Early Fissures in the Vagrancy Law Regime

In her opening chapter, Goluboff sketches the contours of early-twentieth century vagrancy laws and the initial efforts to chip away at them. In Goluboff's view, the developments she describes are “better understood as resources for, and precursors to, the vagrancy law challenge of the 1960s than the beginning of the story itself” (10). Yet these early cases are essential to understanding judicial skepticism toward vagrancy law in the post-New Deal period.

Vagrancy laws, as Goluboff explains, were formidable weapons in the early twentieth-century effort to contain and disarm union workers (15–20). Historically, such laws had shaped the terms of work, and their deployment to arrest union organizers or striking workers was unsurprising (Stanley Reference Stanley1992; Montgomery Reference Montgomery1995). Sometimes, states sought expressly to update vagrancy laws for modern labor conflict.Footnote ⁵ Other times, police and prosecutors simply applied old laws to new facts. Under either approach, vagrancy arrests were often effective in disrupting union activity. It is no wonder, then, that organized labor and its legal arms were at the forefront of the interwar attack on vagrancy law.Footnote ⁶

These early skirmishes over vagrancy law were part of a broader labor-led assault on legal legitimacy that, as I have argued elsewhere, helped to shape post New Deal constitutionalism (Weinrib Reference Weinrib2016b). Public officials' often flagrant disregard for procedural protections and supposed constitutional principles prompted charges of hypocrisy that threatened to destabilize the legal order (Forbath Reference Forbath1991; Hattam Reference Hattam1993; Rabban Reference Rabban1997). In this escalating engagement, vagrancy law and its abuses made an effective rallying cry. Even the New York Times expressed concern, in 1922, that Kansas's “revival of the old ordinance against ‘vagrants’” came so close to endorsing “forced labor” that it handed Samuel Gompers “the color of a pretext for his long-familiar outcry against ‘enslaving’ the workers” (New York Times 1922).

At first, lawyers sought to overturn convictions on the basis of insufficient evidence or procedural irregularities, as they did in the domain of free speech. The left and labor newspapers of the 1930s teem with reports of phony vagrancy charges—a practice that labor groups identified with a lopsided legal system in which justice for workers was unattainable. More moderate outlets such as the New Republic complained that union activists charged as “thousand-dollar vagrants” were “kept behind bars, in actual if not technical violation of their constitutional rights” (New Republic 1934).Footnote ⁷ Such case-by-case concerns quickly morphed into a broader attack on the constitutionality of the vagrancy regime. Already in the mid-1930s, the ACLU and its affiliates—which, at that time, were closely aligned with labor groups—were actively seeking a test case on the constitutionality of vagrancy laws, hoping to bring the issue before the US Supreme Court (ACLU-A 136/928a).

The notion that vagrancy laws exceeded constitutional limitations was, however, hardly novel. No less a constitutional authority than Christopher G. Tiedeman considered “the whole method of procedure” in vagrancy cases to be a “direct contradiction” of ordinary “constitutional provisions” (Tiedeman Reference Tiedeman1886, Sec. 49).Footnote ⁸ In 1935, the Law Revision Commission of New York (which was then considering an amendment to the state's vagrancy laws) reported that “a history of [vagrancy] statutes in the United States is studded by attacks on their constitutionality” (Law Revision Commission 1935, 594). It then proceeded to describe a long list of cases in which vagrancy statutes had been “held unconstitutional as too indefinite” (1935, 596), including laws “providing that a person without visible means of support who makes no ‘reasonable’ effort to procure employment shall be punished”; laws regulating association with “known thieves,” which were “doubtless unconstitutional”; and “statutes which penalize mere ‘loitering’” (1935, 596–97).Footnote ⁹

To be sure, courts varied in their approaches, and many vagrancy laws survived judicial scrutiny. What stands out among those that did not, however, was the judiciary's willingness to undertake meaningful review. Some courts even engaged in facial constitutional analysis, a practice they studiously avoided when considering other “civil liberties” claims (Weinrib Reference Weinrib2016a). As compared with First Amendment protection for the right to strike, which labor attained (if fleetingly) at the end of the decade, the invalidation of vagrancy laws on vagueness grounds seemed a modest goal.

Certainly, the landscape shifted dramatically in 1937, when a beleaguered Supreme Court signaled a new deference to social and economic legislation. Vagrancy laws were paradigmatic police power regulations, and in the months after West Coast Hotel Company v. Parrish (1937), which broke sharply with precedent in upholding a Washington State minimum wage law, it became clear that the ordinary exercise of state and local authority would be effectively immune to constitutional challenge.Footnote ¹⁰ As Goluboff notes, critics of vagrancy-style laws often alleged that they were void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment, which might have seemed uncomfortably close to doctrines that progressive lawyers “had long abhorred” (101).

That explanation is, however, incomplete. As an initial matter, to the extent labor groups regarded vagrancy laws as backdoor avenues to suppressing workers' speech, the New Deal's so-called constitutional revolution—which also entailed more exacting judicial scrutiny of restrictions on freedom of expression and the rights of “discrete and insular minorities” (Carolene Products, 1938)—would only have invigorated the legal campaign. But even aside from the First Amendment dimensions of the problem, vagrancy laws were not unassailable in the new constitutional landscape. That much is clear from Justice Black's dissent in Edelman, which observed that the “free speech question was … obviously involved in this vagrancy prosecution,” while concluding that the statute would be unconstitutionally vague “even were there no free speech question involved.”

The prevailing vision of judicial review in the post New Deal world is often linked in shorthand to footnote 4 of United States v. Carolene Products (Balkin Reference Balkin1989; Gillman Reference Gillman1994). It was in that footnote that the majority acceded to a differentiated scheme of deference that civil liberties advocates had long espoused: henceforth, courts would ensure ample opportunity for public debate over social and economic policy, in the form of free speech; and they would defer to the outputs of that robust democratic process, as long as “‘prejudice’—especially, though not exclusively, against ‘particular religious … or national … or racial minorities’”—did not unduly infect the results. It is no accident, Goluboff tells us, that Louis Lusky, the influential scholar of constitutional law who litigated the key vagrancy challenge of Thompson v. City of Louisville (1960), assisted in drafting footnote 4 as a law clerk to Justice Harlan Fiske Stone. And it is certainly possible, as Goluboff posits, that Lusky declined to challenge Louisville's loitering ordinance as applied or on its face—and instead pursued the unconventional theory that Thompson was arrested and convicted on “no evidence”—because doing so smacked of substantive due process, which Lusky roundly condemned (Goluboff 2016, 100–01).

It is nonetheless worth recalling that both Lusky and Stone espoused a relatively capacious vision of footnote 4, which prioritized fairness in the political process (Lusky Reference Lusky1982; Linzer Reference Linzer1995). In what Lusky considered a misguided concession to Chief Justice Charles Evans Hughes, Stone opened the footnote with a separate rationale for privileging free speech and other civil liberties over property rights, namely, the applicability of “a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” Arguably, the latter justification would have relegated vagrancy law to the bucket of ordinary politics, at least where other constitutional principles were not obviously concerned. On Stone and Lusky's understanding, however, vagrancy laws may have been just the kind of laws that required careful judicial scrutiny.

Notably, Lusky clarified the footnote's underlying impulse just months after Carolene Products was handed down. In a memorandum for the American Bar Association's Committee on the Bill of Rights, Lusky worried that unpopular groups would prove incapable of defending their interests through the political process. The “best [he was] able to do in defining ‘civil rights’” was to “differentiate a certain type of rights on the basis of their susceptibility to abuse without popular disapproval of such abuse.” Whereas rights like bodily integrity and private property had many eager defenders, few would protest those incursions that conferred “good short-run effects” like the “removal of elements leading to disorder.” Yet in the long run, Lusky believed suppression of such rights would have destructive consequences. Indeed, insofar as they potentially affected everyone, not just identifiable minorities, they were all the more dangerous. Lusky thus defined “‘civil rights’ … as rights protecting interests of such a nature that, despite their importance in the social scheme, general popular sentiment is often unlikely to be aroused by their abuse.” However appealing repressive policing might sometimes be, he explained, “oppressive means do not justify even a salutary end” (GCP 80/36; see also Weinrib Reference Weinrib2016b, 251–53). It is easy to imagine how Lusky might have squared his squeamishness about reviving substantive due process with his crusading defense of indigent clients like “Shuffling Sam” Thompson. If he nonetheless declined to mount a facial challenge of the vagrancy laws, it is worth taking seriously his explanation that vagrancy laws were merely the low hanging fruit of a more deeply rooted problem (Goluboff 2016, 100).

Whatever the source of Lusky's misgivings, the crucial point is that the invalidation of vagrancy laws seemed eminently attainable when Lusky litigated Thompson's case in 1960, as Goluboff's description of oral argument implies (33–34, 103). Even Justice Frankfurter, ordinarily an outspoken champion of judicial restraint, considered vagrancy laws an affront to constitutional principles. “These statutes are in a class by themselves, in view of the familiar abuses to which they are put,” he reasoned in the 1940s. “Definiteness is designedly avoided, so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense” (Winters v. New York  1948). As Berkeley law professor Arthur Sherry summed matters up in the California Law Review when the 1960s began: “There is little dissent from the conclusion that vagrancy law is archaic in concept, quaint in phraseology, a symbol of injustice to many and very largely at variance with prevailing standards of constitutionality” (Sherry Reference Sherry1960, 566).Footnote ¹¹

In the postwar period, then, the requisite pieces of a vagrancy law challenge were seemingly in place. Whether it threatened free speech, unpopular minorities, or the integrity of the political process, vagrancy law was on the suspect side of the Carolene Products line.

The 1960s and the Vagrancy Revival

Why, then, did the vagrancy law regime survive? Why did the Court decline to issue decisions in vagrancy cases, even after granting review, in the two decades between Edelman and Papachristou?

My own best guess is that the vagrancy issue had come to seem less pressing to the lawyers and litigants who were best equipped to mount a successful challenge. To begin with, the labor lawyers at the forefront of constitutional litigation in the 1930s had largely abandoned the fight. By the end of the 1950s, labor picketing no longer enjoyed the First Amendment protection it had achieved in the late New Deal (Pope Reference Pope2004; Fisk and Rutter Reference Fisk and Jessica2015). Within the mainstream labor movement, some reluctantly accepted the terms of the new arrangement, which reduced constitutional protection for employers and antiunion workers along with union speech (Estlund Reference Estlund2015). In any case, police no longer bothered striking workers the way they once had. Framed optimistically, the constitutional struggles of the interwar period had normalized union practices and immunized them from criminal law. More cynically, state officials tolerated labor because labor had been defanged. A combination of statutory constraints, organizational priorities, administrative law, and judicial decisions had stripped unions of their coercive power and contained their threat to the existing order (Weinrib Reference Weinrib2018). Either way, perhaps one reason vagrancy law litigation stalled in the postwar period was that labor lawyers lost their impetus to lead the way.

Meanwhile, the social movements that clung to constitutional litigation had set their sights on loftier targets than vagrancy laws. The constitutional realignment of the postwar period, especially in conjunction with the gradual incorporation of the Bill of Rights through the Due Process Clause of the Fourteenth Amendment, opened new and more substantively sweeping avenues of constitutional change. Armed with an invigorated First Amendment, they took aim at leafleting laws, street-speaking ordinances, and police deference to hostile audiences (Kalven Reference Kalven1965). Equipped with the promise of more searching scrutiny in equal protection cases, they began to challenge Jim Crow itself (Kluger Reference Kluger1975; Tushnet Reference Tushnet1987; Brown-Nagin Reference Brown-Nagin2011). Such efforts were fiercely resisted by state and local officials, yet steadily they were gaining ground—for reasons that Goluboff herself, among others, has explicated in groundbreaking work (Goluboff Reference Goluboff2007).

There were, of course, plenty of people with much to gain from the invalidation of vagrancy laws—defendants whom vagrancy laws captured on their terms, not in their deliberate misapplication. Those defendants, as Goluboff emphasizes, “had little luck finding legal counsel” (4), and they lacked the resources and expertise to bring their cases before the Court. “The very classes of citizens against which vagrancy statutes in this county are universally directed are just those classes, the ‘consumers of injustice,’ which are least able to litigate their constitutionality,” the ACLU reasoned in 1964, concluding that “this doubtless explains in large part the paucity of judicial authority on the question” (Arceneaux Brief, 5).

But it was not just a matter of access or understanding. Lawyers who might once have seen vagueness challenges to vagrancy laws as the most promising way to help their clients and their causes had begun to pursue other paths. Even lawyers whose clients were routinely caught up in vagrancy policing often regarded the laws themselves as beside the point. Louis Lusky was very likely right to conclude that “it actually makes no difference at all what ordinance or statute the petitioner is accused of violating,” as “there would always be another ordinance or statute which could be made the excuse for a new criminal charge” (Goluboff 2016, 100, quoting Lusky). Invalidating vagrancy laws would only serve to obfuscate and legitimate discretionary policing.

Lusky's intuition, of course, might have cut both ways. It is strikingly evident from Vagrant Nation that as movement lawyers made headway in dismantling a network of explicitly repressive and discriminatory laws, vagrancy laws were there to take their place. That process was already apparent within a decade of Carolene Products. As the director of the ACLU's southern California branch explained to the national office in 1949, vagrancy arrests of street speakers proliferated after “we carried a case to the Appellate Court to secure the elimination of a local ordinance in conflict with a United States Supreme Court decision” (ACLU-P 516/22). Still, it was only in the 1960s that the fallback to vagrancy was clear to the loose network of lawyers who represented the many and varied defendants of that decade. As they began to see the value in reducing the number of open-ended laws available to officials, officials clung to vagrancy law ever more fiercely. “Infringements by government upon the protections of the Bill of Rights [were] increasingly appearing under devious and subtle guises,” the ACLU explained, and vagrancy statutes were ideal instruments for this “subterranean assault upon civil liberties” (Arceneaux Brief, 2).

In short, in the period between the New Deal and the 1960s, when social conflict was less pronounced, the stakes of invalidating vagrancy law were relatively low for litigants and officials alike. Crime was not unduly worrisome in 1951, when the New York Civil Liberties Union contested the constitutionality of New York's vagrancy law under the Thirteenth and Fourteenth Amendments, and so the Correction Officers Benevolent Association expressed the “approval of the entire membership” for the organization's position (ACLU-P 929/18). The Second Red Scare, though initially an obstacle to constitutional claims by communist defendants, eventually abated. Perhaps most important, officers' vagrancy authority was not yet mixed up with the assault on Jim Crow, as Goluboff poignantly illustrates in the context of Thompson. In this calm before the storm, the justices seemingly awaited neither doctrinal innovation nor social transformation, but simply an appropriate vehicle.

In the 1960s, these background conditions rapidly shifted. Before then, invalidating vagrancy laws was possible but unessential. Afterward, as Vagrant Nation so vigorously conveys, it was important but also deeply fraught. Nowhere is this trajectory more apparent than in Goluboff's illuminating analysis of 1968. As social unrest unfolded on a staggering scale and the Warren Court took heat for rising crime and disorder, “vagrancy invalidation no longer seemed like either a sure or a good thing” (216). In this painful moment, Goluboff recounts, “[t]he message … was of a Court that seemed to have moved further from, not closer to, invalidating vagrancy laws after some fifteen years of constitutional challenge” (220).

But by the time the stakes were evident, it may have been too late to launch the kind of closely coordinated legal challenge that shaped constitutional doctrine in other domains. In any case, as Goluboff emphasizes, no such campaign emerged. Instead, if the catalog of vagrancy cases had a unifying theme it was their common mismanagement. That was true even in the otherwise capable hands of the ACLU, which (as the organization's legal director explained in 1960) was “very much concerned with vagrancy legislation and its application” but had left such matters to be “handled by [its] local affiliates” (ACLU-P 971/25). Since the 1930s, the national office had advised affiliates when it was uncertain whether a case would “prove a good [one] to appeal,” or when it was “not enthusiastic about the value of [a] case in challenging the outrageous import of the vagrancy laws” (ACLU-A 136/928b). It had nonetheless declined for decades to groom an appropriate candidate on its own (ACLU-P 971/25). When it finally agreed to argue a case directly, it was on behalf of Stephen Wainwright, whose case, like so many others, was dismissed as improvidently granted because of its awkward procedural posture (Wainwright v. New Orleans  1968; Goluboff 2016, 212). Notably, Wainwright had filed his own petition to the Supreme Court before the ACLU became involved, and the procedural infirmities only subsequently became apparent. Such obstacles were by that time a familiar feature of vagrancy cases. As the ACLU's acting legal director expressed the point in 1967: “We cannot always choose our cases, and rarely indeed do we get one which is optimum” (ACLU-P 1731/2).

The End of the Vagrancy Era

Goluboff's last chapters paint a portrait of a legal profession markedly different from the movement lawyers who constitutionalized free speech or dismantled Jim Crow. In place of careful (if sometimes ambivalent) deliberation, they feature a mad scramble among ambitious lawyers, each endeavoring to make “his the quintessential vagrancy case” (299). Representing indigent clients had become a career track as much as a calling. These lawyers had little sense of the larger concerns at stake. In stark contrast to their New Deal counterparts and to the Warren Court itself, they were not worried about excesses of judicial power. They were not worried about backlash or incrementalism. To the last, “the end of vagrancy laws … seemed inevitable to many” (323). They were simply searching for the “big one” (299), hoping to find it and emerge with “Supreme Court glory” (309).

In the end, then, it would fall to the Supreme Court to set the rules of engagement and anoint a winner. Goluboff maintains in Vagrant Nation, as she has in previous work, that “constitutional change does not begin and end at the Supreme Court” (7). Whereas a “conventional approach would likely place Supreme Court Justice William O. Douglas at the center,” she tells us, the vagrancy law challenge “offers a model of constitutional change that very much began ‘from below,’” even if it “did not remain there” (7). Yet the Papachristou decision deliberately avoided the difficult questions that 1960s advocacy had raised. Indeed, Justice Harry Blackmun found it “eas[y]” to sign on to Papachristou—which involved an ordinance that was “almost limitless in its sweep” and was “vague if any language ever is in this day and age”—even as he vacillated over a companion case, Smith v. Florida, which more squarely presented the decade's concerns about crime control and failed to garner a majority for reversal (313–14). Papachristou, which was unanimous, rested on a narrow basis that preserved plenty of space for police discretion and that had always seemed the simplest and most straightforward approach. In the dismantlement of the vagrancy law regime, litigants and lawyers certainly played a part, as did the lower courts. But even in Goluboff's reluctant telling, the justices, and Justice Douglas in particular, ultimately assumed an outsize role.

Indeed, Douglas's interest in vagrancy cases seems to have spawned as much as responded to the litigation of the 1960s. As Goluboff notes, Douglas maintained a subject file on “vagrancy” beginning in the late 1950s (105). He balked at the vagrancy laws because of his rebellious spirit, his aversion to spatial or spiritual confinement, and his attitude did not escape attentive lawyers. As early as 1963, a Covington & Burling attorney involved with a high-profile vagrancy case sought to solicit ACLU assistance with the assurance that “Mr. Justice Douglas has very outspoken views on vagrancy statutes and the abuses to which they are put and he might be expected to be a forceful advocate for striking down the vagrancy statutes involved” (ACLU-P 1216/831). A few years later, Stephen Wainwright found it easy to prepare his own petition for writ of certiorari to the Supreme Court, given that “Justice Douglas had written about things like this before” (Goluboff, 190–91, quoting Wainwright).

The extent of Douglas's commitment to abolishing vagrancy laws is nicely captured by his conviction that accomplishing the task was more important than reaching the moon (Douglas Reference Douglas1960b, 14). He made that pronouncement in March 1960, just days before the Court issued its decision in Thompson, in an address to the University of New Mexico School of Law. Although the 1960s had barely started, his lecture strongly anticipated the tenor of the Papachristou decision that he would author more than a decade later. As in his 1972 decision, Douglas extolled the “right of a person, though indigent or destitute, to move freely from state to state” (1960b, 2). To be sure, the details evolved over the intervening years. The “judges and lawyers who, afflicted with insomnia, have wandered the streets at night” (1960b, 4) became in Papachristou “sleepless people [who] often walk at night” (Papachristou 1972, 163). Douglas omitted a nod to his “old friend Carl Sandburg,” whom he addressed in the earlier speech “as Fellow Hobo” (Douglas Reference Douglas1960b, 3). He expanded his quotation of President Roosevelt's veto message of a District of Columbia vagrancy law. His discussion of unfettered police discretion and the resemblance between vagrancy and arrests on suspicion or investigation shifted its focus from New Mexico to Florida. But the basic building blocks were firmly in place. In 1960, as in 1972, Douglas valorized the “wanderers, men of the ‘open road,’” the “same people who have been the heroes of much of our great literature and whose way of life has been glorified and envied by others for generations” (1960b, 2–3).

Douglas's 1960 lecture also previewed the core doctrinal tenet of Papachristou: that vagrancy laws were “too vague to satisfy constitutional tests” (1960b, 7). In fact, when he finally wrote the majority opinion he had anticipated for decades, Douglas eschewed the varied constitutional concerns he invoked in his New Mexico address in favor of a single, simple doctrinal hook. He declared the vagrancy laws at issue in Papachristou void for vagueness, just as state court judges had done intermittently for generations and he and Justice Black had urged the Court to do in their dissent in Edelman in 1953. Despite its kinship with liberty of contract and other Lochner-era detritus, vagueness had remained more palatable to judges and legal scholars than other exercises of counter-majoritarian constitutionalism. Alexander Bickel famously commended the doctrine for its deference to the legislative process. “When the court declares the statute void for vagueness, it withholds adjudication of the substantive issue in order to set in motion the process of legislative decision,” he explained in his Harvard Law Review foreword to the Supreme Court's 1960 term, adding (with a footnote to Justice Douglas's 1960 vagrancy lecture, among other sources) that laws used “to blackmail and harass and cajole people” were periodically invalidated on vagueness grounds (Bickel Reference Bickel1961, 45). In doing so, he continued, a court “does not hold that the legislature may not do whatever it is that is complained of, but rather asks that the legislature do it, if it is to be done at all” (1961, 63).

What lawmakers did in the wake of Papachristou was to recreate much of what Papachristou took from them, albeit incompletely and with much work. In her conclusion to Vagrant Nation, Goluboff lucidly expounds the concrete consequences of the vagrancy law challenge: through Papachristou and other cases, “people out of place gained a constitutional resource in future conflicts over state authority, and police departments lost one” (339). Curtailing police discretion produced greater regulatory transparency (343). It forced the state to articulate the conduct it was regulating, and thus presumably exposed its choices to pushback and political scrutiny. Police officers retained the power to stop people out of place, but they were more constrained in their choices.

Such concessions might seem meager consolation to the erstwhile targets of vagrancy laws. Vagrant Nation is a book with deep resonances to the present. The kinship between the old vagrancy law regime and contemporary patterns of racially disparate policing are painfully apparent. Papachristou did not significantly ameliorate police harassment of disfavored groups. That failure, I suspect, was over-determined; whatever the roots of our contemporary crisis, they are deeper than an insufficiently ambitious vagrancy strategy. Meanwhile, as Louis Lusky feared, the heirs to Shuffling Sam have seen little meaningful progress. Local governments have relied on disorderly conduct laws to accomplish much of what vagrancy laws once did. They have continued to criminalize begging, with new enthusiasm since the most recent recession, and some have even imposed restrictions on sharing food.Footnote ¹² States and localities have turned to slum clearance, welfare restrictions, and zoning laws to keep unwanted people in their place (Katz Reference Katz1986, 155). Goluboff is plainly right that Papachristou mattered, but as she forcefully acknowledges, it was not “a comprehensive solution to the constellation of problems that had prompted and sustained the vagrancy law challenge” (338).

Whatever the practical effects of Papachristou, much of its significance was surely symbolic. Yet even on symbolic terrain, its power was limited. The capacity of vagrancy law to maintain social hierarchy was clear to officials as well as defendants, but eliminating the laws was hardly a declaration that African Americans, gay men, or long-haired hippies were people of equal social worth. By the same token, while a vagrancy conviction was certainly stigmatizing, few people consider the label “rogue” or “vagabond” core to their identities. It is telling that Lorraine Papachristou barely registered the historic implications when her Supreme Court victory came down (Goluboff 2016, 332).

If Papachristou delivered an intelligible message, it was about non-arbitrariness as much as cultural pluralism. The effect of Papachristou was not primarily to constrain discretion in fact, but to declare that the United States was not a country in which people were subject to the whims of capricious officials.Footnote ¹³ Justice Douglas made the point explicitly in his opinion. The “unfettered discretion” that Jacksonville's ordinance conferred on police was better suited to the Soviet Union than to America's “constitutional system,” he explained.Footnote ¹⁴

All of this leads me to question whether Justice Douglas's opinion in Papachristou, rather than the climax of the “groovy 1960s ‘happening’” that Goluboff so enticingly constructs (8), is not more accurately understood as a throwback to an earlier era. Here my argument is most tentative. Goluboff casts Papachristou as Douglas's long-sought opportunity to “constitutionalize … his vision of the sixties, his vision of what the sixties had brought to America” (314). Yet Douglas's opinion in Papachristou does not cite any cases that emerged from the 1960s legal battles over race, sexuality, gender, or policing that Goluboff so sharply elucidates. In fact, aside from the Florida cases that bound the lower courts, the only notable post-1960 case included in the opinion is Shuttlesworth v. Birmingham (1965), which Douglas invokes not as an emblem of the civil rights movement, but rather for the proposition that vagrancy enables the discretionary policing of “the poor and the unpopular.” In their brief to the Supreme Court in Papachristou, it was the lawyers for the City of Jacksonville who invoked changing times—who insisted that “what is important is not the laws' history but the laws' current relevancy and socially productive impact in today's modern society, [when] an individualistic, do as you please, society is not only undesirable, but absolutely unthinkable if the nation is to endure” (Papachristou respondent's brief, 19).

On one reading, Douglas was simply prescient: he was a man ahead of his times, whose ambitions could not be realized until the disruptions of the 1960s brought his reluctant fellow justices on board. However, it is also possible to read Papachristou as a relic of a period when “strolling” and “wandering” were as romantic as they were innocuous—an earlier decade when they had shed their taint with labor radicalism and had not yet absorbed the anxieties of 1960s activism. The petitioners' brief cited dozens of cases and commentary from the 1960s, and explicitly invoked the “zone of privacy secured by Griswold v. Connecticut” (Papachristou petitioners' brief, 12). Douglas declined to bite—in part, as Goluboff explains, to build a sturdier coalition for the right to privacy underpinning Roe v. Wade (1973). Meanwhile, Douglas's refusal to limit his decision to social control vagrancy policing, his unwillingness to preserve space for vagrancy law in crime control policing, is just as legible as a failure to grapple with the purported crime wave of the late 1960s as a conscious embrace of the “stop-and-frisk-for-vagrancy swap” (326). One has the sense that Douglas never moved beyond what he described in his 1960 address in New Mexico as “my day,” when the paradigmatic vagrancy defendant was one whose “only crime, if such it was, was being an I.W.W.” (Douglas Reference Douglas1960b, 5).

Vagrant Nation concludes with a chapter describing what Papachristou might have been, the judicial endorsement of nonconformity that it might have become. Douglas's draft opinion described walking and wandering as “part of the amenities of life as we have known it,” amenities “so basic and elemental in our scheme of values that … they are part of the ‘liberty’ of the individual that is protected by the Due Process Clause of the Fourteenth Amendment against infringement by the states” (320). Of course, Douglas had considered the “the right of free movement” to be “fundamental” as early as 1941, when he wrote in a concurring opinion that the movement of persons between states occupied a “protected position in our constitutional system” (Edwards v. California, Douglas concurring).Footnote ¹⁵ Still, an explicit embrace of the Due Process Clause would have marked a significant break with the cagier constitutionalism of mid-century.

Had Douglas's draft opinion prevailed, the imprint of the 1960s might have been more evident, and the chronological and doctrinal distance between the New Deal demise of substantive due process and its subsequent reincarnation might have seemed more germane. As events unfolded, Douglas abandoned even this incremental innovation in the doctrinal apparatus for striking down the vagrancy laws. He traded his more ambitious efforts to constitutionalize the vagrant “lifestyle” in favor of a time-honored paean to “the rule of law” that satisfied Richard Nixon's four Supreme Court appointees, along with the lingering critics of the Lochner era.Footnote ¹⁶ In short, Douglas wrote an opinion that he might have written, and very nearly wrote, before the 1960s began.

The story of the vagrancy law regime in the 1960s, as Vagrant Nation powerfully illustrates, is one with profound significance for understanding social change and the state's far-reaching efforts to contain it. But the story of its demise may be a story, at least in part, of when and under what conditions lawyers and social movements fail to remake law.