Crenshaw, Foner and Gates Discuss Reconstruction

From the Columbia News:

On October 20, 2020, leading scholars examined the intersections of 19th-century history with contemporary politics, and offered visions for America’s future, during “Why Reconstruction Matters.” The online event was moderated by Columbia President Lee C. Bollinger and introduced by Vice Provost and University Librarian Ann Thornton. Nearly 700 people viewed the panel, which was cosponsored by the World Leaders Forum and Columbia Libraries.

The panelists—Kimberlé W. Crenshaw, professor at Columbia Law School, Eric Foner, emeritus professor of history, and Henry Louis Gates, Jr., filmmaker and Harvard professor—have each written extensively about the period of Reconstruction, and were all featured in a recent PBS documentary series on the topic.

--Dan Ernst

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Ramsey on Originalism and Birthright Citizenship

Michael D. Ramsey, University of San Diego School of Law, has posted Originalism and Birthright Citizenship, which is forthcoming in volume 109 of the Georgetown Law Journal:

The first sentence of the Fourteenth Amendment provides: “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.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

--Dan Ernst

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VanderVelde and Chin on the Reconstruction Congress and the "Chinese Question"

Lea S. VanderVelde, University of Iowa College of Law, and Gabriel Jackson Chin, University of California, Davis School of Law, have posted Sowing the Seeds of Chinese Exclusion as the Reconstruction Congress Debates Civil Rights Inclusion, from Tsinghua China Law Review 12 (2020):185-233:

Frank Leslie's Weekly (1872)(LC)

 During Reconstruction, Congress amended the Constitution to fundamentally reorder the legal and social status of African Americans. Congress faced the challenge of determining how Chinese people would fit in to the emerging constitutional structure. This article draws on a method of digitizing the Congressional Globe to more broadly explore the arguments about Chinese rights and privileges during Reconstruction. Unlike African-Americans, Chinese were part of an international system of trade and diplomacy; treatment of other people of color was understood as a purely domestic question. In addition, while a core feature of Reconstruction was ending the enslavement of African-Americans and overruling Dred Scott by making Africans Americans born in the U.S. citizens and granting them eligibility for naturalization, for Chinese, Congress chose to leave in place racial restrictions on naturalization, which had existed since 1790. This rendered them perpetual foreigners in America. With regard to labor rights, by abolishing slavery, Congress intended to raise up the freedmen, giving African Americans a chance to work on equal terms with other citizens. In the main, Congress continued to treat the Chinese people as constitutive of the so-called “Chinese question,” a nominalization that ascribed to them features of caste, from which there was little possibility of upward mobility. Congress recognized that some Chinese workers in the U.S. who were building railroads or working in mines might be subject to labor exploitation from bosses and from jobbers, sometimes white and sometimes Chinese. However, rather than intervene to liberate Chinese laborers through laws that would free them from involuntary servitude, and give them fair terms on which to compete, Congress eventually moved in another direction: excluding the Chinese altogether in 1882.

--Dan Ernst

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General Strong Vincent

On June 17, 1837, Strong Vincent was born in his grandfather’s house, the honorable Judge John Vincent, on the northwest corner of East 1st and Cherry Street in the Borough of Waterford. The family moved to Erie in 1843. The judge every year always had the whole family return to his home for Christmas. A special Christmas tradition at his home was that all of the grandchildren would find a hundred dollar bill beneath their plates. According to the Vincent's family journal, the children enjoyed playing hide and seek in the house, because at that time the house extended much farther north and all buildings were connected to the house, wood shed, livery and tack rooms, wood shop and carriage houses, etc. that gave a lot of area’s to hide. The house burned down during the late 1990s.

Strong Vincent was a lawyer who became famous as a U.S. Army officer during the fighting on Little Round Top at the American Civil War Battle of Gettysburg, where he was mortally wounded.

Vincent was born in his Grandfather’s home in Waterford, Pennsylvania, son of iron foundry-man B. B. Vincent and Sarah Ann Strong Vincent. His early education was obtained in the academy at Erie, where he spent two years in his father's iron foundry, before attending Trinity College and Harvard University, graduating in 1859. While attending Trinity College in Hartford, Connecticut, He met and courted the young lady who would become his wife. Expelled for beating up a man who impugned his lady's honor, Vincent enrolled at Harvard. He practiced law in Erie.

At the start of the Civil War, Vincent joined the Pennsylvania Militia as an adjutant and first lieutenant of the Erie Regiment. On September 14, 1861, he was commissioned lieutenant colonel of the 83rd Pennsylvania Infantry and was promoted to colonel the following June. After the death of his regimental commander in the Seven Days Battles (at the Battle of Gaines's Mill), Vincent assumed command of the regiment. He developed malaria on the Virginia Peninsula and was on medical leave until the Battle of Fredericksburg in December 1862. On May 20, 1863, he assumed command of the 3rd Brigade, 1st Division, V Corps, Army of the Potomac, replacing his brigade commander, who was killed at the Battle of Chancellorsville.

At the Battle of Gettysburg, 26-year-old Vincent and his brigade arrived on July 2, 1863. He had started the Gettysburg Campaign knowing that his young wife, Elizabeth H. Carter, whom he had married on the day he enlisted in the army, was pregnant with their first child. He had written her, "If I fall, remember you have given your husband to the most righteous cause that ever widowed a woman."

Maj. Gen. Daniel E. Sickles of the III Corps had deviated from his orders, moving his corps to a position that left undefended a significant terrain feature: Little Round Top. The chief engineer of the Army of the Potomac, Brig. Gen. Gouverneur K. Warren, recognized the tactical importance of the hill and urgently sought Union troops to occupy it before the Confederates could. A staff officer sent by Warren encountered Vincent's brigade nearby. Vincent, without consulting his superior officers, decided that his brigade was in the ideal position to defend Little Round Top, saying "I will take the responsibility to take my brigade there." Pvt. Oliver Willcox Norton, Vincent's brigade standard bearer and bugler, later wrote that he and Vincent made a reconnaissance of the Confederate forces as the brigade was moving into position, "While our line was forming on the hill at Gettysburg I came out with him in full view of the rebel lines. They opened two batteries on us instantly, firing at the colors. Colonel Vincent looked to see what was drawing the fire and yelled at me, "Down with the flag, Norton! Damn it, go behind the rocks with it."

One of Vincent's regiments, the 20th Maine, led by Colonel Joshua Lawrence Chamberlain, has received most of the fame for the defense of Little Round Top, but there is little doubt that the efforts and bravery of Vincent were instrumental in the eventual Union victory. Vincent impressed upon Chamberlain the importance of his position on the brigade's left flank and then he left to attend to the brigade's right flank. There, the 16th Michigan Infantry was starting to yield to enemy pressure. Mounting a large boulder, Vincent brandished a riding crop given to him by his wife and shouted to his men "Don't give an inch!" A bullet struck him through the thigh and the groin and he fell. Due to the determination of the 20th Maine, the 44th New York, the 83rd Pennsylvania, and the 16th Michigan Infantry Regiments, the Union line held against the Confederate onslaught. Vincent was carried from the hill to a nearby farm, where he lay dying for the next five days, unable to be transported home due to the severity of his injury.

The commander of the Army of the Potomac, Maj. Gen. George G. Meade, recommended Vincent for promotion to brigadier general on the evening of July 2. The promotion was dated July 3, 1863, but it is doubtful that Vincent knew about the honor before he died on July 7, 1863. Vincent's wife gave birth to a baby girl two months later, who died before reaching the age of one and is buried next to her father. His corps commander, Maj. Gen. George Sykes, described Vincent's actions in his official report from the battle:

Night closed the fight. The key of the battle-field was in our possession intact. Vincent, Weed, and Hazlett, chiefs lamented throughout the corps and army, sealed with their lives the spot entrusted to their keeping, and on which so much depended.... General Weed and Colonel Vincent, officers of rare promise, gave their lives to their country.

Strong Vincent is buried in the Erie Cemetery and is memorialized in Erie by a statue erected in 1997 at Blasco Memorial Library, and in the naming of Strong Vincent High School.

General Strong Vincent

Strong Vincent’s Birthplace.

Mrs. Elsie Vincent, Aunt of Strong Vincent, sits on the side porch of Judge John Vincent’s Waterford home.

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