Studies in Legal History

Law, Politics, and Ideology in New York, 1920-1980

William E. Nelson

• Publisher: The University of North Carolina Press
• Year: 2003
• ISBN:
  9780807875568
• Topic: Law
• Subtopic: Legal History
• Index: Law

Based on a detailed examination of New York case law, this pathbreaking book shows how law, politics, and ideology in the state changed in tandem between 1920 and 1980. Early twentieth-century New York was the scene of intense struggle between white, Anglo-Saxon, Protestant upper and middle classes located primarily in the upstate region and the impoverished, mainly Jewish and Roman Catholic, immigrant underclass centered in New York City. Beginning in the 1920s, however, judges such as Benjamin N. Cardozo, Henry J. Friendly, Learned Hand, and Harlan Fiske Stone used law to facilitate the entry of the underclass into the economic and social mainstream and to promote tolerance among all New Yorkers. Ultimately, says William Nelson, a new legal ideology was created. By the late 1930s, New Yorkers had begun to reconceptualize social conflict not along class lines but in terms of the power of majorities and the rights of minorities. In the process, they constructed a new approach to law and politics. Though doctrinal change began to slow by the 1960s, the main ambitions of the legalist reformation--liberty, equality, human dignity, and entrepreneurial opportunity--remain the aspirations of nearly all Americans, and of much of the rest of the world, today. American Historical Review "Drawing on a beautifully detailed study of thousands of court opinions and life in New York, William Nelson reveals how twentieth century common law jurists brought together the diverse racial, ethnic, and religious factions in the state.-- Harvard Law Review "Nelson's vision is expansive, his research prodigious, his analysis insightful, and his achievement impressive.... This fresh research is scholarship of the first order, in itself a major contribution.-- Journal of American History "Nowhere is the concept of the law as an evolving, dynamic, and progressive force in modern American society better espoused than in this seminal, exhaustive piece of legal and historical research.-- Library Journal Based on a detailed examination of New York case law, The Legalist Reformation traces the efforts of citizens of diverse racial, ethnic, and religious backgrounds to live together in the state during the past century. William Nelson argues that the most powerful instrument facilitating these efforts has been the law of New York--law proclaimed largely by judges such as Benjamin N. Cardozo, Henry J. Friendly, and Learned Hand rather than by legislators or federal officials. Furthermore, the legal ideology outlined by New York jurists has become a standard for justice worldwide among diverse cultures whose people, like New Yorkers, are striving to coexist.
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PART I
Conservatives and Reformers

CHAPTER 1
1922

Astounding contradictions marked the political economy of New York during the opening decades of the twentieth century. Take, for example, the matter of population density. Throughout the century, Hamilton County, located in the center of the Adirondacks, has been the most sparsely settled county in the United States east of the Mississippi and north of Florida. Some two hundred miles to the south, in contrast, lay Manhattan’s Lower East Side, which during the first quarter of the century was probably the most densely populated place on earth.¹

It also was one of the more squalid. In his classic muckraking work, How the Other Half Lives, Jacob A. Riis had described the Lower East Side as a place where “dirt and desolation reign[ed]” and “danger lurk[ed].” It was a place where “hundreds of men, women, and children [were] every day slowly starving to death” and where “the instinct of motherhood even was smothered by poverty and want” as the “poor abandon[ed] their children,” leaving only little notes such as one that Riis had read “in a woman’s trembling hand: ‘Take care of Johnny, for God’s sake, I cannot.’”²

Nobody better symbolized the plight of the Lower East Side “than the desperate peddler, his pack heavy on his back, hopelessly pleading for a customer.” One peddler, for example, would get up at 5:30, go get his pushcart from the nearby pushcart stable, wheel it over to the wholesaler, and then take it over the ferry to Brooklyn, where he would peddle bananas for total earnings of $2.00 to $2.50 per day. Not surprisingly, families like those of the peddler had no apartment but “just a cellar with a wood floor and plenty of rats.” As late as 1923, many tenement units still “didn’t have electricity” but had “gaslight . . . iceboxes, coal stoves, turlets in the hall.” “In fact,” as one Lower East Side resident reported, “the outhouse they used to use was still in the yard,” and there was “a stable right next” door, where children “used to play on the dead horses” which were left “layin’ on the street, and then we’d play king of the hill on there. After a while, the smell didn’t bother us.”³

Of course, children, in addition to play, had jobs such as collecting coal as it fell off delivery trucks. As one reported, “I’d have a bag to put the stuff in. When I came home, I was as black as a black man. My mother would wash me and say, ‘You mustn’t do that no more,’ but we needed the coal.” Obviously, there also was little to eat: “for dinner there would be a quarter of a little chicken for three of us . . . and that was a special dinner—for Friday nights.” More commonly, “my mother used to make a soup, just plain potato and onion—if she was lucky, a carrot, and if she was extra, extra lucky, some dill.” Circumstances reached their nadir during the Great Depression, when people “were livin’ in cardboard boxes under the Williamsburg Bridge” and were “on the street beggin’ for pennies, sellin’ whatever they could find—apples, a fountain pen, somethin’ they picked up or stole—to get a couple of pennies. People that didn’t wanna steal had to steal. Basically, they were honest people, but they stole to survive.”⁴

Only three miles to the north, on Fifth Avenue, was Millionaires Row—an “extraordinarily expensive residential area that had an aggregate value estimated at seventy million dollars, unremarkable for a group of householders who controlled at least fifty million dollars each.” Among the spectacles was the 130-room white granite mansion of Senator William A. King, a copper magnate from Montana. For residents of Millionaires Row, politics had “nothing to do with sympathy with the poor;” according to Claudia Hatch Stearns, a direct descendant of Priscilla Alden, she was not even “aware of the poverty of the 30’s.” Her family had come to New York in the mid-1800s, when her great-grandfather had “dealt in money.” “His sister,” it appears, had “married Lincoln’s Secretary of the Treasury, so he floated all the bonds for the Civil War.” Her grandparents had moved after the war to the Upper West Side, but then they “moved back to the East Side because the ‘immigrants,’ the Jews, came in and took over, and they couldn’t very well live with them, so they moved.”⁵

Daily life on Millionaires Row centered on balls and dinners, such as a special dinner of paté and chicken for a hundred of society’s leading canines. Another event was a “party for toy dolls, who were seated at a sumptuous dining table while their otherwise adult owners chatted amiably in baby talk.” “No wonder Mrs. O. H. P. Belmont threw up her hands in frustration one day and declared, ‘I know of no profession, art or trade that women are working in today, as taxing on mental resources as being a leader of society.’”⁶

As Jacob Riis and others saw it, the gap between the classes in the early twentieth century widened day by day. Those who ruled New York displayed little tolerance toward the poor. The era was a time not of equality but of “repression along class . . . lines.” Recipients of public assistance, for example, were seen as people “‘without habits of industry or thrift, improvident, usually physically or mentally deficient, who [were] unable through efforts of their own to gain a livelihood.’” It was “‘common knowledge’” that such poor persons were “‘constantly seeking, and generally receive[d] at somewhat regular intervals, public charity or assistance; they ha[d] a practically constant status as ‘poor persons’; they [were] not able to maintain themselves for any long period of time even under ordinary conditions.’”⁷

Impoverished workers were not thought to be much better. Only a “very few men in every hundred or thousand,” it was said, had sufficient “industry, brains and thrift” to get ahead. Wage workers, according to the same writer, remained employees of others because they had “not initiative enough to be employers themselves”; they remained “poor” because of “lack of brains, lack of wit to earn, thrift to save, and knowledge to use [their] savings.” “No man who ha[d] endeavored to carry out an enterprise,” according to a turn-of-the-century sermon, could avoid being “well-nigh appalled at times by the imbecility of the average man—the inability or unwillingness to concentrate on a thing and do it.” Indeed, the “nature of man” was thought to be such that “the superior few and the inferior many scarcely appear[ed] to belong to the same species.”⁸

If New York’s leaders saw the poor as lazy, amoral, and worthy of suspicion, their vision of themselves stood in marked contrast. For the elite, “dishonesty and sinful behavior of any sort was considered not only ignoble but also an impractical way to make money.” People in the upper classes understood that they possessed “character”—“a stiffening of the vertebrae which . . . cause[d] them to be loyal to a trust, to act promptly, concentrate their energies, [and] do the thing.” They felt themselves bound by a “PHILOSOPHY OF FAIR PLAY”; as Julius H. Barnes, president of the U.S. Chamber of Commerce, explained, “In America the various sports of our youth teach the principles of team play and of fair play. . . . On every baseball diamond and football field the qualities of fortitude and courage and fair play, inspired by loyalty to club or town or college, are instilled in our young men.” Elite New Yorkers ran their lives and businesses, they believed, in accordance with this creed of fortitude, hard work, loyalty, and fair play.⁹

Prejudices along religious and ethnic lines often lay beneath the social and economic inequality that was rampant in New York in the early twentieth century. These prejudices contrasted “a WASP vision of a tasteless, colorless, odorless, sweatless world” against a portrait of “ethnic minorities [who] cooked with vivid spices—even garlic!—and might neglect. . . deodorants, and regular bathing” and needed to be shown “how to cleanse themselves.” There was virulent anti-Semitism on the part of prominent people such as Henry James, who expressed shock at the “‘Hebrew conquest of New York’” that was transforming the city into a “‘new Jerusalem,’” and Henry Ford, who as late as the 1920s issued repeated warnings against the “‘Jewish menace’” and who in 1938 accepted the Grand Cross of the German Eagle from the Nazi regime.¹⁰ Anti-Semitism arguably persisted as late as the 1930s and early 1940s even in the Court of Appeals, which in one case sustained a village ordinance excluding a denominational mental hospital that had bought land and obtained a license from the State Hospital Commission before the ordinance was adopted, and in another declined to overturn the refusal of the commissioner of education to allow the former director of the Neurological Institute at the University of Vienna, who had fled the Nazis in 1938, to practice medicine in New York following his appointments as clinical professor of neurology at Columbia University and research neuropathologist at Montefiore Hospital. As Judge Charles S. Desmond noted in his dissent in the latter case, the refugee doctor was “‘unquestionably the most prominent of recent emigres’” and allowing him to practice would not “let . . . down any bars or mak[e] . . . possible any great inrush of emigre physicians.” Still the state education commissioner would not permit him to practice, and the courts sustained the commissioner’s refusal.¹¹

Anti-Semitism, anti-Catholicism, and hostility to immigrants were hardly confined to elites. Many Americans in and out of New York City saw Jews, for instance, as “inflamed radical[s] responsible for Communist revolution in eastern Europe . . . [and] a vast conspiracy designed to enslave America.” The chief institutional manifestation of such prejudices was the Ku Klux Klan (KKK). Although still predominantly a southern phenomenon, the Klan maintained a large, well-organized presence in New York State into the 1930s, with the New York Times estimating that two hundred thousand persons belonged to the Klan statewide in 1923.¹²

The Klan was virulently anti-Jewish, anti-Catholic, and anti-immigrant. The Klansman’s Creed expressly stated that “I believe in the limitation of foreign immigration. I am a native-born American citizen and I believe my rights in this country are superior to those of foreigners.” One letter sent by the KKK to Protestant pastors in the state exhorted them to form local klans and vote for “Protestants only who have no marriage affiliations with Catholics or Jews, or partners with either.” The letter closed with “Save the county and your State from Jews and Catholics.” At one KKK organizational meeting in 1922, a speaker for the Klan railed against Jewish control of everything from newspaper stands—he alleged that twenty-five thousand of the twenty-seven thousand newsstands in New York City were Jewish-owned—to the motion picture industry. At a later Klan rally, an unidentified minister warned that the Roman Catholic Church was a political party in disguise and that Jews in America sought only money and political influence—as if such ambition did not flourish in WASP circles.¹³ When the Cure of Ars Catholic Church was established on suburban Long Island in 1926, the KKK burned a cross in its parking lot, and when the Irish-American Catholic Al Smith ran for president in 1928 on the Democratic Party ticket, flaming crosses burned on the hills of Alabama and Mississippi, and by order of the Suffolk County GOP—a Klan-dominated organization at the time—on the hills of Suffolk as well. Although many religious leaders condemned the Klan, not all did. Thus one Protestant minister, Rev. C. I. Oswald, pastor of the Freeport Presbyterian Church, vehemently defended the Klan in a sermon titled “Has the Ku Klux Klan the Right to Organize in New York State?” In Oswald’s opinion, the answer was yes.¹⁴

Cross-burnings and rallies drawing thousands, with placards reading “No Koons, Kikes, or Katolics,” reminded blacks, Jews, and Catholics alike that many New Yorkers continued to resent their presence. Although reports of Klan-organized violence were rare, they were not unheard-of. Cross-burnings occurred across Nassau County, for example, during the 1920s, scaring residents of Valley Stream, lighting the sky above Garden City, and frightening blacks in Freeport. As the Klan historian William Randel noted, “The symbolic power of the fiery cross. . . . casts a shadow on many a neighborhood to know that it harbors a potentially hostile element which at any moment may disrupt the illusion of peace.”¹⁵

The Klan sometimes employed more direct means of intimidation. On August 14, 1924, eight men entered a suburban Long Island pharmacy owned by Ernest Louis, a Jew accused but cleared of child molestation. They informed him that “we don’t want your type around here. You have eight days to get out. This is a warning from the Ku Klux Klan.” Louis dismissed the threat as a joke, but a few days later as he walked along a local street with his wife, a car approached and a group of men jumped out, forcing Louis into the car. After driving around for a few hours, the kidnappers deposited the dazed druggist several miles away. Within a couple of weeks, Louis and his family moved from the suburbs back to New York City. Although he denied that the threat or kidnapping had anything to do with his decision, Louis remarked that “I haven’t money enough to stay here and fight, any way, and I have lost all my business on account of the whole thing.” Though a search was conducted for the kidnappers, the likelihood of their apprehension was remote: less than a week after the kidnapping, two thousand klansmen paraded through Louis’s former village led by its police chief.¹⁶

In response to this rising activity by the Klan, New York State senator Jimmy Walker, the future mayor of New York City, introduced a bill in the state legislature that, while exempting labor and benevolent organizations, required private organizations to disclose membership lists. The bill passed by a narrow margin. In response to the new law, the Klan unsuccessfully attempted to incorporate as a benevolent organization under the name of Alpha Pi Sigma, Inc. After that effort failed, the Klan challenged the constitutionality of the legislation but again lost.¹⁷

The law achieved its intended effect as Klan influence began to wane in the 1930s. In 1933, the three-day “konklave” of the New York and New Jersey Klans attracted only 150 members, and the last recorded Klan session on Long Island occurred in 1937. Nonetheless, the demise of the Klan did not mean the end of xenophobia in New York. The German-American Bund, a pro-Nazi organization led by Fritz Kuhn, infiltrated the German-American Settlement League’s camp near Yaphank, renamed it Camp Siegfried, and named streets after Hitler, Goering, and Goebbels. Armbands with swastikas and Nazi flags were prevalent on camp grounds. The New York Times reported that “on Sunday afternoons in 1938, the Long Island Rail Road ran special trains out to Camp Siegfried, in Yaphank, where as many as 50,000 people might gather to watch Nazi rituals and hear speeches describing the region as an Aryan paradise.”¹⁸

Groups like the Klan and the Bund reflected, albeit in a virulent and organized form, a distrust and fear of immigrants that permeated New York society throughout the early decades of the twentieth century. Together with the class conflict considered earlier, this anti-immigrant prejudice set the tone of the state’s politics.

On the one hand, Democrats, largely from New York City’s Tammany Hall, represente...

Table of contents

• Cover Page
• THE LEGALIST REFORMATION
• Copyright Page
• Dedication
• CONTENTS
• INTRODUCTION
• PART I Conservatives and Reformers
• PART II The Legalist Reformation
• PART III The Endurance of Legalism and the End of Reform
• EPILOGUE
• NOTES
• ACKNOWLEDGMENTS
• INDEX