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Chapter 1 Contracting Guilt: Mixed Character, Civil Slavery, and the Social Compact What, then, is the American, this new man? —J. Hector St. John de Crèvecoeur, Letters from an American Farmer (1782) With respect to citizenship, the query posed by Crèvecoeur’s fictional American farmer (himself a British colonist) would go formally unanswered from the Founding to the Civil War. Until passage of the Fourteenth Amendment (1868), the Constitution did not specify the terms of U.S. citizenship. Neither did it explicitly address the race slavery that, prior to Emancipation, stood in definitive opposition to citizenship.1 Speaking on behalf of “We the People of the United States,” the document distinguished “free Persons” from those tacitly racialized “other Persons” who were to be partially enumerated for purposes of taxation and representation—as well as subject to forced “Migration or Importation” and, being “held to Service or Labour,” denied freedom of movement.2 If many in the young republic embraced the Aristotelian notion of democracy as “the form of government in which the free are rulers” (with the unspoken assumption that democracy encompassed an unfree, ruled class), their understanding of what it meant to be a citizen was more complicated than the Politics’ “shar[ing] in governing and being governed.”3 Positioned within a civic continuum, citizenship for most Americans denoted active political participation less than recognized membership in the polity.4 As Rhode Island-born blacksmith Benjamin F. Cornell put it when serving as delegate to New York State’s 1846 Constitutional Convention, any American familiar with “the elementary principles of our political institutions” would 52 Chapter 1 acknowledge “the existence of the conditions of extrageneous alienage and the various stages of quasi citizenship intermediate between the condition of chattel slavery, and that of complete technical citizenship.”5 Cornell, like the rest of “the people” represented by the U.S. Constitution, was heir to a western European political tradition where citizenship had signified not so much a specific set of political rights as disparate bundles of legal and civil duties and privileges that varied according to an individual’s status, natal origin, residence, and economic standing, as well as familial and social affiliations.6 During the colonial and early national periods, historian James H. Kettner argues, English understandings of subjectship, in which “bonds of personal allegiance” were rooted in “blood” and “land,” came to be replaced by a notion of citizenship phrased in innovative contractarian “terms by which civil and political rights in the community were to be exchanged for support for republican principles, adherence to the Constitution, and responsible and virtuous behavior under enlightened forms of self-government.”7 This shift reflects the influence of social contract theory, which imagines people in a state of nature voluntarily compacting to form a polity. Centered on “the model of the naturalized subject,” America’s abstract concept of citizenship acquired greater corporeal specificity through the Naturalization Acts of 1790 and 1795: with their preliminary limitation of the eligible alien to the “free white person,” the Acts racialized citizenship, at least among the foreign born.8 Theoretically more inclusive than the common law’s birthright citizenship, in practice the consensualist approach proved doubly ascriptive, denying some native-born inhabitants citizenship on the basis of their (or their ancestors’) exclusion from the founding compact while simultaneously rendering them “noncitizens ineligible for naturalization.”9 For African Americans in particular , contractarianism posed a daunting hurdle to citizenship. The few African Americans who did manage to attain recognition as state citizens in places like New York and Massachusetts found their access to a broader national citizenship (however ill-defined) stubbornly blocked. Even if judges had not been determined to ignore the applicability of Article 4 of the Constitution on precisely this point, free blacks’ legal disabilities rendered them ineligible for protection under the privileges and immunities clause in the eyes of many authorities.10 Pervasive legal restrictions on African Americans’ full participation in civil society (to say nothing of the polity) thus became the pretext for denying the expansion of formal state citizenship into a more plenteous, substantive national citizenship.11 From the passport office to the courtroom, political scientist Rogers M. Smith concludes, gov- 53 Contracting Guilt ernment officials and legal authorities “treated race as legally more basic than citizenship.”12 In this way, municipal regulations, state statutes, court decisions, and constitutional conventions combined to offer a composite sketch of a normative American citizen characterized by his whiteness and masculinity.13 If, in Jacksonian...

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