And Forgive Us Our Debts: Race, Class, and Ideologies in America

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Rogers M. Smith

With apologies to most of the law professors reading this, I start with a preliminary note of interest primarily to political scientists. Many of our quantitative behavioralist colleagues in the American politics and public law subfields have trouble concealing their desires to proclaim that the linked scholarly enterprises of American political development (APD) studies and historical institutionalist public law studies are “dead.” This superb book by two of the discipline’s brightest young senior stars, Emily Zackin and Chloe Thurston, shows that those endeavors are instead breaking vital new ground.

Though their study covers the whole of U.S. history, as only APD scholars and some allied law professors like Bruce Ackerman and Aziz Rana are prone to do, their core findings can be briefly stated. Even though opposition to debtor relief legislation contributed to the creation of the Constitution, even though it provided explicit new protection for contracts, even though the Supreme Court regularly invoked it to ban debtor relief laws up to the New Deal, in the 19th century, farm movements even more regularly won legislative enactments of a variety of kinds of debtor relief measures, though these almost exclusively benefited white farmers. But then, even though the Supreme Court finally approved a state relief measure for those who couldn’t pay their mortgages in Home Building and Loan Association v. Blaisdell in 1933, creditors began winning measures serving their interests in the latter part of the 20th century, up to the present—with, again, Black debtors suffering most as a result. While telling this story, The Political Development of American Debt Relief identifies, typologizes, and explains most of the major state and national laws that have governed debt and bankruptcy. It also lays out the battles over institutional structures that have led to today’s system of federal bankruptcy courts.

For just about everyone except my Penn Law colleague David Skeel, a bankruptcy specialist, simply providing this descriptive overview of an obviously crucial topic is a major contribution. As Zackin and Thurston point out, it deflates lazy accounts of American political culture as so dominated by a private property-obsessed Lockean liberalism that no one could ever think debtor relief permissible, along with allegedly hardheaded Left assumptions that capitalist creditors always win in America. But admittedly, the nation’s creditors never lost big-time, and for decades now they have been back in the saddle again.

So Zackin and Thurston’s work raises the question: why these patterns in American political development? The authors have one macro-level answer that gratifies this reviewer. Agreeing that America has multiple political traditions, they provide convincing evidence that in the 19th century, small-R republican ideology aided claims that if hardworking Americans faced impoverishment, and especially loss of their homes and farms, through no fault of their own, it was a denial of their equal citizenship for the state to punish them, instead of promoting equitable settlements with their creditors that could enable them to continue to be productive citizens.

But ideas never win by themselves. Zackin and Thurston show that farm organizations and state political parties with resources from farmers who were not currently in debt advanced demands for debtor relief as matters of civic justice, and that America’s federal structure and varied regional economies helped them to succeed. Creditors were often clustered in the Northeast, enabling farm movements to dominate the politics of many midwestern and southern states. The authors add that the recurrent deflationary economic crises in the 19th century helped persuade many Americans that larger economic forces, not personal shortcomings, often explained debtors’ inability to pay their bills. But despite some exceptions, as in the early days of the People’s Party in some states, debtor relief movements did not include or target the specific needs of Black debtors, many of whom faced barriers in becoming landowning farmers in the first place. America has always had repressive racial as well as republican, liberal, and other traditions.

In the second half of the 20th century, even though constitutional objections to debtor relief laws faded, debtor relief politics still shifted toward the interests of creditors. Zackin and Thurston argue that this development occurred in part because deflationary crises became distant memories, and in part because labor unions became themselves creditors, wary of some forms of debt relief, while civil rights groups sought to win access to credit, a cause not aided by publicizing the plight of the debtors in their communities. Meanwhile creditors reacted to the adverse political climate of the New Deal and Great Society years by organizing lobbying groups and think tanks, thereby contributing to and benefiting from the turn in both parties to neoliberal ideologies after 1980. Creditor companies were also now national, no longer so regionally concentrated, and they had many new members, especially the credit card industry that grew rapidly during those decades. Even so, the creditor corporations went through the same mergers and consolidations creating oligopolies that have been visible through American business sectors over the last forty years, producing a few giants with great political clout.

In all this I can find little to fault and much to praise. If there is anything the authors might have addressed more fully, it is one or more of several linked overarching issues concerning race and class to which their work is directly relevant, and which APD scholars along with others need to explore today.

Commendably, their book joins those recent analyses of American political development which recognize that the United States began as a white settler colony, or more specifically as a federation of white settler Christian colonies. One great question today is whether the U.S., or any nation so conceived and so dedicated, can ever overcome the injustices its founding entailed. Related debates concern whether to understand such nations as embodiments of “racial capitalism,” and just what that term means. Are commitments to racial hierarchy somehow more fundamental than capitalist ones? Are they instead a superstructure arising from capitalism? Can the two ever be disentangled? To me, the evidence here suggests that in the 19th century, racial commitments sometimes trumped economic interests forged by capitalism, and that in the late 20th and early 21st centuries, American capitalism still often operates to perpetuate racial inequalities and injustices, especially when it comes to homeowning. It would however have been useful to hear more in these regards from these informed and insightful authors.

They do touch on a more specific dimension of these concerns. With Risa Goluboff and the many students of Adolph Reed, Jr., they suggest that the turn in the late 1940s and 1950s by civil rights groups and American liberals more generally to an almost exclusive focus on antidiscrimination, on ending barriers to African American participation in existing economic institutions, weakened Left efforts to press for more radical restructuring of those institutions. Calls for debtor relief were one of the many casualties of this narrower reform agenda. Was that development inevitable, and if so, what made it so? Can and should progressives today seek different, more substantial, perhaps even revolutionary reforms in American capitalism?

Zackin and Thurston’s research does more to raise than to answer these questions, but they end by affirming the possibility that political movements may yet prove able to transform the American political economy in desirable ways. On the many matters they do address, this reader is convinced that they are right. On this final question, their book shows why it is reasonable to hope that they are.