Zietlow on Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship in the Mississippi Law Journal.

In 1852, Martin Delany, a free Black doctor, journalist, and antislavery activist wrote an influential treatise on the rights of free Black people in which he claimed, “We are Americans having a birthright citizenship….” Ten years later, during the Civil War, Delany backed his words with actions by volunteering for the Union Army and recruiting Black soldiers for an army regiment. Delany’s theory of birthright citizenship was shared by thousands of antislavery and Black civil rights activists in the antebellum era, including William Yates, who wrote the first treatise on the rights of free Black people in 1838, and Frederick Douglass, a fugitive from slavery who became one of the most prominent abolitionist leaders. Black activists used the language of citizenship to claim their status as rights-bearing people who belonged to the community in which they live and to the national polity. Fugitives from slavery crossed state borders in search of freedom and human rights. Their free Black allies argued that they were citizens by virtue of being born in the United States and, as citizens, were entitled to human rights. Free Black people emphasized their loyalty to the national polity and their willingness to sacrifice to prove their loyalty. During the Civil War, fugitives from slavery and free Black people volunteered to serve in the Union army, risking their lives in support of the polity and proving their loyalty and eligibility for citizenship rights. This Essay explores the origins of birthright citizenship and describes the centrality of citizenship rights in the advocacy of people, like Delany, who participated in the Free Black Civil Rights Movement and Antislavery Movement. Birthright citizenship is a promise of equality for all people who are born in the United States, regardless of their race or the national origin of their parents. It is in our Constitution today because of the advocacy of people who were brought involuntarily into our country and claimed their right to citizenship with their actions and their activism.

Download the articles from SSRN at the link.

Bernick on Cthulhu and the Constitution

Evan D. Bernick, Northern Illinois University College of Law, has published Cthulhu and the Constitution. Here is the abstract.

Howard Phillips Lovecraft was born in 1892, nineteen years after the enactment of the Comstock Act and six years before the Supreme Court in United States v. Wong Kim Ark affirmed birthright citizenship as a constitutional guarantee. He dreamed of monsters and brought them to life with language that has not lost its power to horrify. The best-known entity in his bestiary is Cthulhu, whom people cannot behold without going mad. Cthulhu and co. are ancient, unknowable, and unkillable. Wrote Lovecraft in The Dunwich Horror: “The Old Ones were, the Old Ones are, and the Old Ones shall be.” One of the most insightful engagements with Lovecraft’s work and legacy, Alan Moore’s Providence, imagines Lovecraft as an instrument of actually existing cosmic entities who use his extraordinary literary talents to bring their world into contact with ours. But let’s be real: Lovecraft’s monsters were, are fictional, and their origins lie in nothing so creditable. Lovecraft was racist, sexist, and xenophobic, and he was obsessively fearful of the contamination of the nation’s sexual purity—especially through immigration. These prejudices and phobias inspired his monsters and his descriptions of their acolytes. This Essay describes present-day efforts to revive old, monstrous legal institutions and ideas and put them in the service of policies Lovecraft might have loved. The Trump Administration is committed to a constitutional program that is informed by racism, sexism, and xenophobia. One of the major components of that program is an ongoing attack on the Fourteenth Amendment’s guarantee of birthright citizenship. Another is an attack on reproductive rights, which is likely to include an effort to revive the long-dead Comstock Act and use it to ban the distribution of abortion pills. These attacks have late-nineteenth-century analogs and depend upon late-nineteenth century statutes and legal theories. Studying how popular movements resisted and ultimately sapped these statutes and theories of power with, without, and despite law can equip us to defeat these monsters once again. They were and they are, but they shall not be.

Download the essay from SSRN at the link.