Altschuler's "Before Disability"

Sari Altschuler, Northeastern University, has published Before Disability: A History of American Citizenship (University of Pennsylvania Press):

The history of disability rights is often told as a recent one, but it is not. In the wake of the American Revolution, many of the differences we now call disabilities could be accommodated into citizenship—and for some even exemplified its promises. By the antebellum period, however, disability was becoming a powerful, racialized tool of civic exclusion and, by the century’s end, a target for eugenic elimination. In Before Disability, Sari Altschuler tells the story of how this dramatic transformation occurred.

Before Disability is a literary, legal, and cultural history of the relationship between disability, race, and citizenship. It shows how disability helped to shape US citizenship and, in turn, how the formation of US citizenship shaped disability. There were two key drivers of the transformation from accommodation to exclusion and eugenics: the difficulty aligning the reality with the rhetoric of civic inclusion and the co-opting of mental and physical difference as evidence in debates about Black citizenship. The stigmatizing ways race came together with mental and physical difference to deny Americans rights were, however, not inevitable.

Before citizenship was federally defined in the late 1860s, Americans were still working out what it meant. They used the narrative forms available to them—from melodrama and the gothic to the slave narrative and the criminal confession—to do this work. While possibilities narrowed by the antebellum era, Americans continued to imagine, articulate, and enact broader definitions. As we seek to imagine the relationship between disability and citizenship more equitably and expansively for ourselves, we should begin by remembering that many disabled and nondisabled Americans before us did, too.

--Dan Ernst 

Weekend Roundup

• A recording of David Sugarman's lecture, “Hidden Histories of the Pinochet Case,” which he delivered at the University of Cambridge on December 3, 2024, is now on-line. 
  

• This March 11 event is open only to the YLS community; still, we want to note Historical Roots of the Current Catastrophe: A Conversation, with John Fabian Witt and James Q. Whitman.
  

• A podcast of Heather Cox Richardson in conversation with Dylan Penningroth on February 26 on the evolution of the Republican Party and what gives her hope for America (Berkeley Talks).

• 
  Over at Regulatory Review, a symposium has been underway on How Government Built America, by Sidney A. Shapiro, Wake Forest University School of Law and Joseph P. Tomain, University of Cincinnati College of Law.  It includes and exchange with Edward Balleisen: here and here.

• The Brennan Center has posted a report of the session at the annual meeting of the American Historical Association on originalism and the Supreme Court.  The participants were Thomas Wolf, Jane Manners, Jack Rakove, and Jennifer Tucker.

• “We should look for judges who are likely to display good judgment in their rulings," says Mark Tushnet on the Modern Law Library podcast, "and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory."  He also his experience as law clerk to Justice Thurgood Marshall.
  

• The Organization of American Historians has launched an oral history project for federal employees.   
  

• The legal historian (and University of Wisconsin-Madison Chancellor) Jennifer Mnookin's message on that "Dear Colleague" letter and recent executive order affecting colleges and universities.    The legal historian (and Dean of Georgetown Law) William M. Treanor replies to (Interim) U.S. Attorney Edward R. Martin's DEI letter. 
  

• David W. Blight, Beth English, and James Grossman on the Executive Order “Ending Radical Indoctrination in K-12 Schooling” (New Republic).

• The American Enterprise Institute has named Philip Hamburger a nonresident fellow in its Social, Cultural, and Constitutional Studies research division.
  

• The Smithsonian Magazine's notice of Martha S. Jones's The Trouble of Color: An American Family Memoir. The book is among Ebony's "must reads" and New York Times's Six Books We Recommend This Week.
  

• The Special Collections Department at the Williams & Mary Law Library has posted a digital recreation of its recent exhibit, Women in History & the Law. 
  

• A notice of Emma Kaufman's recent article on the history of private criminal prosecution (NYU Law). 
  

• An AP story has put Justin Simard's Citing Slavery Project back in the news. 

•  Jedidiah Kroncke reviews Allison Powers's Arbitrating Empire (Jotwell).

• The Rise and Fall of Treason in English History, by Allen Boyer and Mark Nicholls, has been reviewed in the English Historical Review.
  

• ICYMI, Birthright Citizenship Edition:  Kate Masur on the Strict Scrutiny podcast.  Eric Segall and Anthony Michel Kreis on Dorf on Law.  Gerard N. Magliocca on Balkinization.

• ICYMI:  Researchers uncover stories of Black Londoners who escaped slavery (Guardian). The Long History of Executive Excess (Governing). 
  

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Birthright Citizenship: Kreis et al. and Lash

Anthony Michael Kreis, Georgia State University College of Law, Evan D. Bernick, Northern Illinois University College of Law, and Paul A. Gowder, Northwestern University Pritzker School of Law, have posted Birthright Citizenship and the Dunning School of Unoriginal Meanings, which is forthcoming in Cornell Law Review Online:

This essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett and Ilan Wurman. Under the guise of "originalism," Barnett, Wurman, and others propose an ahistorical, revisionist interpretation of the Fourteenth Amendment's Citizenship Clause. They suggest that the term "jurisdiction" should be understood as "allegiance," seemingly to give the veneer of legitimacy to the Trump Administration's view that the children of undocumented immigrants may not be American citizens. The essay argues that Barnett and Wurman's approach, which attempts to radically redefine the historical understanding of citizenship, is methodologically flawed and undermines core principles of constitutional law. The critique exposes the inaccuracies and inconsistencies in their position and scrutinizes the scholarly merit of new theories of birthright citizenship that are wildly inconsistent with constitutional text, history, precedent, and unbroken tradition. The essay concludes by examining the professional responsibility of legal scholars to engage in rigorous, fact-based historical analysis rather than politically motivated reinterpretations that threaten to destabilize fundamental constitutional rights.

And Kurt Lash, University of Richmond School of Law, has posted Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment Citizenship Clause:

The current debate over the original meaning of the so-called Birthright Citizenship Clause generally divides over how much weight to give each of the two requirements for birth citizenship. Some scholars emphasize the role of birth on American soil, making it dispositive unless trumped by a limited and closed set of common law “exceptions.” Other scholars claim the second requirement of “jurisdiction” must be given equal and independent weight. For example, some scholars claim there must be independent evidence that one has become “subject” by way of mutual consent or positive allegiance to the American sovereign.

This essay proposes a different and more historically justified way to understand the dual requirements of birth citizenship: Prima facie citizenship. As explained by Attorney General Edward Bates in his influential 1862 Report “On Citizenship,” prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the person was not born “subject to the jurisdiction” of the United States. That requirement involves considerations of familial allegiance to the law-speaking authority of the people of the United States.

This approach solves a number of conundrums unexplained under either of the standard approaches. For example, it explains why children born on the same “invader-occupied” American soil have different citizenships depending on the allegiance of their parents. It also explains why children born to foreign diplomats are not American citizens even if born on the obviously American soil of an American hospital. Finally, and most importantly to the framers of the Fourteenth Amendment, it explains why children born on American soil to Native American parents who refused to be bound by either the laws of their Tribal Government or the laws of the United States were not considered to have been born “subject to the jurisdiction of the United States.”

This last group are most analogous to children born to non-citizen parents who intentionally enter the United States in violation of the law-speaking authority of the sovereign people of the United States. According to the original understanding of the Citizenship Clause, these children were born in the United States, but not in a manner “subject to the jurisdiction thereof.” This would not be true, however, of children born to parents kidnapped and illegally smuggled into the United States in violation of laws banning the international slave trade.

--Dan Ernst

Perl-Rosenthal and Erman on Birthright Citizenship

Nathan Perl-Rosenthal and Sam Erman have published, open access," Inventing Birthright: The Nineteenth-Century Fabrication of jus soli and jus sanguinis," in Law and History Review:

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and birthplace were mostly evidence of conformity. In the early nineteenth century, officials in multiple jurisdictions began prioritizing positive law above natural law and transformed parentage and birthplace into competing principles for assigning nationality. This movement crystallized in 1860 when Charles Demolombe introduced jus soli and jus sanguinis to nationality law as competing, ostensibly ancient legal traditions. The framework spread quickly because it was a useful way to assign nationality despite states’ conflicting approaches to political membership. Yet, as its role in United States v. Wong Kim Ark (1898) helps illustrate, the invented tradition has also obscured our understanding of more complex historical dynamics.

--Dan Ernst

JACH (Winter 2025)

The Winter 2025 issue of Journal of American Constitutional History has been now published:

Evelyn Atkinson, “The Northern Man and His Corporations, the Southern Man and His Slaves”: Revisiting the Conspiracy Theory of the Fourteenth Amendment

Anna O. Law, The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration

Maeve Glass, In Search of a State

Book Review Symposium on David Pozen’s The Constitution of the War on Drugs (Oxford University Press, 2024)

    Aziz Rana, The “War on Drugs” and the Narrowing of Constitutional Imagination
    Louis Michael Seidman, Pozen and the Puzzle of Counterfactuals
    Kate Shaw, The Constitution of the War on Abortion

--Dan Ernst

Sunday Roundup

• 

  Robert H. Jackson (LC)

  Adam Liptak on the Sassoon Resignation and Robert Jackson's "The Federal Prosecutor," with a quote from John Q. Barrett (NYT). 
  

• Daniel Richman invokes Henry Stimson, Emory Buckner, Felix Frankfurter, and William Wirt in his op-ed on DJT's DOJ (NYT).

• Holly Brewer waits for word on her National Archives grant "to study the legal structures that governed slavery in the British Empire and early American society" (NYT).  
  

• Kenneth Mack's video explainer on birthright citizenship (HLS YouTube).
  

• More officials have resigned at the National Archives (WaPo).
  

--Dan Ernst

Graduate Fellows Summer Research Institute in U.S. Law and Race

[We have the following announcement.  DRE]

Call for Applicants: Graduate Fellows Summer Research Institute in U.S. Law and Race, June 9-27, 2025.  Deadline: February 15, 2025

Funded by the Mellon Foundation, this three-week residential fellowship program supports four (4) graduate students in Summer 2025 at the University of Nebraska-Lincoln's U.S. Law and Race Initiative with the Digital Legal Research Lab. We seek proposals addressing race and racialization in U.S. law and history broadly, aiming to understand racialized people's use of the law to advance personhood, citizenship, rights, and sovereignty throughout American history.

The Fellowship: Fellows will workshop their research and writing, receive training in digital methods to support data structuring and analysis, contribute to an Open Educational Resource, and enjoy seminar-style discussion of shared readings. The 3-week program features tailored mentoring with U.S. Law & Race affiliate faculty and staff, along with opportunities to meet and network with UNL's History & Digital Humanities communities. Faculty mentors include William G. Thomas III (History), Katrina Jagodinsky (History and Women’s and Gender Studies), Jeannette Eileen Jones (History and Ethnic Studies), Donna Doan Anderson (History), Genesis Agosto (Law), Eric Berger (Law), Danielle Jefferis (Law), Laura Muñoz (History and Ethnic Studies), Jessica Shoemaker (Law), and Catherine Wilson (Law).

Benefits: $4,000 stipend; all housing and meals provided; and all travel costs are covered.

Eligibility: We seek Graduate Fellows researching topics broadly related to U.S. law and race. We are not able to accept proposals that are solely quantitative social science research. Fellows must be from Ph.D. programs in History or relevant humanities or humanistic social science disciplines, including joint J.D./Ph.D. programs. We are especially interested in applications from scholars who identify with traditionally underrepresented groups or attend Minority Serving Institutions.

How to Apply: To be considered for the Fellowship, you should send 1.) a letter of interest describing your research project, the writing you propose to workshop and how you would contribute to diversity, equity, and inclusion in the Initiative, 2.) a CV, and 3.) a list of two references the committee may contact. Please send materials to uslawandrace@unl.edu with the subject line "Mellon Graduate Fellows".

Weekend Roundup

• Philippa Strum will receive the Spitzer Lifetime Achievement Award at the Bill of Rights Celebration of the District of Columbia Chapter of the ACLU on May 2.  
  

•  “'Legal Knowledge,' a new podcast produced by the Arthur J. Morris Law Library’s Special Collections department, will explore the history of legal education at the University of Virginia."
  

• Advocate, the memoir of “DC insider” James Hamilton, is published (ABAJ) .
  

• ICYMI: Amanda Frost on birthright citizenship (WaPo). Hardeep Dhillon on how birthright citizenship shaped Asian American families (Smithsonian).  Illinois’s history with slavery and its links to the present (Illinois Public Media).  A modern history of tenants' rights (Investopedia).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Campbell on "General Citizenship Rights"

Jud Campbell, University of Richmond School of Law, has posted General Citizenship Rights, which will appear in the Yale Law Journal:

Current scholarship and case law assume that citizenship rights come in only two sets: state and national. This binary approach reflects broader contemporary attitudes about the positivist grounding of constitutional rights and the dualistic character of American sovereignty. From the Founding up until Reconstruction, however, many Americans took a different view. For those steeped in older ways of thinking, citizenship rights included not only local and national rights but also general citizenship rights. Premised on social-contractarian assumptions and a common jurisprudential heritage, general citizenship rights were fundamental rights that were putatively held by all American citizens. Moreover, these rights were secured across state lines through the conferral of general citizenship in Article IV, reflecting the interstate dimensions of federalism. Coming in three sets, not two, citizenship rights were thus based not only on the positively enacted law of particular sovereigns but also on general law, coupled with the notion that Americans belonged to a federative political family. Recovering these ideas of general citizenship rights and general citizenship enables new ways of seeing our constitutional past and can help to clarify or resolve long-running controversies about the Privileges and Immunities Clause in Article IV and the Privileges or Immunities Clause in the Fourteenth Amendment. This history also points toward a different way of framing those disputes, focused less on linguistic analysis of constitutional text and more on underlying conceptions of fundamental rights, federalism, and sovereignty.

--Dan Ernst

Georgetown Legal History Colloquium

[We have the following announcement.  DRE]

The Georgetown Legal History Colloquium is pleased to announce its spring 2022 workshops. 

On Friday, February 18, we welcome Amanda Frost from American University. We will be discussing Seizing Citizenship: Lydia Hamilton Smith, Thaddeus Stevens, and the Pathway to Citizenship in Antebellum America, a draft chapter from Professor Frost's book-in-progress on the history of birthright citizenship in the United States.

The session will be online from 3:30-5:00 EST. If you would like to join us, please register in advance using this link (or paste this web address into your browser: https://georgetown.zoom.us/meeting/register/tJYvd-ChqDsqGd2LD3_cEAuAAgn-b72nBPMU). You will receive a Zoom link for the event after you register. To receive Professor Frost's paper, please email Kevin Arlyck (kevin.arlyck@georgetown.edu) or K-Sue Park (KSue.Park@georgetown.edu).

We plan to hold subsequent sessions in person, on the Georgetown University Law Center campus. On Monday, March 21, Rabia Belt from Stanford University will present. Shaun Ossei-Owusu from the University of Pennsylvania will join us on Friday, April 29. We look forward to seeing you!

Cromwell Book Prize to Erman

The William Nelson Cromwell Foundation, acting on a recommendation of a committee of the American Society for Legal History, has voted to award its Book Prize to Sam Erman, University of Southern California, for Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire.  The ASLH Committee’s recommendation stated in part:

For subtlety, nuance, and complexity of analysis by a junior scholar, this is the best book in a year in which many superb books were nominated. Erman makes important and ambitious claims about the evolving constitutional meaning of citizenship in the U.S. empire after the annexation of Puerto Rico in 1898. The book vividly recounts and perceptively analyzes the debates between and among Puerto Rican and U.S. judges, lawyers, administration officials, and legislators over the denial of full citizenship rights to Puerto Ricans. Erman shows how post-Civil War conceptions of full citizenship, rights, and statehood gave way to a regime of constitutionally permissible racist imperial governance.

Professor Erman’s book appeared in the Studies in Legal History, the ASLH-sponsored book series published by the Cambridge University Press.  Karen collects his posts on the book as an LHB Guest blogger here.

–Dan Ernst.  H/t: JDG3

Dew, The Aliites: Race and Law in the Religions of Noble Drew Ali

We missed this book release from 2019: The Aliites: Race and Law in the Religions of Noble Drew Ali (University of Chicago Press), by Spencer Dew (Denison University). A description from the Press:

“Citizenship is salvation,” preached Noble Drew Ali, leader of the Moorish Science Temple of America in the early twentieth century. Ali’s message was an aspirational call for black Americans to undertake a struggle for recognition from the state, one that would both ensure protection for all Americans through rights guaranteed by the law and correct the unjust implementation of law that prevailed in the racially segregated United States. Ali and his followers took on this mission of citizenship as a religious calling, working to carve out a place for themselves in American democracy and to bring about a society that lived up to what they considered the sacred purpose of the law.

In The Aliites, Spencer Dew traces the history and impact of Ali’s radical fusion of law and faith. Dew uncovers the influence of Ali’s teachings, including the many movements they inspired. As Dew shows, Ali’s teachings demonstrate an implicit yet critical component of the American approach to law: that it should express our highest ideals for society, even if it is rarely perfect in practice. Examining this robustly creative yet largely overlooked lineage of African American religious thought, Dew provides a window onto religion, race, citizenship, and law in America.

A few blurbs:

“In this remarkable book of personal and communal atonement, Dew honors what he calls ‘the intellectual aikido’ of Aliite thinkers across a hundred years of insistent devotion to the ideals of American citizenship. Placing the Aliites in the proud company of American freethinkers, Dew lays before us an alternative tradition of American democracy—of civic engagement as religion—from the founding of utopian communities to the courting of FBI surveillance. The Aliites introduces us to a fecund and vital vernacular legal imagination, one that could only be American.” -- Winnifred Fallers

“A genuinely original work, The Aliites makes significant contributions to the study of religion, religion’s relationship to the law in the United States, and larger themes and patterns among Aliites. Dew’s organization of the book around elements of the Great Seal is creative and generative, foregrounding his excellent study of the centrality of the law and practices of citizenship in Aliite thought. This book offers the best interpretation currently available of many practices that contribute to outsiders’ evaluations of some of the modern groups as criminal, making it an enormously valuable work.” -- Judith Weisenfeld

More information is available here.

H/t: New Books in Law, where you can listen to an interview with the author.

-- Karen Tani

Jones Wins Littleton-Griswold for "Birthright Citizens"

Congratulations to Martha S. Jones, the Society of Black Alumni Presidential Professor and Professor of History, Johns Hopkins University, for winning the American Historical Association’s Littleton-Griswold Prize for 2019 for Birthright Citizens: A History of Race and Rights in Antebellum America (2018).  It appeared in Studies in Legal History, the book series of the American Society for Legal History.

Boston College Law School Legal History Roundtable

[We have the following announcement from our friends at Boston College.]

In the fall of 2019, the Boston College Law School Legal History Roundtable begins its 18th successful year. The Roundtable draws on Boston College Law School’s and Boston College’s strength and interest in legal history. It offers an opportunity for Boston College faculty and faculty from other area institutions, students, and members of the Boston College community to meet and discuss a pre-circulated paper in legal history. Meeting several times each semester, the Roundtable seeks to promote an informal, collegial atmosphere of informed discussion.

For the 2019-2020 academic year, Professor Mary Sarah Bilder, Professor Daniel R. Coquillette, Professor Frank Herrmann and Professor Daniel Farbman are conveners.

The Roundtable usually meets several times during the semester in the afternoon at 4:30 pm in the Library Conference Room of the Boston College Law School Library. Refreshments are available beginning at 4:15 pm, unless otherwise noted.

Papers will be available when appropriate before each presentation.

Thursday, September 19 (lunch talk)
Martha Jones, Society of Black Alumni Presidential Professor and Professor of History, Johns Hopkins University: Lunchtime, co-sponsored with the Clough Center for the Study of Constitutional Democracy

Professor Jones will give a public book talk for a Constitution Day Lecture, discussing her prize-winning book.

Before the Civil War, colonization schemes and black laws threatened to deport former slaves born in the United States. Birthright Citizens: A History of Race and Rights in Antebellum America recovers the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses. They faced formidable opposition, most notoriously from the US Supreme Court decision in Dred Scott. Still, Martha S. Jones explains, no single case defined their status. Former slaves studied law, secured allies, and conducted themselves like citizens, establishing their status through local, everyday claims. All along they argued that birth guaranteed their rights. With fresh archival sources and an ambitious reframing of constitutional law-making before the Civil War, Jones shows how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans’ aspirations were realized. Birthright Citizens tells how African American activists radically transformed the terms of citizenship for all Americans.

Tuesday, October 24
Roundtable with Bryan Garner, Law Prose, Inc., co-sponsored with Law Library in honor of its upcoming Law Dictionary exhibit, "Dictionaries and the Law"

At his presentation, Garner will discuss the history of legal lexicography and his own work on Black's Law Dictionary and other law-related dictionaries.

Bryan A. Garner is a noted speaker, writer, and consultant regarding legal writing and drafting, and regularly teaches Advanced Legal Writing at the Southern Methodist University’s Dedman School of Law. Garner is editor in chief of Black’s Law Dictionary among many other leading works on legal style, and he is president of LawProse, Inc., the foremost provider of CLE training in legal writing, editing, and drafting.

Thursday, January 30
Roundtable with Lael Weinberger, Harvard Law School, Berger-Howe Legal History Fellow 2019-20, "Judicializing International Relations: Internationalism, Courts, and American Lawyers in the Progressive Era"

This paper, part of Weinberger's project on internationalism in the legal profession, reconstructs an unfamiliar period at the start of the twentieth century when American lawyers across political divides tended to believe that world courts and robust international law were the future of international relations—even suggesting that law would replace diplomacy and that international litigation would replace war. From a modern vantage point the “legal internationalism” of the period looks unrealistic or even utopian. But its very unfamiliarity provides an ideal starting point for examining the intellectual, political, and legal conditions of possibility for legal internationalism.

Lael Weinberger is the Raoul Berger-Mark DeWolfe Howe Legal History Fellow at Harvard Law School. He is a PhD candidate in the Department of History at the University of Chicago, where he studies American legal history. Lael earned a JD with high honors from the University of Chicago Law School and clerked for Judge Frank Easterbrook on the Seventh Circuit Court of Appeals and for Chief Justice Daniel Eismann on the Idaho Supreme Court. Lael is currently writing a dissertation on American lawyers’ ideas about international law, world order, and human rights in the first half of the twentieth century. His research interests include constitutional law, international law, civil procedure, law and religion, and the legal profession.

Thursday, February 27
Roundable with Professor Erin Braatz, Suffolk Law School, "Civilization & Sovereignty: The Birth of the “Native” Prison"

This paper describes the rise of so-called “native” prisons on the Gold Coast of Africa in the mid-nineteenth century (present-day Ghana) and argues that these prisons arose out of jurisdictional struggles between British colonial officials and indigenous leaders on the coast.  It then situates these struggles within the history of the global spread of the prison during the nineteenth century, contending that the prison played a central role in defining civilization and articulating changing notions of sovereignty.

Erin Braatz is an assistant professor of law at Suffolk University Law School.  She received a J.D. and Ph.D. in Law and Society from New York University where she also held a Golieb Fellowship in Legal History.  Prior to joining Suffolk’s faculty, she served as a law clerk to the Honorable Richard Stearns of the District of Massachusetts and the Honorable Juan Torruella of the United States Court of Appeals for the First Circuit.  Her research examines the history of criminal law and punishment in British West Africa in the nineteenth and twentieth centuries as well as the history of the Eighth Amendment.

Thursday, April 2
Roundtable with Kunal Parker, Professor and Dean's Distinguished Scholar, University of Miami Law School, "The Turn to Process: Law, Politics, and Economics in America, 1900 - 1970"

Over the course of the first three quarters of the twentieth century, American legal, political, and economic thinkers increasingly turned away from thinking in terms of ends to thinking in terms of means. Why did this happen? What did this transformation look like? Parker is working on a book-length study of the turn towards processes, means, methods, techniques, procedures, and protocols in twentieth-century American legal, political, and economic thought that looks at the connections and differences across these three fields to help make sense of this shift.

Kunal M. Parker is a Professor of Law and Dean's Distinguished Scholar at the University of Miami School of Law. He is the author of Common Law, History, and Democracy in America, 1790 - 1900: Legal Thought Before Modernism (Cambridge University Press, 2011) and Making Foreigners: Immigration and Citizenship Law in America, 1600 - 2000 (Cambridge University Press, 2015).

Quigley and friends on the Civil War and Citizenship

Edited by Paul D. Quigley, Virginia Tech, The Civil War and the Transformation of American Citizenship came out with LSU Press in 2018. From the publisher:

The meanings and practices of American citizenship were as contested during the Civil War era as they are today. By examining a variety of perspectives—from prominent lawmakers in Washington, D.C., to enslaved women, from black firemen in southern cities to Confederate émigrés in Latin America—The Civil War and the Transformation of American Citizenship offers a wide-ranging exploration of citizenship’s metamorphoses amid the extended crises of war and emancipation.

Americans in the antebellum era considered citizenship, at its most basic level, as a legal status acquired through birth or naturalization, and one that offered certain rights in exchange for specific obligations. Yet throughout the Civil War period, the boundaries and consequences of what it meant to be a citizen remained in flux. At the beginning of the war, Confederates relinquished their status as U.S. citizens, only to be mostly reabsorbed as full American citizens in its aftermath. The Reconstruction years also saw African American men acquire—at least in theory—the core rights of citizenship. As these changes swept across the nation, Americans debated the parameters of citizenship, the possibility of adopting or rejecting citizenship at will, and the relative importance of political privileges, economic opportunity, and cultural belonging. Ongoing inequities between races and genders, over the course of the Civil War and in the years that followed, further shaped these contentious debates.

The Civil War and the Transformation of American Citizenship reveals how war, Emancipation, and Reconstruction forced the country to rethink the concept of citizenship not only in legal and constitutional terms but also within the context of the lives of everyday Americans, from imprisoned Confederates to former slaves.

The Table of Contents is accessible on Google Books here.

Further information is available here.

--Mitra Sharafi

Schoeppner, "Moral Contagion"

New from Cambridge University Press: Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum American (2019), by Michael A. Schoeppner (University of Maine, Farmington). A description from the Press:

Between 1822 and 1857, eight Southern states barred the ingress of all free black maritime workers. According to lawmakers, they carried a 'moral contagion' of abolitionism and black autonomy that could be transmitted to local slaves. Those seamen who arrived in Southern ports in violation of the laws faced incarceration, corporal punishment, an incipient form of convict leasing, and even punitive enslavement. The sailors, their captains, abolitionists, and British diplomatic agents protested this treatment. They wrote letters, published tracts, cajoled elected officials, pleaded with Southern officials, and litigated in state and federal courts. By deploying a progressive and sweeping notion of national citizenship - one that guaranteed a number of rights against state regulation - they exposed the ambiguity and potential power of national citizenship as a legal category. Ultimately, the Fourteenth Amendment recognized the robust understanding of citizenship championed by Antebellum free people of color, by people afflicted with 'moral contagion'.

A few blurbs:

'Schoeppner’s pathbreaking book reconceptualizes the national story of citizenship to include a broader cast of characters and an earlier timeline, demonstrating the significance of the Negro Seamen Acts to American legal history. This elegantly-written work reminds us of the centrality of movement for African Americans as they struggled over the meaning of citizenship rights.' -- Kelly Kennington 

'Mariners stood at the forefront of struggles over US citizenship from the Revolution to the Civil War. In Moral Contagion … Schoeppner reveals how state laws regulating the mobility of black sailors became a focal point for debates in the antebellum period over the substantive rights conferred by national citizenship. Speaking to questions about federal power and racial equality in the Atlantic world, his book will become essential reading for students and scholars interested in the contested history of American citizenship.' -- Nathan Perl-Rosenthal

More information is available here. And here's Professor Schoeppner talking about the book over at the New Books Network.

A Better Book: Trust Oneself, then Know Oneself

A week ago I had the pleasure of being on a panel focused on my recent book, Almost Citizens. Sophia Lee asked me a question that zeroed in on one of the book’s core claims: ambiguity often acts as a tool and pathway for legal and political actors seeking to alter constitutional meaning. Sophia’s question also cast into relief the topic of this post: the need both to trust one’s instincts and to interrogate them.

Sophia’s question ran along these lines:

Almost Citizens unfolds in two parts.  The first concerns Federico Degetau, a legal idealist. He believed that the Supreme Court would, if squarely presented with the issue, adhere to settled constitutional understandings and judge Puerto Ricans to be rights-rich U.S. citizens of a future state. That never happened. The book’s second half focuses on Puerto Ricans who use politics to gain rights.  They have more success.  Yet the book is sympathetic to Degetau. The afterword pines for a revival of older constitutional understandings.  So which is it: Is law or politics dominant? Was Degetau savvy or naïve?

I was really happy to get the question.  Sophia had identified the tension between my faith in the autonomy of law and my comprehension that law had no existence apart from the broader world. At a general level, these were strands in legal history that another of last week’s panelists, Bob Gordon, had influentially spelled out 35 years ago. This post concerns how that tension mapped onto my own intuitions and research trajectory.

I was a 1L in law school and had yet to start my doctoral program in American Culture when I first encountered the Insular Cases (1901-1905).  It was thus very much as a lawyer (in the making) that I read these cases remaking the constitutional law of U.S. empire. I was struck by the absence of unequivocally binding doctrine to be found in them. Contrast many historians, who were more likely to notice the justices’ racial rhetoric, their dicta sympathetic to empire, and their failure to rein in colonialism.

My initial interpretation of events ran along formalist lines.  By trusting that I was analyzing the cases correctly, I could distinguish myself from a host of prior work. I argued that other scholars over-read the early Insular Cases. Downes v. Bidwell (1901) had no majority opinion. It thus could not have invented as binding doctrine the proposition that Puerto Rico was unincorporated, hence neither destined for statehood nor entitled to non-fundamental constitutional rights.  Gonzales v. Williams (1904) expressly declined to decide whether Puerto Ricans were U.S. citizens, so it did not hold that they were noncitizen nationals.  A justice firmly opposed to the doctrine of territorial nonincorporation joined the majority opinion in Dorr v. United States (1904), so it made little sense to identify that decision as establishing the doctrine as binding law.  Nor was Rasmussen v. United States (1905) a promising candidate. Its author, Justice Edward White, sought to influence how the Supreme Court reporter depicted the decision because he worried that the decision would not settle the question.

But as I moved from dissertation more firmly to book, I gained insight into my predilections.  I was overinvested in Puerto Rico’s first elected representative to Washington, the brilliant lawyer Federico Degetau y González.  As Sophia observed, Degetau shared my soft spot for legal formalism. He knew that citizenship, full constitutional rights, and eventual statehood were the constitutional consequences of annexation under the settled late-nineteenth-century constitutional understandings that I term the Reconstruction Constitution. He saw that new precedents had not overturned the prior case law.  And he expected law to tame politics if courts were provided the proper opportunity. He was wrong.

The more that I researched, the clearer it became that everyone around Degetau saw his legal quest as quixotic.  He left office politically isolated. He made little progress toward citizenship, full constitutional rights, or eventual statehood.  The Court was not opposed to empire and would not confront and overawe politics. The justices were caught between competing impulses: adhere to settled constitutional understandings and avoid dooming the U.S. imperial experiment.

By gaining perspective on Degetau (and myself), I was able to reinterpret the Court’s fractured, evasive decisions.  The justices were not silent on empire; they had not simply left prior constitutional doctrine in place.  The Court was productively ambiguous (for more on legal ambiguity as the handmaiden of empire, see Katrina Quisumbing King’s excellent dissertation-now-book-project). To reconcile the Constitution and empire, it cooperated with nonjudicial actors in a slow, creative process characterized by judicial vagueness.  This became a key claim of the book. Constitutional revolutions are not always marked by landmark cases.  Sometimes they are hidden behind fractured decisions, underdefined terms, narrow holdings, suggestive dicta, and the legal innovations and on-the-ground decisions of bureaucrats, lawmakers, and presidents.

That leads to my answer to Sophia’s questions.  Law never dominated politics. But during the late nineteenth century, the Reconstruction Constitution did slow down imperialistic projects.  As a result, I think there’s value to pursuing a politics dedicated to lodging key commitments in constitutional law.  On that front, we could do worse than to resurrect aspects of the Reconstruction Constitution.  As to Degetau, he was both savvy and naïve.  He was a genius at ginning up citizenship disputes all across the federal government.  But he was overoptimistic in his assessment of the promise of a purely legal strategy.  In making that mistake, he resembles me. I frequently find myself disappointed that courts do not more fully vindicate their professed precedential commitments.  Had I been an elite advocate for Puerto Rico in the early twentieth century, I might have backed Degetau. The value of taking years to write the book decades after the events it depicted were over is that I was able to convey both the attractions and the perils of my and Degetau’s mistaken premise.

--Sam Erman

CFP: Constitution and Citizenship Day at SFSU

[We have the following call for papers, presentations, and panels.]

“Rights and Wrongs: A Constitution and Citizenship Day Conference at San Francisco State University,” 16-17 September 2019

 We welcome proposals for papers, presentations, panels, roundtables, teach-ins, and workshops at “Rights and Wrongs: A Constitution and Citizenship Day Conference,” which will take place on Monday and Tuesday, 16-17 September 2019.

Over the last few years, people living in the United States have participated in far-reaching debates and discussions about the U.S. Constitution. Many of these conversations have focused on democratic governance and its relationship to state and federal elections, foreign collusion and domestic conspiracy, political and ethical corruption, voting rights, legislative redistricting, and presidential impeachment. Some have addressed core constitutional principles related to the separation of powers, checks and balances, and federal-state relationships. Others have concerned specific constitutional provisions such as freedom of speech, freedom of the press, separation of church and state, privacy rights, rights to bear arms, protections against unreasonable searches and seizures, birthright citizenship, due process rights, and rights of equal protection. Meanwhile, some of the most polarizing national discussions of 2017, 2018, and 2019—about racialized policing, immigration restriction, sanctuary cities, health care, sexual harassment, LGBT rights, hate speech, and gun control—have been framed as matters of constitutional meaning and significance. Just as important and revealing are the constitutional topics that much of the country has not been considering, including the rights of indigenous, colonized, incarcerated, and institutionalized peoples on lands currently claimed by the United States.

What have we thought about the Constitution in the past and what do we think of it today? When, how, and why have we thought about the Constitution? How has the Constitution been used as a legal and cultural touchstone in the past and present? Has the Constitution supported the expansion of citizenship, democracy, and equality or has it produced, preserved, and promoted social hierarchies? What does the Constitution reveal and obscure? Is the United States experiencing constitutional crises? Have the country’s recent political troubles exposed longstanding problems with or new threats to the U.S. constitutional order? Can the history of the U.S. Constitution serve as a resource for people troubled by today’s uses and abuses of U.S. power and politics? For those seeking social change, is the Constitution an opportunity or obstacle? Can and should it be followed, changed, modified, or abandoned? Who makes meaning out of the U.S. Constitution and what meanings are made? What are the implications of our interpretations and transformations of the U.S. Constitution?

Please join us to discuss these and other issues at “Rights and Wrongs.” San Francisco State University has a proud tradition of sponsoring Constitution and Citizenship Day conferences. Last year’s event was sponsored by the College of Liberal and Creative Arts and cosponsored by fourteen other colleges, schools, departments, centers, and campus organizations at SF State. More than 1000 faculty, students, and community members attended the event, which featured two keynote presentations and approximately forty faculty, graduate student, and community-based presenters, representing fourteen colleges, universities, and non-governmental organizations. As was the case last year, the 2019 conference will provide multiple opportunities to reflect critically on the past, present, and future of constitutional rights and freedoms and larger questions about equality, democracy, and justice.

Proposals for papers, presentations, panels, roundtables, teach-ins, and workshops (maximum 250 words) should be submitted by 20 June 2019 to marcs@sfsu.edu. We welcome individual and group submissions. Please submit short vitas/resumes for all participants.

[Lists of recommended topics and the members of Organizing  Committee appear after the jump.]

A Better Book: Living Descendants

              Three and a half years ago, I had the good fortune to join Barbara Welke, Mitra Sharafi, and Daniel Sharfstein at the 2015 Annual Meeting of the American Society for Legal History for a roundtable on working with the living descendants of historical actors.  As we explained:

Online databases and communication technologies, the transnational turn, the study of memory and agency, and genealogy all lead legal historians to work with descendants of subjects. . . . Scholar-descendant exchanges shape and enrich legal history, making the past recoverable and vivid.  Joint projects that broaden arguments and audiences can result. . . . The scholar offers new strands in family or community histories.  Descendants’ experiences and understandings reveal impacts, limits, and reverberations of legal dynamics or push scholars to move beyond legal frames in productive and unfamiliar ways.

I joined the panel to discuss the topic of today’s post, my experience working with a descendant of a central character in Almost Citizens. The story began around eight years ago.

Just weeks after receiving final approval of my dissertation, which centered on a 1904 Supreme Court litigant names Isabel Gonzalez, I received an email from Belinda Torres-Mary.  She was also researching Isabel Gonzalez and had been for years.  I held my breath.  She was fascinated to learn new details about Gonzalez’s unsuccessful experience as the first Puerto Rican person to demandU.S. citizenship from the Supreme Court.  She was not an academic historian.  Gonzalez was her great-grandmother. Belinda was a passionate genealogist. Exhale.

Soon, Belinda and I were trading research leads.  She told me anecdotes.  Tacking back and forth, we discovered many more records. A long-passed woman I had spent years getting to know came to life once again, now in a new way.  As a result, the book’s account of Gonzalez is much richer than the dissertation’s.

As our collaboration deepened, we discussed how we each understood Isabel Gonzalez.  I saw her as a tragic hero of sorts. When she sought to migrate from San Juan to a better life in New York, Ellis Island inspectors discovered that she was an unmarried mother who was also pregnant and ordered her to be deported as an undesirable alien. Gonzalez filed a suit that eventually reached the Supreme Court. She argued that Puerto Ricans could not be deported because they had become U.S. citizens after the annexation of Puerto Rico in 1899. The claim tapped into longstanding interpretations of the Fourteenth Amendment as making citizens of all Americans other than American Indians. But the justices ruled more narrowly: Puerto Ricans were not aliens, hence not subject to deportation. Nothing needed to be said regarding citizenship. The tentativeness was typical of the early-twentieth-century Insular Cases, through which the Court contributed to a sea change in constitutional law alongside lawmakers, bureaucrats, presidents, and private actors. But the sum result was momentous, a turn away from the Reconstruction Amendments, rights, citizenship, and statehood and toward colonialism.

Belinda declared Gonzalez to be the Puerto Rican Rosa Parks. Initially, the comparison typified for me the difference between our projects.  Belinda saw her ancestor as a heroic figure in a long U.S. march toward inclusion and liberty.  If asked, I probably would have said that even Rosa Parks was no Rosa Parks.  Certainly, the professional historian in me felt compelled to emphasize differences between the women.  Gonzalez’s activism had not made her famous.  It had not arisen out of a commitment to a mass social movement or come to be supported by one.  She had engaged in legal maneuvers rather than direct action.  She did not prevail.  The unmarried and pregnant Gonzalez was not a model of respectability.  She was from a different community and drew on a heritage of Spanish rather than U.S. rule.  It was not clear that she had African ancestry; she seemingly never identified as of color.

              But the deeper I have delved, the more wisdom I have found in Belinda’s analogy.  However Gonzalez self-identified, racial prejudice lay behind the effort to deny her U.S. citizenship and behind the Court’s tepid response to her challenge.  Both controversies were profoundly shaped by being launched by women.  Law played crucial roles in both cases, in part because its future shape was uncertain.  Although neither dispute resulted in a constitutional ruling, both quickly came to be understood as signal events in processes of major constitutional change.  Both cases asked federal courts to reinvigorate legal legacies of Reconstruction.  Gonzalez and her allies deployed honor in ways that prefigured later uses of respectability.  They argued that Puerto Ricans’ honor made them worthy of equal treatment, and that denial of such treatment unjustly dishonored them.  In both cases, a modestly situated actor meaningfully influenced constitutional change.  Both disputes were key events in iterative processes of legal transformation involving a diverse array of officials.  And as recent events sharply remind us, the constitutional revolutions that resulted in both cases were incomplete and unstable.

              Working with Belinda also made my process of researching Almost Citizens feel similar to my experience of reading good fiction.  The book’s characters, themes, insights, and events kept overrunning the interpretive bounds within which I sought to contain them.  I found the world that emerged from the archives to be immersive and consuming.  I aimed to capture these novelistic sensations with a character-driven approach that attended to narrative and people as much as it did to analysis and argument.  Of course, I did not have the luxury of inventing plot turns and characters at will.  But I did have characters who were real and compelling.  Their struggles helped form the world we now inhabit.  For Belinda, that was doubly true.  Isabel Gonzalez’s decisions brought Belinda’s ancestors into existence.  Unsurprisingly, strongly felt familial ties linked great-granddaughter to great-grandmother.  Perceiving Belinda’s passion for Gonzalez’s story inspired me to deepen my depictions of Gonzalez, her choices, and their consequences – all to the book’s benefit.

That Belinda and I even met reflects a sea change in the practice of history.  Since I began graduate school, innumerable primary documents have become text-searchable online.  Books, census manuscripts, passenger manifests, judicial documents, legislative hearings, and newspaper articles that required research trips, microfilm readers, hours of painstaking review, and no small amount of luck now spit up information on a person or theme of concern with little more than an entry in a search box.  In many cases, the impetus behind this mass digitization and metadata creation has not been the needs of academic historians, but the demands of genealogists and the growing sophistication of character recognition software.  Increasingly, scholars seeking to learn about particular historical figures find themselves working in tandem or collaboration with genealogists investigating their roots.  One additional reason is that the digitization revolution has made scholars' output ever more accessible, as Belinda discovered when she began searching mentions of her great-grandmother.

              The rise of genealogy and new research technologies has transformed the ethics of researching and telling history. I am lucky not to have encountered the more acute conflicts that can arise. Belinda encouraged me to make my own decisions about what to include in the book and how. Here, it helped that Belinda had developed her own writerly voice.  She expressed aspirations soon after we met to write a young adult biography of Isabel Gonzalez.  I think it’s a great idea. With any luck, I’ll interest her in letting me assist while she takes her turn in the author’s chair.

Even in functional partnerships, working together involves give, take, and the question of whether each person is doing their share of both. Early on, I worried that I was more of a taker. Belinda offered up family history that I had no other way to access.  To my delight, I came to realize that the scarce commodity that I could contribute was undigitized archival material and historical methods with which to make better use of what was online. I was pulling my own weight because history had something unique to contribute.

If I stumbled, it was in over-skepticism. When Belinda recounted the family lore that Gonzalez had married a gentleman before migrating to New York, my first thought was that many more families claim ancestral earls than actually have them. Silly me. As our research continued, Belinda remembered that the story was told in Spanish. Gonzalez had married a “caballero.” Perhaps that was a last name, not an adjective? Some searches in digitized church and county records confirmed it. Gonzalez’s first husband, Juan Caballero, died of tuberculosis in his early 30s, shortly after Gonzalez became pregnant with his second child.

              Working with Belinda was also a reminder that Gonzalez has many other living descendants. Some knew her well. All share in her history. Few would accept every interpretive choice that I made. Yet I am obliged to them, especially Belinda. I hope they recognized Isabel Gonzalez in what I wrote, even as they also saw her in a new light.

--Sam Erman

Jones and Lash to Speak on Citizenship and the 14th Amendment

A panel discussion, Citizenship and the 14th Amendment, will take place on Friday, March 29, from 5:00pm to 6:30pm in Masters Hall 110 Mara Auditorium at Gettysburg College in Gettysburg, PA. The two speakers are Martha S. Jones, Society of Black Alumni Presidential Professor and Professor of History, The Johns Hopkins University, and Kurt Lash, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of Law:

The 14th Amendment was forged in the chaos of the years which followed the Civil War,
and was ratified in 1868. It is also the most oddly-constructed of the Constitution's twenty-seven amendments, since it contains not one, but five unrelated provisions. It is also the place where the Constitution addressed a question it had ignored for seventy-one years – who is a citizen of the United States? In the process, the 14th Amendment introduced language into that definition about the “privileges or immunities” of those citizens and their “equal protection” which has been the fuel of judicial argument ever since. Join us for a sesquicentennial review of one of the Civil War era’s greatest legal triumphs, and one of its most puzzling mysteries.