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The Legal and Literary Complexities ofU.S. Citizenship Around 1900Brook ThomasPublished online: 19 Dec 2013.

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The Legal and Literary Complexities of U.S. Citizenship Around 19Brook Thomas

Abstract. One year before he argued Homer Plessy’s case before the Supreme Court, Albion W. Tourgée wrote, “Citizenship in the abstract is the most comprehensive, complex, difficult and im-portant of human relations, and American citizenship is especially complex in its character and relations.” This essay explores those complexities by cross-examining three Supreme Court cases decided within five years of one another—Plessy v. Ferguson (1896), U.S. v. Wong Kim Ark (1898), and Downes v. Bidwell (1901)—with works of literature by Tourgée, Charles W. Chesnutt, and Thomas Dixon. The essay makes no claim to resolve the complexities it describes. But it does point to how those complexities, arising during this era of segregation, imperial expansion, and Chinese exclusion, remain with us today.

Keywords: citizenship, Plessy v. Ferguson, U.S. v. Wong Kim Ark, Downes v. Bidwell, The Marrow of Tradition, A Fool’s Errand, The Clansman, The Leopard’s Spots, Albion W. Tourgée, Charles W. Chesnutt, Thomas Dixon, Abbot Lawrence Lowell, Justice John Marshall Harlan

Citizenship in the abstract is the most comprehensive, complex, difficult and important of human relations, and American citizenship is especially complex in its character and relations.

—Albion W. Tourgée (1895)

The head of the National Citizens Rights Association and the editor of The Basis: A Journal of Citizenship, Albion W. Tourgée was well aware of both the importance and the complexities of citizenship.1 Given his interest in citizen-ship and education, I suspect that, if he were alive today, he would feel, as I do, that there is no better way to prepare students for their lives as citizens than the new literature and law major at John Jay College of Criminal Justice,

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celebrated by the essays in this issue of Law and Literature. After all, Tourgée himself was both an accomplished author and a learned lawyer. As a writer of fiction, he is best known for penning perhaps the two best novels set in the era of Reconstruction: A Fool’s Errand (189)2 and Bricks Without Straw (188).3 As an attorney, he is primarily remembered for representing Homer Plessy in his unsuccessful attempt to have a 189 Louisiana Jim Crow law declared unconstitutional. Indeed, Plessy v. Ferguson (1896)4 is one of three Supreme Court cases—the other two are Downes v. Bidwell (191)5 and U.S. v. Wong Kim Ark (1898)6—that I want to examine in this essay. Decided within five years of one another, these cases are usually taught in different areas of the law. To treat them together is to get a better understanding of the complexi-ties of U.S. citizenship at the turn of the nineteenth into the twentieth century. Those complexities will, I hope, come into even sharper focus when I “cross-examine” these three legal cases with works of literature by Tourgée, Charles W. Chesnutt, and Thomas Dixon.7

We can get a preliminary sense of the legal complexities involved by look-ing at the dissents in each case by Justice John Marshall Harlan. The lone dis-senter in Plessy, Harlan clearly saw how the majority’s support of “separate but equal” laws would render blacks second-class citizens. “The thin disguise of ‘equal’ accommodations for passengers in railroad coaches,” he warned, “will not mislead any one, nor atone for the wrong this day done.”8

Harlan also dissented in Downes, one of the first of the Insular Cases that determined the constitutional status of the territories acquired by the United States as the result of the Spanish-American War. Normally studied by those primarily interested in questions of imperialism, the Insular Cases are impor-tant for an understanding of citizenship, because they denied full constitu-tional protections to the inhabitants of these new territories and of the recently annexed islands of Hawaii. They did so by granting Congress plenary power to rule over the territories without having to apply all measures of the Con-stitution, including the Bill of Rights. Aware that this ruling would be contro-versial, Justice Brown, who had written the majority opinion in Plessy, wrote the deciding opinion in Downes, declaring: “There are certain principles of natural justice in the Anglo-Saxon character which need no expression in con-stitution or statute to give them effect.”9 Justice Harlan responded:

The wise men who framed the Constitution, and the patriotic people who adopted it, were unwilling to depend for their safety upon such inherent

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principles. They proceeded upon the theory—the wisdom of which experience has vindicated—that the only safe guaranty against government oppression was to withhold or restrict the power to oppress. They well remembered that Anglo-Saxons across the ocean had attempted, in defiance of law and justice, to trample on the rights of Anglo-Saxons on this continent.10

In light of these two dissents, Justice Harlan might well qualify as a hero for today’s liberal progressives. But then there is his dissent in Wong Kim Ark. Al-though at the time Chinese were forbidden to become naturalized citizens, the majority, in a landmark decision, ruled that someone of Chinese descent born within the territorial United States was an automatic citizen by birth. Har-lan, however, joined Chief Justice Fuller in a dissent that would have denied Wong Kim Ark citizenship. Harlan’s defense of citizenship rights for African Americans and inhabitants of the insular territories, and his denial of them to someone of Chinese descent, should remind us that today’s political positions do not necessarily line up with those a century ago. The “good guys” in one case become the “bad guys” in another, and vice versa. To understand why, we can look at each decision and literary works related to them.

Plessy is the best known of the three cases, and it is ideally suited to a law and literature approach because of Tourgée. Proponents of law and litera-ture frequently study the law in literature—that is, representations of the law in literature—or literature as law—that is, application of the techniques of literary criticism to analyze and interpret the law. Tourgée, however, points to another way in which literature relates to the law. Exploiting literature’s imaginative freedom, he used his novels to rehearse various legal arguments. For instance, in Pactolus Prime (189), written before Tourgée even knew of the Plessy case, a black character makes various arguments that his creator made before the Supreme Court six years later.11 The way in which lawyers can use literature’s imaginative license to rehearse legal arguments deserves more attention. Even so, to explore the complexities of the Plessy case, we need to turn to a more frequently studied way in which literature relates to the law: as a response to a legal controversy.

No author responded more directly to the Plessy case than Charles W. Chesnutt. The first major African American novelist, Chesnutt knew Tour-gée, was trained as a lawyer, and had detailed knowledge of the Plessy case.12 In a speech called “The Courts and the Negro,” he declared: “The opinion of Plessy vs. Ferguson is, to my mind, as epoch-making as the Dred Scott decision.

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Unfortunately, it applies to a class of rights which do not make to the heart and conscience of the nation the same direct appeal as was made by slavery, and has not been nor is it likely to produce such a revulsion of feeling.”13 In recent years, much has been written about Chesnutt’s fiction. But perhaps the best way to understand it is to see it as Chesnutt’s attempt to make segrega-tion produce in his readers the “revulsion of feeling” he acknowledged was so hard to elicit. His most widely read book today, The Marrow of Tradition, is a case in point.

If most people in 19 were not repulsed by segregation, many were hor-rified by lynchings. In The Marrow of Tradition, Chesnutt tries to change at-titudes toward segregation by linking the two.14 That connection was by no means widely accepted in Chesnutt’s day. For instance, the NAACP, which was founded within a decade of the publication of Chesnutt’s novel, was dedi-cated to a long-term strategy to overcome segregation. Yet the NAACP knew that public opinion at the time made a frontal assault on the doctrine of racial separation unrealistic. Instead, it focused much of its early energies on a cam-paign against lynching, which was a cause it felt it could win. In insisting upon a link between the logic of segregation and lynching that even the NAACP did not publicly insist upon, The Marrow of Tradition was, not surprisingly, poorly received at the time of its publication. In fact, Chesnutt goes even fur-ther, showing that the logic of segregation not only helps to justify lynchings, but also leads to the outbreak of racial violence that culminates the book’s action. As such, it endorses Justice Harlan’s warning that Jim Crow laws will not lead to racial harmony, but, on the contrary, “arouse race hate.”15 To a large extent, the book’s current popularity lies in the fact that, unlike readers in 191, today’s readers find its plot realistic rather than sensational.

Even so, a detail of Chesnutt’s plot complicates his otherwise noble cam-paign against racism. The most obvious connection between Chesnutt’s novel and the Plessy case is its portrayal of a legally segregated railroad car. The Plessy majority argued that the “underlying fallacy” of Plessy’s argument was the assumption that the Louisiana law discriminated against “the colored race”: “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”16 After all, according to the law, it was as illegal for a white person to sit in a colored car as it was for a colored person to sit in a white car. In Marrow, Chesnutt has the conductor make precisely this point. Responding to a northern doctor’s protest when Dr. Miller, his African American colleague, is not allowed to sit

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with him, the conductor asserts, “‘The beauty of the system lies in its strict impartiality—it applies to both races alike.’”17 Soon thereafter, however, the conductor refuses to enforce the law when a crude white man insists on smok-ing in the colored car to which Dr. Miller has been assigned.

Confined to that car, Dr. Miller observes:

At the next station a Chinaman, of the ordinary laundry type, boarded the train, and took his seat in the white car without objection. At another point a colored nurse found a place with her mistress.

“White people,” said Miller to himself, . . . “do not object to the negro as servant. As the traditional negro,—the servant,—he is welcomed; as an equal, he is repudiated.”18

The detail about the nurse is taken directly from Tourgée’s brief to the Court. The Louisiana law included an exemption for nurses of children. Since almost all were black nurses for white children, Tourgée makes precisely the point repeated by Chesnutt. The detail about the Chinaman comes from Harlan’s dissent. It suggests limits to both Harlan’s and Chesnutt’s inclusive sense of citizenship.

In his Plessy dissent, Harlan’s case for African American citizenship comes at the expense of another racial group, the Chinese.19 As he puts it:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled by law, to participate in the political control of the state and the nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.20

Although both Harlan and Chesnutt strongly opposed the implicit second-class citizenship for African Americans endorsed by Plessy, neither had a vision that readily included Asian Americans as part of “We, the people.” Harlan, after all, began his political career as a member of the Know Noth-ing Party, with its anti-immigrant platform. His nativist bias could readily

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accommodate Native Americans as well as African Americans, who had been born in the country and helped preserve the nation during the Civil War. But it was less ready to grant citizenship to those of Asian descent. Similarly, al-though Chesnutt challenges white supremacist views that would link citizen-ship to white blood, as his title indicates, he does not so much reject appeals to blood as appropriate them. Indeed, in The Marrow of Tradition he cites the slogan “Blood is thicker than water,” not to dismiss it, but to show that in-terracial mixing creates blood relations between whites and blacks.21 Asian Americans are, however, not part of that extended national family. The limits of both Chesnutt’s and Harlan’s visions bring us to U.S. v. Wong Kim Ark, decided two years after Plessy.

There are two ways to become a citizen: through naturalization and by birth. Naturalization is controlled by Congress; birthright citizenship by the language of the Constitution. The first naturalization act passed by Congress in 19 limited naturalization to “free whites.”22 After the Civil War a new act passed in 18 made way for those of African descent, but no provision was made for those of Asian descent.23 Thus, the only path to citizenship for Asians was through birth. That path would seem to have been opened by the Citizenship Clause of the Fourteenth Amendment. Designed to overturn Jus-tice Taney’s refusal in Dred Scott to grant U.S. citizenship to anyone of Afri-can descent, free or slave, the Citizenship Clause states: “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.” Born in San Francisco of Chinese parents, who could not be naturalized citizens, Wong Kim Ark appealed to the Fourteenth Amendment to claim birthright citizen-ship. But in 1895 when he tried to re-enter the United States after visiting his parents who had returned to China, he was denied entry by U.S. officials who said he was not a citizen and thus came under the 1892 Geary Act that had extended the 1882 Chinese Exclusion Act.

Given the language of the citizenship clause, the government’s claim might seem outrageous. But the crucial phrase is “subject to the jurisdiction thereof.” If most people define jurisdiction territorially and conclude that anyone born within the boundaries of the United States is subject to U.S. jurisdiction, the government disagreed. Noting that children born of U.S. citizens abroad are citizens by birth, the government argued that subjection to U.S. jurisdiction cannot be defined simply territorially. Just because U.S. citizens are physically outside of the country does not mean that they are no longer subject to U.S.

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jurisdiction. They are, for instance, still subject to taxes and military drafts, when they exist. Likewise, so the government argued, Wong Kim Ark’s par-ents, although they were in San Francisco at the time of his birth, were still subject to Chinese jurisdiction. Wong Kim Ark was, therefore, born a subject of China, not a citizen of the United States.

Taking his case to the Supreme Court, Wong Kim Ark forced it to decide whether birthright citizenship was determined by jus soli (by soil) or jus san-guinis (by blood). In a six to two ruling, with Justice Harlan joining Chief Justice Fuller in dissent, the Court ruled in favor of Wong Kim Ark. Its ruling prevails today. Apart from common law exceptions, such as the children of diplomats, all people born in this country, no matter what the status of their parents, are U.S. citizens.

Harlan’s disagreement with that ruling invites reconsideration of his famous argument in Plessy that the Constitution is “color-blind.” “In the view of the Constitution, in the eye of the law,” Harlan courageously wrote, “there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind and knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”24 For Harlan, the Constitution should be color-blind in the protection of citizens, but he did not consider it color-blind in the determination of citizenship.

Because of debates over affirmative action, the idea of a color-blind Con-stitution is hotly contested today.25 Does color-blindness produce the positive quality of impartiality, or is it a defect, the inability to see the condition of people of color? A complicated question. Nonetheless, the distinction high-lighted by juxtaposing Harlan’s dissent in Plessy with his dissent in Wong Kim Ark points to a somewhat different complication. The Plessy court was not obligated to declare the Constitution color-blind because the Equal Protec-tion Clause of the Fourteenth Amendment does not explicitly forbid taking race into account, as, for instance, the Fifteenth Amendment does regarding the right to vote. It is important to remember, however, that the Fourteenth Amendment we have is not the only one we could have had. We might, for instance, have ended up with an alternative proposed by the famous aboli-tionist Wendell Phillips. The Fourteenth Amendment Phillips advocated declared: “No state shall make any distinction in civil rights and privileges among the naturalized citizens of the United States residing within its lim-its, or among persons born on its soil of parents permanently resident there, on account of race, color, or descent.”26 As Andrew Kull has argued, by

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forbidding distinctions based on race or color, Phillip’s alternative might have forced the Plessy majority to agree with Justice Harlan about a color-blind Constitution.27 Even so, by restricting its protection to “naturalized citizens of the United States” and “persons born on its soil of parents permanently resident there,” Phillips’s version would not have guaranteed Wong Kim Ark birthright citizenship, as the ratified amendment did. Coming up with laws and amendments that help all groups acquire the privileges and immunities of citizenship is, it seems, no easy task.

Phillips’s alternative is interesting for another reason. Even he seems to have reservations about the loyalty of those who are not permanent residents. Indeed, the question of citizenship and allegiance was an important one in Wong Kim Ark. One reason that the government did not want to define subjec-tion to U.S. jurisdiction territorially is that it felt that mere obedience to laws does not guarantee loyalty. For instance, when I am in Japan, I might obey its laws, but that obedience does not transform me into a loyal Japanese citizen. Embellishing this point with patriotic fervor, George Collins, arguing for the government in district court, claimed: “The enthusiastic ardor which fires the zeal of the loyal citizen in support of his country’s cause, must be inculcated in the mind of the child by the teachings of the parent . . . , else there will be no patriotism, no true citizenship.”28 In contrast, Wong Kim Ark’s attorneys adopted a more passive definition of allegiance, quoting Justice Story’s 18 formulation that “Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is.”29

If the government’s impassioned rhetoric is easy to mock, it should not dis-tract us from an important lesson of Wong Kim Ark. Even those who disagree with Chief Justice Fuller’s and Justice Harlan’s dissent have to acknowledge that, in the best tradition of classical republicanism, they assume a more ac-tive sense of citizenship than the majority. If exclusive notions of citizenship seem bad and active notions seem good, in Wong Kim Ark, at least, the two are connected. After all, when the criteria for citizenship are more stringent, exclusions are far more likely. Certainly, the question of loyalty was on many Americans’ minds in 1898.

Although less well known today than the Plessy case, Wong Kim Ark re-ceived more attention at the time it was decided. People were interested in how the Court would determine birthright citizenship. Even so, in March 1898, when the Court delivered its decision, coverage of the case was relegated to the second page. The front page featured accounts of a congressional report

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investigating the sinking of the USS Maine in Havana Harbor and the new demands that the U.S. government placed on Spain as a result. Both paved the way for the declaration of war a month later. But more than temporal proxim-ity links Wong Kim Ark to the Spanish-American War and the Insular Cases that grew out of it. The Court’s ruling in Downes (191) was, to a certain extent, necessitated by Wong Kim Ark.

The Justices deciding Wong Kim Ark had no way of knowing that, within a year of their decision, the U.S. would acquire the insular territories of Puerto Rico, Guam, and the Philippines. Nonetheless, according to the majority’s logic, it could have been argued that anyone born in those newly acquired territories was automatically a U.S. citizen. To be sure, it could be countered that, because the territories were not states, people born in them were not, in fact, born in the United States. Previously, however, people born within U.S. territories were considered U.S. citizens. Since a number of those in the Wong Kim Ark majority did not want the dark-skinned inhabitants of the insular ter-ritories to become automatic citizens, they had to make sure that Wong Kim Ark did not apply to the insular territories. The Insular Cases allowed them to do just that.

A major slogan supporting imperialism was “trade follows the flag.” To compete in a global market, the United States, it was argued, had to join other nations in acquiring overseas colonies.30 When, to compete globally, the United States extended its reach overseas, the Supreme Court was put in the position of deciding whether the “Constitution follows the flag.” Anti-imperialists, like Democratic presidential candidate William Jennings Bryant, said it did;31 imperialists said it did not.32 Decided shortly after the reelection of President McKinley, Downes supported his imperialist policy33 when Jus-tice Brown ruled that, because the insular territories were “appurtenant” to the United States, not a part of it, Congress had plenary power over them.34 Justice Brown’s ruling caused Finley Peter Dunne’s fictional Mr. Dooley to quip, “No matter whether th’ Constitution follows th’ flag or not, th’ Supreme Coort follows th’ iliction returns.”35

Although he carried the day in Downes, Justice Brown was not joined by any of the other Justices. Clearly, such an important issue needed better def-inition. In later cases, a majority coalesced around Justice White’s formu-lation. The only Catholic on the Court and from Louisiana, Justice White knew the Napoleonic Code and was very familiar with Roman law, which had great experience with the legal complications of imperial rule. He shrewdly

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supplemented Justice Brown’s metaphor of “appurtenant” with one of “in-corporation.” Quieting critics of Downes, he argued that the territories were part of the United States and that the Constitution did indeed follow the flag. Nonetheless, it fully applied only when a territory was completely incorpo-rated into the United States. Because the insular territories were unincor-porated, Justice White reasoned, Congress had plenary power over them.36 Upon hearing Justice White’s argument, Secretary of War Elihu Root wryly commented, “As near as I can make out the Constitution follows the flag—but it doesn’t quite catch up with it.”37

The effect of these rulings was to relegate inhabitants of the insular ter-ritories to the status of nationals, not full-fledged citizens. They were, to use a phrase coined by Justice White, “[f]oreign to the United States in a domestic sense.”38 Behind the Court’s imperialist rulings was a lesson learned from do-mestic politics. It was most powerfully articulated by Abbott Lawrence Low-ell, a political scientist at Harvard who was about to become its president. In an 1899 Harvard Law Review essay, Lowell, the brother of the poet Amy Low-ell, forged the doctrine of incorporation later elaborated by Justice White.39 Writing for a more popular audience in the Atlantic Monthly, he made explicit his reasons for denying the people of the territories full citizenship.40

Lowell distinguished between two kinds of equality: civil and political. The ideal of civil equality, which he traced to the Magna Carta, grants the same civil rights to all free men. The United States, he argued, had a sacred obligation to guarantee civil rights to the inhabitants of the newly won terri-tories, especially since, from his point of view, a corrupt Spanish government had not done so. But the “theory that all men are equal politically is quite a different matter.”41 For him, the folly of granting political equality to all men was poignantly illustrated by recent history in the United States. If passage of the Fifteenth Amendment was the high tide of belief in political equality, a realistic view, he claims, soon began to prevail. He wrote:

The first people who were found to be without the pale were the Chinese. The writer well remembers how deeply he was shocked at the violation of our fundamental doctrine by the proposal to forbid their immigration. It seemed a mere selfish attempt on the part of one class of immigrants to prevent competi-tion by another; but the argument that the Chinese could never be assimilated, and hence would be an injurious element to the community, was sound, and resulted in the passage of the exclusion act of 1882, which expressly forbade the naturalization of any members of that race. The courts had already decided

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that the existing naturalization laws, which spoke only of “white persons” and “Africans,” did not include Chinese.42

Lowell then turns to his primary example: the corruption and misrule re-sulting from granting freedmen the right to vote during the failed experiment of Reconstruction. Fully endorsing the southern states’ “legal way of disfran-chising them,”43 Lowell concludes:

Thus the three states where the negroes outnumber the whites have rid them-selves of the fifteenth amendment; and so we have reached the point that the theory of political equality does not apply to tribal Indians, to Chinese, or to negroes under all conditions. In short, it seems to apply rigorously only to our own race, and to those people whom we can assimilate rapidly.44

Having learned this lesson domestically, the United States would be fool-ish to extend political equality to the dark-skinned inhabitants of the insular territories.

Lowell’s link between domestic and imperialist politics finds literary ex-pression in Thomas Dixon’s infamous trilogy about Reconstruction. Stating bluntly what the future president of Harvard says more genteelly, Dixon has a character in The Clansman dismiss that “‘twaddle about equality.’”45 For Dixon, as for Lowell, it was as foolish to apply sentimental notions of equality to the inhabitants of the newly won colonies as it was to blacks in the South. Dixon’s concern with connecting the era of Reconstruction with turn-of-the-century imperialism is indicated by the title of the first book of his trilogy: The Leopard’s Spots: A Romance of the White Man’s Burden—1865–1900.46 The subtitle is a direct reference to Rudyard Kipling’s 1899 poem,47 dedicated to the United States as the troops it used to “liberate” the Philippines from Spain fought to put down a continuing Filipino battle for independence.48

Even so, Dixon’s celebration of the Ku Klux Klan, a secret organization operating outside the law, would seem to put him at odds with Lowell’s belief that imperialism beneficently spread rule by law. For instance, in The Leop-ard’s Spots he has his protagonist declare:

“Nations are made by men, not by constitutions and paper ballots. We are not free because we have a Constitution. We have a Constitution because our pio-neer fathers, who cleared the wilderness and dared the might of kings, were freemen. It was in their blood, the tutelage of generation on generation beyond the seas, the evolution of centuries of struggle and sacrifice.”

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If this sounds like a disregard for the power of the Constitution, it is important to remember that Dixon is simply giving voice to the Anglo-Saxon constitu-tionalism Justice Brown proclaimed in Downes. Indeed, since he was trained as a lawyer, Dixon knew Downes well enough to allude to Justice Harlan’s dissent in The Clansman.49

Dixon was not alone in advocating his own version of Justice Brown’s Anglo-Saxon constitutionalism. His friend from political science graduate school, Woodrow Wilson, believed that “Our politics are no explanation of our character, . . . our character is the explanation of our politics.” The “only stable foundation” of democracy is “character.” “America has democracy be-cause she is free; she is not free because she has democracy.”50

By stressing racial character as the basis of our democracy, Dixon, Wilson, and Justice Brown all articulate the premises of what political scientists call “ethnic nations” as opposed to “civic nations.” Ethnic nations are a people united by a common descent; civic nations are a people united by a common government dedicated to universalistic civic ideals. In ethnic nations, citizen-ship is determined by shared blood; in civic nations, citizenship is theoretically open to anyone willing to express allegiance to shared institutions.51

Searching for an alternative to Dixon’s, Wilson’s, and Brown’s ethnic na-tionalism, we might be tempted to turn to Justice Harlan because of his dissents in Plessy and Downes. But, as we have seen, his dissent in Wong Kim Ark re-veals a nativist streak of its own. Thus, a better alternative is Tourgée. Indeed, in addition to advocating African American citizenship, Tourgée spoke out against the Chinese Exclusion Acts, calling them a “wall to prevent foreign-ers from entering our territories” comparable to the Great Wall of China.52 For Tourgée, institutions shape character, not vice versa. “The seventy-odd millions of people who constitute the population of the American Republic,” he claimed, “whether white, black, Celt or Slav, or from whatever European stock they may be descended, in political ideals are purely American and de-rivatively Anglican.”53

But whereas Tourgée’s belief that institutions determine character helps to counter the racial exclusions to citizenship endorsed by others, even his pro-motion of civic ideals over race poses a problem. We can see it in his stance on imperialism. Given Tourgée’s views on race, it is no surprise that he ex-plicitly opposed Kipling’s justification of imperialism: the belief, in Tour-gée’s words, “[t]hat the woeful ‘burden’ which the ‘White Man’ is compelled to bear, is to rule the colored races of the world and to compel the brown

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‘half-devil and half-child’ to serve his interests, promote his comfort, and enhance his wealth.”54 Nonetheless, he still supported the Spanish-American War, and even annexation of the Philippines, because he believed that an imperial policy would extend free institutions to the former Spanish colony and, thus, create a “new civilization in the gloom of Oriental darkness.”55 Ethnic nations may exclude people who lack a common descent, but mem-bers of civic nations too often presume, as did Tourgée, that their peculiar civic institutions are universally liberating.

If Lowell’s and Dixon’s views of domestic politics shaped their positions on imperial politics, Tourgée’s attitude toward turn-of-the-century imperi-alism points to a complication in his otherwise exemplary view of inclusive U.S. citizenship expressed in A Fool’s Errand, his best known novel about Reconstruction. In Dixon’s Reconstruction trilogy, northern and southern whites are a fraternal people, and blacks are aliens. In contrast, for Tourgée, Northerners and Southerners (white and black) are different people because of different institutions. For Dixon, Reconstruction failed, because rather than uniting a white nation, it, on the one hand, continued the logic of the Civil War by pitting white against white, while, on the other, it allowed northern conquerors to impose black rule on their southern brothers. A new nation could be born only when white rule was restored, and northern and southern whites were united again as they were when waging the Spanish-American War.56 Tourgée agreed with Dixon that Reconstruction failed. But for him, it failed because the North was not imperial enough. Because North and South were so different, to unite the nation the victorious North had to change the very character of the southern people by treating the South as conquered territory, and imposing free northern institutions upon it. Tour-gée was, in other words, a great advocate of “nation building.” His imperial vision helps to explain why, at the end of the book, his carpetbagger pro-tagonist is “engaged by a company of capitalists in one of the republics of Central America,” to aid in “that strange contest between civilization and semi-barbarism which is constantly being waged in that wonderfully strange region.”57 Tourgée’s belief in the power of free institutions to shape virtuous citizens made him want to spread their benefits, not only to the South, but to all areas of the globe.

My aim, as I said at the start, has been to highlight some of the complexities of citizenship at the turn of the nineteenth into the twentieth century. I have, however, been careful not to claim to resolve them. Even so, they do, I think,

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point to two general paradoxes worth emphasizing. The first is that, although citizenship as a concept helps to bring out the good in people, it is also de-fined by exclusions. To my mind, the good it fosters, the way it encourages people to become responsible and caring members of their communities, as well as active participants in the civic and political realms, makes it a concept well worth saving. Nonetheless, we still have to confront the dilemma that the citizen is defined against the noncitizen, the alien. Indeed, as Chief Justice Fuller’s and Justice Harlan’s dissent in Wong Kim Ark suggests, the more ac-tive the notion of citizenship is, the more likely exclusions are to occur, since not everyone can live up to the demands it makes. The solution would seem to be to counter that exclusive tendency, and to extend the benefits of active citizenship to as many people as possible. Yet, it is precisely that noble ideal that leads to a second paradox of citizenship: the effort to make the promise of citizenship more inclusive can lead to an imperialist attitude.

If Tourgée is one example of this second paradox, another is Charles Sum-ner. Sumner was, like Tourgée, a powerful advocate for African American citizenship. He also tried, unsuccessfully, to have the word “white” removed from the 18 Naturalization Act so as to make those of Asian descent eligible for naturalization.58 Indeed, one of the New England attorneys for Wong Kim Ark ended his brief to the Court by quoting the Massachusetts senator on the meaning of the Fourteenth Amendment:

Here is the great charter of every human being, drawing vital breath upon this soil, whatever may be his condition and whoever may be his parents. He may be poor, weak, humble or black—he may be Caucasian, Jewish, Indian, or Ethiopian race—he may be of French, German, English or Irish extraction; but before the Constitution all those distinctions disappear. . . . He is one of the children of the State, which, like an impartial parent, regards all of its offspring with equal care.59

More than almost any person of his times, Sumner firmly believed that the United States must be a civic, rather than an ethnic, nation. In an 186 speech called “Are We a Nation?” he insisted that we deserve that status only if we provide equal civil and political rights for all of our citizens, no matter what their descent. At the same time, he argued that those rights “must be sustained by the central power radiating to every part of the empire. . . . Call it imperial-ism, if you please: it is simply the imperialism of the Declaration of Indepen-dence with its promises being fulfilled.”60

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As we continue Sumner’s quest to provide equal civil and political rights for all U.S. citizens while extending our concern to those beyond our borders, it is important to remember that many of the complexities I have identified in this essay persist today. We continue to have debates about whether the Con-stitution is color-blind, and the effect that such a Constitution would have on citizens’ lives. Similarly, the question of birthright citizenship, supposedly re-solved by Wong Kim Ark, remains with us. Condemning the fact that children of illegal immigrants born within the territorial limits of the United States be-come automatic citizens, a number of people have proposed changing the lan-guage of the citizenship clause of the Fourteenth Amendment.61 Finally, the country has by no means resolved the question of whether imperialist efforts appealing to the promise of the Declaration of Independence are justified.

Although, as I have already pointed out, the politics of such debates are of-ten quite different from what they were over a hundred years ago, we cannot properly understand the complexities of our present debates without under-standing the complexities of those in the past. I also suspect that our under-standing would be enhanced if we turned to some recent works of literature. But that exercise would require a brand new essay. Or, perhaps, it is a task to be taken up by someone teaching a course on contemporary literature and the law, the type of class that John Jay College’s new major will make available to the future citizens it helps shape.

See Otto Olsen, 1. Carpetbagger’s Crusade (Baltimore: Johns Hopkins University Press, 1965) and Mark Elliot, Color-Blind Justice: Albion Tourgée and the Question of Racial Equality (New York: Oxford Uni-versity Press, 26). Albion W. Tourgée, 2. A Fool’s Errand (New York: Harper & Row, 1966).Albion W. Tourgée, . Bricks Without Straw (Durham: Duke University Press, 29).Plessy v. Ferguson, . 16 U.S. 5 (1896). Downes v. Bidwell, 5. 182 U.S. 2 (191). United States v. Wong Kim Ark, 6. 169 U.S. 69 (1898). On the method of cross-examining law and literature, see Brook Thomas, . Cross-examinations of Law and Literature (New York: Cambridge University Press, 198) and “Reflections on the Law and Litera-ture Revival,” 1 Critical Inquiry 51 (1991).Brook Thomas, ed., Plessy v. Ferguson8. : A Brief History with Documents (Boston: Bedford Books, 199), 59.Downes9. , 182 U.S. at 28. Id.1. at 81. See Brook Thomas, “11. Plessy v. Ferguson and the Literary Imagination,” 9 Cardozo Studies in Law & Literature 5 (199).

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See Brook Thomas, “The Legal Argument of Charles W. Chesnutt’s Novels,” 12. 18 REAL (Yearbook of Research in English & American Literature) 11 (22).See Thomas, 1. supra note 8, at 15.I am indebted to John Barton’s forthcoming essay in 1. Arizona Quarterly on how Chesnutt’s participation in Ohio’s anti-lynching campaign influenced the writing of The Marrow of Tradition.See Thomas, 15. supra note 8, at 58.Id.16. at 5.Charles W. Chesnutt, 1. The Marrow of Tradition (Boston: Houghton Mifflin & Co., 191), 55.Id.18. at 59.On Justice Harlan’s attitudes toward Chinese, see Gabriel J. Chin, “The 19. Plessy Myth: Justice Harlan and the Chinese Cases,” 82 Iowa Law Review 151 (1996); Linda Przybyszewski, The Republic According to John Marshall Harlan (Chapel Hill: University of North Carolina Press, 1999); see Thomas, supra note 12; and Brook Thomas, Civic Myths (Chapel Hill: University of North Carolina Press, 2).See Thomas, 2. supra note 8, at 58.See Chesnutt, 21. supra note 1, at 6, 2. The phrase is listed in F. P. Wilson, The Oxford Dictionary of English Proverbs, rd ed. (Oxford: Clarendon Press, 19), 69. Nonetheless, in the United States it is frequently attributed to Josiah Tattnall, a U.S. naval officer stationed in the Pacific in 1859. Although the United States was officially neutral, when Tattnall saw a British ship attacked by a Chinese vessel, he intervened, crying “Blood is thicker than water.” He most likely encountered the phrase in Sir Walter Scott’s Guy Mannering (1815, ch. 8). Feeling a blood kinship to his state more than he did to the United States, Tattnall resigned his commission and joined the Confederate Navy when Georgia left the Union.Act of March 22. 26, 19, ch. , no. 1, 1 Stat. 1. Act of July 2. 1, 18, ch. 25, no. , 16 Stat. 256. See Thomas, 2. supra note 8, at 5. For a brief summary, see Thomas, 25. supra note 8, at 1–6. Anticipating present debates, Tourgée uses the metaphor of color-blindness both positively and negatively. See also Elliot, supra note 1.Quoted in Andrew Kull, 26. The Color-Blind Constitution (Cambridge, MA: Harvard University Press, 199), 62.Id.2. at 5–66. Quoted in Lucy E. Salyer, “28. Wong Kim Ark: The Contest over Birthright Citizenship,” in Immigration Stories, ed. David A. Martin & Peter H. Schuck (New York: Foundation Press, 25), 68.Id.29. at 2.Albert J. Beveridge, “The March of the Flag,” in . The Meaning of the Times and Other Speeches (India-napolis: Bobbs-Merrill, 198), –5. See Brook Thomas, “The Constitution Led by the Flag,” in 1. Foreign in a Domestic Sense, ed. Christina Duffy Burnett & Burke Marshall (Durham, NC: Duke University Press, 21), 82–1. The essays in this book explain the historical context and the consequences of the Insular Cases. Id.2. Hoping to get support for a national anti-lynching law proposed by Tourgée, Chesnutt sent a copy .

of The Marrow of Tradition to President McKinley, who had been governor of Ohio when it passed its anti-lynching law. But Chesnutt also wanted to influence McKinley’s imperialism. The book’s narrator writes, “The nation was rushing forward with giant strides toward colossal wealth and world-domination, before the exigencies of which mere abstract ethical theories must not be permitted to stand. The same argument that justified the conquest of an inferior nation could not be denied to those who sought the suppression of an inferior race.” Chesnutt, supra note 1, at 28. Downes v. Bidwell, . 182 U.S. 2, 28 (191).Finley Peter Dunne, 5. Mr. Dooley at His Best (New York: Scribner’s, 198), .Downes6. , 182 U.S. at 28–.

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Philip C. Jessup, . Elihu Root (New York: Dodd, Mead, and Co., 198), 1:8.Downes8. , 182 U.S. at 1–2. Abbott Lawrence Lowell, “The Status of Our New Possessions—A Third View,” 9. 1 Harvard Law Review 155 (1899).Abbott Lawrence Lowell, “The Colonial Expansion of the United States,” . Atlantic Monthly, Feb. 1899, at 15. Id.1. at 15.Id.2. at 151.Id..

Id.. at 152.Thomas Dixon, Jr., 5. The Clansman: An Historical Romance of the Ku Klux Klan (New York: Doubleday, Page & Co., 195), 182.Thomas Dixon, Jr., 6. The Leopard’s Spots: A Romance of the White Man’s Burden—1865–19 (New York: Doubleday, Page & Co., 192). “The White Man’s Burden” was first published in England in the London . Times, February , 1899, and then in the United States in McLure’s Magazine (vol. , February 12, 1899), the 9th anniversary of Lincoln’s birth. Before publishing the poem Kipling sent a copy to Theodore Roosevelt, the hero of San Juan Hill. In the United States, Dixon and Kipling had the same publisher, which also brought out Chesnutt’s 8.

third novel the same year as The Clansman.See Brook Thomas, “9. The Clansman’s Anti-Imperialist Imperialism,” 62 Mississippi Quarterly (29). Woodrow Wilson, “Bryce’s 5. American Commonwealth: A Review,” in Bryce’s “American Common-wealth”: Fiftieth Anniversary, ed. Robert C. Brooks (New York: Macmillan, 199), 181.See Michael Ignatieff, 51. Blood and Belonging: Journeys into the New Nationalism (Toronto: Viking, 199) and David Hollinger Postethnic America: Beyond Multiculturalism (New York: Basic Books, 1995). For criticism of how the distinction between ethnic and civic nations has been used, see Bernard Yack, “The Myth of the Civic Nation,” 1 Critical Review 19 (1996) and Brook Thomas, “Civic Multicul-turalism and the Myth of Liberal Consent,” The New Centennial Review (21): 1–5.Albion W. Tourgée, 52. Our Continent (Feb. , 188): 18.Albion W. Tourgée, “The Twentieth Century Peacemakers,” 5. Contemporary Review 5 (1899): 888.Quoted in Otto Olsen, 5. Carpetbagger’s Crusade (Baltimore: Johns Hopkins University Press, 1965), . Id.55. , at 5.See Maxwell Bloomfield, “56. The Leopard’s Spots: A Study in Popular Racism,” American Quarterly 16 (196): 8–1; Amy Kaplan, The Anarchy of Empire (Cambridge, MA: Harvard University Press, 22), 121–2; see also Thomas, supra note 9.Tourgée, 5. supra note 2, at 9.See Lucy E. Salyer, 58. Laws As Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995), 1. Quoted in Salyer, 59. supra note 28, at . Emphasis added by the attorney.Charles Sumner, “Are We a Nation?” in 6. Charles Sumner: His Complete Works, ed. George Frisbie Hoar (Boston: Lee and Shepard, 19), 16:62. One of the first proposals was made by Senator James Phelan of California as part of his reelection 61.

campaign in 192, the slogan for which was “Keep California White.” The former mayor of San Francisco, who proposed moving Chinatown outside city limits after the 196 earthquake as part of his campaign to beautify the city, Phelan was a great supporter of the arts: he willed that his former estate, Villa Montalvo, would be devoted to music, art, literature, and architecture; funded book and poetry prizes; and corresponded with Henry James. He advocated amending the Constitution to deny

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birthright citizenship to any child born in the United States to parents “ineligible to citizenship.” (See Hiroshi Motomura, Americans in Waiting (New York: Oxford University Press, 26), at 5.) More recently, there have been proposals to amend the Citizenship Clause to reserve birthright citizenship for “persons born in the United States, and subject to the jurisdiction thereof, of a mother or father who is a legal resident of the United States,” or “of mothers who are citizens or legal residents of the United States,” or if either parent “is lawfully in the United States, or has a lawful status.” (See Gerald L. New-man, Strangers to the Constitution (Princeton: Princeton University Press, 1996), at 18.)

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