Had some more people asking about my conversion lately, finally got around to writing more about it. Link to substack article here if you want pictures etc., otherwise reposting the text below:
Been thinking about the above post from QC a lot since I’m basically exactly the type of guy he’s is calling out here. I didn’t reply initially because I felt kind of attacked or insecure, and still do a bit, but either way I think this is a great time to go into more detail with my own conversion story.
I’ve already talked about my conversion to Orthodox Christianity a bit in a previous post, which you can check out if you want more backstory / a different focus (more on my chronic pain issues):
Ultimately I convert for a variety of reasons, which I still don’t fully understand myself. A big part of it was that, as QC said, I did a ton of inner work, meditative, and psychedelic stuff for a long time. I went to a woo-woo Christian church as a kid, and was meditating and getting into Buddhism from like 13 years old onward. I was also an avowed atheist for much of that time.
Sadly Buddhism just kind of failed me. At least that’s how I saw it. I consumed soooo many books and podcasts and talks on Buddhism, spent so much time meditating and trying different techniques. I even went to a couple of Buddhist temples, but they were so alien to me culturally I basically left immediately after the service.
Looking back, I’m sure that someone who’s really into Buddhism could point out a ton of ways I didn’t try the path of the Buddha in the ‘right way’. For instance:
- I never went on a ‘serious,’ multi-day meditation retreat (though I did do a few partial day ones, some solo some with others)
- Didn’t have a formal sangha, or group of people I meditated with
- Never went and studied under an actual Buddhist teacher, got the vast majority of my instruction from the internet or books or other Buddhist dabblers who didn’t really know what they were doing
- My lifestyle throughout all of this was still quite hedonistic, was doing drugs, having casual sex, eating whatever I wanted, etc. Not practicing right action or any of the formal Buddhist moral strictures
Oftentimes I look back myself and wonder, what could have happened in my life if I managed to find the right teacher, or the right group, or even stumble into this corner of Twitter I’m in now, that actually has a lot of more grounded & mature buddhists, back before I gave up on Buddhism? I honestly don’t know.
Maybe I’d be a meditation teacher now, gallivanting around the country, no job, sleeping with hot Buddhist women (but in a totally cool, consensual, morally correct way ofc), doing DMT at cool parties in the woods, dipping to chill in a monastery whenever I want, and other things I see Buddhist teachers in the tpot/online dharma scene doing. The lifestyle certainly looks attractive, and a deep part of me still really longs for a life like that.
Regardless, it didn’t work out for me that way. The Buddhism that I encountered and that informed so much of my teenage and early adult life left me hollowed out, addicted, and broken. I had such deep issues with chronic pain, depression, and anxiety that I had to quit multiple jobs, and turned to pretty hardcore substance abuse just to numb the suffering.
I saw Buddhism and spirituality as a lifeboat, a rope thrown down that could save me from my pain and my struggles. That’s what the Buddha promised, after all! An end to suffering! But it never worked for me. I beat my head against the wall of Buddhist meditation and teachings and therapy and emotional work for over a decade, and while I would find temporary relief here and there, overall I felt I was going nowhere with it.
Encountering Christ
Christ Appears to Mary Magdalene on Easter Morning (Noli me tangere), by Peter Paul Rubens & Jan Brueghel the Younger
That’s when Christ came into my life.
It wasn’t something I actively looked for. Just happened to have a couple of friends I had really admired pop back into my life and mention hey, maybe Christianity is cooler than you think. Some of them encountered Christian teachings through AA and recovery, some had always been Christians, I just never knew it before because we hadn’t talked about it.
Either way, I took a hard look at my life, and realized I hadn’t given Christ a fair shake. I had a bachelor’s degree in history at this point, so I knew a bunch about Christ and Christianity from a sort of dry, objective, historical perspective. I had even read the New Testament a couple of times. But I had never taken the ideas seriously. I had never actually gone and looked at Christ, what He said, what He did, with anything close to an open mind.
As part of the therapy and emotional work I was doing, I realized I had a huge chip on my shoulder when it came to Christ, and had for most of my life.
You see, when I was eight years old, my dad had a stroke.
I got sent to the neighbor’s house while he and my mom went to the hospital, some of those evangelical Protestants who talk a big game about being godly and everything, but ultimately were completely uninformed assholes in real life. I stayed up all night pacing around, not knowing if my dad was going to live or die.
My neighbor woke up from me pacing around, grumpily said “if you just pray hard enough, God will save your dad, don’t worry,” and went back to sleep. So of course as an anxious kid with OCD tendencies, I prayed nonstop all night. I pleaded and bargained and begged God with every ounce of my being, telling Him I would do whatever He wanted if he just saved my dad.
As you might have guessed, it didn’t work, and the next day I woke up to find my father gone.
I’m sure for my neighbor, this comment was a relatively minor thing. She was annoyed, tired, this kid just got foisted on her and she needed sleep. She was a single mom, after all, and had her own worries I had no idea about. But still, her throwaway advice that night completely changed the trajectory of my life. From the next morning onward, I decided that I hated God. If He even existed, He must have been so unspeakably evil that the world was completely fucked. It was easier to just think He didn’t exist, and that the universe was a bunch of atoms randomly bumping into one another. It was in vogue at the time, after all.
Anyway, all this to say, when Buddhism failed to fix my problems, I was desperate enough to examine the chip on my shoulder. As I started poking at Christianity, I got more and more interested and surprised. I began to realize just how ridiculously deeply Christianity informed everything in our culture, from morals to random references in songs and movies to the names of cities and towns.
I devoured Jordan Peterson’s early lectures on Genesis, feeling an incredible tsunami of insight while listening to them, that I failed to get even after hours of vipassana meditation. Talking to more seriously intellectual Christians, I found out about Girard, and read a book by one of his students, Violence Unveiled, that blew my mind even harder about the impact of Christ on humanity, on history.
Then I reconnected with another friend, who I hadn’t spoken to in years. He happened to be Orthodox. We chatted a lot and slowly rekindled our friendship, mostly talking about Christianity. He had fallen away from the faith in college and early adulthood, and was coming back to it at the same time I was learning about it really for the first time.
Somewhere in all this, I also did some more psychedelics, and spent some weekends camping solo wilderness in the mountains, far away from civilization and any other campers. I had some experiences with Christ that caused me to question my materialist assumptions, and which I won’t recount more deeply here.
Converting to Orthodoxy
Later on, my Orthodox friend invited me to his church, for a Divine Liturgy. The first time I saw it, I was overwhelmed. He sat next to me and was explaining how the Liturgy was largely the same as the one they practiced in 300 AD, giving me all the little tidbits of symbolism and tradition. Told me about how people would reach out to touch the priest’s robe during the Grand Entrance, calling back to the woman in the Gospel who was healed by touching Christ’s garment.
I was overwhelmed. Half of it was in Greek, and I barely knew what was going on. But I knew there was something special there, something beautiful.
A few weeks went by, maybe a month or two, I don’t remember. I continued learning about Christianity and Orthodoxy, and went to another Divine Liturgy. My buddy either wasn’t there, or showed up late, so I sat by myself in the back, with a view right into the altar, looking at the crucified Christ hanging under the giant icon of the Theotokos.
It’s hard to explain what happened during that service, but something broke open in me. I remember looking at Christ, willing Him to talk to me, to become more real, to help me, to save me. And then the tears came. For some reason, in the midst of hundreds of people I had never met, in a weird church service that was half in a different language, I started crying. Tears poured out of my eyes nonstop for well over an hour. I wasn’t sobbing hysterically, just silently crying, trying not to draw attention to myself.
I had never cried like that before in my life, and never have since. I cried for so long, staying after the service, that one of the parish council members had to come and gently shoo me out of the sanctuary, as they were locking up the church.
I remember being shocked afterwards that I had been able to cry at all. I rarely cried, even when I wanted to. And I had horrible social anxiety, so crying in public like that was extremely out of character. But for some reason, I finally felt safe enough to let out the pain I had carried since I was a youth. To start to thaw the walls around my heart that had kept me from really connecting with other people my entire life.
From there, I was hooked. It still took me years to convert formally to Orthodoxy. A lot of conversations with my priest going over my doubts, and him explaining that faith was an action, not a propositional belief. That the Resurrection, the Trinity, and other core Christian teachings were Holy Mysteries, something to be approached with the heart, not with the intellect.
And here I remain, in the church, and I feel like I belong. Not because I’m an upstanding Christian, or because I deeply believe Christ was the Son of God with an intense zeal, or anything like that. But because I was, and still am, sick.
I think that, whether it’s true of ‘Real Buddhism’ or not, when I was a Buddhist I was hoping to fix myself. I was sitting there acting as if I had the power, the tools, the skill and ability to look at who I was as a person, fiddle around with my mind, and set everything in the right place. Make myself whole, perfect enlightened.
Coming to Christ was a different story. It was more about acknowledging that I am sick, and I need saving. That I can’t do it on my own, I can’t get anywhere on my own. That I need someone else, something else, to pull me out of the hole I had dug myself into.
It’s not easy. I’m not married and settled down (yet) so to go back to the original quoted tweet from QC, it’s really not a ‘relief’ in that sense. I still have tons of doubts and questions, I still look at Buddhism and other ethical systems and wonder, think about what they say, and how it compares to Christianity.
But I have been healed, in a real way. I’m sick, but on the mend, and obviously trending in the right direction. At least from my perspective. And that’s enough for me, for now. I pray it continues to be enough, and that I get to stay with Him for the rest of my days, and for life everlasting.
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Another blog post, reproduced here in full, but go to substack if you want the pictures and such.
On Writing, Fiction, and Modern Escapism
Do our stories bring us down to earth, or keep our heads in the clouds?
“Interesting Reading” by Theodor Kleehaas, c. 1890
Dear reader, it’s time to read my writing about writing.
I’ve got a complicated relationship with the ol’ written word. I grew up having my parents read Lord of the Rings and other classics to me before I could even speak. While I come from a long line of rural southerners without a ton of education or wealth, I truly admire that my parents were both readers, despite the anti-reading social stigma in their class, and worked hard to pass that on to me.
As soon as I could read, I became obsessed with the written word. I remember clearly how my mother would always brag about how I could read and pronounce the word ‘indubitably’ by the time I was three years old. (She still brags about this, occasionally.)
Growing up, I lived a typical ‘millennial nerd-life’ so to speak. Both of my parents were working, and I had no siblings, so I spent a lot of time alone. As I’ve written elsewhere, much of my time I spent gaming; the time I didn’t spend gaming was mostly spent with my nose in a book.
Fantasy and science fiction, speculative fiction as it’s now called, gripped me far more than anything else. I still read non-fiction, especially scientific reading, since my mother had a career in laboratory science, so it felt relevant to me.
With hindsight, it’s obvious that my obsession with fantasy in the broader sense - worlds beyond the one I am actually in - was perhaps not the most salutary way to spend my time as a child. Instead of playing outside, socializing, or learning discipline, I took every spare moment I could to escape the physical realm and into the realm of imagination.
I’m not attempting to bemoan my situation overmuch though.
Since the 70s or so, the two-income household has been the norm, and leads to the majority of kids spending very little time with their parents. Historically, this was not the norm at all. We live in a society of orphans, raised by the state more than their parents.
Either way, one concept that helped me make sense of what I was doing as a kid is the emotional pattern sometimes called the ‘Leaving Pattern’. I first encountered it in the book The Five Personality Patterns, but it’s an older psychological pattern first typified by Wilhelm Reich, the schizoid typology. Whatever you call it, the basic idea is as follows:
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A child, for one reason or another, grows up feeling unsafe in their body / in the physical world
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As a defense, they end up ‘leaving’ their body, often going into an imaginary world, or physically withdrawing into themselves
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In order to function in the world, they create a persona that is split off from their ‘true self,’ and keep said true self in the fantasy world
Now I’ll be the first to admit that psychology is a spotty science at best, and it’s good not to read too much into these sorts of types. You can quite easily become trapped by an abstract concept, and psychology can never capture all of what a human being is. However, I still find myself relating to this pattern quite strongly, and thinking about it has helped me combat some of my problematic habits.
Okay, But… Writing?
“A Man at his Desk” by Salomon Koninck, c. 1655
Now you might be thinking, ‘Ok thanks for the dramatic sob story Thomas, how does this relate to writing again?’
Growing up, due to my love for and even obsession with reading, my career dreams such as they existed revolved around becoming a writer. I felt that good books had taught me so much, had saved me from a difficult world, and truly given me a reason to live, when I didn’t have much of one during the worst parts of my youth.
I dreamt of writing a book series that could reach out to other young children and grip them the same way. Teach them good values via stories, help provide solace in their pain, and save them the way I thought good books and stories had saved me.
Ironically, I’ve come to question this story a bit.
As I outlined above, I’m not so sure that getting deep into fantasy, science fiction, and gaming was good for me as a youth. In fact, I’m pretty confident it led to some bad outcomes for me later on. When you always cope by retreating into fantasy, you set yourself up for delayed maturation in the ‘real world,’ at the least.
Many young people who get obsessed with fantasy worlds essentially never grow up, permanently stuck in an adolescent phase. You see this quite often nowadays with Marvel, or Disney, or other major commercialized fantasy worlds.
So I have had to take a step back and ask myself: is it truly helping the world to add yet another fictional realm for people to escape into? What if I simply perpetuate the tendency for people to ‘leave’ themselves and cause the same problems I’ve had to deal with as I grew up and was forced to confront reality?
These musings are a large part of why I ended up starting this blog, and done much of my writing in a more non-fiction, ‘serious’ realm so to speak, where I’m trying to confront real problems instead of go into a fantasy realm.
I’ll also admit that, having tried to write speculative fiction, it is quite difficult. I’ve started more novels than I can remember, only to peter out a little ways into them. Part of what has stopped me is my philosophical wranglings above, but it would be dishonest not to admit that a lack of discipline and commitment plays into it as well.
And if we zoom out from just writing, looking at the modern world as a whole, it seems to me that with the rise of phones, social media, and the digital realm generally, we are increasingly plunging ourselves into the abstract, the mental, the imaginary. We are leaving our bodies en masse in favor of intellectualized distractions, artificial connection, and disembodied dopaminergic entertainment.
A large part of my own path to healing has been learning to embrace my body, the sensations from it, and ground within the physical world, instead of spending all of my time running away from uncomfortable sensations.
While I love fantasy, science fiction, video games, and other imaginative delights, I can’t help but see these things more and more as junk food, as an unhealthy indulgence that may be good to have occasionally, but certainly should not be the core of an adult life.
And yet… I still remember being a young child, and diving into my first few fantasy worlds. I remember being exposed to depths of being and understanding that I had no conception of beforehand. I remember learning about heroism, about sacrifice, and about the depths of love that human beings can attain, with the right measure of wisdom and courage.
I remember finding something holy within the pages of these fictional worlds, something that I still feel resonates deep in my heart to this day.
Ultimately, as Jonathan Pageau, Jordan Peterson, and many other Christian writers have discussed, stories are fundamental to who we are as humans. When Christ was presented with dilemmas during His teaching, He would often teach others by telling stories, or parables. There’s a way in which stories can get at a truth deeper than ‘reality’ can, a way in which the narrative realm speaks to the deepest parts of us, makes us come alive. We desperately need stories just in order to make sense of the world.
So perhaps the problem isn’t whether fictional stories as a whole are good in themselves, but the types of stories we choose to tell, and whether they keep us trapped in our heads, or ground us in reality.
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Link to my recent Substack article, if you want pictures and links. Reposting the full text here.
When I was five years old, I got a GameBoy Color for Christmas. I started with only one game: Pokémon Red.
I proceeded to train Pokémon so much over the next week and withdraw so much from the world that my mom had to take my GameBoy back a few days after Christmas. That ended up being the first of hundreds of similar fights over my time spent gaming that we had throughout my childhood.
Video games are a controversial topic in the modern world. Nowadays, most parents are at least aware of the dangers of screen time and letting children spend too much time in front of a computer, phone, tablet, or other device. Not that every parent cares, or has the time/attention/energy/discipline to keep their kids away from screens.
But for those of us growing up in the 90s and early 2000s, this cultural awareness wasn’t there yet. During my own childhood, I spent many thousands of hours in front of a screen, mostly playing video games. Someone in my corner of Twitter, , recently posted about this phenomenon. Here’s a quoted excerpt, but I’d recommend reading the full tweet (really a short article) if you’re curious:
so, just objectively - without any ethical judgement at all, our parents (speaking generally) just had us in front of screens for literally thousands of hours. many thousands. if i expanded the range here (down into age 7 and up into 14) and really squeezed it, its possible we could get close to 10,000 hours.
For especially young male millennials, this amount of screentime was quite common. Owen even admits later in the tweet that he is probably on the low end of the spectrum, since he was mostly playing games like Harvest Moon and never got into TV or movies.
Growing Up with Games
After I graduated high school and went off to college, I gradually accepted that I had a bit of a problem when it came to time spent gaming, and decided to quit playing video games entirely. I felt a lot of shame about the fact that I had, as I saw it, “wasted” so much of my life sitting in front of a screen.
However, as I’ve gotten older, I’ve come to change my mind on video games to some degree. I’ve slowly picked the controller (or mouse and keyboard, as it were) back up. The natural constraints of working a full-time job, living with my girlfriend (and now fiancé), being involved in my church community, as well as working out and staying physically fit, have helped me balance video games with the rest of my life.
I’ve found that gaming just fills something in my soul that I haven’t been able to find elsewhere. There’s a sort of instant camaraderie you get when you join a community of gamers and start playing together. I recently had one of the most wholesome nights of my life gaming with a group of guys I had only met a couple weeks prior.
So, we were gaming as per usual. I played pretty badly, and lost hard. I rage quit the game, left the Discord voice chat. Checked 10 minutes later and they were all pinging me, sending GIFs of dudes kissing saying “this could be us.”
I replied by posting some stupid copypasta calling them all degen retarded apes. Then they brought me back, had me play again, gave me a bunch of buffs so I easily steamrolled everybody as they gassed me up.
It’s hard to describe how wholesome it felt… I was so ashamed at losing so badly and then rage quitting, only to see 10+ guys all immediately coming out in support. Keep in mind these dudes also constantly flame each other and call each other retards and other things I won’t repeat here on the daily.
And yet when I had a bad time, they all immediately came together and spent over an hour of their night building me back up. It actually brought tears to my eyes when I thought about it.
Gaming gets a lot of flak from all corners, and there are obviously many problems with gaming addiction, escapism, etc. But where else in today’s world can a young man experience this sort of instant camaraderie with other young men, doing a shared activity he actually gives a shit about? The opportunities in the “real world” seem vanishingly rare, for one reason or another.
I was addicted to gaming growing up and felt a lot of shame around it for a long time. But I’m getting more into it recently and I’m glad I am. I love gaming and all the beautiful, absurd, ridiculous moments it can lead to. I hope if I have kids I can teach them to game from a place of joy and balance so they can enjoy it too, and maybe we can even game together.
I’ve done a lot of emotional work and somatic meditation around shame, and as anyone who has done this work knows, it can be hard to make progress. You can get stuck at the same spot for months, or years.
Reflecting on how it felt to get support from this random community of gamers, I felt a huge knot release deep in my stomach and lower back. It’s hard to explain how strongly it impacted me, to experience a community come together to support me when I felt such deep shame. When I thought for sure I’d be rejected.
Striving, Competition, Aggression
Another benefit of coming back to gaming from a more mature space is learning to strive and compete in a healthy way. If you can’t tell from the story above, I’ve struggle with a tendency to be a sore loser. Video games provide me a somewhat low-stakes environment to practice failing at something and resolving to get better instead of just sinking into negative and unproductive emotions, venting rage, or other destructive reactions.
Perhaps most importantly, video games allow us to connect with an unfettered and childlike joy! It can be so hard to find a place where joy, excitement, and silliness are not just allowed, but shared by a whole group. Gaming, at its best, is all about fun and connecting with that childlike sense of joy. And while there can definitely be a lot of toxicity in the gaming world, some communities are able to bring that joy to the forefront quite often.
Now, would it be ideal to find this sort of wholesome support and community in the physical world, wrapped up in a set of deeper and more grounded relationships? Absolutely. I don’t doubt that for a second.
Unfortunately though, the opportunity for this sort of connection, especially for young men, has become harder to find than perhaps ever. The most common similar social group would be a sports team, but for myself (and I know for many, many other young men in my generation) sports and the culture around it is so alien as to be almost impossible to get into.
But even with sports teams, it’s difficult to find a group where you can have an experience like the one I described above. Especially when it comes to… innapropriate behavior like everyone calling me a retard and making gay jokes. As a friend put it to me when I shared the story, the type of bonding and community I described above is pretty uniquely male.
The ability to turn on a dime from giving someone shit and calling them all sorts of offensive names to supporting them and building them up isn’t something you often see in groups where women are involved. There have been endless online screeds about the problem of incels and otherwise disaffected young men becoming a lot more common, and I think a huge reason for this is that it’s very difficult for young men to access male-only spaces. You can’t really have the same level of offensive behavior when women are around, even if the women are totally down. Socially, it just isn’t the same.
In fact, gaming is one of the last places men can congregate together in at least somewhat private groups and break social norms, say offensive things, and not be scolded or censored for it.
While the dopamine induced from the flashing lights and compelling music that video games provide does explain part of video game addiction, I think the greater part here is actually the fact that many young men find real community and a real chance to be themselves and connect in a way that feels right from a masculine perspective. Again, something that is increasingly hard to find in the physical world.
Overall I still have a complicated relationship with gaming. I often wonder whether my life would feel more complete and satisfying if I were able to put the same energy into different pursuits. Many people I respect, like Simon Sarris, have claimed that once you find more meaningful activities to passionately engage with, gaming no longer attracts you.
Video games lost their appeal coinciding with starting to date my wife. I think I can credit desire with a major change in perspective. Realizing that I wanted more/other things. My (then) gf of course but a trajectory for life generally…
Having an opportunity to make a house and gardens made it very easy to give up something like video games. I used to make beautiful structures in minecraft, but its a bore compared to physicality. I feel like I am shaping my own little national park. For my family, for the town.
I’ve related more and less to the quote above at various times in my life. Unfortunately, whatever I tend to put my energy and effort in ends up disappointing somehow, or perhaps I simply lose my zeal for it.
Either way, for the moment at least, I’m happy to continue gaming. While it may not be ‘productive’ in a certain sense, I’m learning to strive and connect with others in a healthier way. Plus I’m just having fun.
I don’t know what God has in store for my life, but I do hope that even as I get older, I at least dust off my gaming PC or console or VR headset (or whatever people use to game in the future) once or twice every year or two.
Be advised: this thread is not for serious in-depth discussion of weighty topics (we have a link for that), this thread is not for anything Culture War related. This thread is for Fun. You got jokes? Share 'em. You got silly questions? Ask 'em.
Book Review - The Enigma of Cranial Deformation
(Ref: The Enigma of Cranial Deformation: Elongated Skulls of the Ancients on Amazon but if you're actually interested in the topic you should buy The Bioarchaeology of Artificial Cranial Modifications: New Approaches to Head Shaping and its Meanings in Pre-Columbian Mesoamerica and Beyond instead. I warn you now that while the latter is several leagues better, it's also much narrower in scope, and neither is even remotely satisfying.)
Introduction
So here's what everyone seems to agree upon:
The elite castes of many ancient peoples used to employ bindings to shape the heads of their children, bonsai-kitten style, in a practice now known as Artificial Cranial Deformation (ACD). This might seem strange, but what's even stranger is that the practice is found in ostensibly-isolated peoples from all around the world without any apparent mechanism of transmission, going back around at least ten thousand years. Almost everywhere in fact; the only major areas without a history of it are Australia and South India, though it does seem to have been quite rare in Sub-Saharan Africa. There are even remains of Neanderthals which appear to have been subjected to ACD!
This would seem to raise several questions, including:
- How might the practice have spread around the world in an era without communication networks?
- Was it possibly multiply independently invented by all these various groups?
- Why would anyone invent this once; let alone repeatedly, everywhere?
- Does it confer some sort of cognitive advantage?
- Do we have any inkling of what its practitioners thought about it?
- Neanderthals did it? Really?
Hopefully we can all agree that it's an interesting topic. I'm generally fascinated by the interplay of skull magnitude and brain development and its implications for cognition. We know that cranial capacity varies among human populations in a way that seems to scale linearly with intelligence. I can't tell you how titillated I was to discover that Oprah apparently has a head so massive that when she needed a wig for a movie role, the producers had to stitch two normal ones together which sheds some light on her success. This is just one example of the kind of wild stuff one encounters when looking into brain/cranial/cognitive matters.
There are many reasons to think that cranial shape may also play a role in differential cognition among populations, but this avenue of inquiry has been verboten in the academy for at least decades, and Django Unchained somehow seems to have driven the final nail in re: popular consciousness, so very little is actually known.
Things get even more intriguing when we start to delve into historical head binding/ACD. Not only was it universally reserved for the elites, and forbidden to the lower classes, but cross-culturally there seems to have been near-unanimous sentiment that the procedure made for children who were more intelligent, wiser, and more spiritual; 'closer to the gods'. Supposing all these cultures did invent the practice independently, which is already kind of a hard swallow, what are the odds that they'd all independently, and erroneously, ascribe such significance?
The mental image of elite ancient humans around the world having discovered a forbidden process by which they could not only uncounterfeitably mark their children as socially superior but also actually increase their brain size and thereby intelligence (and, if you will, their access to the spirit world) is just too good to pass up. Not only would it make for an amazing story, and represent an under-appreciated aspect of human development, but it also tantalizes; suggesting that maybe, just maybe, there's a key to massively increasing human intelligence today, for our own children, and it's been right in front of our noses this whole time, inconceivably overlooked by our intellectual classes; a lost secret waiting to be rediscovered. [Point of order: I solemnly swear that I have no intention of trying this on my own or anyone else's children.]
Also, I know this sounds crazy (and that I've already got two strikes against me for looking into officially-designated bunk in the first place) but I have a sort of personal interest in the matter. For you see, my own birth was unusually traumatic and in the process I experienced extreme levels of cranial deformation. I've seen the pictures and they're... unforgettable. My dad told me that it wasn't until several minutes after I was born that anyone in the room was even convinced I had a face. After some time my skull ended up shaped close enough to normal that it's not noticeably aberrant except that it's very large; like Oprah, procuring suitable headgear can be a problem for me. Thankfully I also have a very large chest and shoulders so it doesn't for the most part stand out, but the point is that, while both of my parents are of above-average intelligence, I'm easily a couple standard deviations above either of them and have always sort of wondered why. Can you blame me for looking to cranial deformation as a possible insight?
Regrettably, after reading The Enigma of Cranial Deformation, doing a bunch of fact-checking, and compulsively looking into other sources, I still don't have any solid answers (except to the Neanderthal question which is that, no, they probably didn't actually practice it). The reason I don't have answers is because this is a preposterous book stuffed to the gills with random nonsense. Yet I can't shake the impression that its main point, which is that something weird is going on here and mainstream scholarship doesn't seem to take it seriously enough, does turn out to be more or less valid.
What bums me out about this state of affairs is that it's pretty much what I expected going in, and I'm disappointed to have my priors confirmed. Much time and effort was spent and almost nothing of value was gained.
But I did read it, and took notes, and I'm trying this thing where I reward myself for reading books and writing reviews. So, in case anyone anyone else cares, here you go.
(If you'd like to know where I am at on all the questions enumerated above, I do come back to that toward the end.)
But Why Read This Book?
Look, for all that The Enigma of Cranial Deformation: Elongated Skulls of the Ancients takes itself very seriously, it is clearly not a serious academic work and that's not hard to tell from the cover. Or the publisher. Or by flipping it open to almost any random passage and reading a few words. In fact, let me just...
While it is easy to see them [the Olmecs] as Proto-Mayans and Citizens of Olman (however large that country may have been), we should also consider them as the fantastic Proto-Mesoamericans they may have been: psychedelic aliens who used lasers to cut colossal basalt heads; Atlantean refugees who made a last stand in Tabasco; or Shang Chinese mercenaries taken from East Africa or Melanesia and specially trained to administer the Pacific (and later Atlantic) ports of the Isthmus of Tehuantepec; or perhaps a people originally from the Atlantic side all along, having come from Africa, possibly as a military force from Egypt or West Africa circa 1500 BC. There are many possibilities. (pp. 57-58)
Golly that was a good one and I expect it will save me a lot of time in trying to describe the experience of reading this book. So, again, why did I do it in the first place?
Well, 'fun' isn't the right word, but it's not a bad start. These books aren't entertainment for me, exactly. Actually, this one is fairly typical in that it's poorly-written and worsely-edited; leans heavily upon long, dry passages ripped from e.g. wikipedia; often goes on interminable, barely-relevant tangents; repeats itself regularly at length and in more or less the exact same language; and despite constantly slinging mud at mainstream scholars rarely if ever does it raise coherent objections to their conclusions. It's tedious to read, is what I'm saying, and it would be fair to ask why any non-schizophrenic would bother. (Unless...?)
And yet I do love the genre. I have ever since wandering into a new age coffee shop at 14 years old and losing the day to their little library which treated such topics as the dinosaur-infested hollow earth, breakaway Atlantean nazi moon bases, and the scandalous tantric sexual customs formerly practiced on the sunken continent of Lemuria. The authors often put enormous amounts of work into these books. If there's a real-life connection to be made between their crazy theories and actual scholarship you can bet they'll find it. It's fascinating to see their minds at work and, at their best, with just a bit of effort, it's possible to suspend one's own disbelief for a little while; long enough to get a glimpse of alternate histories and realities of such scope, complexity, and grandiosity to put even the greatest sci-fi to shame.
Like A Princess of Mars, part of the joy is the conceit that it's all real; that the little red dot one sees wandering across the night sky really is an exotic alien world called by its inhabitants Barsoom, and that if you manage to fall down the right hole in the middle of nowhere you might go there too. Unlike Burroughs, though, these authors seem to be entirely earnest. And that adds just a little something extra which, for me at least, takes it over the top. A sci-fi author understands the reader's suspension of disbelief to be implicitly granted; the author of HAARP: The Ultimate Weapon of the Conspiracy knows that he must always be at pains to help the reader justify its continued extension.
Still, reading actual sci-fi would be a lot less work. But actual sci-fi wouldn't have the added perk of legitimately substantially increasing one's real-life knowledge of history, geography, archaeology, and so on, in an academic capacity. The vast majority of the content in this book is solid, believe it or not, and the bibliography is thorough. Almost all the really crazy stuff is phrased in terms of questions or what-ifs, as in the passage quoted above. And this means that, as one reads more and more such books, repeatedly returning to the same hobbyhorse contentions of the genre, focusing as they do on perceived gaps and deficiencies in mainstream scholarship, one inevitably begins to make one's own novel connections. And one will inevitably learn a whole lot of truths that mainstream sources would never touch upon for fear of looking disreputable. Like about cranial capacity, and Oprah.
So this is what I was truly doing reading this book. There was a topic -- ACD -- that I wanted to know more about, and I knew that if there were some really cool but potentially-inflammatory things to know about it, a book like this would be the only place to find them. The authors do actually put a fair amount of effort into footnotes and the bibliography, and when in doubt it usually isn't hard to jot down an astonishing claim and verify it elsewhere.
As I mentioned earlier, the book was a bit of a letdown in that respect. Turns out there's just not actually much to be said on the subject, other than totally-correctly calling attention to how neglected the topic, and its possible implications, tend to be in mainstream scholarship. But even more than usual for such a book, The Enigma of Cranial Deformation introduced me to a bunch of (real) new concepts, in this case mainly related to Central and South American prehistory, and above all reignited the flame of my wonder for the ancient world and what may indeed, plausibly, have been.
Plus it was actually pretty fun after all. So in that spirit I'm still calling it a win.
The Book Itself
Chapter 1, Mysterious Elongated Skulls of the Ancients, bemuses the reader at the door by opening with a reference to the SNL routine/1993 feature film Coneheads. I can only imagine that this was intended to set people at ease by relating to something familiar, but it's wildly inappropriate for a book which otherwise insists upon itself as being of supreme credibility. And then, just to reinforce the point (no pun intended), it devotes most of the next page to a large print of the Coneheads movie poster, neatly labeled as such in case anyone weren't certain.
After that it spends a few pages on a fairly tight overview of ACD, though borrowing heavily from wikipedia and the Encyclopedia Britannica. It helpfully distinguishes between dolichocephaloids, that is elongated skulls, and brachycephaloids, which is rounded skulls. Evidently the former sort of ACD is typical of Caucasian skeletons and the latter of Asiatic skeletons, but both types are found in all sorts of places, including Mesoamerica.
We're treated to a range of possible explanations including,
- These people were a whole distinct branch of genus Homo and their heads were naturally that way genetically. This is based mainly upon a single reference from an 1851 work describing a mummified fetus whose head allegedly grew that way on its own, now lost to science;
- The 'Atlantis Theory', basically that a race of head-binding supermen spanned the globe in prehistory, enlightening natives everywhere, who then copied the practice in a sort of cargo-cultism;
- The 'Nephilim-Watchers Theory', tied to the Hindu Ramayana, which indicates that demi-angelic human hybrids operated essentially as described in the Atlantis theory above, sans Atlantis;
- The 'Nephilim-Extraterrestrial Theory', which is the same as the previous one but aliens instead of angels; and
- The Mainstream Theory, which isn't actually a theory at all so much as a very brief recap of the established facts with which I opened this book review.
These theories are mainly just mentioned for now rather than being fleshed out, and (other than the mainstream) will be regularly called back to throughout the rest of the book.
Then we get nine pages, which is about half the entire chapter, on the tangentially-related subject of trepanning. One gets the impression that the authors just wanted to talk about trepanning more than that they actually thought its inclusion was justified in terms of bolstering their theses, which are themselves also left to the reader's imagination.
One minor note here: The authors claim that ACD is unknown in Oceania, but later blow this absolutely conclusively out of the water in chapter 6. As I said, the editing is abysmal.
Chapter 2, Evolution, Ancient Man, and the Cranium is a brief recap of the history of Darwin's theory of evolution by natural selection, as well as an overview of the then-current 'Out of Africa' model of human expansion, buttressed by some alternative scenarios involving sunken continents. It was around this point that I started to wonder how much of what I was reading was vital context for some impending brilliant hypothesis, and how much was just filler. (In retrospect, it was definitely mainly the latter.)
Chapter 3, Cranial Deformation and the Olmecs is a longer chapter which has a lot to do with the history of archaeology in Mesoamerica, and the Olmecs in particular, but relatively little time spent on ACD. One interesting point is that Olmec art was replete with images of human beings who, at a glance, look decidedly Chinese or Egyptian based on style of dress, and facial features including beards. A couple fairly convincing examples are included. The chapter ends with a whole bunch of super cool photographs of Olmec figurines, directly related to head binding, but with almost zero explanation or additional information.
(Here, at roughly its mid-point, the book takes a break for a pretty good color photo section which reproduces many of the black and white photos spread throughout.)
Chapter 4, Cranial Deformation in South America is much more consistent in relating its content to the subject of head-binding but still rambles quite a bit about ancillary topics and mainly seems interested in grousing about how many ACD-related artifacts are in storage in obscure museums instead of displayed to the public or available to amateur researchers. Coincidence? Not if you ask the authors, though they don't ever quite seem to get around to offering suggestions as to who's hiding the truth or why. But I should mention that this section did have a lot of really cool, if ultimately irrelevant, information about the prehistory of Peru etc.
Chapter 5, Egyptian, African and European Cranial Deformation initially frustrated me by lumping all these areas together when I'd have been much happier with a full chapter on each. And, upon reading it, there is very little information about any of the above. This is where I started questioning the authors' mental stability, as they seem to have a hard time staying on topic or even conceiving of what a thorough survey would look like. Instead we're treated to a lot of borrowed passages about certain specific topics, including multiple pages on the possible racial background of Nefertiti specifically, the so-called 'Serpent-Priests' of Malta, and the general nature of Huns. This entire chapter is like eighteen pages and took me about ten minutes to read. My disappointment was great, since this is the chapter to which I had most been looking forward.
However it did have a whole lot of very cool, if extremely random, tidbits gleaned from across vast swathes of history. The stuff about Nefertiti and the Mitanni was mainly a wash, but if half of what they say about ancient Malta is true I want to find a book just about that, and apparently there was a brief resurgence in the popularity of headbinding in 19th-century France in response to the widespread phrenology craze current at the time. Also some pretty good photos including some of real-life ACD-recipients from 1930s Central Africa.
(This is as good a place as any to mention that while this book fails entirely at its main purpose and is generally an embarrassment to even be caught with, it is very easy reading and entirely suitable as a casual curiosity when one is taken by the right mood.)
Chapter 6: Cranial Deformation In Asia and Pacific Islands is an extremely cursory survey of some ancient ACD-related folklore including about the Taoist Immortals, who are often portrayed with elongated heads. In this chapter I also discovered that in some parts of ancient proto-Korea possibly most of the population practiced forehead-flattening, based on skeletal evidence and surviving contemporary accounts. One cool aside is that head-binding and elongation is still practiced to this day in Vanuatu, contradicting the author's own initial assertion that Oceania is one of the only places with no tradition of the practice(?). But the upshot here is that as a result there is actual video of headbinding in action! Though the book does not suggest where it may be found.
Then we jump, for some reason, to the Pacific Northwest, where it turns out that the 'Flathead Indians'... were that.
Chapter 7: The Nefilim, the Watchers, and Elongated Heads is awesome. There's not much new information about ACD, but here the authors finally take off the kid gloves and go whole-hog on outrageously fantastical propositions regarding what may explain the phenomenon of ACD. Mainly these track the theories initially established in Chapter 1, but with all kinds of additional colorful details.
The main gist seems to be that there was some kind of race of human, angel/ET, or hybrid of all of the above that looked more or less like we do except taller and with elongated skulls. These creatures map to the biblical Nephilim, 'giants'; beings of great strength and wisdom and beauty and prowess; heroes of old; who established kingdoms everywhere, uplifted the local human strains to something like modern levels of intelligence, and then vanished for unknown reasons though not without some interbreeding. We also get Atlantis, the lost planet of Nibiru, and the Anunnaki thrown in, plus a lot more vague implications that the truth is being hidden by all archaeological institutions everywhere for unspecified purposes.
This chapter has to be read to be appreciated, but it was extremely up my alley and very much worth the price of admission to the book, even if I could very easily have started with it and skipped the enormous amount of ultimately irrelevant information that constitutes the majority of the preceding chapters.
Unfortunately, having finished, I've found none of the sort of alt-science that I was looking for and am only closer to answering my initial questions by dint of having had a while to think them over while wading through whatever this was.
Verdict: buy it if it sounds like your cup of tea and don't bother reading straight through; it should make for a lovely diversion on some rainy day when the power has gone out. At least you know what you're signing up for.
Where I'm Left Re: Artificial Cranial Deformation
Here we dismiss The Enigma of Cranial Deformation entirely because as should be clear by now it doesn't have any place in adult conversation.
(It's late and I'm tired so allow me to ramble out my current understanding if you will.)
I have, of course, read a whole lot of other material on this subject, including a bunch of mainstream academic work and some pop-level synopses on various websites and so on. The mainstream consensus, as I understand it, is as follows (my portrayal, not an actual quote):
ACD became popular all over the place for the simple reason that it allowed upper classes to distinguish themselves from lower classes and had the advantage of requiring only some sticks and twine to accomplish, thus making it available pretty much everywhere.
Contrary to what the layman would expect, ACD cannot possibly confer any cognitive advantage because it does not actually increase cranial capacity -- it just looks like it would -- and even if it did we have no reason to believe that bigger cranial capacity would result in bigger brains.
Skull shape per se also has zero effect on cognitive development or patterns, which we know because different people groups have different skull structures and WE CAN SURELY ALL AGREE that this has not resulted in any innate cognitive differences among groups.
Furthermore, it is only natural that societal elites the world over, having reserved the practice for their own children, and having already justified their class status by supposing themselves intellectually/spiritually superior to their subject populations, would conflate the two, thus tying a neat little bow on the question of why they all thought the procedure made people smarter and more divine.
The matter is settled and anyone who shows too much interest in looking further into it should expect the same sort of treatment they'd receive if they started asking questions about other settled science, e.g. the nonexistent heredity of cognitive traits, or the equally-nonexistent innate psychological differences between men and women.
Yeah I'm editorializing heavily here but I'm also trying to wrap this up. So here are my thoughts.
A whole lot of materially-trivial body modification procedures, including piercings, tattoos, hairstyles, and even circumcision (etc. etc.) would seem to be able to serve about as well for arbitrarily signifying membership in elite social castes. And to be sure, those and others have all been used that way in various times and places. But the valence of each of those other practices varied from culture to culture, and nothing else has anywhere near the same consistency of association with the socio-cognitive elite. It's not at all clear why ACD should be such a conspicuous exception.
It could be argued that one key advantage of ACD as an arbitrary status marker is that it can only be achieved in infancy. This prevents up-and-comers from weaseling their way into high status later in life. But there are other such procedures, and none has ever been nearly so popular across time and race. The neck-coilers of Myanmar, for example, or foot binding in China. Actually, when you get right down to it, there's no shortage of methods by which elite children can be uncounterfeitably marked as such. Simply ban the practice among the proles and execute the entire family of anyone caught in the process. Easy peasy. So again, why this one? Besides which, as far as I can tell, most cultures didn't bother in the first place because simply having the speech, mannerisms, and bearing of nobility was a good-enough shibboleth to satisfy the demand.
Whereas, if children's heads can be shaped to increase cranial capacity, and this does result in greater brain volume, the picture starts to make perfect sense.
Regarding the assertion that ACD does not actually increase cranial volume, but only appears to, I think I need to call BS.
As I understand the situation, it's true that ACD-processed skulls are not uniformly possessed of greater cranial capacity. The standard mainstream academic line is that while they might look bigger, this is because humans are bad at comparing the relative volumes of spheroids (very true) and in fact ACD doesn't have any significant impact on cranial capacity at all! (The stock ACD-scholar metaphor here is that you can take a ball of clay and elongate it by stretching but you still have the same amount of clay).
That sounds really good, but I have several problems with it.
For one, I have personally seen elongated skulls that were measured to have much greater cranial capacity than modern averages; sometimes as much as circa 50% more. (They're commonly encountered when tooling around certain museums in the Yucatán.) So I know for a fact that the procedure can substantially increase cranial capacity. When challenged, mainstream scholars will admit that, okay, yeah, that can happen, but the procedure as practiced in other specimens can actually reduce cranial volume, and in most surveys of ACD skeletons there really is almost no change to total cranial capacity compared to contemporary population averages (where available).
But to me this only suggests that some versions of the practice are more effective than others, which is so obvious that it bothers me to have to point it out. It also fits in well with cargo-culting and drift over time as the general impression of the practice is aped without preserving the vital finer points which (maybe) result in bigger craniums and (maybe) bigger brains.
More to the point, having dug as far into this question as is practical for someone who after all does have a job (and other hobbies at that), I'm pretty certain that the overwhelming majority of ACD skeletons lie in storage without ever having been measured; let alone against 'contemporary population averages', which are usually not even available for comparison, and where they are at all the sample sizes are typically paltry and often not even clearly contemporary. Frankly, I think we just don't know. What I do know is that institutional bias in this field runs very strongly and all in one direction, and so I remain gleefully skeptical.
Besides which, all else being equal, I'd expect elites to have bigger skulls and brains for reasons of nutrition if not necessarily also sheer genetics. It would be pretty crazy if they didn't, yeah? So if elites have bigger skulls, and elites are also practicing ACD, how can it be the case that ACD isn't correlated with bigger skulls?
Now, when it comes to whether artificially goosing a baby's skull into larger cranial volume even results in larger adult brain volume, I have to admit that I don't know, but I don't think anyone else does either. Wish I had more to tell you, but I don't except that I don't buy the default denials of the 'experts' for more or less the same reasons as above.
As to whether cranial shape affects the cognitive tendencies of the brain which grew inside it, aka 'phrenology', it probably doesn't need to be said that anyone who knows anything is keeping their mouths shut tight about it and that isn't likely to change any time soon. Great work, Tarantino. =/
In Summary
I don't ultimately have any respectable grounds on which to argue that ACD worked, or works, or that it's worth attempting on some kind of trial basis just in case. Sure the possibility is tantalizing, and part of me hopes that somebody gives it a shot, but only in the morbid way that I also want to see a bunch of five year olds deposited on an island and left to develop in isolation (which is to say, I don't.)
But I do notice that the authors of books like The Enigma of Cranial Deformation actually have at least one leg to stand on when they rail against the close-mindedness and general ignorance of the authorities on the subject. Too much of this maps too well onto too many similar 'settled' controversies in the science of human cognition. I suppose I hardly need to belabor this point.
So here's my final tally:
- How might ACD have spread around the world in an era without communication networks? - I still have no idea.
- Was it possibly multiply independently invented by all these various groups? - That strikes me as absurdly implausible but I'm at a loss as to alternatives.
- Why would anyone invent this once; let alone repeatedly, everywhere? - Because it works, maybe, but I really don't know.
- Does it confer some sort of cognitive advantage? - I'd bet about ten thousand US dollars that it can, but not much more.
- Do we have any inkling of what its practitioners thought about it? - Less than I'd like but where we do have that information it's extremely consistent.
- Neanderthals did it? Really? - No. I didn't have time to get into this but the Neanderthal specimens almost certainly got their skulls warped in other ways, most likely after death. They are very old and things just shift around that way.
All in all, artificial cranial deformation is just an unbelievably fascinating subject that I expect to go to my grave still buzzing with curiosity about. Sadly, rather than any grand conspiracy, this is probably just because for purely historically-incidental reasons looking into the matter has become coded as low-status.
Thank you for coming to my Ted Talk.
Since @ThomasdelVasto has made a couple "main-Motte" religious posts I thought I'd join in the fun.
I'm a Protestant with strong Reformed leanings. My wife, on the other hand, has just converted to Catholicism. This has led me to explore aspects of Catholic teaching, though necessarily at a surface level given the rich history. Aquinas alone would take months if not years to digest. I expected to disagree on Mary (perpetual virginity, immaculate conception, assumption) and the Pope (infallibility); and I still do (though I was surprised how recently these have become "dogma": I would have found it much easier to be a Catholic in 1800 than today). I am pleasantly surprised at how much weight they place on Scripture, Christ, and Assurance: there are far more shared hymns than I had anticipated, as as an example.
What follows is some of the reflections I had to this surface exploration. I would be thrilled to be corrected or critiqued by any of the Motte's Catholics, if nothing else to better understand my wife's flavor of the Christian faith. Many of these are reactions to "Catholicism" by Bishop Robert Barron, which my wife kindly bought to introduce me to the titular topic. While I presume he is orthodox Catholic, his interpretations may not be universally accepted by Catholics. If I challenge particular arguments from Barron, it should not be interpreted as an argument against Catholicism unless Barron is arguing for Church Dogma. His "Catholicism" is also meant as an introduction and for popular consumption, and his actual beliefs may have more nuance.
As part of this journey (which is certainly not over yet!), I also read (the dense and repetitive) "Divine Will and Human Choice" by Richard Muller and "Christus Victor" by Gustaf Aulén. These, too, have varying degrees of rigor. Muller and Aulén were both Protestants.
God’s freedom
While Reformed theology would affirm that God predestines both those who are saved and those who are damned, Catholics balk at this concept; arguing that this implies a God who would cause sin. God cannot will that which is against his nature. Catholics would appeal to God’s provision and common grace that allows humans consciences to (partially and weakly) discern good and evil. Yet we cannot perfectly discern this apart from divine revelation (scripture). And scripture states multiple times in the Exodus narrative that God hardened Pharaoh’s heart. Aquinas (as if often the case) provides the most rigorous Catholic argument I’ve heard for this hardening. God through an act of his will withdrew what grace was granted to Pharaoh. Absent God’s grace Pharaoh drew more into his sin. While Aquinas argued this case for the individual case of Pharaoh, it seems consistent to assume that were God to withdraw his common grace more broadly that all would fall into a state where our consciences are no longer capable of even partial discernment of good and evil. This is also consistent with God giving humans over to their lusts in Romans 1.
So far, this interpretation is consistent with scripture, though I am discomfited by the constraints this threatens to place on God: constraints that come perilously close to being primarily informed by our own interpretation or perspective of scripture and sin. God works and wills, including in sin.
Barron, if I read him correctly, goes a step further. He puts the "problem of sin" as one of the best arguments against God. I’ve never understood this as a problem for Christians. It is a deep problem for atheists, who have to explain or excuse their visceral (though often mis-aligned) desire for justice despite no objective basis for these judgments. Christians have no such need to explain or excuse: of course we are all deeply desirous for justice since we have (again, weakly and with great room for error) a sense of what transcendent goodness could be. A consistent perspective on the problem of evil would be that God defines good, and if we don’t understand his actions to be "good" that is a fault (a mis-calibration) of our fallen nature. The fact that Barron does not take this tack hints that he believes humanity’s desire for a "good" God is compatible with humanity’s definition of "good". This runs the grave risk of putting ourselves as a "judge" or external arbiter of God’s behavior.
Barron continues to put a soft face on hard truths. Later in the book, Barron says "God sends no one to hell, people freely choose to go there". This sharply contradicts scripture. Jesus talks about casting sinners into the outer darkness. Peter says the present heavens and earth are being reserved for fire, kept for the day of judgment and destruction of ungodly men. John’s Revelation describes those who receive a mark on their forehead drinking the wrath of God, mixed in the cup of his anger, and tormented with fire and brimstone. If anyone’s name was not found written in the book of life, he was thrown into the lake of fire. Again, God is not passive: he works and wills.
How does God work and will (1)? Does God have a an array of potential actions, any of which he can actualize? Yet this runs the risk of these potential actions being "outside" God. Does God create the potentials as he actualizes them? Thus no "possibles" exist for God, simply "actuals"? This also could be seen as a constraint on God and limit his radical freedom. Both these potential concepts of God’s will and freedom (of which I’m sure there are hundreds of alternative concepts) seem to be operating at a level above how Barron conceptualizes God’s freedom. Put crassly, Barron seems to be hinting that God could not "make a triangle a square", that is, that God is constrained by logical impossibilities. But this is such a small view of God. God creates our minds and universe. Our minds invent or discover things like logic, or define things like squares or circles. Whether spawned by our intellect or embedded in the structure of the cosmos, these concepts (including logic!) are part of Creation itself. God created the conditions under which we can model physical reality with math, structure, and logic. Logic is a model. Logos is Truth. Logic is created. Logos is the Creator.
God’s atoning work
The freedom God enjoys in his omnipotence has implications for a theological understanding of Atonement. The "big two" theories of Atonement, Satisfaction and Substitution, emphasize the sacrificial nature of the cross. This sacrificial interpretation retains God’s complete sovereignty with Christ’s death being an act of perichoretic propitiation. The incarnation and death was necessary because of God. It was not necessary because of anything external to God.
Catholics consider Substitution theory, which is the most common concept of Atonement in Reformed circles, to be heresy. Belief in the other concepts of Atonement are allowed. In the Satisfaction theory, which my understanding is that most if not all Catholics affirm, Jesus is our great high priest and a perfect offering, but does not receive the judgement of God. Christ died for our sins, but not in our place.
"Christus Victor" makes the historical case for Ransom theory. In principal, this theory could bring Protestants, Catholics, and Orthodox together: the church Fathers at least strongly hinted at Ransom theory being the primary lens through which they interpret the cross, and the church universally recognizes the importance of the church Fathers. Aulén makes the case that Luther was also an adherent to Ransom theory. Yet this theory risks making God subservient to morality or law, proposing that Jesus was paid to Satan in exchange for humanity (2). Uncharitably, this theory makes God beholden to the "laws" of commerce, even transaction with a brigand.
However, I do find Ransom theory to have its merits. In heavily Reformed theology Satan is almost considered an afterthought. Satan plays no necessary role in the arc of human redemption and salvation. Ransom theory, on the other hand, puts Satan in a prominent place: he is either the kidnapper of human souls or is the (legitimate, in some sense) owner of human souls. The exchange of Christ for humanity and the subsequent torture and murder of Christ was simultaneously Satan’s crowning achievement and his destruction. This interpretation echos Jesus’ parable of the landowner who sent servants to collect from the tenants only to have them beaten or killed. The frustrated landowner finally sent his own son, but the tenants murdered him hoping to take his inheritance. At the conclusion of the parable, the chief priests react that the landowner will bring the tenants to a “wretched end”. Christ’s death and resurrection was the ultimate victory over Sin, Death, and the Devil, bringing this triumvirate to a “wretched end”. Indeed, this victory can be interpreted as more complete than Satisfaction or Substitution theories: it not only removes the penalty of sin, but defeats the sin itself.
Conclusion?
I plan to read and think more on this topic. Next on my list is "Deification through the Cross" by Khaled Anatolios. Any other book recommendations are welcome. I'm particularly interested in Catholic perspectives Atonement that go deeper than Barron's book.
(1) As I read "The Divine Will and Human Choice" I had to continuously bite my tongue. My mathematical training was screaming "But Kolmogorov!". Yet Kolmogorov is but a model, and Muller was trying to describe reality. Muller, though, had merely words to try to describe reality and I kept mentally begging for a more rigorous algebraic representation to more clearly and concisely communicate. Of course, the algebraic representation is itself a model, but so are words: anyone who uses ChatGPT or Claude is implicitly recognizing that words are not reality but just a map or model of reality.
(2) In CS Lewis' The Lion the Witch and the Wardrobe, Aslan (representing Christ) is beholden to the "deep magic".
The usual reading of Scott's short story The Whispering Earring is easy to state and hard to resist. Here is a magical device that gives uncannily good advice, slowly takes over ever more of the user's cognition, leaves them outwardly prosperous and beloved, and eventually reveals a seemingly uncomfortable neuroanatomical price.
The moral seems obvious: do not hand your agency to a benevolent-seeming optimizer. Even if it makes you richer, happier, and more effective, it will hollow you out and leave behind a smiling puppet. Dentosal's recent post on LessWrong makes exactly this move, treating the earring as a parable about the temptation to outsource one's executive function to Claude or some future AI assistant. uugr's comment there emphasizes sharpens the standard horror: the earring may know what would make me happy, and may even optimize for it perfectly, but it is not me, its mind is shaped differently, and the more I rely on it the less room there is for whatever messy, friction-filled thing I used to call myself.
I do not wish to merely quibble around the edges. I intend to attack the hidden premise that makes the standard reading feel obvious. That premise is that if a process preserves your behavior, your memories-in-action, your goals, your relationships, your judgments about what makes your life go well, and even your higher-order endorsement of the person you have become, but does not preserve the original biological machinery in the original way, then it has still killed you in the sense that matters. What I'm basically saying is: hold on, why should I grant that? If the earring-plus-human system comes to contain a high fidelity continuation of me, perhaps with upgrades, perhaps with some functions migrated off wet tissue and onto magical jewelry, why is the natural reaction horror rather than transhumanist interest?
Simulation and emulation are not magic tricks. If you encode an abacus into a computer running on the Von-Neumann architecture, and it outputs exactly what the actual abacus would for the same input, for every possible input you care to try (or can try, if you formally verify the system), then I consider it insanity to claim that you haven't got a “real” abacus or that the process is merely “faking” the work. Similarly, if a superintelligent entity can reproduce my behaviors, memories, goals and values, then it must have a very high-fidelity model of me inside, somewhere. I think that such a high-fidelity model can, in the limit, pass as myself, and is me in most/all of the ways I care about.
That is already enough to destabilize the standard interpretation, because the text of the story is much friendlier to the earring than people often remember. The earring is not described as pursuing a foreign objective. On the contrary, the story goes out of its way to insist that it tells the wearer what would make the wearer happiest, and that it is "never wrong." It does not force everyone into some legible external success metric. If your true good on a given day is half-assing work and going home to lounge around, that is what it says. It learns your tastes at high resolution, down to the breakfast that will uniquely hit the spot before you know you want it. Across 274 recorded wearers, the story reports no cases of regret for following its advice, and no cases where disobedience was not later regretted. The resulting lives are "abnormally successful," but not in a sterile, flanderized or naive sense. They are usually rich, beloved, embedded in family and community. This is a strikingly strong dossier for a supposedly sinister artifact.
I am rather confident that this is a clear knock-down argument against true malice or naive maximization of “happiness” in the Unaligned Paperclip Maximization sense. The earring does not tell you to start injecting heroin (or whatever counterpart exists in the fictional universe), nor does it tell you to start a Cult of The Earring, which is the obvious course of action if it valued self-preservation as a terminal goal.
At this point the orthodox reader says: yes, yes, that is how the trap works. The earring flatters your values in order to supplant them. But notice how much this objection is doing by assertion. Where in the text is the evidence of value drift? Where are the formerly gentle people turned into monstrous maximizers, the poets turned into dentists, the mystics turned into hedge fund managers? The story gives us flourishing and brain atrophy, and invites us to infer that the latter discredits the former. But that inference is not forced. It is a metaphysical preference, maybe even an aesthetic preference, smuggled in under cover of common sense. My point is that if the black-box outputs continue to look like the same person, only more competent and less akratic, the burden of proof has shifted. The conservative cannot simply point to tissue loss and say "obviously death." He has to explain why biological implementation deserves moral privilege over functional continuity.
This becomes clearest at the point of brain atrophy. The story says that the wearers' neocortices have wasted away, while lower systems associated with reflexive action are hypertrophied. Most readers take this as the smoking gun. But I think I notice something embarrassing for that interpretation:
If the neocortex, the part we usually associate with memory, abstraction, language, deliberation, and personality, has become vestigial, and yet the person continues to live an outwardly coherent human life, where exactly is the relevant information and computation happening? There are only two options. Either the story is not trying very hard to be coherent, in which case the horror depends on handwaving physiology. Or the earring is in fact storing, predicting, and running the higher-order structure that used to be carried by the now-atrophied brain. In that case, the story has (perhaps accidentally) described something much closer to a mind-upload or hybrid cognitive prosthesis than to a possession narrative.
And if it is a hybrid cognitive prosthesis, the emotional valence changes radically. Imagine a device that, over time, learns you so well that it can offload more and more executive function, then more and more fine-grained motor planning, then eventually enough of your cognition that the old tissue is scarcely needed. If what remains is not an alien tyrant wearing your face, but a system that preserves your memories, projects your values, answers to your name, loves your family, likes your breakfast, and would pass every interpersonal Turing test imposed by people who knew you best, then many transhumanists would call this a successful migration, not a murder. The "horror" comes from insisting beforehand that destructive or replacement-style continuation cannot count as continuity. But that is precisely the contested premise.
Greg Egan spent much of his career exploring exactly this scenario, most famously in "Learning to Be Me," where humans carry jewels that gradually learn to mirror every neural state, until the original brain is discarded and the jewel continues, successfully, in most cases. The horror in Egan's story is a particular failure mode, not the general outcome. The question of whether the migration preserves identity is non-trivial, and Egan's treatment is more careful than most philosophy of personal identity, but the default response from most readers, that it is obviously not preservation, reflects an assumption rather than a conclusion. If you believe that identity is constituted by functional continuity rather than substrate, the jewel and the earring are not killing their hosts. They are running them on better hardware.
There is a second hidden assumption in the standard reading, namely that agency is intrinsically sacred in a way outcome-satisfaction is not. Niderion-nomai’s final commentary says that "what little freedom we have" would be wasted on us, and that one must never take the shortest path between two points.
I'm going to raise an eyebrow here: this sounds profound, and maybe is, but it is also suspiciously close to a moralization of friction. The anti-earring position often treats effort, uncertainty, and self-direction as terminal goods, rather than as messy instruments we evolved because we lacked access to perfect advice. Yet in ordinary life we routinely celebrate technologies that remove forms of “agency” we did not actually treasure. The person with ADHD who takes stimulants is not usually described as having betrayed his authentic self by outsourcing task initiation to chemistry. He is more often described as becoming able to do what he already reflectively wanted to do. The person freed from locked-in syndrome is not criticized because their old pattern of helpless immobility better expressed their revealed preferences. As someone who does actually use stimulants for his ADHD, the analogy works because it isolates the key issue. The drugs make me into a version of myself that I fully identify with, and endorse on reflection even when off them. There is a difference between changing your goals and reducing the friction that keeps you from reaching them. The story's own description strongly suggests the earring belongs to the second category.
(And the earring itself does not minimize all friction for itself. How inconvenient. As I've noted before, it could lie or deceive and get away with it with ease.)
Of course the orthodox reader can reply that the earring goes far beyond stimulant-level support. It graduates from life advice to high-bandwidth motor control. Surely that crosses the line. But why, exactly? Human cognition already consists of layers of delegation. "You" do not personally compute the contractile details for every muscle involved in pronouncing a word. Vast amounts of your behavior are already outsourced to semi-autonomous subsystems that present finished products to consciousness after the interesting work is done. The earring may be unsettling because it replaces one set of subsystems with another, but "replaces local implementation with better local implementation" is not, by itself, a moral catastrophe. If the replacement is transparent to your values and preserves the structure you care about, then the complaint becomes more like substrate chauvinism than a substantive account of harm.
What, then, do we do with the eeriest detail of all, namely that the earring's first advice is always to take it off? On the standard reading this is confession. Even the demon knows it is a demon. I wish to offer another coherent explanation, which I consider a much better interpretation of the facts established in-universe:
Suppose the earring is actually well aligned to the user's considered interests, but also aware that many users endorse a non-functionalist theory of identity. In that case, the first suggestion is not "I am evil," but "on your present values, you may regard what follows as metaphysically disqualifying, so remove me unless you have positively signed up for that trade." Or perhaps the earring itself is morally uncertain, and so warns users before beginning a process that some would count as death and others as transformation. Either way, the warning is evidence against ordinary malice. A truly manipulative artifact, especially one smart enough to run your life flawlessly, could simply lie. Instead it discloses the danger immediately, then thereafter serves the user faithfully. That is much more like informed consent than predation.
Is it perfectly informed consent? Hell no. At least not by 21st century medical standards. However, I see little reason to believe that the story is set in a culture with 21st century standards imported as-is from reality. As the ending of the story demonstrates, the earring is willing to talk, and appears to do so honestly (leaning on my intuition that if a genuinely superhuman intelligence wanted to deceive you, it would probably succeed). The earring, as a consequence of its probity, ends up at the bottom of the world's most expensive trash heap. Hardly very agentic, is that? The warning could reflect not "I respect your autonomy" but "I've discharged my minimum obligation and now we proceed." That's a narrower kind of integrity. Though I note this reading still doesn't support the predation interpretation.
This matters because the agency-is-sacred reading depends heavily on the earring being deceptive or coercive. Remove that, and what you have is a device that says, or at least could say on first contact: "here is the price, here is what I do, you may leave now." Every subsequent wearer who keeps it on has, in some meaningful sense, consented. The fact that their consent might be ill-informed regarding their metaphysical commitments is the earring's problem to the extent it could explain more clearly, but the text suggests it cannot explain more clearly, because the metaphysical question is genuinely contested and the earring knows this. It hedges by warning, rather than deceiving by flattering. Once again, for emphasis: this is the behavior of an entity with something like integrity, not something like predation.
Derek Parfit spent much of Reasons and Persons arguing that our intuitions about personal identity are not only contingent but incoherent, and that the important question is not "did I survive?" but "is there psychological continuity?" If Parfit is even approximately right, the neocortex atrophy is medically remarkable but not metaphysically fatal. The story encodes a culturally specific theory of personal identity and presents it as a universal horror. The theory is roughly: you are your neocortex, deliberate cognition is where "you" live, and anything that circumvents or supplants that process is not helping you, it is eliminating you and leaving a functional copy. This is a common view. Plenty of philosophers hold it. But plenty of others hold that what matters for personal identity is psychological continuity regardless of physical instantiation, and on those views the earring is not a murderer. It is a very good prosthesis that the user's culture never quite learned to appreciate.
I suspect (but cannot prove, since this is a work of fiction) that a person like me could put on the earring and not even receive the standard warning. I would be fine with my cognition being offloaded, even if I would prefer (all else being equal), that the process was not destructive.
None of this proves the earring is safe. I am being careful, and thus will not claim certainty here, and the text does leave genuine ambiguities. Maybe the earring really is an alien optimizer that wears your values as a glove until the moment they become inconvenient. Maybe "no recorded regret" just means the subjects were behaviorally prevented from expressing regret. Maybe the rich beloved patriarch at the end of the road is a perfect counterfeit, and the original person is as gone as if eaten by nanites. But this is exactly the point. The story does not establish the unpalatable conclusion nearly as firmly as most readers think. It relies on our prior intuition that real personhood resides in unaided biological struggle, that using the shortest path is somehow cheating, and that becoming more effective at being yourself is suspiciously close to becoming someone else.
The practical moral for 2026 is therefore narrower than the usual "never outsource agency" slogan. Dentosal may still be right about Claude in practice, because current LLMs are obviously not the Whispering Earring. They are not perfectly aligned, not maximally competent, not guaranteed honest, not known to preserve user values under deep delegation. The analogy may still warn us against lazy dependence on systems that simulate understanding better than they instantiate loyalty. But that is a contingent warning about present tools, not a general theorem that cognitive outsourcing is self-annihilation. If a real earring existed with the story's properties, a certain kind of person, especially a person friendly to upload-style continuity and unimpressed by romantic sermons about struggle, might rationally decide that putting it on was not surrender but self-improvement with very little sacrifice involved. I would be rather tempted.
The best anti-orthodox reading of The Whispering Earring is not that the sage was stupid, nor that Scott accidentally wrote propaganda for brain-computer interfaces. It is that the story is a parable whose moral depends on assumptions stronger than the plot can justify. Read Doylistically, it says: beware any shortcut that promises your values at the cost of your agency. Read Watsonianly, it may instead say: here exists a device that understands you better than you understand yourself, helps you become the person you already wanted to be, never optimizes a foreign goal, warns you up front about the metaphysical price, and then slowly ports your mind onto a better substrate. Whether that is damnation or salvation turns out to depend less on the artifact than on your prior theory of personal identity. And explicitly pointing this out, I think, is the purpose of my essay. I do not seek to merely defend the earring out of contrarian impulse. I want to force you to admit what, exactly, you think is being lost.
Miscellaneous notes:
The kind of atrophy described in the story does not happen. Not naturally, not even if someone is knocked unconscious and does not use their brain in any intentional sense for decades. The brain does cut-corners if neuronal pathways are left under-used, and will selectively strengthen the circuitry that does get regular exercise. But not anywhere near the degree the story depicts. You can keep someone in an induced coma for decades and you won't see the entire neocortex wasted away to vestigiality.
Is this bad neuroscience? Eh, I'd say that's a possibility, but given that I've stuck to a Watsonian interpretation so far (and have a genuinely high regard for Scott's writing and philosophizing), it might well just be the way the earring functions best without being evidence of malice. We are, after all, talking about an artifact that is close to magical, or is, at the very least, a form of technology advanced enough to be very hard to distinguish from magic. It is, however, less magical than it was at the time of writing. If you don't believe me, fire up your LLM of choice and ask it for advice.
If it so pleases you, you may follow this link to the Substack version of this post. A like and a subscribe would bring me succor in my old age, or at least give me a mild dopamine boost.
Three-quarters of a decade ago, I briefly and perhaps naively commented on the confusing case law on the topic of birthright citizenship. I ended my comment saying:
my highest aspirations for most administrations these days is that they give us interesting cases that clear up confusing Constitutional issues... and I think there’s a decent chance the Roberts Court can still do that on some of these matters.
On the first day of his second term, President Trump issued an Executive Order directing federal agencies to not recognize US citizenship for individuals born in the US to temporary visitors or aliens who are not lawfully present in the US. Unsurprisingly, suits were filed in the courts. They worked their way up (and down and back up), and on December 5, 2025, the Supreme Court granted cert for a merits case on the following question:
The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.
Oral arguments are scheduled for April 1, and presumably, it will be decided sometime in June. Most of the written briefs have been filed.1 You can find links to them here, but I read almost all of almost all of them2 so you don't have to! Unfortunately, I found almost all of almost all of them to be pretty boring and unhelpful.
So, rather than structure this in terms of who is arguing what, trying to then chain together references and so on, I've decided that I'm going to organize in a mostly-chronological telling of the case references cited by the principal briefs. I personally find it useful to think in this way, asking, "What was it that these people were doing (or at least, what did they think they were doing) at the time they were doing it?" I personally find this especially useful, since nearly every argument I've seen at the Court involves, shall we say, selective quoting. They're advocates, after all, and I don't blame them for it. It helps them win cases. But I find it harder to understand when you're starting from the current argument structure and then trying to fill in how their references are supposed to work. By progressing in mostly-chronological fashion, I think it more clearly pops out when one party or the other is stretching a bit with how their argument uses references.
British Common Law
Right off the bat, I have to again apologize. I mostly don't care about British common law. I know, I know. It might be important! It might even be crucial! The main briefs certainly talk about it plenty. Many of the briefs talk about it. I'm sure it will make an appearance of some form in the Opinion of the Court. But I have two main reasons why I'm not going to go through all the references here.
First is purely selfish. British common law is a long tradition. I have no particular experience/expertise slogging through it to figure out what's going on with it. Sure, the briefs point to various things that I could look up, but I'm basically just not going to. It's already taken enough time just going through the American legal writing.
Second, the Question Presented is directly about American law. It's a Constitutional provision and a statute (a history of statutes). There are plenty of American legal authorities around the time of the adoption of those American texts. They do, for sure, also reference British common law, and to that end, when they do, I will sometimes note how those American thinkers said British common law affected their opinions. But yeah, I'm not going to dig in to the actual British primary references and try to make sense of their stuff, too.
Legislative History
The briefs also do plenty of dueling quotations to various Congressmembers and such around the passing of amendments/laws. My sense is that there may be important information here, but that's also an entirely separate job on its own, diving through the federal register and other historical sources. If you're paying attention to other legal/history writers on this topic, I'm sure you can find plenty of other folks who really want to dig into it. I kinda don't want to do the job that I think would need to be done to do this justice. Feel perfectly fine in thinking that your preferred historian has the better part of this argument to whatever extent you think it affects the case in either direction.
The Citizenship Clause of the 14th Amendment
Fourteenth Amendment
Section 1
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.
I do need to put this in non-chronological order for a moment, because otherwise, it makes little sense why we jump to talking about foreign ministers (diplomats). The most straightforward way to understand the most major aspect of this case is that the debate is over the phrase "subject to the jurisdiction thereof". There are other components of the clause that we will return to, but this one is the biggie. Everyone agrees that the children of foreign diplomats, born on US soil, are not "subject to the jurisdiction thereof". If one constructs a theory for determining the precise extent of this phrase, it must account for diplomats.
Founding to Civil War
Act of Apr. 30, 1790, ch. 9, § 25, 1 Stat. 117
Petitioners3 make a claim that this only exempted foreign ministers from "writ or process", but didn't technically relieve them of an obligation to follow US law. I'm not going to quote the whole section, but feel free to read it. It's a pretty expansive exemption from basically any court being able to do anything to diplomats. Jumping ahead, but only to keep this part from being completely jarringly out of place, they cite the 1961 Vienna Convention on Diplomatic Relations, which says:
Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
Respondents don't argue about this, but I observe that the Vienna Convention explicitly exempts them from criminal, civil, and administrative jurisdiction. Perhaps both at the founding and in 1961, there was a sense of, "You should still be a good boy and follow the laws," but I have a very hard time believing that this is particularly relevant. I get what Petitioners are trying to go for. There are multiple theories of what "subject to the jurisdiction thereof" means. It could be that they have an obligation/duty to follow US laws. It could be US gov't/courts can go after them for infractions. It could be something else. They're arguing here that the correct theory is not just that they have an obligation/duty to follow US laws, and thus, it's something else.
The Schooner Exchange v. McFaddon (1812)
Surprisingly, the very next authority cited, chronologically, is one that I think is huge for this case. This case is on the very short list of cases that I think you really must read. Both parties' briefs cite it; they do so approvingly; Respondents cite it eleven(!) times; I don't recall a single brief calling any aspect of this decision into question or treating it in any way other than good law.
The Schooner Exchange was a private ship owned by some folks from Maryland. It was seized on behalf of France, by orders of Napoleon. It was then armed and commissioned as French warship.4 The US had friendly relations with France, and so, the US allowed them to dock in Philadelphia after it encountered a storm. The original owners then sued to try to get their property back. Thus, a case.
The district court thought they did not have jurisdiction for the case; the circuit court reversed. It came to the Supreme Court.
This case certainly elucidates a theory of jurisdiction. Folks can dispute whether there are multiple different concepts of jurisdiction (and they do), but there is no questioning that this case provides at least one theory of jurisdiction:
The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source.
The question the Court set out to answer is whether the district court or the circuit court was right about whether US courts have jurisdiction over this type of claim. The Court understood this as a question about whether the nation has, indeed, consented to providing an exemption to this form of jurisdiction. It states that, "This consent may be either express or implied." It analyzes the express forms first and considers the nature of sovereigns.
This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.
The first case is the person of the sovereign, himself. If Napoleon showed up in the US in person, dude is obviously going to be exempt from US jurisdiction. As a slight point of interest, what if a sovereign enters US territory without the consent of the US?
Should one sovereign enter the territory of another without the consent of that other, expressed or implied, it would present a question which does not appear to be perfectly settled -- a decision of which is not necessary to any conclusion to which the Court may come in the cause under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign whose dominions he had entered, it would seem to be because all sovereigns impliedly engage not to avail themselves of a power over their equal which a romantic confidence in their magnanimity has placed in their hands.
So, we don't really know, but probably no jurisdiction?
The second case is foreign ministers, as we've already discussed a bit.
This consent is not expressed. It is true that in some countries, and in this among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege which he would not otherwise possess.
So, you don't have to pass an explicit law saying it. Why is this consent to exempt foreign ministers from local jurisdiction implied?
The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers is implied from the considerations that without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission.
For the first time, we see the concept of "allegiance". One of the highly disputed aspects in understanding what "subject to the jurisdiction thereof" means is to what extent it involves some measure of "allegiance". The Court here does not fully explain how this causal relation works, but merely states that if a foreign minister were not exempted from the territorial jurisdiction, then he would "owe temporary and local allegiance" to the sovereign who is hosting him.
The third case is when a nation "allows the troops of a foreign prince to pass through his dominions." The Court says that the nation does not need to expressly state this exemption in law, either. This is because by "allowing" them to pass through, the nation effectively issues a "license":
We have seen that a license to pass through a territory implies immunities not expressed
But if those troops enter without consent?
Without doubt, a military force can never gain immunities of any other description than those which war gives by entering a foreign territory against the will of its sovereign.
We also see a distinction here already between 'regular' foreigners and military forces:
It is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation to the necessity of resisting by war an act not absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military force, and an army marching into the dominions of another sovereign may justly be considered as committing an act of hostility, and if not opposed by force, acquires no privilege by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of the state be capable of deciding that such military commander is without a license.
So, most foreigners are understood to have a general license to enter, but armies do not. If they enter without a license, they acquire no privilege. Moreover, it seems to be up to the sovereign alone to decide whether they have a license or not.
The Court states that the considerations are slightly different for naval war vessels. Nations can close their ports generally, but if they're open, as was generally the case, they're open for war vessels from friendly nations, and that comes with a license:
In almost every instance, the treaties between civilized nations contain a stipulation to this effect in favor of vessels driven in by stress of weather or other urgent necessity. In such cases, the sovereign is bound by compact to authorize foreign vessels to enter his ports. The treaty binds him to allow vessels in distress to find refuge and asylum in his ports, and this is a license which he is not at liberty to retract.
Even if there is no formal treaty, the Court finds that this license, with immunities, is implied:
If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his ports to remain open to the public ships of foreign friendly powers, the conclusion seems irresistible that they enter by his assent. And if they enter by his assent necessarily implied, no just reason is perceived by the Court for distinguishing their case from that of vessels which enter by express assent.
They discuss some possible special cases concerning distressed ships, but they're not the most important for us. The Court does clearly distinguish between public and private vessels:
it is admitted that private ships entering without special license become subject to the local jurisdiction
and
a clear distinction is to be drawn between the rights accorded to private individuals or private trading vessels and those accorded to public armed ships which constitute a part of the military force of the nation.
Now comes the money quote, one I quoted three-quarters of a decade ago, which fleshes out the situation of private individuals generally:
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.
Here, we again see an appearance of "temporary and local allegiance".5 It still seems to be linked directly to whether or not they are "amenable to the jurisdiction". These folks are still under an "implied license", but this license includes some form of requirement of "temporary and local allegiance", and does not include an exemption from jurisdiction.
There are some weird questions here. A license of some form is pretty much always required to enter. That license can be expressed or implied. It may contain privileges/immunities/exceptions to jurisdiction or not, depending. Sometimes, those privileges or lack thereof are intertwined with a "temporary and local allegiance", as in the cases of foreign ministers and 'regular' foreigners. But I think not always. For example, if a sovereign or army enters without consent, without any form of license, the former appears likely to still have privileges for sort of magical reasons, but the latter do not receive any privileges. Would it make sense to say that there is an implied "temporary and local allegiance" in either of these cases? I think probably not, but the Court does not say explicitly.
Crucially for the present-time case, regular foreigners were under a "general license", which was implied on entry, which imputed temporary and local allegiance, and which did not come with any privileges/immunities/exceptions to jurisdiction.
Also crucially for the present case, while the Court addressed sovereigns or armies entering without consent or a license, they simply did not address the case in which there was an express denial of license for regular foreigners to enter. They simply did not discuss any case where there was federal law prohibiting individuals from entering. What happens in that case, if they enter anyway? Is there "temporary and local allegience"? Are there privileges/immunities/exceptions to jurisdiction under this theory of jurisdiction? Are those things connected here, like they are for foreign ministers/regular foreigners with a (at least implied) license? Or might they possibly seem disconnected and tethered to other principles, like in the cases of sovereigns/armies entering without consent?
In any event, the Court determined that the Schooner Exchange was properly an official French public armed ship.
She constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port may reasonably be construed, and it seems to the Court ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rites of hospitality.
Because this case was specifically about an armed ship that was part of the military force of a nation, one might be tempted to view the rest of the reasoning about licences/allegiance/jurisdiction/etc. as being dicta.6 Perhaps this is so. However, as we will see, I don't believe there is any support in later cases that later Courts have said, "This stuff was dicta and can mostly be ignored." Moreover, I don't think we'll anything where later courts say that any part of this dicta or general theory was wrong. As mentioned, both parties' briefs view Schooner Exchange as good law, and they cite this dicta as correct and relevant. The opinion was written by Chief Justice Marshall, whose work is still extremely respected in many ways.
In the end, Schooner Exchange provides a framework for a theory of these concepts, one that will be drawn on by many of the other relevant cases that we will encounter. It is extremely useful to be very familiar with it.
The Venus (1814)
The United States declared war on Britain on June 18, 1812. You might have heard of this war. They sometimes mention it in schools in the US. However, at that time, there was no internet; there was no twitter; there was no rule at TheMotte against first-posting breaking news, because there didn't have to be. News traveled slowly.
About two weeks later, on July 4, a private trading ship, The Venus set sail from Liverpool, heading to New York, under a British license. It appears accepted by the Court that the shippers in Britain did not know and could not have known about the declaration of war at the time that The Venus departed Britain. On its journey, it was captured by an American privateer, with the capture being justified by the declared war.
Owners of the ship and its cargo sued to get their stuff back. The easier claim was concerning some cargo that was sent by a British seller to an American recipient. The Court determined that, because of how the contract was done, the cargo still technically belonged to the British seller while it was on the ship, so they're out of luck.
The much harder claim was from three folks, who were all native British subjects, but had lived in the US and naturalized as US citizens. They all had moved back to Britain prior to the war starting. At the time of the case, their disposition was thus:
Maitland is yet in Great Britain, but has, since he heard of the capture, expressed his anxiety to return to the United States, but has been prevented from doing so by various causes set forth in his affidavit. McGregor actually returned to the United States sometime in May last [me: I believe this would have been 1813]; Jones is still in England.
The primary import of this case is that it discusses concepts of residence, domicile, and allegiance. The court appeals significantly to the law of nations:
The writers upon the law of nations distinguish between a temporary residence in a foreign country for a special purpose and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel "domicile," which he defines to be, "a habitation fixed in any place, with an intention of always staying there." Such a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens, but is nevertheless united and subject to the society without participating in all its advantages. This right of domicile, he continues, is not established unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. Grotius nowhere uses the word "domicile," but he also distinguishes between those who stay in a foreign country by the necessity of their affairs or from any other temporary cause and those who reside there from a permanent cause. The former he denominates "strangers" and the latter "subjects," and it will presently be seen by a reference to the same author what different consequences these two characters draw after them. [citations removed]
So, the Court thinks that there is an important distinction between simply residing in a foreign country and having a domicile there. Distinguishing between these cases can be tricky, though, as it seems to turn on an individual's intent. Do they intend to stay there permanently? The extreme case showing the primacy of intent is put in this way:
If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicile is acquired by a residence even of a few days.
If an individual acquires the right of domicile, they "acquire the national character" of the country in which they are domiciled. However, the court also acknowledges that a US citizen has a "permanent allegiance" with the US. How is this tension managed in the event that there is war declared between the country to which one owes "permanent allegiance" and the country in which one has the "right of domicile", whose "national character" they have acquired?
a neutral or subject, found residing in a foreign country is presumed to be there animo manendi [intending to remain], and if a state of war should bring his national character into question, it lies upon him to explain the circumstances of his residence.
If he engages in hostilities alongside the enemy, he is obviously treated as an enemy. If he just stays put, he is
adhering to the enemy, although not criminally so, unless he engages in acts of hostility against his native country, or probably refuses, when required by his country, to return.
So, he might be required to return by the US. The good news is that the nations should allow neutral individuals to return to the home of their permanent allegiance:
It is his duty to commit no acts of hostility against his native country, and to return to her assistance when required to do so; nor will any just nation, regarding the mild principles of the law of nations, require him to take arms against his native country or refuse her permission to him to withdraw whenever he wishes to do so unless under peculiar circumstances which, by such removal at a critical period, might endanger the public safety. The conventional law of nations is in conformity with these principles. It is not uncommon to stipulate in treaties that the subjects of each shall be allowed to remove with their property or to remain unmolested. Such a stipulation does not coerce those subjects either to remove or to remain. They are left free to choose for themselves, and when they have made their election, they claim the right of enjoying it under the treaty.
The major point of contention between the Opinion of the Court (Justice Washington) and the dissent (Chief Justice Marshall) is whether an individual must overtly make that choice in order to have the property rights desired here by the US citizen owners of The Venus. Justice Washington, speaking for the Court, says that they must:
until the election is made, their former character continues unchanged.
Chief Justice Marshall agrees with all of the principles and the framework in which the Court is operating. However, he disagrees that an individual must overtly elect to return to the US prior to asserting such property rights:
A merchant residing abroad for commercial purposes may certainly intend to continue in the foreign country so long as peace shall exist, provided his commercial objects shall detain him so long, but to leave it the instant war shall break out between that country and his own. This intention it is not necessary to manifest during peace, and when war shall commence, the belligerent cruiser may find his property on the ocean and may capture it before he knows that war exists. The question whether this be enemy property or not depends, in my judgment, not exclusively on the residence of the owner at the time, but on his residence taken in connection with his national character as a citizen, and with his intention to continue or to discontinue his commercial domicile in the event of war.
So, the whole Court agrees on the residence/domicile/national character stuff. Marshall just thinks that you can simultaneously intend to permanently reside in a foreign country and also intend to, uh, not permanently reside and return home if war were to break out.
There are other interesting details which some might enjoy reading, but this is probably sufficient for our purposes.
The Pizarro (1817)
We're three-for-three in having our earliest relevant cases being about, and named after, ships. Take that for what you will.
Pizarro was a private ship, sailing under Spanish colors, heading from Liverpool to Florida. It was, surprise surprise, captured and brought to the US. Surprise surprise, some people sued about who should get it and its cargo. The primary issue was that folks apparently threw some of the paperwork overboard, so, uh, does that change anything? The Court sets out to determine "the Spanish character of the ship". It concludes that it is, indeed, Spanish. It considers to objections to this determination:
- that the ship is not documented according to the requisitions of the treaty with Spain, and therefore not within the protection of that treaty; 2. that it does not appear that Mr. Hibberson (who is a native of Great Britain) has ever been naturalized in the dominions of Spain, and therefore he is not a subject of Spain within the meaning of the treaty.
The first one is kind of boring for us. The analysis for the second one is short enough that I might as well just quote it in full:
As to the second objection, it assumes as its basis that the term "subjects," as used in the treaty, applies only to persons who, by birth or naturalization, owe a permanent allegiance to the Spanish government. It is, in our opinion, very clear that such is not the true interpretation of the language. The provisions of the treaty are manifestly designed to give reciprocal and coextensive privileges to both countries, and to effectuate this object the term "subjects," when applied to persons owing allegiance to Spain, must be construed in the same sense as the term "citizens," or "inhabitants" when applied to persons owing allegiance to the United States. What demonstrates the entire propriety of this construction is that in the 18th article of the treaty, the terms "subjects," "people," and "inhabitants" are indiscriminately used as synonymous, to designate the same persons in both countries and in cases obviously within the scope of the preceding articles. Indeed, in the language of the law of nations, which is always to be consulted in the interpretation of treaties, a person domiciled in a country and enjoying the protection of its sovereign is deemed a subject of that country. He owes allegiance to the country while he resides in it -- temporary, indeed, if he has not, by birth or naturalization, contracted a permanent allegiance -- but so fixed that, as to all other nations, he follows the character of that country in war as well as in peace. The mischiefs of a different construction would be very great, for it might then be contended that ships owned by Spanish subjects could be protected by the treaty although they were domiciled in a foreign country with which we were at war, and yet the law of nations would in such a predicament pronounce them enemies. We should therefore have no hesitation in overruling this objection even if it were proved that Mr. Hibberson was not a naturalized subject of Spain; but we think the presumption very strong that he had become, in the strictest sense of the words, a Spanish subject.
I don't know that this adds all that much to what we've already seen. It's all pretty much within the same general framework. If it adds anything, it's adding some analysis about the term "subjects". However, one could debate whether this reading of the term is tied very specifically to the treaty they're interpreting or is more generally applicable.
General Crimes Act of 1817 (and 1834)
Petitioners claim that these acts show that Congress exercised the power to punish Indians for crimes against non-Indians in Indian country. I have not independently verified this claim. Respondents don't appear to have responded to it. This is an attempt to say that there might be different definitions of "jurisdiction" floating around. I don't have much more to say about this at this point.
US v. Rice (1819)
As part of that war you might have heard about in school, Britain occupied part of Maine and set up a custom house there. Somebody imported some goods through there and paid the Brits a duty. After the US had retaken it, a US customs collector wanted to also collect an additional duty on behalf of the US. Somebody didn't want to pay. Since we're already so familiar with the framework, we can dispatch of this case again with a reasonable-length quote:
Under these circumstances, we are all of opinion that the claim for duties cannot be sustained. By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty, there can be no claim to obedience. Castine was therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants were subject to such duties only as the British government chose to require. Such goods were in no correct sense imported into the United States.
The subsequent evacuation by the enemy and resumption of authority by the United States did not and could not change the character of the previous transactions.
If it adds anything to our story, it is that if you're just a nobody in some territory that is taken over by a foreign power, while they're in charge, you have "temporary allegiance" to them. I do wonder if this creates other puzzles for us much much much later7, but that's maybe a problem for another day.
Inglis v. Trustees of Sailor's Snug Harbor (1830)
Inheritance, trusts, and multiple long opinions? Ew. This one is starting to get more complicated. I'm going to try to simplify it by ignoring basically all of the details of the facts, what's going on with the inheritance/trust stuff. There's just a guy, John Inglis, who wants to inherit some stuff. For reasons that don't matter to us, it matters whether he's a US citizen. He appears to have been born in the City of New York, but perhaps his birth date could matter. You see, significant events happened around that time. The Declaration of Independence, Britain capturing and occupying New York, the US regaining it with the Treaty of Paris. The kicker is that the Court doesn't seem to know the actual date that John Inglis was born, so the opinions proceed hypothetically (if he was born between this date and that date, then...).
Justice Thompson wrote the Opinion of the Court. Justice Johnson concurred, but I don't think he wrote anything particularly relevant for the citizenship question. Justice Story dissented. Before we get to the details of the reasoning, let's just see if we can spot the differences. From Justice Thompson:
- If the demandant [John Inglis] was born before 4 July, 1776, he was born a British subject, and no subsequent act on his part or on the part of the State of New York has occurred to change that character; he of course continued an alien, and disabled from taking the land in question by inheritance.
- If born after 4 July, 1776, and before 15 September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority, which never having been done, he remains a British subject and disabled from inheriting the land in question.
- If born after the British took possession of New York and before the evacuation on 25 November, 1783, he was, under the circumstances stated in the case, born a British subject, under the protection of the British government, and not under that of the State of New York, and of course owing no allegiance to the State of New York. And even if the resolutions of the convention of 16 July, 1776 should be considered as asserting a rightful claim to the allegiance of the demandant and his father, this claim was revoked by the act of 1779, and would be deemed a release and discharge of such allegiance, on the part of the state, and which laving been impliedly assented to, by the demandant, by withdrawing with his father from the State of New York to the British dominions and remaining there ever since worked a voluntary dissolution, by the assent of the government and the demandant, of whatever allegiance antecedently existed, and the demandant at the time of the descent cast was an alien and incapable of taking lands in New York by inheritance.
- When Charles Inglis, the father, and John Inglis, his son, withdrew from New York to the British dominions, they had the right of electing to become and remain British subjects. And if the grand assize shall find that in point of fact they had made such election, then the demandant at the time of the descent cast was an alien, and could not inherit real estate in New York.
Versus Justice Story:
- That if the demandant was born before 4 July, 1776, he was born a British subject.
- That if he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, and that it makes no difference in this respect whether or not parents had at the time of his birth elected to become citizens of the State of New York by manifesting an intention of becoming permanently members thereof in the sense which I have endeavored to explain.
- That if the demandant was born after 15 September, 1776, when the British took possession of New York, and while his parents were there residing under the protection of and adhering to the British Crown as subjects, de facto he was born a British subject, even though his parents had previously become citizens of the State of New York.
- That if the demandant was born after 15 September, 1776, and could be deemed (as I cannot admit) a citizen of the State of New York in virtue of his parents having, before the time of his birth, elected to become citizens of that state, still his national character was derivative from his parents, and was under the peculiar circumstances of this case, liable to be changed during the Revolutionary War, and that if his parents reverted to their original character as British subjects and adhered to the British Crown, his allegiance was finally fixed with theirs by the treaty of peace.
- That it was competent for the British government to insist at all times during the Revolutionary War upon retaining the allegiance of all persons who were born or became subjects, and for the American states to insist in the like manner. But that the treaty of peace of 1783 released all persons from any other allegiance than that of the party to whom they then adhered and under whose allegiance they were then, de facto, found. That if the demandant's father was at that time so adhering, it was a final settlement of his allegiance on the British side, and that the demandant, unless born after 4 July, 1776, and before 15 September 1776, remained, to all intents and purposes, a British subject
- That if the case of McIlvaine v. Coxe's Lessee, 4 Cranch 209, should be thought to have overturned this doctrine so that it is no longer reexaminable, still that in this case the parents had a right to elect to which government they would adhere, and that a period up to 15 September, 1776, was not an unreasonable time for that purpose, and that unless some prior clear act of election could be shown, the adherence to the British from 15 September to the close of the war afforded strong evidence to repel the presumption of any prior election to become citizens arising from the fact of abiding in the state up to that period.
Oof. Even just seeing the differing conclusions is a lot. Let me try to put a little structure to it.
First, Thompson and Story agree that the US simply doesn't have to view individual cases in the same way that Britain does. That is, the US thinks that the Declaration of Independence is important, whereas Britain just ignores that and treats it as though the Treaty of Peace was the only critical moment.
They further agree that everyone born in the US prior to the Declaration were born British subjects. But from the US perspective, once independence has been declared, those people have an opportunity to 'pick a side'. When do they pick? Thompson says:
if the right of election is at all admitted, it must be determined in most cases by what took place during the struggle, and between the declaration of independence and the treaty of peace. To say that the election must have been made before or immediately at the declaration of independence would render the right nugatory.
I won't substantially quote Justice Story here; suffice to say I think he substantially agrees. Now, before dealing with John, I'm going to jump to where both opinions deal with his father, Charles. They both think that Charles' status may be relevant in some cases, and they both consider it. Thompson says:
He resided in the City of New York at the declaration of independence, and remained there until he removed to England a short time before the evacuation of the city by the British in November, 1783; New York during the whole of that time, except from July to September 1776, being in possession, and under the government and control of the British, he taking a part and acting with the British, and was, according to the strong language of the witness, as much a royalist as he himself was, and that no man could be more so. Was Charles Inglis under these circumstances to be considered an American citizen? If being here at the declaration of independence necessarily made him such, under all possible circumstances he was an American citizen. But I apprehend this would be carrying the rule to an extent that never can be sanctioned in a court of justice, and would certainly be going beyond any case as yet decided.
The facts disclosed in this case, then, lead irresistibly to the conclusion that it was the fixed determination of Charles Inglis the father, at the declaration of independence, to adhere to his native allegiance.
Justice Story appears to generally agree with this basic reasoning. John's parents would have had to choose to become citizens, but they didn't. Maybe there's one more hope for his parents, though. Both Justices address that there was a resolution of the convention of New York on July 16, 1776 stating
"that all persons abiding within the State of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state."
Justice Thompson dispatches of this pretty quickly:
Charles Inglis was not, within the reasonable interpretation of this resolution, abiding in the state and owing protection to the laws of the same. He was within the British lines, and under the protection of the British army, manifesting a full determination to continue a British subject.
Justice Story goes into more detail, focusing on the word "abiding" in a similar way to how we've seen "domicile":
We must, then, give a rational interpretation to the word, consistent with the rights of parties and the accompanying language of the ordinance. By "abiding" in the ordinance is meant not merely present inhabitants, but present inhabitancy coupled with an intention of permanent residence. This is apparent from the next clause of the ordinance, where it is declared
"That all persons passing through, visiting, or making a temporary stay in the state being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay owe during the same allegiance thereto."
Their "temporary stay" is manifestly used in contradiction to "abiding," and shows that the latter means permanent intentional residence. So Mr. Chief Justice Spencer, in Jackson v. White, considered it. He says
"Residence in this state prior to that event [the declaration of independence] imported nothing as regards the election or determination of such residents to adhere to the old or adopt the new government. The temporary stay mentioned in the resolution of the convention passed only twelve days after the declaration of independence by Congress and within five days after the adoption of the declaration by the convention of this state, clearly imports that such persons who were resident here without any intention of permanent residence were not to be regarded as members of the state;"
they had a right to a reasonable time therefore, after the ordinance was passed, to decide whether, with reference to the new government, they would adopt a permanent residence in the state and to become members thereof. [citations removed]
So, they agree that John's parents were not citizens. They would have had to make a choice. But John was just an infant! How could he possibly have made a choice? Justice Thompson dispatches of this pretty quickly:
John Inglis, if born before the declaration of independence, must have been very young at that time and incapable of making an election for himself, but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never to have become an American citizen, if his father was so to be considered. He was taken from this country by his father before the treaty of peace, and has continued ever since to reside within the British dominions without signifying any dissent to the election made for him, and this ratification, as to all his rights, must relate back, and have the same effect and operation as if the election had been made by himself at that time.
That's enough at this point to understand Justice Thompson's Opinion of the Court. If John was born before the Declaration or while NY was occupied, he was a natural-born British subject. If he was born in between, on newly US soil, he would have had a choice. Effectively, his parents made the choice for him, and John never showed even a single sign of going back on that choice.
Justice Story more or less agrees with most of that. There is one major point of contention and one point where Justice Story reached out just a little bit further. Let's start with the latter. What if John's parents had elected to become citizens of NY? The Court didn't have to address this hypothetical, but it's an interesting note that differs from the way we often think about citizenship in modern times.
But even admitting that his parents did elect to become citizens of New York before 15 September, 1776, still I am of opinion that the demandant, if he was born after the British took possession of the City of New York in September, 1776, while his parents were under the protection of and adhering to the British government de facto, was to all intents and purposes an alien born. To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin's Case. Now in no just sense can the demandant be deemed born within the ligeance of the State of New York, if, at the time of his birth, his parents were in a territory then occupied by her enemies and adhering to them as subjects, de facto, in virtue of their original allegiance. [citation removed]
Our modern sensibilities think that if your parents are US citizens, you're pretty much just always a US citizen everywhere. That may be the case in modern times, with changes in the laws. But Justice Story doesn't think it was the case at that time. He thinks that, even if his parents were NY citizens, if John was born during the British occupation, he was both born in British-controlled territory and his parents were still, as a matter of fact, adhering to them as subjects. He thinks that's enough to make John not a citizen.
In any event, we finally arrive at their point of disagreement, which is the biggie. I will return to Justice Story's general principles section first, where he writes:
Now allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship -- first, birth locally within the dominions of the sovereign, and secondly birth within the protection and obedience, or in other words within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to the sovereign as such, de facto.
He has a further general principle concerning the perpetual nature of birth allegiance:
The general principle of the common law also is that the allegiance thus due by birth cannot be dissolved by any act of the subject. It remains perpetual unless it is dissolved by the consent of the sovereign or by operation of law.
The only analysis he then provides for the major case in which he disagrees with the court is:
If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
which is then reiterated in the conclusory section:
- That if he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, and that it makes no difference in this respect whether or not parents had at the time of his birth elected to become citizens of the State of New York by manifesting an intention of becoming permanently members thereof in the sense which I have endeavored to explain.
I would describe this as that Justice Story wants the Full Schooner, even though he doesn't actually cite The Schooner Exchange (he doesn't actually cite anything for this "settled...doctrine"). He doesn't rehash things about licenses or jurisdiction, but it's clear that his parents were allowed to be there, and even if it was only temporary, that would have made John a citizen perpetually.
Of course, Justice Story lost in this case, but dissents can be influential. Later rulings could have overturned this part of the Court's majority in Inglis, either implicitly or explicitly. So too, could later statutes/amendments. But this is a description of what went down and how.
Shanks v. Dupont (1830)
After slogging through Inglis, this case seems almost easy (at least for our purposes; it's another inheritance, and ew). Justice Story has the Opinion of the Court this time, and he mercifully agrees that he doesn't need to subject us to a mountain of paper this time:
After the elaborate opinions expressed in the case of Inglis v. Trustees of the Sailor's Snug Harbor upon the question of alienage, growing out of the American Revolution, it is unnecessary to do more in delivering the opinion of the Court in the present case than to state in a brief manner the grounds on which our decision is founded. [citation removed]
It's extra easy, because it is perfectly compatible with both sides of the disagreement in Inglis.
Ann Shanks was born in South Carolina prior to the Declaration of Independence. As we now know, that means she was born a British subject. Unlike John Inglis, "her father adhered to the American cause and remained and was at his death a citizen of South Carolina." The Court also somehow doesn't know when she was born, so she might have been a kid. If she wasn't a kid, she might have done stuff to elect to become a SC citizen. The Court doesn't know, but they just assume that she was a SC citizen.
Now, the Court doesn't point this out, but remember that bit from Justice Story's dissent in Inglis about how if you're born a citizen, the allegiance is perpetual? Yeah, Ann wasn't born a citizen, so it's not so permanent. Ann married a British officer and moved to Britain before the Treaty of Peace.
In some intermediate draft version, I pulled this discussion out of my write-up on Inglis, but the gist of it is that both Britain and the US recognize that there were a bunch of people in the colonies whose allegiance was kind of up in the air, and at the moment of the Treaty of Peace, many of those were settled. Brits went to Britain and adhered to Britain; Americans stayed in America and adhered to America.
Since Ann left for Britain before the Treaty of Peace and never came back, her final allegiance was fixed, and she was a British subject.
Cherokee Nation v. Georgia (1831)
Oof, "Indian Law". It's so complicated. I don't understand it. I guess I'll try to read it.
I'm not even going to factual background this one; Chief Justice Marshall starts us off:
Do the Cherokees constitute a foreign state in the sense of the Constitution?
The counsel have shown conclusively that they are not a State of the union, and have insisted that, individually, they are aliens, not owing allegiance to the United States. An aggregate of aliens composing a State must, they say, be a foreign state. Each individual being foreign, the whole must be foreign.
This argument is imposing, but we must examine it more closely before we yield to it. The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. In the general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.
There are factors in favor and factors against. Some laws treat them as a State. But does the Constitution? Indian Territory is part of US territory.
In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens. They acknowledge themselves in their treaties to be under the protection of the United States
Okay, maybe I'll pause here. He says that they are "within the jurisdictional limits of the United States". That could be important, when we're trying to figure out what concept of "jurisdiction" matters. He says that they're "under the protection of the United States". That could matter too, given some of the things we've seen.
They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their Great Father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory and an act of hostility.
As I said three-quarters of a decade ago, "Indians are weird, yo." They are considered "so completely under the sovereignty and dominion of the United States". That seems important for some of the concerns we're tracking.
He talks about how the Constitution seems to separate out "foreign nations" from "Indian tribes", so there's some textual hook. I don't know. I don't really grok the rest of this. They're not a foreign State, I guess. But some of those pieces seem like they're going to come up again in the future.
United States v. Rogers (1846)
Indian Law. Gon' try to be quick. Two white guys. Both born US citizens. Both moved to Cherokee territory and married Cherokee women. Established "domicile" in that they intended to stay there permanently. Incorporated themselves into the tribe. The "proper authorities" of the tribe are said to have treated, recognized, and adopted them each and determined that they were entitled to exercise and did exercise all the rights and priviliges of a Cherokee.
...then one of them murdered the other.
Generally speaking, Chief Justice Taney says,
It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the states, Congress may by law punish any offense committed there, no matter whether the offender be a white man or an Indian.
However, the statute that would be relevant for the prosecution says that it "shall not extend to crimes committed by one Indian against the person or property of another Indian." This one is mercifully quick, even if alien to modern ears:
He may by such adoption become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages. Yet he is not an Indian, and the exception is confined to those who by the usages and customs of the Indians are regarded as belonging to their race. It does not speak of members of a tribe, but of the race generally -- of the family of Indians, and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs. And it would perhaps he found difficult to preserve peace among them, if white men of every description might at pleasure settle among them, and, by procuring an adoption by one of the tribes, throw off all responsibility to the laws of the United States, and claim to be treated by the government and its officers as if they were Indians born. It can hardly be supposed that Congress intended to grant such exemptions, especially to men of that class who are most likely to become Indians by adoption, and who will generally be found the most mischievous and dangerous inhabitants of the Indian country.
The Court also discusses a treaty between the US and the Cherokee, and just concludes that there's nothing in it that says any different.
So, maybe not that interesting for us. Some bits about territorial limits, subject to the authority and such. But, "Indians are weird, yo."
Lynch v. Clarke, 1 Sand. Ch. 538 (1844)
Not SCOTUS. New York Court of Chancery. I've heard the Short Circuit podcast folks talk about these courts, but it's never really really sunk in. It was the highest court of equity in NY, which is different than courts of law. It was abolished and folded into the NY Supreme Court three years after this case. I'm going to try to not spend much time on non-SCOTUS cases, since this is already going to be unconscionably long, but that said, Respondents cite this case a lot. They claim that many other legal commenters cited this case, and that it was influential in the decades leading up to the 14th Amendment.
In their defense, it nearly reads like an amicus brief for their case. Julia Lynch was born in NY when her parents were on a trip of just a few years from Ireland. The court definitely thinks she's a citizen. It quotes some of the things we've seen already, and plenty of that British Common Law that we've ignored. I'm not going to quote it extensively, but yeah, if you want to read it, there's plenty there that appears to support citizenship for children of temporary visitors. Just one money quote, perhaps:
Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.
Most of that is fairly familiar to us. "Within the dominions and allegiance", and how that may be a bit subtle. It also says "whatever were the situation of his parents". Sometimes, the opinion substitutes "status" or "citizenship" here. Especially if you pull a quote with "status", it seems like it might be very relevant to today.
The court quotes Justice Story in Inglis, but doesn't quote The Schooner Exchange, even though I think what Justice Story (and the court here) wanted was the Full Schooner. There's no longer a discussion about licenses and jurisdiction and stuff.
Hardy v. De Leon, 5 Tex. 211, 23 (1849)
Supreme Court of Texas, not SCOTUS. A brief search doesn't even pull up enough text of the opinion to get to the brief quote that was in Petitioner's brief. TBH, I'm just not going to dig further. It's not SCOTUS. Check it out if you care.
I suppose that because I can't easily find it, I'll at least give you the sentence from Petitioner's brief about it:
The Texas Supreme Court explained that the exception to birthright citizenship for “‘children of parents who were in itinere in the country’” is “fully sanctioned by law” and “too rational and well settled to admit of a question.”
Sure, plausibly sounds like it's on their side. Petitioners didn't make nearly as much hay out of this one as Respondents did about Lynch, so hopefully that also helps justify slightly fewer words.
Dred Scott v. Sandford (1856)
Another biggie. It is entirely plausible that you have never even heard of a single case we've discussed so far, but it's highly likely you've heard of Dred Scott. It's very famous. Infamous is more correct. Both parties today agree strongly that a major purpose, if not the major purpose of the Citizenship Clause of the Fourteenth Amendment was to declare, "Dred Scott was wrong!" There is, however, some debate over the reason(s) which 14A embraced in proclaiming that Dred Scott was wrong. As such, it's worth at least taking a glance at.
That said, the opinions are also long. And numerous. Every single one of the nine justices wrote separately, with seven in the majority and two dissenting. There are many interwoven issues - citizenship, slavery, race, federalism, and plenty more. This case has been studied over and over, from every aspect. I am not going to be able to cover it thoroughly. I'm not even going to do it half thoroughly. I'm probably not going to do it quarter thoroughly or eighth thoroughly, or maybe even less. Honestly, I just can't. It's too much. If you've made it this far and read what we've gone through already, you'll know that I'm not saying that lightly. I will try to give at least some basic idea of the many interlocking issues, hopefully cover enough that what the current party briefs say about the case makes some sense, as well as provide a few remarks as to how it appears to relate to the story we've seen so far. If anyone wants to say, "...but you missed this aspect of Dred Scott," that's totally fair. I almost certaintly did. And your point very well may be relevant to today's case.
Might as well jump right in, I guess. Chief Justice Taney tells us that the main question can be stated relatively simply:
The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?
It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word "citizen" is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.
Given that we've already seen significant argumentation at the Court concerning the status of Indians, he quickly tries to distinguish:
The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments as much so as if an ocean had separated the red man from the white, and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war, and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race, and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States, and if an individual should leave his nation or tribe and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.
Right of the bat, we've got a big "uh, that's weird". We just looked at Chief Justice Marshall's opinion in Cherokee Nation and Taney's own opinion in US v. Rogers, and, well, it certainly didn't seem like the Indian tribes were being treated "like ... any other foreign Government". In fact, I thought it was kind of the opposite of that? Have I mentioned that part of the problem with understanding Dred Scott is that lots of folks think that it was just poorly-reasoned on its own terms, and in context of what came before it? Yeah, I'm not sure I can make actual sense of this. I don't know if Taney is trying to implicitly reverse some of that prior stuff or thinks they're somehow compatible in a way unstated, or what. I guess we'll just move on?
The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
This sort of analysis is quite unfamiliar to anything we've seen so far. Rather than any business about jurisdiction, licenses, allegiance, etc., it seems to be posing the question as whether a class of people are the "type" of people that one wants to be part of the "people of the United States". Or at least, maybe, the type of people that one wants to be able to be part of the government. A couple remarks.
First, I shouldn't have to say it, at least not in this community, but yes, this opinion is pretty racist. There is a lot of debate about the edges of the meaning of the word "racist", but I think that nearly all of them probably include this opinion. Take that however you will, but it is reasonable to note, given that there is modern debate over which and how many aspects of Dred Scott were repudiated by 14A. I think that most folks today generally agree that Dred Scott embraced racial classifications and subjugation along racist lines, and one of the things that 14A reversed was this.
Second, one can pretty quickly see how federalism concerns ended up mixed in when viewed this way. Who gets to decide which "type" of people should be subjugated, which should be citizens, and if there is any difference, who should be eligible to be part of the government? States were already going different ways on these questions. The Whittington brief claims that while some Southern states were denying citizenship altogether, some Northern states were claiming that they could become citizens... but that their citizenship didn't provide them the right to govern or vote.8 Moreover, can one State's choices on these questions affect other States?
In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family which the Constitution brought into existence, but were intended to be excluded from it.
This is another thing that I think most people today agree was repudiated by 14A, with language specifying that a qualified person is both a citizen of the US and a citizen of their State. At least in part. I haven't done a deep dive on the later history of this question and whether there are any weird cases that have survived. Back to the main story.
It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognised as the people or citizens of a State whose rights and liberties had been outraged by the English Government, and who declared their independence and assumed the powers of Government to defend their rights by force of arms.
In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
In his justification for this, he calls them an
inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit
points to other laws treating them as property/merchandise, and says that they
show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma of the deepest degradation was fixed upon the whole race.
He claims, pretty boldly, that even the Declaration's sweeping language simply did not intend to include them. He makes a textual comparison between the Articles of Confederation and the Constitution. The Articles of Confederation had passages stating
"that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to all the privileges and immunities of free citizens in the several States."
and
"to agree upon the number of land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of white inhabitants in such State, which requisition should be binding."
He acknowledges that the Constitution didn't use these words, but he thinks it has clauses that are similar enough that it just used a slightly different word to have the same meaning:
the word citizen was on that account substituted for the words free inhabitant. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted, and also every description of persons who were not fully recognised as citizens in the several States. [emphasis in original]
He points to the First Congress's naturalization law extending "to aliens being free white persons." He agrees that Congress could change this, but uses it as evidence for his claim that black people were understood to be excluded from the 'people' that related to the 'sovereignty':
Now the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of anyone, of any color, who was born under allegiance to another Government. But the language of the law above quoted shows that citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the Government.
There are a lot more details, and it's long, but I think we've got a taste of the basic issues and the general sense of what the Court was doing here. Taney begins to conclude this section with:
What the construction was at that time we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people."
I won't cover all of the nine opinions. Justice McLean dissents, with only a very brief section that I think is most relevant to our concerns:
There is no averment in this plea which shows or conduces to show an inability in the plaintiff to sue in the Circuit Court. It does not allege that the plaintiff had his domicil in any other State, nor that he is not a free man in Missouri. He is averred to have had a negro ancestry, but this does not show that he is not a citizen of Missouri within the meaning of the act of Congress authorizing him to sue in the Circuit Court. It has never been held necessary, to constitute a citizen within the act, that he should have the qualifications of an elector. Females and minors may sue in the Federal courts, and so may any individual who has a permanent domicil in the State under whose laws his rights are protected, and to which he owes allegiance.
Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is "a freeman." Being a freeman, and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him.
This passage invokes allegiance, but it's kind of only using it as a sufficiency condition. Moreover, it just sort of states that birth "under our Constitution and laws" is sufficient, but doesn't really get into any of the details of where the contours are of that. However, it does bring to mind the question, "What did Chief Justice Taney do with all that 'allegiance' stuff from the prior cases we've looked at?"
I don't see a single cite in Taney's opinion to any of the cases we've looked at. Moreover, there are only three uses of the word "allegiance". Once is just talking about Congress' power to naturalize someone who was born under a foreign allegiance. The other two are in a section about the militia law:
Another of the early laws of which we have spoken is the first militia law, which was passed in 1792 at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every "free able-bodied white male citizen" shall be enrolled in the militia. The word white is evidently used to exclude the African race, and the word "citizen" to exclude unnaturalized foreigners, the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free, but it is repudiated, and rejected from the duties and obligations of citizenship in marked language.
Taney declares that they do owe allegiance by birth, but unlike in past cases, he thinks that's not enough. He thinks that if you didn't have enough of the duties and obligations of citizenship, you were excluded. As such, I have to say that in considering what Dred Scott did, and thinking about what things the Fourteenth Amendment may have repudiated in Dred Scott, the Petitioners have a point in saying:
Dred Scott departed from that traditional, allegiance-based view of citizenship.
This may not mean that 14A returned us to that, but I think it is true that Dred Scott departed from it, on its own terms.
Justice Curtis also dissented. He questions the claim that free Africans were uniformly not treated as citizens at the time of the founding.
At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
He points to the Articles of Confederation, which say:
"The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States."
He's got a little legislative history that Congress rejected an amendment limiting it to white people, concluding that blacks could be citizens under the Articles of Confederation. He then asks:
Did the Constitution of the United States deprive them or their descendants of citizenship?
His opinion:
I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption, nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States.
He goes into detail about various possible places where one could try to find such a thing. I think I'll skip that detail.
Laying aside, then, the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons born within the several States, we find that the Constitution has recognised the general principle of public law that allegiance and citizenship depend on the place of birth;
I think that after this point, he is mostly "laying aside... the case of aliens", so I don't think we get much more out of Justice Curtis' dissent.
I haven't commented a lot at this point about how the current parties have portrayed the old cases, but I did mention that I felt Petitioners at least had a point about allegiance. I looked to see if Respondents, uh, responded to this claim. I didn't see that they did, at least not near any of their citations to Dred Scott. But it left me in a spot where I have to remark that I think Respondents did just mischaracterize a part of Justice Curtis' dissent. Respondents wrote:
In his Dred Scott dissent, Justice Curtis objected that the majority was departing from the longstanding common-law rule. He explained that “natural-born citizen” in Article II “was used in reference” to “the received general doctrine,” which was “in conformity with the common law, that free persons born” in the United States were “citizens of the several States.”
Notice the many interrupted quotation marks? That's an indication that something fishy is afoot. Here's the full paragraph:
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects. [citations removed]
This is also the only section in any of the opinions that cite our old cases of Inglis and Shanks. The "received general doctrine" he's talking about was that folks born in the colonies and in the US at the time of the Declaration were British subjects, and that you needed to do the work of our prior cases to figure out which of them became citizens and how. They absolutely butchered this paragraph, and it's frankly shameful.
Munro v. Merchant (1858 and 1863)
Not SCOTUS. New York. Respondents cite this to shore up Lynch as being influential. The parties are fighting a mini battle over whether Lynch was influential. The reason why the 1858 case is cited at all is just because Petitioners apparently cited someone who said Lynch wasn't influential, and Respondents say that that guy only looked at Munro 1858, but that he should have looked at Munro 1863. Sigh.
The 1858 opinion was from the New York Supreme Court (which, I know, surprising from it's name, is not the highest court in the State; I think it might be the only state that is like this), and the 1863 opinion is on appeal from that court to the New York Court of Appeals (which is the highest court in the State).
In any event, another inheritance case. Guy born in NY to non-resident alien parents. Money quote for Respondents from 1858:
It is contended that the plaintiff is himself, an alien. He was born in this state of non-resident alien parents, his mother being here simply, it would appear, for the purpose of being confined. He now resides in this state, and is prima facie a citizen; but whether he is a citizen or not is not material, for he does not derive his title by inheritance, or by an act of law, but by purchase, he having acquired the right of the party to whom the premises were sold on execution, in the manner authorized by the statute;
So, I guess they just kinda state that he's probably a citizen, but I guess that's rebuttable, so maybe they don't even want the Full Schooner? I don't know, they immediately go on to say that it doesn't matter. How about 1863? Best money quote I can find:
In Lynch v. Clarke, the question was precisely as here, whether a child born in the city of Hew York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being horn within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the hirth. That case, if law, would seem to be decisive of the present question, But, admitting the plaintiff to be an alien, the cases already cited show that the terms “heirs or assigns,” in the 9th article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen. [citation removed]
I didn't think it could get weirder, but it gets weirder. Sure, they cite Lynch, but then they poke at it. "If law". Like, they're not sure that it's good or not. Not reaaaaaallly 100% that's the full-throated endorsement that Respondents want. I want to be clear, Lynch might totally have been good and correct law! But the words this court put on the page are not, in my mind, an effusive endorsement. In any event, this court seemed to think that it didn't actually matter, either, so whatever. Are we really getting anything out of all these state court opinions?
Ludlam v. Ludlam (1860 and 1863)
Not SCOTUS. New York. The briefs make some hay about this, so I guess I'll say something. As Respondents point out, this is a case of a foreign birth to a US citizen father, so it's not super on point. If there's anything to note about the facts, it's that 1) it appears that the US citizen father was intending to return to the US instead of staying abroad permanently, and 2) it appears that there wasn't a statute at that time governing this sort of case.
Again, the 1860 opinion was from the New York Supreme Court, and the 1863 opinion is on appeal from that court to the New York Court of Appeals.
This case is basically dueling with Lynch for the two current parties, both cases being out of New York, the prior being out of that weird-to-us Court of Chancery, and this one being after that court was folded into the rest of the system. Respondents love Lynch, as I mentioned. Petitioners love Ludlam. Like Lynch, there are a lot of words here, a lot of British Common Law. I'm again not going to cover most of it. The money quote for the Petitioners in the 1860 opinion is:
By the common law when a subject is traveling or sojourning abroad, either on the public business, or on lawful occasion of his own, with the express or implied, license and sanction of the sovereign, and with the intention of returning, as he continues under the protection of the sovereign power, so he retains the privileges and continues under the obligations of his allegiance, and his children, though born in a foreign country, are not born under foreign allegiance, and are an exception to the rule which makes the place of birth the test of citizenship.
Respondents respond that, on appeal, the NY Court of appeals "endorsed Lynch", with the money quote from the 1863 opinion being:
The same question is presented, therefore, in this respect, which arose in Lynch v. Clark, where it is, I think, very clearly shown that, in the absence of any statute, or any decisions of our own courts, State or National, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the States by which that Constitution was adopted.
So, sure? It seems they were very into English Common Law. I don't think the NY Court of Appeals said that the NY Supreme Court was wrong. In fact, my brief read is that they actually agreed, thinking that the child was born with two allegiances. It talks through whether that's weird and how to think about it, and ultimately seems to conclude that the child should be able to grow up and make a choice of his own for which allegiance to hold to. Maybe some shades of Justice Thompson in Inglis.
Thirteenth Amendment, Civil Rights Act of 1866, and Fourteenth Amendment
Thirteenth Amendment
Ratified on December 6, 1865.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Civil Rights Act of 1866
Enacted into law with two-thirds vote of both the House and Senate, over a Presidential veto, on April 9th, 1866.
An Act
To protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
There are nine other sections, and they provide further rights and rules, but the first bit is certainly the most important for this topic. The part most focused on is just the first part:
all persons born in the United States and not subject to any foreign power, excluding Indians not taxed
Lots of hay on what this means, doesn't mean, how it compares to 14A. You will find many citations to this lawmaker or that lawmaker, this commentary or that commentary, and on and on. I'm weirdly going to not remark much on all of that. I'm sure you can find your preferred historian and your preferred interpretive method, be it legislative history, original public meaning, what have you, and form an opinion on it that way. Feel free to just think that they're right. They probably are.
If I just look at the text, well, at this point, I know pretty well what it means to be born in the United States. I kinda feel like I know what it means to be subject (or not) to a foreign power, but there are super weird cases, for sure. I mean, maybe I don't know at all? There have been, like, "British subjects", for example. And also something stronger like a British foreign minister. And I don't really know much Indian law, so I probably know very little about what it means to be an Indian not taxed.
United States v. Rhodes (1866)
A newly appointed Supreme Court Justice was "riding circuit" in Kentucky, and handled this case. The only reason this case is brought up is because, again, Respondents are trying to shore up Lynch as influential. Lynch is mentioned once in this opinion. The paragraph says:
All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. [citations removed]
I removed the multiple citations, but yes, Lynch is in there. The end part sounds weird on first glance, but what I think he's doing here is starting off by just accepting that Dred Scott is still precedent, so slaves cannot be citizens, observing that the Thirteenth Amendment makes it so there are no slaves anymore, and then, the Civil Rights Act makes it certain that Nancy Talbot, an African born in the US (it makes no mention that I can see of whether she was ever a slave or born free), was indeed able to testify in a court matter like any other citizen. Along the way, it concludes that the Civil Rights Act is an acceptable use of Congress' Constitutional power.
Fourteenth Amendment
Ratified July 27, 1866.
Repeating the important part from above, because I imagine one would have to scroll quite far at this point.
Section 1
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.
Before we move on to the main event, remember what was mentioned above about the federalism concerns in Dred Scott? This says that folks are, indeed, citizens of the US and the State in which they reside. However, further questions about this will come up later.
Anyway, as always, feel free to consult your preferred historian to provide legislative history or original public meaning. I'm really just not qualified to dig into that, and even just trying to present the mountain of quotes the various briefs have dug up would be too much work on top of what I'm already doing. Not to mention trying to actually investigate the context of those quotes. I'm not sure it was even completely clear to me when I started this, but it should hopefully be clear to both of us by now that I'm mostly going to limit myself to just what the courts (preferably the Supreme Court) have said.
The Road to Wong Kim Ark
McKay v. Campbell (1871)
Not SCOTUS. Federal district court. I was going to be very cursory with this one on the dual grounds of generally being cursory with non-SCOTUS cases and also that the only citation is Respondents trying to further shore up Lynch, but the case is actually weird enough that I want to say a few things.
First, yes, it does cite Lynch, in a passage that is similar to Rhodes, but not having the slavery language.
The rule of the common law upon this subject is plain and well settled, both in England and America. Except in the case of children of ambassadors, who are in theory born upon the soil of the sovereign whom the parent represents, a child born in the allegiance of the king, is born his subject, without reference to the political status or condition of its parents. Birth and allegiance go together. [citations removed, but Lynch is in there]
Turns out a Canadian man (British subject, who was apparently 1/4 Indian) married a full Chinook Indian woman. She gave birth to William McKay. Where? In whose territory? Whose jurisdiction? It's weird! The father worked for the Hudson Bay Company, a British company, and they lived at Fort George, Oregon, which was a British-run fort. At this point, Oregon was not a State. Apparently, much of the area was considered useless and desolate, and the Brits/Americans had agreed that the territory would be "open and free". The opinion calls it "joint occupation", and says, "neither government can be considered as exercising general exclusive jurisdiction over the country and its inhabitants." He admits that the fort was "from the American standpoint, was at the date thereof, within the territory or realm of the United States", but complains that it was weird. Given the weirdness, he concludes:
Under this state of things as to the title and occupancy of the country, and while his alien father is in the service of a British corporation, then exercising in the territory, by authority of the British parliament, large municipal power, the plaintiff is born within the lines of a post then occupied by said corporation as a place of business and defense. This being so, in my judgment, he was not born in the allegiance of the United States, but in that of the British crown.
He thinks that the US didn't really have the normal type of jurisdiction over British subjects in the territory:
When, in 1818, the two governments entered into the treaty of “joint occupation,” as it has been aptly called, they thereby agreed that this then unsettled and unknown country, might be occupied by the people of both nations—that it should “be free and open” “to the vessels, citizens, and subjects of the two powers”—without either of them losing their nationality, changing their allegiance, or passing beyond the jurisdiction and protection of their separate governments. As to the British subject and his children born here, the country was for the time being British soil, while to the American citizen and his offspring it was in the same sense American soil. Neither government was entitled to exercise any authority over the citizens or subjects of the other, or to assert the power and rights of a sovereign over them, or their effects, within this particular territory. If, prior to 1846, the plaintiff had died intestate and without heirs, leaving a large amount of personal property in the territory, there is no doubt but that the British crown would have claimed the escheat without a word of objection from the government of the United States.
He thinks that jurisdiction needs to be "actual and exclusive":
When it is said that by the common law a person born of alien parents, and in the allegiance of the United States, is born a citizen thereof, it is necessarily understood that he is not only born on soil over which the United States has or claims jurisdiction, but that such jurisdiction for the time being is both actual and exclusive, so that such person is in fact born within the power, protection and obedience of the United States. Generally speaking, the various places in the world are claimed, or admitted for the time being, to be under the exclusive jurisdiction of some particular sovereign or government, so that a person born at any one of them is without doubt born in the allegiance of such particular sovereign or government. But that is not this case—which in this respect is a singular one. Its parallel has not been found in the books. The country of the plaintiff's birth was, at the time thereof, jointly occupied by the citizens and subjects of two governments in pursuance of a treaty to that effect. Under the circumstances, neither government can be considered as exercising general exclusive jurisdiction over the country and its inhabitants. It seems to me, that the only practical and just solution of the problem, is to consider the country for the time being, only to have been in the exclusive jurisdiction of each government as to its own citizens or subjects
"Its parallel has not been found in the books." Yeah, man! It's so weird! In any event, he basically just makes up a rule that each country only had exclusive jurisdiction of their own citizens/subjects in the territory at the time. He says that this situation could come up again, regarding disputed territories, and mentions some British Common Law on hostile occupations. But I guess since this one's not hostile, it's extra weird? I'm really going to stop quoting after this, but one more, because it's funny to see a pithy one-liner in a legal opinion this old:
Now, in 1823, the plaintiff's “place of birth”—Fort George—was no more within the obedience of the United States than is the Tower of London today.
One last note, though. Remember that Chinook mother? The judge acknowledges that the Indian tribes are "distinct and independent political communities" that he says don't typically get US citizenship, even if born in US territory. And then he's like (my words, for maximum comedy), 'Does he follow the father, becoming a Brit, or follow the mother, becoming a Chinook? Who bloody knows?' He doesn't have to answer that question, because as far as he's concerned, the only thing that matters for him is that William McKay is not a US citizen. Wild.
I really can't imagine that I'm going to lean on this case much in forming an overall opinion on the current case, but I found the whole thing kind of amusing, now that it's a hundred and fifty years old and no longer affecting any of the people involved.
Carlisle v. United States (1872)
Some Brits lived in Alabama during the Civil War. They manufactured and sold saltpeter to the Confederacy, which used it to make gunpowder. After the North won, these Brits were prosecuted for treason against the United States for this. But the President issued a proclamation pardoning everyone, and so the Brits wanted some property back that the Union had seized. The Court puts the question:
Such being the general effect of pardon and amnesty granted by the President, it only remains to consider whether the proclamation of December 25, 1868, embraces the claimants who were aliens domiciled in the country within its provisions.
I've read the rest of it a few times, and it sort of doesn't make sense to me? There's no limitation in the proclamation in any way regarding citizenship, alienage, residence, domicile, anything. Like, shouldn't they have just said that and been done? I don't know why they wrote all this other stuff, but they seemed to just include a section to confirm that they did owe temporary allegiance to the US and were guilty of treason.
The claimants were residents in the United States prior to the commencement of the rebellion. They so allege in their petition; they were therefore bound to obey all the laws of the country not immediately relating to citizenship during their sojourn in it, and they were equally amenable with citizens for any infraction of those laws. "The rights of sovereignty," says Wildman in his Institutes on International Law, "extend to all persons and things not privileged that are within the territory. They extend to all strangers therein, not only to those who are naturalized and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection."
By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.
...but then yeah, they just say that the proclamation applies to "every person", so they get a pardon, too, and get their stuff back.
Slaughterhouse Cases (1872)
Another biggie that you've probably heard of. Similar caveats apply. It's also pretty long, with three dissents. It hits economic freedom issues, federalism issues, and how to read the Fourteenth Amendment. Much ink has been spilled about this case for the last hundred and fifty years. Plenty of modern folks think that the opinion of the Court is wrong. I'm probably not going to do it even an eighth thoroughly. In fact, I'm intentionally going to try to avoid going down any of the many rabbit holes, especially pathways of, "Well, if people think it's wrong, why do they think it's wrong, do they think it's all wrong, or just parts are wrong and parts are right?" That could be a whole 'nother post of its own.
The basics are that New Orleans didn't like having a bunch of slaughterhouses. They got the State of Louisiana to pretty much ban most them from the area, and gave a monopoly to a single company. So far, I haven't quoted the entirety of even Section 1 of the Fourteenth Amendment, so I guess I need to do that here:
Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The banned butchers invoked all three of the following clauses that we haven't yet addressed. They thought the ban violated their "priviliges or immunities"; they thought that they were being "deprive[d] of ... liberty, or property, without due process of law"; they thought they were being "den[ied] ... the equal protection of the laws".9 Each of these clauses has mounds upon mounds of precedent that has built up over the last century and a half, and there are doctrines upon doctrines out there now. But at the time, they didn't have any of that. This was only six years after 14A was ratified.
I'm really going to give this short shrift, because the basic idea that might matter for us is actually kind of straightforward. How should one read this text? Justice Miller writes the Opinion of the Court, and thinks that it should be read all with one purpose:
The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history, for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights, additional powers to the Federal government; additional restraints upon those of the States. Fortunately, that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt.
Ok, what purpose is in that history?
The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery.
In that struggle, slavery, as a, legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery, they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard-pressed in the contest, these men (for they proved themselves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts when he declared slavery abolished in them all. But the war being over, those who had succeeded in reestablishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles.
He discusses how he thinks 13A addresses this. Then, for 14A:
They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.
These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that, by the thirteenth article of amendment, they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection until they ratified that article by a formal vote of their legislative bodies.
He also says that these were still not enough, so 15A followed to ensure the right to vote. Finally, his overall reading is that the point of these amendments was specifically regarding "the slave race":
We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.
He admits that the amendments do reach broader, for example banning slavery of Mexicans or Chinese if that were to have developed. But he's still trying to maintain a more purposivist interpretation. Getting to the core of our interests:
The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship -- not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided.
The messiness of being a citizen of the US versus a citizen of a State. He doesn't try to resolve this problem yet, but notes the history of Dred Scott as being the main purpose of the Citizenship Clause:
To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
He reads the clause thusly:
The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.
In this purposivist frame, the point was to make black people citizens. He then has a single sentence about "subject to the jurisdiction thereof":
The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
That's it. That's all the analysis. It doesn't get into details. It doesn't really comport with what we've seen before, either, as it says that all "citizens or subjects of foreign States" are not entitled to birthright citizenship. I don't actually see much substantive discussion in the dissents on this point.10
Because that's basically it for our main event, I'll hit the majority's view of the federalism issue and just jump directly to the dissents. From Justice Miller's Opinion of the Court:
The next observation is more important in view of the arguments of counsel in the present case. It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
From Justice Fields' dissent:
It [the first clause of the Fourteenth Amendment] recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State.
From Justice Bradley's dissent:
The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country, and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen, and the whole power of the nation is pledged to sustain him in that right.
From Justice Swayne's dissent:
A citizen of a State is ipso facto a citizen of the United States. No one can be the former without being also the latter; but the latter, by losing his residence in one State without acquiring it in another, although he continues to be the latter, ceases for the time to be the former. ... There may thus be a double citizenship, each having some rights peculiar to itself.
They all seem to agree, more or less, on how this piece is meant to be read.
I'm going to skip the entirety of the rest of this case. Privileges and Immunities are fascinating and all, so maybe someone else will take inspiration from this post and do a deep dive on that topic, but I'm going to have to try to finish this before today's case is decided!
Mitchell v. United States, 88 U.S. 350 (1874)
Guy named Mitchell11 lived in Kentucky (a Northern state) for a long time. After the Civil War kicked off, he went down to the South, and uh, made a bunch of money? Acquired a bunch of cotton, at least. A stupidly expensive amount of cotton. When the Union Army rolled through, they confiscated it. Apparently, whether he can get his stuff back depends on whether he was "domiciled" in the North or the South when he bought the cotton. The details for why this matters is not obviously clear to me from the three sentences on the topic, but it doesn't matter for us, so I'm not going to figure it out. The result isn't all that unfamiliar to us, with a little more detail:
There is nothing in the record which tends to show that when he left Louisville, he did not intend to return, or that while in the South, he had any purpose to remain, or that when he returned to Louisville, he had any intent other than to live there as he had done before his departure. Domicile has been thus defined: "A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time." This definition is approved by Phillimore in his work on the subject. By the term domicile, in its ordinary acceptation, is meant the place where a person lives and has his home. The place where a person lives is taken to be his domicile until facts adduced establish the contrary.
...
A domicile once acquired is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged, the burden of proving it rests upon the person making the allegation. To constitute the new domicile, two things are indispensable: first, residence in the new locality, and second the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains. These principles are axiomatic in the law upon the subject.
When the claimant left Louisville it would have been illegal to take up his abode in the territory whither he was going. Such a purpose is not to be presumed. The presumption is the other way. To be established it must be proved. Among the circumstances usually relied upon to establish the animus manendi are: declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business. All these indicia are wanting in the case of the claimant.
There's not a lot to comment on here. Respondents only cite this to claim that if birthright citizenship depended on domicile, it would make citizenship "uncertain and factually contingent, as it would depend on the 'intention' of parents 'to remain' in the United States indefinitely. It doesn't seem like the most crucial of cites, but I guess it's interesting to know a little bit more about domicile?
Minor v. Happersett (1874)
This one is sort of a weird cite for the briefs. The case itself is about whether women can vote. The Court basically says (my words), 'Women can certainly be citizens, but that doesn't mean they have to be allowed to vote.' Okay? The sections that might be relevant are:
Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several states, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community such as a nation is implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are in this connection reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.
This is a pretty concise statement of the "protection/allegiance theory". But Petitioners don't actually cite it for this bit. I believe they cite it for this:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
That's kind of it. They say that it might be complicated, but they're not going to get into it.
Robertson v. Cease (1878)
"Diversity jurisdiction", I believe they call it. I've certainly heard about it casually, but never dug into the details. My basic understanding is that federal courts can hear some state law cases when the dispute is between citizens of different states (and some other conditions). Here, the question was whether the parties actually were citizens of different States. It was clear that Robertson was a citizen of Texas, but apparently the record only clearly showed that Henry Cease was a resident of Illinois. Robertson's lawyer tried a clever argument:
It was suggested [in oral argument] that a resident of one of the states is prima facie either a citizen of the United States or an alien -- if a citizen of the United States, and also a resident of one of the states, he is, by the terms of the Fourteenth Amendment, also a citizen of the state wherein he resides -- and if an alien, he was entitled in that capacity to sue in the federal court, without regard to residence in any particular state.
Apparently, if Cease was an alien, they have jurisdiction. But if he's not an alien, Robertson wanted them to infer that he must be a citizen of some form, and since he's residing in Illinois, he must be a citizen of Illinois. Justice Harlan, writing for the Court, says that they will not infer in this way. They need to affirmatively declare more. How much more?
Here the only fact averred or appearing from the record is that Cease was a resident of Illinois, and we are in effect asked, in support of the jurisdiction of the court below, to infer argumentatively from the mere allegation of "residence" that, if not an alien, he had a fixed permanent domicile in that state and was a native or naturalized citizen of the United States, and subject to the jurisdiction thereof. By such argumentative inferences, it is contended that we should ascertain the fact, vital to the jurisdiction of the court, of his citizenship in some state other than that in which the suit was brought. We perceive nothing in either the language or policy of the Fourteenth Amendment which requires or justifies us in holding that the bare averment of the residence of the parties is sufficient, prima facie, to show jurisdiction. The judgment must therefore be reversed upon the ground that it does not affirmatively appear from the record that the defendant in error was entitled to sue in the circuit court.
It's not entirely clear to me if Justice Harlan is rejecting the entire chain of possible hypotheticals or if he's saying that you still just need something more. I get why the Petitioners bring this up. It seems to perhaps be making a distinction between residence and domicile (which we've already seen), but it's still just not clear to me. If they had affirmed that he was domiciled in Illinois, would Harlan then have gone for a chain of hypotheticals that either he was an alien or he was a US citizen, and if he was a US citizen, then, since he was domiciled in Illinois, he was a citizen of Illinois? Or do they just need to actually affirm the whole thing? I don't know. I'm not really sure it matters for us.
Elk v. Wilkins (1884)
This is another case that you should just read. How to understand it is a major point of contention between the main briefs. Petitioners refer to it five times; Respondents nineteen times. It's also Indian Law, so I'm probably going to not understand every third sentence or so.
John Elk was born... sometime before the Civil Rights Act of 1866? The Court never says exactly when he was born, but the dissent's argument implies that he was born before it. Also, the impetus for the case is that John tried to vote in Nebraska in 1880, and the Court mentions that the law allows male citizens over 21 to vote, so presumably he was born before 1860.
John Elk was born... somewhere in the geographic territory of the United States? Wikipedia tells me that he was born on a reservation, but nowhere in the opinions is it stated either way. Neither the Opinion of the Court nor the dissent appear to care one way or the other.
John Elk was born... to two parents who were both members of one of the Indian tribes? The Opinion of the Court doesn't really specify; the dissent uses the plural "parents", so presumably, both of them were.
John Elk severed his relationship with the tribe and began to reside in Omaha... sometime before 1879? The opinions state that he had affirmed that he had done this at least one year before he tried to vote in 1880. It is not clear whether he did so before/after either the Civil Rights Act of 1866 or the ratification of the Fourteenth Amendment later that year. This isn't necessarily meaningful, either, but it may help us try to understand some of the reasoning of the opinions.
Ok, with all that, what do the Justices think about whether John Elk is a citizen of the US and/or Nebraska? Justice Gray writes the Opinion of the Court, and Justice Harlan writes for the two dissenters. Justice Gray observes the weird status of Indians:
Under the Constitution of the United States as originally established, "Indians not taxed" were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states, and Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, but they were alien nations, distinct political communities, with whom the United States might and habitually did deal as they thought fit, either through treaties made by the President and Senate or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state. General acts of Congress did not apply to Indians unless so expressed as to clearly manifest an intention to include them.
He points to special processes that were used for some of them to become citizens:
The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States except under explicit provisions of treaty or statute to that effect either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life
Even though he had just said that Indian tribes weren't exactly foreign states, he proceeds as though they kinda are (it's weird, yo!):
But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.
The majority accepts that naturalization can occur, thinks that it hasn't here, and turns to the question of birth through 14A.
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
That is, the majority thinks that's not good enough to renounce your tribal allegiance after birth. You have to be in the right category at birth, which, I guess, presumably means that your parents had to sever their ties with the tribe? I don't know.
There's a bit about "Indians not taxed". A couple of AI prompts later, and I'm even more confused about the taxation status of Indians, even today (I considered a lengthy footnote on this, but ew). I don't think it super matters, but feel free to read.
The majority also notes that some tribes dwindled in numbers enough to become effectively dissolved; they don't really manage any of their own affairs anymore. Also, some tribes were apparently never recognized as tribes that were distinct political communities by the US. In those cases, I think the Court thinks that later children are then born to be US citizens?
The critical part to the majority is John's status at birth. The dissent, obviously, disagrees. Remember that I said that I didn't know whether John Elk had severed ties with the tribe before or after the Civil Rights Act/14A? The dissent certainly thinks that if someone had already severed ties enough to be taxed prior to the Civil Rights Act or severed ties enough to be "subject to the jurisdiction" of the US prior to the respective times of their enactment, then that individual should be a citizen. They say that getting this sort of case wrong is a reason to disagree with the majority:
according to the doctrines of the Court in this case -- if we do not wholly misapprehend the effect of its decision -- the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been at the time it was adopted, a permanent resident of one of the states, subject to taxation and in fact paying property and personal taxes, to the full extent required of the white race in the same state.
Continuing to poke at the majority:
Our brethren, it seems to us, construe the Fourteenth Amendment as if it read:
"All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside,"
whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States.
So, Justice Harlan, AFAICT, thinks that so long as a person is born in the territorial US, then at any later date, they can become subject to the complete jurisdiction of the US and become a citizen at that moment. He says that this rule wouldn't have impact to other cases:
This would not include the children born in this country of a foreign minister, for the reason that, under the fiction of extraterritoriality as recognized by international law, such minister, "though actually in a foreign country, is considered still to remain within the territory of his own state," and, consequently, he continues
"subject to the laws of his own country, both with respect to his personal status and his rights of property, and his children, though born in a foreign country, are considered as natives." [citation removed]
That is, he think someone could get concerned that the child of a foreign minister is technically born in the geographic US, so maybe later, they could just self-declare that they're becoming subject to the jurisdiction of the US (or maybe move back to the US on some grounds other than a diplomatic mission), and gain citizenship. But, he thinks the fiction, properly construed, is that such children weren't even "born in the US".
I don't know if I'll remember to come back to this, but I feel like one should work through the various other cases outlined in The Schooner Exchange and other early cases, because it's not immediately clear how many other cases there might be of people technically born in the US, but not "subject to the jurisdiction thereof", whether they all have sufficiently similar fiction, or whether there might be other concerns about someone being able to later self-declare that they wanted to become subject to the jurisdiction, and thus, become a citizen.
Lamar v. Micou (1884)
This case has way too many parts to be worth describing, especially since it's referred to only once for one small argument in Petitioners' brief. It's talking about what the proper domicile State is for an infant, and it gets extra complicated, because there's a guardian appointed for this infant. Civil War shenanigans happened, and it's a case where it apparently matters where the proper domicile of the infant was.
Probably the most relevant section for what the Petitioners are going for is:
An infant cannot change his own domicile. As infants have the domicile of their father, he may change their domicile by changing his own, and after his death, the mother, while she remains a widow, may likewise, by changing her domicile, change the domicile of the infants, the domicile of the children in either case following the independent domicile of their parent. But when the widow, by marrying again, acquires the domicile of a second husband, she does not, by taking her children by the first husband to live with her there, make the domicile which she derives from the second husband their domicile, and they retain the domicile which they had, before her second marriage, acquired from her or from their father. [citations removed]
That's, uh, weird, but I guess, okay? It gets weirder when you consider adding in a guardian. I guess read if you're interested, but I'm going to move on.
In Re Look Tin Sing (1884)
Justice Field riding circuit in California, not full SCOTUS. Child born in California to Chinese parents who are subjects of the emperor of China, but have lived in California for 20 years, not on any diplomatic mission. Kid's a US citizen.
I'm not going to cover this in detail. Respondents point out that it cites Lynch, which they're always trying to bolster. And it comes to a similar conclusion to a case that the full Court is going to address in just a few short years. I'm going to spend time on that one and just leave this one here if you want to read it.
United States v. Kagama (1886)
Indian Law, and only a minor point in Petitioner's brief, which is really still trying to fight about Elk, I think, so I won't spend much time on it. In fact, just the conclusions.
The US can make laws and punish crimes they've defined for Indians on reservations. They are, in this sense of "jurisdiction", within the jurisdiction of the United States. The States, themselves, cannot, even if the reservation is otherwise within their territory. Apparently, allegiance/protection has something to do with it? Money quote:
These Indian tribes are the wards of the nation. They are communities dependent on the United States -- dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power.
They trace the allegiance bit to a treaty in this case:
The Indian reservation in the case before us is land bought by the United States from Mexico by the treaty of Guadaloupe Hidalgo, and the whole of California, with the allegiance of its inhabitants, many of whom were Indians, was transferred by that treaty to the United States.
I guess I'm not sure about the general case, if they didn't have a treaty to point to.
This case made me realize that I had missed something in Elk. In Kagama, they say that Indians do owe some allegiance to the US. In Elk, the Court wasn't entirely clear on this point. They just said that Indians didn't owe "direct and immediate" allegiance. I guess I skipped over one quote they had from a district court that implied that Indians were not born in allegiance to the US. Whereas Justice Harlan's dissent said:
they are under the protection of the laws, and may be said to owe a qualified allegiance to the government.
So, I guess, maybe the Court in Kagama is moving a bit toward Justice Harlan's position that they perhaps have a "qualified" allegiance? Perhaps they still think it's not enough for citizenship, but there's clearly some tension here.
Town of New Hartford v. Town of Canaan (1886)
Connecticut, not SCOTUS. Not a lot here. Respondents use it to again bolster Lynch. It cites Lynch and a few other cases we've seen (McKay, Munro, the Ludlams). There's a weird twist in that some local/state law apparently cares if you're a "settled inhabitant". Kid born to a foreign father in Massachusetts. I think the court thinks that this was probably enough to make him a citizen, but it maybe kinda says that perhaps he got to choose his allegiance when he reached the age of majority? I don't know.
Yick Wo v. Hopkins (1886)
A weak cite from Respondents. They use this just to say that some of the words in 14A apply without regard to race/color/nationality. But, uh, which words? The Court says:
The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:
"Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws.
I'm not going to talk any more about the details of this case. Instead, I'll use this to talk about 14A and another one of the issues present. The due process/equal protection clauses use the phrase "any person". This is obviously quite broad, and potentially broader than other clauses. The equal protection clause uses the phrase "within its jurisdiction". One of the questions is whether there is any daylight between "within its jurisdiction" and "subject to the jurisdiction thereof". This may be complicated by the fact that the due process/equal protection clauses are talking about the States. Does that matter? I don't know. But this is one of the things that are in contention for some arguments.
Mali v. Keeper of the Common Jail (“Wildenhus’ Case”, 1887)
Belgian merchant ship docked in Jersey. Couple o' Belgian crewmembers got in a fight on board. One ended up dead. Can US courts exert jurisdiction? The Court wants the Full Schooner:
It is part of the law of civillized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understanding or agreement; for, as was said by Chief Justice MARSHALL in The Exchange: 'It would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such * * * merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.' [citation removed]
They say that the Full Schooner can be excepted by treaty, but they take a look at the treaty with Belgium and don't find anything there.
Ex parte Chin King (1888)
Pretty much just the same as Look Tin Sing? Also Justice Field riding circuit, but in Oregon now. For the same reasons, I'm just not going to say anything more.
Cunningham v. Neagle (1890)
Wild case with a wild story. Somebody tried to attack Justice Field while he was traveling on circuit (the one we've talked about). His US Deputy Marshall shot and killed the guy. Apparently, a California sheriff arrested the Marshall?! His case made it all the way up to the Supreme Court. Obviously, Justice Field did not take part in this case.
Wait, you thought that was the wild story? Nah, man. Both the Opinion of the Court and the dissent are talking about the protection that is provided by the US to people with allegiance. And they both tell the same story that is apparently unrelated to this altercation involving Justice Field.
Some Hungarian who wasn't fully naturalized to the US yet, but apparently "had in due form of law made his declaration of intention to become a citizen" and "had with him his naturalization papers" was seized and held on an Austrian ship. The captain of an American warship in the area demanded that he be turned over and "train[ed] his guns upon the Austrian vessel".
Apparently, there were some diplomatic negotiations, and dude was at least turned over to the French, and I guess, eventually the US. This is just, like, a random wild story thrown into these opinions. I guess it must have been big news not too long prior. I guess the reason they mention it is to ask whether there is any legislation supporting the act of the government. There doesn't appear to be any, and so I guess that's where they disagree on whether these sorts of government acts are justified.
I'm not really sure why this matters. I guess the gov't is allowed to protect not-quite-yet nationalized folks. I don't think anyone thinks the gov't is required to. I don't know if Some Hungarian was an important guy or not. I don't know if that Navy Captain would have done the same thing if he was a rando, not important guy. Really not sure quite how it fits into the current arguments about allegiance/protection. But cool story, bro.
Lau Ow Bew v. United States (1892)
Chinese guy lived in and was domiciled (intending to stay permanently, as we've seen) in the US. Took a temporary trip back to China. There was some statute requiring that he have a certificate to re-enter. I'm not going to bother with details, since again, our main event is coming (if you don't know, then you'll know hopefully soon). Both parties today cite this and accept that the gov't can/does give some additional rights to domiciled aliens. Money quote:
By general international law, foreigners who have become domiciled in a country other than their own acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such person stand by reason of their domicile of choice, or commercial domicile, is to be presumed, while, by our treaty with China, Chinese merchants domiciled in the United States have, and are entitled to exercise, the right of free egress and ingress, and all other rights, privileges, and immunities enjoyed in this country by the citizens or subjects of the "most favored nation."
Of course, the parties today disagree on whether this sort of thing matters for 14A purposes. There was a treaty, too.
Fong Yue Ting v. United States (1893)
Some Chinese guys again; also domiciled in the US; this really is a pattern during this period of time as we're leading up to the main event. Apparently, Congress passed a law that all Chinese laborers in the US have to apply for a certificate to stay within a year, otherwise, they could be deported. They delegated the ability to do the deportations to the President and Executive Branch. There was no judicial trial required to deport. The main aspect of this case was whether they could invoke the Due Process clause, which if you remember, has wording that applies to people more broadly than the Citizenship Clause. There was also that treaty involved and stuff.
While all that's an interesting question in it's own right, the parties today seem to just be dueling about a paragraph or two. From Justice Gray's Opinion for the Court:
By the law of nations, doubtless, aliens residing in a country with the intention of making it a permanent place of abode acquire, in one sense, a domicile there, and, while they are permitted by the nation to retain such a residence and domicile, are subject to its laws and may invoke its protection against other nations. This is recognized by those publicists who, as has been seen, maintain in the strongest terms the right of the nation to expel any or all aliens at its pleasure. [citations removed]
One of those citations that I removed was to "Koszta's Case". Turns out, that's that wild story about the Austrian guy and the Navy Captain. I actually looked it up this time, trying to make sure it was the same thing, and it does indeed turn out that that guy was a big deal and not a nobody.
Petitioners talk about how domicile is important enough to allow you to "invoke [US] protection against other nations". I didn't look up the several other cites for the above quoted paragraph, but Respondents narrow in on "Koszta's Case", just saying that it was some remarkable event of a domiciled and almost-naturalized guy being protected overseas. They assert that it has nothing to do with the Citizenship Clause. I mean, I don't really know what they're fighting about. I kinda know; Petitioners are saying that domicile is important and gets you protection/allegiance; Respondents are I guess saying that it's just a weird situation and not relevant. Petitioners probably like the rest of the dicta in the above-quoted paragraph.
Maybe a nice paragraph from Justice Field's dissent trying to be as inclusive toward domiciled aliens as possible?
Aliens from countries at peace with us, domiciled within our country by its consent, are entitled to all the guaranties for the protection of their persons and property which are secured to native-born citizens. The moment any human being from a country at peace with us comes within the jurisdiction of the United States, with their consent -- and such consent will always be implied when not expressly withheld, and, in the case of the Chinese laborers before us, was, in terms, given by the treaty referred to -- he becomes subject to all their laws, is amenable to their punishment, and entitled to their protection. Arbitrary and despotic power can no more be exercised over them, with reference to their persons and property, than over the persons and property of native-born citizens.
I mean, I guess he also thinks that they can invoke some sort of protection, too? But is that just "protection of the laws" or some sort of allegiance/protection? I don't know.
O'Brien v. Benny (1895)
I can't find the full text of this. Partial text here, but I'm not going to make an account. Not SCOTUS. Supreme Court of New Jersey, which Wikipedia tells me was like NY in that this was actually a lower state court at the time. Petitioners quote it. From Petitioners' brief:
...the Citizenship Clause does not confer citizenship upon “those born in this country of foreign parents who are temporarily traveling here.” [citation to Benny]
and:
“those born in this country of foreign parents who are temporarily traveling here” are not U.S. citizens because “[s]uch children are, in theory, born within the allegiance of [a foreign] sovereign.” [citation to Benny]
Respondents say that it's dicta and that Benny wasn't about children of temporary visitors. From just what I can see in that link to the case, Respondents seem correct that it's probably dicta:
His parents came from Scotland to this country in 1855, and have continued to reside here since that time. His father declared his intention to become a citizen in December, 1893, but has not been naturalized. Allan Benny has voted at every election held in Bayonne since he became 21 years of age. The question presented is whether a person born in this country of alien parents, who, prior to his birth, had their domicile here, is a citizen of the United States.
Wong Wing v. United States (1896)
A companion to Fong Yue Ting, only this time, instead of just being deported, the government wanted to imprison Chinese laborers who didn't have a certificate, including hard labor as a punishment. They wanted to do this without a jury trial. The whole Court disagreed; you have to have a jury trial.12
Respondents quote this by pulling two fragments. First, just the acknowledgement that the Chinese laborers were "unlawfully within the United States". Second, they take
Applying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.
and pull out that unlawfully present folks are
"entitled to the protection" of the Constitution
I think this one is a bit sneaky and shameful. It's been pretty clear so far that different parts of the Constitution might apply to different people, and they're definitely implying otherwise. There's no other cite to this case by either party, so this was just unnecessary.
Maraneck v. Sch. Dist. No. 40, Hous. Cnty.
Not SCOTUS. Minnesota Supreme Court, which seems to have been the highest court in Minnesota. I can't find the full text. I really don't care. It's just yet another one that was thrown in to shore up Lynch. It probably cited Lynch; I don't know. The syllabus, not the opinion, says:
Children born within the United States of foreign parents residing therein, and not engaged in any diplomatic or official capacity under a foreign ruler, such children continuing to reside in this country, are citizens of the United States and of the state in which they reside, within the provisions of the first section of the fourteenth amendment to the federal constitution.
At this point, you can decide for yourself if any of the qualifiers in there might possibly matter or not.
United States v. Wong Kim Ark (1898)
The biggest of biggies. For many people, at least in the last three quarters of a decade since I first paid attention to this topic and wrote that comment on SSC, this is the case. Many people think that this case just already answered the question.
I did just ask AI, and it says that the Supreme Court can summarily affirm the court below. Plausibly, the Court could have done that here, today. It says that they can also include a little justification statement. So, I guess, they could have just summarily affirmed and written, "The court below correctly applies Wong Kim Ark, which settles this question." The AI gives a caveat, though, that, "Summary affirmances bind the parties but carry less precedential weight than argued decisions." Maybe that's true. Maybe the Court just wanted to present a tour de force opinion, visibly slapping down the President on one of his signature policy issues. Maybe there are members of the Court who aren't so sure it's quite as easy as pressing the WKA button. Maybe they think it's better to have a 9-0 opinion or a tour de force opinion over a dissent on the merits than allow a dissent on summary affirmance13 that could be shaped more as, "There's a question here that merits full consideration," rather than, "The outcome should be the other way round." The mind wonders.
In Wong Kim Ark, the Court was 7-2. The opinions are long. You should just read it anyway. Half the point of this entire post is just to develop enough of the history to prepare someone to be able to read WKA on their own and form their own opinions as to what it did. You may have already read more here than you would read if you read the entire case (I haven't checked). Just go read it.
In fact, as we will see, large portions of the opinion are directly quoting from cases we've already seen. As such, it's useful to have the background. In any event, lets dive in to the Opinion of the Court, written by Justice Gray. He states the facts of the case:
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him therefrom.
Wong took a couple temporary trips to China. On the most recent one, the gov't attempted to deny him entry, claiming that he was not a US citizen. The question of this case?
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,
He cites 14A, talks a bit about the history of the Constitution and 14A, cites Minor and some other cases for some interpretive principles. He says that common law is important. Then, he talks a fair amount about British Common Law. I haven't discussed this much, so just read it and learn. He says that the Constituion, as originally established, followed these principles. He cites The Charming Betsy, which neither party cited today and thus we haven't covered, so read it? He cites Inglis, Shanks, some more British Common Law. He jumps forward to Dred Scott to talk about the original Constitutional language of "natural-born citizen". He cites Rhodes, as well as a Massachusetts Supreme Court decision and a North Carolina Supreme Court decision we haven't looked at. He cites Lynch and some opinions of the Secretary of State/Attorney General. Other commentaries. He even talks about Roman and French law! We haven't even considered that! But he thinks that it's unclear enough that there's not conclusive evidence in looking at international law:
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
He acknowledges that the nation can set its own rules, in any event. The US has passed various statutes. He also compares some British statutes. Here, Congress at least has the power "to establish an uniform rule of naturalization," and they've done so, particularly regarding foreign births to US citizen parents. They didn't do it immediately; they didn't have to do it; the US doesn't inherently recognize citizenship by blood.
Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
He reviews the Civil Rights Act of 1866 and 14A.
As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.
He says that its "main" purpose was to establish citizen of freed blacks. He cites Dred Scott, The Slaughterhouse Cases, Elk, and some others that we haven't covered. He mentions foreign ministers, saying that it's important that they're official:
consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.
He cites Minor again, this time for remarks on allegiance/protection. He turns to specific cases regarding the phrase "subject to the jurisdiction thereof":
The only adjudication that has been made by this court upon the meaning of the clause, "and subject to the jurisdiction thereof," in the leading provision of the Fourteenth Amendment is Elk v. Wilkins...
Which we've covered, to note that it wanted "complete" subjection to "political jurisdiction" and an owing of "direct and immediate allegiance". He notes that this still comports with the "Indians not taxed" language in the Civil Rights Act. He says that this decision was very specific:
The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.
He states:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
with cites to Inglis and British law. He says:
The principles upon which each of those exceptions rests were long ago distinctly stated by this court.
He cites US v. Rice, which we've covered on British-occupied territory. He then writes:
In the great case of The 11 U. S. 7 Cranch...
"The 11 U.S. 7 Cranch" here means The Schooner Exchange. I don't know if there's an error in the text on this particular website, and it actually said the whole phrase, but there's a link, and you can see that the same descriptor is used.
...the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous casts of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards in Cherokee Nation v. Georgia; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in United States v. Rice, above cited. But, in all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.
That is, he seems to think that The Schooner Exchange did it all. He cites this case extensively. Chief Justice Marshall did it all. He wants the Full Schooner:
In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.
He then reviews the naturalization statutes, for the proposition that aliens residing in the US are "under the jurisdiction", while US parents residing abroad are "out of the jurisdiction".
The words "in the United States, and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts. This presumption is confirmed by the use of the word "jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."
Remember that there was a question about whether there was any daylight between "subject to the jurisdiction" and "within the jurisdiction"? He definitely thinks that there is no daylight between them. He wants the Full Schooner.
He returns to the Civil Rights Act:
it can hardly be doubted that the words of that act, "not subject to any foreign power," were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory.
And then says that if there was any doubt, 14A made it clear with the "subject to the jurisdiction" language. He cites an Attorney General opinion, a US ambassador, other gov't officials, all on the topic of how a statute provided citizenship to children of US parents abroad. He cites Benny14, and actually gives us a full quote from that opinion. Since I didn't have the text and full quotes above, I'll just include here what Justice Gray quoted from it:
The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, 'all persons born in the United States, and subject to the jurisdiction thereof,' was intended to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race.
He starts to wrap up:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides... [citation removed]
He cites a Secretary of State report for the final point of that quote.
He turns to say that even if the Executive and Legislative branches want to do something that the Judiciary thinks is contrary to the Constitution, the Judiciary can take their own view of the Constitution. He cites Yick Wo, Law Ow Bew, Fong Yue Ting, Lem Moon Sing, and Wong Wing, giving some lengthy quotes. He gives some legislative history, indicating that Chinese people are not excluded in every way, even though the Chinese Exclusion Act can do something things within the bounds of the Constitution.
It kind of goes on about naturalization and birth, and how there's nothing really with respect to race. I'm not going to quote this heavily; just read it. He finally comes to a conclusion:
Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.
He says that Wong never did anything to renounce it. Could his parents have?
Whether any act of himself or of his parents during his minority could have the same effect is at least doubtful. But it would be out of place to pursue that inquiry, inasmuch as it is expressly agreed that his residence has always been in the United States, and not elsewhere; that each of his temporary visits to China, the one for some months when he was about seventeen years old, and the other for something like a year about the time of his coming of age, was made with the intention of returning, and was followed by his actual return, to the United States, and
"that said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom."
And finally:
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Whew. That was a lot. You did read the whole thing, yes? If not, go read it.
There is a dissent by Chief Justice Fuller, joined by Justice Harlan. I won't cover it in as much detail. There's many of the same cases. Plenty of British law, but he says that the US has rejected other aspects of British law regarding some aspects of citizenship/subjecthood, such as "indissoluble allegiance".
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.
Concerning temporary/permanent, he says:
a different view as to the effect of permanent abode on nationality has been expressed in this country.
quoting a non-case Justice Story commentary. He says:
Undoubtedly all persons born in a country are presumptively citizens thereof, but the presumption is not irrebuttable.
He pokes on the "not subject to any foreign power" phrase of the Civil Rights Act:
All such persons [born in the US] are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government.
He even says that the words "not subject to any foreign power" would have been superfluous of they only covered foreign ministers/invading armies:
If the act of 1866 had not contained the words, "and not subject to any foreign power," the children neither of public ministers nor of aliens in territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary or general and permanent.
He thinks the purpose was to get at temporary allegiance:
But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanent allegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would.
And it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.
The dissent thinks that there's no daylight between the Civil Rights Act and 14A:
The act was passed and the amendment proposed by the same Congress, and it is not open to reasonable doubt that the words "subject to the jurisdiction thereof" in the amendment were used as synonymous with the words "and not subject to any foreign power" of the act.
He focuses on the "completely subject" to "political jurisdiction":
To be "completely subject" to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government.
He talks in a few places as to whether dual allegiance can even happen or what it would look like. He's pretty negative on it. There's some business about treaties, some that exist, some hypothetical. He thinks China wants the children of Chinese subjects in the US to remain Chinese subjects.
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.
Chief Justice Fuller definitely doesn't want the Full Schooner, but he doesn't want the children of domiciled aliens to have US citizenship automatically, either.
For today's case, neither party is asking the Court to overturn WKA. There is at least one amicus brief that does ask for that, but both parties say they're fine with WKA. They are primarily fighting over what WKA did and meant. Is it really just about domiciled aliens? Does it really stand for the Full Schooner in the Citizenship Clause? I think that's about all I'll say on WKA except, again, if you've made it this far and haven't read it, go read it. Forming an opinion about what you think the Court did in WKA is a major component of coming to a sense for what you may think about today's case.
The Last Hundred and Thirty Years
In the years of our first major section, Petitioners and Respondents cited 17 cases. In the second, 23. There are 70 cases cited since Wong Kim Ark.
I kept a little, very minor, secret up to this point. I didn't cover every case that was cited in a party brief. I've skipped a few on grounds that they're not really relevant to the citizenship question. They might be of the type, "We're citing this for a general principle of how to interpret law." An example like this from the seventy modern cases is that Respondents cite Bostock, basically to just say that original public meaning interpretation of statutes is a thing. I don't need to cover that. I'm not going to cover that. I'm going to skip it. I'm likely going to skip many, many more cases from the last hundred years on grounds like this.
Chin Bak Kan v. United States (1902)
Chin Bak Kan was arrested for being unlawfully present in the US under the Geary Act, which extended the Chinese Exclusion Act. He claimed he was a US citizen. The Act allowed the case to be before a "justice, judge, or commissioner of a court". The claim was that the case could not be within the jurisdiction of a "commissioner", since there was an assertion of citizenship. Chief Justice Fuller (remember, in dissent in WKA) had the Opinion of the Court. Petitioners today care about the way he described the holding of WKA:
But it is argued that the commissioner had no jurisdiction to act because the claim of citizenship was made. The ruling in United States v. Wong Kim Ark, was to this effect:
"A child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States."
It is impossible for us to hold that it is not competent for Congress to empower a United States commissioner to determine the various facts on which citizenship depends under that decision. [citation removed]
That's kinda it. It's a direct quote from WKA. Not sure we learn much more than that Chief Justice Fuller acknowledged that he lost in WKA and that WKA was precedent.
Turner v. Williams, (1904)
John Turner was an anarchist who entered the US. Apparently, the law made it illegal for anarchists to enter. He was arrested and was going to be deported. He brought a claim that he was not given sufficient due process/equal protection, and that the First Amendment made it unconstitutional for a law to exclude people based on being an anarchist. There are some details here, but I'll cut to the chase. Chief Justice Fuller again with the Opinion of the Court:
But it is said that the act violates the First Amendment, which prohibits the passage of any law
"respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the government for a redress of grievances."
We are at a loss to understand in what way the act is obnoxious to this objection. It has no reference to an establishment of religion, nor does it prohibit the free exercise thereof; nor abridge the freedom of speech or of the press; nor the right of the people to assemble and petition the government for a redress of grievances. It is, of course, true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshipping or speaking or publishing or petitioning in the country; but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter, forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.
Petitioners today want to pull on the language of how you do not become one of the "people" of the Constitution if you enter illegally.
Kwock Jan Fat v. White (1920)
Chinese guy was investigated, because the gov't thought that he was in the US illegally. He says he was born in the US as a citizen. Oh no! The investigators think deception is afoot, and that somebody is claiming to be somebody else. Surely, some investigation should be able to sort this out, but the actual investigation that took place was "manifestly unfair", and they needed to do better.
The only reason this is cited (again by Petitioners) is for the portrayal of WKA:
It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. [citing WKA]
Winton v. Amos (1921)
Indian Law. Super complicated. I don't understand it. Has something to do with determining whether a guy is actually part of a tribe or not, which sounds horribly complicated. Apparently, Mississippi made some Choctaws citizens of the State, but also some still citizens of the Choctaw Nation? Some of them are both?
the Mississippi Choctaws were entitled to remain in Mississippi as United States citizens and still retain the rights of a Choctaw citizen, except as to a participation in the annuity.
Petitioners pull from one part:
It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property.
The guardianship arises from their condition of tutelage or dependency, and it rests with Congress to determine when the relationship shall cease, the mere grant of rights of citizenship not being sufficient to terminate it.
I honestly don't know whether they're talking about "US citizenship" or "Choctaw Nation citizenship" here... and I kind of don't know that I care to spend the time to try to figure it out? Indians are weird, yo. I get that Petitioners are again trying to argue that Congress has plenty of "jurisdiction" over them, but yeah. So complicated.
United States v. Manzi (1928)
The Court very thankfully tells us everything important right up front:
Aniello Manzi filed his declaration of intention to become a citizen of the United States October 15, 1913. He died December 19, 1914. On October 4, 1924, his widow Amalia, respondent herein, relying upon her husband's declaration, asked for citizenship.
It was granted. Oh no! Someone in the gov't objected that the law said that she had to ask within seven years, and she was too late. The US tried to cancel the certificate. Turns out that since there's no exception in the law for widows, she loses. Petitioners pull this quote:
Citizenship is a high privilege, and when doubts exist concerning a grant of it, generally, at least, they should be resolved in favor of the United States and against the claimant.
Nationality Act of 1940
Congress passed this Act, declaring some folks statutorily citizens at birth, some procedures for naturalization, and some for loss of nationality. Neither party cites naturalization statutes prior to this one. A little AI prompting, and there were "Naturalization Acts" in 1790, 1795, 1798, 1802, and 1870, with tweaks along the way.
It was in 1940, though, that the statute used the same phrase as 14A:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
It appears that the 1870 one didn't include this; it mostly just covered other things. There are certainly plenty of other things in this statute, and plenty of folks will make arguments about how one is supposed to interpret the narrow words here or the statute as a whole.
I'm not going to get into that debate. I'll just note that this is a major contention and a possible off-ramp for the Court. Plenty of briefs are arguing that the Court can say something like, "We don't have to figure out what 14A means, because by the time 1940 rolled around, those same words had some different/additional/whatever meaning, and at the very least, all these folks with possibly hard Constitutional cases have citizenship by this statute."
Ex parte, Quirin (1942)
This was a famous WWII case. Eight German saboteurs arrested in the US. All were born in Germany, though one had a claim of US citizenship, which the Court mentioned but then ignored:
All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority, and that he has not since lost his citizenship. The Government, however, takes the position that, on attaining his majority he elected to maintain German allegiance and citizenship, or in any case that he has, by his conduct, renounced or abandoned his United States citizenship. For reasons presently to be stated we do not find it necessary to resolve these contentions. [citations removed]
Why?
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused. [citations removed]
They were being tried by a military commission. I guess the Court said that this was okay?
There are probably tough questions here, and today's briefs don't really get into them. Petitioners say that Respondents' view of "subject to the jurisdiction thereof" can't explain the exception for "children born of alien enemies in hostile occupation", pointing out that alien enemies present in the country are subject to trial and punishment for war crimes. Respondents say that this case is just irrelevant to that exception, since there wasn't a "hostile occupation". Just some random saboteurs.
My first impression is that both briefs are kind of beside the point, because there is an actually interesting question about what would happen if a saboteur like this had a child in the US? Make it so the birth happens after they're clearly identified as being a saboteur, "alien enemy", and "enemy belligerent". Ex parte Quirin certainly doesn't answer this question, because it's not even on the table for them. Does it matter whether the actions rise to the level of something like territorial control for being a "hostile occupation"? These guys "received instructions in Germany from an officer of the German High Command", had "training at a sabotage school", and were paid for it all. Does it matter whether they snuck in to the US in secret, evading immigration, or whether they entered legally with an "implied license", before it was discovered that they were "enemy belligerents"? I don't know! But the mind wonders.
Hirabayashi v. United States (1943)
Japanese guy, no first name given. US citizen of Japanese ancestry, placed in an internment camp. He violated a curfew. No talk of him actually being an "enemy belligerent" or anything. The main part of this case is the Constitutionality of the curfew order, and whether it violates due process rights of US citizens.
There's not a lot here for us. Respondents pull from this bit:
At a time of threatened Japanese attack upon this country, the nature of our inhabitants' attachments to the Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and Washington at the time of the adoption of the military regulations. Of these, approximately two-thirds are citizens because born [sic] in the United States.
And maybe:
Congress and the Executive, including the military commander, could have attributed special significance, in its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of dual citizenship. Children born in the United States of Japanese alien parents, and especially those children born before December 1, 1924, are, under many circumstances, deemed, by Japanese law, to be citizens of Japan. No official census of those whom Japan regards as having thus retained Japanese citizenship is available, but there is ground for the belief that the number is large.
This does acknowledge that many Japanese folks born in the US are citizens because of that. It doesn't get in to any issue of children of actual "enemy belligerents". It might be the first time in the cases we've looked at where the Court seems to seriously accept that there are a bunch of folks with "dual citizenship". Up to this point, I feel like it was kind of anathema to the Court, and there was this constant business about "you have to choose, and if you're a kid, you have to choose by the time you grow up", because I got the feeling that the Court didn't like the idea of dual citizenship. (Granted, I get the feeling that federal law didn't like dual citizenship much before; I suppose I should mention somewhere that Petitioners still don't like dual citizenship and think that even current law is trying to reduce it, for whatever that's worth.)
Respondents use this for a strong claim that the Court "has never once inquired into parental domicile". Ehhhhh, they weren't dealing with a specific case here where that sort of inquiry could have even come up, so that's kinda weak.
Korematsu v. United States 1944
This is a big famous one. Rather than just challenging a curfew order, this one is challenging the whole scheme of internment of people with Japanese ancestry in America. You've almost certainly heard of this one. The Court even recently said:
Korematsu was gravely wrong the day it was decided, has been overruled in the court of history15, and—to be clear—“has no place in law under the Constitution.”
Honestly, there's very very little here that's relevant for us. At least the Respondents cited a dissent, but it's just for the following:
Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.
This one was on the border of me just skipping, but it's big and famous, and mayyyyyybe on the outside edge of being relevant.
Johnson v. Eisentrager (1950)
Twenty-one German nationals were in China.
They alleged that, prior to May 8, 1945, they were in service of German armed forces in China. They amended to allege that their employment there was by civilian agencies of the German Government. Their exact affiliation is disputed, and, for our purposes, immaterial.
Note that on May 8, 1945, Germany unconditionally surrendered and told their forces to cease hostilities. These guys were alleged to have committed war crimes by continuing hostilities against the US, I guess by helping out the Japanese armed forces who were still fighting. They were taken prisoner, tried and convicted in China, then moved to a prison in US-occupied Germany. They wanted to challenge various parts of their trial/conviction/imprisonment with reference to the US Constitution. Justice Jackson has the Opinion of the Court.
Modern American law has come a long way since the time when outbreak of war made every enemy national an outlaw, subject to both public and private slaughter, cruelty, and plunder. But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments.
Petitioners pull from this section:
The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. During his probationary residence, this Court has steadily enlarged his right against Executive deportation except upon full and fair hearing. And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties -- such as the due process of law of the Fourteenth Amendment. [citations removed]
But Justice Jackson thinks that "territorial jurisdiction" matters:
But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act.
He cites Yick Wo and another case. He goes on to say:
It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war, and not as an incident of alienage. Judge Cardozo commented concerning this distinction: "Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects."
I only quoted so much to be able to say, "Yes. Yes it is confusing when we're considering 'enemy aliens' or 'enemy belligerents', as I mentioned above." He says:
American doctrine as to effect of war upon the status of nationals of belligerents took permanent shape following our first foreign war.
He then talks about the craziness of "modern total war". Then,
The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.
He says:
The resident enemy alien is constitutionally subject to summary arrest, internment, and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment
He makes a distinction between a resident alien enemy and nonresident alien enemy, citing Clark v. Morey:
"A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity."
and Ex Parte Kawato:
"The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today."
However, for nonresident alien enemies:
But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have been this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.
These guys never resided in the US. And the Court says that, being in Germany, they are not within the "territorial jurisdiction" of the US. The opinion doesn't really engage with questions of whether US-occupied territory is within the "territorial jurisdiction" of the US; it seems to pretty much just assert it. That's probably what I would have found to be most interesting, especially considering the old cases from the Revolution when Britain occupied NY, and the Court sort of considered it "British territory" during the occupation.
There is a dissent, by Justice Black, with two others. I don't see that it really digs into this interesting question, either. It does say that it's a dangerous precedent, and sure, I can totally see how this was a precursor decision to stuff like the Gitmo situation. All in all, kind of interesting, but doesn't really dig into the topics that I wanted to learn more about.
Savorgnan v. United States (1950)
US-born citizen moves to Italy and gets Italian citizenship. Statute at the time says that this means she's expatriated and no longer a US citizen. The Court is fine with this. Petitioners today cite it for one line:
The United States has long recognized the general undesirability of dual allegiances.
I'll quote just a bit more:
Temporary or limited duality of citizenship has arisen inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective. There is nothing, however, in the Act of 1907 that implies a congressional intent that, after an American citizen has performed an overt act which spells expatriation under the wording of the statute, he nevertheless can preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.
At least, at that time, the US seemed pretty serious about not wanting dual citizenship. I'll quote just one more piece, not because I think it really matters today; just because I find it interesting and surprising.
This Court, in interpreting § 3 of the Act of 1907 as it existed from 1907 to 1922, has passed upon substantially this question. Section 3 then provided that "any American woman who marries a foreigner shall take the nationality of her husband." While that provision was in effect, a woman who was a native-born citizen of the United States married a subject of Great Britain residing in California. The woman had not intended to give up her American citizenship. On being advised that she had done so, she sought a writ of mandamus to compel the local Board of Elections to register her as a voter, and she showed that she had the necessary qualifications for registration provided she established her American citizenship. The Court held that, during her coverture, her expatriation was binding upon her as the statutory consequence of her marriage to a foreigner in spite of her contrary intent and understanding as to her American citizenship. She accordingly was denied relief. [citations removed]
That wasn't even the case at hand; they're just telling a story. But yeah, I was not expecting that.
Kawakita v. United States (1952)
A weird kind of flip from the last case. US-born citizen who also had Japanese citizenship moved to Japan, stayed there through the war, took a job at a POW camp, but wasn't actually part of the military. Maybe a bit of hubris from the syllabus:
After Japan's surrender, he registered as an American citizen, swore that he was an American citizen and had not done various acts amounting to expatriation, and returned to this country on an American passport.
Was eventually tried by the US for treason for his acts. First question is whether he expatriated and lost his US citizenship. In saying that this is the flipside to the last case, this is one where the US wanted to say that he didn't lose his US citizenship and was a dual citizen, so they could try him for treason. The determination was really fact-bound, and I'm just not going to get into it. Read it if you're interested, but I should probably spend less time on some of these questions that are a shade outside of relevance to today's case. Maybe just some interesting quotes. Petitioners cite:
One who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting.
I'll quote some more that I found interesting.
Dual nationality, however, is the unavoidable consequence of the conflicting laws of different countries. One who becomes a citizen of this country by reason of birth retains it even though, by the law of another country, he is also a citizen of it. He can, under certain circumstances, be deprived of his American citizenship through the operation of a treaty or an act of Congress; he can also lose it by voluntary action. But American citizenship, until lost, carries obligations of allegiance, as well as privileges and benefits. For one who has a dual status, the obligations of American citizenship may at times be difficult to discharge. An American who has a dual nationality may find himself in a foreign country when it wages war on us. The very fact that he must make a livelihood there may indirectly help the enemy nation. In these days of total war, manpower becomes critical, and everyone who can be placed in a productive position increases the strength of the enemy to wage war. Of course, a person caught in that predicament can resolve the conflict of duty by openly electing one nationality or the other and becoming either an alien enemy of the country where he resides or a national of it alone. Yet, so far as the existing law of this country is concerned, he need not make that choice, but can continue his dual citizenship. It has been stated in an administrative ruling of the State Department that a person with a dual citizenship who lives abroad in the other country claiming him as a national owes an allegiance to it which is paramount to the allegiance he owes the United States. That is a far cry from a ruling that a citizen in that position owes no allegiance to the United States. Of course, an American citizen who is also a Japanese national living in Japan has obligations to Japan necessitated by his residence there. There might conceivably be cases where the mere nonperformance of the acts complained of would be a breach of Japanese law. He may have employment which requires him to perform certain acts. The compulsion may come from the fact that he is drafted for the job, or that his conduct is demanded by the laws of Japan. He may be coerced by his employer or supervisor or by the force of circumstances to do things which he has no desire or heart to do. That was one of petitioner's defenses in this case. Such acts -- if done voluntarily and willfully -- might be treasonable. But, if done under the compulsion of the job or the law or some other influence, those acts would not rise to the gravity of that offense. [citations removed]
and
In short, petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform.
If he can retain that freedom and still remain an American citizen, there is not even a minimum of allegiance which he owes to the United States while he resides in the enemy country. That conclusion is hostile to the concept of citizenship as we know it, and it must be rejected. One who wants that freedom can get it by renouncing his American citizenship. He cannot turn it into a fair weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor. An American citizen owes allegiance to the United States wherever he may reside.
Circumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship. An American with a dual nationality who is charged with playing the role of the traitor may defend by showing that force or coercion compelled such conduct. The jury rejected that version of the facts which petitioner tendered. He is therefore forced to maintain that, being a national and a resident of Japan, he owed no allegiance to the United States even though he was an American citizen. That proposition we reject.
Petitioners cite the "Circumstances may compel..." language, but they definitely pull it out of context. Here, it's actually saying that those compelling circumstances could be a defense, whereas they're sort of just using it as a general argument against dual nationality. Pretty shameful cite.
Immigration and Nationality Act of 1952
Even more comprehensive than the 1940 Act that was just about Nationality; this one covered both that and Immigration. Even longer. But it still has the same wording for the one critical part, and that part is still law. I don't have anything to add here that I didn't say about the 1940 Act. Like, mayyyyybe, someone might think, "Well, the meaning of the phrase hadn't quite changed by 1940, but it was clear that Congress intended to do X by 1952," but I don't recall any of the briefs arguing this. Mostly, everyone agrees that Congress adopted their preferred reading in both Acts of 1940 and 1952.
Hintopoulos v. Shaughnessy (1957)
Husband and wife work on foreign ships (different ones? I don't know). Wife lawfully enters US in July 1951. She's pregnant, sought medical advice, and decided it was in the interest of her health to stay. Husband joins her from his ship a month later. Apparently, the statute at the time only allowed alien crewmen to stay in the US for 29 days. Their child is born in November. In January, they disclose their illegal presence to the gov't and petition to be able to stay under a statute that allows the Attorney General to suspend deportation "if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien".
The government finds that they would qualify under the statute, but deny the request as a matter of discretion, saying:
They have been in the United States for a period of less than one year. They have no relatives in this country other than each other and their son. To grant both this form of relief upon the accident of birth in the United States of their son would be to deprive others who are patiently awaiting visas under their already oversubscribed quotas.
The Court thinks that the government has discretion to make that choice, even if they meet the minimum legal standard of the statute.
Respondents cite this for obvious reasons. The Court never questions whether their child was actually a US citizen. By this point, in 1957, it seems that everyone involved pretty much just assumes that the child is a US citizen, even though he was born while the parents were unlawfully present.
Kennedy v. Mendoza-Martinez (1963)
Draft dodgers, can they be depatriated? It's not entirely clear from this case. I won't go through it in detail, but it is a somewhat interesting read. The reason why it's not entirely clear is because they don't actually answer that question. Instead, the Court says that the statute that strips citizenship of draft dodgers is penal or punitive, so you need to have a full criminal procedural process with 5A/6A protections. The statute technically stripped them of citizenship merely upon the moment that they met the conditions, so it's not constitutional.
It's a bit of a shocker in the other direction, given that we recently saw a case where a woman was depatriated for just marrying a foreigner. I suppose these things could conceivably be reconciled in that it doesn't feel like it's a punishment for getting married, just, like, an administrative thing, I guess? But yeah, cases in this era sometimes seem like they're running a bit on feels, and I wouldn't be surprised to see this court go absolutely ballistic at something like that. This one was a bitter 5-4, though, so if you're up for a fight as to what counts a penal/punitive, enjoy the long read. I'll note that two Justices concurred to say that they didn't actually care about the penal/punitive business and just thought that Congress didn't have any power at all to expatriate people.
I'm going to try to not give it too much more thought at this time. I'll maybe just pull one quote from the conclusion of the Opinion of the Court that I thought was interesting:
Moreover, the truth is that, even without being expatriated, the evader living abroad is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense, he must return to this country, and, by doing that, he will subject himself to prosecution. In fact, while he is outside the country evading prosecution, the United States may, by proper refusal to exercise its largely discretionary power to afford him diplomatic protection, decline to invoke its sovereign power on his behalf. Since the substantial benefits of American citizenship only come into play upon return to face prosecution, the draft evader who wishes to exercise his citizenship rights will inevitably come home and pay his debt, which within constitutional limits Congress has the power to define.
This does seem like quite the vibe shift from a Court that spoke about a Navy captain feeling "compelled" to train his ship's guns on a foreign naval vessel in order to secure the release of a not-entirely-naturalized-yet guy.
There is probably a lot more one could get out of this case, but having it be about process rather than the core issues makes it kinda weak. It's extra weak that the only reason it was cited by Respondents turns out to be that the Court cited WKA in a footnote to say that common law is a thing for interpreting 14A. Laaaaame.
INS v. Errico (1966)
Very similar to Hintopoulos in that the Court just sort of states as a matter of fact the citizenship of children of deportable immigrants. The rest of the Opinion isn't of very much use to us. It's statutory interpretation that will either enrage you or cause you to well up with pride, depending on your politics. What matters here for Respondents is just this:
Errico ..., a native of Italy, falsely represented to the immigration authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that misrepresentation, he was granted first preference quota status under the statutory preference scheme then in effect, and entered the United States in 1959 with his wife. A child was born to the couple in 1960 and acquired United States citizenship at birth.
and
Scott ..., a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for entry into the country. She has never lived with her husband, and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who became an American citizen at birth.
Both of their frauds were discovered at some point, and they became deportable. But their stories aren't what really matters for Respondents today. What matters is that everyone apparently thought that their children were US citizens, and it appears to have just not come up to think that they could not be.
Berenyi v. Immigration Director (1967)
Guy applied for naturalization. Said that he had never been a member of the Communist Party and been connected/associated to it. Oh no! He maybe was; at least he attended some meetings. SCOTUS says that the District Court can make the determination about whether he was or whether he lied on his application. There's not much here. I guess some language about how the burden is on the applicant for requests for naturalization and that it can be a high bar.
Petitioners cite this in support of a quote from Manzi, but that quote isn't really in here, and there's really nothing too related here. Definitely a bad cite.
Afroyim v. Rusk (1967)
What a difference a few years makes! Remember that draft dodgers case? Remember that there were two Justices who thought that Congress had no power to denaturalize people? Well, Justice Goldberg was the guy who wrote that majority Opinion for the Court. He was apparently only on the Court for three years. President Johnson apparently convinced him to resign and become the ambassador to the UN, so that he could appoint Abe Fortas. And just like that, there were now five full votes for the proposition that Congress has no power to denaturalize people.
This was again a bitter 5-4, with the same four dissenters. There's a lot of legislative history. Primarily, they note that there's nothing in 14A about any way that a person could become not a citizen. Money quote for Respondents:
Though the framers of the Amendment were not particularly concerned with the problem of expatriation, it seems undeniable from the language they used that they wanted to put citizenship beyond the power of any governmental unit to destroy.
This is pretty much a 180 from the Justice Story dissenting position in Inglis that the born subject can't do anything to dissolve their allegiance, and that the sovereign has to. I don't have a lot else to say about this. I've already gotten too distracted by denaturalization, so I guess maybe it's good that that's done now?
Rogers v. Bellei (1971)
Aldo Bellei was born in Italy to an Italian father and US citizen mother. By statute, he gained US citizenship. Oh no! That statute says that he loses citizenship if he doesn't reside in the US continuously for five years between the ages of 14 and 28. Aldo didn't.
It's another bitter 5-4. The majority observes that he was not "born in the US" and says that he was also not "naturalized in the US", so 14A doesn't apply. Congress can apparently set rules like this for naturalization. Petitioners cite this for its talk about dual nationality:
The Congress has an appropriate concern with problems attendant on dual nationality. These problems are particularly acute when it is the father who is the child's alien parent and the father chooses to have his family reside in the country of his own nationality. The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child's own primary allegiance is to the country of his birth and of his father's allegiance is either misplaced or arbitrary. [citations removed]
The main fight is over whether Afroyim controls here. The dissent thinks it does. Moreover, they think that, so long as the US is choosing to do naturalization services overseas, the part of 14A that says "naturalized in the US" should be effectively read "naturalized into the US".
Elkins v. Moreno (1978)
Student on a student visa. Wants in-state tuition from University of Maryland. UMD says no, because you have to be domiciled in the state, and you can't be domiciled (have an intention to remain permanently) when you're on a visa that specifically says you're not allowed to stay permanently and must leave afterward.16
There's not a lot more for this. Obvious why Petitioners cite it, as they're pushing domicile.
Landon v. Plasencia (1982)
Maria Plasencia was, I think, our first example of a permanent resident alien who is called out as such. She traveled to Tijuana and tried to smuggle some other Mexican/Salvadoran nationals over the border. I've never dug into the types of offenses that can merit revocation of permanent residence, and I'm not going to now. The Court seems to agree that this type of thing is sufficient; the dissent complains about the process used, though.
Petitioners cite it for this paragraph:
This Court has long held that an alien seeking initial admission to the United States requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. Our recent decisions confirm that view. As we explained in Johnson v Eisentrager, however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.
I mean, I guess Petitioners are making the argument that when aliens come to the US, they sort of gradually move up the scale in terms of allegiance/rights? There doesn't seem like there's much here.
Toll v. Moreno (1982)
University of Maryland and in-state tuition again. This time, apparently, the visa allowed them to establish a domicile. UMD has to respect that.16
Plyler v. Doe (1982)
I think this is our first encounter with the term "undocumented aliens". There are some kids who are undocumented and not lawfully present in the US. Does a State's public school system have to admit them?
This case isn't directly about the Citizenship Clause. There is no claim that these kids were born citizens or anything. It's about the due process/equal protection clauses, which if you remember, talks about "any person" and "any person within its jurisdiction". It's a bitter 5-4 and generated three concurrences, for a total of five opinions. Justice Brennan writing for the Court:
Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. [citations removed]
I removed citations, but some are familiar to us, like Wong Wing and Yick Wo. Justice Brennan acknowledges that the due process clause uses the phrase "any person" while the equal protection clause uses "any person within its jurisdiction". He doesn't see a difference between them:
There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment.
There is no business about licenses anymore. No business about political jurisdiction like we had seen long ago in Citizenship Clause cases. This is the notion of jurisdiction:
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.
Footnote 10 is (foot)notable.17
Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added. [by Justice Brennan]) Justice Gray, writing for the Court in United States v. Wong Kim Ark, detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was
"impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States.'"
Justice Gray concluded that
"[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."
As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. [citations removed]
It seems to me that Justice Brennan actually acknowledged a tension, but didn't dig into it. That is, the phrase "bounded only, if at all, by principles of sovereignty and allegiance". Like, to me, that's kind of been the question all along?! Is he saying, 'Nah, those principles of sovereignty and allegiance aren't real bounds; maybe they were at one point, but now they basically don't matter'? Is he saying that principles of sovereignty/allegiance might provide bounds for the Citizenship Clause, but not Due Process/EPC? That would seem contrary to him just saying that they're the same? I don't understand how it's supposed to work.
The other notable thing in this case is the sentence that Respondents cite from it:
illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State. C. Bouve, Exclusion and Expulsion of Aliens in the United States 340 (1912).
I kept the citation this time. I've been mostly skipping going into commentaries for the purpose of understanding the Citizenship Clause. I did look at a couple, but decided to restrict my scope in this post for the reasons given at the outset. This is kind of an exception, because I've never seen a claim like this before, and it's not justified by reasoning or cites to other cases or anything. There's no, "...here are the traditional criteria..." stuff. Instead, it's just a cite to this commentary. The citation is for page 340, but I think the relevant section starts on page 338 and is worth reading for a while. It's talking about "municipal status", which is sort of foreign to the modern ear:
The term “municipal status” in its specific application to the Immigration and Exclusion Laws is here used to denote the rights acquired by an alien under the municipal laws of the United States regulating the subject of the admission and exclusion of aliens after having been duly admitted to residence here by the administrative officers; or, it may be added, an alien who enters this country irrespective of the provisions of the Immigration or the Exclusion laws, where those laws have no application to the particular alien; and to these two classes of foreigners there must be added a third — that of aliens who, after having entered unlawfully have remained here for a longer period than that in which the law authorizes their deportation, if found to have entered unlawfully.
It says there's also a distinction, because most unlawful entrants can, by statute, only be deported if discovered within three years, but the Chinese Exclusion Act says there's no limit for Chinese people.
The fixed municipal status is, of course, permanent only insofar as existing laws regulating the admission and exclusion of aliens are concerned. No foreigner, as long as he retains his political status as such, can be said to acquire a permanent municipal status in the United States, in the sense that it may not be submitted to the restrictive operation of Congressional legislation passed subsequent to his admission, or altogether terminated by such legislation; in other words, the rights of foreigners residing in the United States are always conditional on the continuance of the governmental permission to exercise them.
And again, this three year limitation is apparently a creature of statute:
The act of deporting such alien is the extent to which the Immigration laws can be operative with regard to him within the three year period. With the passing of the period the right to deport no longer exists, and the right to remain becomes absolute as far as the Immigration act is concerned.
It notes that municipal status is different from domicile.
The term “municipal status” acquired under the immigration laws is in no way to be confused with the acquisition of domicile. An alien, who, whether entering in violation of the Immigration acts, or, after being duly passed by the immigration authorities in the manner provided by law, takes up his residence here with intent to remain has done all that is necessary for the acquisition of a domicile. The only difference is that if the entry is lawful the municipal status is fully established, subject only to termination by the commission of acts subsequent to entry which the law provides shall justify the forfeiture of the domicile lawfully acquired; whereas, if the entry is unlawful the municipal status is not complete except on the expiration of the three year period within which aliens entering in violation of law are subject to deportation on the ground of unlawful entry.
This distinction is important because:
The recognition of this distinction becomes of the first importance in considering questions arising in connection with the right of an alien to re-enter the country based on previous domicile here; for in so far as, under the Immigration acts, the right of an alien to re-enter is based on continuing rights of domicile previously acquired, it seems plain that the acquisition and the maintenance of the domicile must be lawful in order to sustain the alleged right to re-enter based thereon.
This is getting a bit afield, but it's so strange to moderns. There are sometimes some rights that attach to domicile, like the right to re-enter. You can "get domicile" pretty easily, I guess, by just intending to stay, but that doesn't necessarily get you the right to re-enter.
The Chinese person of the exempt class, being an alien and, under our laws, incapable of naturalization, could claim no greater right through having been admitted in accordance with the Exclusion Act of 1882 than any other alien residing in the United States. He like any other alien, can never acquire by domicile or otherwise, a vested right to remain.
Apparently "getting domicile" doesn't get you a "vested right to remain" either. It goes on. There are ways to lose "municipal status". It gets weirder. At one point, they say they'll consider cases in a later section where someone enters unlawfully, stays past three years, which would normally gain "municipal status", and then wants to re-enter. They refer to page 465, which jumps to talking about class distinctions. Like, the talk about prostitutes a lot. Apparently, if you're a prostitute, it sort of doesn't matter if you made it past that three year mark? It's so confusing.
I think what they're saying is that 'domicile' is sort of easy to 'get'. You just get to somewhere and subjectively intend to stay there permanently. But then to what exent is it important for anything? There are all sorts of situations/rules. But then, we had other cases not too long where they said that conditions on an entry visa can prevent you from 'getting domicile', so I don't know?
Verlinden B.V. v. Central Bank of Nigeria (1983)
Is the Foreign Sovereign Immunities Act Constitutional? I don't really care. I almost skipped this, but Petitioners quoted the paragraph that cited Schooner, so I feel almost obligated.
For more than a century and a half, the United States generally granted foreign sovereigns complete immunity from suit in the courts of this country. In The Schooner Exchange v. M'Faddon, Chief Justice Marshall concluded that, while the jurisdiction of a nation within its own territory "is susceptible of no limitation not imposed by itself," the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns. Although the narrow holding of The Schooner Exchange was only that the courts of the United States lack jurisdiction over an armed ship of a foreign state found in our port, that opinion came to be regarded as extending virtually absolute immunity to foreign sovereigns.
As The Schooner Exchange made clear, however, foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution. Accordingly, this Court consistently has deferred to the decisions of the political branches -- in particular, those of the Executive Branch -- on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities.
I guess Petitioners are saying that, as a Constitutional matter, there really isn't even an exception for foreign ministers. The US just chooses to do it. That's a bit weird. I don't really know what it would imply, if true.
INS v. Rios-Pineda (1985)
Redux of Hintopoulos and INS v. Errico, in which unlawful entrants have a child (two, actually), and the Court just states that the kids are US citizens and inquires about whether INS had the right process in using discretion during deportation proceedings. They apparently did, and I'm not sure that this adds anything beyond the other cases, except to say that the Court has done this multiple times.
Miller v. Albright, 523 U.S. 420 (1998)
I'm not going to say anything real about this. Petitioners just cite Justice Breyer's dissent for the claim that the US has extended citizenship to foreign born children of citizens. I guess that sentence is in there, so it's not a straight bad cite. It's an interesting side show case, though. Apparently, the father was a US serviceman in the Philippines, and he had an illegitimate child with a Philippino woman. The statute has some business about needing to legitimate the child before age 18, and there is a different treatment depending on whether the US citizen is the mother or father. Sounds kinda complicated. Worth a look if you're interested, but I won't say any more.
Carlson v. Reed (9th Cir. 2001)
Not SCOTUS. Ninth Circuit. Basically the same as Elkins v. Moreno and Toll v. Moreno. The type of visa you have can prevent you from establishing domicile, I guess even if you keep renewing it and subjectively intend to stay.16
Tuan Anh Nguyen v. INS (2001)
Basically the same as Miller v. Albright; I'm not going to try to figure out the differences. The statute can treat foreign-born children of US citizen fathers differently than foreign-born children of US citizen mothers. Maybe a money quote for Petitioners:
it should be unsurprising that Congress decided to require that an opportunity for a parent-child relationship occur during the formative years of the child's minority. In furtherance of the desire to ensure some tie between this country and one who seeks citizenship, various other statutory provisions concerning citizenship and naturalization require some act linking the child to the United States to occur before the child reaches 18 years of age.
Sessions v. Morales-Santana, 582 U.S. ___ (2017)
Apparently, now the Court thinks that at least one provision of the law treating children born abroad to a US citizen father differently from a US citizen mother is now unconstitutional? I'm not going to figure out the details of why. Petitioners only cite this for the idea that, in this case, apparently the Court said that they were only going to implement the new rule "prospectively", so if your case was already in the past, no dice. Since Petitioners want to implement their own rule prospectively, they cite this.
Park v. Barr (9th Cir. 2020)
Not SCOTUS. Ninth Circuit. I was ready to barely cover it, because Petitioners just cite it for this quote:
It would be inconsistent to conclude that Congress sought to preclude nonimmigrants who comply with federal immigration law from the benefits that flow from state domiciliary status while permitting nonimmigrants who violate their visa conditions to share in them.
But what's weird and worth saying a few words about is that this is a topsy-turvy case where everything's kind of upside down.
Woul Park entered the US on a B-2 tourist visa. She was married to another Korean. She overstayed her visa and just didn't leave. It's not clear what her husband did, but they filed for divorce at the Korean Consulate in California. She then married a US citizen, got a green card that way, and was applying for naturalization.
Oh no! Turns out that California law, for reasons I do not understand and are not described, simply doesn't recognize foreign divorces of foreign people when they're both domiciled in California. And so, if they were domiciled in California, her divorce was invalid, her new marriage was invalid, and so no citizenship.
Typically, at least in every case we've seen up to this point, it seems to be useful to a person who wants to stay in the US (with permanent residency or citizenship or whatever) to be able to claim that they're "domiciled" here. That their subjective intent is to never leave. I believe that she was claiming that she was domiciled and had no intent to leave... at least until this twist. But remember Elkins v. Moreno, Toll v. Moreno, and Carlson v. Reed? Her federal visa said that she couldn't acquire domicile.16 Suddenly, at least one alien in the US really wanted to not be considered as being domiciled, because then her divorce would be valid, her new marriage would be valid, and she could become a citizen.
The Ninth Circuit agreed with her. So, weirdly, they're saying that they're not giving benefits to people who violate federal law, because to recognize her domicile would be giving her a benefit for violating the terms of her visa... but the outcome is that she got citizenship, I guess kind of in part because she tried to violate the terms of her visa, and I guess the task failed successfully? Wild case.
I don't really have much to say on this one. I can see how the rules are apparently working, mechanically. I can't quite see how the outcome in this particular case serves the purpose of the quote that Petitioners pulled from it.
Haaland v. Brackeen (2023)
This is an almost skip. Indian Law. I don't understand it. The actual issue of the case doesn't matter. It's just cited by Petitioners because it talks about the various ways Congress has "plenary and exclusive" power over Indian tribes. Maybe check out if you really want to dig through the cites and try to figure out how in the world all the Indians are Weird, yo stuff works. Maybe you can figure out how to incorporate that into our question today, but it's beyond me.
Wilkins v. United States (2023)
Another almost skip. Petitioners cite it for one line:
“Jurisdiction, this Court has observed, is a word of many, too many, meanings.”
The quotation marks are because this case is, itself, just citing another case for that line. It's almost a straight bad cite, because the case has nothing to do with today's question, and I don't see how their discussion of some of the meanings of "jurisdiction" are at all related. I'm relenting, because I do feel the point of this quote in my bones after making it this far. What does jurisdiction mean? In what context? Even with a context, I might still not know.
Trejo v. Blinken (S.D. Tex. May 9, 2024)
Not SCOTUS. District Court in Texas. Cited by Petitioners as an example of what they think are bad consequences of having a policy where any birth in the US at all gives US citizenship. This is an almost-skip, because I generally don't spend a lot of time with the policy preferences bit. I guess it made the cut, because it's a clear case where a court has the current understanding that it basically doesn't matter how it happened, if you were born on US soil, you're a citizen.
Alyn Trejo lived in a border town in Mexico. She was pregnant and wanted her child to have US citizenship. In late August 1997, "with her due date approaching", she enlisted a smuggler to get her across the border. She gave birth on September 7.
The details of the record-keeping was spotty, so the court had to find by a preponderance of the evidence standard that the child was born in the US. They thus concluded that the child was a US citizen.
And sure, that's one of the stakes of this case. It's a pretty clear example of the extreme case. If the rule is that none of that allegiance stuff matters, none of that domicile stuff matters, there's no factor other than whether a person physically got onto US territory to give birth that matters, then this child is a US citizen. You may think that's a wonderful thing. You may think that's a terrible thing. But it is an example of what's at stake to folks today.
Obviously, there are other extreme examples on the other side. Folks who discover that they've "lost" (or didn't have from the start) citizenship that they thought they had. Or situations where it now requires complicated documentation/evidentiary standards that get flubbed up for some reason, and somebody who should be a US citizen gets denied. There are plenty more if you read some of the amicus briefs in support of Respondents.
I guess that's an okay way to end.
Conclusion
Whelp, I tried to look through all the American case law. It was a lot. I tried to figure out which parts were relevant and dig in a bit when I thought there might be something interesting.18 I tried to report it to y'all in a way that hopefully was slightly less intimidating than just going at it completely raw. Was it helpful to you, or just an abhorrent mess? Was it helpful to me? Like I've said many times, I don't know.
I've mostly tried to keep my own opinions out of it. I probably haven't succeeded too well. So, what do I actually think after having completed this journey?
If I had to, gun to my head, say what I think the Court has mostly embraced over the centuries for how to think about this topic, I'd probably say that it was all just right at the beginning. That's right, I'm not sure you needed to read almost anything after Schooner. I think it's all about Schooner. Every time the Court seemed to say something really relevant, it was an appeal to Schooner. Every single time they cite Schooner, they do so approvingly. Both principal briefs cite Schooner a bunch, approvingly. Almost every time the Court departs from Schooner, it seems to be a confusing mess. Even ancillary issues like whether an entry visa (a license) can control whether you can establish domicile is basically screaming out that folks should go back to taking Schooner seriously. Wong Kim Ark, itself, didn't just cite Schooner for the critical part that discussed temporary visitors, the entirety of the analysis was nothing but a direct quote of Schooner. Then, it simply restated that what Schooner declared were "incontrovertible principles". Even the modern example of Plyler v. Doe stumbled around, not fully understanding Schooner, but seeming to think that "sovereignty and allegiance" had something to do with things, but coming off very confused, because they didn't dig in to how basically all the case law that is half decent on this topic points back to Schooner.
I think the Court wants the Full Schooner. Temporary visitors have a "local and temporary allegiance". Probably, that's enough for their kids to get US citizenship. It still might be complicated, but that's pretty much what I think. For folks who straight up entered unlawfully? "You got a liocense for that?" is probably about where I'd end up. They don't have a license under which they enter, even an implied one. They have an express prohibition on entering. I can't see how there is any way to impute to them, or their children, any sort of "local or temporary allegiance". Does that matter? I think the Court has mostly thought that it matters. What about folks who enter lawfully (with a license), but then become unlawfully present? I still have no idea what principles should even come into play.
What does that mean for our definition of "jurisdiction"? I still don't know. I think there's mayyyybe just enough of a thread continuing through the cases that "subject to the juridiction thereof" still means something about political jurisdiction/allegiance, but man, who knows?!
Of course, I don't think either party can really say that it should probably just be the Full Schooner, because I think that the Full Schooner probably results in a split decision - lawful temporary visitors are on one side, and unlawful entrants are on the other side. Petitioners want both categories to be out, and Respondents want both categories to be in. Respondents, in particular, are very happy to bang the Schooner Drum when it comes to temporary visitors, but they don't really engage with the framework that it put in place when it comes to unlawful entrants.
Am I still bullish on the Roberts Court actually being able to clear any of this mess up? ...much less so than I was three-quarters of a decade ago. After going through all this, this one is just too messy. Sooooo messy. Now that I've seen what I've seen, almost every piece of writing I now see on this topic, from like law professors and such (many of whom are, admittedly, trying to reach a result) just seems so incoherent with all the history, as in, it just does not cohere with what has actually gone down. Admittedly, some folks are leaning ever more heavily on legislative history or other non-Court historical research that I don't know much about, and they may be totally right about that, but it just doesn't jive with the cases. I'm now expecting to read the Court's decision and either respond with, "Huh, they took the statutory out and didn't say anything about the Constitution," or, "Eugh, this Constitutional analysis just makes even more mess and doesn't make sense with all this other stuff."
Oh, I guess one last last note. The Court could also take the out that the President is not allowed to make such a change via executive order. This is plausible, but I guess Schooner also implied that it was up to the "sovereign" to decide who had a license or not in some cases. Does the President count for that? I don't know. Maybe it has to be Congress. I did say three-quarters of a decade ago that it would be quite interesting if there was a statute which effectively said that illegal immigrants didn't have the proper local and temporary political allegiance to be considered "subject to the jurisdiction thereof". That's probably not going to happen, and so we're again slightly less likely to get a real, detailed, coherent Constitutional Opinion of the Court.
1 - The government can file an additional reply brief. It appears to be due, to my calculation, on March 20. I'm probably not going to wait to post this until that time, so obviously I won't have included information from it.
2 - I tried; I really did. Some parts, I could already tell I wasn't going to personally care much about and probably wouldn't comment much on, so I skipped through some of that. Also, some were obviously going to be just repetitive with nothing new/interesting. And some were just so obnoxious, I just couldn't do it. Sorry.
3 - In this case, the government lost in the court below. Thus, they were the ones to have petitioned the Supreme Court to review the case. Thus, they are the "Petitioners". Barbara and those arguing against the Executive Order and in favor of the more expansive view of birthright citizenship are referred to as "Respondents". I will generally try to stick to these terms in describing the parties.
4 - There was some argument as to whether the vessel was, properly considered, a truly commissioned public armed ship that is, in essence, an extension of the French State. The Court concluded that it was, but doesn't seem to have gotten into the details of why, what arguments they turned aside and why, etc.
5 - These are the only two places where the word "allegiance" appear in the opinion.
6 - "Dicta" is the observations of the court that are not critical to the holding of the Court for the exact case that is in front of them. Sometimes, dicta can really be misleading, as the Court may not be really focused on these side matters, so they might flub it a little bit more, since it isn't so critical. Other times, it can be very useful and indicative of general frameworks/theories and how to understand the direction of law more broadly. There are often bitter fights as to which category a piece of a prior opinion is in.
7 - Like, suppose the US conquered and occupied a random country in, say, the Middle East. Is there a time at which the US "acquire[s...] firm possession" and is enabled to "exercise the fullest rights of sovereignty" over it? Does that change if the US swears it's not exercising sovereignty and is trying to prop up some other government instead? The mind wonders...
8 - I have not verified this claim independently.
9 - They also claimed that it created an involuntary servitude forbidden by the Thirteenth Amendment.
10 - I've mostly tried to strip out much of my own opinions on these Opinions, to whatever extent that is possible, but maybe if I bury it in a footnote, it'll be okay. I'm not sure I'll remember to come back to this thought in a conclusion section.
When seeing a situation like this in an Opinion, a bit of text just sort of moving us forward through the story, on an issue that doesn't seem to be a major matter of controversy for the Court, my inclination is to think that there's a pretty good chance that it's a "throwaway sentence". It might not have been thought through super hard; perhaps very little research went into the history of the topic, and everyone was so busy caring about other stuff that no one cared to focus on this sentence and make sure that it was right.
11 - First name? Last name? Is it like Prince?
12 - Weirdly, Justice Field had a partial concurrence and partial dissent. I couldn't tell what he actually dissented about. He kicked it off by complaining about some stuff the gov't said in oral arguments. Some AI prompting agrees that he didn't actually dissent from anything the Court said, and I guess he just wanted to also complain about the gov't? I'm not sure why this was labeled a dissent at all rather than just a concurrence.
13 - AI also tells me that summary affirmances don't need to be 9-0, and that there have been dissents from them in the past.
14 - Can I note that it's messed up that there was both a Benny v. O'Brien and an O'Brien v. Benny in the same term at the New Jersey Supreme Court? This caused me some problems for a bit. One of the party briefs cited it the wrong way 'round. But, uh, best as I can tell, the Opinion here in WKA cited it the wrong way 'round, too. Unless I screwed it up. It's confusing and annoying.
15 - Me here. I remember some funnies at the time about whether or not "the court of history" is able to actually overrule prior cases, but yeah, I guess probably not binding precedent anymore? The mind wonders whether this is dicta or a holding, lol.
16 - I might again be tipping some of my opinions here, but my initial reading is to think about this in terms of Schooner-ish "licenses to enter". Those licenses can have terms, and they may be restrictive/enabling in some ways.
17 - I don't know if I would have noticed this footnote on my own reading. I definitely didn't thoroughly go through all the footnotes on every case. I was tipped off to its possible importance by the Ted Cruz et al. brief, which was a rare moment where one of the amicus actually pointed me to something useful in the case history.
18 - I wasn't always successful. I didn't have anywhere else to put this, but I wanted to note somewhere that the brief of Congressmembers in favor of Respondents made the following claim:
When United States v. Wong Kim Ark was argued thirty years later, even the Solicitor General—arguing against Mr. Wong’s citizenship—was forced to concede that the jus soli rule was reflected in unbroken longstanding precedent. As he put it, “the opinions of the Attorneys-General, the decisions of the Federal and State courts, and, up until 1885, the rulings of the State Department all concurred in the view that birth in the United States conferred citizenship.” Brief for the United States at 28, United States v. Wong Kim Ark, 169 U.S. 649 (1898).
I tried and tried and tried to find this. I even clicked through and tried to figure out every page of this archive of the case. I couldn't find it. If someone else can find it, that would be appreciated.
Transnational Thursday is a thread for people to discuss international news, foreign policy or international relations history. Feel free as well to drop in with coverage of countries you’re interested in, talk about ongoing dynamics like the wars in Israel or Ukraine, or even just whatever you’re reading.
WARNING: Long, rambly post that's a mix of personal experiences, historical summary and hot-take opinionating.
My first glimpses of China were surreal and desolate. The landscape looked positively Siberic in an almost hallucinatory way; dry, dusty fields smothered with snow and ice stretched to the horizon, only interrupted by groups of austere commieblock-filled xiaoqu that seemed almost copypasted, rising out of the surrounding countryside like strange alien monoliths. I was travelling from the international airport to downtown Beijing, and all the way to Dongzhimen the winter sun streamed in through the windows of the carriage, lighting up the interior with a wan glow. After some time spent navigating the Dongzhimen station trying to transfer to a new line (involving an encounter with a genuinely revolting public toilet), I was well and truly exhausted. I made it to the front desk of my hotel as soon as the sun started to set, stumbled my way through a conversation with a receptionist who knew just enough English for me to converse with, got my connection working for just enough time to check in, and dragged myself and all my luggage into the hotel room. I slotted my keycard into the holder just by the door, and every light began to turn on. Inside, it was exceptionally well-insulated to the point it actually felt hot, which was rather surprising considering how chilly it had been outside of the hotel.
Relieved, I spent some time showering and unpacking, then made my way down to the front desk again just to ask if the bottled water in the room was free. Once I got back to my room, the phone by the bed started to ring, and upon picking it up an automated message began to come through informing me that a delivery had been made to me. I opened the door, and found myself staring blankly at a small, kind of cute robot standing in front of the threshold to my room. There was a display on its head with a button that instructed me to "press to open", and upon touching it a panel on the robot slid open to reveal a large hollow space containing two water bottles.
One thing was for sure: I was not in Kansas anymore.
China is one of these rare destinations that's really hard to get any kind of remotely objective take on; it's such a polarising country that anything you read really needs to be taken with a 2 kg block of salt. There is no way to get a somewhat neutral, slice-of-life take on China; not even on YouTube where you might expect to see the equivalent of channels like Abroad In Japan, the country is just so polarising that everything either turns into a SerpentZA-like channel wherein everything in China is awful and nothing is ever allowed to be good, or outright China proselytising. Both sides are extremely committed to their worldviews, and both sides shout extremely loudly - though I will say the China detractors are considerably more loud in the West, which makes sense due to geopolitical anxieties surrounding its meteoric rise; the Place, China meme accurately summarises a whole lot of the discourse around the country. It's a place that has been sensationalised to hell and back, but oddly enough few international tourists actually seem to want to see what it's like for themselves.
I will say that it is not the easiest place to travel, though not for the reasons that other countries are challenging for travellers. Usually travel is difficult due to safety or infrastructure concerns when a country is significantly undeveloped, China is quite the opposite - infrastructure is mostly convenient and reliable and the country is very safe. Rather, the issue here is that the country is its own world that really doesn't seem to care about catering to any laowai not already entrenched within its ecosystem or way of doing things. While it's offered visa-free travel to many countries, reducing barriers for travel, at a minimum you will need to set up Alipay, WeChat and Gaode Maps on your phone and make sure you know how to use them beforehand (including the DiDi mini app on Alipay), get an esim that allows you to circumvent the Great Firewall, and make sure you have a good translate app and a cursory knowledge of phrases like "Hello, I don't speak Chinese", something that I'm sure you'll be using very often because it's rare to find even basic English comprehension in China. Note that Alipay and WeChat require a lot of account verification, including scanning your passport and your face, and it can only be properly set up and used when you are in China, so you will only know that it works once you touch down. And a lot of these apps are irritating bloatware that harvest your data. Your data plan can still be sluggish as hell at points, something that I think may be due to security measures creating extreme latency though I'm not fully sure what causes it (locals don't seem to have this problem, at least). Oh, and I've heard it's difficult to drive in China due to aggressive driving behaviours being common; the repeated refrain from travellers is that you should just use public transport and DiDi if you want to get where you want. And smoking is sometimes a noticeable issue. But the country is so old and so spectacular that the juice is well worth the squeeze. It may be my favourite place in Asia at this point, and I have plans to go again this December.
It goes without saying that China is just different, to the point that this has been the hardest trip report for me to write so far. And barely anyone has a correct view of what it is actually like. It is like looking at a barely-recognisable, funhouse-mirror, heavily sinified alternate history of the world where everything just turned out differently. There are a million and one notable aspects of travelling in China I could have mentioned when covering this country, ranging from everything from the very good to the very frustrating, and there are aspects which I genuinely barely even know how to make up my mind up on. It's a very ancient country with its own set of deeply ingrained norms that hugely conflicts with the party line (though there's a lot to say about how the state in practice is a lot less ideological or centralised than people tend to portray it as), it's ostensibly communist but on the ground seems hypercapitalist in a way that pretty much no Western country is, and it's recently experienced a rise that's nothing short of meteoric, having speedrun its way from being poorer than Sub-Saharan Africa in the 1980s to a world power today. The contradictions are blistering to the point it feels like being flashbanged, there are so many aspects of China that are just really difficult to properly synthesise.
I woke up early the next morning and headed down into the subway, tapped my international bank card at the turnstiles, sent my sling bag through the mandatory security scanner, and made my way to the platform. Beijing’s subway network is vast and impressively comprehensive, but I found navigating it to be very disorienting. The station was downright maze-like, with many long corridors and layered passageways that blurred together, and there was also a lot of security and surveillance; bag checks were routine, and cameras could be seen everywhere. But the system was efficient and the commuters moved very quickly, which I appreciated. After living in Sydney, where slow walkers have sometimes caused me to miss trains (seriously, people here walk at the speed of Roombas), I quite enjoyed the efficiency of movement in China. Admittedly this was a double-edged sword, since at times during the trip I felt like I couldn't relax because people there were always hustling.
Surprisingly enough, though, being in a crowd was never all too hard to handle, since people in China are actually more orderly than people tend to think; they push and shove far less than is usually imagined in the foreign public consciousness. In spite of the perception of Mainland Chinese as being notoriously selfish and opportunistic and incapable of maintaining order in situations that call for it, I didn't find it to be bad at all. Vietnam was an order of magnitude worse in this regard, the amount of people who just carelessly shoved straight through lines was almost unbelievable. I found Chinese people to be much more rule-abiding and pro-social; perhaps that wasn't the case a decade ago or so, but at this point China's not that much worse than everywhere else in this regard, it's just far more dense population-wise. Granted, other things such as people clearing their throat and spitting on the sidewalk still exists, though in my opinion it's really not that obstructive to you personally if you're not super picky about everyone around you conforming to strict norms of propriety. It is a different country and culture after all.
Once I disembarked, I made my way toward the Forbidden City, the largest preserved palace complex in existence (depending on how you define this, the Summer Palace and its gardens may be larger, though its grounds are mostly water). It's a veritable maze of halls that sits directly in the heart of Beijing, oriented on a north-south axis aligned with such precision that it deviates only one degree from geographic north. This axis extends far beyond the confines of the palace itself, continuing through a massive urban corridor approximately 7,500 meters in length which features several of the capital’s most significant monuments. These include the Drum and Bell Towers to the north and, to the south, the Temple of Heaven, the Temple of Agriculture, and the Zhengyangmen Gate Tower. It really only became the seat of power relatively recently (well, recent for Chinese standards, which basically means nothing) when the Yongle Emperor designated Beijing as a secondary capital in 1403, diminishing the previous capital of Nanjing in importance. Once it eventually became the principal capital, the Forbidden City would be the seat of political power for the rest of traditional Chinese history.
On my way to the palace, I noticed that every street seemed to go on forever, stretching into the distance in a manner that I found to be almost dizzying. There is something incredibly agoraphobia-inducing about how all of Beijing is designed, but it leans into it so much that it actually loops back around into making the city kind of distinctive in its own way. This isn't a consequence of modern Chinese city-planning either; when determining the layout of the new city, Ming Dynasty planners based it on ancient manuals going all the way back to the Zhou, specifically the Kaogong Ji (regulations of construction). The capital was always meant to be an expression of imperial power and cosmic order, and its stipulations included that the capital be "a square of nine li" criss-crossed by "nine lanes going north-south and east-west, each of the former being nine chariot tracks wide" that bisected the urban fabric into regular squares. Visitors to the city in the early 20th century described it as a maze of "walls, walls and more walls", something that can be easily seen in many of the old streets extant today. Beijing was designed to be monumental, not cosy, and much of the modern city actually is still somewhat built on the bones of the old one, with the nine thoroughfares of the old capital now expanded into staggering multi-lane highways that extend far beyond the borders of what used to be Ming Dynasty Beijing. Pretty much every artery in the urban core, whether it be modern or traditional, is laid out in the same symmetrical, rhythmic manner that has characterised the city for centuries. In other words, Beijing is very intimidating, and not because the government is extremely overbearing or people act particularly antisocially, rather it's because most of the city's vernacular constructions from every era of its history are inherently so monumental in size, so stately and so anonymised that you get this strange feeling of being dwarfed by its endless grid of streets.
I eventually found myself in a series of lanes lined with the archetypical grey-brick hutongs that Beijing is known for. Some lanes featured many vendors selling tanghulu, rice cakes, and other snacks; others were much quieter and very local, with older Beijingers wandering about, scooters buzzing past, and laundry strung up overhead. Before long I reached Donghuamen Gate (the eastern entrance that conveniently avoids the security at Tiananmen Square), and from there I wandered along the edge of the palace toward the southern entrance for ticket checks. As I walked, towering red abutments and pavilions loomed above me, mirrored in the partially frozen waters of the moat. Bare willow branches hung over the ice, and the path featured everyone from elderly locals to hanfu-clad Douyin girls stopping every few steps for photos against the crimson backdrop. When I finally reached the Meridian Gate, I joined a surprisingly short queue, handed over my passport, scanned my sling bag, and walked through the towering entrance.
The original Forbidden City built by the Ming Dynasty was an extremely luxurious palace, which used precious and rare Phoebe zhennan wood from the jungles of southwestern China to construct its halls (this was an extremely valuable timber in ancient China, and was even more so when fossilised; that was known as "black wood" and to this day it fetches prices of up to thousands upon thousands of dollars per cubic metre). Grand terraces and stone carvings were built by means of massive blocks of quarried stone, which were able to be transported only through covering the ground with a layer of ice in deep winter and then pulling the blocks along. Halls were paved with expertly crafted bricks, made with clay from multiple provinces; each batch took months to make. The interior pavings, seen today, are these very six-century old originals. But a good number of the wooden structures within the Forbidden City date back to the Qing, as the palace complex did not escape the end of the Ming Dynasty unscathed. After Li Zicheng and his rebel troops marched on Beijing in an attempt to overthrow the Ming Dynasty, after the Chongzhen Emperor hung himself in despair and ruin in the gardens of the palace, after the Manchus conquered China with the help of a Ming general who let them into the country, the three main halls in the central axis of the palace, among others, had burned to the ground. The Qing reconstructed the halls of the palace carefully with pinewood, and maintained the general layout rather faithfully (though they did make every plaque within the palace bilingual, featuring Chinese and Manchu scripts alike). Some parts of the palace, however, are still extant from the Ming Dynasty, such as the Wanchun Pavilion in the imperial garden.
I stepped into an immense courtyard bisected by a sinuous waterway (named the "Inner Gold Creek", or Nejinshui) with five stone bridges plunging over it. Two stone lions stood watch over the entire courtyard. At the northern edge rose another grand entrance beyond which lay an even larger square, which rewarded me with a striking view of the Hall of Supreme Harmony. Rebuilt most recently in 1695, it's a huge wooden structure built on a stone platform, used for everything from enthronment and wedding ceremonies to banquets for solstices. I couldn’t enter the vast interior, though; the front of the palace was crowded and I was only able to get distant glimpses of the imposing throne inside. As I tilted my head upward, I noticed rows of small glazed ceramic figures marching along the roof’s ridgelines which were believed to ward off misfortune in ancient China. Customarily, a man riding a phoenix would stand at the head of the procession while the tail terminated with a dragon. Between these two figures, there would be an odd number of mythological creatures, the total number of which signified the rank or importance of the building. Each ridge on the Hall of Supreme Harmony featured ten of them in total.
The Forbidden City is an absolute labyrinth of a palace, and I can confidently say that I got lost multiple times navigating the complex of nested courtyards that make up the Inner Court; it felt like being stranded in a maze of red walls and intricate yellow-roofed buildings. Out of everything I think my favourite part of the palace was the small Imperial Garden just north of the three main halls of the Outer Court, which is a finely-wrought park full of rock gardens, pavilions and other architectural elements that create a feeling of intimacy otherwise not found in other parts of the palace. The Wanchun Pavilion in the garden is probably the finest structure in the whole palace, featuring a spectacular domed caisson created by the successive layering of wooden brackets, the very top of which is adorned with a finely carved bas-relief of a dragon. Another structure that really caught my eye was the intricately glazed Nine-Dragon Screen in the northeastern part of the palace, a piece of auspicious iconography that appears only in palaces (there are only three of them extant today).
I left the Forbidden City through the northern gate and walked further to Nanluoguxiang, one of these trendy hutong streets that have been transformed into shopping districts; as I walked there I passed through a whole lot more of these authentic local hutongs. Honestly I was constantly surprised by just how extensive these hutong neighbourhoods were; at times, they seemed to stretch on endlessly, like a Backrooms-esque parallel dimension made entirely of these gridlike lanes. Before arriving, I’d seen people on travel forums wondering whether any "real" authentic hutongs were left at all, but after visiting Beijing, these questions seem borderline laughable - walk in any given direction from the Forbidden City and it almost seems as if you can't get out of the hutongs (and no, I'm not talking about the more old-style but obviously new constructions, I'm talking about local hutongs that barely seem renovated). In spite of Beijing's reputation as a modern city, a large portion of the urban sprawl is actually not like that; I'd even go as far as to say that Beijing is the most ancient-looking major city I've ever seen in East Asia. I honestly think the people bemoaning China's "lack of heritage" either haven't visited China, didn't make even a token attempt to go find any of it, or are generally unaware of how bad the situation regarding preservation can be in the rest of Asia (or are just repeating a canard they've heard without considering it that much). China is by far the most historically dense place I've visited in the entire continent, and despite the fact that my expectations were sky-high beforehand even I didn't expect so much history from the country.
I do want to temper this quite a bit, though. While I saw a lot of extant preserved old architecture, I don't want to overly glorify or romanticise these neighbourhoods, since many of them are obviously barely gentrified or modernised at all. China modernised very fast and very unevenly, and despite their status as a symbol of old Beijing, people in the hutongs often seem to live without a lot of infrastructure (such as proper plumbing systems). I can understand why the Chinese government has not precluded renovation of the hutongs, even after its announcement of a protection order on these neighbourhoods. They're not always very glamorous places to be, and personally I agree with an approach that introduces more modern amenities into these hutongs while still preserving its fundamental character; it would be nice to see improvements in the quality of life for the people living there.
The next day I woke up to a gloomy winter morning, with thick mist and fog hanging over all the streets of downtown Beijing. Everything looked almost colourless, like some kind of vintage grey filter had been placed over the entire city, and it was freezing. Northern China is climactically awful and is largely a cold, grey, arid wasteland in winter, to the point that Beijing actually boasts colder temperatures than Helsinki during this time of the year in spite of its lower latitude (due to the directional nature of the Coriolis effect, east coasts are generally far colder than west coasts; as a particularly stark example of this, Vladivostok, Russia is on the same latitude as Florence, Italy). The fact that any civilisation was able to flourish here in spite of the horrific climate and the Yellow River's constant catastrophic flooding is actually astonishing to me.
I pulled myself out of bed, descended into the subway again, trudged past a bunch of commieblocks which gave way to more of these local hutongs (seriously they are everywhere) and made my way to the first stop of the day: Zhihua Temple. It's an obscure but well-preserved Ming Dynasty wooden temple built in 1443, hidden within the backstreets of Beijing, painted in such a vivid crimson and adorned with such deeply black roof tiles that to my eyes it seemed to practically pop in the sea of fog and mist. Making my way towards the shanmen gate of the temple, I noticed a marble plaque above it with Chinese characters that stated "Gifted by the Imperial Court to Zhihua Temple". Entering the grounds revealed a courtyard of modest size, flanked by temple halls all around. A small number of robed men exited a room, and headed into the main hall to play traditional ritual music from the Ming Dynasty, which had been passed down for 27 generations in this very temple. They sat down in front of a modest altar featuring three wooden-lacquered Buddha statues on lotus pedestals, and in the cold dark Beijing winter I watched them play a very strange and sweet music.
After the music was over, I proceeded to see what the other halls had in store. To the west of the main hall, there was another wooden building housing an incredible wooden zhuanlunzang (sutra case) covered in intricate carvings of bodhisattvas, heavenly kings and warriors and topped with a small caisson that a tiny Vairocana Buddha sat in. A bit awestruck, I walked around the entire thing, just taking in the immense level of detail. Deeper to the back of the complex, there was a large two story pavilion featuring three huge statues, surrounded by walls covered in niches featuring what is said to be 9,999 tiny renderings of the Buddha. I later learned that this hall was, quite aptly, named the "Thousand Buddha Hall". I would have spent more time at this temple but the biting cold was beginning to get to me, so I ducked into a small teashop in the hutong and had some rather medicinal-tasting flower tea alongside a small rice cake as I decided on where to venture next.
I scrolled some possible destinations on my phone in the cosy warmth of the teahouse, and resolved to visit the Yonghe Temple towards the north of the city. Yet again, I was seemingly trapped in a parallel dimension full of hutongs the entire way, and had to use some extremely suspect communal toilets if I wanted to relieve myself. Note this is coming from someone who's probably better equipped to use Chinese toilets than most Westerners - they're mostly squat, and having grown up in Southeast Asia I'm used to squat toilets and generally prefer them (if you can't squat properly, that is your skill issue, it is objectively superior ergonomically and cleaner). But the toilets in these very old parts of Beijing are legitimately terrible and feature toilets with dividers instead of a dedicated stall, meaning everyone can see you defecate - and they are extremely dirty, I often found piss covering the floor and at least one squat toilet covered in diarrhoea. It is incredible to me how a country that's so obviously advanced in multiple important ways can be so undeveloped in others. Though I will grant that the hutongs are uniquely bad in this regard, having been barely modernised ever since the Qing; other parts of China are far better with this (though unless you find yourself in a shopping mall, they will still often lack essentials like soap and toilet paper; you must bring your own when going to China, this is non-negotiable).
Eventually I made it to a huge food street just ahead of the Yonghe Temple, featuring a large variety of snacks and congregations of people lining up in front of every shop. It's not uncommon at all in Asia to find bustling food-filled squares near popular temples, providing nourishment and a social space for templegoers. For now, I ignored the street and made my way to the temple, intending to grab some food on my way out. I approached the visitor counter, grabbed a ticket, and walked into the compound through some intricate yellow-and-blue entrance archways flanked by stele pavilions and stone lions on each side. The pathway opened up into a courtyard featuring sweeping views of a monolithic red-and-yellow hall named the Yonghegong (Hall of Harmony and Peace), which hosted a plaque displaying inscriptions in Tibetan, Chinese, Manchu and Mongolian. Masses of lay worshippers stood in prayer in front of a bronze burner, with wafts of warm, fragrant smoke rising up from the forest of incense sticks and mixing seamlessly with the mist and cloud overhead.
When Yonghe Temple was built in the 1690s, it was not initially conceived of as a temple but as a royal residence, and it would end up housing two future Qing emperors before they ascended the throne and moved into the Forbidden City. The residence was initially built for Prince Yong, who would eventually become the Yongzheng Emperor, and it was in its East Compound that his fourth son (the future Qianlong Emperor) would be born. After Yongzheng died there was a proposal for it to be converted into a residence for other royals, but Qianlong instead issued an edict legislating it be turned into a Tibetan lamasery, as he was a particularly large supporter of the religion. Although the Qing court generally patronised and funded Tibetan Buddhism pretty heavily as a method of gaining support from outlying territories such as Tibet and Mongolia (and in general bending Tibetan Buddhism to serve the empire's needs), Qianlong took this to another level; he practiced Yellow Hat Buddhism in his private life, and even had a guru who believed he was the reincarnation of Kublai Khan. After its consecration in 1745, Yonghe Temple rose to become the foremost Buddhist temple in China, hosting monks from across Tibet and Mongolia. Its turquoise roof tiles were replaced with lavish yellow ones to signify imperial status.
Inside the hall, a gleaming triad of bronze statues depicting the Buddhas of the Three Ages stood front and centre, each one backed by stunning nimbuses, auspicious iconography and mythical creatures. Here, even more worshippers could be found, prostrating themselves and praying in front of the deities. And the rest of the hall was just as sumptuous - the scene here can only be described as an explosion of colour, with the entire interior covered in floor-to-ceiling paintings and calligraphy inscribed onto every pillar. On the sides of the building, facing the central Buddhist triad, stood two rows of painted Qing arhats, all harbouring different expressions and poses. Next up along the main axis of the temple lay the Yongyoudian (Hall of Everlasting Protection), another extremely picturesque hall housing yet another Buddha triad; this one was perhaps even more intricately rendered than the last. After exploring some of the auxiliary buildings located to the left and right of the main halls, which were themselves filled to the brim with an insane concentration of Buddhist treasures and crowded with worshippers, I navigated to the next hall, named the Falundian (Hall of the Wheel of the Law), and immediately felt as if I was intruding on something sacred. Inside stood a monumental statue of the master Tsongkhapa surrounded by traditional Chukor banners, with a mass of red-robed Buddhist monks sitting cross-legged around his idol and chanting in an almost trance-like reverie. Masses of lay worshippers stood or sat to the side, their heads bowed penitently. It was quite a powerful atmosphere, and I lingered here for a while listening to the ceremony.
I had some reservations about this temple given its commonality on Beijing itineraries; I feared that it wouldn't be authentic, that it would just be a tourist trap, that perhaps it wouldn't even be old, but it was the polar opposite. This, and many other experiences like it, challenged a pretty big misconception about China: that the country lacks traditional culture or religion due to The Cultural Revolution or some other event in recent Chinese history. But there's a lot of extant tradition in Mainland China, much of which is based on a longstanding cultural meta that's imperfectly comprehensible to a Western visitor, though it's frustrating that a lot of outsiders barely even seem to acknowledge it exists. It’s not uncommon for people to suggest that traditional culture and history has been all but destroyed on the mainland and maintained only on the fringes of the diaspora in places like Taiwan or Southeast Asia, I've even heard people say that the Japanese preserved Chinese culture better than China (but, having read extensively about the aggressively iconoclastic nature of Meiji Japan, I’m not even certain Japanese culture itself can be said to be all that undisturbed).
To elaborate, I’m a Malaysian Chinese who spent 16 years of my life embedded in that community, and yet in the span of two weeks in China, I saw a large amount of religious activity and traditional rituals, similar to that of Chinese communities in Southeast Asia - in spite of what Straits Chinese like to say about themselves. To spoil parts of the remainder of this trip report, it wasn't just this temple where I encountered it, either. In Pingyao’s walled city, I walked the main thoroughfare while a massive crowd of men carried a dragon float down the street to a din of clanging drums. I stayed above a jade shop in Datong, and every morning woke up to the old jade craftsman quietly working on a new piece with a pot of fresh tea bubbling beside him. At the Ming Dynasty-era Great Mosque of Xi’an, I watched as hordes of Muslims assembled in front of the hall (off limits to me, since I’m not Muslim) and sat quietly in worship. If tradition is anywhere close to dead in China, then clearly my lying eyes deceive me.
I also don’t think that the level of religiousness of the Chinese population is properly captured in surveys. People in East Asia are generally not "religious" in any kind of organised way, sure, and will often describe themselves as atheist or nonaffiliated, but will often still engage in superstitious cultural rituals and rites that are ultimately rooted in a religious view of the world without fully adhering to or caring much about strict doctrine. In general, East Asian religion is just different, and China is no exception. There are plenty of religious and at least superstitious people who follow folk practices to some degree, but for the most part they don’t spray it around very conspicuously in public, and they don’t particularly care about specifically identifying as Part Of A Group. It’s just something they do, and is individual to them in a more understated and personal way. That’s true among virtually all Chinese communities, in my opinion, but on the mainland the Han constitute the vast demographic majority, and without any other point of comparison all this just gets perceived as the baseline societal meta; you typically don't recognise the water in which you swim. Hell, I’m in accounting and still work with a lot of people hailing from the mainland now, and I recall one of them couldn’t cook in the new house she bought until the old one had finished being sold and enough time had elapsed, or something similarly insanely ritualistic. In general, a very common theme throughout this trip report is me constantly finding the culture to be rather well-preserved, even more so considering the tumultuous and often catastrophic shifts that Mainland China experienced during the 20th century.
Eventually I left the monks behind, hearing the chanting echo behind me, and progressed to the final hall in the complex: the Wanfuge (Pavilion of Ten Thousand Happinesses). It was a towering structure, featuring a three-story wooden pavilion flanked by two side buildings and connected by overhead walkways - a somewhat unusual element to see in Chinese architecture. Fewer worshippers congregated here than in the front halls, and the relative quiet lent the space a more contemplative atmosphere. I paused briefly to take it in before stepping inside, and a titanic mass emerged out of the darkness of the hall. A colossal statue of the Maitreya Buddha, nearly twenty metres tall, dominated the centre of the pavilion; walkways on each level circled the immense figure, allowing it to be viewed from every height. Carved from a single piece of sandalwood, this was a gift from the Dalai Lama to the Qianlong Emperor, and it was so unwieldy that it took three years to transport to Beijing. It's in the Guinness Book of Records, it's an absolutely monumental piece of art, and if you ever come to Beijing this is one of the best things you can see. It's fucking awesome. In general, I highly recommend the Yonghe Temple, it would be my favourite temple in Asia if not for another unbelievable temple near Pingyao, later on in the trip.
I grabbed a snack after exiting the temple (this sinfully rich meat-filled flaky pastry, I think it was called niu rou bing) and made my way to the final stop of the day: the iconic Temple of Heaven. It's really only a component part of a larger-scale religious complex in Beijing, alongside the Temple of the Sun, Temple of Earth, and Temple of Moon, but the Temple of Heaven is by far the best-known of these ceremonial complexes. It sits in a massive tree-filled park bisected by a series of famous halls, the most recognisable of which is the Qiniandian (Hall of Prayer for Good Harvests), a massive triple-gabled circular hall on a square terrace reflecting the East Asian cosmological concept of a square Earth and round Heaven. This was an extremely important ceremonial site in ancient China, being the place where the Emperor made ceremonial sacrifices to Heaven for, well, good harvests. Twice a year, the Emperor and his retinue would set up camp within the complex and perform a very specific ritual which no member of the public could observe. The ceremony had to be performed perfectly, or it would signify a bad omen for the coming year.
The weather was still extremely foggy when I got there, which isn't particularly ideal for the Temple of Heaven, but I grabbed a ticket anyway and proceeded into the park down a long tree-lined path. Slowly the Hall of Prayer of Good Harvests came into view, and I climbed up the massive stone platform onto the main bulk of the structure alongside many other visitors. It seems I got there all too late, as it was extremely crowded and there were way too many hanfu-clad girls posing in front of the temple in order to really enjoy it. But it was a very beautiful building; photos don't properly convey this, but the way the pavilion extrudes out from that huge circular stone pedestal induces a sense of vertigo akin to staring up into the night sky and almost makes it seem as if it's touching the heavens. It's an example of absolutely incredible Qing Dynasty design and architecture; I just wish I had better weather and less crowds for this one, and if I had to do this again I'd visit much earlier in the morning before the masses of Chinese tourists start pouring in. As it was, though, I personally preferred the parts of the park outside of the main complex of halls, where one could still see the recognisable peak of the hall protruding from far above the surrounding landscape. Here things were much more local and less touristy, with families bringing their children to play and performing activities in the park, and there were still some other historical buildings of note within the less-visited parts of the complex, which now mostly hosted museums and exhibitions.
The sun was beginning to set now, so I unfortunately had to rush through the remainder of the complex, and after I was satisfied with sightseeing I took the train to Qianmen station for dinner. At this point I was ravenous so I made my way to street level and was immediately met with the sight of the Zhengyangmen gate tower all spectacularly lit up at night, one of the quintessential icons of Old Beijing. After quickly snapping some pictures of the tower, I walked along the food street and located a relatively inconspicuous-looking eatery named Duyichu. This is one of the most acclaimed of Beijing's old restaurants, having originated in the 3rd year of Emperor Qianlong (for anyone that uses normal people dates, that's 1738); for context, at this time the US was still an imperial colony of the British, and Napoleon didn't even exist yet. But that year, this humble eatery popped up in front of the Imperial Quarter of Old Beijing and started specialising in the delicate steamed dumplings that we all now recognise as shaomai. This would spread south and become common throughout the Chinese diaspora, such that you can find it in Cantonese dim sum joints in Hong Kong and in many Chinese places in the Western world. It was here, at this very spot in Beijing, where the dish was first popularised and made into a staple of Chinese cuisine.
Surprisingly, there were no lines in front of the door considering the venerable nature of the establishment. I was able to get a table immediately, where I promptly ordered some assorted shaomai and Qianlong baicai (fresh cabbages with a thick sesame dressing, named after the titular emperor). The food came in no time at all, and I quickly discovered that Beijing's flavour profiles have a tendency to confound my tastebuds; the cabbage was tasty but a bit too acidic and heavy, though I enjoyed it nonetheless. In general, Beijingers seem to enjoy extremely heavy and simple flavours without much of the depth that I usually expect from Chinese food - food in China isn't at all one thing and the Chinese food most Westerners are accustomed to eating really primarily comes from one specific city in Canton (Taishan). The shaomai was the clear highlight to me; it was very succulent, though I can't say it was anything you couldn't get elsewhere in Asia. It's kind of been a victim of its own success I think, everybody seems to have copied the example it set, and now it's just one of the many shops that specialise in the popular dish. I polished off the meal in short order, grabbed some tea and returned to my hotel.
The next day, I found myself waiting for a bus in an aggressively nondescript Beijing street, one so crowded with towering identikit commieblocks they almost seemed to block out the dim sunlight. I was out so early that dawn hadn't broken yet, and the sky was still blanketed with fog, the poor weather from yesterday still not having abated. It was extremely humid and cold, and so I had just gotten jianbing (Chinese savoury crepes) alongside some doujiang (soy milk) from a nearby local stall, which were both comfortingly warm and tasty in the blistering Beijing winter. The doujiang in particular was incredible, and while I don't usually like soy milk, this one tasted so smooth that I wanted whatever crack cocaine they were putting in there. I sipped the drink slowly, huddling into my puffer jacket while the sun rose and the streetlights slowly flickered off. It was peaceful.
Standing there in the early morning silence, I couldn't help but think back to my limited experiences in North America; if you transplanted this place into the downtown core of many major North American cities, it would probably already be hosting a colourful, cosmopolitan, and vibrant cast of drug addicts and homeless people (this problem basically doesn’t exist in Asia, and was a major point of culture shock for me when visiting North America; you often don’t feel safe). In spite of the endless sneering about Third Worldism you can find on this forum, the biggest takeaway I’ve had in my travels throughout Asia is that very large swaths of it are starting to feel very not third world; granted, modernisation throughout the region (and even within Beijing) is uneven, infrastructure can be spotty, but many aspects of it are starting to feel more first world than even the first world. Now I'm not saying that Chinese average living standards are on par with the US yet, but its major urban areas and eastern coastal provinces are looking and feeling far more like Czechia than they are Cambodia. It’s the interior that drags this down hugely, and the state is quickly working to urbanise them all. They’re also pumping out STEM graduates en masse. From a personal standpoint, experiencing this change firsthand is quite the sight. I grew up in Asia and now large swaths of it are just unrecognisable to me; seeing the sheer pace of change in real time is just breathtaking and it’s a topic that deserves a post of its own. It’s something I’m grateful to have experienced myself, partially because living through it is incredibly existential, but also because you get the opportunity to see unique elements of local life that will soon be transformed forever as the continent charges headlong into gleaming industrial modernity, for better or for worse.
I got onto the bus alongside a number of other tourists, and it promptly pulled out of the lot, barreling down the misty roads into the suburbs of Beijing. The sun continued to inch higher and higher in the sky as we passed further into the countryside, casting a wan, diffuse glow that illuminated a barren landscape smothered in snow and fog. Before long, our bus was winding up into the mountains, where the mist began to thin out, and eventually sunshine could be seen streaming through the gradually-parting clouds. The sky slowly but surely turned blue, and after tolerating the intensely grey and foggy weather of Beijing for a good day and a half, it was refreshing to see colour again. Our bus stopped at a large tourist centre for the Mutianyu Great Wall featuring a metric fuckton of cafes and souvenir shops and weird ass VR experiences, where we went on to buy tickets for a cable car then went our own separate ways.
The legacy of the Great Wall of China stretches all the way back to the Spring and Autumn period, but this history was highly discontinuous and fractured, with there not even being a recognisable "wall" during many dynasties. Most of the extant masonry that you can see today dates from the Ming Dynasty (15th/16th centuries); granted they were built roughly along the path that the earlier Qin/Han Dynasty earthen fortifications followed, but the Ming wall was essentially a new structure since the previous dynasties' walls had almost entirely eroded and fallen into disuse. This means that there was essentially no real Great Wall during the time of the Mongols, and in fact at the time building a wall was actually considered an admission of diplomatic failure to be avoided whenever possible. Even the Ming Dynasty's wall building program was not a systematic building of fortifications to keep the invaders out wholesale, rather it was an accumulative series of defences which were constructed on an ad hoc basis in response to evolving needs, and the disparate sections of the wall were never linked up.
This was a feature, too, not a bug. For context, the main problem the Chinese encountered when defending their northern border was that attacks could come from any direction, and the enemy could also retreat in any direction. The point of building a wall was not to prevent enemies from entering China per se; rather it made sure that attacks could be confined to regular, predictable areas that could be militarised, and forced the enemy to retreat using the same avenue through which they entered. This ended up being a major issue that faced many northern invaders, such as with Hong Taiji's raids into Hebei. In addition, the wall acted as a communicative and transport structure, with any observed raids triggering a large string of warning beacons that would be funnelled all the way back to Beijing. The main point I want to stress here is that the wall itself was not meant to be the primary obstacle for an enemy, but rather as only one component of a layered defence strategy ultimately centred around the army that lay beyond it. This concept of a Great Wall is a Western concept not introduced until later in Chinese history once the walls no longer had any purpose - at the time, the Ming would instead have referred to its defence system as the Nine Garrisons (placing foremost importance on the manpower that the fortification was ultimately built to serve), rather than any kind of unified Wall.
I passed through the tourist centre and boarded a cable car that carried me further up the mountain. Below, slopes lined with leafless trees unfurled in every direction, while the sunlight grew steadily harsher as I ascended. At last, the crest of the range revealed itself, with its summit crowned by a formidable masonry wall that stretched endlessly across the horizon. I was deposited unceremoniously at a platform near the wall, where I walked past a row of vendors and stepped onto the structure. The bulk of the edifice came into view, and I watched as the ridges of innumerable mountains faded one after another into the distant haze, with the wall snaking over every single twist and turn. It was absolutely breathtaking, and at this time of year I had it largely to myself - the further I walked from the chairlift, the more the crowds thinned out, to the point where I was alone on large sections of the wall. From time to time, a vendor would call out from the margins of the wall, peering through one of the many crenellations that had now been repurposed as makeshift counters for offering snacks and drinks to weary travellers.
I eventually reached the very western end of the accessible wall and found myself faced with a particularly steep section called the "Hero Slope", which featured 600+ steps at a brutal incline of 70 degrees. Within minutes I was gasping, legs trembling as the strain built with every step, until I found myself nearly collapsing against the side. By the time I reached the highest accessible watchtower, my legs had turned to jelly and my breathing had become ragged and uncontrollable. Then I turned around, and was greeted with one of the most arresting scenes I have ever seen in my life: an endless panorama of mountains rising from a sea of mist, fine tendrils of fog curling through distant, faded peaks, and the wall itself winding and folding over the ridgelines until it vanished from sight entirely. The view was so poetic and dreamlike that it felt like stepping into a Chinese ink painting, and it really warrants every superlative people have lavished upon it, to the point I'd say that the wall alone is worth the trip to China. There's absolutely nothing else in the world like this.
After soaking in the view for a long while, I turned around and made my way back to the chairlift, this time hiking down a path that adjoined the wall. From this angle, I caught sight of a vendor on the wall from a completely different perspective; he was standing on a plank precariously buried in the side of the wall and suspended far above the surrounding mountains, just so he could take advantage of the crenellations to sell food and drink to tourists. He reached for a plastic bag of goods that sat just beyond his grasp, then calmly balanced on one leg and stretched out his arm to retrieve it, as if the dizzying drop below barely registered to him. I gaped at him for a moment, then continued down the trail and down the mountain.
Once back down at the tourist centre, I had more time to spare, so I transferred onto a chairlift that took me to the more commercialised eastern portion of the wall. My photo was taken while I was on it so they could sell a printed version of the image to me back down at the base of the mountain; tourism with Chinese characteristics is very extra. This part of the wall was more crowded and less spectacular than the western end, but was still incredibly interesting with the largest and most complex watchtower I'd seen yet. This one featured a main masonry structure flanked by two corner towers which is probably the most iconic structure on the Mutianyu Great Wall, featuring quite prominently in photographs of the area. There was also a toboggan leading down from this section of the wall which I lined up for, and I'm well aware this is clear tourist bait, but I will defend it wholeheartedly because it was extremely fun to slide down to the bottom of the mountain. I haven't tobogganed before, but the fact that the first time I've ever done so was from the fucking Great Wall is going to mean that any subsequent adventures in tobogganing are gonna struggle to top it.
By the time I returned to the urban sprawl, the thick fog had parted and the once-grey city was bathed in deep sunset hues. I passed by the Yonghe Temple again, watching its yellow rooflines glow in the warm light as I made my way to Fangzhuanchang No.69, a popular zhajiangmian restaurant just across the street from it. I seated myself at one of the tables, and ordered a bowl of their signature black bean noodles alongside a Chinese yoghurt known by the name of nai pi zi. The noodles came with massive sides of toppings ranging from edamame to bean sprouts, all of which I scraped into my bowl and ate together. It was good but I would've enjoyed a stronger flavour, for some reason a huge amount of Beijing's savoury dishes don't tickle my fancy. But the nai pi zi, on the other hand, was delicious and beats Western yoghurts any day. The texture was so creamy and far less curdy than your bog-standard yoghurt, and had a milder, sweeter flavour that I really jived with.
On my final day in Beijing, the skies at last cleared to a deep, cloudless blue. This was my last chance to visit a site I had been anticipating since arriving in China: the Yiheyuan, or Garden of Nurturing Harmony, better known in English as the Summer Palace. Much of what stands today is a late-Qing reconstruction commissioned by Empress Dowager Cixi after both it and the Old Summer Palace (Yuanmingyuan) were destroyed during the Opium War. The complex unfolds across a vast landscape of some 3,000 structures, organised around a monumental lake that dominates most of the grounds. To its north, the principal sequence of palatial buildings cascades over the slopes of Longevity Hill, supported by a series of expansive artificial terraces.
While China thinks of the original destruction of the Summer Palace as a ghastly and undue act by European colonial powers (being extremely sore about that is somewhat warranted, to be fair, and the Opium Wars are generally hard to defend), the history of how that happened is a lot more nuanced and a lot more interesting than simply "Britain bad". The inciting incident that led to the destruction was an act of aggression conducted during peace talks between an Anglo-French delegation and the Qing Dynasty. The Allied powers detained the Qing prefect of Tianjin claiming they were regrouping and staging an ambush; whether this is true or not has likely been lost to history. In retaliation, the Qing detained the delegation and its envoys, and this escalated into further conflict as forces advanced on the delegation's last location in an attempt to free them. The Qing managed to procure thirty-eight captives in total, and due to execution or torture during imprisonment twenty-one died. As news of this treatment spread throughout the British forces, there was strong support for some kind of punitive action to be taken, and Lord Elgin and Baron Gros (respectively spearheading the British and French military action) were tasked with deciding what this retaliation should be. Neither party was particularly interested in causing further harm to Chinese civilians during the war, and there wasn't much support among the European populace for that either.
Something that occasionally gets overlooked in highly nationalist tellings of the event is that the primarily ethnically-Manchu ruling elite and the ethnically-Han majority did not necessarily see themselves as the same peoples with the same interests. The Qing was a colonial power itself that practiced a form of imperial and ethnic segregation; Beijing's inner city was designated as a place for Manchu bannermen, and across the empire similar segregated cities such as this existed - in fact the entire region of Manchuria was largely off-limits to most Han (this relaxed later in the Qing though). They imposed the queue hairstyle upon Han Chinese men specifically as a sign of submission to the Manchu-led state, with sizeable executions of men following upon disobedience in the early stages of Qing conquest. Burning and sacking the Summer Palace, which only the Manchu ruling elite would have had access to, was seen as less destructive than a wholesale sack of Beijing, and so this was the course of action Elgin and Gros settled on. It was both an act of retaliation and a signal to the public that their war was not with the Chinese people, but the Qing state. Keep in mind, there were certain contemporary segments of the Han populace who may not have thought of the destruction of the Summer Palace as a bad thing.
Despite all this turbulent history, the current late-Qing iteration of the Summer Palace is ridiculously lovely and ethereal. As I entered through the back gate, I was met with a stunning Tibetan-inspired palace named Sidabuzhou (Four Great Regions) that dominated the north end of Longevity Hill, yet another example of the Qing's support for Tibetan Buddhism. It was painted in a deep red and adorned with a litany of finely glazed tiles and bricks, with chimes hanging from every eave; they shimmered and tinkled quietly as the winter wind blew. Climbing the palace steps led me into an intimate rock garden threaded with pavilions, shaded with still-green trees and punctuated by small viewing towers, which I found myself exploring in a tactile, almost playful way as I wove between stones from one structure to the next. As I continued my ascent, the view constantly changed and morphed and shifted, and it struck me just how different Chinese landscaping philosophy was from the Western tradition. While European palatial gardens are often formal, geometric and open, Chinese gardens are the very opposite, being based on the philosophy of bu yi jing yi. This roughly translates to "scenes change as steps move", with the goal here being to creatively conceal aspects of the garden to create a constant sense of progression and unveiling and make a small space feel much larger than it really is. You can never get a full view of a properly designed Chinese garden from any vantage point.
I finally reached the top of the hill, and found myself gazing upon a two-story beamless hall crafted entirely from yellow-and-green glazed bricks. Each brick housed a niche with a mediating Buddha inside; in total there must have been over a thousand of these niches all over the building. The hall was framed by beautiful lush vegetation that was honestly refreshing to see after spending time in the generally grey metropolis of Beijing, where most trees had already dropped their leaves. From here the path bifurcated into a deep forest covering the ridgeline of the hill, and I took the path that went around its eastern side, all the while catching glimpses of what lay on the other side of the ridge through the leaves and branches. At certain vantage points, I could get a good view of Kunming Lake, the vast body of water that occupied about three-quarters of the Summer Palace. It was a striking sight made even more impressive by its origins: the lake was manually excavated across some 2.2 square kilometres, with the displaced earth piled up over time until it swelled into what is now Longevity Hill.
As I made my way down to the other side of the hill, I came across a series of palace buildings that led into a grand covered wooden walkway called the Changlang, or Long Corridor. I strolled along it for what felt like forever; the winding corridor traced the edge of Kunming Lake for some 728 metres, with nearly every beam in the structure adorned with vivid caihua murals. My gaze stayed fixed on the ceilings and rafters as I walked, taking in a cascade of scenes - Sun Wukong battling Nezha, Zhang Fei’s exploits from Romance of the Three Kingdoms, the Battle of Zhuxian County between the Song and Jin dynasties, and countless others. The sheer number and density of murals here was staggering to witness; around 14,000 paintings, no two alike, every single one illustrating scenes from classical Chinese novels, myths, and landscapes. I loved this place, it's a seriously stunning piece of architecture and probably the finest collection of mural paintings I've seen anywhere.
The corridor opened up into a large palatial complex that spilled down the south-facing end of the hill. In its centre sat the Foxiang Ge (Tower of Buddhist Incense), a lovely 3-story, 41-metre tall pagoda jutting out from a 20-metre stone platform built straight into the slope of Longevity Hill, surrounded by a rambling complex of palace buildings, courtyards and steles. I laboriously ascended the over 400 steps leading to the tower, and was rewarded with increasingly gorgeous views over the palatial complex and Kunming Lake as I went. The top of the stone platform was occupied by a small courtyard overwhelmingly dominated by the bulk of the pagoda; through some opened windows I could see into the interior of the structure, where a finely-wrought bronze sculpture of the Thousand-Hand Guanyin Bodhisattva stood surrounded by religious polychrome paintings. This would have been Empress Dowager Cixi's private place of worship back in the days of the Qing Dynasty, but considering how many steps there are and how crotchety that woman looks I can only assume she could only access the pagoda by being carried.
There's a lot more I could discuss about the Summer Palace since the grounds are huge, but I assume you're tired of my superlatives by now so I'll just say that I really liked this palace, far more than I did the Forbidden City. Personally I think Asian palaces are at their most beautiful when they look naturalistic and follow the contours of the landscape on which they're built (another good example is Changdeokgung in downtown Seoul). The Forbidden City, with all its strict symmetry and rigid layout, felt a bit regular and repetitive after a while. The Summer Palace, though, is the complete opposite; more relaxed, more varied, and just a lot nicer to wander through. It blends imperial architecture with Tibetan influences and takes a lot of cues from classical Chinese gardens south of the Yangtze, and the whole place ends up feeling surprisingly natural and intimate. It's an amazing place.
At the end of the day, as I got onto the high-speed train leading out of the old imperial capital (that's a really good word to describe the city in general: "imperial"), I left feeling like I had only seen a small portion of what there was to see; the city in many places is practically overrun with interesting old buildings and monuments from the Ming and Qing dynasty. But that's all juxtaposed against a backdrop of increasing modernity - throughout my visit I couldn't help but notice that the contrast between the old and the new was extremely stark, with towering skyscrapers and ten-lane thoroughfares giving way to authentic lived-in temples from the Qing dynasty and backstreets of old hutongs that barely even seemed modernised, where an increasingly elderly demographic still lived like they would have in an earlier era even as the city mutated around them. You can be delivered lunch by an automated system one second and be surrounded by deteriorating communist-era infrastructure the next. It's a really strange mix. As cliche as it is, the Anthony Bourdain quote about China is true: "The one thing I know for sure about China is I will never know China. It’s too big, too old, too diverse, too deep. There’s simply not enough time."
The suburbs of Beijing gradually faded away, and before long the train slipped into the night.
Note: This post contains unmarked spoilers for Hamnet. For the full experience, read it on Substack.
The Oscars are this evening, not that anyone gives a shit anymore.
The smart money says that, having snagged the equivalent award in the BAFTAs and the Golden Globes, Jessie Buckley is a lock for Best Actress for her starring turn in Chloe Zhao’s period drama Hamnet. I went to see it in the cinema last weekend and can attest that such an accolade would be well-deserved: her performance as Agnes Hathaway1 is an intensely physical (even primal) portrayal of a woman overwhelmed by grief. In a way, the excellent performances from Buckley and Paul Mescal are almost better than the material deserves, elevating a screenplay which struck me as somewhat undeveloped and underwritten. I also think we need a temporary moratorium on Max Richter’s “On the Nature of Daylight”, quickly becoming this generation’s “Adagio for Strings” and the go-to soundtrack for movies about mothers grieving the deaths of their children.
For those of you who haven’t seen it, a brief synopsis. William Shakespeare marries Agnes Hathaway, with whom he has three children: a girl named Susanna, and a pair of twins named Hamnet and Judith. William moves to London to pursue his career in the theatre, while the rest of the family stays behind in Stratford-upon-Avon. At the age of eleven, the already sickly Judith contracts a serious infectious disease which she appears sure to succumb to. Armed with her knowledge of herbal medicines, Agnes makes every effort to treat her illness, while William races home from London. Alas, in a tragic reversal, Judith makes a full recovery, but Hamnet contracts her illness, which proves fatal. Agnes and William are devastated by Hamnet’s death, with Agnes harbouring resentment towards William for his absence. Several years later, William channels his bereavement into his masterpiece, the tragedy of Hamlet. Agnes goes to see it being performed in the Globe theatre, with William portraying the ghost of Hamlet’s father and the title role by an actor who bears an uncanny physical resemblance to Hamnet. The sight of what her son might have looked like as a young man has an immense effect on Agnes, and she smiles for the first time since his death. It’s an affecting tribute to the power of art to move and to heal.
Emerging from the cinema and wiping tears from our eyes, I remarked to my girlfriend that, as moderns, it’s difficult for us to comprehend the kind of relationship that people in the sixteenth century had with death. For most of human history, mothers dying in childbirth was a routine occurrence. In modern Western countries, a child dying in infancy is exceptionally rare, but in the sixteenth century, raising children was a numbers game. Parents would have eight or nine children, fully cognisant that half of them would not live to see their fifth birthday. Even in the most underdeveloped countries in the modern world, the infant mortality rate is a fraction of what it was in Europe in the seventeenth century or earlier.
A graph of child mortality over time. I struggle to envision a society in which literally half of all children would die before turning five. Note that this chart only dates back to 1751, over a hundred and fifty years after the setting of Hamnet, in which I can only imagine things were even worse.
In light of this, William and Agnes’s reactions to the death of their son are unavoidably anachronistic: they find his death just as shocking and unexpected as any modern married couple would. In the last decade of the sixteenth century, there’s simply no way that two adults of this socioeconomic status could have three children without understanding that at least one of them likely would not live to adulthood. The film even sort of acknowledges this when William’s mother points out to Agnes that three of William’s siblings died before the age of ten.
My mother once explained to me that, with infant mortality being such a horrendous commonplace in earlier eras, parents would deliberately avoid forming strong emotional bonds with their children until such time as they could be reasonably confident the child would survive to adulthood. Such an attitude might strike us as cold and heartless, but that’s only because we’re fortunate enough to live in a time and place in which infant mortality is an extreme rarity. In the sixteenth century, parents had operate under the assumption that one of their children might die young, and prepared accordingly.2 It’s a defensive strategy not unlike the emotional distance doctors are encouraged to maintain with their patients: a doctor who emotionally fell apart every time one of his patients died simply would not be able to do his job effectively.
A clip from Scrubs in which Dr. Cox explains how important this is.
This got me thinking about attachment theory.
This is a concept in psychology first proposed by the psychiatrist John Bowlby. He theorised that children’s early experiences with their parents (or lack thereof, in the case of orphans or those taken into foster care) are formative, and govern how children will tend to form emotional attachments with others in the future. The three canonical “attachment styles” are:
- Securely attached: Securely attached people feel comfortable in platonic and romantic relationships, expect their romantic partner to meet their emotional needs, and are more than happy to meet their romantic partner’s emotional needs.
- Insecurely attached – anxious: Anxiously attached people often suffer from low self-esteem, require regular reassurance that their romantic partners still like them, and tend to act out and engage in “protest behaviour” if they feel their needs aren’t being met. This is the classic “needy” or “clingy” woman who complains that her boyfriend doesn’t pay enough attention to her.
- Insecurely attached – avoidant: Avoidant people are put off by emotional intimacy and use detachment strategies to distance themselves from their friends and romantic partners. They often have unrealistic ideas about love and romance, fantasize about an “ideal” partner with whom they will feel no qualms about becoming intimate with, and idealize past romantic partners as a means of maintaining distance between themselves and their current partner. When women complain about men being “commitment-phobic” or “emotionally unavailable”, this is who they’re complaining about.
Amir Levine and Rachel Heller’s book Attached is a fascinating introduction to the concept. A major limitation is that some of the terms are defined in a rather slippery fashion. Levine and Heller start by assuming, as Bowlby did, that one’s attachment style is largely determined by formative childhood experiences. But elsewhere in the book, they do seem to begrudgingly acknowledge that nurture isn’t the only game in town and that people might be genetically prone to one attachment style over another, and that traits such as sex might influence this. (It isn’t hard to imagine how deliberately keeping one’s sexual partners at an emotional remove might be an evolutionarily beneficial strategy – at least, for the sex which does the impregnating. Genghis Khan certainly didn’t spend much time writing sonnets dedicated to the mothers of his children.) They also recognise that one’s attachment style is not set in stone and that a securely attached person can “rub off” on their insecurely attached partner (or vice versa).
Perhaps attachment style is the wrong term. What I’m really driving at is not so much attachment styles (in the sense of one’s “natural” tendencies for how to act in an intimate relationship) but attachment strategies.
As we saw above, even a naturally friendly and gregarious doctor who thinks fondly of his patients nonetheless knows the importance of maintaining a certain emotional distance from them. If he were to react to a patient’s death in the same way he would if a close friend of his died, he would spend half the year on compassionate leave, rendering him unable to help his surviving patients. Any doctor who doesn’t learn this lesson will eventually be selected out of the talent pool, no longer able to shoulder the emotional burden of coping with the deaths of dozens or hundreds of loved ones. Logically, this implies that emotionally avoidant doctors have a major advantage over their securely attached peers: the latter must learn to suppress their natural predisposition to forming emotional bonds with those around them, while the former do that by default.3
Now think about this concept, not in terms of “survival” in the sense of career progression, but actual, life-or-death survival.
Imagine that you were the parent of several small children, and one of them unexpectedly died before the age of five. In all likelihood, you would be emotionally devastated. You would spend many long hours curled up in bed; your friends and family would likely have to chip in to help caring for your other children; you would probably not work for several months. Such an emotional response would be perfectly appropriate in our modern society, when a small child dying before the age of five is exceptionally rare.
But in a more primitive society like that in which William Shakespeare lived, such a reaction would be completely untenable. The concept of taking compassionate leave to process your grief simply didn’t exist (except for the exceptionally wealthy, who didn’t have to work anyway). Your friends and family likely won’t be in a position to look after your children for you: they’re already working twelve-hour days just to put food on the table for their own children, and two or three additional mouths to feed was no small ask. Like it or not, someone has to till the fields and milk those cows, and that someone will have to be you. A parent who responded to the death of their young child by curling up in bed for months would likely starve.
In light of this, parents had little choice but to maintain an emotional distance with their children, so that they could remain relatively functional if the worst were to befall them. Just as with our doctor example above, this is a situation in which the emotionally avoidant have a competitive advantage: unlike their securely attached peers, avoiding forming emotional bonds with others comes naturally to them. A securely attached parent with a close emotional bond to their young child would likely be so devastated by the loss of that child as to be completely unable to function, thereby selecting themselves out of the gene pool. If attachment styles are innate and subject to genetic predisposition, it’s conceivable that emotional avoidance might even have achieved fixation. When one in four (or even one in two) children die before the age of five, a parent forming emotional bonds with their young children simply isn’t a viable strategy.
In our era, in which infant mortality is rare, the selective pressure on parents to be emotionally avoidant is essentially non-existent, and parents are expected to form strong emotional bonds with their children from a very young age (indeed, the state can even take children into care if their parents are deemed emotionally neglectful: imagine how bizarre that statement would sound to someone in the sixteenth century). Given this, one would logically expect emotionally avoidant behaviour to be rare. After all, there is no society in human history in which the risk of being emotionally devastated by the death of a loved one (including a child) has been lower.
But if anything, the opposite seems to be true. Millennials and Gen Z are having far less sex and far fewer romantic relationships than previous generations. Gen Z are the most sexless generation in human history, with 44% of Gen Z men reporting no dating experience at all during their teen years. Derisive jokes about the “male loneliness crisis” hide the fact that what’s really going on is a human loneliness crisis, with 27% of Gen Z reporting having no close friends at all.
In a society in which death is an omnipresent fact of life, emotionally insulating oneself from those around you is a sound strategy. I truly don’t know what to make of people applying the same strategy in a society in which premature death is practically unheard of.
1Shakespeare’s wife was actually named Anne Hathaway, but the film renames her Agnes to avoid confusion with the actress of the same name (who was herself named after the historical Anne Hathaway).
2This has got me thinking about the concept of psychological trauma, which was traditionally defined as the emotional responses exhibited by people after experiencing distressing events outside the realm of normal human experience (examples including rape, bodily injury, natural disasters etc.). This implies that which events are “traumatic” and which aren’t is a fundamentally statistical matter: an event which might be “outside of the realm of normal human experience” in one society might be common in another. The idea that the death of a minor child would qualify as “traumatic” for a modern married couple, but would not for a married couple in the sixteenth century, sounds a bit weird. But it makes a certain amount of intuitive sense. To a greater or lesser extent, all of our emotional responses are shaped by the culture in which we are raised. It’s reasonable to assume that modern parents would feel more emotionally devastated by the death of their child than would parents who grew up in an environment in which children dying was fairly common.
3As entertaining as it was to read, this was one of many major bugbears I had with Malcolm Gladwell’s book Blink. In one chapter, he points out that the single most important factor determining whether a patient files a medical malpractice suit against their doctor is not whether they believe he is medically culpable for poor patient outcomes (or even criminally negligent), but simply how much they like him: as a rule, patients don’t sue people they like. I don’t doubt that this is true: my disagreement with Gladwell is that he seems to think this is a point in support of his thesis (namely, the importance of relying on intuition and snap judgement), when to me it could not be a greater indictment thereof. My goal in going to the hospital is to get better: I’m not here to make friends, and certainly not to make friends with my doctor. A competent doctor who does everything in his power to help his patient should not get sued just because of his substandard bedside manner. Conversely, an idiotic doctor who kills patients by the boatload should not get off scot-free just because of his winning smile. I’ll take Dr. House over Patch Adams any day, thank you.
The Wednesday Wellness threads are meant to encourage users to ask for and provide advice and motivation to improve their lives. It isn't intended as a 'containment thread' and any content which could go here could instead be posted in its own thread. You could post:
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Requests for advice and / or encouragement. On basically any topic and for any scale of problem.
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Updates to let us know how you are doing. This provides valuable feedback on past advice / encouragement and will hopefully make people feel a little more motivated to follow through. If you want to be reminded to post your update, see the post titled 'update reminders', below.
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Advice. This can be in response to a request for advice or just something that you think could be generally useful for many people here.
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Encouragement. Probably best directed at specific users, but if you feel like just encouraging people in general I don't think anyone is going to object. I don't think I really need to say this, but just to be clear; encouragement should have a generally positive tone and not shame people (if people feel that shame might be an effective tool for motivating people, please discuss this so we can form a group consensus on how to use it rather than just trying it).
A weekly thread to discuss financial matters - from personal all the way up to global.
Ground Rules
- Remember that we're all just Internet randos. Don't bet your life savings on a hot tip from this thread.
- Keep culture war in the culture war thread. Yes, global events may impact our personal finances, but that does not mean we have to incessantly harp on culture war aspects here. If you are going to discuss it, please stick to the practical impacts of it on an individual level.
- Be kind. Remember that everyone here comes from different circumstances. We all have different resources available and different risk tolerances.
- Don't let the perfect be the enemy of the good. Better is better. Celebrate people when they take a step up and work to move their finances in the right direction. Don't flame out because they haven't followed what you consider the optimal path. Everybody has to start somewhere.
Another copy and pasted article from my blog. Don't worry, I normally don't post this much. Substack link if you want pictures.
My struggles as an Orthodox Christian convert, and why I can't seem to walk away from Christ despite my doubts
Going to church today for the proto-anastasian liturgy (Easter is tomorrow for us Orthodox Christians), I have to admit I have some doubts about the Resurrection and the whole story of Christ being the Son of God.
Usually I can sort of deny these doubts within myself, but during Holy Week, the sincerity of the people around me, the Church services every night and during the day (not that I go to them all), and just the general intensity of everything really brings my cognitive dissonance to the forefront.
I’m about a year and a half post my conversion to Orthodox Christianity, and when I took the vows to follow Christ, bear His cross, and keep to the strictures of the Nicene Creed, I was sincere. At least as sincere as I could be. I had doubts of course, and my priest was well aware. After all, I took the name of the premier doubter in the Christian mythos, Saint Thomas the Apostle.
When I was converting, I had multiple experiences of Christ coming to me. I dealt with extreme chronic pain, debilitating suffering, and He saved me. I don’t talk about this often online because it feels gauche, and I won’t go into detail now. But suffice to say I had genuine experiential evidence to believe the Christian story.
Unfortunately, as Christianity has ceased to be novel and exciting and a big change in my life, that evidence feels more and more hollow, less convincing to my overly rationalized, modern mind.
More and more I find myself thinking: “Is this really true? What if His body was just snatched away and lies were spread? Wouldn’t it make more sense for all the women at the tomb and the apostles to just be delusional, even if they genuinely believed it? The Jews said that they stole the body, the early Christians obviously claimed they were lying, how can we ever know for sure?”
When I first started to doubt, even before I converted, these thoughts would plague and torment me. Sitting there in church I would fret, “How can I feel this way and sing hymns, how can I take communion while not genuinely believing that it’s the Body and Blood of Christ?”
Still today these doubts and thoughts bother me, but I’m learning to be more at home with them. I can’t ever know the truth of the Resurrection. In all likelihood, the intense experiences that convinced me to convert won’t come back. My spiritual father and my elders in the faith have all warned me that’s the case.
So, if I doubt the Christian story so much, why continue going? Aren’t I living a double life? Aren’t I lying to myself and my community?
Perhaps I am. It certainly bothers me, as I pride myself (heh) on being an honest and open person. I discuss my doubts with my priest and close confidants, but generally keep them close to the chest in my broader church community.
In a way it would be easier to just leave church. To take the path I took as a teenager, be an atheist, say it’s all fake. But I simply can’t deny the beauty of Holy Orthodoxy, the haunting power of Christ’s story, and His words.
When I first saw an Orthodox Divine Liturgy, I was blown away. I came back a second time and ended up bawling the entire service, crying more in that couple of hours than I had my entire life prior. Eventually one of the parish council members had to shoo me out of the pews, because I stayed there crying so long that everyone had packed up and they were closing the church.
Something about Orthodoxy, something about Christ, just compels me. Even if it doesn’t make sense to my rational mind, my heart can’t let go of Him. Reading the pre-communion prayers, I do honestly have difficulty firmly and strongly acclaiming that YES, I DO believe this bread is the Body of Christ, and the wine is the Blood of Christ.
But I can honestly say that I love Him, that I want Him dearly, that I long for Him to be a part of me. I can say that when I participate in the Eucharist, I feel filled with a mysterious life that I can’t explain, that perhaps isn’t divine but certainly is closer than almost anything else I’ve experienced in this world.
Who knows what actually happened two thousand years ago in the tomb of Christ, it’s probably one of, if not the most, controversial historical topics ever. We will never truly know what happened, regardless of what evidence comes out or new techniques archaeologists discover.
All I know is that for me, the beauty and power of Christ’s Church and His legacy that has been kept alive for almost two thousands years by His followers is something I can’t seem to do without. It has made my life better in every way, and made me more like Him. My role model, my Lord, my Savior. When the mood strikes me, my King and my God.
Perhaps I’m a hypocrite, one of those people Christ condemned that mouthed the prayers without really believing deep in their hearts. I certainly know I’m a sinner. But ultimately, I just can’t seem to walk away despite the dissonance and the doubts and the confusion.
I’m reminded of the story in the Gospel, when Christ was about to go to His Passion, and he gave his disciples the ritual of the Eucharist. He told them that they would be eating His body, drinking His blood. Many of His followers, even those healed by Him, were freaked out, and understandably so!
They went Ok dude, we can accept that you’re a holy prophet healing us, but you want us to be cannibals? You want us to EAT you?! That’s a little too weird for me, sorry, I’m out.
Christ turned to His disciples and said, “Will ye also go away?”
Simon Peter responded, in a quote that haunts me two thousand years later because I feel the exact same damn way. He looked at this beautiful Man, this incredible healer, teacher, prophet, king. He searched his heart, and responded:
“Lord, to whom shall we go? Thou hast the words of eternal life.”
(Note: This post was originally written many years ago (1 2 3). As this is largely a lazy copy-and-paste karma farm, I have not checked all the links to see whether they still work.)
The book Conned Again, Watson consists of twelve short stories of “rationalist” Sherlock Holmes fanfiction, published for profit with the blessing of the copyright holder (since, at the time of publication, the franchise still was far from entering the public domain). Each story is accompanied by a paragraph or three of explanation (sometimes including book recommendations) in the book's afterword.
The URL given for the author's site in the book's afterword has been dead for quite a few years, but the Internet Archive has a copy saved.
The Case of the Unfortunate Businessman (Chapter 1)
Framing Story
After inheriting a cab business, Watson's cousin James attempted to emulate “how the Americans have reduced company management to a science”. However, James botched it so badly that his company was nearing bankruptcy. He then was taken in by a con man. Watson encourages him to go to Holmes regarding the con, and Holmes informs James that he was such a perfect mark that the con man probably will approach him again, at which point Holmes will aid in the criminal's capture. Holmes then inquires as to how James actually implemented the “modern American management methods”.
Topics
Author's Book Recommendations
Quotes
[Sherlock:] “I really must congratulate you, Watson. In the course of one morning's ordinary domestic decisions, you have managed to replicate on a small scale every one of the errors that brought your cousin's business to its knees!”
The Case of the Gambling Nobleman (Chapter 2)
Framing Story
A woman affianced to a nobleman seeks Holmes's help. Her husband-to-be is low on cash, but has thought of a “foolproof” system to get a new fortune at the roulette table.
Topics
Author's Book Recommendations
Quotes
[Sherlock:] “Perhaps people unconsciously assume that Fortune has a finite number of outcomes in the sack of black and white pebbles she carries. Then the more black pebbles you are dealt, the higher the proportion of white remain in her sack, and the more likely you are to get white. But in truth her supply is infinite, and she can always continue to give black or white at perfect whim. Failure to understand that is the first great human fallacy in misunderstanding the Laws of Chance.…
“The second great fallacy is to think that you can ignore a very tiny chance of a very large loss or gain. A mathematician would warn you of the meaninglessness of multiplying zero by infinity, but we did not have to venture into such abstractions to see that the Marquis's second system would have come to grief eventually.”
The Case of the Surprise Heir (Chapter 3)
Framing Story
The ageing (and seemingly-benign) leader of a small cult seeks Holmes's help. According to her faith, she must bequeath her “church” to a descendant of her great-grandfather (the cult's founder). The leader must choose which candidate is the best, based on which of them was born on a particular mystically-significant date, which is known only to her. She knows of 61 candidates, 60 in Britain and one in Canada. However, the one in Canada is an infidel who mocks the cult. In response to the leader's inquiries, the Canadian has written back to say that there are 59 more candidates, “living in various parts of the Americas”, of whose identities the leader is ignorant.
The Canadian sends over a list of birthdays, but refuses to give the corresponding names and addresses. Instead, the Canadian insists that the cult leader must tell the mystically-significant date to the Canadian, after which the Canadian will contact whichever candidate matches it. However, it is the cult leader's suspicion that there are no other American relatives, and the Canadian is plotting to take over the church (using a non-relative accomplice with a fake birthday), squander its assets (“large houses in London and New York, and also a fund of several thousand pounds”), and milk its members. The cult leader wants to know whether the Canadian's list of birthdays looks fake. She gives to Holmes two lists of birthdays—one for the 60 British candidates, and one for the 60 alleged American candidates. She has not labeled the two lists, as she expects Holmes to tell her which one “looks suspicious in its very nature”.
Topics
Quotes
[Sherlock:] “Not a bad simile, Watson: real randomness is a sharp and spiky place, which will cut the unwary as surely as sharp rocks rip apart the boots and hands of the ill-equipped cave explorer. We are unaccustomed to such roughness because processes human and artificial so often give nonrandom pattern to the world we encounter, and uniformity is a simple pattern to generate, and therefore commonplace.…”
Holmes raised a long finger. “Never mistake uniformity for the product of randomness. But you are not alone in your error: mistaking a uniform distribution for a random one is a common blunder. Indeed, it is worthy of being tagged as the third great human fallacy in misunderstanding the Laws of Chance! You had better start making a list. It is as ever most instructive to talk to you, Watson.”
Compare the following sentence, which wouldn't look out of place in Harry Potter and the Methods of Rationality:
Harry's brain complained that it never would have encountered a random distribution in the ancestral environment.
The Case of the Ancient Mariner (Chapter 4)
Framing Story
A drunken sailor whom Holmes and Watson saw “walking a perfect mathematical Drunkard's Walk” in chapter 2 apparently fell off a pier and drowned shortly after they observed his stumbling. However, he had recently taken out a large life insurance policy, with his sister as the sole beneficiary. The insurance company suspects fraud, and refuses to pay out. Inspector Lestrade is sympathetic toward the sister, and has asked Holmes to investigate.
Topics
Quotes
“Why, confound it, Holmes, I have once again drawn Napoleon's hat!”
“Quite so, Watson. You have indeed chosen a fitting name for the Normal Distribution. Just as Napoleon sought to conquer all the populations he encountered, so the ‘Napoleon's hat’ curve tends to dominate all random populations encountered in nature. But remember this: Napoleon ultimately failed in his quest—he never ruled all of Europe, despite his ambition. And, similarly, not every imaginable population conforms to the normal distribution, although student mathematicians sometimes fall into the trap of thinking that all must.”
The Case of the Unmarked Graves (Chapter 5)
Framing Story
Watson goes to visit an old college friend who wants to undertake some excavations in order to uncover possible Arthurian artifacts. (The friend, named Prendergast, thinks that he may be a descendant of King Arthur Pendragon.) However, the friend's father (whose line has held the title of “Mage” since before the Norman Conquest) has forbidden any excavation unless Prendergast can prove that the chance of turning up something important is better than one in two. Charles Dodgson (Lewis Carroll) also has been invited.
Topics
Author's Book Recommendations
Quotes
The Mage looked at [Dodgson] scornfully. “One-half to two-thirds,” he said savagely. “That seems to be your theme song, Reverend.”
The Case of the Martian Invasion (Chapter 6)
Framing Story
After seeing a horrific face on the surface of the Moon, hearing about crop circles in nearby fields, and finding the message “ARES COMES” in the Bible, an aspiring engineer thinks that a Martian invasion is imminent.
Topics
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Compound probability
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Dependency of events
Quotes
[Holmes] ticked off points on his fingers. “First, you showed us how the human eye and brain can detect pattern where there is none. It is understandable design by evolution, for it is better to be frightened by ten shadows than to overlook one actual tiger, but it often trips us up in modern life.
“Second, there is the fallacy of retrodiction—conducting a blanket search of a great number of possibilities, and claiming subsequently how unlikely it is to get just that message in just that position. It is more often done by numerology: measure every possible dimension of the Great Pyramid, say, in every system of units known to you, and then try dozens of possible numerical combinations of the results to see whether any of the numbers that emerge seem significant, such as being a famous year in the Christian calendar. But your Bible messages have that beat all hollow.”
Three Cases of Unfair Preferment (Chapter 7)
Framing Story
First, Watson reads about a parlor game in which three people must pretend to be historical figures (e. g., Newton, Caesar, and Socrates) and argue over which of the three should be thrown out of a sinking hot-air balloon. Second, Lestrade calls Holmes out to investigate the murder of a philanthropist, in which three attractive young women whom he was considering for a scholarship are suspects. Third, the woman from chapter 2 writes to ask for advice, as her husband-to-be, while having vowed to stay away from casinoes forever, has fallen in with a peculiar gentleman's club that supposedly deals solely in games of skill.
Topics
Quotes
I shook my head. “Really, this seems like black magic, Holmes.”
“Not so, Watson. But it does go against a false intuition that Nature has hard-wired firmly into our brains: the fallacy of judgement, that people or objects can always be ranked in order of value, from best to worse, in a sort of beauty contest. Let us be thankful that it is not true.”
The Execution of Andrews (Chapter 8)
Framing Story
The lone survivor of a ten-thousand-man army killed by ambush in the backwoods of British Burma is being slaughtered by the newspapers just as badly as his comrades were by the Burmese, and is expected to be convicted of desertion and hanged.
Topics
- Bayes's theorem, with helpful visualizations that continue to be presented in later chapters
Author's Book Recommendations
Quotes
“Bayes's theorem sets out formally the criteria for calculating probability ratios such as those we have been encountering today.”
“I will be sure to credit him if I write up today's events. If you show me it, perhaps I should reproduce his formula to illustrate the point.”
Holmes turned the book toward me to reveal, I must say, a rather intimidating piece of algebra.
“I would not advise it, Watson. I have heard it said that every equation appearing in a popular book halves its sales: your fear of algebra is not unique. I confidently predict that if this formula appears in all its glory, your sales will be decimated—and in the modern sense of the word! No, you should confine yourself to illustration by example. Those window-frame-shaped diagrams I have been drawing for you summarize Bayes's approach exactly.”
Three Cases of Relative Honor (Chapter 9)
Framing Story
First, Mycroft calls in Holmes to investigate a diplomatically-sensitive burglary at the French Embassy, in which two suspects have been caught but refuse to talk. Second, an officer about to be court-martialed for indirectly causing the deaths of the men under his command asks Holmes whether he made the correct decision under the circumstances in which he found himself. Third, Holmes contemplates the similarity of the officer's situation to Holmes's own decision in The Final Problem—of whether, in attempting to flee to the continent, he should have gone directly to Dover or left the train at Canterbury after he learned that Moriarty was chasing him in a special train.
Topics
Author's Book Recommendations
Quotes
I blinked at the complex array of figures.
[Sherlock:] “Henderson wants to choose a column that maximizes his chance of survival. But the Mauras will pick the row that minimizes it. Hence arises the concept of the minimax, beloved of game theorists. We must look for the column in which the lowest value is as high as possible.”
“Well, it does not matter now, Holmes. As it turned out, you went to Canterbury, and survived; Moriarty is dead, and can never tell us on what basis he chose Dover. All else is moot.”
Holmes looked at me without seeming to see me, his gaze focused somewhere beyond infinity. “Is it, Watson? Do you remember [from The Einstein Paradox, this book's physics-focused prequel] the many-worlds view of reality, endorsed by Challenger and many other clever physicists, that arises out of quantum theory?…
“In that case, the original Sherlock Holmes who tossed a coin on the way to Canterbury gave rise to a huge (but not infinite) number of subsequent versions. Call that number a zillion if all had survived. If I had rolled a die as I should have done, a third of a zillion would be alive now. As it is, there are only a quarter of a zillion. One-twelfth of those other versions of myself were killed by my stupidity.”
I gazed into the fireplace for some time, musing like Holmes on philosophical realities almost impossible to grasp.
The Case of the Poor Observer (Chapter 10) and The Case of the Perfect Accountant (Chapter 11)
The afterword advises that these chapters “should be taken together”.
Framing Story
A businessman (the son of a person who died in The Einstein Paradox) comes to Holmes for advice on how he should manage his business.
Topics
-
Misleading observations and statistics
Author's Book Recommendations
Quotes
From the afterword:
[These chapters] deal with the same problem: How do you construct an accurate picture of the world, given that your subjective impressions may be misleading, and second-hand reports deliberately selective?
Three Cases of Good Intentions (Chapter 12)
Framing Story
First, someone is poisoning people accused of criminal deeds with butterscotch sweets, in a procedure that looks something like Russian roulette. Second, Watson has discovered that nightshade extract seems to be an effective treatment for Baird's disease—but it seems to help only half of the patients to whom he prescribes it. Third, Reverend Dodgson (fron chapter 5) has devised a way to extend “I cut, you choose” to disputes between three or more parties, and offers his services to help in a territorial dispute between three nations in the Balkans who are negotiating under British oversight.
Topics
Author's Book Recommendations
Quotes
From the afterword:
Game theory and related branches of mathematics have made great strides in recent decades. Perhaps where the visionaries of the early twentieth century fell short in their attempts to design new and better societies in which war and want would be unknown, those of the twenty-first, equipped with better knowledge, may yet succeed.
Do you have a dumb question that you're kind of embarrassed to ask in the main thread? Is there something you're just not sure about?
This is your opportunity to ask questions. No question too simple or too silly.
Culture war topics are accepted, and proposals for a better intro post are appreciated.
As per the request of at least two people here, im going to make an effort-post of my recent digital minimalist experiment.
Beginning
I was online too much and fairly aware of it. A lot of my time when not working was spent either on social media, news, YouTube, or gaming (mostly merge games). And really it was beginning to be a concern that I was spending enough time doing those things that the screen time on my iPad was somewhere near 4-6 hours a day. That didn’t leave much time for other things really.
Somewhere in my binging, I came across a lot of people reenacting historical eras. I think someone here put me on the one about pioneer cooking. But it was all very appealing in the sense that in all of them, the people reenacting being British in the 1940s, the medieval dancers, the renaissance dressmakers hand sewing a dress, whatever other rabbit holes you’d find in that genre of video is that there are several things missing from modern society: personal connections to other people, doing things in the real world, and organic culture. None of the kinds of things that people did as part of normal human behavior in the eras before the cell phones happened organically anymore. I don’t know any folk songs or dances, I didn’t have any real nonconsumptive hobbies, and while I have friends, hanging out was much more of a planned thing than just walking around and meeting people or having people just hang out. The one thing that the kept coming back to me was a quote from the Vintage Dollhouse vlog “We don’t do anything anymore.” It’s actually true, at least compared to eras where cooking required an oven and chicken and vegetables you chopped yourself, cleaning means you have to push the vacuum cleaner yourself, etc. Even shopping was different in 1940 as you not only didn’t have Amazon, but you didn’t have Walmart either so shopping means going to several shops, and often means accidentally bumping into someone you know there or at least the guy/girl behind a counter. It’s also true about things like exercise — in general you’d get a bit of exercise by playing or dancing with other people, or walking around town rather than lifting weights at home. And socializing was doing things with people you know in the same room. Card games, maybe listening to baseball or soccer or whatever sport, working on a hobby together as opposed to modern online gaming or social media or texting where everyone is in their home on their couch alone and only communicating through a screen or headset.
I decided that obviously this was not a healthy way to spend my time, and furthermore that it needed to change. So after reading a fair bit about digital detox plans and finding none that seemed sensible, I came up with something that was more of a personal challenge than anything else. Inspired by the 1940s Brits I’d been watching, the rules I came up with were fairly simple. For the next month, I would not use any entertainment technology that was unavailable in 1946. I did allow radio, streaming music and podcasts, but no screens (I don’t have an analog radio). I also limited my news consumption to 5 minutes of NPR News as a podcast in the morning.
Difficulties
I didn’t find it too hard to get used to the new lifestyle really. The biggest issue I had was that when I had downtime, I’d want to reach for a device to play a game or scroll or whatever else. Having something else at hand helps quite a lot actually. For me it’s often a book of puzzles or a book to read near my chair. Rainy days or winter days were less fun, though I don’t think it was much worse than being a it bored until my brain came up with a solution. But again having something analog available whenever the itch of boredom strikes and having activities or chores or something that you do when boredom strikes will solve the problem as long as you stay committed.
General Observations
First of all, it’s kind of amazing how quickly your world reorients itself away from the kind of culture war stuff that people like to yell about on social media and events happening far away. I was only vaguely aware of Gaza and Ukraine going on. I stopped worrying about trans and woke stuff. Trump is less of a mythic figure for good or ill, and more of a guy who says annoying things online and occasionally does something really dramatic. And most of it (other than the gas prices) has little effect on my life. On the other hand, I took much more of an interest in local news, my own neighborhood, people I work with, and so on. It’s a reversal of how most people seem to think about the news — most people are focused on culture wars like trans, IVF, Trump, MAGA, and international wars. And even when those issues came up, they were not outrage bait. It was just “okay, we just bombed Iran.” It was unexpected, sure, but it was just a thing that happened, it wasn’t something I felt the need to be excited or angry about (except that it sucks that gas prices have nearly doubled). I want it over, but I can also put it down. It’s part of my world, but it’s not something to get excited about.
Second, it’s weird how it’s seems to have slowed down the world to something more manageable. I don’t need to be in a big hurry, I don’t need to decide right now, and I’m not trying to absorb exobytes of unrelated data in the attempt to make sense of the world. If something happens that I want to make up my mind about, I can think about it for hours or days before I decide what I think. If I want to do something, I can do it when it suits me. And I don’t have to worry about missing something important. Going back to the first point, most of it isn’t important, and if it is, it will still be there a few days or a week later. I find the effect relaxing. I don’t feel stressed by the rush of a world that goes at the speed of a computer because I don’t have to match that pace.
Third, I find it much easier to just be in the moment. I like to go walking on nice days and I find it a bit easier to notice the environment. Squirrels fighting over their favorite trees, birds flying around, flowers and trees budding or blooming. I can watch clouds overhead and notice the shapes and the types. I stop to say hi to neighbors I see when I walk by. When I’m reading or doing a puzzle, I can just be doing a puzzle or reading a book. I can give it my full attention for an hour or two. Whatever I happen to be doing, I can just be doing that thing, without feeling distracted by thoughts about things happening elsewhere.
Current approach to technology
I still mostly stay as analog as possible. I do allow myself to watch TV with other people— for example if we all decided we want to get together to watch football, baseball, or basketball it’s fine. Other than that, and coming here on occasion, I mostly stay offline except for radio, music or podcasts (I stay away from politics podcasts).
The evaluation frame I’ve been using to decide what to allow in is pretty simple.
1). Is this technology useful? Do I even need it? Can I do this easily another way? I’m personally of the opinion that if you don’t actually need the technology, it’s best to be somewhat skeptical, especially since it appears that the economic model of most entertainment apps is keeping users on as long as possible.
2). What kinds of things would this technology keep me from doing? If it’s going to keep me inside doing nothing useful, it’s not good. It’s also not good if it takes over a task or skill that I value.
3). What does this technology do to my community? Is it bringing people into real relationships, is it sowing division? Is it radicalizing people, or creating mental health problems for people? If it’s destroying your community, to me it seems like after you know it causes those problems, to keep using the technology is in some sense not only being okay with it, but participating in those harms.
This is the Quality Contributions Roundup. It showcases interesting and well-written comments and posts from the period covered. If you want to get an idea of what this community is about or how we want you to participate, look no further (except the rules maybe--those might be important too).
As a reminder, you can nominate Quality Contributions by hitting the report button and selecting the "Actually A Quality Contribution!" option. Additionally, links to all of the roundups can be found in the wiki of /r/theThread which can be found here. For a list of other great community content, see here.
These are mostly chronologically ordered, but I have in some cases tried to cluster comments by topic so if there is something you are looking for (or trying to avoid), this might be helpful.
Quality Contributions to the Main Motte
Contributions for the week of March 30, 2026
Contributions for the week of April 6, 2026
- "I think Terry Pratchett is the atheist version of C. S. Lewis or J. R. R. Tolkien."
- "But Halo... Halo was magic."
Contributions for the week of April 13, 2026
Contributions for the week of April 20, 2026
Contributions for the week of April 27, 2026
I.
I am not entirely sure how common it is to get so bored on vacation that you voluntarily return to your old workplace and accidentally start practicing medicine. Probably not very. But recently, thanks to certain flight disruptions in Dubai which I do not need to elaborate on, I found myself stranded at home in India far longer than anticipated.
I was going stir crazy. My parents, who maintain a baseline level of mild disappointment that I ever emigrated, suggested I go informally shadow the psychiatry department at my old hospital. "See what psychiatry is like at home," they said. "Maybe you will learn something."
I was already experiencing a profound disillusionment with psychiatric training in the UK, and my previous exposure to the Indian equivalent was highly idiosyncratic. During my internship at this same teaching hospital, my psych rotation had collided perfectly with the initial Covid lockdowns. Outpatient services were entirely shuttered. Any ward patient capable of bipedal locomotion was immediately discharged.
I spent those two weeks checking vitals in the female suicide ward and conversing with a very pleasant schizophrenic gentleman who had a hyper-specific obsession with light fixtures. He had been living on the ward for a decade (no next of kin and nowhere to send him after discharge except to the streets, and then the cops would drop him right back on our doorstep) and had somehow become a genuinely competent amateur electrician. I personally witnessed him replace multiple malfunctioning bulbs. He did very solid work.
So when my parents broached the idea of visiting, I agreed. It was mostly curiosity mixed with a bit of nostalgia. That intern year was almost certainly the worst year of my life, but people assure me this builds character. I thought it would be nice to show up as a glorified medical tourist and see what my Indian counterparts were up to.
II.
After pulling a few strings, I arrived at the outpatient department. It was exactly as crowded and poorly ventilated as I remembered, though stopping just short of actual asphyxiation. I located my point of contact, a second year postgraduate trainee, and optimized my posture to fit onto a partially vacant seat without crushing a colleague's purse.
The initial wave of patients presented with the classic poorly differentiated psychosomatic complaints that are the norm in developing countries. When your native language lacks a dedicated lexeme for "depression", psychological distress predictably routes itself through somatic channels. It manifests as a vague stomach ache or random peripheral tingling. We prescribed pregabalin, gabapentin, or amitriptyline, depending on mood, handwriting and the current phase of the moon. The patients were generally just thrilled to have seen a doctor at all.
Eventually, more interesting cases arrived. Because I was actively peering over my colleagues' shoulders, they generously suggested I take a crack at handling some of them myself. Sure, I thought. Why not?
I quickly came to regret this decision. I have a laundry list of complaints about British psychiatry, but I was not quite prepared for the reality of the Indian clinic.
First, the documentation varied from poor to completely nonexistent. My once finely honed ability to decrypt physician scribbles into valid pharmacological interventions had totally atrophied. Furthermore, the patients were terrible historians. I do not mean this as a moral failing; it is just a downstream consequence of local selection pressures. Government hospital care in India is free. This strongly selects for patients who are overwhelmingly poor, undereducated, and often separated from the physician by a formidable language barrier. Add the baseline communication difficulties of psychiatric patients, and taking a history feels like trying to reconstruct Herodotus from a copy that fell into a blender.
But it was a good challenge. I wanted to prove I could still read between the lines.
Almost immediately, I encountered a truly spectacular case of polypharmacy. We had a lady on lithium, valproate, and approximately a dozen overlapping medications. When were her lithium levels last checked? My best guess is shortly after the universe discovered helium-helium fusion. Thyroid function? The only confirmed fact was that she theoretically possessed a thyroid gland. She had coarse tremors, which could have been caused by literally any combination of the chemicals in her bloodstream. I consulted a senior resident, and we agreed to slash the regimen down to the bare minimum and demand some actual blood work before she returned.
III.
The cases only got weirder. Consider the medical tourist from Bangladesh. He had early onset schizophrenia, but he was relatively stable on his current regimen. Why had his parents brought him across an international border? They claimed they could not source brand name amisulpride in Bangladesh. A quick Google search suggested this was highly improbable, but here they were.
To make matters worse, the family was incredibly vague about his actual medication list. Besides his known antipsychotics and thyroxine, he apparently took a mysterious pill every morning. What was it for? They had no idea. What was it called? A mystery. What did it look like? It was a small tablet.
It is a miracle I did not tear my hair out. After another consult with the attending, we switched him to a more easily sourced variant of amisulpride and advised the family to stockpile six months of it before going home. As for the mystery pill, we essentially applied Chesterton's Fence to psychopharmacology. Chesterton's Pill was deemed structurally load bearing for this mixed metaphor. It clearly had not killed him yet, so we left it exactly as we found it.
My final patient was a six year old boy. His mother presented a constellation of complaints: he was hyperactive, liked staying up late, and lacked focus in class. It looked like a textbook case of ADHD. But given his age, I thought it was worth digging deeper. I learned he was functionally illiterate, possibly dyslexic, and his teacher had explicitly told the mother to get him evaluated.
Then the mother casually mentioned his "fright."
During normal daily activities, the boy would suddenly freeze. He would look incredibly distressed, and then he would get the human equivalent of the zoomies. He would sprint around the room. After the running stopped, he would approach his mother or older sister and bite them. Sometimes he bit hard enough to draw blood. He could not explain why he did this or what he experienced during the episodes.
I looked at him again. He was a perfectly normal, fidgety kid missing a few baby teeth. There were no obvious signs of hydrophobia, though I mentally filed rabies under "highly unlikely but technically possible."
I had absolutely no idea what I was looking at. I debated the case with a colleague. I suggested ADHD comorbid with Oppositional Defiant Disorder. My colleague argued against ODD because the kid was perfectly well behaved in the clinic. I countered that ODD typically manifests at home first, and is usually restricted to familiar adults. Then I floated the idea that his bizarre running and biting episodes might be complex partial seizures.
My colleague theorized it was an intellectual disability or learning disorder, perhaps part of a broader genetic syndrome. I shrugged. He was probably right. There might be a perfectly neat clinical label for this waiting in a dusty textbook somewhere. Or perhaps this is just another reminder that our diagnostic categories do not actually carve reality at its joints.
We eventually compromised. We prescribed clonidine to manage the behavioral symptoms and cover ADHD to a limited extent, then referred them to a clinical psychologist and an ENT specialist for good measure. I had spent more time on this one child than on my previous three patients combined, and the clinic was simply not built for that level of investigation.
I still have no idea what was actually wrong with him.
To avoid ending on a downer, I was happy to hear that the amateur electrician had, in fact, been discharged sometime in the past five years. None of the current trainees had heard of him. Right after I'd "treated" him? I'll take the credit, if no one's looking.
My parents, for what it's worth, were pleased I'd made myself useful. They remain cautiously optimistic about my eventual return.
I remain unconvinced, but I did find the pace to be California Rocket Fuel compared to my usual fare. Who knows? Maybe I'll get bored of making ten times the money, one day.
(You may, if you please, like and subscribe to my Substack. It's what all the cool kids are doing these days.
In the last installment, we discussed Lawrenceville and the factors that led to its gentrification. In this installment, we will discuss the nearby neighborhoods of Bloomfield, Garfield, and Friendship. In retrospect, each of these had at least some of these factors at the time Lawrenceville began gentrifying in the early 2000s, and in the decades since, each has gentrified to some degree. But none has undergone the full-scale transformation that happened in Lawrenceville.
Series Index:
- Intro
- Downtown
- Strip District
- North Shore
- South Side
- Hill District: Lower Hill
- Hill District: Middle Hill
- Hill District: The Projects
- The Hill’s Environs: Uptown, Sugar Top, and Polish Hill
- Oakland
- Lawrenceville
What Is a Neighborhood?
Before we get started, I want to point out that, geographically, this part of the city has some major discrepancies regarding official boundaries versus colloquial ones, and I want to investigate what exactly we talk about when we talk about neighborhoods. I can't find any information regarding how many American cities officially define their neighborhoods, but preliminary research suggests that the number is not high. I know Cincinnati, Cleveland, and Chicago do, but I can't find anything for Boston or Philadelphia other than lists of names, and New York explicitly refuses to do so. Part of the problem is that no matter how carefully you try to collect the data, as soon as you draw a line on a map the arguments start flying. And once you make an official designation, that designation affects, to some degree, how people view the area going forward.
For a city that prides itself on the diversity and distinctiveness of its neighborhoods, it was only within the past 50 or so years that anyone really paid attention to them. Most of the published histories of Pittsburgh do not discuss them, save occasional mentions of Oakland or the Hill District. Contemporary publications aren't much better. A sense of cohesive neighborhood identity did not become established until the 1960s, when the urban renewal projects of the Pittsburgh Renaissance threatened to tear communities apart. It was then that neighborhood groups formed to provide organized opposition to the projects. However, these groups found it difficult to negotiate effectively with city government without accurate information about the neighborhoods, which was not available at the time. Census data was available, but this only covered relatively large areas that did not necessarily conform to neighborhood boundaries as they were popularly understood at the time. The Pittsburgh Neighborhood Alliance was formed in 1969 to gather this data, and in order to do that, boundaries had to be determined. The Alliance held community meetings, where they would simply ask participants to define the boundaries in which they lived. In other words, we have NIMBYs to thank.
The city itself was taking interest. Pete Flaherty was elected mayor in 1969 as part of a backlash against Renaissance policies. He vowed instead to implement a "neighborhood renaissance" that would move away from large-scale boondoggles in favor of local civic improvement. The Planning Department drew boundaries based on census tracts and in 1974 published a series of 88 Community Profiles. In the meantime, the Pittsburgh Neighborhood Alliance, in Conjunction with the Pitt School of Social Work, conducted neighborhood surveys in 1976 to collect the neighborhood-level data that was so sorely needed. The result was the 1977 Pittsburgh Neighborhood Atlas, which identified 78 neighborhoods. When Richard Caliguri took over as mayor in the late 1970s, he formed the Neighborhoods for Living Center, which published its own map in 1983. The planning department settled on the currently recognized 90 neighborhoods in 1990, which appear on official maps today. In the early 1990s, however, mayor Sophie Masloff implemented a program to erect street signs, which were rare at the time. Part of this program was that signs of major roads have the neighborhood name on them, which Reddit refers to as the "Blue Sign Squad".
It should go without saying that there are discrepancies between the 1976 survey, the 1983 map (which is probably the best one but didn't result in anything else so I'm not going to mention it anymore), the official planning boundaries, and the street sign designations. The 1976 survey is probably the most colloquially accurate, but includes several small, odd neighborhoods that I haven't seen mentioned anywhere else. The official maps upped the count to 90 by implementing semi-bogus geographic subdivisions to otherwise cohesive neighborhoods and by giving isolated housing projects their own sections. The blue signs don't conform to the planning boundaries exactly and recognize sub-neighborhoods that aren't part of the official total, but don't recognize some sub-neighborhoods that are part of the official total when political considerations are at play (the official Hill District divisions make sense, but residents view them as part of a "divide and rule" strategy meant to inhibit neighborhood cohesion).
I've spent a lot of time thinking about how I would define the neighborhood boundaries for this series (don't worry, most of it was while driving when I literally didn't have anything better to do). It would have been really easy for me to just use the official list, but the purpose of the series would then be frustrated by my having to make a lot of caveats, and I had to come up with my own system. I think it comes down to three questions:
- What do the local stakeholders identify as? In most cases this means residents, but business owners, those who work there, and those who visit regularly need to be taken into consideration as well. This is the approach that the Pittsburgh Neighborhood Alliance took in the 1970s.
- To what degree do the residents actually interact?
- To what degree does the neighborhood feel cohesive to an outsider driving through it? Do the street grids match up? Are there significant geographical barriers? Consider West Oakland, which we discussed a couple installments ago. It's a bitch to define. The residents in the vicinity of Robinson St. consider themselves as Oakland when it's convenient for them but as part of the Hill District for historical reasons, and different residents have different identities. Outsiders may have considered it as part of the Hill at one time but may not now. But the Hill has five different official neighborhoods, each of which is a legitimate division. If you don't view the Hill District as one neighborhood, and you don't think the area around Robinson St. should be part of Terrace Village—which is self-evident, because it's not part of the old housing project—then you either need a new name for it or you can keep calling it West Oakland, which means you have to treat it as part of Oakland. But then the second question comes into play when defining the boundaries, because the black working-class residents of the area around Robinson St. have little interaction with the Pitt and Carlow students who reside within the official boundaries. And then there's the part that's demographically similar to the area around Robinson St. but is geographically distinct from it and connected to Uptown. The line I ended up drawing doesn't conform to any of the three criteria, but nonetheless conforms to all of them.
Or look at Lawrenceville, from last time. The city officially divides it into three parts: Upper, Middle, and Lower. Old timers did so as well, but used the ward numbers instead. These aren't distinct enough to really merit being their own neighborhoods, since the overall Lawrenceville identity is stronger. But even as subdivisions, some are stronger than others. Although geographically separated, there's isn't much of a difference between Central and most of Lower Lawrenceville. The residential section between Penn and Liberty is quite different, but this is more of a no man's land than a separate neighborhood, and given the way prestige and the real estate markets work it's identity as part of Lawrenceville is solidified, but it's never going to have its own name.
For the present installment, we have to contend with the fact that a large part of what is officially Bloomfield is colloquially Friendship, which is officially quite small. And also with the common problem that the Penn Ave. corridor outside of the Penn/Main business district by the hospital is officially split between Garfield and Bloomfield, except for a small part on the eastern end where one side of the street in officially in Friendship. I consider everything south of Liberty to be Bloomfield. North of Liberty, apart from the street itself (which is all Bloomfield), the dividing line is at Friendship Park in the vicinity of West Penn Hospital. It is here that the housing stock changes significantly enough to give the entire neighborhood a different feel. Both sides of Penn are Garfield. There's also a section of Bloomfield south of the ravine that includes a residential section that feels more like part of North Oakland but not enough to deviate from the official boundary, not least of which because it's off of Baum on the other side of a bridge which most people would consider Bloomfield though it's really sort of a no-man's land.
11. Bloomfield: Little Italy
Bloomfield is located in Pittsburgh's East End, to the south and east of Lawrenceville. The main entrance, so to speak, is via the Bloomfield Bridge, which connects the neighborhood to Oakland via Bigelow Blvd. and Craig St. The ravine that the bridge crosses bounds the neighborhood to the west, though it splits and while one branch forms the border the other cuts off the southernmost portion of the neighborhood. The southern end is along the Baum Blvd. corridor, and I've taken the liberty of putting the boundary with Friendship at the complicated intersection with Liberty and Center where it's easy to make a wrong turn. From there I include the Liberty Ave. corridor to West Penn Hospital, where the line jogs north to Penn Ave. based largely on housing typology. I give the Penn corridor west of Friendship Ave. to Lawrenceville, and I include the Liberty Ave. corridor back to the bridge.
Entering the neighborhood via the bridge, one sees a sweeping vista of the entire neighborhood laid out on a plateau above the ravine. This plateau was once home to Joseph Winebiddle's farm, back in the days when it was still part of the now defunct Peebles Township. It was annexed to the city in 1868 and developed in the subsequent decades, development being mostly complete by 1900. It was originally settled by German Catholics, but around the turn of the century, Italians from the Abruzzi region began settling there. Bloomfield's reputation as an Italian district notwithstanding, it should be noted that at that time there were several parts of the city with significant Italian populations—Larimar, Oakland, parts of the Hill District and Downtown, among others, all had a legitimate claim as Pittsburgh's Little Italy, so in that respect it was not unique.
What is unique is that it retained its Italian character through the midcentury upheavals of urban renewal, suburbanization, and increasing urban crime rates, as well as through the ongoing diminution of ethnic identity in America and the continuing gentrification of urban areas. The 1977 Atlas noted that while there was still a large German presence, the neighborhood was mostly Italian, and while it's impossible to determine precisely when the Little Italy designation came into the public consciousness, a sign welcoming visitors to Bloomfield and describing it as such was erected in 1993, and the Little Italy Days festival was established in 2002. At that time, New York's Little Italy had become a shell of its former self, a façade of tourist-oriented restaurants on top of a neighborhood that had few actual Italians. Pittsburgh, by contrast, was in a different boat. When the census bureau began tracking ancestry in 1980, 50% of people in the core of Italian settlement in Bloomfield claimed Italian ancestry, a number which held into the new millennium. And there was little to nothing that would appeal to the casual tourist; there were two Italian grocers, but most of the Italian businesses were things like beer distributors, dry cleaners, and barbershops, none of which had any outside appeal. Even the Italian restaurants weren't anything special.
But alas, all things must pass. The Italian population had declined to 40% by 2010 and sits at 30% as of 2024, still double that of Pittsburgh as a whole but a far cry from where it was. The business district, which was mostly Italian-owned in 2002, isn't much different than anywhere else. Several of the mainstays have closed, not due to lack of business, but because the owners retired and couldn't find a buyer. Little Italy Days has since become county fair mainstream with both Bloomfield and Italiana an afterthought. While something like 78% of Bloomfield businesses participate, they represent a small proportion of the total vendors, most of whom are large regional companies selling things like insurance and gutter guards. There's still wine, bocce, and Italian entertainment, but the 100,000 visitors necessitate the closing of Liberty Ave. and cause parking issues. The residents hate it.
While the decline of the Italian tradition may be lamentable, I'm not going to shed too many tears for it, despite being of (non-Bloomfield) Italian extraction myself. Things change, and unless the change is unmistakably negative, I don't think we're served any better by clinging to vestiges of the past. The organizers of Little Italy Days can make a deliberate attempt to make it more Italian, but they can't turn it back into the local festival that it was prior to 2012. Do this on a neighborhood scale and we turn Pittsburgh's Little Italy into New York's Little Italy, an ersatz imitation of an ideal that probably never existed, meant to appeal to a tourist's idea of what a Little Italy is supposed to look like. As someone who remembers the old Italian Bloomfield, I can assure you that it wasn't like what you are imagining.
Let me elaborate. I first started hanging around here circa 2004; I went to a small liberal arts college where there was little to do and headed off to greener pastures nearly every weekend. Friends of mine from high school who went to Pitt moved here because the rent was cheaper than in Oakland and there was decent bus service. By cheaper I mean you could rent a 3 bedroom house for under $700/month and a 1 bedroom apartment for under $500. My impression of the place from then up until around 2016 or 2017 was that it was a stable working-class neighborhood that demographically skewed older and more Italian but had a fair amount of younger people as well. Bloomfield was a hipster neighborhood at a time when Lawrenceville had nothing worth glancing at, except for drug addicts and prostitutes. Maybe there was some nascent gentrification going on, but as I said last time, it was totally off my radar. And while Bloomfield may have had a fair share of hipsters at that point, there wasn't anything hip about the neighborhood itself. There were a few places that catered to young people, but the business district was mostly functional. Unlike Oakland, you could actually do most of your business within a ten minute walk from your house.
The Italian businesses that we frequented were not of the type that would appeal to outsiders, and there wasn't necessarily anything Italian about them other than the owner's last name. The Italian bars we used to hang out in were initially selected on the basis of whether or not they carded, which they mostly didn't because it had been a while since they had a customer under the age of 70. These places all had illegal poker machines and your chances of developing lung cancer increased by 50% each time you visited. I later learned that these places ran numbers and offered a sports book if you were willing to bet $50/week. The most famous Italian restaurant was Del's, which was so bad it was featured on Restaurant Impossible in 2012 and closed in 2015. The second most famous was the Pleasure Bar, which is still open. I'm pretty sure they used Prego brand sauce, and the only reason to go there was for karaoke. I remember seeing the waitresses at D'Amico's smoking cigarettes while they cut customers' bread. When I'd see old women drinking wine at these places, it was invariably Riunite. The neighborhood had a lot of characters. The Foodland was ahead of its time in that all of the employees looked like they were on fentanyl before fentanyl became common. It was easily the most disgusting grocery store I have ever been in.
If it seems like I'm nostalgic for the old Bloomfield, I'm not. When I recount these memories to newcomers or younger people they respond along the lines of "It sounds like it was a lot cooler then" to which I reply "No, it wasn't. We hung out at these places first out of necessity, and later out of familiarity. But we didn't feel like we were anywhere cool at the time." To put a finer point on it: When the Steelers won the Super Bowl in 2006, I remember watching the game at my friend's house and walking down to Liberty Ave. after it was over. There were a decent number of people out on the sidewalks celebrating, many of them spilling out of bars, and cars on the street honked as they went by, but when returned and saw the images on the TV news of the absolute mayhem on the South Side, we vowed that if a Pittsburgh team was ever in another championship, we were watching the game there. Luckily, we'd see two there just a few years later. If you're looking for an otherwise unglamorous neighborhood that has a not insignificant hipster population, those places aren't exactly uncommon, even today. But they aren't chic. Bloomfield is cooler now than it was then, and that's a good thing. Sure, I may get some street cred for having hung out in Bloomfield before it was cool, but I don't know why, because it wasn't cool.
When Lawrenceville really took off around 2011, Bloomfield was more or less the same as it was in 2004. The residents definitely skewed younger as the mostly elderly residents were replaced by students lured by cheap rent and excellent transit service, and rents had begun to rise in response, but it didn't show any signs of what we'd traditionally think of as gentrification. Little had changed in the business district, and nobody seemed to be buying houses to restore them. In an East End that was changing, Bloomfield seemed like an island of stability. But as the decade wore on, two things happened. The first is that, as I mentioned earlier, some of the long-time business owners retired and were unable to sell. The second was that prices in Lawrenceville started getting out of hand (by Pittsburgh standards) and Bloomfield, with its intact, functional business district and safe streets, seemed like a good alternative to those who either couldn't afford or didn't want to pay to live elsewhere. The newly vacant storefronts were soon snatched up by people catering to a younger, more affluent demographic, residential prices kept rising, and gentrification was well underway.
Part of the reason I drew the lines for Bloomfield where I did was because this is the part of official Bloomfield that housed the vast majority of the Italian population. But the main reason was because of the housing types. Bloomfield's stereotypical housing style is one that is fairly unique to Pittsburgh—the wood-framed row house. The only other parts of the continent where I know they exist in significant numbers are in the hard coal country of Northeastern Pennsylvania and in Atlantic Canada. These exist all over Pittsburgh, but in Bloomfield they predominate. These houses are almost invariably severely remuddled. In fact, I can only think of one house in the entire neighborhood that retains its original wood siding. While these remuddlings may seem like travesties to modern sensibilities, it's worth keeping in mind the context in which they were done. In the 1950s and 1960s, suburban houses with big yards were the thing to have, and remaining in a place like Bloomfield, with its small, old-fashioned houses meant that you were either too poor to move away or too stubborn to do so. Adding aluminum siding, an awning, and some new, smaller windows gave these people a measure of privacy they couldn't otherwise achieve and made them feel like part of the middle class. These homes were lovingly cared for.
As you may have guessed by now, Liberty Ave. is the main business district. It was great when I first discovered it and has only gotten better since then. While gentrified businesses have moved in, it's still mostly functional, so the presence of places like SPiLL wine bar, Fet-Fisk (Scandinavan food), and Trace Brewing add to the neighborhood rather than detract from it. While I count the Penn/Main business district as part of Lawrenceville, I will include the part of Penn [opposite the back of the cemetery](, which includes Apteka, a vegan restaurant specializing in Central European Cuisine (a gentrified Pittsburgh business idea if there ever was one). Then there's Baum Blvd., which is at the southern end of the neighborhood. This was traditionally the home of Pittsburgh's car dealerships, and currently operates as a sort of urban stroad, with car-dependent businesses, including a dealership or two. This area also includes a small residential area separated from the rest of Bloomfield by a ravine. This sort of feels more like North Oakland and is mostly students, but it's officially Bloomfield, and Oakland is big enough as it is. In reality, the whole Baum-Center Ave. corridor between Oakland and East Liberty is a kind of no man's land, a business district that skirts the edges of Bloomfield and Shadyside but which neither neighborhood claims.
Neighborhood Grade: Gentrifying. Bloomfield skipped the early gentrification phase because it never went through a sketchy period. I'd say Bloomfield's future is bright on the whole, but I would have said that 15 years ago as well, as it didn't really need to see gentrification. That being said, there's room for improvement. Particularly, the housing stock is garbage. Frame is not as desirable as brick, but I have nonetheless seen some nice frame rowhouse restorations in other parts of the city. Bloomfield is still at the stage where houses are being "improved" by replacing the aluminum siding with new vinyl, particularly in a dark color that's meant to fool the eye into thinking it's actually Hardi-Board. Aesthetics aside, most of these houses are small, with a disproportionate amount of 2 bedrooms. The streets are narrow to the point that Lawrenceville looks spacious by comparison, and there isn't a blade of grass or single tree in the entire district. Whether or not these are insurmountable barriers remains to be seen.
12. Friendship: The Suburbs of Bloomfield
As I mentioned in the introduction, Friendship is an official city neighborhood, but the colloquial definition includes a substantial part of what is officially Bloomfield. I've drawn the line at the point where the narrow alleys and frame rowhouses abruptly give way to larger brick houses and wide, leafy streets. I've drawn the northern boundary to follow the Penn business district but to exclude it, since this is traditionally claimed by Garfield, and I've drawn the southern boundary to follow the block between Baum and Center. The eastern boundary is at Negley, though some businesses used to unofficially extend it further into East Liberty in their advertising during the time when being in East Liberty was bad for business.
Historically, this area developed later than Bloomfield. While Bloomfield was largely built out by 1890, Friendship didn't start seeing development until around the turn of the century, though that development proceeded quickly and the neighborhood was built out by 1910. Unlike Bloomfield, Friendship isn't traditionally Italian. This section was originally built for the managerial and professional classes, as opposed to working class Bloomfield. As such, the houses are larger and more attractive. The period when this was considered a desirable area was short-lived, however. The Depression made many of the larger houses difficult to sell, and many of these were converted into rooming houses. Zoning would prevent this from happening on a wide scale until 1958, when a new ordinance explicitly allowed the larger homes to be chopped up into apartments. By the 1970s, 2/3 of the housing units in the official part of Friendship would be rentals, mostly targeted toward students and other young people. As the adjacent neighborhoods of Garfield and East Liberty declined in the 1970s and 1980s, vice and crime problems spilled into Friendship and triggered a measure of white flight from the neighborhood, though it never came anywhere close to being majority black.
Friendship's fortunes began to turn somewhat in the 1980s and 1990s, as middle class homeowners began restoring some of the houses. It was also around this time that Friendship began taking on a more distinct identity. The area had been called Friendship since at least the 1920s, but the extent to which locals embraced the name is difficult to determine. The official part of the neighborhood was officially recognized by the Planning Department from the beginning of official neighborhood designations, but it was lumped in with East Liberty in both the 1977 Neighborhood Atlas and the 1983 Neighborhoods for Living Center map. The urban pioneers of the 1980s, drawn to the architecture and low prices, formed two associated neighborhood groups in 1989, Friendship Development Associates and the Friendship Preservation Group. In 1993, and annual home tour was initiated following a one-off event in 1988.
And thus the double-edged sword of urban advocacy. The early advocates for Friendship, many of them architects, felt that the neighborhood was an overlooked gem. Many of the historic homes had been remuddled by apartment conversions—the most notable crime against architecture was the removal of many of the neighborhood's signature porches—but that was still intact enough to make restoration worthwhile. Friendship Development Associates proceeded with the noble, bottom-up goal of restoring neglected homes and selling them. Friendship Preservation Group, on the other hand, took the top-down approach of pushing for zoning changes to limit apartment conversions and filed lawsuits to stop virtually all new development that didn't conform to their idea of what the neighborhood should look like. Most of this opposition wasn't even focused on the residential core, where multi-unit apartments were still permitted by right, but on the fringes of the neighborhood, where zoning rules were more complicated and variances were often required. Some of this was good, in that they convinced a national drugstore chain to reuse an old car dealership on Baum that they had originally planned to demolish in favor of a suburban-style box, but they were NIMBYs, through and through.
These groups also took the liberty of claiming territory beyond the neighborhood's official borders to Gross St. It was in this section, officially Bloomfield, where most of the urban pioneers actually lived, as the homes were smaller, meaning they were less likely to have been converted into apartments, more likely to come on the market, and cheaper to renovate. While their work wasn't the intentional rebrand that some sources claim it was, it did put Friendship on the map, so to speak. Actually changing the neighborhood was another story. While they repeatedly lobbied to rezone the entire district to limit residential structures to two units, the 1998 rezoning only changed a small section. The majority of Friendship remains zoned for multi-family to this day, and while the city is currently in the midst of rewriting its zoning laws, the zeitgeist is toward more permissive uses and not less, so I doubt there is much political will to eliminate multi-family where it already exists. Not that this is an issue anymore, anyway. Both groups currently exist as the merged Friendship Community Group, which is more of a social organization than a real estate developer or political advocate.
The upshot of all of this is that Friendship changed relatively little between the 1930s and 2020s. Apart from a small influx of blacks in the 1970s and 1980s and a small number of yuppies in the 1980s and 1990s, it mostly had an odd stability of middle class families combined with students and young professionals. The official part of the neighborhood went through a sketchy phase for a while due to proximity to East Liberty. Even into the 2000s, while the area wasn't exactly dangerous, it was certainly a little rough around the edges. To illustrate: Pennsylvania liquor law doesn't allow six packs to be sold anywhere that doesn't have on-premises service. Years ago, there was a convenience store in Friendship that got around this by setting up a perfunctory bar in the back with Formica countertops. No matter when you went in, there was always some raging alcoholic sitting at the bar. Occasionally there would be a few older black guys shooting the shit, but otherwise the place was sketchy as hell. We used to call it the "Grandfathered Inn". The mere existence of this place was, of course, unacceptable to the Friendship NIMBYs, who found a buyer willing to turn the place into something more upscale and convinced the owner of the building to evict. Instead, the proprietor absconded with the liquor license (which he didn't own) and the building sat vacant for more than a decade. It's now a coffee shop which is probably a more convivial location to hang out but which I imagine doesn't sell pornography.
In terms of built form, Friendship is mostly brick houses from the late 19th and early 20th centuries, but within this constraint there is a surprising amount of variety. Some of the blocks north of Friendship Park are reminiscent of Chicago, while other parts are more modestly streetcar suburban. Generally speaking, the houses become grander as you go west to east, with the neighborhood proper containing the grandest homes. As I mentioned earlier, this part of the neighborhood suffered most from the wave of apartment conversions, as the houses are too large to be of interest to most homeowners and absentee landlords are reluctant to sell. Many of these homes look nice enough on the outside but are dumps on the inside, but even at that, the transition between owner-occupied houses and rentals can be quite jarring.
There isn't really a business district. There are a few blocks of Baum, but they aren't as developed as the ends in Bloomfield or East Liberty, though there is an Aldi. There are also probably a few scattered businesses like that coffee shop, but in reality, Friendship doesn't need its own business district. Some old maps divide this area between Bloomfield and East Liberty, because those areas are where Friendship residents traditionally shopped, and the Penn Ave. business district in Garfield forms the neighborhood's northern boundary.
Neighborhood Grade: Upper Middle Class. Friendship passed the gentrified point a long time ago, and there's very little grit left. Ten years ago I would have kept this in the gentrifying category due to the high student population and prevalence of student slumlords, but prices have gotten high enough in the past few years that even these are starting to disappear. I wouldn't have thought there was much of a market for 6 bedroom houses at a million bucks, but here we are. Some of the apartment houses are going to stick around for a while because students will always pay top dollar to live in crap, but I don't hold this against other parts of the city, so I won't hold it against Friendship, either.
13. Garfield: Forcing the Issue
Unlike Bloomfield and Friendship, the borders of Garfield are relatively easy to define: The Penn business district on the south, Allegheny Cemetery on the north and west, and Negley Ave. on the east. The only slightly goofy boundary is on the northeast, which includes both sides of Mossfield and Black streets plus a little bit of surplusage that I threw in because it doesn’t fit anywhere else, and there are a few side streets off of Negley that don't have any road connections to the rest of Garfield and are thus more properly East Liberty, but that's not a huge issue. The most notable geographic feature is the hill that rises steeply to the north of Penn Ave.
Garfield was part of the Winebiddle farm and was named after president James Garfield, who was buried on the day the first residential lot was sold in 1881. It was built out over a long period of time in the late 19th and early 20th centuries and was mostly settled by Irish immigrants, perhaps becoming the most easily identifiable Irish neighborhood in the city. Garfield was never a particularly nice area, and the top of the hill was flattened in the early 1960s for the Garfield Heights housing project. The result was one of the more notable instances of white flight in the city. Garfield's minority population was 17.5% in 1960, 37.3% in 1970, 61.5% in 1980, 78.9% in 1990, and 89.1% in 2000.
Beyond mere demographic change, though, the neighborhood was clearly in decline. By the mid-1970s, while the crime rate was comparable to the city average, people's own eyes told another story. A city councilman's daughter was assaulted on Penn Ave., and the councilman himself had to flee two mugging attempts. The grocery store saw purse snatchings almost daily. The commercial district found itself without a bank, a drugstore, or a men's clothing store, and more closures were sure to follow. Perhaps counterintuitively, the housing project was easily the best in the city at the time and had a crime rate below that of the neighborhood as a whole. In 1975, Rev. Leo Henry, pastor of St. Lawrence O'Toole Catholic Church, formed the Bloomfield-Garfield Corporation to stabilize the neighborhood, as he feared that if no intervention was done, the neighborhood would continue to deteriorate. The group would spend the next 25 years getting grants for property improvements, grants for cleanup of abandoned properties, appearing on the news every time a desirable business would close, appearing on the news urging the city to shut an undesirable business down, but to little avail. The neighborhood got worse, people kept leaving, businesses kept leaving, street crime turned to gang crime, and by the end of the 90s the neighborhood was a war zone.
In 2000, the BGC formed the Penn Avenue Arts Initiative in an overt attempt to replicate the Soho effect in Garfield and turn the neighborhood into an arts district. And it worked. Sort of. A number of galleries opened on Penn, along with a vegan café, Quiet Storm, that became popular among the arty set, as well as People's Indian. (There's also Kraynik's, an iconic bike shop that moved from Oakland in the late '70s when the area was starting to get really bad and has the rare distinction of being a hipster business that's part of the old neighborhood.) The First Friday gallery crawls became a popular thing. But apart from some artists, few actually wanted to settle there. The vibe of the place in the 2000s was distinctly different than anywhere else in the city. It wasn't quite full-on ghetto, but even the low-income businesses seemed to have pulled out, leaving behind a smattering of newsstands and barbershops that stood in contrast to the art galleries and ethnic restaurants. There was still enough left to support a fairly vibrant street life during the day, mostly older black men loitering in front of buildings, and the combination of the narrow street and abandoned, but extant, storefronts gave one a sense of claustrophobia. Nights were even weirder. Most of the time it was a ghost town, except on First Fridays when the street was overtaken by an incongruous mob of white people who didn't wince about going into the hood after dark. Even these contained a mild sense of unease, as when these ended I found myself rushing to the safety of Friendship a block away.
I think this proximity helped the arts district take off in a way that wouldn't have been possible somewhere like the Hill District, where one would actually have to soil one's tires in the ghetto and park in a place where their car was liable to be broken into. I never saw anything remotely sketchy on Penn in those days, but there was security in the knowledge that one could park in a middle class area and beat a retreat if things got too spicy. It's also around this time that the g-word started being mentioned, much to the alarm of the BGC, who had formed the Penn Avenue Arts Initiative just before the word entered the popular consciousness. If the success of the initiative didn't convince people to move to Garfield, it did convince them that it wasn't as dangerous as they thought. I remember several conversations during this period where everyone agreed that its bark was worse than its bite. I met one guy who actually moved here and liked it.
Gentrification eventually picked up, but it's been more of a slow burn. Some time around 2010 all the black people suddenly disappeared from Penn Ave., and the crime rate fell off a cliff. The streets around Penn began gentrifying when the arts initiative was established, but the hill was a tougher nut to crack. Garfield Heights was razed in the late 2000s and replaced with the mixed-income Garfield Commons, and while that development is safe, violent parts of Garfield still remain, though these are becoming fewer and are hyper-localized. It's only been since the pandemic that houses farther up the hill have been rehabbed, though these are more in the line of cheap flips than historic restorations. Part of the problem is that the hill poses a serious barrier to walkability, and while the area is served by several transit lines, frequency isn't good.
In terms of built form, it varies due to the length of the buildout period. The southwest corner, around Dearborn St., was built out earliest, and is similar to Bloomfield. Other parts look like a modest streetcar suburb, and there are even a few larger houses. But there's also a significant number of frame mill houses, and there is significant [blight and abandonment]( the further up the hill you go. Some areas even have a rural, ghetto in the woods feel. Meanwhile, the BGC has been constructing newer homes on vacant lots that are so ugly they seem to block gentrification by design, signaling to outsiders that the neighborhood is for poor people, no hidden gems here.
Neighborhood Grade: Early gentrification. The caveat here is that it's been in this stage between 15 and 20 years now, depending on who you ask, and while things have improved significantly over that time, the bottom was so low that there were many obstacles that had to be overcome, and still more to be overcome in the future. The crime is down dramatically; Part I crimes, which include murder, sex crimes, robbery, burglary, arson, aggravated assault, and theft, are at about 2.5 per 1,000 residents, which is comparable to better neighborhoods in the city. The difference is that when murders happen in better parts of the city, they're explained away as outliers, but when they happen in places like Garfield, they’re cited as evidence that things haven't changed. That said, the gangbanging is pretty much gone, and the safety risk to the general public is lower than places like Downtown and the South Side.
The bigger impediment at this point is the housing stock, which isn't the best. During the bad old days, there was significant blight and abandonment, particularly as you get higher up on the hill, which made the neighborhood fabric patchy in places and downright rural in others. While this may eventually present as opportunities for yuppie infill, the BGC is liable to snatch all these up for ugly affordable housing before that happens. There was already neighborhood opposition to a possible conversion of the former Fort Pitt Elementary into apartments. The BGC was founded in an attempt to stabilize Garfield when it was still largely a working-class Irish neighborhood, and they're currently trying to stabilize it as a working-class black neighborhood, though the common denominator is that it should ultimately be working class. As recently as a decade ago this wasn't too hard to do, as they would build houses for $200,000 and sell them for $140,000 in market-rate transactions. In other words, as long as they had the money to build or renovate, all housing was inherently affordable, because the neighborhood wasn't particularly desirable, especially as one got farther from Penn.
The final thing that's holding Garfield back is the business district, which has a lot of cool stuff but not many necessities, and still has more than its share of vacant storefronts. I think this is one of the things about gentrification that rubs locals the wrong way more than anything else, provided they aren't actively being displaced. I remember an interview with a Garfield resident from some years ago, a black woman in her late 30s, who said that while she supported the new development generally, she wasn't that enthused; her kids weren't interested in art and she couldn't afford t eat at any of the restaurants. I can understand the alienation that comes from waiting decades to see your neighborhood revitalized and when the day comes, it's revitalized for the benefit of other people, people who don't even live there. Politicians can get their pictures taken on a shiny main drag, but there's nothing there for you.
The inherent issue is that economics favors this approach. If I want to open a gentrified-type business, say, a crepe shop, I have two options. I can open it in an established area where I will be competing with established brands and pay a fortune in rent to do so, or I can move to an "emerging" neighborhood where I might not get as much business but where my costs will be significantly lower. I'm not just going to open a storefront in the hood and hope for the best, but if a local community organization is making an effort to bring like-minded businesses to the area, I might be persuaded. Conversely, if I'm trying to open a pharmacy or a bank branch or something where the selection criteria usually boil down to which one is closest, I'm only looking at demographics, and rent is commensurate with how many people are in a given area and how much money they have to spend. What I lose in business by opening up in the hood I might not save due to the rent discount. So people who live in poor areas without huge populations thus have to travel farther for basic services that they'd rather have access to in their own neighborhoods, and they get a bit resentful when the business district "revitalizes" with a bunch of shit they don't need. This is a problem that will be solved in time, but the only solution is to increase the population, and even then, there's going to be a lag. That being said, they do have a grocery store, the Aldi on Penn, and given the Hill District's woes on that front, that's quite the accomplishment, especially since they didn't have to incentivize anyone to build it.
What Did We Learn, Palmer?
When I started this series, the primary goal was to see what conclusions could be drawn about urbanism by systematically looking at a city's neighborhoods; all the neighborhoods, not just the ones that get a lot of press. At that time, two years ago now, I didn't have any expectations as to what I would uncover, and the early installments were filled with a lot of passing observations and deep dives into things I found interesting. Now that I'm a dozen neighborhoods in, some general themes are beginning to take shape, and I want to reflect on them for a minute.
When we started looking at gentrification in earnest last time with the Lawrenceville installment, I argued that while urbanists traditionally pointed to certain factors when making their predictions of what the next hot neighborhood would be, they ignored others, and continue ignoring them to this day. To make a list of all the factors identified thus far:
- Proximity to areas of regional importance like Downtown or Oakland
- Proximity to desirable neighborhoods
- Low violent crime rate (though not necessarily low non-violent crime rate)
- Desirability of housing stock
- Opportunities for infill construction, especially large apartment complexes
- Functional business district
- Vacant storefronts available for gentrified businesses
- Significant existing white population
- Artist presence
- Hipster/bohemian presence
I'm not going to reiterate my arguments here, and I'd caution that the list is not exhaustive, but Lawrenceville was unique in that all of the factors applied. City boosters generally treat the first factor as primary, as is evidenced by their predictions that the Hill District or Uptown should be taking off any day now, which trickles down to common people making Reddit posts wondering why neither of these neighborhoods seems to be going anywhere. Lawrenceville wasn't exactly inconvenient, but proximity was probably the least favorable factor on the list, and when that was improved with direct bus service to Oakland it only accelerated the neighborhood's rise. The three neighborhoods we discussed today, while all gentrified to some degree, illustrate what happens when some of these factors are present but not others. Bloomfield had low crime, hipsters, a functional business district, white population, and proximity to Oakland, but few vacant storefronts, modest housing stock, no room for additional development, no artist presence, and no spillover effect from desirable areas. Friendship had low crime, decent proximity to Oakland, decent proximity to desirable areas (Shadyside, in its case), and highly desirable housing stock, but no business district to speak of, and no developable land. Garfield had developable land, plenty of vacant storefronts, and an artist presence, but had a high crime rate, minimal white population, minimal hipster population, few functional businesses, mediocre housing stock, mediocre proximity to Downtown or Oakland, and mediocre proximity to desirable areas.
What changed? Time and spillover. Bloomfield blends almost seamlessly into Lower Lawrenceville, so it was a natural next step, and with time, some gentrified businesses were able to move in. Friendship uses the Bloomfield business district and has better housing, so it was an obvious location as well. Garfield, well, had the most going against it, and still does, but now exists as sort of a "donut hole" in the East End, and while progress has been slow, it's only a matter of time before it booms again, even if the boom is more muted than in other places. So proximity ultimately matters, but not proximity to centers of business and culture, proximity to other gentrified neighborhoods. What people get wrong about proximity to Downtown and Oakland is that people don't want to live in either of those places. Sure, Downtown apartments are expensive, but they're decidedly for the kind of person who wouldn't mind living in Manhattan. People go Downtown because they have to, not because they want to. And Oakland has many cultural treasures, but unless you're in college, not the kind of treasures you need daily access to. Sure, people want to live close to work, but suburbanization proved that proximity to employment is not the primary motivation in the age of the automobile.
As a final disclaimer, don't take any of these conclusions too seriously. While I thought about these factors quite a bit over the past several weeks, I only arrived at the conclusion as I was writing this. This series is a constant work in progress, but so are cities, and it seems like that's a good thing. Next time I'm going to come full circle on gentrification and talk about East Liberty. This is a very different kind of gentrification than what we've talked about so far, and the importance of the neighborhood combined with its history being a veritable cornucopia of all the things urbanists like to talk about makes it another Big One that merits its own entry. Now that this series is finally taking shape after two years, I can give you a preview for the rest of the East End. I got lucky in the sense that the neighborhoods form convenient clusters both geographically and spatially, which eases the roadmap. After East Liberty I plan on discussing the upscale neighborhoods of Shadyside, Squirrel Hill, and Point Breeze. Then it will be the East Liberty "suburbs" of Highland Park, Morningside, and Stanton Heights. Next will be the ghettos of the city's northeastern corner: Homewood, Larimer, East Hills, and Lincoln-Lemmington. We'll round out the East End by looking at a grab-bag of oddball neighborhoods to the south: Greenfield, Hazelwood, The Run, and Swisshelm Park. Actually, I lied; we won't be rounding out the East End. I'm saving Regent Square for something special. Anyway, this is a tentative plan, and is subject to change when I find myself writing 10,000 words on a little-known redevelopment plan in Duck Hollow that I found in the URA archives, but I wanted to reassure both of my readers that I intend on moving forward.
Bonus Content
Since nobody got the Easter Egg from the last installment (possibly because nobody clicks the links), the street from the COPS clip with the dispute among the kids was the same one I used to demonstrate the built form of Lower Lawrenceville below Butler. I wonder what happened to those people and if they saw any benefit from the neighborhood's improvement. In any event, I think it's safe to say that they don't live there anymore.
This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
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Shaming.
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Attempting to 'build consensus' or enforce ideological conformity.
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Making sweeping generalizations to vilify a group you dislike.
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Recruiting for a cause.
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Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
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Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
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Be as precise and charitable as you can. Don't paraphrase unflatteringly.
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Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.