Lash’s Last Stand
Yesterday I published a critical review of a document that Kurt Lash described several weeks ago as a “completed article.” Within several hours, I learned that it is not in fact complete. Shortly after my critique went live, Lash posted a revised draft. The latest revisions aren’t substantial. But readers should be aware that I’m firing on a moving target and that eventually, I’ll have a full-length critique of his (actually) completed article.
I’ll finish up with Lash’s contrarian take on birthright citizenship by doing three things. First, I’ll critique his bizarre treatment of the children of enslaved people and Confederates. Then I’ll put to rest a claim that Lash makes about the importance of parental allegiance to the few exceptions to birthright citizenship recognized by the time of the Fourteenth Amendment’s ratification. Finally, I’ll discuss Lash’s treatment of Indian law—roughly, the law defining and regulating the relationships between the government of the United States and that of 575 federally recognized Native nations and their citizens. Although Lash has never written anything substantial about Indian law, Indian law is the source of a crucial analogy which he uses to argue for an exception to birthright citizenship that did not exist in 1868. I’ll show that the analogy doesn’t work.
Loyal Slaves? Loyal Confederates?
As Lash recognizes, the most damning defect of allegiance-based accounts of the Citizenship Clause which turn upon reciprocal consent (on the part of citizen to allegiance and the sovereign to protection) is that they cannot explain how the Clause performed the function that literally everyone (even DOJ lawyers defending the anti-birthright EO) agrees that it was designed to perform: the nullification of Dred Scott v. Sandford. Neither enslaved people nor their children consented to be kidnapped and imported as property into the United States, and the United States did not consent to the foreign slave trade either following a congressional ban in 1808. No theory of reciprocal consent can, I think, overcome the Dred Scott problem, and I think Lash agrees.
But recall that Lash does link birthright citizenship to parental allegiance and conceptualizes allegiance as loyalty to sovereign power. Just how is it that people forced into the United States and subjugated by the laws of enslaving states can be determined to be loyal to the United States? Why would they (in Lash’s terms) have “fidelity towards” sovereign power of that nature?
Lash’s solution to this apparent problem is an extraordinarily strong presumption in favor of loyalty. How strong? Strong enough that Lash can assert that “[n]othing about that context suggests, much less involves proof of, refused or counterallegiance.”
Seriously? It seems obvious that any presumption in favor of the loyalty of enslaved people to the sovereign on whose soil they were enslaved would be unwarranted. What of the countless souls who tried to flee slavery? Were those who agreed (as Frederick Douglass initially did) with William Lloyd Garrison that the Constitution of the United States was a covenant with hell, loyal to the United States? Was Douglass loyal to the United States when he offered a qualified defense of killing slavecatchers who were empowered by federal law? Was he disloyal, then loyal? These are puzzles that Lash created for himself.
I applaud Lash for uplifting the general strike through which enslaved laborers emancipated themselves before Lincoln proclaimed their freedom. But the more straightforward explanation for the citizenship of the children of enslaved people does not depend upon this momentous act of collective liberation. It is the conventional one in Citizenship Clause scholarship: Children who are born in the United States and subject to its unmediated sovereign power are citizens.
So, too, does Lash struggle to explain the Republican consensus in favor of the citizenship of the children of Confederates. If any parents manifested their disloyalty towards the United States, it would be Confederate parents. Lash responds by labeling the Confederacy a conspiracy and thus subsuming it within a broader category of “criminality.” Of course, conspiring to overthrow a government is a crime, but it is more. So, it seems odd to say (as Lash does) categorically that criminality “has no necessary relationship to refused or counter allegiance,” and is not sufficient to “rebut the presumed natural allegiance of a child born in the United States.” Again, why complicate things with loyalty? On the conventional account, these children are subject to the unmediated sovereign power of the United States—day in, day out, through its lawmaking, enforcement, and adjudicatory institutions—so they are subject to the jurisdiction of the United States.
I assume some originalist readers will regard what follows as an inadmissible “policy” argument. (But see Sai Prakash’s intriguing recent argument for the interpretive significance of consequences in Founding-era law.) Still, I can’t pass over it entirely. On Lash’s account, Reconstruction R
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