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The Legal and Literary Complexities of U.S. Citizenship Around 1900
Author(s): Brook Thomas
Source: Law and Literature , Vol. 22, No. 2 (Summer 2010), pp. 307-324
Published by: Taylor & Francis, Ltd. on behalf of the Cardozo School of Law
Stable URL: https://www.jstor.org/stable/10.1525/lal.2010.22.2.307
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The Legal and Literary Complexities
of U.S. Citizenship Around 1900
Brook 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 important 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 citizenship 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,
Law & Literature, Vol. 22, Issue 2, pp. –. issn 1535-685x, electronic issn 1541-2601. © 2010 by The
Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission
to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 10.1525 /lal.2010.22.2.
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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 (1879)2 and Bricks Without Straw (1880).3
As an attorney, he is primarily remembered for representing Homer Plessy
in his unsuccessful attempt to have a 1890 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 (1901)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 complexities 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 “crossexamine” 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 looking at the dissents in each case by Justice John Marshall Harlan. The lone dissenter 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 important for an understanding of citizenship, because they denied full constitutional 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 Constitution, including the Bill of Rights. Aware that this ruling would be controversial, 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 constitution 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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T h o m a s • T h e Le g a l a n d L i t e r a r y C o m p l ex i t i e s o f U . S . C i t i z e n s h i p
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. Although 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. Harlan, 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 literature 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 (1890), 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 Tourgée, 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 segregation 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 1900 were not repulsed by segregation, many were horrified by lynchings. In The Marrow of Tradition, Chesnutt tries to change attitudes 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 dedicated 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 campaign 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 further, 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 1901, today’s readers find its plot realistic rather than sensational.
Even so, a detail of Chesnutt’s plot complicates his otherwise noble campaign 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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T h o m a s • T h e Le g a l a n d L i t e r a r y C o m p l ex i t i e s o f U . S . C i t i z e n s h i p
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 smoking 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 secondclass 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 Nothing Party, with its anti-immigrant platform. His nativist bias could readily
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L a w & L i t e r a t u r e • Vo l u m e 2 2 , N u m b e r 2
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, although Chesnutt challenges white supremacist views that would link citizenship 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 interracial 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 1790 limited naturalization to “free whites.”22 After the Civil War a new
act passed in 1870 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 Justice Taney’s refusal in Dred Scott to grant U.S. citizenship to anyone of African 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 citizenship. 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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T h o m a s • T h e Le g a l a n d L i t e r a r y C o m p l ex i t i e s o f U . S . C i t i z e n s h i p
jurisdiction. They are, for instance, still subject to taxes and military drafts,
when they exist. Likewise, so the government argued, Wong Kim Ark’s parents, 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 sanguinis (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 Constitution 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 highlighted 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 Protection 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 abolitionist 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 limits, 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 subjection 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 1830
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 distract 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 active 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 received 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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T h o m a s • T h e Le g a l a n d L i t e r a r y C o m p l ex i t i e s o f U . S . C i t i z e n s h i p
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 proximity links Wong Kim Ark to the Spanish-American War and the Insular Cases
that grew out of it. The Court’s ruling in Downes (1901) 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 territories 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.” Antiimperialists, 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 Justice 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 definition. In later cases, a majority coalesced around Justice White’s formulation. 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 “incorporation.” 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 incorporated into the United States. Because the insular territories were unincorporated, 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 territories 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 domestic politics. It was most powerfully articulated by Abbott Lawrence Lowell, 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 Lowell, 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 territories, 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 competition 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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T h o m a s • T h e Le g a l a n d L i t e r a r y C o m p l ex i t i e s o f U . S . C i t i z e n s h i p
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 resulting from granting freedmen the right to vote during the failed experiment
of Reconstruction. Fully endorsing the southern states’ “legal way of disfranchising them,”43 Lowell concludes:
Thus the three states where the negroes outnumber the whites have rid themselves 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 foolish to extend political equality to the dark-skinned inhabitants of the insular
territories.
Lowell’s link between domestic and imperialist politics finds literary expression 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-thecentury 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 Leopard’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 pioneer 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 constitutionalism 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 because 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, citizenship 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 nationalism, 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 reveals 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 foreigners 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 derivatively Anglican.”53
But whereas Tourgée’s belief that institutions determine character helps to
counter the racial exclusions to citizenship endorsed by others, even his promotion 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 explicitly opposed Kipling’s justification of imperialism: the belief, in Tourgée’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 members 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 imperialism 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 SpanishAmerican 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. Tourgée 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 protagonist 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 defined 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 active 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 Sumner. Sumner was, like Tourgée, a powerful advocate for African American
citizenship. He also tried, unsuccessfully, to have the word “white” removed
from the 1870 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 1867 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 imperialism, if you please: it is simply the imperialism of the Declaration of Independence with its promises being fulfilled.”60
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T h o m a s • T h e Le g a l a n d L i t e r a r y C o m p l ex i t i e s o f U . S . C i t i z e n s h i p
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 Constitution is color-blind, and the effect that such a Constitution would have on
citizens’ lives. Similarly, the question of birthright citizenship, supposedly resolved by Wong Kim Ark, remains with us. Condemning the fact that children
of illegal immigrants born within the territorial limits of the United States become automatic citizens, a number of people have proposed changing the language 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 often quite different from what they were over a hundred years ago, we cannot
properly understand the complexities of our present debates without understanding the complexities of those in the past. I also suspect that our understanding 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.
1. See Otto Olsen, 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 University Press, 2006).
2. Albion W. Tourgée, A Fool’s Errand (New York: Harper & Row, 1966).
3. Albion W. Tourgée, Bricks Without Straw (Durham: Duke University Press, 2009).
4. Plessy v. Ferguson, 163 U.S. 537 (1896).
5. Downes v. Bidwell, 182 U.S. 244 (1901).
6. United States v. Wong Kim Ark, 169 U.S. 649 (1898).
7. On the method of cross-examining law and literature, see Brook Thomas, Cross-examinations of Law
and Literature (New York: Cambridge University Press, 1987) and “Reflections on the Law and Literature Revival,” 17 Critical Inquiry 510 (1991).
8. Brook Thomas, ed., Plessy v. Ferguson: A Brief History with Documents (Boston: Bedford Books,
1997), 59.
9. Downes, 182 U.S. at 280.
10. Id. at 381.
11. See Brook Thomas, “Plessy v. Ferguson and the Literary Imagination,” 9 Cardozo Studies in Law &
Literature 45 (1997).
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12. See Brook Thomas, “The Legal Argument of Charles W. Chesnutt’s Novels,” 18 REAL (Yearbook of
Research in English & American Literature) 311 (2002).
13. See Thomas, supra note 8, at 157.
14. I am indebted to John Barton’s forthcoming essay in Arizona Quarterly on how Chesnutt’s participation
in Ohio’s anti-lynching campaign influenced the writing of The Marrow of Tradition.
15. See Thomas, supra note 8, at 58.
16. Id. at 50.
17. Charles W. Chesnutt, The Marrow of Tradition (Boston: Houghton Mifflin & Co., 1901), 55.
18. Id. at 59.
19. On Justice Harlan’s attitudes toward Chinese, see Gabriel J. Chin, “The 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, 2007).
20. See Thomas, supra note 8, at 58.
21. See Chesnutt, supra note 17, at 60, 200. The phrase is listed in F. P. Wilson, The Oxford Dictionary of
English Proverbs, 3rd ed. (Oxford: Clarendon Press, 1970), 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. 38). 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.
22. Act of March 26, 1970, ch. 3, no. 1, 1 Stat. 103.
23. Act of July 14, 1870, ch. 254, no. 7, 16 Stat. 256.
24. See Thomas, supra note 8, at 57.
25. For a brief summary, see Thomas, supra note 8, at 174–76. Anticipating present debates, Tourgée uses
the metaphor of color-blindness both positively and negatively. See also Elliot, supra note 1.
26. Quoted in Andrew Kull, The Color-Blind Constitution (Cambridge, MA: Harvard University Press,
1994), 62.
27. Id. at 53–66.
28. Quoted in Lucy E. Salyer, “Wong Kim Ark: The Contest over Birthright Citizenship,” in Immigration
Stories, ed. David A. Martin & Peter H. Schuck (New York: Foundation Press, 2005), 68.
29. Id. at 72.
30. Albert J. Beveridge, “The March of the Flag,” in The Meaning of the Times and Other Speeches (Indianapolis: Bobbs-Merrill, 1908), 47–57.
31. See Brook Thomas, “The Constitution Led by the Flag,” in Foreign in a Domestic Sense, ed. Christina
Duffy Burnett & Burke Marshall (Durham, NC: Duke University Press, 2001), 82–103. The essays in
this book explain the historical context and the consequences of the Insular Cases.
32. Id.
33. 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 worlddomination, 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 17, at 238.
34. Downes v. Bidwell, 182 U.S. 244, 287 (1901).
35. Finley Peter Dunne, Mr. Dooley at His Best (New York: Scribner’s, 1938), 77.
36. Downes, 182 U.S. at 287–344.
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37. Philip C. Jessup, Elihu Root (New York: Dodd, Mead, and Co., 1938), 1:348.
38. Downes, 182 U.S. at 341–42.
39. Abbott Lawrence Lowell, “The Status of Our New Possessions—A Third View,” 13 Harvard Law
Review 155 (1899).
40. Abbott Lawrence Lowell, “The Colonial Expansion of the United States,” Atlantic Monthly, Feb. 1899,
at 145.
41. Id. at 150.
42. Id. at 151.
43. Id.
44. Id. at 152.
45. Thomas Dixon, Jr., The Clansman: An Historical Romance of the Ku Klux Klan (New York: Doubleday,
Page & Co., 1905), 182.
46. Thomas Dixon, Jr., The Leopard’s Spots: A Romance of the White Man’s Burden—1865–1900 (New
York: Doubleday, Page & Co., 1902).
47. “The White Man’s Burden” was first published in England in the London Times, February 4, 1899,
and then in the United States in McLure’s Magazine (vol. 4, February 12, 1899), the 90th anniversary
of Lincoln’s birth. Before publishing the poem Kipling sent a copy to Theodore Roosevelt, the hero
of San Juan Hill.
48. In the United States, Dixon and Kipling had the same publisher, which also brought out Chesnutt’s
third novel the same year as The Clansman.
49. See Brook Thomas, “The Clansman’s Anti-Imperialist Imperialism,” 62 Mississippi Quarterly 303
(2009).
50. Woodrow Wilson, “Bryce’s American Commonwealth: A Review,” in Bryce’s “American Commonwealth”: Fiftieth Anniversary, ed. Robert C. Brooks (New York: Macmillan, 1939), 181.
51. See Michael Ignatieff, Blood and Belonging: Journeys into the New Nationalism (Toronto: Viking, 1993)
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,” 10 Critical Review 193 (1996) and Brook Thomas, “Civic Multiculturalism and the Myth of Liberal Consent,” The New Centennial Review (2001): 1–35.
52. Albion W. Tourgée, Our Continent 3 (Feb. 7, 1883): 187.
53. Albion W. Tourgée, “The Twentieth Century Peacemakers,” Contemporary Review 75 (1899): 888.
54. Quoted in Otto Olsen, Carpetbagger’s Crusade (Baltimore: Johns Hopkins University Press, 1965),
347.
55. Id., at 345.
56. See Maxwell Bloomfield, “The Leopard’s Spots: A Study in Popular Racism,” American Quarterly 16
(1964): 387–401; Amy Kaplan, The Anarchy of Empire (Cambridge, MA: Harvard University Press,
2002), 121–23; see also Thomas, supra note 49.
57. Tourgée, supra note 2, at 390.
58. See Lucy E. Salyer, Laws As Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration
Law (Chapel Hill: University of North Carolina Press, 1995), 13.
59. Quoted in Salyer, supra note 28, at 73. Emphasis added by the attorney.
60. Charles Sumner, “Are We a Nation?” in Charles Sumner: His Complete Works, ed. George Frisbie Hoar
(Boston: Lee and Shepard, 1900), 16:62.
61. One of the first proposals was made by Senator James Phelan of California as part of his reelection
campaign in 1920, the slogan for which was “Keep California White.” The former mayor of San
Francisco, who proposed moving Chinatown outside city limits after the 1906 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, 2006), at 75.) 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. Newman, Strangers to the Constitution (Princeton: Princeton University Press, 1996), at 180.)
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