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My New Book!
My New Book!

Friday, September 20, 2019

September 20, 2019: Constitution Week: Birthright Citizenship


[September 17th is Constitution Day, so to celebrate this week I’ll AmericanStudy a handful of contexts for that foundational American document. Leading up to a special weekend post on threats to the Constitution in 2019!]
On how a post-Civil War debate reveals complex, crucial realities of public scholarship.
As I’ll discuss a bit more in that weekend post, one of the many threats currently posed to the Constitution by the Trump Administration is the repeated challenge—at least in Trump’s statements and Tweets, but those have basically become the principal mechanism of policy-making in Motherfucking 2019 America (its new official name)—to the 14th Amendment’s guarantee of birthright citizenship. In response, I’ve seen a number of journalists, pundits, and public scholars make the case that this threatened change represents yet another example of Trump seeking to undermine and destroy fundamental American norms and values, another step in his remaking of America into a nation and community that would be unrecognizable to not only the Founders, but just about every subsequent generation of Americans. Obviously (I imagine) I agree with that overall narrative and argument, but when it comes to birthright citizenship specifically, there’s a problem: that concept was deeply contested and fragile, both in the era of its creation (nearly 100 years after the Constitution was written) and for many decades thereafter.
As historian Martha Jones traces in her magisterial book Birthright Citizens: A History of Race and Rights in Antebellum America (2018), the concept of birthright citizenship was present pre-Civil War, but often discussed through its overt denial to enslaved African Americans (as reaffirmed in the Supreme Court’s Dred Scott decision). After the war and abolition, a central goal of Reconstruction was to extend such rights to African Americans, and the 14th Amendment represented a vital first step, one complemented and cemented by the Naturalization Act of 1870. Yet the latter law only extended birthright citizenship, and indeed the possibility of gaining citizenship at all, to “aliens of African nativity and to persons of African descent,” and that phrasing was entirely purposeful: although Senator Charles Sumner had argued for extending citizenship to Asian Americans, Congress rejected that argument; similarly, Native Americans likewise remained ineligible for citizenship until the 1924 Indian Citizenship Act. Chinese Americans and their allies would continue fighting for birthright citizenship, a battle that culminated successfully in the Supreme Court’s 1898 Wong Kim Ark decision. But “fighting” and “battle” are key words in that sentence—just as it had been pre-Civil War, birthright citizenship remained a contested and evolving concept throughout the late 19th century and well into the 20th.
This is one of the many difficulties of producing public scholarship in an age when simplistic, stupid mythologies and garbage rule so much of our discourse. To note that birthright citizenship is not just a Constitutional given—that it was only added to the Constitution 150 years ago, and in a manner that still overtly denied it as a right to many Americans—might seem to grant legitimacy to Trump’s attempts to challenge and undermine it in the 21st century. Those historical facts are accurate, and so must be highlighted whatever the effects. But I would also argue precisely the opposite about acknowledging and engaging these histories of birthright citizenship (as I did in this We’re History piece): that doing so helps us understand just how fragile the concept has been and remains, just how hard the forces of inclusion have fought to extend it to all Americans, and why we must work just as hard in 2019 to maintain and even extend those hard-fought rights. That’s the true spirit of the Constitution and its evolution, as I hope this whole week has made clear.
Special post this weekend,
Ben
PS. What do you think?

Thursday, September 19, 2019

September 19, 2019: Constitution Week: Gordon Barker’s Vital Book


[September 17th is Constitution Day, so to celebrate this week I’ll AmericanStudy a handful of contexts for that foundational American document. Leading up to a special weekend post on threats to the Constitution in 2019!]
On a book that helps us understand a complex, crucial Early Republic question.
First, I’ll ask you to check out this long-ago post of mine, on the complex question of whether we progressive AmericanStudiers can and should support more noble nullification efforts (such as Thomas Jefferson’s resistance to the Alien and Sedition Acts or William Apess’s arguments in favor of the Mashpee Revolt) and yet oppose more ignoble ones (such as John C. Calhoun’s South Carolina nullification fight) without hypocrisy. Of course I believe that specific contexts matter, and that absolutist perspectives very rarely make sense; but on the other hand, in all three of these cases the arguments were in favor of states or communities having the ability to resist and even nullify federal laws and thus the Constitution itself, and that is, to say the least, a slippery and dangerous slope that seems to end quite clearly at secession.

However we answer those vexed questions, the overarching takeaway from all those histories is that the Constitution, like America itself, remained an entirely living and evolving entity throughout the Early Republic period (and still does to this day, but I’d say that it was even more fragile and in-progress in that post-Revolution era). In his impressive book Fugitive Slaves and the Unfinished American Revolution: Eight Cases, 1848-1856 (McFarland, 2013), Professor Gordon S. Barker goes one step further, arguing that the Revolution itself was still unfolding through such national and Constitutional crises. Beginning and ending with two of the most famous fugitive slave cases (William and Ellen Craft, whose racial and gender passing was just as revolutionary as their legal status; and Margaret Garner, whose choice of infanticide became the starting point for multiple cultural works including Toni Morrison’s Beloved), Barker moves through eight such historical moments, arguing for what each contributed to these evolving debates over law, justice, and America.

I’m not going to summarize or paraphrase Barker’s arguments—as with every post in which I highlight the great work of a fellow AmericanStudier, one of my main points is that, to quote LeVar Burton’s magnum opus, if you want to know the rest, read the book! Instead, I’ll end by connecting these arguments to two of my favorite Americans, Elizabeth Freeman and Quock Walker, the Massachusetts slaves whose legal petitions and activisms, along with those of their fellow slaves—and all based directly on the language and ideas of the Declaration and Revolution—contributed significantly to that state’s Revolutionary-era abolition of slavery. As I wrote in yesterday’s post, Edmund Morgan’s magisterial book American Slavery, American Freedom argues that the founding of America was inextricably tied to, and even required the existence of, the system of slavery—but what Walker and all of Barker’s focal cases (and his impressive analysis of them) illustrate is how much debates over that system helped shape and reshape our national identity and ideas, in the Revolutionary moment and long after.
Last ConstitutionStudying tomorrow,
Ben
PS. What do you think?

Wednesday, September 18, 2019

September 18, 2019: Constitution Week: The Bill of Rights


[September 17th is Constitution Day, so to celebrate this week I’ll AmericanStudy a handful of contexts for that foundational American document. Leading up to a special weekend post on threats to the Constitution in 2019!]
On the history, significance, and limitations of the Constitution’s first evolution.
One of the most striking things about the Constitution that was ratified on June 21, 1788—when New Hampshire became the necessary 9th state to ratify—is that it was already different from the document that was created on September 17, 1787. The Federalist and Anti-Federalist debates about which I wrote in yesterday’s post spilled over into the ratification debates throughout state legislatures, and eventually necessitated the February 1788 deal that became known as the Massachusetts Compromise: that the group of Amendments drafted by George Mason and known as the Bill of Rights would be immediately added to the Constitution. (There were initially twelve proposed Amendments, but only ten of course made it into the final version.) It was only after that compromise that the legislatures of four states—Massachusetts, Maryland, South Carolina, and New Hampshire—ratified the Constitution, so in a very real sense the document would not exist (not as anything other than a statement of principles, at least) without the Bill of Rights.
I would argue that the true significance of the Bill of Rights lies not just in that necessary role, however, nor even in the important and often ground-breaking specific concepts and guarantees that it includes. To my mind, the Bill of Rights was and is so significant because it immediately and permanently established the Constitution as a living document. That is, while the body of the Constitution had laid out (in Article Five) the process by which the document could be amended, there was no guarantee that it would be so altered; and I believe that the longer it had existed in a static form, the more it might have seemed to be set and unchangeable as a result. But instead, before that document was even ratified, and more than a year before it and the government it created took effect as the law of the land (on March 4, 1789), it was amended. Those amendments were the result of a messy set of debates and compromises, but that too was precisely the point, on multiple levels: they remind us that the Constitution likewise was produced through a process; and they make clear that it was designed to allow for that process to continue, and through that process to change the document (and thus the laws and nation).
Of course, the messy process that created the Constitution was also frustratingly and prominently racist, and the Bill of Rights (perhaps unsurprisingly, drafted as it was by a slave-owner) in no way escaped that all-too central element. After all, virtually every individual and collective right guaranteed by the Bill of Rights was at the same time legally denied to enslaved African Americans, who could not assemble in protest nor (in most cases) practice their religion of choice (that is, while of course many enslaved African Americans converted to and practiced Christianity, they hardly ever had any individual choice in the matter), who certainly had no right to a trial by jury nor to resist the authorities, and who day in and day out were subject to the most cruel and unusual punishments. While the 3/5s clause is the Constitution’s most overt and shocking illustration of the fundamental place of slavery and racism in the nation’s founding, I would argue that the gap between the Bill of Rights and the individual and collective experiences of enslaved African Americans is the document’s most engrained discrimination. This evolution was so important that the Constitution might not exist at all without it, but for hundreds of thousands of Americans, it was one more set of illusory and false promises.
Next ConstitutionStudying tomorrow,
Ben
PS. What do you think?