Erman to Deliver Inaugural SCHS Constitution Day Lecture

At Noon (EDT), September 17, 2021, Sam Erman, Professor of Law, Gould Law School, University of Southern California, will deliver the Inaugural Constitution Day Lecture of the Supreme Court Historical Society, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire.  He will explore “the story of Puerto Rico and the Constitution following the U.S annexation of the islands in 1898.  The lecture is free to Society members and $10 for others.”

Dehm on Émigré Lawyers in Australia

Sara Dehm, University of Technology Sydney Faculty of Law, has posted Legal Exclusions: Émigré Lawyers, Admissions to Legal Practice and the Cultural Transformation of the Australian Legal Profession, which also appears online in the Federal Law Review 49:3 (2021):

Legal histories of Australia have largely overlooked the exclusion of European émigré lawyers from legal practice in Australia. This article recovers part of this forgotten history by tracing the drawn-out legal admission bids of two Jewish émigré lawyers in the mid-20th century: German-born Rudolf Kahn and Austrian-born Edward Korten. In examining their legal lives and doctrinal legacies, this article demonstrates the changing role and requirement of British subjecthood in the historical constitution and slow cultural transformation of the Australian legal profession. This article suggests that contemporary efforts to promoting cultural diversity in the Australian legal profession are enriched by paying attention to this long and difficult history of legal exclusions.

–Dan Ernst

Chin and Chin on the War against Asian Sailors and Fishers

Gabriel Jackson Chin, University of California, Davis School of Law, and Sam Chew Chin, CUNY Graduate Center, have posted The War Against Asian Sailors and Fishers, which is forthcoming in the UCLA Law Review:

Beginning in the 1880s, maritime unions sought federal legislation to prevent Chinese, Japanese, Filipino, and Asian Indian sailors from serving as crew on U.S.-Flag vessels. This campaign succeeded in mandating citizenship requirements for crews which remain in the U.S. Code today. Similarly, federal and state laws limited the ability of Asians to fish, own fishing boats, or to serve on crews of fishing vessels. Few of these laws targeted Asians by name, but legislative history and contemporary media accounts make clear that racial exclusion motivated many facially neutral requirements such as literacy tests and restriction of jobs to citizens or those who had declared their intention to become citizens. As U.S. law restricted naturalization by race from 1790 to 1952, requiring citizenship had direct racial effects—white immigrants could be fishers or sailors, but not Asian immigrants. The expansiveness of exclusionary laws across time, geography, and level of government, its use of proxy categories to achieve racial discrimination, and yet its obscurity today, suggest the comprehensive nature of racial discrimination in the pre-Civil Rights era.

--Dan Ernst

Repatriated Women: A Digital Project

We have the following via "The Twelve Key," the blog of “Claire Kluskens, a Census/Genealogy Subject Matter Expert and Digital Projects Archivist at the National Archives and Records Administration (NARA), Washington, DC”:

Staff members at the National Archives at Chicago are tagging various records series in Record Group 21, Records of District Courts of the United States, to make them more accessible to a wider audience.

One of these series is the U.S. District Court, Detroit, Repatriation Records, 1918-1970 (National Archives Identifier 1150838). Between 1907 and 1922, women lost their U.S. citizenship if they married a foreign national. Later, many women wished to regain their U.S. citizenship. Depending upon when they applied, the women were required to file either a Petition for Naturalization or take the Oath of Allegiance. This series primarily includes the latter document.

More.  Dan Ernst.  H/t: JG

YLJ CFP: Law of the Territories

 [The Yale Law Journal has announced the following Call For Papers.  DRE]

Special Issue on the Law of the Territories

Date Posted: March 23, 2021; Submission Deadline: July 15, 2021

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131's Special Issue.

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people-98% of whom are racial or ethnic minorities-live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States's annexation and governance of its colonies. The Court's holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law-and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to:

• the relationship between federalism and empire;
• the challenge of cultural accommodation within the United States's constitutional framework;
• the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination;
• the intersection of race, gender, and class inequality in the context of U.S. colonial governance;
• and the promises and pitfalls of territorial autonomy.
  

Eligibility and Submission Details.  The Journal invites submissions from both established and emerging scholars. We also welcome submissions from practitioners, jurists, students, and others with special expertise on the territories. Consistent with our Submissions Guidelines, we will not review Articles or Essays written by current J.D. students at Yale Law School or authors who were J.D. students at Yale Law School at any time during Volume 131's submissions window. We specifically encourage authors from the territories to submit.

For Articles, we strongly encourage submissions of fewer than 25,000 words, including footnotes. For Essays, we strongly encourage submissions of fewer than 15,000 words, including footnotes.

The deadline to submit an Article or Essay is July 15, 2021. To submit, please use our online submission system. If this is your first time using our submission system (launched in February 2021), please make a new account by clicking "Not a member?" on the login page. When you are asked to select a "Submission Type," select "Special Issue: Law of the Territories" (do not select "Article" or "Essay").

Please direct questions about this Special Issue to the Managing Editors, Josh Altman (joshua.altman@yale.edu) and Sammy Bensinger (samantha.bensinger@yale.edu).

Weekend Roundup

• 
  Amanda Frost, Bronfman Professor of Law & Government, American University Washington College of Law, will be speaking on her book You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers online at Politics & Prose on January 28.  More. 
  

• Linda Kerber and Lisa Moses Leff will comment at the first Washington History Seminar of 2021 on at 4 PM ET Monday when David Nasaw discusses his new book, The Last Million: Europe’s Displaced Persons from World War to Cold War.  Register here; watch here.

• Applications for the J. Willard Hurst Summer Institute in Legal History are due on January 15.  This two-week program of the American Society for Legal History for early career scholars will take place June 13-26, 2021.  Information here.

• From the Washington Post's "Made by History" section: Gregory P. Downs (UC Davis) and Kate Masur (Northwestern University), "Yes, Wednesday’s attempted insurrection is who we are."
  

• If you're working on death, this Call for a Royal Holloway virtual conference (15-16 April 2021) may be of interest. Proposals for Until Death Do Us Part: Historical Perspectives on Death and Those Left Behind, 1300-1900 are due Jan.29, 2021.

• And here's another Call for a virtual conference, from the University of Reading (27 April 2021): Medieval Government Finance: Innovation and Experimentation. Proposals due by 19 Feb. 2021.

• “When the Covid-19 pandemic forced the cancellation of conferences and public talks, the editors of the Journal of the Civil War Era organized a series of webinars with historians to discuss new books and research in Civil War era scholarship. The webinars are free, registration required, and the recordings are posted on the JCWE’s YouTube channel.”  The lineup for the first five months of 2021 lineup is here. 

• New from the Alternative Law Forum in Bangalore: a brief introduction to the Preamble of the Indian Constitution.

• ICYMI:  Holly Brewer explains that Thomas Jefferson did not rig the 1800 election (Washington Monthly).  George F. Will doesn’t care for the Slaughterhouse Cases (WaPo).
  

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

Kirkby on "Indian" Enfranchisement in Canada

Paradises Lost? The Constitutional Politics of “Indian” Enfranchisement in Canada, 1857–1900, by Coel Kirkby, University of Sydney Law School, is now available from the wesbite of the Osgoode Hall Law Journal.  Professor Kirkby writes that it is part of a forthcoming book, The Birth of the Native: Democracy and the Disenfranchisement in the British Empire.  Here is the abstract:

Enfranchisement was the legal process for an individual or community to end their legal status as “Indians” under the Indian Act. The Canadian government hoped it would break up bands before assimilating them into settler society. This article aims to excavate the untold story of this attempt to extinguish special “Indian” status in the nineteenth century. It first traces enfranchisement as part of a Victorian discourse of civilization and as a specific Canadian legal process for the assimilation of “Indian” subjects. It then uses new archival sources to tell the untold story of the politics of enfranchisement over the second half of the nineteenth century. The article concludes with the strange case of Doctor Oronhyatekha (aka Mr. Martin). His story is of one exceptional individual’s attempt to pursue an alter "Indian” enfranchisement can help us better appreciate what is at stake in contemporary questions of belonging within the agonistic relationships of the Canadian and Indigenous constitutional orders.

--Dan Ernst

Gerangelos on Dixon, J., and Australian Nationhood

Peter Gerangelos, University of Sydney Law School, has posted Sir Owen Dixon and the Concept of 'Nationhood' as a Source of Commonwealth Power, which appears in Sir Owen Dixon's Legacy (Federation Press, 2019): 56-79:

Owen Dixon (wiki)

The principal focus of this chapter is to trace from the reasoning of Dixon J, and those whom he influenced, the High Court’s evolving jurisprudence with respect to the concept of “nationhood” as a source of power. A central thesis of this chapter is that it is questionable whether the reasoning of Dixon J in the Cold War Era cases (Sharkey, Burns v Ransley, Communisty Party Case, and the Pharmaceutical Benefits Case) as well as the reasoning in subsequent pivotal executive power cases in the High Court such as AAP and Davis, support the development of an inherent executive “nationhood” power in s 61 of the Constitution. The chapter examines the extent to which the influence of Dixon J, together with the nature of the very issues considered in these cases, come together to influence the outcome of what is often regarded as the most seminal case on executive power in recent years: Pape v Commissioner of Taxation. 

--Dan Ernst

A Symposium on Race, Citizenship and Women's Right to Vote

 [We have the following announcement.  DRE]

The symposium Citizenship and Suffrage: Race, Citizenship, and Women’s Right to Vote on the Nineteenth Amendment’s Centennial, sponsored by the Washington College of Law, American University, will take place online via Zoom on Tuesday, October 6, from 05:00PM - 06:30PM.

The event will describe how citizenship acquisition and citizenship-stripping laws barred women who married noncitizens, as well as women of color generally, from exercising their right to vote even after the 19th Amendment was ratified. Speakers will discuss the history of these laws and then connect these historical events to the challenges to accessing the ballot today.

Panelists include Professor Rose Cuison-Villazor (Rutgers Law School and WCL alum); Professor Kunal Parker (Miami Law School); Celina Stewart (League of Women Voters); Professor Leti Volpp (Berkeley Law School). Professor Amanda Frost (WCL) will moderate.

Ramsey on Originalism and Birthright Citizenship

Michael D. Ramsey, University of San Diego School of Law, has posted Originalism and Birthright Citizenship, which is forthcoming in volume 109 of the Georgetown Law Journal:

The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

--Dan Ernst

Weekend Roundup

• LaborOnline, the blog of the Labor and Working-Class History Association, has been hosting a symposium, introduced by Eileen Boris, on recent LHB Guest Blogger Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era.

•  Catch the latest Legal History Podcast: Philip Thai discusses his book, The War on Smuggling: Law, Illicit Markets, and State Power on the China Coast with Siobhan Barco. We announced the book here. 

• Over at Strict Scrutiny, Adam Cohen is interviewed about his book Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck.

• The deadline for applying to the previously announced constitutional history seminar with Josh Chafetz and David Pozen has been extended to September 9.

• The 13th annual Court History and Continuing Legal Education Symposium, “An Election Fraud Case for the Ages: U.S. v. Aczel,” will take place in a virtual session Friday, Nov. 20 from 4 to 5 p.m.  Journalist Sasha Issenberg will explore the story behind U.S. v. Aczel, a trial in federal court of the mayor, chief of police, and other prominent officials in Terre Haute, Indiana, for voter suppression in 1914.  More.

• ICYMI: Martha Jones's search to find out if her grandmother voted (NYT), and Felice Batlan discovers that her great-grandmother lost her US citizenship under the Expatriation Act of 1907 (WaPo).  Garrett Epps on birthright citizenship and Kamala Harris (The Atlantic).

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

Casey on Nationals Abroad

Out this month is Christopher A. Casey (University of California, Berkeley), Nationals Abroad: Globalization, Individual Rights, and the Making of Modern International Law with

Cambridge University Press. 

From the publisher: 

It is a fundamental term of the social contract that people trade allegiance

for protection. In the nineteenth century, as millions of people made their way around the world, they entangled the world in web of allegiance that had enormous political consequences. Nationality was increasingly difficult to define. Just who was a national in a world where millions lived well beyond the borders of their sovereign state? As the nineteenth century gave way to the twentieth, jurists and policymakers began to think of ways to cut the web of obligation that had enabled world politics. They proposed to modernize international law to include subjects other than the state. Many of these experiments failed. But, by the mid-twentieth century, an international legal system predicated upon absolute universality and operated by intergovernmental organizations came to the fore. Under this system, individuals gradually became subjects of international law outside of their personal citizenship, culminating with the establishment of international courts of human rights after the Second World War.

 Praise for the book:

"Nationals Abroad is a wonderfully written, rich and innovative study which unearths and problematizes the histories of international business interests and the creation of the international human rights regime and chronicles the rise and decline of diplomatic protection in favor of individual independent claims before international tribunals." -Doreen Lustig

"The individual is the new centrepiece of international law, yet most studies are confined to her human rights against her own state. Bringing together international law, human rights law, international economic law, and legal history together, Christopher Casey goes further. And with his superb writing skills he provides us with a book that is not only needed and timely, but also fascinating to read." -Ralf Michaels

"A tour de force. Nationals Abroad makes an important contribution to the historical literature on the place of individuals in international law. Casey rediscovers the central place that nationality occupied in the making of modern international law. Elegantly and charmingly written, this book is a must read for anyone interested in legal history of the nineteenth-century Atlantic."- Peter J. Spiro

Further information is available here.

--posted by Mitra Sharafi

Weekend Roundup

• The National History Center's next Congressional briefing will be on the history of health care in the U.S.  It will be Friday, June 28, 2019 from 10:00 am-11:00 am, in the Gold Room, Rayburn House Office Building, Room 2168.  The speakers will be Beatrix Hoffman, Northern Illinois University, and Nancy Tomes, Stony Brook University. Alan Kraut, American University, will moderate.  Saith the NHC: “Why is the American health care system so costly, complex, and challenging for those who seek to legislate improvements in access to and quality of care? The answers are rooted in the historical forces that gave rise to the current system. Two leading authorities on the history of American health care will explain how we got where we are today.” 

• Deadline approaching:  Applications for ASLH Cromwell Research Fellowship grants for early career scholars are due on July 1.

• Over at Jotwell, Joanna Grisinger, Northwestern University, has posted The Federal Trade Commission as National Nanny, her appreciation of Rachel Louise Moran's "Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation," in Shaped by the State: Toward a New Political History of the Twentieth Century 317 (Brent Cebul, Lily Geismer, and Mason B. Williams, eds., 2019).

• ICYMI:  The Supreme Court Rulings That Have Shaped Gay Rights in America (History Channel).  Why birthright citizenship is crucial to democratic governance, by Marixa Lasso, Universidad Nacional de Colombia, on WaPo’s "Made by History."  Also on WaPo's MbH: Karin Wulf, Omohundro Institute of Early American History & Culture and William & Mary, on What Naomi Wolf and Cokie Roberts teach us about the need for historians.

• And at the Conversation: Treva B. Lindsey, The Ohio State University provides this concise history of the US abortion debate, while Mark Fathi Massoud, UC Santa Cruz offers insights into the interaction between colonialism and Islamic law in Sudan.

• Update: Anna Jarvis interviewed on winning the R. Roy McMurtry Fellowship to research her great-great grandfather, Edward Jarvis, chief justice of the supreme court of Prince Edward Island (CBC).

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

Blackhawk on "Federal Indian Law as a Paradigm Within Public Law"

As I read Katie Eyer's piece on JOTWELL yesterday -- an admiring review of a recent article by Maggie Blackhawk (Penn Law) -- I was reminded that we had not yet flagged this article for our readers. There is lots of legal history here! Here's the abstract for "Federal Indian Law as a Paradigm Within Public Law," published this spring in the Harvard Law Review.

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform.

More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.

Here's a taste of Professor Eyer's review:

Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Read on here.

-- Karen Tani

Hanley on nationality in Alexandria

Back in 2017, Will Hanley (Florida State University) published Identifying with Nationality: Europeans, Ottomans, and Egyptians in Alexandria with Columbia University Press. From the publisher:

Nationality is the most important legal mechanism sorting and classifying the world's population today. An individual's place of birth or naturalization determines where he or she can and cannot be and what he or she can and cannot do. Although this system may appear universal, even natural, Will Hanley shows that it arose just a century ago. In Identifying with Nationality, he uses the Mediterranean city of Alexandria to develop a genealogy of the nation and the formation of the modern national subject.

Alexandria in 1880 was an immigrant boomtown ruled by dozens of overlapping regimes. On its streets and in its police stations and courtrooms, people were identified by name, occupation, place of origin, sect, physical description, and other attributes. Yet by 1914, before nationalist calls for independence and decolonization had become widespread, nationality had become the defining category of identification, and nationality laws came to govern Alexandria's population. Identifying with Nationality traces the advent of modern citizenship to multinational, transimperial settings such as turn-of-the-century colonial Alexandria, where ordinary people abandoned old identifiers and grasped nationality as the best means to access the protections promised by expanding states. The result was a system that continues to define and divide people through status, mobility, and residency.

Praise for the book:

 "What nationality are you? In his stunning book, Will Hanley follows this modern question deep into the social existence of ordinary Alexandrians, demonstrating the contradictory effects of its imposition. The results open a portal, not simply on a unique city in the tumultuous years between Ottoman rule and Egyptian semi-sovereignty, but also on a pivotal global experience that historians have missed. In this lucidly written and well-researched book, Hanley rewrites the history of international law and intervenes brilliantly in multiple literatures. A must-read." -Samuel Moyn,

"Hanley's book is a superb historical and sociolegal account of the rise of nationality—the universal regime of legal identification that captures what is unique about the modern world. Along the way, Hanley vividly captures the loss of another world: of concrete and heterogeneous forms of life that sought protection in other networks of affiliation. I recommend this remarkably researched and beautifully written book to scholars in Middle Eastern studies, and also to anyone who is thinking about a key characteristic of our world—the persistence of statelessness." -Samera Esmeir

"Identifying with Nationality is a magisterial investigation into Alexandria's diverse population, which comprised interwoven European, colonial, local, imperial, and national entities. Will Hanley examines this patchwork setting, clarifies that nationality at the end of the nineteenth century was a European privilege, and explores the process by which it would become what it is today: the most fundamental human right. An illuminating masterpiece." -Patrick Weil

Further information is available here.