Legislating Morality and the Mann Act

[Yoshie Furuhashi <furuhashi.1@xxxxxxxxxxx>]

Reviews in American History 24.3 (1996) 471-475

Morals, Mobility, and the Law

Bernard A. Weisberger


David Langum. Crossing Over the Line: Legislating Morality and the
Mann Act t. Chicago: University of Chicago Press, 1994. xii + 311 pp.
Illustrations, appendix, notes, and index. $24.95.

...Crossing Over the Line is admirable on many counts. Most of the
story unfolds in the courts where the Mann Act--prohibiting the
interstate transportation of women for an "immoral purpose"--was
enforced, and Langum is very good at explaining prosecutorial and
judicial strategies without lapsing into legalese or losing sight of
the piquant details of cases. He generally keeps to a firm timeline
and drives his tale with the energy and focus of an author who wants
to convince. Langum does not confuse objectivity with neutrality. He
dislikes the Mann Act. It is to him "a splendid example of the
failure of American democracy . . . so far as the politicalization of
morality is concerned; like other laws of its kind it allows 'the
exercise of a tyranny of the majority'" (pp. 258-59). Although many
of the thousands of people convicted under the act were no angels, it
was a badly drafted law. Enacted to deal with a real but overhyped
public evil--coerced prostitution--it quickly underwent a moralistic
interpretation that ignored the realities of human sexual behavior
and became a tool of aggressive prosecutors and even blackmailers.
Eventually outmoded by changing popular attitudes, it remained
unamended largely through political inertia and cowardice.

The facts are hardly disputable. In the early years of the twentieth
century, prostitution was an established feature of big-city life and
a subject of intense concern among the progressive-minded. Whether
the "fallen women" who sold their bodies were seen as wicked or
pitied as forced recruits to "vice" by reason of poverty, there was
agreement that the business itself was a threat to public decency and
(via venereal diseases) to public health. For puritans, social
reformers, and hygienists alike prostitution was a behavioral problem
that "could be controlled and changed through legislation" (p. 6).

Superimposed on relatively rational discussion of these issues was a
1907 to 1914 wave of hysteria about "white slavery," the alleged
practice of actually kidnapping young women and forcing them into
brothels. Sensationalized reports and lurid works of fiction,
including movies (then a novelty), told tales of country lasses and
immigrant maidens enticed off city streets, "pricked by poisoned
darts or hypodermic needles and then dragged off to dens of iniquity"
(p. 27). No girl, it appeared, was safe alone. The kingpins of the
business were alleged to be foreigners, part of a "far-flung, evil
syndicate." Reviewing recent studies, Langum finds more fancy than
fact in the "white slave" literature, but notes its connection to
swelling uneasiness about the bad effects of big cities, immigration,
and female independence on supposedly traditional American virtues.
He wisely refrains from belaboring the obvious then-and-now
similarities between that war on vice and the current one against
drugs. The parallels speak for themselves.

The key point is that the Mann Act itself was intended as a specific
response to forced sex-for-hire. It is actually titled "The White
Slave Traffic Act" and in part implemented United States adherence to
a 1904 international treaty on the subject. Introduced in June 1909
by Illinois congressman James R. Mann, chair of the House Interstate
and Foreign Commerce Committee, it sailed through both houses of
Congress with very little opposition, and that little on states'
rights grounds. Few legislators would risk being classed among
adversaries described by one advocate as "whoremongers . . . pimps .
. . procurers . . . all those who hate God and scoff at innocence and
laugh at female virtue" (p. 44). None, therefore, debated the
innocuous-sounding phrases in Section 2 that specified fines of up to
$5,000 or jail terms as long as five years for transporting in
interstate or foreign commerce or in the District of Columbia "any
woman or girl for the purpose of prostitution or debauchery, or for
any other immoral purpose, or with the intent " to "induce, entice,
or compel [her] to engage in any other immoral practice " (p. 261,
emphasis added).

It was precisely those phrases which, after the law took effect in
1910, were later used by the United States Supreme Court on reviewing
appeals from conviction to make the statute far more than a tool to
stamp out the commercial traffic in prostitutes. First came a
constitutional challenge to the act on the grounds that it allowed
the federal government to invade the states' police powers and also
struck at the right of free travel. The Court brushed aside these
contentions in Hoke v. U.S. (1913), claiming that such fundamental
rights as travel existed only for "beneficial exercise," and that the
power of the United States over interstate commerce was complete
enough to allow even for controls that "had the character of police
regulations" (p. 62-63).

A year later, in Wilson v. U.S., the Court read the statute even more
expansively. The defendants, a Chicago couple, had brought a pair of
adult and willing women from Milwaukee to work in their brothel, but
for some reason then refused to admit them. Hence, they claimed, the
immoral purpose underlying the transportation had not been executed.
No matter, opined the justices: the transportation coupled with the
mere intention, fulfilled or not, was sufficient to convict.

The hammer really fell with Caminetti v. U.S. (1917), a case with a
high media profile and political reverberations because the
defendant, Drew Caminetti, was the son of a prominent California
Democrat. Caminetti and a friend, both married men with children,
were having affairs with two independent young women aged nineteen
and twenty, and in March of 1913 took them by train from Sacramento
to Reno for a fling that ended abruptly with their arrest by police
set on the trail by the betrayed wives. Both men were tried and found
guilty. On appeal, their lawyer argued that the legislative history
of the statute clearly showed it to be leveled against
"commercialized vice," and that however immoral his clients' escapade
might be, it was "free from commercialism and coercion." But the
Court majority (including the civil libertarians Holmes and Brandeis)
refused to consider that claim. The plain language of the statute
should be followed, said the majority, without retrospectively
reading the lawmakers' minds. Never mind the act's title; its words
plainly proscribed interstate transportation for an "immoral
purpose," and in 1917 to decriminalize the conduct of the two men
"would shock the common understanding of what constitutes an immoral
purpose" (pp. 113-14).

Hence, before it was only a few years old, the Mann Act as read
judicially had a new meaning. The mere private, masculine intention
of "debauching" a woman to whom one was not wed, regardless of her
willingness--women were not free to choose--was a federal crime if
interstate travel was involved. "Don't even think about it" was
literally what the Court had decreed. Langum fairly points out that
the justices were more or less following, if not the election
returns, at least the expressed mood of the times, which drew no
sharp line between condemning sex-for-pay and sex-for-pleasure. As
the moderator of the General Assembly of the Presbyterian Church of
the USA put it, "the man who uses his wealth or influence to betray
young womanhood" is "no less a menace to society than the man who
directly commercializes . . . vice" (p. 70).

But chasing private violators quickly proved a boon to extortionists.
A would-be Don Juan on a bibulous night out could easily be lured by
a woman into crossing a state line, only to be confronted the next
morning with a demand that he pay up or be denounced to the nearest
federal attorney. Gangs of blackmailers allegedly squeezed their
victims for profits guessed to be as much as a million dollars a
year. Yet there was no drive to amend the law by specifically
exempting noncommercial sex from its reach.

Historical circumstance gave the Mann Act special force when the era
of reaction that spurred Prohibition, fundamentalism, and a resurgent
Ku Klux Klan followed hard on the heels of Caminetti. From 1920 to
1928 the government investigated noncommercial transgressors with
"ardent zeal," acting on thousands of letters "from neighbors, wives,
husbands, fathers, and busybodies" (p. 140). Langum declares that
several hundred annual convictions were the residue of thousands of
investigations and many prosecutions. He estimates that
"noncommercial cases dominated the thoughts and activities of the
federal morals police" (p. 155).

But the other side of the twenties, Jazz Age liberality, took some
steam out of the purity crusade after 1928 as juries became somewhat
more reluctant to convict. Despite shifts in manners and morals,
however, the Department of Justice never changed its decades-long
policy of pursuing noncommercial violators if they happened to be
"undesirables." Many people are aware that black heavyweight champion
Jack Johnson was found guilty under the Mann Act in 1913 for
transporting a white prostitute from Pittsburgh to Chicago for his
personal enjoyment. His true offense, however, lay in outraging
public sensibility by successive marriages to two white brides.
Forty-seven years later, even in the changed racial climate of 1960,
black rock and roll composer-performer Chuck Berry served twenty
months in jail on a Mann Act conviction, the punishment for his
admitted "fondness for women . . . of all colors" (p. 186). And
between those two cases fell the memorable indictment of Charlie
Chaplin in 1944, ostensibly on a Mann Act charge but in fact because
of his admitted sympathy for the Communist party and the Soviet Union
(with which we were then allied in war). J. Edgar Hoover had
personally instigated the prosecution--but the jury acquitted Chaplin.

Other selected targets over a half-century span included "Machine
Gun" Jack McGurn, an Al Capone hood (conviction reversed in 1932);
Isadore Blumenfeld a.k.a. "Kid Cann" and "Fergie Bloom" in the
Minneapolis underworld (convicted in 1960); a sometime Imperial
Wizard of the Ku Klux Klan and assorted gamblers, swindlers, and
other undesirables against whom some U.S. Attorney invoked the Mann
Act "on the theory that these were bad people and ought to be charged
with something" (p. 196).

Enforcement began a long decline, however, even before the "sexual
revolution" of the nineteen sixties and seventies. In several cases
between 1945 and 1959 new members of the Supreme Court began to show
signs of impatience with the Caminetti principle of pursuing
immorality and ignoring the commercial purpose of the law. In one
dissent from a decision based on a very narrow reading, liberal
Justice Frank Murphy denounced "another . . . tortured and grotesque
application" marring the law's "already unhappy history" (p. 210).
The Court never did overturn Caminetti, but as public opinion came to
tolerate more relaxed sexual standards, many appellate judges simply
bypassed it and effectively limited the act's reach by narrowing the
definition of "immoral purposes" to exclude such activities as
stripping or acting in pornographic films. And fewer cases reached
juries increasingly unlikely to be indignant. Convictions nationwide
dropped from 184 in 1959 to a mere 14 in 1980.

The act has never been repealed--it is still too politically
sensitive--but it has been modified. A 1978 amendment updated
definitions of "transportation" and targeted those who commercially
exploited minors of either sex by involving them in various forms of
specifically defined "prohibited sexual conduct." And in 1986, a
further tightening increased protection for minors and male victims,
and replaced the terms "debauchery" and "immoral purposes" with the
straightforward "any sexual activity for which any person can be
charged with a criminal offense." But the act is still available to
prosecutors in certain limited circumstances and can be an instrument
of harassment. Old and widely forgotten or ignored where private
conduct is involved, it still has a tooth or two.

In summary, what Langum has done is to study the changing application
of a law in its social context, a procedure that dissolves boundaries
between legal and social history and other disciplines to the benefit
of them all. His story cuts across women's, urban, family, and
religious history, public opinion formation and its media
enhancement, and the legislative impact of ideological lobbies.
Proving the richness of a many-dimensional approach to a single
topic--especially when insights are unified by strong
narrative--Crossing Over the Line shows how good history can
illuminate public debate. Government has no business at all in
defining "sin," but if policymakers must perforce sometimes deal with
the social consequences of private behavior they would do far better
to consult factual works like this one than to listen to the gassy
platitudes of our current crop of moralizers.

Bernard A. Weisberger's latest book is The LaFollettes of Wisconsin:
Love and Politics in Progressive America (1994).

http://muse.jhu.edu/journals/reviews_in_american_history/v024/24.3weis
berger.html