Legal History Commons^™

Attachment Issues: Assessing The Relationship Between Newcomers And The Constitution, Ashley Mantha-Hollands

William & Mary Bill of Rights Journal

Are you attached to the principles of the U.S. Constitution? How do you prove it—do you feel it, or just know it? What role does it play in your daily life as a citizen? Ever since one of the first acts of the U.S. Congress, the Naturalization Act of 1795, applicants for citizenship have been required to demonstrate that they are “attached to the principles of the [C]onstitution of the United States.” This requirement has been at the forefront of fierce debates in U.S. constitutional history and, although it has had limited usage after WWII, it has recently been brought …

Color Of Creatorship - Author's Response, Anjali Vats

Articles

This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.

Citizenship, Race, And Statehood, Kristina M. Campbell

Journal Articles

This Article will discuss the interplay between citizenship, race, and ratification of statehood in the United States, both historically and prospectively. Part II will discuss the development and history of the Insular Cases and the creation of the Territorial Incorporation Doctrine (“TID”), focusing on the Territory of Puerto Rico and how the issues of citizenship, race, and statehood have evolved in shadow of empire as a result. Part III will look back on the admission to the Union of New Mexico and Arizona—the forty-seventh and forty-eighth states—and discuss the substantial difficulties these territories had in getting admitted for statehood due …

"She Was Surprised And Furious": Expatriation, Suffrage, Immigration, And The Fragility Of Women's Citizenship, 1907-1940, Felice Batlan

All Faculty Scholarship

This article stands at the intersection of women’s history and the history of citizenship, immigration, and naturalization laws. The first part of this article proceeds by examining the general legal status of women under the laws of coverture, in which married women’s legal existence was “covered” by that of their husbands. It then discusses the 1907 Expatriation Act, which resulted in women who were U.S. citizens married to non-U.S. citizens losing their citizenship. The following sections discuss how suffragists challenged the 1907 law in the courts and how passage of the Nineteenth Amendment—and with it a new concept of women’s …

Foreign-Born Children Of Disloyal Parents: Adam Muthana, Mary Arcedeckne, And The Natural-Born, John Vlahoplus

St. John's Law Review

(Excerpt)

Can Adam Muthana, the foreign-born child of an alien Islamic State of Iraq and Syria (“ISIS”) combatant and a New Jersey-born ISIS adherent, grow up to be president of the United States? He can if he attains the age of thirty-five, resides in the United States for fourteen years, and is a natural-born citizen. He has a facial claim to statutory derivative citizenship at birth through his mother, and some scholars argue that anyone who is a citizen at birth is a natural-born citizen. Nevertheless, there are significant disputes over whether he will be allowed to reside here, whether …

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Color Of Creatorship: Intellectual Property, Race, And The Making Of Americans (Introduction), Anjali Vats

Book Chapters

INTELLECTUAL PROPERTY LAW, the body of legal doctrine and practice that governs the ownership of information, is animated by a dichotomy of creatorship and infringement. In the most often repeated narratives of creatorship/infringement in the United States, the former produces a social and economic good while the latter works against the production of that social and economic good. Creators, those individuals whose work is deemed protectable under copyright, patent, trademark, trade secret, and unfair competition law, create valuable products that contribute to economic growth and public knowledge. Infringers, those individuals who use the work of creators without their permission, steal …

Racial Purges, Robert L. Tsai

Michigan Law Review

Review of Beth Lew-Williams' The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America.

Brief Amici Curiae Of Professors Of History, Political Science, And Law In Support Of Respondent, Kristin Collins, Catherine E. Stetson, Jessica K. Jacobs

Faculty Scholarship

Sex-based laws premised on archaic presumptions about the proper roles of men and women run afoul of established constitutional principles, especially when they interfere with the parent-child relationship. Amici write to explain the history of the federal government’s use of sex-based classifications in the regulation of citizenship. In its regulation of intergenerational and interspousal citizenship transmission, the federal government has perpetuated outdated gender-based norms concerning proper parental roles, even when those norms have been rejected in other legal and social contexts. In addition, the laws governing derivative citizenship have significantly encumbered the ability of American fathers to transmit citizenship to …

Citizenship, Belonging, And Political Community In Africa: Dialogues Between Past And Present, Emma Hunter

Ohio University Press Open Access Books

Africa, it is often said, is suffering from a crisis of citizenship. At the heart of the contemporary debates this apparent crisis has provoked lie dynamic relations between the present and the past, between political theory and political practice, and between legal categories and lived experience. Yet studies of citizenship in Africa have often tended to foreshorten historical time and privilege the present at the expense of the deeper past.

Citizenship, Belonging, and Political Community in Africa provides a critical reflection on citizenship in Africa by bringing together scholars working with very different case studies and with very different understandings …

The Commonwealth Of Puerto Rico: Trying To Gain Dignity And Maintain Culture, Arnold Leibowitz

Georgia Journal of International & Comparative Law

No abstract provided.

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Publications

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

Distilling Americans: The Legacy Of Prohibition On U.S. Immigration Law, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

Since the early twentieth century, federal immigration law has targeted noncitizens believed to engage in excessive alcohol consumption by prohibiting their entry or limiting their ability to obtain citizenship and other benefits. The first specific mention of alcohol-related behavior appeared in the Immigration Act of 1917, which called for the exclusion of "persons with chronic alcoholism" seeking to enter the United States. Several decades later, the Immigration and Nationality Act of 1952 specified that any noncitizen who "is or was ... a habitual drunkard" was per se lacking in good moral character, and hence ineligible for naturalization. Although the "chronic …

Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres

Michigan Journal of Race and Law

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …

Levinson Builds The Kingdom: Comment On "Professing Law", Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Jus Sanguinis: Determining Parentage For Assisted Reproduction Children Born Overseas, Kristine Knaplund

Kristine Knaplund

Jus Sanguinis: Determining Citizenship for Assisted Reproduction Children Born Overseas Professor Kristine S. Knaplund Abstract The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” …

Jus Sanguinis: Determining Parentage For Assisted Reproduction Children Born Overseas, Kristine Knaplund

Kristine Knaplund

Jus Sanguinis: Determining Citizenship for Assisted Reproduction Children Born Overseas Professor Kristine S. Knaplund Abstract The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” …

The Global "Parliament Of Mothers": History, The Revolutionary Tradition, And International Law In The Pre-War Women's Movement, Susan Hinely

Chicago-Kent Law Review

In spite of recent literature that examines late nineteenth and early twentieth century transnational movements in innovative ways, the largest transnational movement of that period, the women's movement, remains lodged in academic and popular memory as the "suffrage movement," a single-issue campaign waged by privileged Victorian women, a foregone development in the march of electoral progress that ended in victory with postwar enfranchisement. A fresh approach to the suffrage archive reveals instead a far more radical movement than conventional history suggests, one that explicitly linked its cause with both the revolutionary democratic tradition and with anti-colonial activism. Like the non-Western …

The Case Against Taxing Citizens, Reuven S. Avi-Yonah

Articles

The bipartisan tax reform bill recently introduced by Sens. Ron Wyden, D-Ore., and Judd Gregg, R-N.H., proposes to abolish IRC section 911. That section, which exempts U.S. citizens living overseas from tax on the first $80,000 of earned income, is indeed anomalous in the context of a tax on all income "from whatever source derived," and has been subjected to criticism. However, there is a reason section 911 has been in the code since the 1920s: In its absence, citizenship-based taxation becomes completely unadministrable. Rather than continuing the long argument over section 911, Congress should therefore reexamine the basic premise: …

John Brown's Constitution, Robert L. Tsai

Faculty Scholarship

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …

John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs

Stephen E. Sachs

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born." Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the …

An "Unintended Consequence": Dred Scott Reinterpreted, Sam Erman

Michigan Law Review

Austin Allen's monograph marks the 150th anniversary of the decision in Dred Scott v. Sandford with a revisionist interpretation of that oft-examined case. Many scholars have portrayed the case as a proslavery decision that fanned sectional fires. After all, the Court held that blacks were not U.S. citizens and that Congress was impotent to bar slavery in U.S. territories. Allen, by contrast, understands the case primarily as a judicial attempt to rationalize federal commerce and slavery jurisprudences. Part I argues that this ambitious reinterpretation enriches, but does not topple, existing Dred Scott historiography. In the case of the Court's citizenship …

Why John Mccain Was A Citizen At Birth, Stephen E. Sachs

Stephen E. Sachs

Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a "natural born Citizen" eligible to be president.

Servitude, Liberté Et Citoyenneté Dans Le Monde Atlantique Des Xviiie Et Xixe Siècles: Rosalie De Nation Poulard…, Rebecca J. Scott, Jean Hebrard

Articles

On December 4, 1867, the ninth day of the convention to write a new post-Civil War constitution for the state of Louisiana, delegate Edouard Tinchant rose to propose that the convention should provide “for the legal protection in this State of all women” in their civil rights, “without distinction of race or color, or without reference to their previous condition.” Tinchant’s proposal plunged the convention into additional debates ranging from voting rights and equal protection to recognition of conjugal relationships not formalized by marriage.

This article explores the genesis of Tinchant’s conceptions of citizenship and women’s rights through three generations …

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray

Michigan Journal of Race and Law

This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before …

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

Articles

This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal …

The Riddle Of Hiram Revels, Richard A. Primus

Articles

In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Impossible Subjects: Illegal Aliens And Alien Citizens, Leti Volpp

Michigan Law Review

America is a nation of immigrants, according to our national narrative. This is the America with its gates open to the world, as well as the America of the melting pot. Underpinning this national narrative is a very particular story of immigration that foregrounds the inclusion of immigrants, rather than their exclusion. Highlighted in this story is the period before 1924, of relatively unfettered European immigration, and the period after 1965, post the lifting of national origins quotas. Also underlying this national narrative is a particular story about what happens once immigrants enter. In this story the immigrant traverses smoothly …

Afterword - Outsider Citizenships And Multidimensional Borders: The Power And Danger Of Not Belonging, Pedro A. Malavet

UF Law Faculty Publications

In this closing for the LatCrit VIII symposium, I adopt a collective view of the articles, and attempt to develop how the themes discussed in them fit within LatCrit scholarship. I will then interrogate the future of our enterprise by discussing the danger of succumbing to the seduction of the real or perceived need "to reinvent the wheel," or at least to clothe ideas in overly-developed language. Last, the Conclusion discusses how LatCrit scholarship is both promoted and challenged by the articles published here. I further include some suggested institutional responses to the opportunities for mentoring and nurturing that I …

Le 'Droit D'Avoir Des Droits': Les Revendications Des Ex-Esclaves À Cuba (1872-1909), Rebecca J. Scott, Michael Zeuske

Articles

In Cuba, a distinctive process of gradual emancipation brought a large number of enslaved and recently-freed men and women into the legal culture. What earlier might have remained oral or physical challenges now took legal form, as slaves and former slaves built alliances with those who could assist them in their appeals. The assertions of former slaves suggest an emerging conviction of a "right to have rights", going well beyond the immediate refusal of their own bondage. In this light, the office of the notary and the courts of first instance became places where freedom itself was constituted through the …