The Dred Scott Challenge or: Why Constitutional Law is Not a Game
I’m a very competitive person by nature, and I like a good challenge. That’s a big reason why I play video games, and why I particularly enjoy games by FromSoftware, the powerhouse developer behind Dark Souls, Bloodborne, and Elden Ring. (Especially Bloodborne.) These games are hard—brutally hard, intentionally hard, hard to the point of creating a semiannual debate about whether This Boss Is Too Hard.
I’m not good at FromSoftware games. (This is good.) I can and do beat them, but it’s incredibly messy. Who cares, though? For me, it’s fun and it’s rewarding to finally FINALLY kill the Orphan of Kos or Malenia. It doesn’t matter how it gets done, because it doesn’t affect anyone else. All that matters is that I overcame the challenge.
Law isn’t like this. If it’s possible to say what the law is without taking a normative stance concerning whether it is good or bad, law itself is not normatively neutral. It tells people what to do. It confers power upon people to do things that they would not otherwise be able to do—and those things affect other people. It cannot be reduced to force or threats of sanctions, but as the late, great Fred Schauer emphasized, force is rarely entirely out of the picture. If you do law messily, you can harm people.
I bring this up because the harshest critique of anti-birthright arguments that is ever likely to appear in print contends that its targets—Peter Schuck and Rogers Smith (both opponents of the EO, for the record)—adhere to a theory of the Citizenship Clause that would take us back to Dred Scott. Gerald Neuman charges that Schuck and Smith’s consent-based account of the parental allegiance necessary for a child’s citizenship following birth faces two insurmountable obstacles. First, it cannot nullify the effects of Dred Scott‘s denial of citizenship to Black Americans. Second, its premises about citizenship closely track those of Chief Justice Taney’s infamous opinion.
I’ll conclude this series by taking inspiration from Neuman’s arguments. I’ll show that his charges—grave though they are—stick to consent theories of citizenship. And I’ll contend that even if, somehow, someway, you can conjure up a consent theory that can avoid them, you shouldn’t do it. The Dred Scott challenge isn’t a difficult but rewarding game that ingenious scholars should have an interest in overcoming. It’s an invitation to rewrite constitutional text and history in harmful ways.
Antebellum Consent
I’ve made two claims about the connection between the concept of allegiance and the language of the Citizenship Clause. First, the connection is generally accepted within Citizenship Clause literature. Second, to the extent that the conventional wisdom is accurate, the concept of allegiance which informs the original meaning of “subject to the jurisdiction thereof” is not consensual and the allegiance of parents does not control the allegiance—and thus birthright citizenship—of children. I have not claimed, however, that one cannot find any evidence supporting consent theories of citizenship in the antebellum United States. The trouble for consent theorists is that this evidence comes from the South.
Consider again Lincoln Attorney General Edward Bates’s 1862 opinion on citizenship. In affirming that free Black sailors were citizens of the United States, Bates reversed a prior opinion by James Madison’s AG William Wirt. Wirt had reasoned that free people of color in Virginia were not natural born citizens because they had not taken an oath of allegiance. For Bates, this was bizarre: “If it be true that the oath of allegiance must either create or precede citizenship, then it follows, of necessity, that there can be no natural-born citizens, as the Constitution affirms, because the child must be born before it can take the oath.” Notions of consensual allegiance were not unheard of, even if Bates found Wirt’s unusual. But one tends to find them among enslavers.
Antebellum common law concerning citizenship was not copy-pasted from Coke’s Institutes. To draw any sharp distinction between jus soli territory-based citizenship and jus sanguinis lineage-based citizenship and claim that antebellum courts rejected the latter and uniformly embraced the former would be misleading. Antebellum jus soli had distinctive contours, and some southern state courts took a consent-based approach to citizenship instead.
What was distinctive about antebellum jus soli? It wasn’t just that British subjects became American citizens. Not even was it that Americans rejected as a feudal relic the notion of perpetual allegiance to a sovereign that could never be cast off. The abolitionist movement for birthright freedom emphasized the significance of territory and denigrated the importance of lineage. We can’t look past this to the original intentions of (say) Coke in Calvin’s Case, for the same reason that we can’t look past
Article from Reason.com
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