From The Law and Politics Book Review

Vol. 8 No. 12 (December 1998) pp. 443-446.

HERETICS IN THE TEMPLE: AMERICANS WHO REJECT THE NATION’S LEGAL FAITH by David Ray Papke. New York: New York University Press, 1998. 240 pp. Cloth $35.00. ISBN 0-8147-6632-3.

Reviewed by Brian K. Landsberg, University of Pacific, McGeorge School of Law. Email: blandsberg@uop.edu.

 

The Oxford English Dictionary’s secular definition of "heretic" is: "One who maintains opinions upon any subject at variance with those generally received or considered authoritative." So defined, of course, one day’s heresy may easily become the next day’s orthodoxy. Moreover, the heresy may consist of rejection of core principles or of specific applications. One may embrace the broad principles of orthodoxy while rejecting specific rules.

Legal historian David Ray Papke begins his exploration of the acts and views of selected legal heretics by describing the American orthodoxy, in which the Constitution has become a national icon and the rule of law a dominant belief. His first chapter describes the rise of lawyers and courts and of legalism, which he describes as "a multifaceted belief in the usefulness, fairness, and legitimacy of laws and legal institutions." American heroes included lawyers such as Daniel Webster and Abraham Lincoln. The American novel, exemplified by James Fenimore Cooper’s Leatherstocking series, celebrated the "dominion of mild laws" and "wholesome restraints." Papke recites de Tocqueville’s observations regarding the central place of law in American culture, and he quotes Karl Llewellyn’s comment that the American public evinced "pervasive ignorance and indifference to almost all detail," but was loyal "to a phrase, without more: ‘The Constitution.’" Papke says that at the turn of this century American leaders "fetishized the Constitution," but that "during selected periods of the twentieth century the legal faith seemed to wobble." However, "the nation seemed to right itself, using the rule of law as a political rudder." He ends his first chapter by noting that some groups -- Native Americans, people of color, women, Southerners, the poor, recent immigrants and others -- had "reason to engage in quiet acts of private resistance against a government and society hiding behind what must have seemed the facade of legalism." He contrasts those persons with "legal heretics," defined as "citizens who rejected the legal faith in a more public, coherent, and aggressive way." He does not mention the irony that the United States and its Constitution are products of earlier "legal heretics."

Having thus set the scene, Papke introduces his first legal heretic, William Lloyd Garrison. Garrison’s defining act of legal heresy came late in his career, on July 4, 1854, in a speech to the Massachusetts Anti-Slavery Society. The speech climaxed with Garrison burning, first a copy of the Fugitive Slave Act, then two judicial documents enforcing the Act, and, finally, the Constitution itself. Papke traces the evolution of Garrison’s thinking, from an "immediatist" who insisted on immediate abolition and vehemently rejected colonization as a solution to slavery, to a legal heretic. Initially Garrison invoked the Constitution, arguing that the Constitution allows the states to ban slavery, and later fashioning a crude argument that the Constitution forbids slavery. However, Garrison ultimately concluded that the drafters of the Constitution had entered into a bargain which countenanced slavery, and he broke ranks with Lysander Spooner and, emphatically, with Frederick Douglass. He began to call for "disunion" and swore his "personal disallegiance" to the Union. Papke’s short essay about Garrison does not fully explain why Garrison’s thought evolved as it did, but hints that his Christian anarchism, early perfectionist beliefs and his losses in criminal and civil libel cases and in a case involving a headmistress’ right to operate a school for black girls in Connecticut may have contributed. Garrison’s legal heresy seems mild by modern standards. In a sense, it was vindicated by the DRED SCOTT decision, which utterly destroyed any hope for a peaceable resolution of the slavery issue and confirmed Garrison’s pessimistic view of the Constitution. If the Constitution was an icon, it was a deeply flawed one, as Justice Thurgood Marshall observed during its bicentennial: "the government [the framers] devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights we hold as fundamental today."

Papke’s second "legal heretic" is Elizabeth Cady Stanton, a woman whose ideas -- woman’s suffrage, right to divorce, right to participate in the judicial system -- have largely been assimilated into modern American law. Cady Stanton’s act of heresy was to "attack the fundamentally gendered nature of American law and legal institutions." Papke’s account brackets two events, the Seneca Falls "Declaration of Sentiments" in 1848 and Cady Stanton’s congressional testimony in 1892, entitled "The Solitude of Self." Cady Stanton modeled the former on the Declaration of Independence, insisting that natural law rendered all men and women equal. It listed, in the style of 1776, grievances in which man replaced the King as oppressor. The 1892 testimony, insisting on the "individuality of each human soul," flowed naturally from the Seneca Falls Declaration. Cady Stanton’s partner in much of her work was Susan B. Anthony, with whom Papke draws this contrast: Cady Stanton’s "heresy was much more difficult for the reigning legal faith to accommodate. While Anthony was by nature a reformer, Cady Stanton was very much a radical." Elsewhere he notes that Cady Stanton’s demands were considered "shocking and almost unbelievable." Yet her demands were often couched in lawyers’ terms, relying not only on the Declaration of Independence but on Blackstone’s Commentaries. She did argue that the courtroom ritual "was false and misleading when women were involved," but her solution was not to abandon courtroom ritual but simply to include the women. She sought radical change, but did she employ radical means in her lobbying and organizing and speech-making? She meets Papke’s definition of a legal heretic, but so do all who publicly challenge the existing legal order.

Papke turns next to Eugene Debs, "the premier socialist legal heretic," who paid for his legal heresy with numerous trials and imprisonments. Debs’ "socialist conversion" came after his conviction and imprisonment for contempt of an injunction during the Pullman strike. Papke says Debs’ sense that America’s legal "institutions -- the pillars of the dominant culture’s legal faith -- were flawed activated the conversion." He notes that "uniquely present in the legalistic dominant culture of the United States were the legal themes and institutions against which the convert could construct his conversion narrative." Debs drew on several sources for his beliefs: radical labor, anarchists, "his era’s economic determinism and the Marxist understanding of the state as a protector of capital." Debs believed legal institutions were biased. Laws were made by legislators owned by capitalists and enforced by judges drawn from the capitalist class. Unlike Samuel Gompers, who accepted the place of labor within the capitalist system, Debs thought capitalism "was the criminal, and the legal system was its accomplice." Was Debs a legal heretic? He did reject the capitalist orthodoxy, and with it the notion that the legal system was neutral. But he embraced many core American values, such as democracy [he ran for President four times, the last time from prison], free speech, and the court trial as a civic event. He attempted to "personalize oppression" by use of "the arrest, trial, or imprisonment of a socialist to call attention to the intertwined injustices of American life and legal process." In his own trial for obstructing recruitment of soldiers during the first World War he invoked American icons, including Garrison and Cady Stanton, and argued "American institutions are on trial here ...." Papke ends this essay by noting the "admirable" aspects of Debs’ heresy. Debs "recognized that law had become the primary discourse for social relations in the United States," but he also recognized its "capacity ... to inscribe inequality on the American scene."

In his next chapter, Papke describes a substantial escalation from the techniques of Garrison, Cady Stanton and Debs: the legal heresy of the Black Panther Party. Drawing primarily on writings by the Black Panthers and their admirers, Papke paints a sympathetic picture of a movement which was incorrectly perceived as lawless. In fact, he maintains, the Panthers "adopted a rights consciousness, endorsed legal education and law-abiding conduct for members, and addressed statutes and ordinances with a picky hypersensitivity." Their party platform was "rife with a variety of constitutionalism." What, then, was their heresy? Like their predecessors, they perceived the law as biased; most of all they distrusted the police. Unlike the mainstream of African-American movements of the time, which evinced faith in the law, the Panthers’ "rigorous legalism ... did not connote a deep and genuine respect for the law, lawmaking process, or law enforcement." "[T]he Panthers both brandished weapons and spouted law." Papke suggests that the aggressive methods the Panthers used, such as conspicuous display of weapons and policing the police, led government at all levels to engage is "direct, violent and, in the end, effective" retaliation against the Panthers. Huey Newton, Eldridge Cleaver, and Bobby Seale were allegedly involved in incidents in which lives were lost, and they were prosecuted for them. Papke cites to a list in the Black Panther newspaper of "410 instances of harassment, raids, shootings, and arrests by local, state, and federal police." He is surely correct in mentioning the murders of Mark Clark and Fred Hampton in Chicago as among those instances, but it seems strange to uncritically accept the Panthers’ list. Papke seems to believe that, unlike Garrison, Cady Stanton and Debs, whose crusades ultimately led to abolition of slavery, legal equality for women, and, if not abolition of capitalism, formation of the welfare state, the Black Panther legal heresy "grew less and less audible." He says "the system" used "all its might to control the Black Panthers." However, the changing racial complexion of police forces, the rise of civilian review of police practices, the adoption of federal legislation aimed at racial discrimination by law enforcement agencies, and successful prosecutions of renegade police officers all suggest that at least some of the Black Panther agenda has become part of today’s orthodoxy.

According to Papke, none of the people discussed above began as legal heretics. Rather, circumstances led to an evolution in their thinking about the law. Papke’s last chapter, Legal Heresy Today, says they are "major figures in what might be thought of as the tradition of American legal heresy." He then asks whether the heretical tradition continues today. Specifically, should today’s militias or anti-abortion activists be considered legal heretics? Each group comprises broad spectrums -- from murderers to picketers or dissidents -- and therefore lacks the "crucial degree of community or collectivity." However, looking within those groups, it is possible that inchoate legal heresy is forming, one that is "‘pre-emergent’ or only ‘partially emergent’ vis-á-vis the legal faith." Papke believes that, at this stage, these groups have "an arm and a leg and a part of consciousness still caught in the dominant faith." Both share a version of legalism and constitutionalism, while rejecting much of today’s legal and constitutional orthodoxy. Militias differ from the legal heretics in the "self-absorption of the movement," which raises its voice, "not on behalf of others but out of a burning desire to be somebody." And while Papke says that the killers of abortion providers are more like John Brown and the WWW’s Bill Hayward than legal heretics, there is a mainstream of anti-abortion activists that has won acceptance at the highest levels. President Reagan welcomed Joseph M. Scheidler, head of the Pro-Life Action League, to the White House, and Randall Terry of Operation Rescue has met with the Pope. Papke believes that, unlike the legal heretics, neither Scheidler nor Terry has yet developed a coherent legal philosophy.

He closes his book by explaining the common characteristics of legal heretics: championing underprivileged groups that had reason to question America’s faith in law, anti-elitism, and a counter-culture that "attempts to knock a major part of the nation’s dominant culture -- the American legal faith -- from its pedestal." He clearly admires them, because they "give us ways to keep law fresh and alive."

Heretics in the Temple is written in a lively and readable style. Its thesis is subtle, leading to fine distinctions between legal heretics and other supporters of the underclasses. Every chapter is well supported with footnotes, and Papke provides a helpful bibliographic essay as well. While not encyclopedic, the bibliography is generally adequate to the task Papke has undertaken. A few typographical errors [e.g., section 1941 instead of 1981, 1.6 children instead of 1.6 million children] are distracting.

Overall the book underscores both the law’s profound impact on our lives and the ability of passionate individuals to change legal orthodoxy. As Papke says "America’s heretics remind us that we are not only culturally constituted but also, as human beings, culturally constituting."

REFERENCES

Marshall, Thurgood. (1987) "Commentary: Reflections on the Bicentennial of the United States Constitution," HARVARD LAW REVIEW 101: 1, 2.


Copyright 1995