Introduction

In Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, Risa Goluboff crafts a richly detailed and sharply analyzed account of the successful challenge to vagrancy laws in the United States between the late 1940s and the 1970s. The book centers on two groups of intersecting characters. There are the political radicals, civil rights activists, homosexuals, prostitutes, hippies, and many others who found themselves on the wrong side of the “vagrancy law regime”—Goluboff's label for state and local laws that regulated “people out of place,” such as vagrancy, loitering, and suspicious persons laws. And there are the lawyers who challenged their convictions as contrary to basic constitutional principles, participants in a loosely coordinated litigation campaign that culminated in the 1972 Supreme Court decision Papachristou v. City of Jacksonville, which held that vagrancy laws were so vague as to violate due process of law. The paths that brought members of these two groups into the story are varied, each one filled with its own twists, turns, and detours. Simply drawing them together into a coherent narrative is an achievement of both scholarship and art.

Although Vagrant Nation has been the focus of several insightful review essays (e.g., Meares Reference Meares2017; Seo Reference Seo2017), the format of a Law & Social Inquiry review symposium allows for a more wide-ranging, multi-perspectival, and interdisciplinary evaluation. The following pages offer a probing discussion of Vagrant Nation's achievement and the agenda it suggests for legal history and, more generally, socio-legal scholarship. In this introductory essay, I summarize Vagrant Nation, its major topics, themes, and arguments, and offer my own appraisal. Three legal historians then offer their assessments of Vagrant Nation. Karen Tani places the book in the context of the broad transformation of mechanisms of governance in twentieth-century America and recent historiography on this issue. Christopher Agee considers Goluboff's contribution to the history of crime and policing in the modern United States. Laura Weinrib examines the vulnerabilities of the vagrancy law regime in the middle decades of the twentieth century and suggests an alternative explanation of its fall. Risa Goluboff concludes the symposium with her response to these contributions.

Vagrant Nation: A Summary

Vagrant Nation unfolds in roughly chronological fashion, running from the 1940s through the 1970s. At the start of Goluboff's story, every state of the union did what governments in the United States and England had done for centuries: they made it a crime to be a vagrant. Vagrancy laws had stood the test of time because they served valuable purposes for those charged with preserving law and order in their community. They gave police nearly limitless discretion to regulate people they deemed unusual, unpopular, or threatening. These were laws “built for hierarchy and social order,” Goluboff writes. They were used “for a breath-taking array of purposes: to force the local poor to work or suffer for their support; to keep out poor or suspicious strangers; to suppress differences that might be dangerous; to stop crimes before they were committed; to keep racial minorities, political troublemakers, and nonconforming rebels at bay” (2–3).

Having established the deep historical pedigree and commonplace nature of vagrancy laws, Goluboff dedicates the remainder of the book to describing the interlocking stories of the people who were caught up in the web of the vagrancy law regime and the lawyers who took up their cases.

Goluboff's first protagonist is Isidore Edelman, a left-wing gadfly whose preferred form of communication was standing on Los Angeles park benches and pronouncing his political convictions to anyone within shouting distance. The police thought little of Edelman's form of communication and less of his radical sentiments, particularly as Cold War tensions heightened in the late 1940s; they arrested him dozens of times on a variety of charges. One of these arrests was for being “dissolute,” a violation of California's broadly worded vagrancy law.

The state's prosecution of Edelman—highlighted by a nine-day jury trial to determine whether he was indeed “dissolute”—brought to his side top-notch lawyers who were connected to the American Civil Liberties Union. The ACLU had a track record of challenging vagrancy prosecutions, particularly when used, as they often were, to suppress union organizing. The raw weight of history made taking a stand against vagrancy law prosecutions an intimidating task, but by the late 1940s, the federal courts were showing increased willingness to strike down state and local law enforcement practices that undermined personal liberties, particularly free speech. Edelman's lawyers were the first in a long line of leftist and liberal lawyers in Goluboff's narrative who elevated a minor local law enforcement dispute into a constitutional controversy. Although they failed to persuade the jury to acquit their client, they ultimately appealed his case to the US Supreme Court. The Court eventually dismissed Edelman's case, but only over a strong dissent signed by Justices Hugo Black and William Douglas—a critical early signal to the legal community, Goluboff notes, “that there might really be a constitutional problem with vagrancy law” (39).

Among the growing ranks of vagrancy law regime critics scattered throughout the nation, a key challenge was determining how to frame the issue as a distinct legal problem. To strategize potential legal solutions, they first had to define the problem in a way that resonated not only with dedicated leftist and civil libertarian lawyers, but with judges and lawmakers. The sprawling coverage of the vagrancy law regime made it hard to know who were its primary victims and how to best frame a legal challenge. The California law that caught up Edelman included among its definition of vagrant anyone who lacked a visible means of support, anyone who “roams about from place to place without any lawful business,” and anyone who is “lewd or dissolute.” (Police used this last provision—commonly referenced by the shorthand “vag lewd”—to target gays and lesbians.) Over the course of the 1950s, explains Goluboff, civil libertarian lawyers in California were collecting supportive court decisions and developing two overlapping challenges to vagrancy laws, one focusing on the vague nature of the laws themselves, the other on the police who abused the power the laws gave them. Although court-based challenges had limited success in this period, in 1962 these lawyers helped persuade California state legislators to repeal the state's vagrancy law.

Goluboff next turns to the case of “Shuffling Sam Thompson,” which brought together two particularly memorable individuals. (Vagrant Nation is filled with artfully crafted character portraits.) Sam Thompson, an African American, was an occasionally employed handyman and alcoholic who, in Louisville in the 1950s, was arrested more than fifty times on various minor charges, vagrancy among them. Taking an appeal of one of Thompson's convictions to the US Supreme Court was the brilliant and uncompromising Louis Lusky. After graduating first in his class from Columbia Law School, Lusky clerked on the Supreme Court for Justice Harlan Fiske Stone, worked at a big New York City law firm, and then returned to his native Louisville to practice law, where he also helped establish the Kentucky affiliate of the ACLU.

The case that brought Thompson and Lusky together began in 1959 when police arrested Thompson on charges of loitering and disorderly conduct. Thompson had been wandering around a restaurant—named, with poetic aptness, the Liberty End Café—for some thirty minutes, talking with customers and shuffling his feet to music playing in the background. Thompson said he was just trying to stay warm while waiting for a bus. A Louisville Police Court judge convicted Thompson on both charges and fined him $20. Since the verdict did not allow for appeal in the state court system, Lusky was able to appeal Thompson's case directly to the US Supreme Court. Owing in part to Lusky's reputation, the justices took the case.

Before the high court, Lusky focused not on the substance of the loitering and disorderly conduct laws themselves, but on the procedure that led to Thompson's conviction. His basic argument was that Thompson had been denied due process because he was found guilty despite the absence of evidence that he had actually violated the law. Lusky argued that Thompson was convicted because of who he was—the knowledge of the police and judge of Thompson's long rap sheet and their belief that he was a vagrant—not because of what he had done that day. Lusky was challenging, albeit indirectly, the idea that status rather than conduct could be the basis of a criminal conviction. As Goluboff explains, this status-conduct distinction was a key element of the larger challenge to the vagrancy law regime that was taking shape. In Thompson v. Louisville (1960), the Supreme Court accepted Lusky's commonsensical, if doctrinally innovative, “no evidence” due process argument.

Although Lusky chose not to emphasize Thompson's race as a legally significant component of the case, the Supreme Court's ruling was a critical precedent for lawyers defending civil rights activists against southern law enforcement efforts to stifle challenges to Jim Crow.

White southerners had a long history of using the criminal code as a tool of racial oppression. With civil rights activism gaining strength in the decades following World War II, and with Brown v. Board of Education (1954) and its judicial progeny limiting southern officials' ability to legally mandate racial segregation, segregationists increasingly relied on race-neutral laws to defend the racial status quo (Schmidt Reference Schmidt2014). In 1958, Birmingham police showed up at the home of civil rights leader Fred Shuttlesworth and arrested three of his out-of-town guests, all fellow ministers and civil rights leaders, on vagrancy charges. Students participating in the lunch counter sit-in movement that swept across the South in 1960 were arrested on charges of disorderly conduct and loitering. In 1962, Shuttlesworth was again caught up in the vagrancy law regime when Birmingham police arrested him on loitering charges; he had been standing on the sidewalk outside a store that black customers were boycotting. Vagrancy and related laws served as useful all-purpose tools for police officers seeking to intimidate and disrupt civil rights activity.

“The escalation of the civil rights struggle simultaneously clarified and publicized the illegitimacy of the vagrancy enforcement,” Goluboff writes. “Civil rights lawyers became foot soldiers in the fight against vagrancy laws, not necessarily for the laws' own sake, but because of their deployment against the movement” (114). An important early Supreme Court ruling on the prosecution of sit-in protesters, Garner v. Louisiana (1961), applied the Thompson no-evidence standard to overturn a conviction of peaceful sit-in protesters for disorderly conduct. In 1965, the Supreme Court overturned Shuttlesworth's loitering conviction, emphasizing the context of the arrest as part of Birmingham's effort to repress civil rights activism. The use of vagrancy and loitering laws against civil rights activists drew increased public attention to these laws and the risks they posed to lawful protest activities. The civil rights struggle became a struggle not only against Jim Crow but also against abusive police practices. As Vagrant Nation demonstrates, much of the battle against the vagrancy law regime was a struggle to make the issue visible. On this count, the civil rights movement marked a major step forward.

As the vagrancy law regime came under increasing scrutiny because of its featured role in the drama playing out in the South in the 1950s and 1960s, it also faced new challenges from those who fought against legally enforced social conformity. The criminal law should not be used for the purpose of moral regulation, argued a growing chorus of critics. They questioned an array of “victimless crimes” targeting prostitutes, homosexuals, and the unemployed. Like those who fought against white southerners' use of vagrancy law in their defense of Jim Crow, those who challenged its use against these categories of “undesirables” took advantage of changing norms in the larger society to craft more effective legal arguments. The 1960s were an era of often dizzying changes in attitudes toward sexuality and conformity. The sexual revolution, the women's movement, early stirrings of the gay rights movement, the welfare rights movement—these developments chipped away at the moralistic foundations on which the vagrancy law regime stood.

Goluboff charts a parallel challenge to the vagrancy law regime focused on police use of vagrancy and related laws to bypass constitutional constraints in investigating and combating criminal activity. Unlike other vagrancy law battles of the day, where challengers effectively marginalized defenders and their causes, here those defending the laws were law enforcement officials and their cause was the always popular one of fighting crime. Even if willing to accept limits on their use of vagrancy laws to regulate morality or defend white supremacy, police stood their ground in defending their authority to take what they claimed were necessary measures to control crime, including the broad grant of discretion vagrancy law gave them to arrest people they suspected of a crime (but lacked probable cause to arrest on those grounds) or people they suspected were about to commit a crime. In these cases, vagrancy was simply a pretext for some other, more serious criminal activity. As crime rates increased through the 1960s and the nation struggled to douse the flames of what had become, by the second half of the 1960s, an epidemic of urban unrest, defending the regulation of vagrancy on law-and-order grounds took on a particular urgency.

Although law enforcement would eventually lose the battle, this loss was softened—and perhaps turned into a victory—when, in Terry v. Ohio (1968), the Supreme Court upheld the police practice of “stop and frisk.” This gave police another way to investigate potential criminal activity when they lacked the probable cause to justify a search under the Fourth Amendment. Police advocates defended stop and frisk as necessary compensation for the constraints the Warren Court placed on police authority when it expanded the constitutional rights of suspected criminals. The justices considered the constitutionality of stop and frisk at the same time they considered the constitutionality of vagrancy laws, and Goluboff offers a fascinating account of how the two lines of cases intersected in the justices' thinking. In Terry, the Court held that police did not require probable cause to stop and search someone; the search only needed to be reasonable. This decision, in the minds of several of the justices, bolstered the case against vagrancy law: take away one crime control tool that was rife with abuse and grant constitutional approval to another, while outlining rules to protect against abuse. On the Court, there was never a clean exchange of one for the other. It would be several years after Terry before the Court struck down vagrancy laws. In the period between 1968 and 1972, when police had both vagrancy law and stop and frisk as constitutionally permissible crime-fighting tools, the Warren Court actually had expanded police discretion. Yet ultimately the Terry decision smoothed the path leading the Court to strike down the vagrancy law regime. Civil liberties lawyers argued that after Terry police no longer needed vagrancy or suspicious persons laws, a sentiment that seemed to resonate with some of the justices on the Supreme Court.Footnote ¹

In the closing years of the 1960s, lawyers who were attempting to topple the vagrancy law regime found new opportunities in cases involving yet another group that was being caught up in the web of the vagrancy law regime: hippies. “The aggressive use of vagrancy laws against often white, often middle-class young people sometimes arrested in their homes for a crime unsuited to either their station or their circumstances went far toward highlighting the anachronistic nature of the laws and the illegitimate authorization of police discretion,” Goluboff notes (222). Judges who expressed bafflement at the hippie lifestyle nonetheless balked at the aggressive use of vagrancy law against people who, in the words of one judge, showed “a high degree of intelligence, clarity of speech, frankness and sense of relevance” (253). At the Supreme Court, Justice William O. Douglas, the celebrant of “beatniks” and “wanderers, men of the ‘open road,’” in particular identified with this new target of vagrancy law (228).

The fall of the vagrancy law regime, in the end, was “shockingly quick,” Goluboff observes. “[T]wenty years is a metaphorical blink of an eye given a four-hundred-year-old regime” (8). The culminating event of Vagrant Nation is the Supreme Court's 1972 ruling in Papachristou v. City of Jacksonville, which struck down a vagrancy statute from Jacksonville, Florida, as unconstitutionally vague. Margaret “Lorraine” Papachristou, a twenty-three-year-old white woman, and a white female friend were sitting in a car in a parking lot with two African American men, an act a Jacksonville police officer deemed criminal. All four were charged with “vagrancy—prowling by auto,” a variant of vagrancy that was not even on the lengthy and creative list of prohibitions in the Jacksonville ordinance. (Goluboff notes the long history of law enforcement using vagrancy laws to regulate interracial sexuality.) Papachristou's case was taken up by Samuel Jacobson, a private-practice lawyer who was collecting test cases in the hopes of being the one who finally persuaded the Supreme Court to strike down vagrancy laws.

The Court eventually took the case and struck down Jacksonville's ordinance as so vague as to constitute a violation of the Constitution's guarantee of due process. The time was right; the vote unanimous. “I do not have very much difficulty with this case,” wrote Justice Harry Blackmun in a personal memorandum. The ordinance “is almost limitless in its sweep, and affords police the authority to detain and arrest one for almost any conceivable and imagined offense” (313).

The difficulties for the justices lay not in getting the votes, but in writing the opinion. The task fell to Justice Douglas. Douglas was not especially interested in the crime control issues that most concerned Blackmun and the other justices. He wanted, Goluboff explains, to write into the nation's constitutional law “his vision of America, his vision of the sixties, his vision of what the sixties had brought to America” (314). He wanted “to distill some essence of the ‘sixties' into a constitutional right” (315), a right that captured the value Douglas attached to mobility and nonconformity. The problem was how to wrestle this unwieldy right into existing constitutional doctrine. The task was complicated by another line of cases involving the potential crafting of new fundamental rights with which the Court was then struggling: abortion. Interestingly (and for reasons Goluboff is unable to fully explain), a majority of the justices went along with the creation of a new fundamental right under the due process clause in Roe v. Wade (1973), but Douglas was unable to convince a majority to do the same in Papachristou. The vagrancy ordinance was struck down not because it conflicted with some substantive constitutional right, as Douglas had initially hoped, but on the grounds that it was unconstitutionally vague.

Goluboff sees this as something of a lost opportunity. After Papachristou, police continued to regulate various forms of nonconformity. Now they just had to do so under a different legal regime, one centered less on status and more on conduct. Legislators passed new laws to criminalize various forms of offensive conduct, thus minimizing the impact of Papachristou. Having Terry v. Ohio on the books also ensured robust discretionary police authority.

Goluboff concludes with an assessment of the demise of the vagrancy law regime. “This book promised a messy history,” she writes, “and the end is no neater than the rest” (338). She warns against overestimating the broader impact of the episode of legal change she has described. “[T]he claims of the vagrancy law challenge were as deeply limited as they were revolutionary,” she offers as a summary of her “messy” history. This is likely a frustrating assessment for those looking for a clear takeaway from the book. It has the virtue, however, of capturing the complexities and contradictions of the preceding pages.

After Papachristou, the police had to work harder, but they were still able to regulate, to a significant extent, people who were deemed out of place. “[T]he functions of vagrancy law were simply too widespread and important to too many people to simply fade away” (341). What had been lost was to some extent replaced with stop and frisk, the passage of new disorderly conduct and breach of peace laws, and more stringent crackdowns on petty crimes in the hopes of deterring more serious crimes (the “broken windows” theory of crime control). There were, Goluboff recognizes, “innumerable ways in which coercive government authority survived the downfall of vagrancy law” (343). If understood as a challenge to “coercion, hierarchy, inequality, or exclusion” (337), then the anti-vagrancy law campaign was a failure.

But Goluboff does not want the reader to lose sight of the significance of the vagrancy law regime and its fall. Her story is one of a “radical and fundamental historical break” (337). The legal regime that developed in its place is more transparent, and none of the laws that attempted to replicate the functions of vagrancy law were as broad and flexible as it was. Having the Supreme Court declare that the Constitution does not allow “this particular, systematic criminalization of nonconformity, dissent, and disorder” was one of those achievements that obscures its own significance, creating a new world in which the old world is largely forgotten. “It is hard to recall,” writes Goluboff, “that millions of people were made vagrants simply for being who they were” (337).

The Achievement of Vagrant Nation

The most significant achievement of Vagrant Nation is, quite simply, that it provides a new way of understanding historical material we thought we knew. Goluboff pulls off the same trick she did in The Lost Promise of Civil Rights (Reference Goluboff2007), locating patterns and significance where others saw only scattered details and digressions. Where others hear noise, she hears music—and she shows us how to do the same.

In Lost Promise, Goluboff examined the efforts of lawyers from the NAACP and the Justice Department to find the legal tools to help oppressed African American agricultural workers in the 1940s, and she found what she called a “lost” vision of civil rights. This vision linked economic exploitation and racial discrimination, and it targeted racial oppression not only by state officials, but also by private actors, such as employers. Its architects looked not only to the equal protection clause of the Fourteenth Amendment, but also to the Thirteenth Amendment and Reconstruction-Era federal laws passed on its authority. This 1940s approach to civil rights was, Goluboff argued, in many ways more capacious and potentially transformative than the civil rights reform agenda that dominated the scene in the 1950s and 1960s, centered as it was on ending racial discrimination by government actors and largely reliant on Fourteenth Amendment litigation (see Lichtenstein Reference Lichtenstein2010).

In Vagrant Nation, Goluboff collects scraps of material that had largely been relegated to footnotes in the traditional stories of the 1960s—the civil rights movement, the New Left, the antiwar movement, the Warren Court's criminal procedure revolution—and finds in the challenge to vagrancy law a cross-cutting, diffuse, yet ultimately consequential episode of constitutional change. She takes an issue that previously resided on the margins of most legal historical accounts of the 1960s and makes a powerful argument that it should be at their center. “Wherever the sixties happened,” she writes, “vagrancy law was there” (5).

One reason Goluboff is able to see newly significant patterns in pieces of history is the attention she gives to the way in which legal problems are categorized and labeled. She locates and describes constellations of legal claims and turns them into identifiable categories of analysis.

In Lost Promise, the key category was “civil rights.” Much of the power of Goluboff's argument in her first book came from her expansion of the category of civil rights to include not just the familiar idea of challenges to acts of racial discrimination by state actors—the model of civil rights embodied in Brown v. Board of Education—but also to include the work of these lawyers in the 1940s who were struggling to find ways to use the law to protect African Americans against economic oppression by private as well as state actors. By using a term that most readers associate with one thing, and using it to describe something related but fundamentally quite different, Goluboff highlighted simultaneously the linkages and discontinuities between the two versions of civil rights. Out of this she crafted a powerful portrait that was at once optimistic (for the possibility that rights claims could be used to challenge economic inequities) and a lament for promises lost.

In Vagrant Nation, the key category is “vagrancy law,” or the “vagrancy law regime.” Vagrancy law, Goluboff insists, should be understood not just as one of many possible arrows in the quiver of police power, but as a distinctive one. It had its own historical trajectory. It was unique in its breadth of coverage and its ability to hide its own powerful regulatory role. It operated to control society in ways that differed from other forms of criminal regulation.

Why, then, has this category of vagrancy law escaped scholarly notice? Goluboff suggests two reasons. The first is the vague, uneven nature of the category. Different states regulated vagrancy in often quite different ways. What Goluboff includes in the category of vagrancy law was often regulated under other laws—such as regulations of loitering and of “suspicious persons.” As a category of legal analysis, vagrancy is something of a mess. “One of vagrancy law's most impressive feats during its reign,” Goluboff writes, “was its relative obscurity—it systematically rendered itself invisible” (333). Much of the power of Vagrant Nation lies in the way she locates these categories of thought in their incipient form, as they emerged from the dynamic interplay of social experience and claim-making by lay actors and the doctrinal tools used by lawyers and judges.Footnote ²

The second reason relates to the eclecticism of the legal challenge at the center of Goluboff's study. She identifies an array of legal arguments used to challenge vagrancy prosecutions. Some challenged vagrancy laws as a violation of a fundamental, constitutionally protected right. These rights were defined in various ways, sometimes focusing on rights related to physical space, sometimes on rights to nonconformity, sometimes both. Some challenged vagrancy laws as an unconstitutional criminalization of status. Some challenged the laws as excessively vague. Some challenged the laws as racially discriminatory. Some challenged them as infringing upon free speech.

Whereas most scholars have thought vagrancy law a detail, with the more relevant category of analysis police power or police discretion, Goluboff carves out a kind of categorical middle ground: a vagrancy law regime, a category narrower than police discretion yet broader than individual laws considered in isolation. Goluboff shows the awakening of lawyers to the idea that vagrancy laws might be a particular category of legal problem, and in the process she makes this category newly relevant for the reader.

A Question and a Challenge

As much as I admire this book, I am left uncertain as to how it fits into the larger framework of legal history. To state the issue in its bluntest terms, how will Vagrant Nation change the way legal historians do what they do?

I start with the two key contributions Goluboff identifies for her book: one is her effort to rethink how constitutional change happens; the other is to rethink the history of the 1960s. Borrowing from the framework Goluboff uses to analyze challenges to the vagrancy law regime, we might think of these are her procedural and her substantive contributions, respectively.