Monday, October 28, 2013

Legacies of Dred Scott? Citizenship, Social Meaning and the "Birthers"

Now that the film "12 Years a Slave" based on the 19th-century memoir has been released to critical acclaim and good box office returns, I wonder whether we'll see a bit more dialogue on how the present continues to shape the past, despite our much-pined-after ideal of post-racialism....


After all, that great political expert (OK not so much, but one could legitimately say the lauded (or larded!) pop-culture queen) Paula Deen informed us recently how her family mourned the loss of the "help" they had had on their antebellum plantation, and further opined that "it will take a long, long time" for "prejudice" to end. 

  
Another prime candidate for historical consciousness-raising in recent years has been the so-called "birther movement" -- the claim that U.S. President Barack Obama was not born in the United States. After Obama released the official long-form certificate recording his 1961 birth in Hawaii, birtherism initially spiked, but then, thankfully, declined rapidly among both the population at large and conservative Republicans, so that even amongst the latter only 16% held the birther view according to the last Washington Post poll I consulted on this.

My point about historical consciousness-raising isn't the need to dispute the birther claim on the facts, since the facts seem clear and the claim discredited -- but, rather, to gain historical awareness of how deeply that claim resounded the racialized past.

For example, only occasionally remarked upon during the birther kerfuffle was the striking resemblance of the birthers' arguments to the basic premise of the Dred Scott case, the infamous pre-Civil War opinion which found that persons of African descent could not claim U.S. citizenship. 

Justice Taney surely thought he was simply stating the obvious (I'd use the phrase "calling a spade a spade" but that probably wouldn't be good here!) in his reasoning:

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing....

"The question before us is whether the class of persons described in the plea [viz., 'whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves'] compose a portion of this people...? 

"We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States." 
(60 U.S., at 404, emphasis added)

The 14th Amendment to the Constitution that followed the Civil War obviously reversed this point as a matter of law, but the question remains how much cultural residue of this earlier proclamation of the law of the land has stuck fast to the fabric out of which nation's politics are fashioned.

To quote that favored son of the South, William Faulkner

"The past is never dead. It's not even past." 

Getting back to blogging...






Phew, I've been away for quite awhile! Here's to getting back on track!



Stuff that has been published since 2011:



A chapter, "The Death of Doha? Forensics of Democratic Governance, DistributiveJustice, and Development in the WTO," in Chi Carmody, Frank Garcia, andJohn Linarelli eds.,GLOBAL JUSTICE IN INTERNATIONALECONOMIC LAW(CambridgeUniversity Press)(2012). This was originally given as a keynote address for one of the ASIL International Legal Theory Interest Group's meetings. The paper can be downloaded from SSRN and the whole book is also out with Cambridge UP.



Also, an introductory chapter to a volume of the World Bank Legal Review which I co-edited, on Legal Innovation and Empowerment...







... and lots of drafts on international migration at the moment, see the following posted on SSRN earlier this year:





and



....



Stay tuned for the magnum opus (or at least medium opus) on migration, hopefully in 2014...