Goluboff applied the “Page 99 Test” to her new book, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, and reported the following:
Page 99 both is and is not representative of Vagrant Nation. Overall, the book recovers the centuries-old regime of vagrancy laws that kept people in their prescribed places and describes the process by which that regime crumbled over the course of the 1960s. Vagrancy laws came to the American colonies from Elizabethan England. They made it a crime to be idle and poor, to wander about with no apparent purpose and no legitimate livelihood, or simply to be immoral.Learn more about Vagrant Nation at the Oxford University Press website.
Local officials—police, low-level courts, city officials—used these vague and flexible laws for a breathtaking array of purposes that went far beyond our usual notion of vagrants: to keep out suspicious strangers; to stop crimes before they were committed; to suppress nontraditional sexuality; to keep racial minorities, political troublemakers, and nonconforming rebels at bay. In other words, they were used against any perceived threat to public order or safety.
Those perceived threats became particularly acute in the 1960s, as many of those who had been the targets of vagrancy repression began to organize, assert their rights, find lawyers, and bring constitutional challenges to vagrancy laws. From sexual freedom to civil rights, from poverty to the politics of criminal justice, from the Beats to the hippies, from communism to the Vietnam War, the great issues of the day all collided with the category of the unwanted vagrant. By 1972, the laws were unconstitutional. The book thus tells a social and legal history of the 1960s through the lens of the downfall of vagrancy laws.
Page 99 comes halfway through Chapter Three, “Shuffling Sam Thompson and the Liberty End Café.” That chapter describes how Thompson, a frequent target of police harassment for being a poor, African American alcoholic who frequented the Louisville, Kentucky bus station in the late 1950s, challenged vagrancy laws and the power of the police to arrest him basically on sight. Here is what it says:Embedded within Lusky’s attack on Louisville law enforcement was an implicit critique of the third pillar of skid row policing: status crimes themselves. Lusky argued that it was only after Officer Suter mentioned that he had arrested Thompson in the past that Judge Taustine’s “mind had frozen” against Thompson and Taustine presumed Thompson’s guilt. Lusky claimed that the judge was “applying a rule—a rule that no defendant who has an arrest record will be acquitted.” Such convictions were based “not [on] what petitioner has done, but what kind of man the police think he is.” Though Lusky acted as if following that “rule” was itself unlawful, he was well aware that such a rule was at the heart not only of peacekeeping policing and summary justice, but of vagrancy and loitering laws themselves.Page 99 relates an ongoing theme in the book. Lawyers throughout the vagrancy law challenge struggled with whether the breadth of the laws specifically or the power of the police more generally was the key problem. That duality is important both for understanding the vagrancy challenge itself and our continuing concerns about police power today. On Page 99, the reader can see Thompson’s lawyer, Louis Lusky, struggling with precisely that question.
That said, Lusky refrained from attacking the Louisville loitering ordinance. It was not that he liked vagrancy and loitering laws—he called them “broad and vaguely worded legislative prohibitions.” But throughout the Thompson litigation, he assumed, “without conceding,” the validity of the laws under which Thompson had been convicted. Lusky did not cite Edelman v. California or California’s efforts to amend its vagrancy law. He did not cite the small but growing number of articles and cases that suggested something fundamentally wrong with vagrancy and loitering laws.
Some at the Court were puzzled by Lusky’s decision to stake his claim on the novel (and legally unsupported) claim of “no evidence” rather than to challenge laws that Edelman and other cases had already made somewhat vulnerable. At oral argument, Justice Frankfurter, whose own interest in vagrancy and loitering laws dated back to his call to arms in 1948’s Winters v. New York, asked whether Lusky was also attacking the loitering law’s constitutionality. Lusky answered in the negative. The law clerk who had been so impressed with Lusky’s eminence was more openly critical. “I am not sure that Lusky has not hacked up irremedially [sic] by not challenging the statute as applied, since there was obviously ‘evidence’ in the case and the real question is whether a conviction for anything on the particular evidence is a violation of due process, a contention not made.”
Page 99 is more tightly focused on legal strategy than much of the book, however. Understanding how the meaning of the Constitution changes requires beginning with the regular people, like Sam Thompson, who took action against what they perceived as unconstitutional practices. Page 99 gives little sense of the humanity of everyday people, the larger social context in which they acted, and their role in legal change that the book as a whole tries to capture.