Jill Lepore on the Construction of American Citizenship (ep. 25)

December 6, 2018
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Almost 250 years after the adoption of the Declaration of the Independence, debates about founding principles like equality, rights, and representation are as fraught as ever. Jill Lepore, a Harvard history professor and New Yorker staff writer, discusses her latest book, “These Truths,” an ambitious exploration of the evolution of our nation from its earliest days.

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LEE ROWLAND

[00:04] I'm Lee Rowland and from the ACLU, this is At Liberty: the podcast where we discuss today's most pressing civil rights and civil liberties topics. Today, the historian Jill Lepore on the nature of our democracy.

Our Declaration of Independence confidently asserts that the American ideals of political equality, God given rights and the sovereign people are self-evident. But two hundred and fifty years later, debates about what it means to be politically equal, what rights we’re born with and who exactly is part of “We The People” are as fraught as ever. Historian Jill Lepore recently released a magisterial study of American history called “These Truths,” which tells the story of how our nation has evolved from its origins. Jill is a professor of American history at Harvard, a staff writer at The New Yorker, and a prolific thinker and writer on history and contemporary politics. Jill, thank you so much for joining us.

JILL LEPORE
Sure, thanks for having me.

LEE
As I mentioned this is a sweeping book on American history. It would be impossible to discuss all the ideas it covers in one interview. So I'd love to pull out two threads that I think have dominated American politics since the beginning: the idea of who gets to be an American and how we grapple with representation and voting in a democracy.

JILL
Okay.

LEE
Let's start with the idea of who gets to be an American. Americans are fond of saying that we're a nation of immigrants. Have we always thought of ourselves that way? Can we start with, say, our founders? Did they consider themselves immigrants?

JILL
[01:48] Yeah, they did consider themselves immigrants, but they also didn't really talk about nationhood at the time. Nationhood is an idea that reaches its maturity in the 19th century, and so does citizenship. So, they're not really quite talking in the terms that we talk about today. And it — I don't mean to sort of be semantic about it but it does make a difference, how people in the 18th century talk about what it means to found the United States. And when they are talking about “subject peoples,” or “we the people,” what it is that they mean by those terms is actually different than what we mean by those terms. And that's one of the reasons to study the past, right: We want to watch how things change and see who's in control of those changes.

But with regard to immigration… It’s just actually, from a historical vantage, like, “immigration was an issue” — like it, that doesn't make any sense as an 18th century phrase to say, right? It is the case that the people who are at the Constitutional Convention, say, do talk about whether the Constitution guarantees rights — including the right to vote, or right to hold an elected office — to people who are naturalized citizens. That's a question that finds its way into the language of the Constitution, so those terms are bandied about in some fashion at the Constitutional Convention. So James Wilson, who is a Pennsylvania delegate, has come to United States from Scotland. And when there's a question about, say, whether members of Congress have to be native born — because they decided that the president, people running for president have to be native born — Wilson was like, “Look, I'm not going to be part of a government where I can't even be a member of Congress.” And that's why we don't have a native born requirement for people to run for Congress. So it’s not that those things aren’t discussed but they are discussed on the whole in different ways than we talk about them today.

LEE
What do you make of these two levels of citizenship qualification? That they had some drafters who were born abroad and said, “Hey, I'd like to be a member of Congress,” maybe, but the consensus was to ensure that the president of our young republic was born here. What does that say their concept of nationhood?

JILL
[03:51] Yeah, that’s a late breaking addition — the native born subject clause about eligibility for the presidency. John Jay makes that suggestion, I think, in a letter to Washington, and it just kind of gets plopped in there. The reasoning behind it is so that the president isn't in the thrall of a foreign power, right? That's why Congress adopts it. It seems like a pretty limited investment in the idea of any kind of restriction with regard to citizenship status — not citizenship status but native versus naturalized citizens.

And there is not actually a debate about it. And if there wasn't a debate about it, we don't really know what people were thinking at the time. That's the trickiness of trying to devise our current set of political ideas out of what are fairly circumscribed conversations at the Constitutional Convention. Like, things that were uncontroversial, we just don't have, that didn't really require a lot of justification. It would have been a good idea if there'd been a conversation about what that phrase even means — what is a native born citizen? Like, in a monarchy you understand what a native born subject is. That comes out of English common law.

What a native born subject is is someone who's born in the realm of the king or the queen, and that idea doesn't have a lot of logical coherence in a republic because the whole metaphor in a monarchy is that the king is essentially your father. There's the whole logic of paternity and nativity that is about birth, and the monarch as the father of the people. And if you chuck that out then what does birth mean becomes much more complicated, and that's the thing that they don't, you know, when Jay writes that letter to Washington, there's not a big conversation about that at the time. There's obviously been many conversations about it since then, most especially during the debates around the 14th Amendment in the 1860s. But in the 1780s, there’s not a big discussion about what a native born citizen means.

LEE
[05:45] So you you kind of scoffed at the idea that to an 18th- century brain immigration would have had the same politicized context as for someone today. When did that start changing? When did immigration become the political issue we now think of it as?

JILL
It's sort of frustrating as a historian that so many things seem timeless to us that of course are not timeless at all. And it's sort of just worth pausing over and thinking about: okay in the 18th century, there are no determined, certain borders to most parts of what declares itself to be the United States. That even the borders between the states are actually — that is, the 13 original states — are subject to a whole lot of quibbling. I mean, that's one of the reasons the Articles of Confederation are a problem — they can't really negotiate boundary disputes. So there are certainly no borders to the United States where there is any kind of immigration regime enforced, even if there were immigration laws — which there are not before 1881, there are no federal immigration laws — there's no apparatus to enforce them there's no modern administrative state. There are no passports in the 18th century like that! So what we think of as recognizable mechanisms by which a nation state patrols its borders, they’re modern.

LEE
Can I ask you as a practical matter what did immigration look like before 1881 when there were no rules and there was no centralized enforcement mechanism?

JILL
Well, you show up! And you go and look for work and you have no identification. No one has any identification. There is no way to know who you are, who you say you are. People come with letters of reference if you're an especially prominent person. Like Thomas Paine famously shows up in Pennsylvania in 1774. He kind of washes up, he's gotten sick on board. And no one knows who he is or what he’s there for and he’s pretty much in tatters. But he has a letter in his pocket of recommendation from Benjamin Franklin whom he had met in London. And so he manages to get a job at a newspaper. But yeah, you just, kind of wash up on the shores. It’s sort of what, what everybody does.

[07:55] So you would ask when did a modern immigration regime begin? So much of the work of the 19th century involves — not just in the United States but in Europe as well — thinking about how nation states gain their authority, and this sort of mutually constitutive process between what a citizen is and what nations are and how nations guarantee rights to citizens — the sort of emergence of liberal nationalism over the course of the 19th century. In the United States, that's actually maybe a little bit more kind of harem scarem and messy than it is in Europe, because the United States is in such flux. I mean the country is growing at such a tremendous rate. Nowhere else in the world, in the history of the world, is the population growing as fast as the population of the United States grows in the 19th century. So there is extraordinary flux, and then the whole nature of the political system is undergoing this tremendous revolution.

So in the 1820s and 1830s, American politics is democratized, when all white men can vote —which doesn't happen anywhere else in the world — whether you're poor, whether you pay taxes, whether you can read or write, whether you're an immigrant everybody who’s a white man can vote. And that's an extraordinary convulsion in American politics. But still, people don't know what it means to be a citizen. I tell the story in the book about in the 1860s, the U.S. attorney general — charges his staff to sort of go through every federal law and the Constitution and all Supreme Court decisions to try to find a definition of the word “citizen” and they can't find one. Like there just is no definition of what a citizen is. And that work, of identifying what a citizen is and establishing requirements for citizenship, that's largely the work of reconstruction.

LEE
[09:39] I can see the clear appeal for white men to come to America -- they’d be able to vote. Who else is coming to America during this period of time?

JILL
For most of American history the majority of European migrants come in families or in family groups, or even through the sort of classical, late 19th century chain migration, essentially whole towns moving family-by-family across the Atlantic. With regard to the forced migration of Africans, you know, which begins very, very early — that trade that starts really in the 1440s, and then begins you know stretching across the Atlantic by the early 16th century. The forced African migrants are both women and men and they're all... including children. They don't generally come as families, in fact the whole work of that trade is separating people from their families.

An exception would be Chinese immigrants in the 19th century is chiefly men. And a lot of Mexican migration in the late 19th and early 20th centuries is migrant workers, you know, migrant farm workers and other kinds of migrant workers. It tends to be predominantly men.

LEE
I'm glad you mentioned Chinese immigrants in particular because one of the things that stands out as kind of a dark mark in our immigration history is the Chinese Exclusion Act. And that seems so starkly different as a view of immigration than say just decades before when people were openly pouring in. Can you tell us about the period in history where immigration became such a politicized issue?

JILL
Yeah, so there's no federal law restricting immigration before 1881. And nor again as I’ve said is there any possible conceivable federal apparatus that could have enforced such a restriction.

LEE
Right.

JILL
And that law from the 1880s is the Chinese Exclusion Act. And it happens to take place at the very time that the first Jim Crow laws are passed, the laws that are segregating black and white populations in what comes to be called the Jim Crow South, the former Confederacy.

[11:42] But those things both follow on the developments of the 1860s — of the Reconstruction period — the 14th and 15th Amendment, and in particular the 14th Amendment, which establishes birthright citizenship, which has the effect of meaning that the children of Chinese immigrants are American citizens. And that's one of the arguments against it — so a lot of people in Congress who are opposed to Chinese immigration get very worked up about the 14th Amendment, because of the birthright citizenship clause — not because of what it means for freedmen and women, for the former slaves, but because of what it means for Chinese immigrants. And so the Chinese Exclusion Act is a sort of backlash against the 14th Amendment in some ways, right? And of course so was Jim Crow — the whole regime of Jim Crow is a rejection of the 14th and 15th Amendments and the constitutional guarantees to citizens and persons of due process and equal protection and the right to vote.

That...So by the 1880s, you have this tremendous political reaction to the liberal promises of the Reconstruction period. Although it is not the case that that inaugurates an era of immigration restriction. I mean it inaugurates the era of Jim Crow and the tragedy and atrocity of terrorism — essentially terrorism — across the former Confederacy. And it also inaugurates Chinese exclusion, which later also attaches to Japanese immigrants as well under different terms. But immigration from Europe is still entirely open for all those decades — the 1880s, 1890s, 1910s. The modern regime of immigration restriction is the 1924 National Origins Act which establishes limitations of immigration from Europe and is itself a kind of reaction against Progressive-era reform. It's a reaction against mass democracy.

So if you pull back from these individual moments to look for patterns across the centuries they'll be the ones that won't surprise you, right: That extensions of rights to new populations and inclusion of a broader group of people under the rubric of “the people” will elicit a response, and a set of reactions of different sorts, that aim to restrict who the people are.

LEE
[13:52] You've written a fair bit about the link between immigration and populism and nationalism. I'm wondering if you see our moment in time as fitting into this cycle you're talking about, and if so how?

JILL
Yeah although I guess, when you pull back from it, maybe it looks a little bit different than a kind of checkerboard, or some sort of alternating oscillation of kind of a political machine. And things appear to be more born of the same moment, but experienced sequentially. So I can’t remember, I wrote an essay a couple years ago maybe about dystopian fiction. And, what I wrote about was how our current political dystopianism is really of a piece with our fairly recent political utopianism, and that dystopianism and utopianism — like nationalism versus globalism, say — are actually, they’re sort of more like thunder and lightning, like they happened at the same time, but you see one first and then you hear the other later. You know the speed of utopianism is a little faster than the speed of dystopianism, like the difference between light and sound. So I'm not sure that I think that this moment is a new thing so much as it is just a later experience of this somewhat recent thing. I mean if you think about the utopianism of the Obama campaign — the 2008 campaign, the sort of “Yes We Can” utopianism of that — and there was that that whole claptrap about digital democracy and the democratizing promise of these new technologies. And then you think about our contemporary moment, and the sort of “no we can't” dystopianism of it, and the sense that all technology is anti-democratic and pro-nationalist. I think we tend to fail to see that those two moments were actually one moment.

LEE
A lot of interested heads nodding in the studio during that answer, Jill.

JILL
Well you know this is why you write a long history, is to sort of say say, well yeah we kind of float from moment to moment, and you read a tweet, and you read half a page of an article on The Guardian, and then you go watch Fox News and then you... But it's very hard to put any vantage on anything. But historians are here to sort of say, “Alright, press pause. Rewind/ Rewind some more. Rewind again, and then play the whole thing in very fast speed and what do you see?” And I think then the thunder and lightning happen at the same time.

LEE
Right. I think it's just human nature to crave causation, right, to look for causation wherever there's correlation? Because we'd like answers to things, right? So I think we have a bias in favor of that that maybe you help correct.

JILL
[16:26] Oh yeah. No we absolutely have that. And you know historians don't have all the answers but I think we generally do look at things from a slightly different vantage, and that is always helpful.

LEE
So I’d love to turn to the second thread I'd love to pull out of your book, which is the concept of representation. How did the drafters begin to approach what democratic representation would look like in this massive new republic?

JILL
Yeah, one of the things I'm trying to sort of remind the reader about our experiment in self-government is that it is quantitative. It depends on this very new science of demography. Our republicis is really a kind of mathematical solution to the political problem of self-government. This is how we end up with the three fifths clause, right? This whole thing is mathematical. Our representation will be, you know, like one member of Congress for every 30,000 — or maybe it will be 40,000 — people in the population, which requires a count, which is why we have a census. And then that's what we're doing because we cannot figure out how much wealth people have, because it's too hard to calculate the wealth of the land or whatever measure you would have for wealth. Well it’s easier to count people, so we’ll represent people. And then once you represent people, then you're sort of stuck with this question of, what about people who we consider to be not people, but property? And then you end up with this insanity: the atrocity of the three-fifths clause.

LEE
Right. The three fifths clause is the notorious fraction in our constitution that assigned slaves the weight of three fifths of a human for purposes of political apportionment. Where did that actual fraction come from?

JILL
The specific fraction is pretty close to arbitrary, but it comes from a debate during the proposals to revise the Articles of Confederation or at least… So the Articles of Confederation are drafted and then they're not ratified for years and years and years because people can't agree about a bunch of things in them, one of which is the boundaries between the states, but another of which is how taxation would ever work. So the federal government cannot impose taxes, that's why we need the Constitution. But there is the question of repaying the debt. So the United States borrows a lot of money — especially from France but from other people too — to wage the war. And then there's the question of how to pay repay the debt. Well, basically, nobody's paying — the states are refusing to pay. But the question is, well how could we apportion the different states’ burden for repaying the debt. And well, will that be done by how much land is in each state? Well the big states are like no no no no no. Well do we do it by how much population we have in each state? Well they don't know many people they have, anyway, but if they could, what would they do about the enslaved population? And so Madison during one of these debates that goes nowhere and is never resolved, says, “Well what if we counted enslaved people as three-fifths of a person for purposes of proportionizing the debt?” And so that just is kind of a throwaway remark. But during the debate during the Constitutional Convention over representation, when they come to a political impasse between the North and the South. Madison is like, well remember that three-fifths thing I said a while ago? Like a few year ago? We could use that.

LEE
My god.

JILL
And then that becomes the political compromise. But that's the political compromise on which the Electoral College also rests, which is itself a kind of weird mix of a numerical and a non-numerical solution to the problem of self-government. So I think what's so, you know it was fun rereading those debates and trying to figure out like, what is the part that people need to know that people don't know? And most of us don't know most of this stuff, right?

[12:58] But we're stuck trying to have a reasonable conversation, a kind of fair minded open minded conversation, about say the Electoral College, or about voting reform, or about forms of identification as required for voting. And all these things have pretty intricate histories, where there is actually a good deal to be learned from why these things were set up in the first place. And that’s, you know, one of the reasons I wrote the book — which I say in the book that I think of it as a kind of old fashioned civics book, and I really mean that. I get a lot of e-mail from younger readers of my New Yorker articles saying, like, “Oh my gosh I didn't know the party system wasn't in the Constitution, you mean we could just get rid of the parties, like that wouldn't be unconstitutional?” Well yeah, you could. It’s good to pull out the story and figure out — why do we have parties? And why do we only have two? And what have parties done by way of improving democratic governance, and what have they maybe not done?

LEE
Is the right to vote enshrined in our Constitution?

JILL
Yes, although how to vote is left up entirely to the states and that includes requirements, eligibility requirements. So in the states constitutions establish who can vote, and they have completely incommensurate rules. So early on, I think it's in New Jersey, women can actually vote in New Jersey, until they kind of close that loophole like in about 1804.

LEE
Wow.

JILL
In a lot of early state constitutions free black men can vote, and then that is closed up. So there's quite a bit of political experimentation. And what happens with the right to vote, the reason the right to vote gets expanded early on is that the original 13 states, most of them do have some form of property requirement. You have to own a certain amount of real estate, or pay a certain amount in taxes in order to vote, in addition to being a free man. But when new states enter the Union — you know Kentucky and etc — their state constitutions dispense with the property requirement, because they just have a bunch of people who just moved into the state, and they're just trying to begin to make a living. And they also have a little bit more democratic zeal in the west. And so the west — that being the west at the time — exerts this incredible influence on the east, because then people back east are like, wait a minute, if I could vote in Kentucky why can't I vote in Massachusetts? And so Massachusetts has a new, a second state constitutional convention. They come up with a new constitution, so that eventually all the eastern states revise their constitutions and change the voting eligibility requirements. But no, that’s, that's handled by the states.

LEE
[22:24] You mentioned that women kind of snuck in until 1804 in New Jersey. Was there any serious attempt to include women in the drafting? Where did they land on the spectrum of property to people to citizens?

JILL
Well, the framers pretty much follow, in this regard, the political philosophy of John Locke. So for John Locke, you know, who writes in the two treatises on government On The Consent Of The Governed — that all men are created equal in the sort of state of nature and in order for their, to protect their safety and especially protect their property, they agreed to be governed. And that's where government comes from and that all government must follow that model. And that's why the framers write a constitution that the people will ratify.

But for Locke that was all men. And when men enter civil society with other men they erect a government. But in their families men remain the rulers. So a man is over his wife and his children and his servants and indeed his slaves what a king is to his subjects — and that is essentially a despot and has complete and arbitrary authority. And for Locke that is the law of nature. And civil law is what happens between men. And so no, at the framing — although there are plenty of women who are writing essays and some even giving speeches saying, ok, that's nuts that doesn’t make any sense, how do women only exist in the family but not in public like that, that's just a weird artificial idea, and that Locke was wrong. And in fact when Locke is saying that in the 17th century women are saying he’s wrong.

But that is the idea that the framers hold, right. So when they talk about “all men are created equal” and that they have the right to govern themselves, they really mean all men. Within the family, the men will rule over women and children and slaves and servants who are all dependent on them and cannot be trusted with the vote because of their economic dependence on men. It's not so much that women are less intelligent, although there are plenty of writers who would have said that — it's that women's very life depends on men. And so they if they were to vote, they would only vote the way their husbands told them to vote and their fathers told them to vote because they would have no capacity for choice.

LEE
Why did the drafters leave all the specifics of the right to vote to the states? And what have the repercussions of that decision been?

JILL

Well they leave a lot to the states. I mean they also... There’s a whole lot of litigation going on right now over, for instance, the right to education, which every state constitution actually has within it, a right to education. Massachusetts has one of the most beautiful of these statements: that it is a right of citizenship and a republic to have an education and it is an obligation of the states to provide it.

But the Constitution doesn't talk specifically about a right to education which is a problem for these litigants. It can be inferred — right, you can say, like, well it's the same with the right to vote, we have all this fine phrasing in the preamble about our domestic tranquility et cetera et cetera. We can't have these things in a self-governing nation without the right to vote and the right to an education, because you can't vote well unless you have an education and therefore can participate as an informed citizen.

Why these are implied and not elaborated really just has to do with the framers’ interests in deferring to the states for practical matters. There are other explanations that other historians would give. But how people are voting in 1787 is actually, on a practical level, really complicated. In some places you throw a bean in a box — like you just throw a white bean or a black bean. And that’s how you know. In some places you know go to one side of town common or the other side of the town common. And in some places, really radically, you might be using a piece of paper to write down the name of the person that you're voting for. But paper is really uncommon in 1787. They're trying to draft a timeless document, and the technologies of voting are, in their lifetimes and among each member — each delegate to the convention — quite different and rapidly changing. So they're not going to elaborate on the mechanism of voting, for instance. And it is something that given how difficult it is to travel, the condition of the roads — these things vary state to state. You know there is no election day! Elections take place over months. A presidential election takes months and months and months to tally for decades because there is no election day. There’s just the thing that the new federal government left to the states.

LEE
[26:45] Do you think that our founders would have been surprised that each national election now hinges on the black bean or white bean of a particular, say, Broward County just to take a random place?

JILL
So I’m going to just object to the framing of the question. Like, I actually I am so not interested in what our founders would think of us.

LEE
That’s fair.

JILL
I am actually interested in how we achieve justice and fairness and decency in a very vexing world. So people are like, “Who's your favorite founder? What would the Founders think?” Like that is a very political question and it comes out of originalism, which is a very recent way of thinking about the founding itself. And it's not how historians think. Like people say “Who would you want to have dinner with?” I don't want to have dinner with any of these people. I would die of malaria if I was in the room with them, like I — no. I actually want us to think about now.

LEE
You described this history as kind of an old school civics book and if I'm correct I think you're actually working on a formal companion textbook. Why do you think of it that way? And why is it so important for us to have more civics in our lives right now?

JILL
I think that our political system is in fairly urgent need of reform across the board from town and city government all the way up to state and national government. And I think the best reformers in American history have been people who are acquainted — fully acquainted — with the origins and changes in our political system. So I'm not, I am not a revolutionary. I'm not calling for revolution. I do think there is a really urgent need for reform, and reform has to be well-informed. And there are a lot of reasons to write this book and it was a joy to do and I hope more people read it. But asking people to do the work of knowing where we came from seems like a small ask.

LEE
Amen. Jill, thank you so much for taking the time to talk about your awesome book with us.

JILL
Thank you.

LEE
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