Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire is coming soon! Publication is expected in November-December 2018. To get up to speed on the project before it is published, you can watch the below video in which Professor Erman summarizes his book and the major arguments it makes. A transcription of the video follows.
The book is titled Almost Citizens and it’s the story of how in the early twentieth century formal empire became constitutional in the United States. It makes three arguments. The first argument is that individuals without formal legal training make a difference at law. Here, I enter into a part of the field that is concerned with individual agency and with claims-making. The second argument of the book is about the idea that law changes outside the courts. I argue that people in congress, federal bureaucrats, the President, even individual litigants and lawyers, change the meaning of the constitution over time. The third argument is that people’s thinking about race and gender could never be separated from their understandings about what the law was and what it should be. The idea is that the law does not just develop because of legal logics, but our own biases; how judges see the world more generally, and how others see the world, profoundly shapes what the law is and what it can become.
Professor Sam Erman, author of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press in October 2018), discusses the pivotal Gonzales v. Williams case that shaped the status of Puerto Rico and its citizens in the eyes of the United States government. A lightly edited transcription follows the video. You can read more about the book here.
The Gonzales v. Williams case is a Supreme Court decision from 1904 that began when a woman traveled from Puerto Rico to Ellis Island and she was stopped at Ellis Island as an alien who was undesirable for entry. She sued and said “I’m not an alien; I’m an American.” The argument was that you [the United States] annexed Puerto Rico in 1899 and that transformed all of us [residents of Puerto Rico] into Americans, and thus U.S. citizens. This was important, not primarily because of Puerto Rico, but because the U.S. had also annexed the Philippines–which was much larger and more populous and which most Americans considered to be much more racially “degraded” at the time (and so more of a threat). But Isabel Gonzalez, the woman who took this trip, was the test case. And what the Supreme Court decided was that she was not an alien—she was allowed to enter. But they didn’t decide if she was a citizen. And this was important (to my book, and to legal history more broadly) because it was part of a trend of how the Supreme Court dealt with the expansion of the United States into overseas islands in the early twentieth century. Rather than say that colonialism as a whole is okay, or say that we are not going to allow anything like colonialism in this country, the Supreme Court equivocated. So, in this case, they said, “well, you’re not an alien. We won’t decide if you’re a citizen.” That opened up the possibility that there were Americans who weren’t citizens—other than American Indians, which had always been a special case. And in other cases, the Supreme Court said “we’re going to say that there are places that maybe don’t have to become states,” which violated a longstanding rule that all U.S. territory other than the capitol was a state or would become a state. And they also said that there were Americans living in the United States with less than full constitutional rights. It had been thought, prior to 1898, that every American within U.S. jurisdiction had to have the full gamut of constitutional rights. So I use this case in order to try to illustrate how the Court uses strategies of evasion and ambiguity in order to kind of nudge the nation to a position that seems simultaneously to somewhat honor the constitution and to accommodate certain forms of empire.
Professor Sam Erman, author of Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (forthcoming from Cambridge University Press in October 2018), discusses the inspiration for his book, as well as its contemporary relevance. A lightly edited transcription follows the video. You can read more about the book here.
I’m interested in the question of citizenship. I think it is an interesting thing to study, because citizenship is something that matters to people in general, and that also is a formal legal category, so it’s a nice place to look at how the government and structures of power and individuals just living in the world interact with each other. The place to look for citizenship is where it is being fought about. Puerto Rico was a promising place because after it was annexed, nobody knew if Puerto Ricans were citizens and Puerto Ricans brought lots of claims trying to establish that they were citizens. So, by looking there, I’m able to see people fighting over the meaning of citizenship; when they do that, they reveal their underlying thoughts about the category.
I think the book resonates in two ways with the present. One is in a very technical way, which is that courts are still deciding constitutional questions that were raised in the period I study. Such as, if you’re born in a U.S. territory that’s not a state, are you a citizen? That question was left open in the early twentieth century and the Supreme Court has never decided it. So, I write amicus briefs and I submit them to courts and tell them “here’s what the history is on this question, and that might help you decide this case.” The other way the book seems relevant in this moment is that, in the period I study, it was not a period of dog whistle politics. People’s racism and sexism was right out in the open—people thought it made sense to just talk about these things, and they were incapable of seeing the world without putting on these racist and sexist lenses. And so, in a moment when our politics have become coarser, when questions of race and sex seem more on the surface, I think remembering a prior time when that happened (and how it affected the way judges decided cases and politicians decided issues) can be very helpful.
Professor Edward Kolla of Georgetown University Qatar discusses the inspiration for his next project and its ties to his recently published book (Sovereignty, International Law, and the French Revolution) in this third segment of our interview series. You can watch the interview in the video clip below and follow along with the lightly edited transcript that follows. Want to learn more about Professor Kolla’s work? Check out interview installments one and two in the Studies in Legal History video series.
So, I would say the writing process for the book was challenging; it was the first time I’ve done anything like this and so it was a lot of work (but I enjoyed it, obviously). I’m now straight into my next project, which is a similar project in terms of the history of international law. It’s about the history of the passport.
This project is born of my love of travel. I’ve always loved to travel; I’m sure I was standing in a lineup somewhere, staring down at my passport, waiting to go through immigration and thought, you know, “what is the history behind this document? I should probably know the history behind this document.” It’s actually quite an elusive history. In that way, it’s similar to my first book because the way that popular sovereignty enters discourse about international law is not something that is proactively decided by states. The principle of popular sovereignty does not become a principle of international law because all countries get together and agree on it; revolutionaries start embracing these ideas, they apply them in certain diplomatic situations, and slowly over time it becomes a principle of international law. The history of the passport is also one of legal happenstance. All states never got together and agreed they needed passports and that passports needed to look a certain way. It’s, again, a story of historical development, so in that way the projects are very similar.
The other overlap between the projects is that the French Revolution was an important moment in the history of the passport. Up until the French Revolution, it was taken for granted that if you were carrying some kind of identity document when you’re traveling, the person carrying that document is the person for whom it was intended. It was only at the time of the French Revolution that Revolutionaries started thinking, “Oh no! People could be smuggling, or émigrés could be escaping from France.” So they actually started to write the description of the bearer of these documents on the documents themselves. So, not just hair color or eye color, but shape of nose, and size of forehead. That was really the first moment that these documents started to include information about who the bearer was and this is obviously the precursor to the photographs and biometric data that are used in passports today.
Professor Edward Kolla of Georgetown University Qatar discusses the source base for his recent book, Sovereignty, International Law, and the French Revolution (Cambridge University Press, 2017), and the importance of one source in particular–diplomatic communiques. A lightly edited transcript follows. You can also check out further conversations with Professor Kolla about his work here.
The source base for the book was very diverse. I looked at materials from a number of different of archives in France (the National Archives and National Library in Paris), but also regional archives in a number of the areas that I study in the book (I did research in Alsace, Corsica, Avignon). Probably the most important source for the book were diplomatic communiqués housed in the French Foreign Ministry Archives (which used to be a great place to do research; it was in the old Foreign Ministry at the Quai d’Orsay. The archives have since been moved out, but you used to walk past the Minister’s Office to get to the reading room). And like I say, those diplomatic communiqués were probably the most important source for my book because one thing I really wanted to examine was the way the law operated in practice. That is, the way diplomats—and French officials and everyday people in popular pamphlet literature, etc., but especially diplomats—were thinking about the law and how they saw the law as applying to actual diplomatic problems and issues of importance in the day that needed to be dealt with. So it’s not just a book about international law as theory or international law as doctrine but really about how people—like I said, diplomats, but also just average people in the streets in France—thought about the law and how it could impact their lives.
Professor Edward Kolla of Georgetown University Qatar delves into the history of the idea of popular sovereignty, its roots in the French Revolution, and its relevance to territorial claims in more modern times. Professor Kolla is the author of Sovereignty, International Law, and the French Revolution(Cambridge University Press, 2017). A lightly edited transcript of the video follows.
The central idea of my book, as the title probably indicates, is the impact and effect of the French Revolution for the history of international law. More specifically, I was looking at how the idea of popular sovereignty began to have an effect in international law, which was something that French revolutionaries hadn’t originally envisaged. Popular sovereignty is probably the central idea of the Revolution, both domestically, but also for international law. It’s the idea that the people have control of the government. And, like I said, initially French revolutionaries didn’t envisage this idea applying to all peoples. But, soon, through a series of diplomatic incidents, people–first on the margins of France–started to take up this idea of popular sovereignty and claim a role for themselves in making territorial claims in international law.
The book charts how these ideas spread, first from the margins of France, but then how the revolutionaries themselves started taking up the ideas and using them later, once revolutionary wars break out, to start making territorial claims of their own. This is something that goes against the historiography of the Revolution in a couple of ways. First of all, the Revolution isn’t really examined much in the history of international law. But, with respect to the Revolution itself, people tend to think about revolutionaries making these claims to try and change the international system—to try and change the world. Whereas, initially, this impact of popular sovereignty outside of France’s borders was something that revolutionaries were actually quite timid about applying. So it is actually a story of revolutionaries kind of being caught between a rock and a hard place; they wanted to stay true to these ideas of popular sovereignty when peoples outside of France were starting to take them up (in places like Corsica and in places like Avignon, which had been controlled by the Pope). But, over time, the revolutionaries saw that these ideas were fundamental principles that they held dear, but also could be quite useful—like I said, in that later period of revolution, when they started using them to make territorial claims.
Overall, the book is kind of an origin story of a principle that by the twentieth century comes to be called national self-determination; again, the idea that peoples themselves get to choose the status of their territory. We see that idea in the news all over the world today. Just last year, there were plebiscites in Catalonia for independence from Spain and in Iraqi Kurdistan for independence from that country. So, you see this principle of peoples making claims that their status—the status of their territory—could change in international law based solely on the people’s choice. This is a very important principle in the world today, and it dates back to the time of the French Revolution.
In this video, Professor Martha Jones of the University of Michigan discusses her book Birthright Citizens: A History of Race and Rights in Antebellum America (Cambridge University Press, Summer 2018). The video, courtesy of Michigan Law, provides an overview of the forthcoming book and its implications for thinking about citizenship in America. An edited transcription follows.
I’m finishing a book called Birthright Citizens, which is a look at race and citizenship in a somewhat unexplored period. That is, the period before the U.S. Civil War; the period before the amendment of the Constitution, with the 14th Amendment providing birthright citizenship for the first time in the United States. My case study is three African Americans, former slaves, and their descendants. All with a mind toward understanding how, as a nation, we grapple with people who occupy this in-between status–neither slaves, nor fully free citizens. How, in law, do we regard those people? Most often that story is told through a somewhat notorious US Supreme Court case called Dread Scott vs. Sandford, in which the court, through Roger Taney, declaims that no black person can be a citizen of the United States. It turns out that, while Taney was quite sure about his ideas, he really was just one volley in what was an extended debate about race and citizenship before the Civil War.
So, for me, the story begins in the eighteen-twenties with three African American activists themselves, who–through local courthouses, high court arguments, legislatures, and political conventions–again and again make the argument that they are citizens of the United States. Again and again, they make the argument that by virtue of birthright, military service, and their contributions to the economic prosperity of the nation, they should be citizens.
It’s an important chapter in part because it tells a new version of the Fourteenth Amendment, which was not merely a creature of the U.S. Senate, but actually came out of the activism of free African Americans themselves.
Cynthia Nicoletti, Professor of Law and History at the University of Virginia, recently sat down to discuss her latest book, Secession on Trial: The Treason Prosecution of Jefferson Davis(Cambridge University Press, 2017). In the clip below, she describes the fraught decision whether or not to prosecute Davis for treason, and the broader constitutional implications of the eventual decision. A lightly edited transcript follows.
I am Cynthia Nicoletti. I am a Professor of Law and a Professor of History at the University of Virginia. My new book is Secession on Trial: the Treason Prosecution of Jefferson Davis. One of the things that I argue in this book is that Davis’ treason trial is going to implicate the biggest constitutional question of the Civil War, which is the constitutionality of secession. One of the reasons that he’s not tried—the primary reason that he is not tried—is that the government is quite worried about the prospect of Davis’ acquittal (or, at least, their failure to convict him). They’re worried that Davis’ acquittal might provide a backdoor vindication of the right of secession, which is precisely what they are not hoping for.
There are two things that everybody knows about the legal history of the Civil War: everybody knows that the Civil War settled the question of secession’s constitutionality in favor of the permanency of the union. And everybody knows that the Civil War ended slavery. So, what the book really does, is it argues against– or complicates–one of the basic things that we know about the legal history of the Civil War. What I’m trying to show in the book is how fraught this question of the war settling the constitutionality of secession in the Union’s favor really was.
It was very important to me in writing this book that I treated this question as an open question, basically because I think that there wasn’t a clear answer as to whether or not the Constitution allowed secession. I want to bring the reader back into this time period where there hadn’t been 150 years where everybody clearly understood that secession was unconstitutional. What I’ve heard in general is that if only we had prosecuted Robert E. Lee and other Confederates for treason in the aftermath of the war, we wouldn’t be dealing with the specter of confederate statues and celebratory commemoration of Confederates. One thing that I hope that this book does, is that it might push against the easiness of such a narrative, because one of the things that the book talks about is how difficult it was to get treason convictions against Confederates.
Note: this video comes courtesy of UVA Law Communications. Any media relations inquiries can be sent to firstname.lastname@example.org.
Sometimes the book you set out to write isn’t the book you end up with. Listen as SLH series author Professor Assaf Likhovski of Tel Aviv University discusses the process of writing his latest book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017). A lightly edited transcription follows. If you missed the first or second clips in this interview series, you can catch up on the SLH website.
It took me more than a decade to write this book, unfortunately, and I must say that I didn’t intend to write the type of book that ultimately was published. When I began thinking about this book, I was thinking it was something completely different; I’m a legal historian, but I also teach the basic tax course at my home institution, Tel Aviv University. When I was teaching tax cases, I felt very frustrated because I could tell my students about the doctrinal aspects of the cases, but I didn’t know anything about the political, cultural, or economic context.
There were all these cases that I really wanted to know more about, among them an important tax-avoidance case called Mefi that was decided by the Israeli Supreme Court in 1967, and there was nothing about the historical context of this case. But, there was a model that I could use; there was a legal historian Robert B. Stevens, who wrote a book in the 1970s about the British House of Lords. It’s called Law and Politics: the House of Lords as a Judicial Body. It examines all sorts of cases, among them tax cases, placing them in the political, economic, and cultural context of their time. And I thought that I could use the approach that Stevens’ book advocates in analyzing cases such as Mefi.
And that is what I did; actually, the last chapter of the book—chapter 6—was the first chapter that I actually wrote. It’s an analysis of the history of this specific tax-avoidance case and its role in Israeli tax law in the transition from a pro-taxpayer, to a pro-government approach to tax-avoidance. After I wrote an article about the Murphy case, I also wrote an article about British tax avoidance cases in the 1930s and another article about American tax avoidance cases in the 1930s; my idea was to write a comparative legal history of tax avoidance cases in Israel, the UK, and the United States. But, when I started enlarging the Israeli part of the book, looking more deeply into the history of tax avoidance, tax evasion, and economic and social and cultural history, I found so many materials that ultimately I ended up with a book which is only focused on the Israeli case. So, it didn’t come out as a comparative or transnational book; it’s merely focused on one specific tax jurisdiction, although I think that the story that I tell is relevant to other jurisdictions too.
In a second clip from our 3-part interview, series author Professor Assaf Likhovski describes the joy of discovering unexpected sources, and how those same sources fundamentally shaped his project. You can read more about Professor Likhovski’s book, Tax Law and Social Norms in Mandatory Palestine and Israel (Cambridge University Press, 2017), here. If you missed part one of the interview–in which Professor Likhovski provides an overview of his book–you can catch up here. The third and final clip is also available on the SLH website. A transcription of the interview, lightly edited for clarity, follows.
When I began writing my book, I used rather conventional sources, such as case law and archival documents found in governmental archives (such as the British National Archives or the Israel State Archives). But, as time progressed, I discovered that I had more interest in writing the social history of tax compliance, rather than just focusing on the official, top-down governmental history. And so I moved to really exciting sources–such as propaganda posters, tax movies, children’s poems, and literature dealing with tax compliance and tax non-compliance. And these sources were found in archives which were not conventional archives. For example, in the book I discuss a really fascinating institution, called the Tax Museum, which exists in Jerusalem. And this is a museum that displays objects related to taxation, but also contains a small archive with fascinating visual materials related to the history of tax compliance in Israel.
I really enjoyed actually discovering these materials which not many people—I think nobody before me—has thought relevant for the writing of tax history in Israel. And it was a great experience doing the research for the project; it was actually one of the best parts of writing the book.
There were some sources that were missing; for example, in chapter four of my book, I discuss the history of tax compliance in the Arab sector of Israeli society in the 1950s, and it was very difficult to find sources discussing tax compliance among Arabs in that period. I used some sources from the state comptroller’s office, but I could not come across many relevant sources, apart from official documents about the Arabs–which are obviously biased because they represent the point of view of the government, rather than Arab taxpayers. So this is a part of my book that I feel could have been better had I been able to use more sources that I could not find.