CITIZENSHIP AND RACIAL SUBORDINATION

Citizenship is a powerful concept in public discourse, often regarded as tool for promoting inclusion and racial equality. But citizenship has important limitations vehicle achieving egalitarian aspirations. As scholars have noted, an exclusionary logic, gradations of are inevitable. Contrary to the conventional wisdom, it served only weak antidote disadvantage based on race. Moreover, not always brought greater rights or well-being those who possess it. At times, its imposition operated oppressive force.This essay, reflecting one professor’s experience teaching law school seminar citizenship, argues that study leading cases associated scholarly commentary casts doubt common assumptions about relationship Examining history American free Black people, indigenous residents United States territories, Asian Americans exposes ambiguity legal status typically with unalloyed social, political, economic goods. Accordingly, this essay advocates providing students opportunities theory.“Citizenship talk” remains potent, if ascendant, progressive circles.1 basic level, promises security—the right remain seemingly ironclad protection from expulsion removal.2 For some, “citizenship” further connotes inclusion, belonging, equality political community.3 Unsurprisingly, immigrants’ treat “pathway citizenship” their goal solution precarity millions unauthorized immigrants face.4 what exactly offered subordinated people historical matter? More specifically, extent formal subordination? Scholars theorized aspirations,5 but these insights yet reshape prevailing views especially assumed link social cohesion, equality, belonging.I know because I teach every year, which encounter view binary, rights-based, either necessary sufficient condition guarantee (of some kind). think drawn they see our expanding, improving polity, arbitrary invidious barriers membership dissolve march progress. In bid complicate deepen students’ thinking assign Supreme Court cases, statutes, studies. Among other we Dred Scott v. Sandford (the Case),6Elk Wilkins,7Downes Bidwell,8United Wong Kim Ark,9Korematsu States,10 Plyler Doe.11 Although scholarship spans disciplines fills volumes, found jurisprudence be useful foundation meaning significance citizenship. explore underappreciated counterintuitive facets emerge cases. The suggest just lawful presence immigration exist spectrum,12 so does This richer portrait should inform temper expectations might mean security, liberty, equality.Students begin sense means equal rights, even such identified precisely.13 Characterizing font human British sociologist T. H. Marshall rights-based conception his classic Social Class.14 described stages development democratic defined by encompasses civil and, eventually, rights. Political include voting holding office.15 Civil relate speech, conscience, assembly, among others. welfare, including education health care. Marshall’s offers appropriate starting point presents familiar “a bundle rights.”16A binary citizenship—a you don’t have—comes under strain quickly. Elizabeth F. Cohen argued her book Semi-Citizenship Democratic Politics, liberal democracies need lest “promise secure hold out” dissolve.17 “has never been unitary concept, nor can neatly characterized binary.”18 Instead, she argued, “exists gradation” “degrees no clear boundaries.”19 These forms called “semi-citizenship.”20 Semi-citizens enjoy portion full Different semi-citizens different bundles rights.On Cohen’s view, semi-citizenship inevitable largely myth. nations inevitably rely organize polity into groups governable same set rules.21 example, children citizens aren’t treated agents voters.22 Most will agree rules cannot apply adults settings, although disagree how be. Given proliferation semi-citizenships politics, myth—a realized likely impossible realize.23 construction responds members residents, undocumented immigrants; explains why “differentiated” consistent feature history.24The major showcase semi-citizenships, race occupying prominent role delineating boundaries polity’s membership. offer challenging citizenship’s subordination. Students generally start position regardless race; after all, denied historically deemed If government extends groups, new being included integrated “we” “We People.” also linked textually, Clause appears alongside Equal Protection Fourteenth Amendment.25 primes national “good” made more accessible over time, sign progress, kinds equality.The birthright however, neither tracks linear story progress portrays “good.” Whereas many source per Marshall, Linda Bosniak explicated dark side.26 demonstrated work Citizen Alien, institution reinforces logics; embodies self-preference presupposes population excluded inclusive promise, i.e., noncitizens.27 Other illustrated substantial harm incursion Native sovereignty.28 core assigned my create context considering larger themes, supports fuller understanding citizenship.The span nearly century various phases constitutional development. predated (and helped precipitate) War, case held part Americans, whether enslaved, were any state therefore, could sue federal court theory diversity jurisdiction.29 Chief Justice Taney’s opinion, showcases inferiority, stuns studied case; readily identify abundant moral analytic failings. provides low expect see: Amendment repudiated recognizing all persons born within subject jurisdiction States.30 Seeing opinion undone amendment powerful. It nourishes essentially connected course, grant itself produce evidenced Codes, Reconstruction, Jim Crow.31We then read Elk Wilkins consider judicial interpretation implications Americans.32Elk presented question Winnebago man had severed ties tribe was citizen Amendment. determined at time birth, tribe, States. he did assume simply upon ending tribal relations. Along way, majority alluded Americans’ purported unfitness U.S. citizenship.33 Overall, fits well narrative good initially, perhaps unjustly, groups.Reading Elk, home Harlan’s dissent, disavowal majority’s racism.34 Harlan doubted very extended most whom previously contemplate extending abandoned fragment resonates dissent Plessy Ferguson, which, famously, “color-blind” Constitution.35Nevertheless, note manifesto, enlightened do extend Chinese.36 When portions Ark States, next foundational interpreting Amendment, recognized San Francisco Chinese parents, dissented. He descent due perceived inability assimilate parents’ allegiance foreign power.37 justice willing countenance Chinese.Beyond broader struggle captivates students. Lila Teeters’ recent portrayed early twentieth “not promise threat.”38 meant end sovereignty intensification forced assimilation. noted pragmatic strategic reasons pursuing namely access resources protection.39 Here, too, related materials open discussion citizenship: alternatingly coveted feared, oppressive.Justice reappears dissenter when few Insular Cases territories. Downes Bidwell, revenue clauses Constitution Puerto Rico, played benign possibly noble) role, arguing applies entirety doing, disavowed territories incorporated states residents.40 once again applying move, includes culture—but lost out.Although Congress ultimately Virgin Islands, Guam, territories,41 Samoans.42 They “nationals” rather than citizens, ineligible employment (among limitations).43 contemporary Cases, appellate decision Fitisemanu considers Samoans fact having “within States.”44 Many surprised learn decided question, denial certiorari Fitisemanu,45 won’t soon so.Finally, necessity sufficiency Korematsu illustrates that, least during wartime, isn’t protect holders race-based incarceration given group disloyalty.46Plyler Doe demonstrates inverse—that presence, unnecessary holds lack “culpability” line.47All demonstrate ways complex substantive protection. dispense with. advancing interests, interests nefarious. Rather serving solidarity, concrete stakes, implicating employment, land, voting, travel. illustrate matter, subordination—and fortified liberating be, stands serve oppression. remaining sections examine closely.Citizenship lens transformation nineteenth century, there. Scott. adopting formerly enslaved settled without modicum security violence Crow.Like us, slavery overtly.48 reading Scott, alignment between pro-slavery ideology One support former implicitly endorsing latter.In notoriously ruled man, maintain suit freedom court.49 sought jurisdiction, concluded precluded state.50 establish courts lacked matter case.51In historian Don E. Fehrenbacher’s exegesis decision, stunning analytical deficits opinion. “first invalidation law,”52 showcased ambitions, namely, desire “settle” highly contentious questions fiat.53 spanned hundred pages, analysis constituted portion. Taney first expounded equating “sovereignty” created forgetting countless white people—landless men, women, children—who “citizens” despite exclusion process creating franchise).54 After exercise nation’s sovereignty, posed “the people” sense.55Taney proceeded reframe before Constitution, thereby entitled privileges immunities citizens. answered negative, noting subordinate Blacks nation, then, critically, conflating Blacks.56 dismissed notion endow would elevate him law. Thus, men “rights bound respect” accordingly citizenship.57Taney used occasion decide huge question: validity congressional restrictions claimed protected property person eliminate through mere territory.58 Fehrenbacher slippage here personhood, implied Fifth Amendment’s Due Process inoperative, application “persons,” merely “citizens.”59 brash assertion power conceptual opacity spilled characterization well. wrote like respects others property, “betwixt between, colonies self-governing distinctive American” combination.60 hear echo White’s Rico years later: island “foreign … domestic sense.”61Although suggests flattening people’s personae closure courthouse door, Martha S. Jones shown story. study, Birthright Citizens: A History Race Rights Antebellum America, chronicled symbolic antebellum Baltimore.62 Denied era relegated category denizen, in-between classified aliens.63 liminal space, pursued fundamental marry, associate, pray, bear arms, permits licenses though requirements seldom enforced.64Free fundamentally hostile environment. Controlling mobility preoccupied slave jurisdictions.65 medley expulsion, entry bans, registration worked Blacks’ possible “to ensure blackness coterminous slavery.”66 chronicled, society problem, “aliens.”67 Committee Free Negro Population, drew up plan rid Maryland sending them Africa. proposal cast “burdening” “passivity, ambition, complacency.”68 removal, process, requirement. second prohibited real negating longstanding strategy asserting homeownership.69 third voiding manumissions failed leave thirty days gaining freedom, punishment re-enslavement. fourth bar color entering state. Lacking unencumbered places experienced nothing remotely resembling modern citizenship.States America limited territory ability came begun recognize interstate travel whites.70 1844 statute required seek out obtain court’s permission planned returning Maryland. seeking endorsement “three respectable persons.”As someone teaches survey course law, find striking strongly travel-permit regime, way rendered travelers dependent three endorsers, resembles imposed immigrants. Fong Yue Ting considered challenge section Geary Act 1892 certificates residence prove avoid deportation.71 testimony “credible witness.”72 Just cultivated “delicate dependency” would-be endorsers,73 depended witnesses throughout system—for criminal involving citizenship.74 Ultimately, plaintiffs defied purpose bringing test case.75 announcing deport coextensive exclude, named deported.76The system permitting, moreover, applied range exercise. gun permit requirement Blacks, whites. own symbolized empowerment raised prospect “free black participate Southern militias.”77 owners viewed assisting slaves freedom. Similarly, keeping dog going hunting—anything threaten enhance independence. With hunting, legislature’s fear would, food, items trade, such. weapons themselves violent crime, knew license against time—with prosecution often-hostile officials. mirrors dynamic too familiar.78Apart proposals voluntary emigration proliferated. Those backing colonization efforts both supremacists, insisted become “enlightened citizens,” subset impediments remained supremacy.79 prompted look Africa place lives anew.80 land colonize hardly empty, plans landowning utopia where fully faced difficulties.81 persisted America.Reconstruction revolutionized landscape, featuring passage amendments: Thirteenth, Fourteenth, Fifteenth.82 associate Clause, discuss primarily repudiation aware conversant debates relating rarely focus Clause’s text interpretations clause states, “All naturalized thereof, State wherein reside.”83 locus voting.84 Eric Foner’s definitive Reconstruction vitality citizenry.85The Crow crushing poverty facing freed doomed hope Justin Leroy analyzed post–Civil War economy South, freeing “four million souls,” old modes production tweaked transformed.86 quoted Frederick Douglass, observed, “The landowners South want labor hardest terms possible. nothing. Now nothing.” Douglass’s comparison disappointments horrors slavery,” best understood metaphorically hyperbolically.87 Nevertheless, underscores gap minimum level safety, well-being.The lived newly revealed belonging beyond community. Ark, parents Amendment.88 “subject jurisdiction” birth. naturalize effect they, extension he, empire.89 himself led “transnational life,” according scholars.90 Upon trip China, detained preparation deportation. filed petition writ habeas corpus, issue courts.In broad principle jus soli, one’s parents. Children naturalization race, were, eligible earlier Privileges Immunities uncertainty point.91 Dicta Slaughterhouse believed noncitizens citizens.92 contrast, were. soli long illustrious pedigree England Ark’s suit, certain acknowledge force regarding child noncitizen, nonwhite one.93Writing majority, Gray emphasized function regard race.94 Under established English adopted, diplomats “alien enemies occupation.”95 Beyond traditional exceptions, broadly. To limit undercut function.Justices McKenna dissented, finding aliens,” whose parents” thus “completely subject” States.96 Unlike permanent domicile temporary soli. domicile. perpetually subject, part, power.Scholars material stakes here—the life.”97 bring “belonging” experience. Indeed, era, branches continued policy exclusion, 1943.98 involved registration, deportation, Beth Lew-Williams