'Entitled To Have a Hearing': Due Process in the I890S
| Author | Susan Sterett |
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| DOI | http://doi.org/10.1177/096466399400300104 |
| Subject Matter | Articles |
’ENTITLED TO HAVE A
HEARING’: DUE PROCESS IN
THE I890S
SUSAN STERETT
University of Denver, USA
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INTRODUCTION : DUE PROCESS AND POLITICAL CLAIMS
UE
PROCESS provided a powerful lens for understanding American
political issues in the late nineteenth century. Debate among elites over
the
regulation of railroads partly centered on what was fair process in
administrative action. Chinese immigrants, shut out by increasingly stringent
exclusion acts, used due process claims to criticize the acts and their adminis-
tration ; courts evaluated what constituted due process in evaluating those claims.
Finally, due process provided an organizing framework for the African-
American anti-lynching campaign, the national publicity for which began in
1892 with Ida B. Wells. Due
process was a language and strategy used in political
contexts from defending the most privileged - the railroads - to the most
disenfranchised. The deployment of that language and governing strategy in such
a range of political contexts provides an opportunity to critique theories of rights
that find an intrinsic meaning to rights as a political organizing strategy and set of
claims. Rights must be understood in the context in which they are claimed and
as part of the overall political field in which they are used. They can have a
liberating potential, one that works as best possible within existing limits, as
rights claims did in the anti-lynching campaign. Rights claims can also work in
defense of privilege, as they did in railroad regulation. In immigration, the claims
were made
to protect immigrants against the actions of administrative agencies;
their availability was actually limited by courts because immigrants were not
entitled to as much as citizens.
,
SOCIAL &
LEGAL STUDIES (SAGE, London, Thousand Oaks and New Delhi),
Vol. 3
47
(1994), 47-70
48
This paper will trace the use of due process concerns in administration and
courts as well as political organizing in these three policy areas during the 1890s. I
argue that a synthesis of skeptical and affirming analyses of rights emphasizes the
flexibility available within dominant discourse. The very conservative political
use of due process rights is, in turn, part of what gave them a critical edge in
criticizing lynching. After considering the alternative theories of rights deployed
in the United States, I turn to due process disputes in railroad and immigration
regulation. Finally, I will examine how due process was used as a political claim
in anti-lynching activity. I argue that far from depoliticizing claims to equality,
due process provided only one part of an effort to stop lynching. While
regulation is often analyzed, railroad and immigration have only recently been
compared for the similarities and sometimes sharp contrast in how the courts
treated the issues.
Due process is a particularly useful site for exploration of the uses of rights
claims. Not only was it an important lens for issues in the late nineteenth century,
it has shaped the politics of administration in the United States throughout the
twentieth century (Shapiro, 1986). As rights that are most process based and least
obviously connected to other ends, due process rights could be considered the
least promising for achieving change. On the other hand, within the American
context, such rights have been argued to be necessary though not sufficient for
justice (Selznick, 1969).
THE POSSIBILITIES OF FORMAL RIGHTS
The politics of rights in twentieth-century life has had roughly speaking two
theoretical interpretations. First, scholars have argued that rights have little
critical bite. Instead, the language of rights reifies individuals and separates us
from any possible community (Unger, 1986). To the extent that courts are the
institutional bearers of rights, many have argued that a hope that courts can
transform the social world is simply a mistake that ignores the very real
constraints courts operate under (Edelman, 1967; Rosenberg, 1991 ). To claim a
right, particularly from a court, asks for social transformation from an institution
that is thoroughly embedded within existing power relations. It does not attend
to the necessity for more widespread transformation (Rosenberg, 1991). The
assumption within this perspective is that people have expected total transform-
ation from requesting court-based action, or that requesting rights distracts from
other approaches to political action.
In this vein, analysts have pointed out the unintended consequences of
claiming a right, again particularly from courts. Rights claims have mobilized
opposition; for example the pro-life movement in the United States gained real
momentum after the Supreme Court’s decision in Roe v. Wade (Rosenberg,
1991). Rights that are won for subversive political speech become available for
the protection of commercial speech (Fudge and Glasbeek, 1992); formal legal
equality is usually taken to require that rights not be limited to the substantive
claims staked out in a particular case. The particular use of equality in American
49
constitutional practice has meant that it has been at least as useful for men
claiming formal sex discrimination as it has been for women in the United States
(Mansbridge, 1986). Indeed, part of the practice of rights as courts implement
them is that they are not limited to the specific claimants immediately before the
court, but generalizable across some class not to be delimited by reference to
irrelevant characteristics, often including political point of view.
Far from reflecting the naivete of claimants, the multiple uses of rights
discourse is part of what gives it its power. It is not ’special pleading’.
Furthermore, that the claims can be turned to other purposes does not
distinguish rights claims from other strategies in politics. For example,
mobilizing for the ERA in part gave a reason for organizing to anti-equality forces.
There was not STOP ERA before there was an equal rights movement (Mans-
bridge, 1986). Furthermore, rather than being simply a strategy of the oppressed,
rights claims have characterized much of American politics. That universally
recognized point is often elided by focusing on the possibilities of rights as
deployed by groups attempting some analytically ill-defined change, as though
political change is a uniform thing across fields. It is assumed rights are used by
and useful to the privileged. But understanding political change is messy; those
who deploy arguments in courts or any other institution do not all move in one
direction or another. For example, railroads in using claims to due process were
trying to stop or shape regulation after the Interstate Commerce Commission
was created in 1887. This is neither a clear cut defense of the status quo nor
pursuit of a complete transformation in politics. Indeed, that ambiguity is in part
why some analysts (Fudge and Glasbeek, 1992; Rosenberg, 1991) criticize the
use of rights by the less privileged. However, approaching the problem as one of
understanding the use of a common discourse across contexts avoids these
ideological pitfalls of focusing primarily on one type of group’s use of a common
discourse. By embedding a strategy within a field, we can compare it with others
that were used, whether any backlash use of the universal rights declared
outweighed the use to which they were put, and whether the backlash can
actually be ascribed to the use of the rights in the first place. The answers to any of
these questions are almost certainly historically specific and, perhaps, variable by
field.
The second main strand of discussion of rights is much more open-ended and
provides opportunities to address the possibility of contingency, which I raised
earlier. First, we can attend not simply to courts as the institutional carrier of
rights claims, but to how people use rights claims in all of life. Rights need not be
tied to courts, or not only to courts (McCann, 1991; O’Connor, 1981). Second,
and related, rights claims and victories from courts need not be seen as ends in
themselves. Instead, they are valued both for what they can accomplish directly
and for being useful in many arenas (Scheingold, 1974). Victories from courts or
the threat of suits can be useful in bargaining with institutions and in gaining
publicity, thereby mobilizing public support for a claim (McCann, 1991). This
approach opens up the understanding of rights from the decisions courts make to
the much looser understanding of rights as deployed in politics.
This latter approach either argues the intrinsic emancipatory potential of rights
50
or, more plausibly, argues for no particular intrinsic meaning at all. Rather, what
rights mean and how they work depends on the social field in which they work.
Nancy Fraser has intervened usefully in this discussion when thinking through
the politics of the welfare state and claims for needs. She argues,
It is true, as Marxists and others have claimed, that classical liberal rights to free
expression, assembly, and the like are ’merely formal.’ But this says more about the
social context in which they are currently embedded than about their ’intrinsic’
character, for, in a context devoid of poverty, inequality, and oppression, formal
liberal rights could be broadened and transformed into substantive rights, say, to
collective self-determination. (Fraser, 1989:183)
For the purposes of understanding a politics of rights, the problem needs to be
pushed one step further: in an existing context, not some...
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