When I sat down to write this response, I thought it would be a fairly easy task. For one thing, the topic is one with which I have considerable familiarity. For another, it is an honor and a pleasure to have smart and distinguished scholars think deeply about one's scholarly work. I am indebted to Law & Social Inquiry for providing the kind of opportunity authors crave—genuine interchange with knowledgeable and engaged readers—and to Christopher Agee, Christopher Schmidt, Karen Tani, and Laura Weinrib for bringing that opportunity to life with insight and generosity.

Familiarity, honor, pleasure, and gratitude, it turns out, are not the same as ease, and the task was more challenging than I had anticipated. Upon reflection, that difficulty makes sense. Every critique, suggestion, and assessment in these essays reminds me of the many possibilities I considered and roads I passed by as I wrote the book. I memorialized that journey in real time in a journal that grew to some four-hundred single-spaced pages of musings, blind alleys, and the occasional hard-earned epiphany. (Though that process felt mostly like frustration and failure, today's pop psychologists would likely see in those thousands of unpublished words myriad lessons in grit and resilience.)

Of course, the essays in this symposium bear little resemblance to my journal. The journal meanders, while the essays are artful and composed. The journal allows for the contingencies of a work in progress, while the essays respond to the final product, where all the choices have been made and the possibilities largely rendered invisible. The journal reflects my own particular interests and expertise, while the essays draw on the interests and expertise of these historians in their own right.

Whatever their differences, both my journal and these essays highlight a critical challenge I faced in writing Vagrant Nation: how to create coherence without losing multiplicity. As I discuss below, both my methodological approach and the nature of the story itself generated hundreds of decisions about what to include and omit, foreground and background, connect and distinguish. These essays require me to revisit that challenge on several levels—narratively, thematically, and doctrinally. They prompt me to recover from the finite printed form some of the book as it existed in the limitless imagination of my journal.

Methodological concerns about constitutional history are at the heart of Vagrant Nation. As I have written elsewhere in the context of civil rights history specifically (Goluboff Reference Goluboff2013), and as both Schmidt and Tani note in their essays, constitutional history has recently undergone a methodological transformation. From a field largely focused on the singular story of the US Supreme Court—with its single, elite institution, clearly delineated cast of characters, and case-oriented timelineFootnote ¹ —constitutional history has branched out in every way. The new generation of constitutional historians, which includes several of the authors in this symposium as well as many others,Footnote ² looks beyond the Supreme Court to lower federal courts, lawyers, and litigants; to the lived experience of constitutional harms and constitutional claims making; to social movements and cultural texts; to constitutionalism in the states and at the local level as well as outside the United States.

In Vagrant Nation, I sought to show how legal change actually occurs on the ground. I knew when I began the project that as late as the early 1950s law enforcement officers used apparently constitutionally unproblematic vagrancy laws everywhere and all the time, and that twenty years later, the Supreme Court had declared those laws unconstitutional. Even if, like Weinrib, one views the 1930s as the beginning of the story, rather than a precursor to the real action of the 1950s and 1960s, the time period is elongated but the question remains the same (Weinrib Reference Weinrib2018). How does such an entrenched legal regime lose its legitimacy after hundreds of years of regular use?

That formulation of the question, beginning with “how,” is purposeful. I was more intent on showing how than why. Causation is, of course, part of the story I tell. It is hard to imagine discussing how without why. But it is all too easy to foreground the why without attending to the how. In this instance, the why seemed clear. Though I did not use the term, it was essentially the “intercurrence” Tani discusses in her essay. Laws made for medieval or Elizabethan England were wholly at odds with mid-twentieth-century American society, and the transformations of the 1960s were making that conclusion obvious and inescapable. As Weinrib and Tani both highlight, hints of such intercurrence had appeared as early as the Depression era's “loosen[ing] [of] the conceptual links between poverty and morality” (Tani Reference Tani2018, 11–12) and changing understandings of unemployment, labor, and speech. By the 1960s, it was in full bloom.

The question of how, then, was what drove the project: the mechanics of arguments, ideas, and social facts moving across people, organizations, institutions, and the processes of the formal legal system. How do different actors encounter ideas? How do they hand them off? Why do some fall out of the process and others thrive? As Schmidt notes, my methodological goal was to show the real work of legal change, work done by many different kinds of actors both on their own and in their interactions with others. To answer the how question requires traveling “up and down the legal process,” taking account “of vagrancy law defendants and their lawyers, social movement organizations, legislators and other politicians, lower court judges, legal scholars, and the media as well as the police officers, prosecutors, and other local officials responsible for vagrancy enforcement” (Goluboff Reference Goluboff2016, 8–9).

At my most aspirational and least precise, I might suggest that this new approach to constitutional history requires somehow telling “the whole story” of constitutional change. Of course, that cannot happen. There is never a whole story. There are simply too many possibilities and too many choices a historian must make. Some perspectives will always be better represented than others and some omitted, intentionally or unintentionally, altogether.

This is the challenge that both Agee and Tani underscore: that even as I tried to retain a multiplicity of perspectives, some received less air time than others. In particular, Agee and Tani amplify connections between Vagrant Nation and the historical development of state institutions. For Agee, the relevant institutions are those of the criminal justice system. He describes “how the legal efforts to undo the vagrancy law regime during the 1960s influenced and opened opportunities for the institutional reform campaigns of the same period” as well as “catalyzed the development of the ‘carceral state’” (2018, 2–3).

For Tani, the institutional story extends to nothing less than the development of “the modern American state” (2018, 3). She sees vagrancy laws as a technology of governance and asks what the vagrancy regime tells us about that mode of governance and the world in which it existed. In her telling, vagrancy laws were part of a hidden, local, communitarian American state in which “rights were always subordinate to a localized understanding of the public good and placed few limits on the substance of government regulation” (5). Like Agee, Tani is interested in the state structures that supported, enabled, and ultimately changed alongside and in conjunction with vagrancy laws.

Both Tani and Agee offer their comments in the spirit of expanding the reach of Vagrant Nation, and I embrace them in that spirit. I also take from their essays an implicit suggestion that the book itself might have more deeply engaged with such institutional analysis. Such analysis would entail a greater focus than I offer on those who govern, the context in which they govern, and the methods of governance. To be sure, I offer that perspective more in the book than I did early on in the project. In response to critiques that it was hard to tell from my initial efforts who was defending vagrancy laws and why, I gradually incorporated more of the perspective of those defenders. That is how the book's central theme of danger versus difference emerged—law enforcement officers were finding it increasingly necessary to distinguish between difference they feared because it was different and difference they feared because it was dangerous in some tangible way. (More on this below.) Though I did not use the vocabulary of statecraft, Tani's underlying ideas—that the vagrancy law challenge represented a nationalization of legal and cultural norms over local ones and a new, modern, constitutionalization of individual rights over community responsibilities—represent major themes. The institutional lens through which I depict that shift, however, and the story of vagrancy's demise more generally, is that of legal rather than bureaucratic institutions.

I appreciate that Agee and Tani have made more explicit these institutional frames for the vagrancy law story and thereby brought that story into more direct conversation with the literatures within which each writes. At the same time, my light institutional touch was and remains intentional. The pluralist methodology I bring to constitutional history is deeply connected to my commitment to telling legal history in substantial part “from below.” Building on Hendrik Hartog's “Constitution of Aspiration” (Reference Hartog1987), I have endeavored to bring the lived experience of the law into conversation with the formal institutions of the law. One consequence of looking at the state, whether in Tani's hands or Agee's, is a shift in frame from the regulated to the regulators. To the extent that I have emphasized the regulated—and how they engaged the mechanisms of a newly emerging criminal justice or national governance structure to alter that status—I hope that I have rebalanced the usual frame rather than ignored it.

Bringing into conversation the perspectives of actors at numerous points in the law-making process was all the more difficult in Vagrant Nation because this particular law-making process was itself so varied. The attraction and the challenge of telling the vagrancy law story was precisely its multiplicity. While researching my first book, The Lost Promise of Civil Rights (2007), I frequently encountered vagrancy laws among the legal resources white southerners used to keep African American workers in various forms of involuntary servitude in the 1940s rural South. When African Americans dared to refuse agricultural work, they were arrested for vagrancy. Those arrests brought to mind Papachristou v. City of Jacksonville (1972), which involved vagrancy arrests of African Americans out of place in a completely different way—because of their choice of romantic partners rather than their choice of work.

I began exploring how else communities and law enforcement authorities used vagrancy laws and against whom. As I realized the full extent of what I came to call the vagrancy law regime—deployed against prostitutes, sexual minorities, Beats, hippies, Vietnam War protestors, and others—both the research demands and the narrative challenges grew apace.

These narrative challenges compounded the self-imposed challenges of my methodological approach. A history of the Supreme Court's invalidation of vagrancy laws would have been fairly straightforward. So, too, a focused and nationally driven legal campaign—or even two, as I depicted in Lost Promise—was also narratively manageable. But a legal campaign that involved so many different actors in so many different contexts over so many different institutions could easily end not only in the messiness I came to embrace, but in utter chaos.

Creating narrative coherence without losing the essential multiplicity of the story was thus the major challenge of writing Vagrant Nation. How would I tell a single, coherent history of the 1960s without flattening or losing the thread of each particular story? On the flip side, how could I tell the particular histories of the particular movements that engaged in the campaign without leaving the impression of a series of unconnected stories or case studies?

That scholars of the welfare state, labor and free speech, the civil rights movement, and policing can all engage productively with the book suggests that I managed to retain the multiplicity I sought. The more pressing question, then, is a version of Schmidt's: Did I achieve sufficient coherence as I retained that multiplicity? And how? It is hard to overestimate the mental energy I gave those questions during the writing process. I wrote several introductions for any given chapter. Some began at the Court, others with the lawyers, the litigants, or the social movement actors. I created charts and spreadsheets intended to keep straight the actors, institutions, themes, arguments, chronologies, and legal doctrines that all competed for attention.

The strategy I ultimately employed created coherence not only through the narrative structure of the book, but also through the themes that run through it and the doctrinal developments it depicts. Narratively, as Tani notes, I settled on a larger role for the Supreme Court than the Court plays in Lost Promise and than I had initially found methodologically comfortable. The narrative through-line became the Court's efforts to grapple with vagrancy cases, from Edelman v. California in 1953 to Papachristou in 1972. As prior generations of constitutional historians knew so well, the Court's institutional centrality lends itself easily to coherence. I nonetheless resist the conclusion that using the Court for narrative integration must mean any more than that. Rather, the Court exerts narrative but not centrifugal force in Vagrant Nation. Judicial archives play a role, but so too do the papers of lawyers and organizations. Some chapters, like that on Ernest Besig's San Francisco (Goluboff Reference Goluboff2016, 42–72), and that on morality and the discrediting of victimless crimes in the 1960s (Goluboff Reference Goluboff2016, 147–84), barely involve the Court.

As for causation, rather than serving as the engine of change, the Court represents a lagging institution whose belated imprimatur crystallizes changes that had been underway elsewhere and largely at the behest of other actors. The Court's causal and substantive role is important, but not uniquely so. Its pronouncements are, as I say in the book, “one moment in a contingent process of change that had begun long before and continued long after” its decisions (Goluboff Reference Goluboff2016, 338). In other words, I use the Court to impose narrative coherence, but I purposefully refrain from giving it archival, methodological, causal, or substantive primacy.

As Schmidt notes, I locate thematic coherence largely in a new vision of the “sixties.” As my early research uncovered more and more vulnerable groups who challenged vagrancy laws, it became clear that the vagrancy law challenge involved most of the groups who joined in the liberal and left-leaning movements of the era: the civil rights, antiwar, gay rights, and welfare rights movements, and the sexual, cultural, and criminal procedure revolutions. The obvious similarities between the groups involved in the vagrancy law challenge and those involved in the broader transformations of the 1960s begged the question—with which I struggled for some time—of the precise relationship between this legal campaign and the era in which it occurred. It was clearly thicker than basic temporal coincidence. I toyed with the idea that the vagrancy law challenge was a microcosm of the 1960s, but I ultimately concluded that it was more than that. The vagrancy law challenge was both necessary to the success of these various social movements and a result of them.

Even that, however, remains a step shy of claiming, as I do, that the history of vagrancy law is itself a history of the 1960s, and a history of the 1960s that shows us something about the decade we did not already know. This is what Schmidt pushes me to do here: specify what vision of the 1960s emerges from the vagrancy law story. Three aspects of that vision bear mention.

Most fundamentally, the idea that almost served as the title of the book, and remains central to it, is that all those who were victims of and crusaders against vagrancy laws were in some way “people out of place.” Early on in my research, I spent weeks trying to identify the commonality between the many and varied targets of vagrancy laws. Those efforts were stymied by the existing literature on the decade, siloed and focused on discrete parts as it was. Was the decade fundamentally about equality, as civil rights histories would suggest? Was it about cultural nonconformity or political dissidence or sexual liberation? Each aspect of the era had its central characters and its own historical chroniclers.Footnote ³ I found no single language to describe what they shared or why they were all dogged by vagrancy laws, in large part because these separate histories often obscured potential commonalities.

As I read deeper into the primary sources, however, the idea of being “out of place” came to the fore. It played a role both in how those deemed out of place understood their predicament and how those who wanted to keep them in place understood the targets’ transgressions. Of course, some were out of place by choice and others by force or coercion, some were out of place physically and others metaphysically. But the notion that the hierarchies in US society had become a form of “intercurrence,” and that vagrancy laws represented that anachronism in an especially pure form, was organic to the time. The idea of “place” had to be contested for the transformations of the 1960s to succeed.

The second integrating theme of the 1960s that becomes visible in the vagrancy story was the challenging and changing relationship between difference and danger I mentioned earlier in this essay. As the notion of being out of place itself suggests, and police manuals of the time evidence, being out of place was in and of itself dangerous. Quintessentially, the African American man in the white neighborhood was dangerous because he was out of place. But he was hardly the only one. As Sarah Seo has pointed out, fear of the other was rooted not only in “mainstream Americans’ fear of difference at mid-century, but also their desire for sameness” (Reference Seo2017, 610). Given the insecurities of the Cold War, identifying where one's own desire for safety and familiarity ended and tolerance for another's potentially conflicting vision of American society began—distinguishing between difference and danger—was at the heart of what it meant to allow people to be out of place. It was not that danger disappeared, or that such differentiation ended altogether, but the 1960s that the vagrancy story reveals is a decade in which being out of place was no longer inherently or necessarily dangerous, or at least one where the notion of place was far broader by the end of the decade than it was at the beginning. The borders expanded and became more porous. More people found their own places and were able to announce, establish, and keep them.

Of course, this is not to say that every group equally reaped the benefits of this new tolerance of difference, as Agee notes. Indeed, Agee simultaneously helps answer Schmidt's question and deepens the critique. Like me, Agee has spent much historical time in 1950s San Francisco (Agee Reference Agee2014). Like me, he saw in that time and place connections between the many social movements that responded to the extensive law enforcement use of vagrancy laws. To Agee, however, that story is one of dissonance and conflict as much as commonality and connection. In particular, Agee sees a tradeoff between the inclusion of cultural and sexual minorities and the continued exclusion of African Americans. If some people were granted a place, it came at the expense of others. Those Agee calls “cosmopolitan liberals” “sought to curb police discretion over the cultural and sexual expression of whites while maintaining broadly sanctioned police supervision over black life” (Reference Agee2018, 9).

Certainly, there was conflict as well as commonality. Perhaps because of my greater focus on legal liberals than Agee's cosmopolitan ones, however, I see a different relationship between African Americans and other groups. Vindicating the rights of African Americans was often the crucial reason lawyers, judges, and policy makers undermined vagrancy laws and other abusive police practices. I am hardly the first to note the importance of race to the criminal procedure revolution.Footnote ⁴ The justices of the Warren Court wanted to protect criminal defendants in part because it would improve the treatment of African Americans, who were (and are) disproportionately targeted by the police and criminal justice institutions. That was equally true of the vagrancy challenge, a key component of the criminal justice revolution. It was true in cases like Sam Thompson's, where the defendant was African American but the racial issue was all subtext, as well as in a variety of hippie cases, where the defendants were white, but they explicitly emphasized their similarity to African Americans as unpopular minorities (Goluboff Reference Goluboff2016, 250–51). African Americans and their struggle for freedom, equality, and justice evoked sympathy, and key to the success of the vagrancy challenge was that sympathy, both for them directly and for others who managed to analogize their plight.

Indeed, the role sympathy, and its cousin empathy, played in the vagrancy law challenge comprises the third unifying theme of the 1960s in Vagrant Nation and perhaps for social movement success more generally. While African Americans garnered sympathy from legal decision makers, raising the visibility and, accordingly, the problems of vagrancy law enforcement—and leading to some legal change—it was not until after a spate of vagrancy arrests of white hippies in 1968 that, as one lawyer put it: “Vagrancy laws [began] falling like ninepins” (Goluboff Reference Goluboff2016, 222). In other words, it was not until judges felt empathy, rather than sympathy, and could envision their own sons and daughters swept up in the vagrancy net, that they took major steps to undermine the laws.

That said, the hippies and their lawyers deemed some of their most promising arguments those that relied on their commonalities with African Americans—their minority status, their unpopularity, their unequal treatment. Far from the insular histories that disaggregate the 1960s of the civil rights movement from the 1960s of the counterculture, the history of vagrancy relies on the simultaneous deployment of sympathy and empathy, of the understanding that what ailed the most sympathetic, marginalized other was also what ailed the empathy-inducing insider. That such a dynamic operated elsewhere in other aspects of the transformations of the 1960s—and beyond—seems likely. Whether and how are questions for another day.

This combination of sympathy and empathy introduces my final integrative effort: creating doctrinal coherence out of considerable doctrinal multiplicity. Sympathy and empathy each had their own doctrinal manifestation: sympathy in the legal concern with discrimination and empathy in the concern with arbitrariness. The refusal of the Constitution to countenance discrimination is a manifestation of sympathy for one discrete group that the law has wronged by treating differently. The refusal to countenance arbitrariness is a rejection of the idea that the law might wrong anyone at anytime, with the subtext that that anyone could even be me (or someone just like me). Throughout the vagrancy law challenge, both different actors across different contexts and the same actors within their own contexts tacked back and forth between a concern with discrimination and a concern with arbitrariness. The vagrancy arrest is problematic both because it systematically happens to them (sympathy/discrimination) and because it can happen to anyone (empathy/arbitrariness).

Even when the Supreme Court decided Papachristou, it did not choose sides between these two frameworks. I mean that in two ways. First, the void for vagueness doctrine, on which the Court's holding relies, encompasses both concerns. Void for vagueness finds constitutional infirmity in the inability of an individual to know how to conform his or her behavior to vague commands of the law. It also locates infirmity in the inability of law enforcers to know how to enforce a vague law because such vagueness can lead to both discriminatory and arbitrary exercises of discretion. In other words, using the void for vagueness standard enabled the justices to continue the lawyers’ approach of avoiding which of the two concerns was the more problematic or pressing.

The second sense in which the Court did not choose sides in Papachristou is that though void for vagueness constituted the holding of the case, Douglas referenced basically every constitutional argument ever lodged against vagrancy laws in all of the many contexts in which they operated. His opinion, like the briefs in the case, the briefs in the many cases in the lower courts, and the many law review articles on the subject, drew on numerous and distinct doctrinal arguments. Weinrib suggests that that multiplicity was a failure that might have been avoided had a single national organization taken charge of the effort in the way that the NAACP led on desegregation or the ACLU on free speech. Because the individual and loosely networked lawyers of the vagrancy law challenge never coalesced around a single doctrinal theory, she contends, the lawyers unnecessarily ceded doctrinal control to judges.

I appreciate Weinrib's desire for doctrinal singularity. Just as I had sought in vain the singular organization that took charge of the campaign, I sought in vain for the singular doctrinal framework that would result from it. Throughout the vagrancy law challenge, neither lawyers nor judges coalesced around a single approach to invalidating vagrancy laws. The lawyers who practiced on their own, the majority of whom were loosely affiliated with national organizations, and those deeply enmeshed in such organizations all took the “kitchen-sink” approach. The institutional location of the lawyer did not make him (or occasionally her) more likely to narrow down the doctrinal choices.

Indeed, I eventually came to the conclusion that multiplicity was the doctrinal coherence of the vagrancy law challenge. What Weinrib takes as a bug, I see as a key feature. The vagrancy law challenge emerged out of so many different lived experiences of vagrancy enforcement, and those experiences on the surface seemed to sound in so many different doctrinal concerns. For the civil rights activist, it was the Fourteenth Amendment's Equal Protection Clause; for the “idle” poor, the Eighth or Thirteenth Amendment; for the soapbox orator or antiwar protestor it was the First Amendment; for the hippie it was the fundamental right to a lifestyle; to the likely felon, the Fourth or Fifth Amendment. If each lawyer had confined each victim to his or her own lane, the result would have been doctrinal isolation, conflict, or incoherence. If one lawyer or organization had managed to impose a singular vision for the entire panoply of cases, the result would have been considerable distributional lumpiness. Though coalescing around a single argument might have sharpened the doctrinal bite, it also would have been narrower and incomplete in scope. One doctrine simply did not fit all. That the lawyers borrowed, piggy-backed, and analogized from one context to another—that they brought together discrimination and arbitrariness, speech and equality, crime control and fundamental rights, that they cited free speech cases in racial equality ones and equal protection cases in hippie ones and both in cases involving pretexts for more serious crimes—was what ultimately made coherence possible.

In the end, the existence of coherence in multiplicity on a doctrinal level is not only key to understanding the vagrancy law challenge; it also underscores my larger point about the relationship between vagrancy and the Warren Court's constitutional revolution of the 1960s writ large. The lawyers’ repeated insistence on the multiplicity of implicated legal doctrines allowed Justice William O. Douglas to see and then encompass the entire 1960s in his unanimous opinion in Papachristou. Together with a capacious methodology and narrative and thematic coherence, it allows historians today to tell an integrated legal history not only of the vagrancy law challenge but of the decade itself.