Louis Marshall and the Rise of Jewish Ethnicity in America: A Biography

9 Jews and Birds

402 9 Jews and Birds Protecting the Rights of Migratory Birds In 1913, Congress enacted a statute protecting migratory birds from hunters. In Arkansas and Kansas, federal courts ruled the statute to be unconstitutional, holding that the Constitution does not ascribe to the federal government powers to regulate game hunting.1 The Justice Department acknowledged that these rulings had some measure of validity and feared that the Supreme Court would uphold them; obviating this obstacle, the US government negotiated a treaty with Great Britain stipulating that closed hunting seasons in the United States and Canada would be arranged by reciprocal legislation. Subsequently, in 1918, Congress passed a statute to bring the treaty into effect, but the state of Missouri objected to this statute and brought action to prevent a federal game warden, named Ray P. Holland, from enforcing it. This was the background to Missouri v. Holland, a landmark case whose resolution by the Supreme Court continues to provoke debate among legal scholars as to whether foreign treaties can effectively expand the authority of Congress by devolving upon it powers not specifically mandated by the Constitution.2 Louis Marshall’s role in what one authoritative scholar calls the “most famous and discussed case in the constitutional law of foreign affairs”3 was central. Marshall began to ponder the constitutionality of game protection in the period after his mourning for Florence when, as he confessed to Israel Zangwill, he threw himself “into hard work, in order to forget myself.”4 Beyond this psychological consideration of work as therapy, his engagement on the Migratory Bird Treaty Act stemmed from his longstanding enthusiasm for nature; an examination of this enthusiasm and its expression in environmental advocacy suggests intriguing connections to Marshall’s lobbying for Jewish minority rights. Jews were politically powerless, “migratory” people who required special forms of legal protection. When it came to Jews and birds, Marshall tended to think in preservationist terms, trying to protect an idyllic way of life from the predations of modernity. However awkward and demeaning it sounds, this analogy Jews and Birds • 403 between migratory bird treaty protection and postwar Jewish minority rights treaty protection points to Marshall’s evolving methodology. In the World War I era, both objects of Marshall’s advocacy urgently needed legal protection, but no certain framework existed to provide safeguards. European Jews, like birds, were domiciled in an array of legal jurisdictions, each with its own local laws and traditions; in both cases, it was not clear whether a central governing power had the legal authority, or practical enforcement power, to protect these defenseless objects. In his work on the migratory bird laws of North America and then during his diplomacy in Paris for minority rights for East European Jews, Marshall developed an approach blending conservatism and legal activism that would define the last, signature phase of his career, when the lifelong Republican and affluent business lawyer emerged on the cutting edge of campaigns for empowerment and minority rights; moving beyond Jews and birds, he championed the rights of Haitians and African Americans and Native Americans. His concern about the provision of legal protection to defenseless groups trumped his conservative penchant for narrow interpretations of constitutional provisions and for states rights. Starting with the Migratory Bird Treaty Act, he thought creatively about how the powers of a central authority could be broadened for the purpose of minority protection. In the international arena, with regard to Jewish minority rights in Europe, such protection could be afforded only via the establishment of a new international mechanism, the League of Nations. Thus, in the name of preserving vulnerable groups, Jews and birds, Marshall’s conservatism essentially had to take flight—he had to surrender his conservative preferences for local authority, along with his suspiciously conservative tendency to regard federal governance as organized mob rule, and vest new powers to an authoritative central government. In America, Marshall’s legal creativity and his moral concerns for the protection of the legally unempowered were most keenly appreciated on the Supreme Court bench by Oliver Wendell Holmes. Just as Holmes converted into law Marshall’s arguments in the Leo Frank case about mob trials being inimical to the rights of an accused, he ruled in the Missouri case that the expansion of congressional power via a treaty for the protections for birds does not violate Tenth Amendment states rights standards.5 I have remarked elsewhere on ways in which Marshall’s philosophy overlapped with Holmes’s skeptical liberalism— in...