WHAT IS REMEMBERED.

• Author: Ristroph, Alice

POLICING THE OPEN ROAD: HOW CARS TRANSFORMED AMERICAN FREEDOM. By Sarah A. Seo. Cambridge and London: Harvard University Press. 2019. Pp. 275. $28.95.

INTRODUCTION

American criminal law has a history, a history not sufficiently known to lawyers, judges, and scholars. (1) This legal history is intertwined with the political and cultural history of the United States, parts of which are well known, but much of which is distorted by the myths that we tell of our own past. (2) The familiar stories include the glory of revolution and a truly democratic Founding, the shame of slavery followed by a bloody but necessary Civil War, and the nation's redemption through reassertion of democratic values in Reconstruction and the twentieth-century civil rights movement. Though criminal law does not figure prominently in the usual versions of any of these national tales, it was always there, sometimes fostering change and more often conserving existing power structures. We need to learn criminal law's history, and there is no time like the present.

There is also no time but the present that any of us can undertake this necessary historical study. Whatever scholars find in the past, we will view it with knowledge of American criminal law today--with knowledge of mass convictions achieved primarily through pleas rather than trials, substantial and enduring racial disparities, continuing high rates of lethal violence, and a general attitude of dissatisfaction and despair about this area of law. We cannot study criminal law's past without knowing of its present "crisis." And as historians have often observed, a sense of present crisis can produce temptation to invent a past more glorious--or more innocent, or more egalitarian, or more orderly--than the events that actually transpired. (3)

One challenge, then, is to learn criminal law's history without succumbing to nostalgia for a past that never existed. (4) As scholars began to perceive a crisis in American criminal law in the early years of the twenty-first century, a few early efforts at diagnosis were decidedly nostalgic, finding a lost golden age of criminal law somewhere in America's past and recommending ways we might restore aspects of that lost era. (5) Other studies of the present crisis have painted a much less flattering picture of criminal law past. (6) Into this growing literature arrives Sarah Seo's Policing the Open Road: How Cars Transformed American Freedom. (7) Seo has written previously of "the inescapable problem of seeing the past through our own biases," (8) and she argues that a history of the arrival and promulgation of the automobile can yield new insights into contemporary legal realities. Traffic laws are at the border of criminal law, sometimes classified as civil and sometimes not, but they have become a major tool of criminal investigation. The ubiquity of traffic violations gives the police great power to stop and question nearly any driver they choose, and the police have used this power to investigate criminal activity entirely unrelated to driving. Seo argues that the Supreme Court endorsed these broad powers of enforcement at the first opportunity, developing constitutional doctrines that today allow police substantial discretion off the road as well as on it. Unfortunately, that discretion is used to target racial minorities and produce grave inequalities in American criminal law. Policing the Open Road begins with the policing of the automobile, but it ultimately seeks to illuminate the policing of persons outside of cars as well as in them.

One of the many virtues of this book is its effort to correct a specific type of nostalgia common among criminal procedure scholars--nostalgia for the Warren Court and its supposedly "revolutionary" efforts to discipline police officers. Seo tells an alternative story in which the Supreme Court, during Earl Warren's tenure but also before and after, repeatedly interpreted the Fourth Amendment to endorse police discretion rather than to constrain it. In this sense, Seo helps us see canonical Supreme Court decisions as accommodations of police authority rather than pronouncements of revolutionary change.

But the book also offers its own story of revolution, or rather transformation: it claims that automobiles were a unique disruption in American life and American law; that "cars transformed American freedom"; and, most importantly for my purposes here, that the legal responses (legislative, executive, and judicial) to the automobile are the origins of modern regimes of racialized law enforcement. Collectively, one might call these claims a story of automobile exceptionalism. To evaluate this story, we need to know something about American life and law, and American policing in particular, before the arrival of the automobile. Though the nineteenth century is nearly absent from Policing the Open Road, histories of that era offer reasons to doubt that the arrival of the automobile expanded police discretion as much as Seo claims.

Seo's transformation story is important because it posits discontinuity between racialized policing today and the forms of racial injustice that preceded the automobile. Moreover, the story of automobile exceptionalism embraces--perhaps unwittingly--what some scholars have termed "the penology of racial innocence," or an assumption that the institutions of criminal law, and the elites who occupy and direct those institutions, are innocent of racial bias unless proven otherwise. (9) According to this book, the enabling of racialized law enforcement was accidental and unintended, the unforeseen result of good-faith efforts to address the substantial, unprecedented, and non-race-related problems of mass automobility. This is a story of how judges licensed racialized policing, told in a manner that will give the least offense possible to the legal elites who argued for and crafted that doctrine.

History gives us both change and continuity, and the historian has considerable leeway to decide which to emphasize in any specific context. But the leeway is not unlimited, and even within the zone of plausible interpretations, there are consequences to a scholar's interpretive choices. Like nostalgia or amnesia, a transformation narrative can serve ideological functions. (10) Narratives of transformation have been especially prominent in the context of racial inequality, as each generation imagines itself free of the sins of earlier eras. (11) In the academy and outside of it, legal elites and others in positions of power tell many stories of transformation but give insufficient attention to continuities in racial injustice, especially with regard to criminal law. Some of the most important recent critiques of American criminal law have tried to refresh our collective recollections by emphasizing the continuities between past and present forms of racial subordination. (12) The story of judicial accommodation of enforcement discretion in Policing the Open Road is a key contribution to our understanding of the origins of the carceral state, but it is the story of one step along a journey that began much earlier than the twentieth century. The other story of this book--the tale of policing transformed by the automobile--may tempt some readers as an antidote to difficult histories of unrelenting racial oppression, but readers should resist the temptation.

This Review develops these themes. Part I introduces Seo's engaging story of the arrival of the automobile. That story offers a rich analysis of several aspects of American life and law in the twentieth century, but it is not, I argue, a reliable overview of policing, not even within its chosen time frame. Part II examines some key continuities between the nineteenth century and the twentieth. It is striking how often accounts of nineteenth-century policing emphasize the very developments that Seo traces to the twentieth-century arrival of the automobile (such as pervasive regulations that made widespread lawbreaking inevitable, broad enforcement discretion, and patterns of selective enforcement along race and class lines). It is striking how blatantly criminal law was used as a tool of racial domination after the Civil War and into the twentieth century--entirely independently of traffic offenses. Given these continuities, Part III suggests that the car may be, after all, just a vehicle: it did not itself transform policing to the extent that Seo suggests, but it did bring the phenomenon of police discretion to the Supreme Court for the first time. Seeing police discretion only in the specific context of automobility (perhaps), the Court gave it a constitutional green light. (13) Part IV offers concluding reflections on the need to learn more of criminal law's history, and on the practical lessons for today that can be drawn from this book.

1. AUTOMOBILE EXCEPTIONALISM

   Policing the Open Road begins its chronology at the dawn of the twentieth century, with the mass production of the automobile. Around 1914, Ford Motor Company adopted a moving assembly line (p. 1). Other companies also established mass production around the same time, and the impact was huge: the number of registered passenger cars in America went from less than half a million in 1910 to nearly eighteen million by 1925 (p. 8). According to Seo, all these cars "radically changed daily lives and aspirations, culture and the built environment, and people's relationships with each other and their communities.... [T]he automobile came to represent individual solitude and freedom" (pp. 9-10). The cultural history of the arrival of the automobile is a fascinating story that Seo tells with wit and flair. The romance and the allure of the road may not be recognizable to every American today, especially urbanites, but the societal embrace of the automobile is a good reminder of how big this country is. It contained, and still contains, wide-open spaces. The ability to cross...