Next, Ernst arranged for a second copy of Ulysses to be shipped to Random House, then applied for this copy to be exempted from seizure under the Tariff Act’s “classics” exemption, which granted the Treasury Department the authority to refrain from seizing a book, even when deemed obscene, if it were also—as with Rabelais, say, or Casanova—widely considered a classic. Ernst was more than a little familiar with the classics exemption, having written it himself, with the connivance of a powerful friend in Washington, who saw that it was inserted into the Tariff Act. This handy bit of foresight, part of Ernst’s long game on behalf of artistic freedom, paid off when the secretary of the treasury himself opined that while Ulysses was obscene beyond any doubt under the current definition, it was also, in his view, a modern classic. This highly placed literary judgment would also be entered into the record as part of the evidence Ernst presented in court.
On May 3, 1932, the first copy of Ulysses—the one stuffed with clippings and critical avowals of the book’s importance and merit—arrived on schedule, aboard the Bremen, in the luggage of Ernst’s confederate. Ernst had taken care to have his associate Lindey alert a lawyer who worked for customs to expect the shipment and prepare to seize it, but somehow the warning went amiss in the routine tumult of the Bremen’s arrival at the North German/Lloyd piers in Brooklyn. The hapless smuggler, bemused no doubt to find himself the object of no one’s interest, waltzed right through inspection unmolested by federal agents, rode into Manhattan, and, perhaps somewhat sheepishly, delivered his unwanted contraband to the Random House offices.
Once again, as at so many points in the history of United States v. Ulysses, Ernst took matters into his own hands. Returning to the scene of the undiscovered crime, he found a likely-looking customs inspector and demanded, in strident tones, that one book called Ulysses be immediately impounded. It proved surprisingly difficult, however, to arouse the proper confiscatory spirit among the agents manning their posts that day. When it came to a question of the most obscene book in all literature, it appears that the officers of the United States Customs Service may, in fact, have been a little jaded. “Everybody brings that in,” one of the customs men told Ernst, according to Cerf’s memoirs. “We don’t pay any attention to it.” It was not until Ernst thought of letting them have a look at the book itself, freighted and festooned with newspaper and magazine clippings, angry petitions and stray bits of paper like the scrapbook of some mad theorist of anarchy, that he succeeded in persuading the agents of the book’s being worthy of seizure.
This odd inertia on the part of law enforcement persisted as the book made its way up from the Brooklyn docks to the US attorney’s office to the New York Supreme Court. It took the better part of 1933 for the chief of the Brooklyn customs office to turn the book over to the assistant US attorney, for the assistant US attorney to refer it to his superior, for the US attorney to decide to bring charges, and for a judge to be assigned who was willing and able to hear the case.
In the latter instance the delay was largely—but not entirely—due to skillful manipulation on the part of Ernst, as he maneuvered to ensure that the case landed on the docket of Judge John Woolsey, known to be an obscenity skeptic with literary pretensions. It’s harder to explain the lotus-eaterish lethargy of the other principals. Perhaps the various officers of the law and of the court sensed that a change was occuring, that the drift of public opinion and private mores alike had begun to undermine the Hicklin test, the Societies for Suppression, and the whole dour edifice of Victorian Comstockery. Perhaps their hearts had gone out of the fight. Or maybe they just didn’t feel like breaking their brains—it took assistant US attorney Samuel Coleman six weeks to read the thing—on a seven-hundred-page book that contained sentences like “Morose delectation Aquinas tunbelly calls this, frate porcospino.” And then there is the curious fact that those who did manage to survive combat with the novel often emerged with the uneasy impression that the book was, in Coleman’s words, “a literary masterpiece.”
Coleman also came away from his six-week battle with Ulysses having no doubt that the book was, in certain passages—that last chapter!—obscene; but only in certain passages, and only as defined by the Tariff Act; not intrinsically or in effect, not by intent, and not when considered as a whole. The right judge, in the right frame of mind, might very well feel obliged to redefine obscenity in a way that excluded Joyce’s literary masterpiece. It doesn’t seem unlikely that when, at last, Coleman prevailed on his reluctant superior, US Attorney George Medalie, to bring suit, in the courtroom of Judge Woolsey, against Ulysses, he did so with the secret intention of helping to bring about this redefinition.
Judge Woolsey read Ulysses. He read it slowly and carefully, proceeding, like so many readers of the book before and since, in the company of Stuart Gilbert and the other sober hermeneutists and narrative picklocks whose explanatory guidebooks had sprung up, after 1922, to ease the reader’s passage through Joyce’s novel. These texts had been supplied to the judge, naturally, by Ernst, and naturally he was not just trying to be helpful. Like the sheaf of tributes and panegyrics he’d had Léon attach to the seized copy of Ulysses, the guidebooks helped to bolster Ernst’s claim that Joyce was a genius and Ulysses a masterpiece dense with classical and learned allusion, as far from pornography as a book could possibly be. What use, after all, would a dirty book be to the Hicklin test’s dull and corruptible minds, if you could not even understand what it was saying without the help of Gilbert and a raft of other professorial interpreters?
Ulysses is one of my favorite books—I adore it. And like generations of the book’s admirers from the day Judge Woolsey issued his elegantly written ruling that Ulysses was not obscene, and therefore could legally be admitted to (and soon after published in) the United States (a decision afterward upheld by the US Court of Appeals for the Second Circuit), I have always been grateful to the judge for hissagacity, his principled reasoning, and his evident good taste in books. Every time I sit down to reread Ulysses, I begin with Judge Woolsey’s ruling, included right up front in every US edition of the novel until the mid-1980s, and every time say a silent thank-you to that wise jurist for his integral role in bringing Ulysses to American readers like me.
Having looked into the story of United States v. Ulysses, however, I now see that my gratitude has been somewhat misplaced. With no disrespect to Judge Woolsey, whose charming acknowledgment that the book does have its dirty parts—“it must always be remembered that [Joyce’s] locale was Celtic and his season Spring”—makes me smile every time, we owe the Ulysses decision less to the judge in the case than to counsel for the defense. What an incredible feat of lawyering! Morris Ernst exercised every bit of craft, persuasion, and influence he could bring to bear, from intervening in the writing of the Tariff Act, to buttressing the case with plaudits from highbrow critics and small-town librarians, to manipulating the court calendar and playing on the sympathy of his opposing counsel. Even the inclusion of Woolsey’s ruling at the head of the edition Random House published in 1934 was a legal strategy conceived by Ernst as a hedge against future attempts to prosecute the book.
Knowing Woolsey, understanding both his sensitivity and discernment and his literary interests, Ernst played him like a violin. By presenting Ulysses—packaging it might be a more accurate characterization—in a dense apparatus of erudite debate and critical theorizing, Ernst had not just made it impossible for the judge to avoid considering an alleged dirty book as a work of literature, he had also issued a subtle challenge to Woolsey’s amour propre as a literary man. The moment Woolsey accepted the book’s status as literature, Ernst had the judge where he wanted him.
By definition, a work of literature could not be obscene, could not be pornographic, could not corrupt and deprave, could never be intended to arouse a reader, even if certain passages in said work dealt with sexual activity and bodily functions in plain, even vulgar terms. Otherwise, a reader like Judge Woolsey—and those two mysterious “friends” (
in fact fellow members of the Century Association) whose opinions as “literary assessors” he said he had sought—would be forced to acknowledge having found edification and truth and beauty in a pornographic book, or else sexual arousal in a masterpiece—both of which conclusions, Ernst encouraged Woolsey to find, were absurd. (Though at least one subsequent reader, crawling into the lascivious thoughts and the warm bed of soft, round, fragrant Molly Bloom at the novel’s end, has found the line less bright between edification and arousal.)
When we celebrate the American Civil Liberties Union that Morris Ernst helped to found, we tend—rightly, I’m sure—to focus on injustices confronted, rights upheld, principles established, victims vindicated. We revel in the Constitution and the Bill of Rights, thrill or shudder or shake our heads at the crimes, the outrages, the victories and defeats. The history of the ACLU is a history of great struggle, bitter and glorious. But it is also—it is first of all—a history of great lawyers, like Morris Ernst, who brought as much artistry and erudition and sly, masterful skill to defending one book, called Ulysses, as its author had brought to its creation.
I. In the latter part of his career, however, this patriotism would congeal into a more conventional cold-warrior anti-Communism, fueling a prolonged, regrettable correspondence with J. Edgar Hoover.
EDWARDS V. CALIFORNIA (1941)
In 1937, California made knowingly transporting an indigent nonresident into the state a misdemeanor. The statute was a response to the Great Depression and the flood of poor migrants entering the state in search of work. In 1940, Fred Edwards was convicted of violating the law after he drove his indigent brother-in-law from Texas to California. The ACLU represented Edwards on appeal before the Supreme Court. It argued that freedom of movement was a fundamental constitutional right, one that was needed more than ever before in the economic wake of a depression that rendered millions of families indigent, and one that could not be denied by a state on the basis of poverty. The ACLU urged the Court to protect the rights of these transient unemployed in their search for economic opportunity.
The Court held that California’s law violated the Constitution’s commerce clause. The task of aiding poor citizens was the responsibility of the whole nation, and California could not shield itself from burdens common to all states by “shutting its gates to the outside world”; rather, the people of the United States had to “sink or swim together.”
The Brother-in-Law
ANN PATCHETT
If a man leaves his home in Marysville, California, in December to drive to Spur, Texas, to pick up his brother-in-law and bring him back home with him to California, chances are good the trip has been undertaken at the behest of his wife. The year was 1939, so this was no casual trip. This was a haul. Marysville is a little town near the Sierra Nevada Mountains, not far from, and not dissimilar to, Paradise, before it burned in the California Camp Fire of 2019. He would have had to drive down the length of the state to pick up Route 66, probably in Barstow, and take it as far as Amarillo before turning south. The driver’s name was Edwards. His brother-in-law was Frank Duncan. The fact that Edwards arrived in Texas to find that Duncan had very few possessions, little money, and no job couldn’t have been much of a surprise. I imagine those were the very reasons he’d been sent to collect his brother-in-law in the first place. The stovepipe of northern Texas was in the heart of the Dust Bowl, and this was the height of the Depression. There were no crops and no prospects. One man had come to save the other.
You would think this would have been the story: the long drive to Texas and the long drive home—a trip divided into equal halves. In the first part, Edwards was alone in the car, maybe thinking about his wife, maybe wondering if they had enough to feed themselves, much less her brother. Then there was a brief intermission in Spur when Edwards saw the circumstances of Duncan’s life for himself. He understood his trip was not just a matter of easing a burden. The situation was well past dire. There was, for both men, a feeling of shame, for Edwards that he was seeing his brother-in-law this way and for Duncan that he had had to ask. That was where the second half of the story began, the two men in the car together heading home to Marysville. I imagine they spent their time in the car talking about better days, both the future and the past.
But as it turned out, this wasn’t the story at all. To transport an indigent into California was to break California law: “Every person, firm or corporation, or officer or agent thereof that brings or assists in bringing into the state any indigent person who is not a resident of the State, knowing him to be an indigent person, is guilty of a misdemeanor.” It was known as the “anti-Okie” law, a law intended to hold back the poor at the state line because the poor had been flooding into California since the start of the Depression. One wonders who it was that reported Edwards’s brother-in-law visiting in December. Who asked if he met the requirements of a sufficient amount of money and possessions, or if he had the job he needed in order to stay? At any rate, it was Edwards, the transporter, who was tried and convicted of the misdemeanor crime and given a sentence of six months in jail, suspended.
It is the novelist’s job to assume that the people who wrote the law didn’t understand Duncan’s circumstances in Texas. They hadn’t taken it upon themselves to imagine his life there. He lost his job on the farm where he worked when the farm went back to the bank, and in losing the job, he lost his place to live. There was no topsoil, no crops, no food. He had written to his sister in Marysville. The novelist must show the humanity in the moment when the two men meet again, one coming for the other. Edwards either didn’t know before he left California that he would break a law saying that the poor may not be brought across state lines or decided he had no other choice.
The ACLU took on the task of fighting for Edwards’s right to bring his brother-in-law back with him to California, and in 1941 the Supreme Court declared the law unconstitutional and vacated Edwards’s conviction.
Everything I know about Edwards and Duncan, other than where they lived, when they made their trip, and the court case that followed, I imagined. I was able to imagine it because John Steinbeck was doing his job in 1939, the year he published The Grapes of Wrath. The Joad family left Sallisaw, Oklahoma, near the Arkansas border, and drove west to California on Route 66. Had they been real people, they might have passed Edwards on his way to Texas. Steinbeck explained the Joads in such a way that anyone picking up the book from the time it was first published until today would not only understand the plight of a poor family fleeing Oklahoma, they would feel it. It was impossible to stay. Nothing would grow on the land they were forced off of, their house was bulldozed, their children were starving. There was no other choice but to go in search of work in a place they knew they weren’t welcome. Still, it was their dream of a better life, the very smallest request for a decent human existence, that is the most heartbreaking. Ma Joad says to Tom, “But I like to think how nice it’s gonna be, maybe, in California. Never cold. An’ fruit ever’place, little white houses in among the orange trees. I wonder—that is, if we all get jobs an’ all work—maybe we can get one of them little white houses. An’ the little fellas go out an’ pick oranges right off the tree. They ain’t gonna be able to stand it, they’ll get to yellin’ so.” Steinbeck put the reader in the truck with the Joads. He put them in the fields and in the Weedpatch Camp in California, day after impossible day. This was how we came to understand that as awful as this choice was, there were no better choices.
The Grapes of Wrath won the National Book Award and the Pulitzer Prize in 1939. It became a best seller. In 1940, John Ford made it into a film starring Henry Fonda. In 1941, the Supreme Court of the United States ruled unanimously against the state of California in the case of Edwards v. California, striking down the law that prohibited the transport of indigents into the state. Do we have John Steinbeck to thank for that? May we thank the Joads? It couldn’t have hurt. A voice rises up through experience, is made into art, and art then shapes the law. Th
e story of the Joads allowed us to understand Frank Duncan and why he had to come to California.
The novelists of our age are doing their part to help us see the lives of people who struggle to leave places of violence and oppression and immigrate to what they hope will be a safer existence. Like the Joads, they understand the place they’re going to may not be welcoming, but it’s impossible for them to imagine how their lives could be worse. Recent stories of immigration that are as varied as experience itself include Dave Eggers’s What Is the What, Mohsin Hamid’s Exit West, Lisa Ko’s The Leavers, Viet Thanh Nguyen’s The Refugees, and Irina Reyn’s Mother Country. Each book calls on the reader to climb up in the truck and ride along, and in doing so reminds us of one central fact: people must be aided and protected by the law.
In hindsight, the idea that it could have ever been illegal to drive your unemployed brother-in-law into California is so quaint it feels more like a misunderstanding than a misdemeanor. But circumstances can change in the time it takes the stock market to crash and the heartlands to dry up and blow away. We must work to create a society with liberty and justice for all. We will fail and fail and fail at this goal. Our failure is the history of the world. But our humanity is in the fact that we never cease to try.
Fight of the Century Page 4
