Citizenship, Civil Rights, and the (Grass)Roots of Constitutional Revolution

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

William J. Novak

            In an influential article on “History and the Social Sciences,” Richard Hofstadter set an imposing standard for judging the best historical work.  Channeling the anxieties of every historian, Hofstadter criticized both traditional narrative histories where authors “rarely hesitate to retell a story that is already substantially known” as well as historical monographs that left readers “with misgivings as to whether that part of it which is new is truly significant.”  “Substantially new” and “truly significant” thus became the ever-evasive standard of excellence for professional historical research and writing.

            Kate Masur’s Until Justice Be Done: America’s First Civil Rights Movement passes Hofstadter’s stress test with flying colors.  She tells us something decidedly new – uncovering in unparalleled detail an entire antebellum civil rights movement dedicated to the cause of securing the rights of free African Americans against a raft of racially discriminatory state laws, northern as well as southern.  And she tells us something truly significant – providing a new and utterly convincing account of the historical roots of the Civil Rights Act of 1866 and the Fourteenth Amendment.  This book will forever change the way we think about the history of citizenship, civil rights, constitutional change, and the long struggle for racial justice in America.

            It is impossible to overstate the accomplishment here.  This is one of those extremely rare books that enters into a legal-constitutional field of complexity, confusion, and not infrequent error, and with a painstaking research effort in numerous new primary sources, brings order and clarity.  Oliver Wendell Holmes used to say that the mark of masters is “that facts which before lay scattered in an inorganic mass, when they shoot through them the magnetic current of their thought, leap into an organic order, and live and bear fruit.”  I got something of that feeling when reading this book.

The Antebellum Civil Rights Movement And The Antislavery Background Of The Fourteenth Amendment

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Michael Les Benedict

            Kate Masur’s Until Justice Be Done is a major contribution to the history of the conflict over rights in the United States.  It will be the standard account of African American’s struggle for equal rights from the turn of the nineteenth century through the ratification of the Reconstruction-era amendments to the Constitution.  As such, it provides a new perspective on the origins of the Civil War constitutional amendments and the intention of the American people in framing and ratifying them. 

            Masur’s account deepens historians’ understanding of the antislavery movement in several very significant ways.  First, Masur gives us a new account of the origins of the Civil War-era constitutional amendments.  The classic view has been that there were antislavery origins to those amendments.  The great works that recovered those origins were titled The Antislavery Origins of the Fourteenth Amendment and “The Early Antislavery Backgrounds of the Fourteenth Amendment.”[1]  Both harkened back to abolitionist arguments articulated by white abolitionists like Alvan Stewart, William Goodell, and Lysander Spooner that slavery itself was unconstitutional and unconstitutionally deprived Americans of the rights to free speech, free press, petition, assembly, and due process of law.  William Wiecek’s classic The Sources of Antislavery Constitutionalism in America likewise attended only to the white abolitionists who developed the antislavery constitutional argument.[2]  Frederick Douglass rated one mention, as newspaper editor rather than theorist.  The natural conclusion one draws after reading Until Justice Be Done is that the origins of the Fourteenth and Fifteen Amendments lie not so much in antislavery constitutionalism but in what she calls “the first civil rights movement”—the black-led movement for equal rights that ran from the Revolution through the Civil War and into Reconstruction  (I prefer “equal rights” to “civil rights” as a descriptor of the movement Masur chronicles). 

            This leads to Masur’s second contribution.  Masur implicitly but clearly distinguishes between the antislavery movement per se and the movement for equal rights.  This insight is one of those jaw-dropping ones that makes apparent what had been implicit in recent studies of antebellum black activism.  Until now, historians have conceived of the great crisis of the mid-nineteenth century in terms of the antislavery movement.  Most of the historiography has concentrated on abolitionism.  We have numerous accounts of the Garrisonians.  For a long time they were credited with creating the intellectual, moral, and political environment in which Northerners finally confronted slavery.  The Garrisonians famously eschewed politics in favor of “moral suasion” in their campaign against slavery, bitterly condemning the “political abolitionists” who disagreed with their approach. Historians have begun to argue that it was the political abolitionists rather than the Garrisonians, who brought slavery to an end.  All these accounts treat calls for equal rights as an element of the antislavery campaign, with the Garrisonians especially committed and political abolitionists more ambivalent. 

            In recent years scholars have chronicled the work of black activists, stressing their quest for recognition as citizens, their demand to be considered Americans rather than outsiders.[3]  But Masur’s is the first synthetic account, and the first to conceive of these activities as a civil rights movement complementing but separate from the antislavery movement.  While the campaign against slavery and the campaign against racially discriminatory laws were related, they were not the same thing.  The distinction was illustrated most clearly in 1865, when Garrison successfully called upon the American Anti-Slavery Society to disband and discontinued The Liberator, while his old co-agitator Wendell Phillips insisted that the struggle would not be over until black Americans had equal rights.   I had never understood how Garrison could be so obtuse until I read Masur’s work.  Now I understand that for Garrison, the issue was slavery not equal rights.  He sympathized with equal rights for everybody, and the Anti-Slavery Society took a firm stand for equal rights not only for blacks but for women.  Garrisonians regularly called for equality of rights for freed people among their resolutions condemning slavery.  But the issue was slavery.  Equal Rights was ancillary.  Get rid of slavery, and equal rights would follow.  That was not the view of the black leaders of the civil rights movement.  They were contesting racially discriminatory laws in the North.  Garrison might think that these would dissolve once they no longer were needed to buttress slavery.  Black northerners knew better. 

            Although white abolitionists sympathized, it was black northerners who drove the campaign for equal rights.  Whites dominated the antislavery movement, with black northerners giving important and often crucial support.  (African Americans accounted for three-quarters of the subscribers to The Liberator, for example.)  A few black Americans, most famously Frederick Douglass, were leaders in both movements.  But Masur’s work indicates that we will understand developments better if we conceive of the two movements separately rather than as one.  It is appropriate for historians to speak of abolitionists and their black allies.  In describing he civil rights movement, Masur speaks of African Americans and “their white allies.”  There is a logic to this.  The black movement for equal rights was aimed at discrimination in the North more than at slavery in the South.  It grew explosively in the 1840s and 1850s after black northerners initiated the black convention movement.  These conventions represented, as their titles demonstrated, the “colored citizens” of the northern states in which they were called.[4]  Their resolutions and addresses to white northerners complained about the humiliating legal discrimination they faced.  Of course, there would be a resolution or two denouncing slavery, but the focus was on equal rights in the North. The national conventions were called by the state conventions and reflected their concentration on securing equal rights in the states.  The Thirteenth Amendment was the culmination of the white-led antislavery movement.  The Fourteenth and Fifteenth Amendments were the culmination of the black-led equal rights movement.

Civil Rights Without Slavery

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Kunal Parker

Until Justice Be Done is a monumental book.  Mapping out what she calls “America’s first civil rights movement,” Kate Masur explores the fraught history of multiple efforts, public and private, legal and political, by Whites and Blacks, to demand citizenship and equality for free Blacks between the American Revolution and the Civil War.  Decades of struggle, rewarded by successes and visited with failures, would culminate in the Thirteenth, Fourteenth, and Fifteenth amendments to the U.S. Constitution.

What free Blacks were up against was daunting.  Around 1800, as the number of free Blacks began to grow as a result of emancipation in the North and manumission in the South, states and territories all over the country began to seek ways of excluding and removing free Blacks.  Free states repurposed centuries-old restrictions on the movement of the poor to new effect.  They demanded bonds and sureties of free black entrants, excluded free Blacks from poor relief and public schools, and threw in a bunch of other restrictions for good measure, including prohibiting Blacks from testifying against Whites.  In the country’s capital and in the slave South, things were far worse.  Free Blacks who could not provide adequate account of themselves found themselves thrown in jail, the threat of being sold into slavery looming over them.  Black sailors on ships docked at Southern ports were forced into prison until their ships left port.  Throughout this period, the question of whether free Blacks were citizens of the United States—as opposed to of individual states--remained a hotly debated question.  Free black suffrage was the exception rather than the norm.  Free Blacks faced many of the legal disabilities faced by non-citizens and for many purposes fared considerably worse than white aliens.  The American Colonization Society was at the forefront of public and private efforts to transport free Blacks out of the country.

Rights, Power, and the First Civil Rights Movement

Guest Blogger

For the Symposium on Kate Masur, Until Justice Be Done: America's First Civil Rights Movement, From the Revolution to Reconstruction (W. W. Norton & Company, 2021).

Laura F. Edwards

Kate Masur’s Until Justice Be Done: America’s First Civil Rights Movement is a stunning accomplishment. In this post, I first want to highlight the book’s historiographical contributions, which reshape conventional assumptions about political participation and the relationship between law and politics in the first half of the nineteenth century. Then I want to step back and consider broader implications that the analysis raises, but that Masur does not develop as fully, with an invitation for her to engage with these issues in her response. 

While building on an important, growing body scholarship that foregrounds African Americans’ political activism between the Revolution and the Civil War, Masur adds an important, new dimension to this story. As she shows, white Americans allied with African Americans to build a successful movement that placed civil rights and racial equality at the center of political debate at this time. The timing is crucial here. In conventional narratives, it is assumed that few white Americans, even those who supported the abolition of slavery, questioned racial inequality—or if they did, they did not organize in opposition to it. Such efforts would only come later, in the aftermath of the Confederacy’s defeat in the Civil War. Even then, support would be short-lived, based as much in a desire to punish white Confederates as it was in a principled commitment to elevate the legal status of African Americans. Masur shows that opposition to racial inequality had much deeper roots than previously thought. Activists not only saw immediate results within free states in the decades preceding the Civil War, but also shaped federal policy afterwards. 

Why has this movement been forgotten?  One reason is that we have been looking in the wrong places, namely the federal level, where legal and political historians have tended to focus their analyses—at least until recently. Slavery, not racial equality, dominated debate at the federal level. Questions about racial equality appeared less often for good reason. Within the federal system, as it was defined in first half of the nineteenth century, the federal government’s reach did not extend to such issues in as direct a way as was the case with slavery. It was the states that had purview over racially based restrictions, given their jurisdiction over the wide range of issues affecting the public order and the legal status of individuals. Joining an emerging body of work that has complicated our understanding of the new republic’s governing dynamics, Masur follows the jurisdictional lines of the federal system and shifts the focus from the federal government to states, where conflicts over racial restrictions were both enacted and challenged. The evidence of this first civil rights movement had been hiding in plain sight. 

The conceptual originality of Masur’s work, however, does not end there. The evidence of this civil right movement may have been hiding in plain sight, but the materials did not present themselves as obviously political. Nor did all the various pieces of the puzzle even seem related, scattered as they were across time and space. Putting events in Ohio together with those in Massachusetts and New York is not exactly standard methodological procedure in the world of nineteenth-century history. What makes the work so brilliant is Masur’s ability to connect seemingly unrelated events in different states: from the institution of racial restrictions through poor laws to state campaigns against those restrictions to, ultimately, the push to change the entire balance of power in the federal system so as to override state restrictions.

New Restrictions on “Teaching” Critical Race Theory, and the Use-Mention Distinction Again

Mark Tushnet

Statutes described as restricting the teaching of critical race theory are both ignorant and stupid. Are they unconstitutional, though? That’s not as clear to me as it appears to be to others.

As with many things constitutional, details matter. The Oklahoma statute says that schools can’t “make part of a course” seven listed concepts, including that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously” (the other “concepts” are similarly described). 

What exactly does this bar? On its face, teaching the truth of that concept but not (again on its face) describing the arguments some analysts (“critical race theorists”) have made about U.S. society and history. Roughly speaking, a teacher can mention the concepts but can’t use them.

The Idaho statute forbids any course from requiring students to “affirm, adopt, or adhere” to a number of “tenets” defined as part of critical race theory. Again, teaching about those tenets isn’t barred by the face of the statute.

Frankly, as a now-retired teacher, I’d be – and I think I was – more than reluctant to require my students to “affirm, adopt, or adhere to” anything – including the idea that the First Amendment was overall a good or a bad thing, much less that some specific decision was right or wrong. 

I understand, though, that some teachers might reasonably think that getting students to forcefully advocate for a position (with which they might disagree) is a good way to get them to understand the position. And, it might be that under some interpretations of the statutes that pedagogic practice might be subject to sanction. In light of constitutional concerns they shouldn’t be interpreted to do so.

But, finally, uncertainty about the scope of the statutes might make them unconstitutionally vague (in a First Amendment context) or (more problematically) overbroad (more problematic because the statutes are readily subject to narrowing constructions that rely on the use-mention distinction as I have above).

My bottom line is that the statutes might be unconstitutionally vague but that they aren't obvious violations of the substantive First Amendment principle barring the government fro imposing sanctions on speech because of its content.

Thinking Forward: Civil Rights Before the Fourteenth Amendment

Guest Blogger

Balkinization Symposium on Kate Masur, Until Justice Be Done

JB

Nussbaum on Sexual Assault: A Mini-Mini Review

Mark Tushnet

I just finished Martha Nussbaum’s new book, Citadels of Pride: Sexual Assault, Accountability, and Reconciliation. As the title indicates, Nussbaum argues that a culture of male dominance and sexual assault/harassment is rooted in (the sin of) pride – “habitually thinking oneself above others  and thinking that others do not fully count.” After developing her account of the connection between male pride and sexual assault/harassment/domination, Nussbaum describes the current law on sexual assault and harassment, and in a final section offers case studies of sexual harassment (and worse) in the federal judiciary, the arts, and sports.

I am not the target reader for the second and third sections, which will be informative and of interest to non-lawyer readers. (I have some minor comments on those sections at the end of this mini-mini review.) I want to focus on the first, more philosophical section, and in particular on Nussbaum’s methodology and the conclusions she draws from her methods.

Nussbaum is of course interested in the way passions and emotions do and should figure in our normative lives. Here she turns that interest into something like a diagnostic inquiry: What passions and emotions lead men to create and then engage in a culture of sexual harassment? As I’ve said, her answer is, Pride.

How does she come up with that answer? One possibility, not pursued here, might be to engage in clinical observations of and interviews with men who do and don’t engage in sexual assault and harassment. Instead, Nussbaum engages in which I think of as imaginative projective introspection. Relying on a wide reading of contemporary and past accounts of sexual harassment and assault, Nussbaum tries to project herself into the men’s minds (both harassers and non-harassers), and – once there – to think about (introspect) their emotional lives. That in turns leads her to “pride.”

Whether the account succeeds depends, I think, on the interaction between Nussbaum's literary and rhetorical skill, and the presuppositions of her readers. I personally think that she didn’t introspect deeply enough. (What follows reflects my interest in Freudian-inflected depth psychology, but I don’t think that anything much turns where I got the ideas that I offer.)

For Nussbaum pride – the foundation in her account – is an attitude of hierarchical superiority (again, “thinking oneself above others”). My introspection leads me to think that the deeper foundation is male sense of inferiority to women, that we men lack some important things that women have. (For me, that’s connected to the differences between male and female bodies, but again I don’t insist on that point.) We men then react to our sense of inferiority by creating an imaginary superiority that in turn leads to pride.

So, in sum, I don’t disagree with the conclusions Nussbaum draws from her analysis of pride; I think, though, that “pride” (and a sense of superiority) isn’t the “primitive,” so to speak, in the account.

[Comments on the second and third parts of the book: The discussion of law is fine, although – reflecting I think the culture of Nussbaum’s home institution – Chicago figures larger in the story than it probably should. At one point Nussbaum suffered a brain freeze and describes Herbert Wechsler and Charles Hamilton Houston as federal judges. I appreciated Nussbaum’s sensitive though brief accounts of the virtues of great performance in the arts and sports. In the end, I thought that her chapter on sports was more than a bit padded, perhaps because – I don’t know this for a fact – Nussbaum is a sports fan. The chapter is mostly about the academic corruption of Division I university sports, with material about sexual assault and harassment tagged on.]

As should be obvious, I found the book thought-provoking.

N-Word Issues Revisited, and the "Use-Mention" Distinction Questioned

Mark Tushnet

A recent article by philosopher Gerald Dworkin (brought to my attention by Brian Leiter) provokes these thoughts about recent controversies, some in law schools, about the n-word. Dworkin helpfully describes what I had thought was the most important first step in thinking about those controversies, the distinction between use and mention. But, almost in passing, he suggests the possibility that drawing that distinction actually might not be all that helpful.

The idea behind the distinction is this: A person who uses the n-word inflicts harm of a certain sort, which I’ll call – I think accurately, but I don’t think anything turns on whether I’m using the term correctly – semantic harm. A person who mentions the n-word doesn’t inflict semantic harm. The usual argument about the use-mention distinction in this context goes as follows.

Noting the difference between use and mention doesn’t tell us what to do in response to the semantic harm but whatever we think we should do about it, we shouldn’t do the same thing when semantic harm doesn’t occur. (There’s of course a non-trivial argument, which Dworkin lays out, that we shouldn’t do anything about the harm caused by mentions – and because all issues about regulating speech involve figuring out what to do when speech inflicts harm, the mere fact that harm occurs doesn’t justify regulation.)

Dworkin mentions, so to speak, controversies over the use of the word “niggardly,” but doesn’t build them into his analysis. People avoid using that word (or at least might reasonably avoid using it) even though it has no relation to the n-word either etymologically or semantically, because they believe that some listeners will hear the sounds of the word and experience harm. Here the harm isn’t semantic, of course. Instead, it involves what I’ll call “phonic” harm: A person experiences harm simply upon hearing the sounds that constitute the word.

Now, suppose, as I suspect is true, that the neural mechanism linking semantics to harm is different from the neural mechanism linking phonics to harm. The phonic harm occurs when the word is mentioned. If that harm is roughly similar to the semantic harm inflicted when the word is used, then the use-mention distinction doesn’t help us figure out what to do in response to the harm (because, again, it occurs in cases of mention).

One possibility is that the semantic harm is similar to but in some sense worse than the phonic harm, so that – for example – regulation of uses, which combine semantic and phonic harm, might be justified even though regulation of mentions, which cause only phonic harm, would not be. Working that possibility out requires some analysis of the sense in which semantic harm is worse than phonic harm -- and I'm pretty confident that such an analysis would make sense to me. I now think, though, that the use-mention distinction alone doesn't get the job completely done.

A Constitutional Whodunit

Gerard N. Magliocca

I am at Mount Vernon conducting some final research for my Bushrod Washington biography and I came across something new (at least to me) that others find want to examine.

In December 1801, five anonymous essays appeared in the Washington (Georgetown) Federalist newspaper attacking the proposed repeal of the Judiciary Act of 1801, which created the "midnight judges." The essays argued, in part, that the repeal was an unconstitutional assault on an independent judiciary. They were signed "A Friend of the Constitution."

My eyes opened wide when I saw that. Why? Because that was the title of the anonymous essays that John Marshall wrote in 1819 to defend McCulloch v. Maryland. This raises an obvious question--Did the Chief Justice also write the 1801 essays? Another alternative is that his partner in surreptitiously publishing the 1819 essays--Bushrod Washington--was the author of the 1801 essays. An unpublished manuscript at the Mount Vernon library asserts that either Marshall or Bushrod was their author, though without citing any direct evidence. I'll see if I can find any.

UPDATE: The essays are sometimes attributed to William Cranch. I'm trying to see why that is so.

Senator Manchin, Justice Breyer, and the Madisonian Delusion

Sandy Levinson

Both Senator Joseph Manchin of West Virginia and Justice Stephen Breyer can, I believe, be viewed in terms of the Madisonian hope--or delusion--of staving off factional partisanship by relying instead on the virtuous impulses of what we today might describe as "bi-partisan" and public-spirited leaders.  One should not disdain this desire.  Madison was clearly on to something when, in Federalist 10, he bewailed "factions" as collectivities committed not to the public good, but, instead, to their own selfish interests.  That, of course, is what political parties can be viewed as, and there is widespread agreement that the Madison of 1787, like Washington and most other luminaries, were trying to stave off the development of political parties.  

One can easily say that Madison and Washington were delusional in their hope, not to mention illustrating the propensity of all of us to define our own particular desires with "the public good."  In any event, the only interesting controversy among historians is dating exactly when the Madisonian fantasy collapsed.  Some would say as early as the first couple of Congresses and the debate, in particular, over the chartering of the first Bank of the United States, where Madison led the attack on Hamilton's brainchild.  Others might say the election of 1796; everyone would agree that by 1800 it was in complete shambles and, like Humpty Dumpty, would never be put back together.

But it is still possible to say that "partisanship," though completely explicable and even productive, has its downsides as well.  There is no evidence that either Senator Manchin or Justice Breyer is an ignorant fool in emphasizing the importance of moving away from our present polarization.  That being said, however, one can say that even if not foolish, they are still nonetheless subject to justified criticism in refusing to recognize what is obviously true, for better and, certainly, for worse about our contemporary polity.  They are making the best--i.e., a Madisonian (or "Publian") society of leaders selflessly committed above all to the "common good"--the enemy of the good.  So what is "the good" in this context:  The answer is a political system that, at least over the next few years, is basically controlled by the Democratic Party, given that the GOP has become largely a fascistic cult of personality around the truly malevolent figure of Donald J. Trump and the necessity to support his Goebellian big lie concerning the integrity of the election.  

I suspect that Manchin, as an experienced practicing politician realizes this.  His resistance to "partisanship" can in part be explained by his tenuous position in West Virginia itself, the most Trumpista state in the Union, apparently.  Breyer's position must find a different explanation, and I think the basic answer lies in his being a very bright technocrat--he has taught at the Kennedy School as well as the Harvard Law School--who really buys fully into the Hegelian/Frankfurterian ideal of a class of civil servants, including judges, who transcend "the political thicket" and can make judgments faithful to the public interest and/or "the rule of law."  

In some ways, Breyer is more interesting than Ginsburg, who I think had become simply a form of megalomaniac at the end, encouraged to accept the view of her acolytes that she was truly indispensable and irreplaceable.  Breyer, on the other hand, is more the instantiation of a particular ideological vision.  Whether this makes him more admirable, or even more dangerous, than Ginsburg is truly debatable.

America's first immigration crisis: The implications of taking Indigenous Nationhood seriously

Sandy Levinson

First things first:  I strongly recommend to everyone Mary Sarah Bilder's new article, Without Doors:  Native Nations and the Convention, which has just appeared in a truly remarkable symposium in the Fordham Law Review on The Federalist Constitution.  I've not yet read all of the articles, but the three I've read so far are absolutely terrific, in every way.  Bilder focuses on the role that delegates from Indigenous Nations played at the Philadelphia Convention and then afterward in the early days of the Washington Administration.  By looking "without doors," i.e., outside the locked confines of the Convention itself, she demonstrates the genuine, and important, presence of delegates from a number of Indigenous Nations at the Convention and their influence on the drafting of the Constitution.  A lot of potted histories of the Convention, including my own, will have to be rewritten in light of her article.

What I find most fascinating, though, and triggers this post, is the degree to which the article focuses on what I'm now going to start describing as "America's first immigration crisis."  It is derived from the fact that Indigenous Nations rightly feared the incursion on their lands--which they considered their "sovereign territory," not part of the United States of America juridically--by rapacious white settlers.  Many, of course, had understandably supported the British in their own efforts to prevent American secession from the British Empire.  London had announced in 1763 a ban on further settlement west of the Alleghenies by settlers wishing to move west.  Needless to say, this didn't go over very well with the settler community.  The 1619 Project understandably focuses on the reality of white supremacy and American Blacks.  But Bilder brings to bear the importance of understanding the at least equally important reality of Indigenous Nations who were equally suspicious of their treatment at the hands of white would-be hegemons.  

Although none of the Nations seemingly suggested "building a wall" to keep out white settlement, one suspects they would have been receptive to the idea.  (One ever present possibility, of course, was the use of violence against insistent would-be settlers.). One of the many virtues of the article is that it tests many of one's own presuppositions about immigration.  Like many contemporary liberals, I tend toward quite open borders, wishing to welcome not only political refugees fearing persecution (broadly defined), but also persons, like my own ancestors, simply seeking a better life for themselves and their children.  And no one could doubt that America was initially built on a de facto reality of significantly open borders, at least if one were not a "vicious pauper," in the language of Mayor of New York v. Miln (1837).  And, as a political liberal, I tend ultimately to focus on "individual flourishing" and to be suspicious of states and other would-be hegemonic institutions speaking in behalf of maintaining a unified political culture.  

But, in the context of this article, I find myself sympathetic to the wishes of Indigenous Nations to keep out settlers.  In any event, one of the major developments at the Convention, as Bilder demonstrates, was the exclusion of states ("sovereign" or not) from having any role in negotiating with or making policies involving American Indians.  As it turned out, of course, this is part of the Constitution that might be described as a "parchment barrier" with regard to providing genuine protection for the Indigenous Nations that actually trusted the Americans.  One of the provisions of much-discussed Treaty of Hopewell promised that Indigenous Nations would be allowed to send "delegates" to Congress.  This obviously did not happen.  (And even if it had, one can be sure that, as with the District of Columbia and Puerto Rico, they would have had no vote and concomitantly little actual influence).  

One of the obvious differences between American Blacks and members of Indigenous Nations is that most of the former, I am quite confident, sought, like Frederick Douglass, personal autonomy and full membership within the American political community.  For the latter, though, personal autonomy had to be understood within the context of the very particular Nations within whom they were socialized and lived; more to the point, what they wanted to political autonomy in the form of genuine "sovereignty" of their respective Nations.  Although many treaties promised Native Americans the possibility of citizenship, that was not really their primary focus or desire.  Sitting Bull was not striving to become an American.  He wanted to lead an independent Lakota Sioux Nation, a juridical equal to the United States of America (and with no duty to take account of a subordinate entity like Montana or South Dakota).  It is totally unclear to me what the precise implications are for contemporary policy.  Bilder is a careful historian, trying to reconstruct the past as it was understood by the people actually living then.  She is not an "originalist" pretending to generate contemporary understandings based on what occurred over two centuries ago.  Still, it is clear that any "Indian lives matter" movement would inevitably have to take a somewhat different form from "Black lives matter" or most other standard-form social movements.

I doubt that many courses in American constitutional law treat in any depth the reality of Indigenous Nations and their relationship to the United States Constitution.  There may be mention of Marshall's dictum about their being "domestic dependent sovereigns,' but that is usually it.  There's just "not time" to treat the issue in any depth.  There are a bunch of contemporary "Indian rights" cases dealing with tribal autonomy, but, as Justice Thomas altogether accurately suggested, the actual treatment by the Court of tribal "sovereignty" is altogether incoherent and schizophrenic.  Judith Resnik has suggested for some years that "American federalism" ought to be recognized as consisting of three levels--nation, states, and Native American tribes.  More than ever, I think she is quite right, and it is illuminating to apply such an analysis to the analysis of membership rules and immigration.

Illinois Law Review: Biden's First 100 Days

Jason Mazzone

The Illinois Law Review has just published an online symposium on President Biden's First 100 Days in office. Forty contributors offer their assessments of the administration's activities so far and their views of what lies ahead. Lots of good insights across a wide range of issues.