This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises

On December 14, 1819, Alabama was admitted to the Union as the twenty-second state. The admission itself was not especially remarkable. Various parts of present-day Alabama had been settled by the French (and later the British) since the early 1700s, and explored by the Spanish as early as the 1540s. The territory to the west, moreover, had already been admitted as the states of Mississippi (1817) and Louisiana (1814). Not least important, Alabama’s soil and climate were amenable to cotton production, which was accelerating due to technological innovation and increased demand, such that the years preceding Alabama’s statehood had seen substantial growth in the region’s population.

What made Alabama’s admission significant, politically and constitutionally, was the situation it then posed for Congress regarding the admission of subsequent states, particularly west of the Mississippi River. Specifically, the nation was now evenly divided between free and slave states, having eleven of each. Given a federal Senate based on equal voting for every state regardless of population, this resulting parity of free and slave states made the admission of any additional state an opportunity either to expand or to restrict slavery. The South especially perceived the need to maintain parity as its influence in the House of Representatives declined relative to the North, which was experiencing (and would continue to experience) more immigration as well as greater industrial and economic growth.

This dynamic, in turn, set the stage for a new era of anti- and pro-slavery compromises and eventually—as these compromises less and less alleviated sectional tensions—a rather bloody civil war.

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The Boden Lecture: The Reconstruction Era Birth of Our Concept of Citizenship

The Declaration of Independence, the United States Constitution, the Civil Rights Act of 1866 – as great as the first two were, it was the third that put in place the concepts of American citizenship and the civil rights of all Americans that are part of the bedrock of American life, prominent historian Eric Foner said in a lecture at Eckstein Hall.

Delivering Marquette Law School’s 2012 Robert F. Boden Lecture last week, Foner focused on the origins in American law of birthright citizenship, the principle that (with immaterial exceptions) anyone born in the United States is a citizen and has basic rights that go with citizenship.

Foner, DeWitt Clinton Professor of History at Columbia University, said many people assume that the principle of “equality under the law” dates back to the origins of the United States – or, as he put it humorously, that the nation was born perfect and has gotten better ever since.

In reality, he said, the nation was definitely not premised on equality under the law in its early stages. For one thing, the Constitution itself did not give citizenship to even free black people, much less to slaves. And, Foner said, citizenship issues were controlled by individual states, rather than the federal government. Every state in the nation had laws that treated black people worse than white people, he noted.

The great changes that declared all men (women’s issues came later) born in America to have basic rights, such as the right to own property and take disputes to court, came with the Civil Rights Act of 1866, put into law by Congress over President Andrew Johnson’s veto, and the subsequent adoption of the Fourteenth Amendment to the Constitution.

The rights extended by those federal enactments and others in the Reconstruction Era were violated with impunity for many decades. But the rights they embraced eventually took hold and came alive in the Civil Rights Era of the mid-twentieth century, Foner said.

Foner said the history of America is a tale of ups and downs, of rights granted and lost. The right to citizenship extended to anyone born in the United States has become controversial in recent years as immigration issues have heated up, he observed. It is a right that arose from the “titanic struggle” of the era of the Civil War and its aftermath, and it was one of the nation’s ways of addressing the legacy of slavery and the pervasive denial of rights to black people. Given how birthright citizenship has served the country, Foner said, “we should think long and hard before changing it.”

A version of Foner’s Boden Lecture will appear in 2013, in the next Marquette Lawyer.

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Inherently Subversive Pedagogy

In 2010 the Arizona legislature created a law designed to deter the teaching of a Mexican American Studies course in Tucson schools by cutting State funding to districts with courses that, among other things, “promote resentment toward a race or class of people.”  After a finding by the state court in 2011 and under the threat of a $15 million fine, the Tucson district was forced to stop utilizing a course that was available to all students, was effectively closing the achievement gap, and was successful in helping Latino students attend college.  One aspect of enforcement that the district decided on was banning the use of many books that were a part of the Mexican American Studies program from schools.

I was introduced to the Tucson curriculum issue in Professor Mazzie’s first semester Legal Analysis, Research, and Writing 1 class last fall.  Our assignment was to write a brief memo on whether the Tucson course was in violation of A.R.S. § 15-112.  The constitutionality of the Arizona law itself has since been called into question under the purview of a federally appointed special master who is overseeing the Tucson School District’s mandated desegregation.  It was satisfying to see, earlier this month, the U.S. Court of Appeals for the Ninth Circuit agree with my position in Professor Mazzie’s class that the curriculum was not necessarily a per se violation of A.R.S. § 15-112 anyway.

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