The Civil Rights of Aliens

The Alien and the Asiatic in American Law.
by Milton R. Konvitz.
Ithaca, Cornell University Press, 1946. 299 pp. $3.00.

The Constitution and Civil Rights.
by Milton R. Konvitz.
New York, Columbia University Press, 1947. 254 pp. $3.00.

In The Alien and the Asiatic in American Law, Dr. Konvitz studies the legal status of two classes of persons, the alien and the American citizen of Asiatic origin, against the background of decisions of the Supreme Court of the United States. The study involves a consideration of legislative, executive, and administrative action as it is reflected in the actual decisions of cases. Although this approach necessitates work of a narrowly specialist character, since the handling of the legal material demands close attention to technical detail, the usefulness of the book is not too narrowly restricted, since the attitude of the Supreme Court toward this facet of “civil liberties” is a matter of concern to all those interested in social processes.

In The Constitution and Civil Rights, Dr. Konvitz deals with civil rights as a legal term of art. Civil rights refers to “the rights of persons to employment, and to accommodations in hotels, restaurants, common carriers, and other places of public accommodation and resort. The term contemplates the rights enumerated in the Federal Civil Rights Act of 1875 and the various acts against discrimination found on the statute books of eighteen states.” In a word, the book deals with what has often been called the economic and social rights of Negroes, for this is the class for whose protection the above type of legislation is adopted. The treatment here is even more narrow than in The Alien and the Asiatic in American Law because the decisions on Negro rights comprise a wasteland, dry, arid, and pockmarked.

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That Dr. Konvitz has handled his legal materials with thorough technical competence goes without saying. These books are therefore reliable summaries of the legal situation on the alien, Asiatic, and Negro as of the present time. While the layman may find the going rather rough in The Constitution and Civil Rights, that is the price to be paid for accurate signposting in this legal jungle. Indeed, technicality battled with lay common sense throughout both works. Dr. Konvitz was keenly aware of the dangers of steering between the Scylla of the Harvard Law Review and the Charybdis of (say) COMMENTARY. For example, the December 1946 number of the Harvard Law Review says of The Alien and the Asiatic in American Law: “This book is more a polemic than a balanced contribution to the subject.” The February 1947 issue of the same journal has the following to say of The Constitution and Civil Rights: “It is disappointing that [Dr. Konvitz] has, in effect, done little more than set forth—albeit in convenient form—a list of legal sources unaccompanied by a critique, social, economic, and legal, of the civil rights problem.” Damned if he does, and damned if he doesn’t!

It is perfectly true that the two books are in fact different, that is, that The Alien and the Asiatic in American Law is in fact more of a social document, and that The Constitution and Civil Rights looks like a series of law review articles. In cases on the alien and the Asiatic, the Supreme Court has a better long-run record than in the enforcement of the civil rights of Negroes. And Dr. Konvitz, able legal scholar, was apparently content to let the bare record of failure in the case of the Negroes stand as an indictment against the court. Yet the mere legal record is at best a cold substitute for a translation into terms of warm and intelligently guided emotion. And when the story is so unimpassioned as to fret the Harvard Law Review, enough said.

In his account of the infamous Screws case, Dr. Konvitz is unsatisfactory in an illuminating way. In this case, Georgia police officers beat to death an arrested Negro under particularly revolting circumstances. The federal authorities dusted off an old Reconstruction statute and rather unexpectedly succeeded in obtaining a conviction. However, on review before the Supreme Court, the case was sent back for a new trial accompanied by a series of opinions that are monuments of confusion even for that body of abstruse legal theoreticians. In discussing the case, Dr. Konvitz makes the fallowing observation: “It is to be hoped that the decision in the Screws case will strengthen the Civil Rights Unit and prompt the Department of Justice to assume a policy of more vigorous investigation and prosecution of violations.” And this despite the fact that the Screws case was in fact a crushing defeat for the Civil Rights Unit of the Department of Justice, since its best case had to be retried and since the rule of law as laid down by the majority opinion was absolutely unenforceable. Dr. Konvitz’s legalistic estimate of the Screws case creates a wholly erroneous opinion of its efficacy even in the limited domain of civil rights. He should have kept in mind that a confused legal opinion is not a mere sport. It is the analyst’s job to find out who benefits from the confusion. On this score, it is easy to see that the majority opinion as well as the conservative minority dealt federal civil rights a heavy blow in the Screws case.

Further, the whole question of the value of civil rights in a liberal democracy might well have been raised by Dr. Konvitz as the natural sequel to the legal studies in The Constitution and Civil Rights. Surely the net effect of failure on the part of legislature and court to protect “civil rights” calls for a study of the underlying sociological reasons why the legalistic approach is so inadequate. The bankruptcy of the “civil rights movement” in this country is amply demonstrated in precise technical fashion in Dr. Konvitz’s second book. What then?

Why, obviously the problem of minority protection even with respect to “civil rights” is being attacked from the wrong end. The Atlantic Charter, to go no farther, expressly recognized the fact that economic opportunity is the basis of democracy, and half a century of sociological jurisprudence (Jhering, Stammler, Duguit, Pound) has driven home the conclusion that the social base must be sound before law can be just.

To risk a rather far-fetched analogy instead of the analysis which lack of space forbids: suppose our legislators were solemnly to outlaw poverty and, by criminal sanctions, to attempt to coerce the executive and judicial arms of the government to enforce the law. The result would be ridiculous, you hasten to say, the analogy forced. Admitted. But there’s a modicum of truth in it. So much, indeed, that (abandoning the analogy) this reviewer is flatly of the opinion that fruitful investigations in the field of “civil rights” lie in attempting to discover the grounds of its failure, rather than in carefully conserving (praise God for small favors) the isolated and occasional benefits resulting from sporadic enforcement of civil rights legislation.

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