Migration, Mobility & Borders: Welke Notes

WELKE - Law and the Borders of Belonging in the Long Nineteenth Century of the US KEY Nationality/Citizenship Arguments Positives/Negatives of Borders of Belonging Legal shaping understanding/reality Military related/tool Women/Gender dynamics and disability Introduction “Questions of belonging rest at the heart of the modern liberal democratic state … What is their relationship to the polity?” (1) “Though borders of belonging have been fundamental to the human condition throughout history, they are of particular significance in the modern world and especially to the modern liberal democratic state with its assumptions of the sovereign individual, universal equality, and the authority of the role of law.” (1) Thesis/Argument: “This book tracts the borders of belonging at a particular, formative moment in the long history of the development of the modern liberal democratic state: the nineteenth-century establishment and consolidation of the US.” (1) “From the outset, personhood, citizenship, and nation were imagined in able, racialized, and gendered terms: able white men alone were fully embodied legal persons, they were America’s “first citizens”, they were the nation.” (2) This notion is further particularized by the construction of race/gender/borders: “As this suggests, the universal human legal person imagined by liberalism and equally embedded in capitalism was highly particularized … the borders of belonging never escaped their initial imagining. Abled, racialized, and gendered identities—simply assumed at the beginning as the foundation or justification for the granting or denial of personhood and citizenship—came to be self-consciously embraced, marked in law, and manipulated, protecting able white male privilege…” (2) Definition of personhood: “... rests most fundamentally on legal recognition and protection of self-ownership, that is, of a right to one’s person, one’s body, and one’s labor.” (3) Definition of citizenship: 1 “... is often defined in terms of a set of formal rights and obligations … but this fails to capture the reflexive relationship in the liberal state between personhood and citizenship. Citizenship and personhood are interdependent.” (3) “Thinking about citizenship in this way enables us to see how one might formally be a citizen and even enjoy particular rights and share obligations associated with citizenship and yet not enjoy effective citizenship because one is not invested by law with full personhood. Moreover, the extension of citizenship could itself be or become an instrument of authority and subordination.” (4) “What I am suggesting is that we think more generally of how law constructs, that is, lends consequences of elements of individual identity—race, sex, age, ability, religion, birth statute and place of birth, marital Thinking in these terms helps us to keep in mind that elements of individual status, and so on. identity do not have any set meaning. They are given meaning socially, culturally, and, most importantly here, legally. They are thus set apart; they are given borders.” (4) Definition of “borders of belonging”: “The term “borders of belonging” offers a conceptual tool for describing the commonality in the meaning or consequences attached to ability, race, and gender that otherwise appear distinct, different, or particular.” (4) “Belonging, and especially “borders of belonging, both borders and belonging spatial have aand figurative meaning. In a territorial sense, borders refers to the borders of the But in likewise nation. refers to the borders between individuals and the state, and between different levels of governing authority.” (4) “Tracing borders of belonging reveals the ways in which recognition of personhood establishes the preconditions of effective citizenship.” (4) “Part of the value of borders of belonging as a conceptual tool is the power to exposed instances in which seen … in this light, belonging for some is achieved through the subordination or exclusion of others both belonging and borders can be charged negatively as well as positively.” (5) “These examples challenge a reading of borders of belonging in terms simply of a positively charged interior and a negatively charged exterior, a reading that holds out the promise of a progressive, liberal narrative:as the borders of belonging expand, those outside are brought inside. Finally, the concept is productive for helping us visualize ways in which exclusion from borders of belonging, voluntary and involuntary, may offer benefits.” (6) “... with the creation and expansion of the modern liberal state, law has operated as an authoritative discourse, that it fundamentally shapes individual identity and rights, relationships among individuals, and the relationship of the individual to the state. And while the particulars have differed over time and space, borders of belonging have been integral to the modern liberal order.” (6) 2 “We are less accustomed to thinking of ability and disability as equally critical historically in shaping privilege and subordination. I argue here that ability, no less than race and gender, was fundamental to personhood and citizenship.” (6) “Just as in thinking about sex, skin color, and heredity, it is not the characteristic, but the legal significance, the legal disability attached to the characteristic that must be denaturalized and historized.” (7) Women are assumed as being less capable/inherently: “White men were assumed to have capacity, to be able, unless proven otherwise; for women and racialized others and the begging assumption was the reverse.” (7) “Think also of the justifications for slavery based on Africans’ asserted mental inferiority and physical adeptness for field labor.” (8) “What I wish for the reader to see is that law placed a fundamental part in creating shared identity, that it did so by investing elements of identity, that it did so by investing elements of identity with legal consequences of inclusion and privilege or exclusion and subordination and that the inclusion and privilege of some, in part, was defined by and depended on the exclusion, and subordination of others.” (8) “Each sphere of capacity was the produce of law and each reinforced the other.” (9) “... seeing how law denied personhood and citizenship requires looking across differences among women, among people of different racial backgrounds, among people with a range of disabilities.” (9) “Yet, to acknowledge that enslavement, race, marital status, citizenship, and ableness shaped women’s legal status should not let us overlook that women by virtue of sex shared a set of legal disabilities and that men’s independence rested on women’s legally structured dependence.” (9) What 3 elements impact/define the borders of belonging: “I highlight three characteristics—ability (mental and physical ableness), race (white), and gender (male) - as defining the borders of belonging in America’s long nineteenth century. Each of the three is deeply rooted not just in US history, but in the political theory of liberalism and republicanism and the historical contexts in which they were articulated.” (11) Welke argues that religion does not define who belongs/citizen in the US as much as able/gender/race impacts those borders of belonging “While many Americans assumed that the United States was not simply a white nation, but a Protestant one, and Catholics Jews, Mormons, and other religious minorities faced hostility, exclusion, and violence 3 at many points in the century, Protestantism, it seems to me, was not fundamental to individual legal capacity, to legal personhood, in that ability, race, and gender were.” (11) Welke also argues that class is also different and doesn’t define like able/gender/race does “Like religion, class also deeply divided Americans, underlay violent clashes, and was the basis for subordinating many Americans … Yet, like religion, class seems to me different from ability, race, and gender. One can identify certain groups defined in some particulars as something less than free men in the law, but it is important to recognize that that status was connected to occupation or the complete failure of or refusal to pursue labor; it was not a matter of personal identity.” (12) “Privilege and subordination were never complete; the boundaries did not always hold; belonging was not all or nothing; resistance mattered physically and in fact … Yet acknowledging each of these points, one can nevertheless trace a fundamental continuity of legal personhood and citizenship imagined in abled, racialized, and gendered terms, thus privileging ableness, whiteness, and manhood, privilege that depended on subordinating disabled persons, racialized others, and women.” (14-15) Chapter 1 Summary: “... traces what often remains least examined: the capacities that law gave able white men on the basis of their ability, race, and gender as persons and as citizens. Law accorded able white men ownership of self, citizenship, and likewise gave them a superior claim to the land. In part, men’s independence rested on the legally forced dependence, subjection, ownership, and exclusion of others. In this chapter, I trace both: privilege granted to able white men by law as persons and as citizens and the privilege they grained through the legally enforced dependence, subjection, ownership, and exclusion of others.” (15) Chapter 2 Summary: “... shifts perspective to focus on those excluded by the borders of belonging. The chapter focuses on two key elements of the consequences of laws’ imaging of ‘people’ as able, white, and male: the submergence of individual identity for everyone else and the daily indignities of being ‘subjects of’ or ‘other’ in law.” (16) “The picture Chapters 1 and 2 present is one of continuity in the borders of belonging across the long nineteenth century. But this picture raises fundamental questions: Why? How? Despite what?” (16) Chapter 3 Summary: “... the chapter turns to tracing the legal and theoretical underpinnings of law’s imagining of personhood and citizenship in abled, racialized, and gendered terms and considers how each challenge to the borders of belonging was parried, so that while particulars changed, the abled, racialized, and gendered foundations of the borders of belonging remained intact.” (16) 4 → “significance of the structure of the American legal system and those who made, interpreted, and enforced the law in supporting the borders of belonging.” (16) “... to seek patterns to capture the multiplicity of sites and levels within law that gave shape to legal personhood, citizenship, and the borders of belonging in the long nineteenth century. It requires recognition that law operates affirmatively and negatively, by inclusion and exclusion, but expression and omission, and that extralegal assumptions, norms, and practices take shape in the shadow of the law.” (17) Chapter 1 Introduction: “The space of legal privilege all too often remains unmarked altogether or is incompletely sketched .. able white men understood, embraced, and defended their privilege and others’ subordination … Their privilege was both positively marked in law and constructed through the subordination, ownership, marginalization, and exclusion of disabled persons, racialized others, and women … Collectively, personhood, citizenship, and their claim to the land allowed able white men to see themselves as the embodiment of the nation not simply at the founding, but across the long nineteenth century.” (21) Self-Ownership and Citizenship: ● John Locke and the founding framers understood patriarchy/power of a parliament: ○ “Like Locke and his contemporaries, the leaders of the American Revolution were able, white, and male; they were propertied in both senses that Locke understood the term: they were self-owning individuals, and they held landed wealth.” (22) ○ Underlying vibes from English common law ○ “From the outset of the new republic then, law privileged able white men’s ownership of self, according full personhood and belonging only to those who were able, white, and male.” (23) ● “As the examples of husbands and masters suggest, men’s independence rested from the outset on the legally structured dependence and subjection of others.” (26) ● “Men’s shared legal status as heads of families bridged deep economic differences.” (29) → not based in economics and differences of class, the gender-family-control divide isn’t ● “In a nation fundamentally premised on independence, it is a telling contradiction that women’s legally enforced dependence under coverture was not part of the constitutional debates. It is equally telling that slavery was preserved, even given constitutional protection, despite having been so debated.” (29) 5 ● White, able, men avoiding work and “assigning it to others”: ○ “... as unfree or not labor at all and then putting that labor at the disposal of white men.” (32) ○ “Law privileged the labor of mentally and physically able men in part by marking the boundaries of free labor.” (33) ● Military Service and Citizenship: ○ “... the US was understood to be a republic of free able-bodied white men was fostered from the outset by the connection between citizenship and military service.” (35) ○ Federal Milita Act of 1792 - “free able-bodied white males citizens” (35) ○ “Military service offered immigrant men a fast track to citizenship … compensation for military service also took the form of monetary payments and a stake in the land.” (3536) ○ “The sense of entitlement and the scale of provision increased with each passing conflict” (36) ○ Also extended citizenship to wife and children (37) ● Assimilation of minority groups: ○ “The racial threat … was compounded by language and religious differences. It was simply inconceivable to most white Americans that the people of Puerto Rico or the Philippines could ever become assimilated, and the risk to American identity, in any case, seemed simply too great. Just as it had early in the nineteenth century in addressing the conundrum of Native Americans” (38) Laying Claim to the Land and the Space of the Nation: ● White men dispossession of Indian land, sanctioned by the USG, in 1823 American Indians were ruled by the Supreme Court to not have a right to land in Lessee v. McIntosh and “... Europeans held absolute right to the land, rights which in turn the United States had acquired from the British.” (41) ● “Immigration restriction, in this sense, like institutionalization, marriage prohibitions, and, ultimately, compulsory sterilization laws move to protect the nation’s generic future ‘in order prevent’ in Justice Hole’s memorable words from Buck v. Bell (1927), ‘our being swamped be incompetence.” (59-60) Chapter 2 Introduction: “One of the most fundamental and far-reaching consequences of the law’s imagine of ‘people’ as able, white, and male was the impoverishment of individual identity for everyone else … the borders of belonging meant being denied rights to property in oneself or to property more generally .. the abled, racialized, and gendered borders of belonging were assured through administrative regimes that exercised control, authority, or oversight over disabled persons, racialized others, and women.” (63) 6 Subject Identities: ● “... from the beginning of the new republic, women were constrained to enjoy the rights and protections of self-ownership and citizenship through men …. Even women’s citizenship was subject to their husbands’ and defined not in terms of individual obligation to the nation, but it terms of obligation to one’s husband.” (64-65) ○ Lack of that individual autonomy but as well a lack of being a part of the nation ● Duality of standards, for white, able women: ○ “Whereas laws criminalizing abortion and birth control imposed motherhood on some women, other laws proscribing marriage, imposing institutionalism, and legalizing sterilization moved to protect the nation’s gene pool from further taint by limiting reproduction of the ‘unfit’ “ (68) Daily Indignities, Daily Lives: Chapter 3 Introduction: “Privilege built upon exclusion, marginalization, and subordination of others is fragile; it produces individual and collective resistance; it requires work to maintain … As significantly, the resistance of those excluded from full personhood, citizenship, and nation rendered legible and exposed the flaw at the foundation of American liberalism: their own subjection and exclusion.” (95) In Pursuit of Right: ● Resistance, “Most actions in pursuit of right remain invisible to us; they were the ‘everyday resistances’, the ‘weapons of the weak’. (97) ● “Perhaps the most striking commonality across time of individual and collective resistance was the consistency with which pursuit of right took form in law.” (102) In Defense of the Borders of Belonging: ● It was not great for all white, abled men. Still some impacts and differentiation depending on class and economics for those distinct groupings. ● “Massive white migration ‘west’ in the 1820s-1830s brought Americans into direct conflict with Indian tribes at the same moment that the destabilizing impact of industrialization swept growing numbers of white men into a subordinate wage-earning class.” (111) ● “Citizens all perhaps, but divided, as Chrsitphers Tomlins argues, by law and lived experience, into the ‘asymmetrical realm of ‘masters’ and ‘servants’” ○ BUT DOES THIS NOT MEAN THAT ECONOMICS CAN DEFINE YOUR SOCIAL IDENTITY AND THE BORDERS OF BELONGING 7 ● “Even if the demands for freedom, equality, and full citizenship could have been limited to freedmen and freedwomen and to white women, they represented a fundamental threat to white men’s status.” (115) ● “Justice Holmes’s infamous words powerfully expressed the perceived threat , the right of the able to protect themselves and their nation against it, and, finally, how easily the able arrogated the power to define the ‘lesser sacrifices’ of those they deemed ‘unfit’.” (119) The Lawmakers: ● “The formal structure of lawmaking in turn produced a world of white manly interaction that sealed the bonds of men’s authority and loyalties.” (120) ● “From early in the nineteenth century, universal white male suffrage not only cast white men as a group as lawmakers, but also thereby bridged fundamental economic inequalities that otherwise might have divided men.” (122) The Masks of the Law: ● “Where men’s status as lawmakers protected the borders of belonging, the structure of law masked the breadth and depth of able white male privilege as well as the subordination of [others].” (130-131) ● “Courts and lawmakers dressed subordination in the language of privilege and protection.” (136) Conclusion “The founding assumptions that imagined legal personhood and, from it, citizenship and a nation as able, white, and male in America’s long nineteenth century fundamentally shaped the development of the American legal and constitutional order for the twentieth century and raise deeper questions regarding the relationship between borders of belonging, the liberal state, and modernity.” (141) “The mobilization of law in defense of the able white male republic in the nineteenth century fostered a culture of identity politics that would define the twentieth century.” (141) “The US Supreme Court’s narrow, nugatory interpretation of the 13th, 14th, and 15th Amendments thwarted a politics of human rights.” (141) “Equally fundamental, the construction of the modern administrative state was ineluctably linked to defense of abled, racialized, and gendered borders of belonging.” (144) “The borders of belonging, as I argue here, fundamentally shaped industrial capitalism. 19th century debates about corporate capital and its personhood, after all, were pitched in the language of liberalism and its inclusions and exclusions.” (146) 8 “The administrative apparatuses and legal rationales mobilized to safeguard the borders of belonging in the 19th century lent themselves to the policing of new categories of belonging in the 20th century, most importantly sexuality.” (150-151) “However much we may want to believe in the progressive narrative of personhood and citizenship that has long been a part of America’s national myth, it is hard to deny the work of privilege and subjection borders of belonging - in the building and work of the modern American state.” (152) 9