Cthulhu and the Constitution

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Evan D. Bernick

Howard Philips Lovecraft was born in 1892, nineteen years after the enactment of the Comstock Act and six years before the Supreme Court affirmed birthright citizenship as a constitutional guarantee. He dreamed of monsters and brought them to life with language that has not lost its power to petrify. The best-known entity in Lovecraft’s bestiary is Cthulhu, a mountainous “contradiction[] of all matter, force, and cosmic order.” Cthulhu and co. are ancient, unknowable, and unkillable. To borrow from Lovecraft’s The Dunwich Horror, “The Old Ones were, the Old Ones are, and the Old Ones shall be.”

One of the most penetrating engagements with Lovecraft’s work and legacy, Alan Moore’s Providence, imagines Lovecraft as the literary herald of actually existing cosmic horrors. But let’s be real: Lovecraft’s monsters are fictional, and their origins are discreditable. Lovecraft was racist, sexist, and xenophobic and he nurtured obsessive fears of contamination of the nation’s sexual purity—especially through immigration. These prejudices and phobias inspired his monsters and his descriptions of their acolytes.

The Trump Administration is committed to a monstrous constitutional program that is informed by racism, sexism, and xenophobia. One of the major components of that program involves attacks on birthright citizenship. The other involves attacks on reproductive freedom. These attacks have late-nineteenth-century analogs and depend upon late-nineteenth century instruments and ideas. Studying how movements sapped these monstrosities of their power can equip us to defeat them once again.

The Comstock Act was at once a remarkable piece of legislation and of a piece with a raft of contemporary public policy. It was remarkable in the breadth of its language—as Reva Siegel and Mary Ziegler detail, it “produc[ed] some of the first regulation of birth control and expand[ed] the category of the obscene to include articles as well as speech that would incite illicit sex.” But its conflation of contraception and abortion was unremarkable in the context of an “antivice movement [which] tended to frame contraception and abortion as part of a singular threat to sexual purity.” And the Act’s enforcement was shaped by fears of contamination through immigration that inspired other statutes.

The Comstock Act was also contested ground. It was inspired by a faction that sought to create through law a popular consensus around vice which did not exist in 1873. Contemporary efforts to “revive” Comstock to target medication abortion may claim the authority of history and tradition, but the claim is unfounded. The law on the ground never matched the antivice faction’s hopes for it. Those who selectively quote Comstock’s abortion language in the hopes of securing an unpopular ban on mailing abortion-related articles without convincing a contemporary legislative majority are trying to realize the disappointed dreams of puritans past. 

The Act also catalyzed popular resistance and thence constitutional change. Conscience-based lawbreaking turned courtrooms into democratic agons in which “Comstockery” was put on trial. Birth-control proponents like Mary Ware Dennett and Margaret Sanger situated the censorship of sex-related information in the context of broader censorship of dissident political speech during World War I. The Executive Committee of the ACLU expanded its conception of civil liberties to support Dennett, and Judge Learned Hand’s pathbreaking decision that Dennett’s pamphlet, The Sex Side of Life, was not obscene, expresses what Laura Weinreib calls “popular and judicial acceptance of a negative vision of civil liberties in America—one that incorporated nonpolitical speech and embraced individual autonomy.”

This is not to deny that the Comstock Act was harmful. It is to highlight the possibility of transformative legal change under conditions which the Trump Administration appears determined to recreate. In this regard, Siegel and Ziegler’s work should be situated alongside Daniel Farbman’s penetrating examination of “resistance lawyering” against the Fugitive Slave Act of 1850. Here as there, movement law made these instruments of domination less harmful than they might have been and ultimately built political power that overcame them.

I’ve said that Comstock Act enforcement was focused on immigrants. This focus became more pronounced over time, in tandem with increases in immigration, new statutes restricting the latter, and executive-branch backsliding concerning the meaning of the Fourteenth Amendment’s Citizenship Clause. That Clause reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

There was in 1868 nothing mysterious about this language. A person born in the United States was “subject to the jurisdiction” of the United States if they were, in the ordinary course of things, obligated to obey the lawmaking, executive, and adjudicative power of the United States. There were well-defined exceptions to this general rule. Common to all exceptions is the presence of a competing sovereign which provides insulation from U.S. power.

The common-law rule of jus soli was taken up by abolitionist movement lawyers who saw birthright citizenship as a means of ensuring the citizenship of enslaved people and their children. Reconstruction Republicans adopted it from abolitionists. Fully nullifying Dred Scott v. Sandford’s categorical denial of the possibility of Black citizenship required a straightforward rule that did not depend—as Dred Scott itself did—on reciprocal consent on the part of the would-be citizen and the polity. Obviously, neither enslaved people nor their children ever consented to be subjected to U.S. power.

Carol Nackenoff and Julie Novkov’s exhaustive account of United States v. Wong Kim Ark maps and contextualizes post-ratification changes in executive-branch interpretation of the Fourteenth Amendment. These changes were part of a broader political-economic reaction to the Burlingame Treaty with China, which granted Chinese nationals unrestricted immigration to America. When Solicitor General Holmes Conrad argued that Wong Kim Ark—a 22-year-old laborer born of Chinese nationals in San Francisco and refused re-entrance in 1895 after briefly visiting China—was not a citizen of the United States, his arguments rested on premises of cultural difference that were widely shared.

But the unthinkable happened. A 6-2 Court rejected the arguments that birthright citizenship was a “feudal and monarchical practice” and that granting citizenship to the children of Chinese nationals would expose citizenship to the “corrupting taint of debasing alienage.” It seems stunning, coming from a Court that upheld the constitutionality of the Chinese Exclusion Act and proclaimed separate-but-equal the law of the land. Just how was this horrific position defeated?

Kim Ark’s attorney at the district court level, Thomas Riordan, was a movement lawyer whose litigation efforts throughout the 1880s and 1890s were supported by and solidarity with San Francisco’s Chinese community. Chinese mutual aid societies, known as huiguan, pooled funds which were used to keep Riordan and litigators on retainer. Chinese litigants brought thousands of habeas corpus cases challenging the detention of Chinese nationals following the enactment of the exclusion laws and prevailed in most of them.

But Riordan wasn’t the primary advocate before the Supreme Court. And neither his brief nor that of Maxwell Evarts and J. Hubley Ashton reads as the stuff of rousing, agonistic constitutionalism in the service of racially egalitarian citizenship. These advocates kept it relatively simple, contending that the Fourteenth Amendment declared existing law and that existing law guaranteed birthright citizenship. They framed the case, not as being about “the rights of the Chinese race” but about those of all children “born in this country …. without regard to the country from which their parents came.” Bethany Berger suggests that this framing may have worked precisely because it made plain that fifteen million white native-born United States residents—eagerly courted by political parties—would be denied access to birthright citizenship, should the government prevail.

The year is 2025, not 1892. Yet we are talking about the Comstock Act and attacks on birthright citizenship because racism, sexism, and xenophobia generated legal instruments and ideas in the late-nineteenth century that are being taken up in the early twenty-first. Lovecraft’s monsters were fictional, but the hateful superstitions which inspired them are very real and sufficiently old, durable, and destructive that they might seem—like the Old Ones—to be beyond our comprehension or contestation.

Do not believe it. There is nothing new here, nothing that we cannot understand, nothing so intimidating as great Cthulhu. There are no monsters—only people who are afraid of them. Monstrous institutions and ideas can be, have been, hindered, hamstrung, killed by movements through a variety of modes, from direct action to litigation to confounding tactical combinations that put reactionaries in fear of what they cannot understand or control. They were and they are. But they shall not be. 

Evan D. Bernick is an Associate Professor of Law at Northern Illinois University College of Law. You can reach him by e-mail at ebernick@niu.edu.