Abstract
We don’t usually remember the Supreme Court case, Jacobellis v. Ohio (1964), as involving Louis Malle’s second film, The Lovers, starring a 36-year-old Jeanne Moreau. We remember it for Justice Potter Stewart’s famous, if indirect, characterization of “hard core pornography”: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. I know it when I see it, and the motion picture involved in this case is not that” (378 U.S. 197 [1964]). For nearly a century after the Founding, the late political theorist Judith Shklar suggested, Americans had a similarly insistent, vague, and negative understanding of citizenship. The Framers used the shorthand description, “citizen,” throughout the Constitution without attempting further to define the kinds of material – the political and legal subjects – it embraced. In the absence of any clear constitutional definition of U.S. citizenship, Shklar suggested in American Citizenship: The Quest for Inclusion (Cambridge, MA: Harvard University Press, 1991): “Only one thing was absolutely clear to anyone who used the word citizen …: no slave was a citizen” (16). In the formative years of the republic, Shklar maintained, “black chattel slavery stood at the opposite social pole from full citizenship and so defined it” (16).
The slave, along with the traitor and the expatriate, did indeed serve as instructive “negative exemplars of citizenship,” Carrie Hyde finds in Civic Longing: The Speculative Origins of U.S. Citizenship (177). Such “‘negative’ (nonimitative) models of civic instruction,” she acknowledges, “inspire patriotism by representing the pathos of political exclusion” (157). Her case in point is the erstwhile schoolroom perennial, “The Man without a Country” (1863). Edward Everett Hale’s cautionary Civil War-era tale recounts how a would-be Burrite conspirator, Philip Nolan, comes to love the United States as a result of the geographical and discursive exile that is his punishment for treason. But such “negative instruction” is only one of the many “speculative” ways in which Americans tried to ascribe meaning to citizenship before the 14th Amendment (1868).
Hyde’s ambitious inquiry provides nothing less than a case study in the mutually constitutive legal-cultural construction of citizenship prior to Reconstruction. Indeed, Hyde’s awareness of “the formative political power of aesthetics” (15) leads her to caution against originalism – adherence to the Constitution’s putative original intent. As James Madison himself lamented, the Framers themselves seem to have lacked any such clear intentions when it came to citizenship. Justices Neil Gorsuch, Brett Kavanaugh and other conservative heirs to Justice Antonin Scalia are not the only ones whom Hyde puts on notice. She also cautions liberal academics. Our own negative approach to citizenship as the democratic ideal from which marginalized others have been excluded, she suggests, risks “making the category of citizenship seem more coherent and empowering than it actually was in the early United States” (7). Forwarding the decidedly unidealized account of citizenship advanced by Dana D. Nelson and Russ Castronovo (among others), Hyde offers a thoughtful taxonomy of approaches to the once open question of national citizenship.
Along with the negative approach discussed above, Hyde identifies three other strains of Americans’ “speculative,” or “subjunctive,” notions of citizenship (16). Foremost is a Christian understanding of citizenship in terms of a spiritual belonging that had traditionally stood in opposition to membership in a particular earth-bound polity. The key phrase appears in a late-eighteenth century translation of Paul’s Third Letter to the Philippians, in which he reminds them not to be distracted by life on earth, “for we are citizens of heaven” – a revision of the King James version’s “for our conversation is in heaven” (Philippians 3:20). Hyde associates this model of “Christian estrangement” with debates over the right to expatriate and other “postures of political renunciation” (45, 46). More particularly, she examines how abolitionist works as divergent as David Walker’s Appeal (1829) and Harriet Beecher Stowe’s Dred (1856) negotiated between this renunciative mode and a more engaged “Christian nationalism” that “repurpose[d] the otherwise merely fatalistic metaphor of heavenly citizenship as a theological call to arms and reform” (47). If this higher-law critique sought to align the earthly polity with the Celestial City, it also underwrote the claims of all Christian “citizens of heaven” to political membership.
Staying with the slavery debate, Hyde turns to consider “divine law’s unabashedly ‘worldly’ cousin, natural law” (87). Given that this is one of the busiest crossings among the multiple intersections of law and literature in American culture, Hyde wisely directs attention to one particular landmark, the controversy over the Creole case. (Gregg D. Crane offers a more comprehensive treatment of higher law thought in Race, Citizenship, and Law in American Culture [Cambridge University Press, 2002].) The Creole case is remembered today largely thanks to “The Heroic Slave” (1853), the only known work of fiction by prolific formerly enslaved activist, author, and editor, Frederick Douglass. The case arose from the shipboard slave revolt that occurred on November 7, 1841, as the brig Creole was transporting over 130 African Americans from Richmond to New Orleans for sale. Recalling his revolutionary namesakes, Madison Washington led the revolt, directed the Creole to the British colony of the Bahamas, and saw the eventual liberation of nearly all of his fellow slaves.
Hyde puts the “natural” back into natural law with an analysis of “climatological tropes” in the debate over the Creole uprising in popular antebellum print culture (95). Such tropes built on the long tradition in Anglo-American legal doctrine of figuring slavery as antithetical to the English environment, if not British (colonial) law. The venerable, if questionable, legal maxim that “England was too pure an air for slaves to breathe in” was widely, if optimistically, seen to culminate in Lord Mansfield’s opposition of a natural law of liberty to the positive law of slavery in his landmark Somerset decision (1772). Slavery had defined the discrepancy between natural and man-made law since the Institutes of Justinian (533). In the context of the intensifying antebellum slavery debate, however, the Creole case offered a particularly stark tableau as the human cargo of the United States’ legal, intrastate, coastal slave trade transformed themselves into free British subjects through their violent revolt on the open seas. As Douglass’s fictional Madison Washington famously proclaims from the Creole’s helm, “Mr. Mate, you cannot write the bloody laws of slavery on those restless billows. The ocean, if not the land, is free” (The Heroic Slave: A Cultural and Critical Edition, ed. Robert S. Levine [New Haven, CT: Yale University Press], 50). With such appeals, Hyde suggests, Douglass and his fellow abolitionists effectively changed the terms of the birthright citizenship alluded to, but not defined, in the Constitution. Rather aligning nation and nature through the jus sanguinis (“right of the blood”) as Chief Justice Roger B. Taney sought to do in Dred Scott by locating citizenship in (white racial) descent, they anticipated the 14th Amendment’s grounding of citizenship in jus soli (“right of the soil”).
It’s a safe bet that the narrator of Nathaniel Hawthorne’s “The Custom House” (1850) was not thinking of the Bahamas when, seeking “the genial atmosphere which a literary man requires,” he proclaims himself “a citizen of somewhere else” (The Scarlet Letter [New York: Penguin, 2003], 43). Rather, Hyde proposes, he alludes to an alternative, aesthetic form of civic disaffiliation. Just as Douglass’s natural law critique secularizes the higher law logic of Christian nationalism, this approach to citizenship secularizes Christian estrangement as the characteristically Romantic detachment of Hawthorne’s narrator. And, not unlike the “negative instruction” offered by the stateless figures of the exile, the expatriate, and the slave, Hyde contends, such Romantic retreats from the real create a profound desire to return to and reform the legal-cultural here and now (153). In order to make this argument, Hyde debunks the truism that the romance is a quintessentially nineteenth-century American genre, arguing that Hawthornian romance instead “nominates the irresolvable gap between terrestrially bound institutions and political ideals” (126–7). The romance thus provides illuminating critical distance on the everyday negotiations over the meanings of citizenship in the political present. Or, as Hyde eloquently puts it: “the exilic states of romance are not ends in themselves, but catalysts for civic longing,” in which a temporary aesthetic escapism yields renewed political engagement, even allegiance (150). Hyde’s insightful reassessment of the romance emerges from her readings of Hawthorne’s shorter, often critical, works, such as “The Custom House,” the Preface to The House of the Seven Gables (1851), and “Chiefly about War Matters” (1862). It would have been good, though, to see just how this process actually plays out in a full-length romance, such as The Blithedale Romance (1852), or in The Scarlet Letter itself.
Hyde rightfully treats the activist critiques of David Walker and Frederick Douglass as simultaneously articulating and informing antebellum American views of citizenship. Civic Longing was doubtless already complete by the time Kunal M. Parker’s Making Foreigners: Immigration and Citizenship Law in America, 1600–2000 (New York: Cambridge University Press, 2015) was published. How, one wonders, did the persistent “politico-legal strategies” to alienate “insiders” such as Native Americans and African Americans that Parker describes in Making Foreigners (4) intersect with the cultural conceptions of citizenship Hyde identifies during the antebellum period? Conversely, Civic Longing appears at a moment when legal historians and literary critics are foregrounding African Americans’ formative role in realizing the meaning of both state and national citizenship in U.S. law, politics, and culture. Far from limning an idealized citizenship manqué, this scholarship is demonstrating how African Americans, in the words of Martha S. Jones in Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge: Cambridge University Press, 2018), “secured citizenship by comporting themselves like citizens” – from registering births and suing defaulting debtors, to holding state and national political conventions (10). How will a greater understanding of what Derrick R. Spires in The Practice of Citizenship: Black Politics and Print Culture in the Early United States (Philadelphia, PA: University of Pennsylvania Press, 2019) calls African Americans’ “practice of citizenship” throw into relief the speculative civic longing of their predominantly white fellow Americans?