WE HAVE NEVER BEEN LIBERAL: LEGAL RHETORIC AND THE POLITICS OF CITIZENSHIP AFTER RECONSTRUCTION Margaret E. Franz A dissertation submitted to the faculty at the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of Communication. Chapel Hill 2019 Approved by: Timothy Barouch Brandon Bayne Christian O. Lundberg Kumarini Silva Eric King Watts 1 © 2019 Margaret E. Franz ALL RIGHTS RESERVED 2 ABSTRACT Margaret E. Franz: We Have Never Been Liberal: Legal Rhetoric and the Politics of Citizenship after Reconstruction (Under the direction of Christian O. Lundberg) I map a rhetorical history of controversy over birthright citizenship in order to study the conditions of legal judgement and argument perpetuating racially-marked alien citizenship after the ratification of the 14th amendment. I examine four interconnected moments of struggle over the meaning of the 14th amendment: (1) the Congressional debate over how to write the citizenship clause in 1866 to ensure the exclusion of indigenous peoples; (2) the judicial debate between political and territorial jurisdiction in Elk v. Wilkins (1884) and US v. Wong Kim Ark (1898); (3) the political and legal debates over whether indigenous peoples are US citizens by birthright in the early 20th century; (4) and the political and legal debates over whether Congress has the power to (non)consensually denationalize US citizens, such as in Hamdi v Rumsfeld (2004). The case studies demonstrate that the topos of jurisdiction fosters a flexible mode of exclusion within birthright citizenship. In turn, state actors have interpreted jurisdiction in ways that square political and racial interests with the inclusive liberal language of the law. However, because jurisdiction is both tropological and physical, its rhetorical and material afterlives have been taken up by the communities marginalized by citizenship law’s exclusions in order to move citizenship law towards para-doxa, or towards counter-hegemonic legal interpretations. 3 Connecting the topos of jurisdiction to the core tenets of liberalism—impersonality and consent—the case studies show how the afterlives of “subject to jurisdiction” functioned as sites of managing both the racial identity of citizenship and the writing of the state’s legitimacy to define citizenship in the first place. To conclude, I argue that we have never been liberal; citizenship law is not the product of already-existing liberal commitments. Rather, it is a product of liberalism’s attempts to manage anxieties rooted in impersonality and consent, especially when embodied by racially marginalized peoples. Changing the scholarly perspective on liberal citizenship status clarifies how liberalism’s residual rhetorics have empirically been taken up, delinked, and made new. 4 ACKNOWLEDGEMENTS I could not have completed this dissertation without the intellectual guidance of my advisor Chris Lundberg and from committee members Kumi Silva, Eric Watts, Tim Barouch, and Brandon Bayne. Chris taught me everything I know about rhetoric and its implications for political and legal theory. Kumi taught me everything I know about identity, racialization, and most of all, how to be an academic and a colleague. Eric taught me about zombies, racial tropes, and theories of the (anti) social. Tim taught me about how to do critical legal studies from a rhetorical perspective, and Brandon introduced me to crucial work troubling the conventional North-South borderlands of Reconstruction-era United States. I also benefitted immensely from the classes I took in the department of communication: from the seminar on Kenneth Burke with Bill Balthrop, to the practicum on rhetorical criticism with Carole Blair, to the introduction to “communication theory” with Larry Grossberg, to technology and culture classes with Ken Hillis and Sarah Sharma. Torin Monahan has especially been a wonderful mentor, supervisor, and teacher. I could not have gotten a job without Torin’s professional development class or his helpful and critical advice. My work has also greatly benefitted from participating in the American Indian and Indigenous Studies colloquiums led by Dan Cobb and Keith Richotte, Jr. I’d also like to thank my academic family at Georgia State University who taught me everything I know about critical race theory and feminism. Thank you, Amira Jarmakani, Susan Talburt, Juliana Kubala, Megan Sinnott, Sherah Faulkner, Andrea Miller, Taryn Jordan, Dylan Rocket, and Tahereh Aghdasifar. 5 I could also not have completed this dissertation without the collegiality and intellectual support from fellow (current and former) graduate students in the department of communication. Whether listening to every one troll each other in seminar to slightly-tipsy debates over the compatibility of Deleuze and Lacan, I learned so much from my peers. I’m especially thankful to Erin Arizzi, Emily Brennan Moran, Daniel Coleman, Chris Dahlie, Andrew Davis, Mary Domenico, Amy Fallah, Blake Faulkner, Eileen Hammond, Carolyn Hardin, Evan Litwack, Ashley Mathias, Calum Matheson, Robert McDonald, Alex McVey, Keiko Nishimura, Will Partin, Adam Rottinghaus, Susan Ryan, Armond Townes, Megan Wood Gillette, Heather Woods, and Kurt Zemlicka. Elizabeth Melton helped me save money by letting me live on her couch. I may not have convinced her to like cats but I did convince her that roommates are not so bad. On top of always being down to gossip, Lucy Burgchardt and Zac Parker both read crappy first drafts of my chapters and still wanted to talk to me afterwards. I’m so glad Lucy invited me to Chipotle that one time in 2013. We’ve been confidants ever since. My parents, Jim and Kai, have also always supported my long and winding trip down the rabbit hole of graduate school. Thanks for feeding me and always letting me come home and watch Project Runway when things got tough in Chapel Hill. My sister Joanna has also been a constant source of intellectual and emotional support. She taught me how to persevere and how to keep a dark sense of humor while doing so. Ariana Vigil’s house in Carrboro was my first home at UNC and it’s where I return to gain inspiration and support. Thanks for always being there and for letting me pet Macanudo from time to time. I’d also like to give a million thanks to Luis. Thank you for making me think about (and talk about) everything from zelda strategy, to the funding of the NIH, to dual power. Also, thank you for introducing to All the Mornings in the 6 World, which is the best movie ever. I’m so proud of you and I’m so glad that we were able to support each other this year with rotisserie chicken and la que se avecina. Los babies lo lograron! 7 TABLE OF CONTENTS CHAPTER 1: ALIEN AND CITIZEN ...................................................................................................... 10 The Caravan............................................................................................................................................ 11 Racialization, Psychoanalysis, and Liberal Paradox ............................................................................. 16 Chapter Overview ................................................................................................................................... 30 CHAPTER 2: THE PARADOX OF JURISDICTION AFTER RECONSTRUCTION ............................. 37 The Problem of the 14th Amendment ....................................................................................................... 37 Citizenship, Doxa, and Liberalism’s Para-doxa ..................................................................................... 41 Jurisdiction as Site of Liberal Citizenship’s Paradoxes ......................................................................... 52 The Social (After)Life of Jurisdiction ...................................................................................................... 67 CHAPTER THREE: DECIDING JURISDICTION IN ELK V WILKINS (1884) AND US V WONG KIM ARK (1898) ................................................................................................................................................. 70 The Jurisprudence of Elk v. Wilkins (1884): The Soil Is Not Enough .................................................... 75 The Jurisdiction of United States v. Wong Kim Ark (1898): On Nomos and the National Real ............ 89 Subject to the Jurisdiction Thereof: Lex(is) or Nomos? ...................................................................... 102 CHAPTER FOUR: BREAKING THE CONTRACT OF JURISDICTION IN THE INDIAN CITIZENSHIP ACT (1924) ...................................................................................................................... 104 Incompetence as Threshold to Political Jurisdiction ............................................................................ 108 8 Breaking with Incompetence in Progressive Pro-Citizenship Activism ................................................ 118 Breaking with Incompetence in Anti-Citizenship Activism ................................................................... 135 Facing the Anxiety of Liberalism: Tragedy and Legal Rhetoric ........................................................... 152 CHAPTER FIVE: CAN THE CITIZEN SPEAK? JUDGING CONSENT IN EXPATRIATION LAW 161 Chiasmus: Writing the Sovereign Citizen ............................................................................................. 168 From Intent to Assent: Recognition and Consent in Vance v