Y’all, the preorder links for The Political Supreme Court are here!
Direct from UNC Press: uncpress.org/978146969713...
Bookshop: bookshop.org/p/books/the-...
Amazon: a.co/d/08lXOMa7
Barnes & Noble: www.barnesandnoble.com/w/the-politi...
U.S. citizenship isn’t always a good thing, actually.
Historically, Indigenous nations and other colonized people fought to not be U.S. citizens. This might seem confusing at first, but they had their reasons.
New Duke Law Journal symposium on history & constitutional law co-edited with Joseph Blocher & Tim Lovelace, hosted with @bolchjudicial.bsky.social: dlj.law.duke.edu/current-issue/, pieces by Karen Tani, Christine Hammock Jones & Darrell Miller, Jake McAullife, Daniel Rice, Saul Cornell
plot twist: the Easter Bunny is Filipino and has been saving this up for a century and change
you may not like it but this is what peak performance looks like
Forgive my oversight, that must have been the part of the statute that incorporated by inference Roman law. The same part that made Native peoples not domiciled in 1868 but domiciled today, all while remaining religiously faithful to Founding intent.
It doesn't matter here what the Founders intended when it comes to citizenship by birth in Guam, nor is this a matter for the Supreme Court: Congress intended birthright citizenship in Guam in 1950, when it passed the statute granting U.S. citizenship to all babies born there.
This OLC opinion declaring the Presidential Records Act invalid makes a number of astonishing claims, including that retention of presidential records serves no valid legislative purpose. . . . www.justice.gov/olc/media/14...
This essay, published amidst the birthright citizenship flurry yesterday, by Hajyahia & Zhao is so important-a deep dive into the colonial tariffs of the Jones Act (governing Hawai'i, Puerto Rico, and Alaska) and recent constitutional challenges to the statute. lpeproject.org/blog/a-centu...
Book cover for Rachel A. Shelden, The Political Supreme Court: A Forgotten History
Not sure whether this is apt or terrible timing but here’s the official cover of my book due out with @uncpress.bsky.social W. Hodding Carter III imprint this fall. 🎉
This is true. But it's important to add that people born here are also citizens because of federal law! The same Congress that wrote the Fourteenth Amendment also wrote birthright citizenship into law. Congress has extended birthright citizenship since then. Trump's EO violates these laws too.
Thank you Maggie Blackhawk! Cherokee Nation sent delegates to DC throughout the post-Civil War period to object to efforts to include them through territorial and statehood efforts BECAUSE they were citizens of the Cherokee Nation.
Read this. I'm getting stressed by the number of people interpreting Gorsuch's question as "ah-ha, so you'd can't instantly explain how Native folks are citizens!" as opposed to what it actually is, "ah-ha, so you're doing the opposite of originalism by inflicting citizenship on Native folks!"
A photo with Aumua Amata Radewagen, the member of Congress that represents American Samoa as a non-voting delegate in the House of Representatives.
American Samoa has opposed U.S. birthright citizenship since 1900, and remains the only U.S. territory without citizenship by statute. Its non-voting delegate, Rep. Radewagen, supports “U.S. national” status. Citizenship could fortify equal protection challenges to A. Samoa’s traditional government.
Friends, Native people are, indeed, Native to this land. But they were not Native to the United States. We all need to, somehow, collectively unpack the presumption that the U.S. is (and has ever been) the only instantiation of "this land." There were, and are, many other governments here.
And I reiterate: teach tribal sovereignty
The issue is complex to start and even more complex at the level of each Indigenous nation with overlays of treaties, statutes, and court orders conveying citizenship depending on each Indian and each Tribal Nation.
Now imagine that same question after 250 years of occupation. We cannot presume that the answer to this constitutional question is easy. We cannot presume that we have never occupied another territory and governed by force. That presumption is causing problems within for the very people we occupied.
No doubt this issue is controversial. But important aspects of this normative and constitutional debate are lost: if the U.S. invaded Greenland or Canada tomorrow, would residents of those areas want citizenship? Some might, to prevent despotism of the invader; some might not. Its complicated.
The common reaction is often: this is America, of course Native Americans have U.S. citizenship. But that reaction overlooks the existence of Native nations governing "America" and tribal citizenship. We cannot presume that everyone over whom the U.S. has extended its power wants U.S. citizenship.
Friends, again with respect because this is a complex issue: children born to citizens of tribal governments do not have constitutional birthright citizenship under many, if not most forms of constitutional argument and authority (incl. Supreme Court precedent relied upon in this case)./1
After years of research, Daphna Renan & I are thrilled to announce preorders of SUPREMACY. Why is US democracy so broken? One reason is we've wrongly accepted that 9 justices have the final say over the Constitution. This book traces how that happened—& how we can reclaim power to govern ourselves.
American exceptionalism and the Cold War Era generally meant that the national narrative closed over the course of the twentieth century (rather than opened, as your comment suggests). With respect to Native people and their relevance to the United States, the national narrative is quite narrow.
The core problem is that most judges—and much of the public—have been taught an inaccurate or incomplete version of U.S. history, particularly when it comes to Native peoples and the nature of American expansion. To tell the full story would require correcting vast parts of the national narrative.
Our work on amicus briefs faces the constraint of legal relevance. The core problem is that most judges—and much of the public—have been taught an inaccurate or incomplete version of U.S. history, particularly when it comes to Native peoples and the nature of American expansion. To tell the full story would require correcting vast parts of the national narrative. And, even then, the legal system is ill equipped to hear that history. The United States has no legal framework that recognizes colonialism as a constitutional harm. Dispossession, forced governance, and the denial of self-determination are not, in themselves, legally cognizable. Instead, legal claims must be routed through recognized legal vehicles like treaty violations or the federal trust responsibility. These are connected to colonialism, but they don’t name it directly because in the eyes of the law, colonialism itself is not the problem. Because U.S. law does not acknowledge American colonialism or its harms as legally cognizable wrongs, litigation largely avoids the subject. As a result, amicus briefs—bound by relevance requirements—rarely engage with these histories. This disconnect distorts litigation in areas like federal Indian law and territorial law that address modern American colonies that are still subject to ongoing colonial administration. In Aurelius v. Puerto Rico, for instance, the real issue for many Puerto Ricans was colonial subjugation and the lack of meaningful self-governance. But the legal argument had to hinge on whether the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) oversight board complied with the Appointments Clause of the Constitution. The deeper political and historical realities were rendered irrelevant—not because they didn’t matter, but because the law doesn’t know how to recognize them. We have made efforts to incorporate historical correctives into historians’ briefs. But the constraints are real: limited word counts, and the need to a…
This disconnect distorts litigation in areas like federal Indian law and territorial law that address modern American colonies that are still subject to ongoing colonial administration. In Aurelius v. Puerto Rico, for instance, the real issue for many Puerto Ricans was colonial subjugation and the lack of meaningful self-governance. But the legal argument had to hinge on whether the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) oversight board complied with the Appointments Clause of the Constitution. The deeper political and historical realities were rendered irrelevant—not because they didn’t matter, but because the law doesn’t know how to recognize them. We have made efforts to incorporate historical correctives into historians’ briefs. But the constraints are real: limited word counts, and the need to address legally salient topics with depth and rigor ensure that histories of American colonialism are left on the cutting room floor. These narratives often don’t make it into the brief—not because they are untrue, but because the legal framework has no place for them (and the judges might find these histories unpersuasive). That task, then, falls back to academic writing: to lay bare the falsehood, or lie, that American colonialism is irrelevant to present-day legal disputes, and to insist on its historical and ongoing significance—even when the courts may be unwilling to hear it. It’s not hopeless! We continue to be impressed at the centrality of historical inquiry to the federal courts and, at times, the nimbleness of judges to evaluate and be persuaded by cutting-edge historical claims. Our hope is that the chasm between what is “relevant” for amicus briefs and what can be written in academic scholarship will close over time.
A timely and vital Q&A on Historian's briefs before the Supreme Court in Modern American History. Explores the difference between "law office history" and the requirement of "relevance" in amicus briefs, and how relevance often limits the ability of briefs to lay bare societal myths and falsehoods.
Feel free to make fun of Markwayne Mullin all you want, but don’t do it like this. www.instagram.com/reel/DWe2Z_E...
I understand that we often push these ideas to the periphery because they challenge our simple myths about the United States and its Constitution. But I will continue to argue that they are peripheral only because our constitutional culture is far too narrow and incomplete.
(Yes, the Virgin Islands contained "Epstein Island" and the files exposed how Epstein was paying tuition for children of the U.S. colonial government to attend school.) And American Samoa has been defending its traditional forms of government against equal protection challenges for years.
Tensions between citizenship in the territories and self-determination, primarily through equal protection challenges, are not speculative: The U.S. Virgin Islands has no constitution, because Congress rejected their proposed constitutions as violating the equal protection in the U.S. Constitution.