Day 41: Geeking Out on American Victorianism

I really do geek out on the theoretical research and writing that’s an important part of my job. It’s important in the descriptive sense, because it’s literally 30 percent of my job description. But I feel strongly that it’s an important contribution, too. Although the theoretical side of legal writing won’t often be cited in court opinions, the law only developed - and only continues to develop - if some part of the profession devotes time to thinking about what the heck we’re doing here. And let’s face it, not everyone has the time - and even fewer probably have the desire - to spend hours poring over 19th century legislative debates and 18th century political philosophy.

I spent much of the morning reading a book by conservative historian of moral change, Gertrude Himmelfarb, about the thinking of various luminaries of the Victorian and “proto-Victorian” eras. I’m exploring Victorianism as a formative moral code that influenced the early life of congressmen and State Department officials who built the existing immigration policy structure.

Our current system presumes you’re not entitled to admission until you’ve proven otherwise, kind of a guilty-until-proven-innocent approach. That may seem almost inarguable now, but it wasn’t always that way. In fact, the opposite presumption applied until it was reversed - region by region - first for Asians in 1882; then for Europeans and Africans in 1921; and not for people from the Americas until 1976 (a fact that’s startling today).

I started a newsletter on Substack this spring called How We Got Here to explore some of the immigration (and occasionally other) legal issues I’m researching. Today I summarized what I’m currently finding and thinking about the link between American Victorianism and U.S. immigration policy. If you’re interested in knowing more, you can read that post here, or you can subscribe to How We Got Here in the footer below if you’d like to get those emails weekly when they come out.