February 24, 2011
AMERICAN LEGAL AND POLITICAL HISTORY AS ONE IS UNLIKELY TO BE EXPOSED TO AS A LAW STUDENT AT THE TYPICAL AMERICAN LAW SCHOOL
Aziz Rana, The Two Faces of American Freedom (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2010) (This will be an uncomfortable read for strong believers in American Exceptionalism. For without necessarily challenging that particular American self-myth, The Two Faces of American Freedom underscores two pathologies of the American mind: its two-facedness and its schizophrenia. "Although the desire to encourage immigration west may have expanded who counted as a republican settler and generated a de facto open border for Europeans, it went hand in hand with the entrenchment of imperial prerogative power over nonsettlers. If most European immigrants, who were steadily incorporated into settler life, were free from deportation and enjoyed complete freedom of movement, imperial subjects benefits from no similar privilege. As described earlier, Indian tribes, such as the Cherokee, faced wholesale removal and expulsion. Fugitive slave laws, passed by Congress in 1793 and again in 1850, created administrative proceedings (with minimal judicial oversight) to forcibly return slaves to their owners. As for nonslave or free blacks, despite being formal citizens they too faced extensive restrictions on their movement. Slaves state generally barred the admission of free blacks who were not already residents. As for new opened land out west, Indiana, Illinois, Iowa, and Oregon prohibited altogether the entrance of black populations into their territory.""Under the emerging framework, newly arrived immigrants (even prior to naturalization) had greater privileges than communities with long histories in the United States. Not only were free blacks denied entrance to some frontier states; they were explicitly barred form claiming property through western land grants. If the frontier was considered a national reserve for the benefit of all social members, including noncitizens Europeans, federal law denied blacks access to the public domain and this to economic independence and republican standing. In other words, formal citizens who had been on American soil for generations had fewer practical rights than alien immigrants who may have only recently arrived in the country, The treatment of Mexicans out west after the Mexican-American War powerfully underscored this feature of settler society. With the annexation of wide swaths of land through the Treaty of Guadalupe-Hidalgo, 80,000 Mexicans now found themselves subject of American congressional power. Under the treaty, those who chose to remain on their land were accorded formal status as citizens as well as property rights and suffrage. Yet, as Richard Griswold del Castillo writes, although Mexican proponents of the treaty assumed that the rights of these new U.S. citizens would be respected, 'They were wrong: American local, state, and national courts later ruled that the provisions of the treaty could be superseded by local laws.' California's very first state constitution denied voting rights for most Mexicans, stipulating that only white Mexicans were entitled to suffrage." "Moreover, Congress's 1851 California Land Settlement Act forced Mexicans to prove their land title in court. Since many had no formal titles or did not have the financial means for long-term litigation, they were either stripped of their property or forced to sell. The result was the nullification of most Mexican landholding and the transfer of property to white settlers, immigrant and native born. Akin to the importation of Africans to the New World, such transfer also strengthened internal settler egalitarianism by expanding property ownership among whites and by providing a dependent workforce of nonwhite tenant farmers. Thus formal citizenship for Mexicans, just as for free blacks, did not entail republic inclusion And as with Indian tribes, it made them legal, political, and economic outsiders on land they had long possessed while at the same time providing extensive rights and opportunities to new immigrants with no ties to that land and only limited ties to the United States." "In essence, slaves, Indians, free blacks, and Mexicans all persisted as subjects of a royally derived and discretionary prerogative power, one considered inappropriate for free settlers--immigrant or native born. . . . Id. at 118-119. "In many ways, the challenges of the present are the same as those that faced earlier Americans. . . . The promise of American freedom has long involved the possibility of expanding widely the capacities and experience of self-rule. . . . Perhaps the most ironic fact about the present is that today this fundamentally American promise seems to have escaped the attention of large segments of the country's actual citizens--and that one of the tangible opportunities that remains for sustaining these political and economic commitments lies with those that many assume to be unworthy of full inclusion. . . ." Id. at 347-348. From the bookjacket: "The Two Faces of American Freedom boldly reinterprets the American political tradition from the colonial period to modern times, placing issues of race relations, immigration, and presidentialism in the context of shifting notions of empire and citizenship. . . . America . . began as a settler society grounded in an ideal of freedom as the exercise of continuous self-rule--one that joined direct political participation with economic independence. However, this vision of freedom was politically bound to the subordination of marginalized groups, especially slaves, Native Americans, and women. These practices of liberty and exclusion were not separate currents, but rather two sides of the same coin." "However, at crucial moments, social movements sought to imagine freedom without either subordination or empire. By the mid-twentieth century, these efforts failed, resulting in the rise of hierarchical state and corporate institutions. This new framework presented national and economic security as society's guiding commitments and nurtured a continual extension of America's global reach. Rana [an assistant professor at Cornell Law School] envisions a democratic society that revives settler ideals, but combines them with meaningful inclusion for those currently at the margins of American life." This is a very worthwhile read, especially for those interested in issues of immigration, race, gender, labor, republicanism and democracy in America.).