role of race, gender, and sexuality during the AIDS crisis and subsequent enhanced screening techniques. From an architectural standpoint, the book briefly alludes to medical architecture and hospital design by highlighting spaces like anatomical museums, laboratories, and the banks themselves.
Federal Fathers and Mothers: A Social History of the United States Indian Service
The University of North Carolina Press
In this book, the early paternalistic vision of the Indian Service is contextualized through Cahill’s framing of the Indian assimilation policy as a new experiment in social programming. She argues that the intensive mobilization of state resources, particularly in the American West, was seen to “honorably satisfy the nation’s obligations in the spirit of the law rather than fulfilling them according to the letter of the law.” Cahill traces policies surrounding land tenure, education, and citizenship and argues that these were deeply intertwined during both the first and second phases of assimilation in the United States.
Cahill traces personnel files and asserts that the government deployed the strategy of "intimate colonialism" to encourage assimilation of Native Americans through intermarriage (interracial and intertribal mingling) despite prevailing miscegenation laws. This focus provides insight into the state’s views on legal marriage, which as an institution bears a particularly gendered relationship to property, dependency, and inheritance.