american creed and identity

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Western Political Science Association

The "American Creed" and American Identity: The Limits of Liberal Citizenship in the UnitedStatesAuthor(s): Rogers M. SmithSource: The Western Political Quarterly, Vol. 41, No. 2 (Jun., 1988), pp. 225-251Published by: University of Utah on behalf of the Western Political Science AssociationStable URL: http://www.jstor.org/stable/448536 .

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THE "AMERICAN CREED" AND AMERICAN IDENTITY: THE LIMITS OF LIBERAL CITIZENSHIP IN

THE UNITED STATES ROGERS M. SMITH

Yale University

IN 1915, President Woodrow Wilson told a group of newly naturalized citizens that they had just sworn allegiance "to no one," only to "a great ideal, to a great body of principles, to a great hope of the

human race" (Harrington 1980: 678). The view of American citizenship Wilson thus expressed has a distinguished historic lineage, recently reaffirmed by Samuel P. Huntington. In American Politics: The Promise of Disharmony, he maintains that for most nations, "national identity is the product of a long process of historical evolution involving common ancestors, common experiences, common ethnic background, common language, common culture, and usually common religion."' But citing an impressive list of authorities, Huntington argues that the United States is different. American civic identity has been based on "political ideas," on shared allegiance to the "American Creed" of liberal democracy (Huntington 1981: 23).

Huntington, like most of his authorities, also implies that this is more or less the way it should be.2 He believes that whenever the United States becomes severely divided, the nation's liberal democratic ideals serve to restore unity more inclusively than a focus on common ancestors, language, or religion would permit (1981: 230-31). Many past and present critics of liberalism agree with Huntington that American political culture is overwhelmingly liberal, but they dispute his normative judgment. They contend that a public philosophy and public law which strive to rest national political identity simply on acceptance of liberal principles reflect a thin, one-sided conception of the human personality. Liberal pol-

Received: April 1, 1987 First Revision Received: July 31, 1987 Accepted for Publication: August 12, 1987 l The original "old nations" of Europe, such as England, France, and Spain, evolved slowly

as Huntington suggests, accompanying the rise of centralized monarchical states. But the literature on nationalism indicates that in fact most contemporary nationalities have been self-consciously fostered since the late eighteenth century by elites leading revolutionary movements or building new nation-states (Seton-Watson 1977: 6-9; Anderson 1983: 48, 65, 70-73, 102-04; Gellner 1983: 18, 34, 49, 55-57). The present essay may properly be seen as a study of the partly conflicting conceptions of American identity that diverse elites have struggled to promote historically through the laws of citizenship of the "first new nation."

2 Huntington notes that from "Crevecoeur to Tocqueville to Bryce to Brogan to Myrdal, foreign as well as domestic observers have singled out this striking phenomenon" (1981: 24). Other advocates of this view include Kohn 1957: 8-9; Schaar 1957: 184; Gleason 1980: 58-60; Harrington 1980: 678; Lane 1985: 25.



226 Western Political Quarterly

ities like the United States therefore fail in practice to meet needs for a strong, realistic, and satisfying sense of political community and common identity (MacIntyre 1981: 202-05, 233, 236; Sandel 1982: 147-54; 1984: 90-91; Sullivan 1982: 14-15; Bellah et al. 1985: 154-55).

These critics have a point, though not quite the one they conceive. While in comparative perspective the United States is a predominantly liberal society, its political system has never been as fully liberal as the critics, like Huntington, presume - in large part because American law- makers have often decided that liberal ideals did not respond adequately to the problems of community identity their society faced. Huntington's assertion that American identity involves only adherence to the "Ameri- can Creed," either as a matter of law or of social psychology, is at best a half-truth. If it were so, this conception of American nationality should be clearly embodied in the nation's laws governing citizenship. We would expect the United States to require from prospective citizens only the profession of allegiance to liberal democratic doctrines Wilson referred to, as well as, perhaps, a showing that they will not burden the community unduly.

Instead, a cursory review of the nation's historic laws of citizenship indicates that many qualities Huntington holds not to be definitive of American nationality have often been requirements to become a full American citizen. Place of birth, ethnicity, gender, special skills, and willingness to subscribe to political propositions much more exacting than those of the "American Creed" - all have figured prominently in America's immigration and naturalization laws. Wilson himself, for example, supported harsh policies of "100% Americanism" and continued exclusion of Asiatics from citizenship in the latter years of World War I (Higham 1966: 210, 230; Cronon 1965: 232).

Over time, the more extreme violations of liberal ideals in America's civic laws have been altered. But this movement in liberal directions has hardly been steady or unbroken. Indeed, in some periods liberalism has seemed obsolete; and its great successes since World War II have not been complete nor wholly immune to reversals. The historic pattern of recur- ring restrictions and exclusions raises two questions. First, why has commitment to the "American Creed" so frequently not been enough to define eligibility for full membership in the American political community? Second, how have the other, often anti-creedal requirements for citizenship been defended historically?

Huntington's answer presumably would be that these legal requirements are examples of the "Ideals v. Institutions" gap. Due to the un- realizable nature of American values, he maintains, there is always a gulf between these principles and the practices of American institutions (1981: 39-42). Huntington would reject any notion that Americans might view such practices as genuinely legitimate according to non-creedal political beliefs, for he denies that clashes of "idea versus idea" ever play much role in American politics (1981: 32).

This essay challenges that response by exploring how America's governors actually defended these laws of citizenship. It argues that, at least



The "American Creed" and American Identity 227

in the nineteenth century, the nation's policy-makers justified major devi- ations from a purely "ideational" basis for political membership through appeal to political "persuasions" that offered visions of civic community in America which differed importantly from a purely liberal one.3 Those perspectives, republicanism and ethnocultural Americanism, each claimed that successful polities had to be bound together by factors beyond and other than shared political ideas - including the qualities of ethnic homogeneity and common cultural backgrounds that Huntington treats as alien to American national identity. Their alternative notions of American identity and community should not be dismissed as window- dressing, used to rationalize measures demanded by "practical" needs.4 The fact that American authorities explicitly and repeatedly rejected liberal arguments and instead defined American citizenship in law through these other conceptions indicates powerfully that they granted these views significant legitimacy.

Thus "idea v. idea" clashes did occur on the basic issue of how the community's membership would be constituted. The success of these non- liberal ideals also supplies evidence that, as liberalism's current critics suggest, America's liberal democratic values have in some ways been even more "impractical" than Huntington recognizes. In past times of great economic and social change, the most influential segments of the Ameri- can populace have not felt they could meet their longings for a secure sense of civic identity and for protection of the existing social order by uniting around the "American Creed." Instead, they have established and sometimes later reestablished civic laws based on non-liberal ideals.

While Huntington slights these alternative, more communitarian conceptions of American identity, many contemporary critics of liberalism call for their rediscovery and renewal in some form (Sullivan 1982: 180, 189; Fraser 1984: 51; Geise 1984: 42; Bellah et al. 1985: 281-83). Gener- ally, however, these writers have not paid detailed attention to the role the ideals they invoke actually played in the nation's past political and

31 should stress that my concern is the ideas, values, and justifications employed by America's governing elites to defend American policies, to each other and to the public at large. My purpose is neither to dissect great formal philosophies - though I refer to theorists commonly invoked in American legal and political discourse - nor to document mass opinion, although elite justifications undoubtedly mirror and influence popular attitudes to some extent. My subject may therefore perhaps best be described as elite "persuasions," as Marvin Meyers defined that term in his study of the Jacksonian outlook: a persuasion is "a matched set of attitudes, beliefs, projected actions: a half- formulated moral perspective involving emotional commitment" (Meyers 1960: 10). Or, if we recognize that the elites examined here usually commanded larger or smaller political constituencies, the object of study can be termed "ideologies," using the meaning of that word laid out by John Higham, following Clifford Geertz: ideologies are "explicit systems of general beliefs that give large bodies of people a common identity and purpose, a common program of action, and a standard for self criticism" (Higham 1974: 10; cf. Howe 1979: 2-3).

4 It is in fact questionable whether measures such as racially restrictive naturalization policies, ethnically and geographically discriminatory immigration quotas, and various forms of second-class citizenship were ultimately very "practical" for more than a few of those supporting them.




legal debates. This failing is a crucial one, for the actions that America's governors have justified via these non-liberal ideals have frequently been disturbing. Community has often been pursued only through harsh exclusions and inequalities.

These historic shortcomings of older liberal and non-liberal conceptions of American identity have contemporary relevance. They suggest that if the United States strives today to rest American citizenship solely on adherence to liberal principles, as many liberal theorists and policy analysts still advocate (Ackerman 1980: 11, 88; Beitz 1983: 596; Nickel 1983: 31-43; Lane 1985: 25), it may fail to respond to desires and, indeed, moral claims for community solidarity that have always been potent in American politics. Yet if America departs from liberal principles and instead takes its bearings from its more communitarian traditions, it risks encouraging impulses that have led to some of the nation's ugli- est abuses. Thus Americans face a demanding task. If they are to move beyond the multiple conceptions of their citizenship that still compete in American political thought, they must seek a view that is more respon- sive than traditional liberal ones to the felt needs and anxieties of the existing citizenry, especially in times of change. But they must do so without sacrificing their greatest professed commitments, to liberty and justice for all.

This essay supports these points first by sketching how these three conceptions were manifested in nineteenth-century American public law; and then by analyzing in more detail two representative and historically significant examples of how Americans defended restrictive membership laws in that era. Because the language of Supreme Court decisions is strong evidence of the justifications regarded as publicly authoritative by, at least, America's governing elites, the essay considers how the judiciary upheld denying eligibility for full public privileges to female citizens, and denying eligibility for membership at all to Chinese immigrants. Repeatedly, the Court justified restrictive measures - against explicit challenges from liberal precepts - by appealing to ideas drawn from republican and ethnocultural definitions of American citizenship. For brevity, I will illus- trate this claim chiefly with two landmark cases: Bradwell v. Illinois (1872), as illuminated by the preceding Slaughter-House Cases, and Chae Chan Ping v. U.S. (the Chinese Exclusion Case, 1889). First, however, the historic traditions of discourse employed in these cases must be described.

THREE CONCEPTIONS OF AMERICAN IDENTITY

While an oversimplification, it is useful to organize the debates over American citizenship laws from the founding until at least the Progres- sive Era largely in terms of three related but distinct notions of American identity, drawn from the intertwined but analytically distinguishable persuasions or ideologies I have mentioned: liberalism, republicanism, and ethnocultural Americanism (which, at its extreme, is nativism). To be sure, these three civic conceptions have almost always appeared in combina-




tions, they have many historical variants, and other notions have also been present at times.5 The language of major constitutional decisions provides evidence, however, that these three views of American identity are ascertainable in the legal and political arguments of American decision-makers. By extracting from such discourse an "ideal type" of each position and then considering the role these ideals have played in defending specific measures, we can illuminate the contrasting core notions of American identity that the nation's traditions present us. That task may be of more significance for contemporary political analysis and normative argument than rehearsal of the past in full, untamed detail. First, then, some definitions.

Liberalism Liberalism is properly identified with the emancipating aspirations of

the Enlightenment and its concerns for universal human rights, religious toleration, the promotion of commerce and the sciences, and rejection of the theocratic and martial medieval ethos. It found expression in the political agenda of the lower gentry and middle classes in England and America, who fought from the seventeenth century on against restrictive medieval economic and political prerogatives and against repressive religious and intellectual orthodoxies. Its classic exposition remains the moderate Whig theorizing of John Locke, if we consider his writings as a whole, and if we recognize him as a publicist shaping literate opinion as well as a philosophic system-builder.

The distinctive feature of this moderate liberal persuasion is its insistence that the state must permit private as well as public pursuits of individual happiness, and must therefore be limited to enforcing personal rights and promoting external goods thought to benefit all. Viewing men as naturally "free, equal and independent," Locke says they create governments via social compacts only "for the mutual preservation of their Lives, Liberties and Estates" (Locke 1965: secs. 95, 123: 374, 395). In the course of their movement toward Revolution, Americans shifted from assertions of their legal rights as Englishmen to reliance on these Lock- ean notions of consensual government and natural rights (Bailyn 1967: 184-94). The culmination of this process, the Declaration of Independ- ence, holds that all men are created equal and that governments are created to secure inalienable rights to life, liberty, and the pursuit of happiness. These liberal ideals have one inestimable value: they can be employed to claim basic rights universally, for every human being, black

5 The "American Creed" Huntington describes, for example, has elements of all three traditions. As Huntington states, he still follows Hartz in seeing its liberal elements as always predominant and fundamental (Huntington 1981: 16, 29, 33). I would argue instead that, whatever is true of American politics more broadly, various combinations of "liberal republicanism" dominated American citizenship laws up to the 1870s. Then a "republican nativist" mix became more prominent, as shown by the cases discussed here. As noted in the conclusion, the predominance of republican nativism only increased through the 1920s and survived until the 1950s, when contemporary liberal ideas gained greater sway.




or white, female or male, alien or citizen (though Locke himself did not always do so). Enlightenment liberalism's "natural" rights were fairly min- imal: they did not include rights to any specific political membership, much less enfranchisement. They were nonetheless more than trivial, for they were and are often violated.

From the standpoint of maintaining a viable political community, however, the liberal focus on protecting the human rights of each individual - against governments, against other persons, and against non- voluntaristic social groups - has major disadvantages. The very feature that is most attractive in liberal ideology, its stress on equal concern and respect for the rights of every human being, is logically in tension with a vivid belief in the importance of one's inherited communal member- ships, including one's citizenship. The basic thrust of liberal ideas needs to be qualified or modified if they are not to be dismissive of the (often competing) claims to "natural" authority made by ethnocultural groups, gender and economic classes, smaller political communities, and the nation-state itself. Liberalism's language of rights can suggest that the calls to duty made by many associations are potential threats to personal liberty, including summons to national citizenship. Obviously, participation in and advancement of community interests might instead be thought central to liberty.

Early liberal writers like Locke typically said little about such issues. As Nathan Tarcov points out, Locke's politics did include a notion of the common good, but one that is "very individualist," very close simply to the notion of protection for individual rights to life, liberty, and property, insofar as they can be sustained without endangering the society that protects all rights in the long term (Tarcov 1983: 131, 134). Locke also routinely assumed that most people would "contract" politically into communities characterized by a common language and by common familial, geographic, and national origins (Seliger 1969: 20-21, 27; Wood 1983: 5-7, 81-82, 94-96, 137-40). But while in the Epistle Dedicatory to his Thoughts Concerning Education Locke endorsed a duty for all men to love and serve their country, he devoted no systematic attention to that theme - perhaps expecting such patriotism "to grow out of men's private attachments" (Tarcov 1983: 137). Thus early liberal thought just did not address claims about the potency of human desires (or perhaps needs) for a sense of a meaningful collective political life, or for affirma- tion of the worth of persons' distinctive communal origins. It apparently presumed that love of one's own, combined with a sense of the obliga- tions acquired via one's tacit consent to the hypothetical social contract, would foster a sense of pride and duty toward the citizen's polity. No explicit public support or legitimation of such patriotic sentiments seemed required.

Republicanism. Just as colonial Americans came to stress liberal human rights over

English legal rights, they also came to reject monarchy in favor of popular republics (Bailyn 1967: 35-36; Wood 1969: 15-17; Banning 1978:




25-62, 72-73). For many seventeenth- and eighteenth-century revolution- aries in England and America, whose pseudonyms evoked Roman republican heros such as Cato, Cicero, and Publius, republicanism represented not only a form of government but a special type of civic life. J. G. A. Pocock's much-debated but influential lineage for Atlantic republicanism connects it backwards to Machiavelli and Aristotle and ahead to Rous- seau and America's Jeffersonian and Jacksonian traditions (Pocock 1975). Many recent American critics of liberalism have identified such "civic republicanism" as an alternative, communitarian American tradition they wish to restore. In contrast to Locke's focus on liberty as freedom from state interference with individual private pursuits, the distinctive element common to the diverse strains of republican thought is an emphasis on achieving institutions and practices that make collective self-governance in pursuit of a common good possible for the community as a whole. As Lance Banning acknowledges, some scholars after Pocock exaggerated the "republican" as opposed to the "liberal" elements in American revolutionary thought. For many, republicanism was but an extension of liberal commitments to personal freedom. Even so, republican notions are capable, at least, of supporting quite non-liberal conceptions of citizenship and civic life (Pocock 1975: 4, 49-80, esp. 75; Sullivan 1982: 155-56; Appleby 1978: 937; Epstein 1984: 85-86, 107-08, 119-21; Banning 1986: 12-13).

Two aspects of republican thought on how free popular government could be sustained had special importance for America's citizenship laws: the insistence that a successful republic had to be characterized by considerable social homogeneity, and the related claim that a viable republic must have a relatively small body of citizens, bound to other peoples, if at all, via a loose confederation or imperial domination. The demand for homogeneity could be used to defend numerous ethnocentric impulses, including citizenship laws that discriminated on the basis of race, sex, religion, and national origins. The second requirement helped gener- ate and maintain America's commitment to federalism, to state and local autonomy - a commitment often used to justify national acquiescence in local inequalities.

No analysis of ancient republican institutions influenced the founders more than Montesquieu's, and the dangers of the republican emphasis on homogeneity are made evident by this moderate and tolerant writer. Montesquieu argued that citizens in classical republics had to be raised "like a single family" - with a pervasive civic education in patriotism reinforced by frequent public rites and ceremonies, censorship of dissenting ideas, preservation of a single religion if possible, limits on divi- sive and privatizing economic pursuits, and strict restraints on the addition of aliens to the citizenry (Montesquieu 1949: I. 37, I. 69, I. 96, II. 38, II. 52). Such homogeneity was thought to be necessary if citizens were to have the strong sense of fraternity needed to engender the civic virtue that Montesquieu saw as essential to a healthy classical republic. Only if citizens identified with their fellows on every level, social, cultural,




religious, ethnic, and economic as well as political, was this willingness likely to be found reliably throughout the community.

The requirement of civic homogeneity also was usually held to im- ply that the number of citizens in a republic must be small. If full republican membership were extended to great numbers in a large territory, inevitably economic differences, sectional and ethnic variations, and the sheer mass of the citizenry would shatter the requisite sense of social solidarity. This need for republics to remain small, however, clearly could be hazardous in a hostile world. Thus virtually all republican theorists accepted that a small republic could rule large numbers of non-citizens as slaves, as Sparta did (Pocock 1975: 491-92). Some, like Machiavelli, urged further an imperial policy through which martial republics could rule conquered rivals as subject peoples, not as fellow citizens. Less bel- licose writers like Montesquieu and Vattel pointed instead to the forma- tion of defensive confederations with other republican regimes. Their works advocating such arrangements were textbooks for American reflections on federalism (Montesquieu 1949: I. 126-28; Vattel 1787: 18; Ros- siter, ed. 1961: 73-76; Wood 1969: 355).

The post-Revolutionary Articles of Confederation largely embodied this sort of republican confederalism, and the extent to which the Con- stitution departed from it was controversial from the outset of the nation. Thomas Jefferson expressed a common sentiment when he insisted that the states must maintain their sovereign rights of self-governance as "the surest bulwarks against anti-republican tendencies" (efferson 1975: 293, emphasis added). National intrusion into a state's self- definition raised the spectre of an imperial government attempting to govern diverse communities simultaneously, identically, and so necessarily despotically. Thus, even after the great increase in national power during this century, the republican slogan of states' rights has consistently retained rhetorical power.

Although that rhetoric has been used to shield deplorable local abuses, in the nineteenth century, at least, republicanism also offered a view of civic membership that conveyed a more concrete sense of shared virtu- ous endeavor and of social solidarity than did liberal ideas (Meyers 1960: 17-24, 32-33; Bellah et al. 1985: 38-41). The cause of republicanism thereby provided a more obvious promise of meaningful, morally worth- while, and closely knit political communities in America. The themes of patriotism and civic virtue that were almost entirely absent from Locke's liberalism were made central in the republican conception of citizenship and community. Such patriotic sentiments have always resonated powerfully in the psyches of many Americans.

Ethnocultural Americanism It is more controversial to argue that "Americanism" - the identifi-

cation of American nationality with a particular ethnocultural identity - grew in the nineteenth century into a full-fledged civic "ideology" that sometimes rivaled the other two; but recent scholarship supports




that conclusion.6 From the revolutionary era on, many American leaders deliberately promoted the popular notion that Americans had a distinctive character, born of their freedom-loving Anglo-Saxon ancestors and heightened by the favorable conditions of the new world. This character made them the last hope to preserve human freedom once the Eng- lish had become corrupt - and it also set them above blacks and truly Native Americans, and later Mexicans, Chinese, Filipinos, and others who were labeled unfit for self-government.7

In the Jacksonian years, the scientific racialism of the "American school of ethnography" and the cultural nationalism of the European romantics gave these ideas intellectual credibility. They were subsequently reinforced by the racialist anthropology, history, and Social Darwinist sociology and political science influential in the late nineteenth and early twentieth centuries. Publicists, professors and politicians worked these ideas into a general "political ideology" of "American racial Anglo- Saxonism," to which they gave different twists as their purposes dictated. Despite those variations, by the late Jacksonian era a core set of ideas defining ethnocultural Americanism was well established in American scholarship and political rhetoric, which would repeatedly come to the fore in suitable political circumstances. As Reginald Horsman observes, it had become "unusual by the late 1840s to profess a belief in innate human equality and to challenge the idea that a superior race was about to shape the fates of other races for the future good of the world. To assert this meant challenging not only popular opinion, but also the opin-

6 Some readers have protested specifically that the ethnocultural view is more an emotional disposition, a complex of primordial loyalties and fears, than a "persuasion" like liberalism and republicanism. Perhaps; but I suspect the protest indicates only how, in post- World War II American academia, arguments for ethnocultural superiority are considered outside the range of serious discourse. Careful historians of ideas show that this contemporary boundary simply has not always applied. John Higham's classic, Strangers in the Land, documented the political and academic advocacy of a "complex" of "nativist" or "Americanist" ideas that he described as a "philosophy," as "ideological," and that he saw as altering in intensity, but not much in content, over time. Higham viewed these ideas as a minor strain in American political culture until the late nineteenth century. More recent works by George Fredrickson, Daniel Walker Howe, and Reginald Horsman show instead that scientific racialist and romantic nationalist notions had been quite fully absorbed into mainsteam American political discourse by the 1840s. Arguments for such criteria were not made covertly, or in passion, or chiefly by the uneducated. They were defended openly, coolly, seriously, and at some length by the leading statesmen and intellectuals discussed in the text, who connected them with broader world-views within which such criteria seemed to make sense. And prior to World War II doctrines of white and European ethnocultural superiority were not only intellectually respectable but politically and legally authoritative in much of western Europe as well as the United States.

7 The "ethnocultural Americanist" perspective might also be described as an "organic communitarian" outlook that stresses the "natural" or "morally constitutive" ties and the actual existential interconnectedness of those who live together in a common political and cultural territory. I use the terms "Americanism" or even "nativism," however, because they invoke the major political movements in American history that have explicitly relied on organic communitarian views to defend their preferred citizenship policies.




ion of most American intellectuals" (Higham 1966: 9-11, 38-39, 133-34, 153-57; Bailyn 1966: 66-67; Tuveson 1968: 101-22, 136-53; Fredrick- son 1971: 61, 68-102, 125-27; Howe 1979: 38-42, 86-87, 201-02; Hors- man 1984: 3-24, 139-86, 250, 298-303).

While the theoretical elaborations came later, from the outset of the nation many Americans chiefly identified membership in their political community not with freedom for personal liberal callings or republican self-governance per se, but with a whole array of particular cultural origins and customs - with northern European, if not English, ancestry; with Christianity, especially dissenting Protestantism, and its message for the world; with the white race; with patriarchal familial leadership and female domesticity; and with all the economic and social arrangements that came to be seen as the true, traditional "American way of life." Al- ready in the second Federalist paper John Jay described Americans as a providentially guided "band of brethren," "descended from the same ancestors, speaking the same language, professing the same religion, at- tached to the same principles of government, very similar in their man- ners and customs" - an account by a wealthy Anglo-Saxon Protestant that ignored the considerable ethnic, regional, religious and gender diversity Americans displayed (Rossiter ed. 1961: 38; Higham 1975: 31; Kel- ley 1979: 31-80; Wiebe 1984: 68-69).

Jay was trying to counter anti-Federalist contentions that the forma- tion of a single republic among the extensive, diverse colonies was impossible without sacrificing freedom (Storing 1981: 18-73). Thus from the outset even advocates of a large commercial nation felt compelled to concede to republicanism that free institutions required social homogeneity. They were therefore willing to equate American identity with the country's predominant, but still particular, Anglo-Saxon, Prot- estant, northern European heritage. For the ethnocentricist, this ethnocultural tradition is at the heart of what it means to be an American; and so not only dissident political beliefs but also unconventional cultural and social pursuits can properly be castigated as "un-American activities" (Higham 1966; Schaar 1957: 85-99, 131-50; Wiebe 1967: 56-63).

In the early years of the Republic, however, most respectable Ameri- can intellectuals endorsed the Enlightenment doctrines of human moral equality, with environmentally induced racial differences, expressed in Princeton President Samuel S. Smith's Essay on the Causes of the Vari- ety of Complexion and Figure in the Human Species. In practice, those views were not shared by many Americans who strove to dominate blacks and Native Americans. But only in the turbulent late Jacksonian period, marked by new immigration, Indian removal, westward expansion, the Mexican War, and further polarization over slavery, did American elites elaborate overtly racialist doctrines (Wood 1969: 120; Fredrickson 1971: 71-72; Horsman 1981: 98-103).

Jacksonian Democrats were particularly attracted to the scientific support of racial inequalities provided by the American school of ethnography, stemming from Philadelphia physician Samuel G. Morton's Crania Americana and popularized by pseudo-scientists like the phrenologist




Dr. Charles Caldwell and the self-proclaimed "niggerologist," Dr. Josiah Nott. As disseminated by widely read Jacksonian periodicals such as the Democratic Review, these racialist theories supported what George Fredrickson calls the Democratic "public ideology" of "Herrenvolk egalitarianism," justifying democracy for whites and their dominance over non-whites. Subsequently, expansionists like Sam Houston and Polk's mili- tant Secretary of State, Robert J. Walker, narrowed this racialist ideology to include only Anglo-Saxon whites in order to justify aggression against Mexicans (Fredrickson 1971: 61-68, 71-77, 92-93, 102; Howe 1979: 140; Horsman 1981: 108-10, 130-49, 208-09, 213-26, 235).

Whigs, too, altered the Enlightenment liberal doctrines they inherited, but they relied on the ideas of German and English romantic historians and novelists to describe group differences in terms of a more cultural organicism. They defined American identity by appeal to histories that glorified the rise of "Anglo-American Protestantism," a formula that made specific ethnic as well as religious features constitutive of "Americanism." Whigs traced the nation's birth far more to the Pilgrim founding than to the Revolution, and they identified its ultimate meaning more with the "redeemer nation" than with a Lockean regime of property rights (though they firmly endorsed such rights). Unsurprisingly, the Whigs found the romantic conceptions of unique, historically rooted national identities in the writings of the German-American scholar Francis Lieber and English authors such as Thomas Carlyle and Sir Walter Scott to be eminently congenial. Their appeal was augmented by the willingness of many German and English romantics to link Tacitus' portrait of freedom- loving ancient Germanic tribes with the mythical old Anglo-Saxon constitution of liberty, both parts of a world history that demonstrated the innate propensity for freedom of the Teutonically derived Anglo-Saxon race. That history was easily combined with Protestant beliefs in the special mission of America to be modern history's leading exemplar of religious and civil liberty. For some Whigs, like Daniel Webster and Abraham Lincoln, this romantic "Protestant Americanist" nationalism was com- patible with extensive assimilation of ethnocultural outsiders. Others, more pessimistic, supported nativist movements to shut the doors to strangers. Both groups, however, believed with most Jacksonians that the ethnocultural hegemony of Anglo-Saxon whites should be preserved (Tuveson 1968: 165-75; Fredrickson 1971: 2, 97-101, 125; Howe 1979: 38-39, 69-70, 81-83, 140-41, 202, 227-37, 295-96; Horsman 1981: 38-40, 65, 81-83, 158-86, 227-45; Wiebe 1984: 321-22, 346-47).

In the late nineteenth and early twentieth centuries, Morton's ethno- graphic insistence on the separate origins of the races was shattered by Darwinian evolutionary theory. Older-stock Americans, however, felt theatened anew by immigrants from Southern Europe and China and the disruptive effects of industrialization, urbanization, and economic integra- tion. They found intellectual spokesmen in various disciplines who mixed romantic beliefs in the cultural superiority of Anglo-Saxons with Darwin- ian notions of group survival in the struggle for existence, all in the service of ethnocentric citizenship "reforms." Nathaniel Shaler, head of




Harvard's Lawrence Scientific School; M.I.T. economist Francis A. Walker; Columbia's influential Hegelian political scientist, John W. Burgess; and Senator Henry Cabot Lodge used such arguments to propose immigration restrictions. The Rev. Josiah Strong had already provided an im- mensely popular case for such measures in his 1885 work, Our Country. Later, the patrician Madison Grant would draw on the racial anthropology of De Gobineau and William Ripley to make another influential appeal in his 1916 philippic, The Passing of the Great Race. Nativist progressive intellectuals like the sociologist Edward A. Ross and the economist John R. Commons also endorsed restrictive policies, sounding a theme already popular in the 1840s - that the egalitarianism of the Decla- ration of Independence was scientifically obsolete (Arieli 1964: 254-55; Higham 1966: 39, 117, 133-44, 153-57; Nagel 1971: 248, 320-31).8

These theoretical defenses of ethnocultural Americanism have lost intellectual credibility today, in part because of the cruel policies they often abetted. Yet ethnocentricists have at times defended liberality as a national tradition and even a public duty. And they have often voiced genuine feelings of affection, belonging and loyalty that are a source of comfort, security, and pride for many. Indeed, the much-remarked popularity of the chant "U!S!A!" among young people, both during the 1984 Summer Olympics and President Reagan's 1984 campaign, indicates that expressions of patriotism retain great appeal for Americans of all ages. This appeal surely reflects in part widespread human desires to esteem and affirm our particular communal origins. The common endorsement by ethnocultural Americanists of religious beliefs that God has "shed His grace" on America also helps this civic conception provide a profoundly meaningful sense of personal and communal identity for many of those eligible to share it.9

8 These repudiations of the Declaration were quite explicit. Former Governor James Ham- mond of South Carolina wrote in the 1840s that the "much lauded but nowhere ac- credited dogma of Mr. Jefferson, that 'all men are born equal,'" was "ridiculously absurd." A decade later, Senator John Pettit of Indiana called it "a self-evident lie." John R. Commons began his book on immigration with an attack on the Declaration's egalitarianism (Horsman 1981: 125, 275; Higham 1966: 117). While others who articulated ethnocultural Americanism, from Francis Lieber and Millard Fillmore to John W. Burgess and Woodrow Wilson, would never have gone so far, it remains true that their "moderate" versions of these views created a climate of respectability for inegalitar- ian civic notions (Curti 1955: 126-27; Higham 1966: 138-40; Howe 1979: 249).

9 All three persuasions discussed here have historically been intertwined with the various strains of Protestantism which have shaped American political thought so extensively that some scholars think it appropriate to speak of an American "civil religion." The liberal concern for human rights has always been closely tied politically and intellectually to Christian humanitarianism, and the "Commonwealth" republican tradition in America carried forth the legacy of Calvinist Geneva, especially in New England. But it is not unfair to point out that in the context of citizenship laws, Protestantism is most closely linked to ethnocultural Americanism. The insistence that American national identity and citizenship should be legally tied to Protestantism was a central motive of the definitively ethnocentric Native American or Know-Nothing party. This mili- tant Protestantism has also reappeared in later nativist movements, such as the second Ku Klux Klan (Higham 1966: 4, 6-7, 288-93; Gleason 1980: 68-75).




As unmixed "ideal types," these three conceptions of American identity are obviously in tension (Nagel 1971: 134, 151-52). For a pure liberal, the republican and ethnocultural conceptions are too repressive of human variety, liberty, and privacy. For a pure republican, the liberal conception licenses selfish egoism, while Americanists are patriotic enough, but may not emphasize political service enough. The ethnocultural Americanist believes that only his conception really captures who he is in the truest, most primordial sense. While he may cherish liberal ideals and republican institutions because they are American, he will not allow them to shield "un-American" tendencies that endanger the communal order he takes as definitive of his very identity.

Yet when we look to American law for evidence of their relative influence, we find that none of these civic conceptions has ever won ex- clusive sway. Initially during the Revolution, liberal, republican and incipient ethnocentric notions were all harmonized by the widespread belief that the cause of liberty required throwing off English monarchy and establishing an American republic dedicated to securing inalienable human rights.10 In the post-revolutionary period, tensions between liberal and republican ideals, especially, did become evident. Historians increas- ingly portray the process by which the Constitution was adopted as a struggle between the more liberal Federalists and the more republican anti-Federalists. Although each group was both liberal and republican, the Federalists stressed Lockean concerns, for they were dissatisfied with the insecurity of property rights under the state constitutions and with the lack of national power to promote commerce and provide for the common defense. The anti-Federalists instead sounded republican themes. They were wary of a remote new central government ruling a vast territory with the aid of powerful financial interests and expanded national military capacities (Wood 1969: 519-64; Appleby 1978: 937; Storing 1981: 3-47).

The general view is that on the national level the Federalists' liberal emphases won preeminence: the Constitution created a new national government that stressed private rights and commercial development more than democratic participation or agrarian civic virtue (Wood 1969: 562-64; 1977: 52; Storing 1981: 71-76; Nedelsky 1982: 340-60; Scham- bra 1982: 37-42; Epstein 1984: 163, 214n32). Liberal commitments were thus largely allied in law with national citizenship, with an insistence on the primacy of membership in the nation (Beer 1966: 70-82; Schambra 1982: 42-43). But the republican legacy of notions on the importance of small sovereign states and a close-knit citizenry gave priority to state citizenship, and republicanism, too, remained influential in legal definitions of American citizenship. Indeed, the Constitution left unsettled the key question of who could make such definitions. The new federal government had the power to regulate immigration and naturalization

10 To be sure, there were Lockean Loyalists who thought the social contract had not been abrogated and that they still owed loyalty to the king, and English "nativists" who felt most bound to their mother country (Bailyn 1967: 149-50, 174-75).




into United States citizenship, but it was not clear whether this authority precluded state action. And most meaningful privileges were held to be dependent on state citizenship, which the states could still largely struc- ture as they wished (Kettner 1978: 224, 264-65, 340-41).

In the wake of a revolution fought under the liberal banner of the rights of man, and with pressing needs for growth, it is not surprising that the nation made legal access to citizenship via immigration and naturalization comparatively easy for the first ninety years of its history. In accordance with George Washington's vision of America as an "Asy- lum" for the "oppressed and persecuted of all Nations and Religions" (Rischin 1976: 43, 44), the national government set no significant restrictions on immigration until the 1880s, apart from banning the slave trade (Higham 1975: 33). That liberal policy was tinged by republican and ethnocentric reservations, but these had limited impact in compari- son with later years. Thomas Jefferson originally feared that extensive immigration of the European masses, raised under feudal institutions, would make the American public "a heterogeneous, incoherent, distracted mass," incapable of self-government. He later decided that the young republic needed new population to fill the Western agrarian lands and preserve rustic yeoman virtues, but he always urged the prompt "amal- gamation" of newcomers into the preexisting society (Kohn 1957: 130; Jefferson 1975: 124-25). In this period, Americans much more ethnocentric than Jefferson were still confident that their institutions could assimilate outsiders, inculcating the Anglo-Saxon qualities required to meet the responsibilities of personal liberty and republican self-government (Higham 1966: 9-11, 20-23; 1975: 31-33; Horsman 1981: 300). Hence ethnocultural Americanists could accept liberal immigration policies.

Even so, republican and nativist concerns did produce both political and ethnic restrictions on legal eligibility for citizenship. Two groups, the unreconstructed feudal elite of Europe and the "barbaric" non- European masses, were expressly excluded. Under federal law, from 1790 to 1870 only whites could be naturalized (Ueda 1980: 732, 741, 746). Jeffersonian Republicans, fearful of aristocracy, added to the naturalization act of 1795 a provision requiring the abandonment of hereditary ti- tles (Kettner 1978: 235-46). Applicants also had to spend a period in residence, the length of which was varied periodically in response to anti- alien agitations, in order to assure that immersion in American republicanism preceded the main (liberal) requirement of naturalization swearing allegiance to the principles of the Constitution. As shown be- low, this early alliance between republican and ethnocentric conceptions of citizenship, in opposition to liberal policies, proved a potent and en- during feature of American political life.

In the post-revolutionary era, some states were so eager for manpower that they granted resident aliens most privileges available to citizens, even the franchise (Kettner 1978: 238; Rosberg 1977: 1093-1102). But as ethnocentric views gained political and intellectual support, most states either denied citizenship entirely to blacks and Native Americans, or consigned them even more plainly to second-class status (Kettner 1978:




287-333). As Linda Kerber has detailed, women were assigned the role of "republican mothers." This was allegedly a status of equal moral worth, but it confined women to the domestic sphere, devoid of the franchise, where they were to contribute to public life only by fostering good morals in their children (Kerber 1980: 10-12, 284-85).1

Even as Jacksonians and Whigs were elaborating Anglo-Saxon racialist views, anti-slavery movements emerged prior to the Civil War that gave new vigor to the inherited liberal emphasis on human rights in American political and legal discourse, in ways that affected the status of women as well as blacks. These movements not only argued explicitly that the universalistic liberal ideals of the Declaration of Independence applied to all human beings regardless of race. They also brought to political con- sciousness and activity a generation of feminist leaders, who began as abolitionists and became the matriarchs of the American campaign for women's rights.

The thought of Elizabeth Cady Stanton, Susan B. Anthony, Lucy Stone and others gave some voice to the claim that women could not fulfill the role of "republican motherhood" adequately without more power to influence public policy. But in the antebellum years they relied chiefly on the liberal language of human moral equality (Dubois 1978: 22-23, 32-47, 42; Harris 1978: 78-81, 85; Leach 1980: 8, 23, 146; Degler 1980: 303-06). The clearest example is the famous Declaration of Sentiments of the 1848 Seneca Falls' Convention, patterned after the Lockean phrases ofJefferson's original Declaration (Flexner 1975: 74-75). Once the equality of men and women was asserted, moreover, republican notions of citizenship made equal rights to participate politically and hold office seem essential (Eisenstein 1981: 163).

The anti-slavery movements that stimulated egalitarian claims by and for women also were a major ideological source for the new Republican party that attained predominance in the national government from the Civil War through most of the late nineteenth century. As Eric Foner has detailed, the Republicans' ideology, descended chiefly from American Protestant and Whig traditions, rested on a Lockean belief in the importance of free labor as the source of all productive value and as the best proof of good moral character. Far more than the Whigs, Republicans insisted accordingly that, while the races might not be fully equal in all respects, every human being had a natural right to pursue his trade and reap the fruits of his labor. Hence slavery was the height of injustice (Foner 1970: 9-23, 237, 290-300; 1980: 105; Howe 1979: 291, 302).

" States did pass Married Women's Property Acts as the nineteenth century progressed, increasing the legal rights of women to own property independently, but those measures were probably not motivated by any heightened belief in female equality. They are often seen as useful means to facilitate property exchanges in a period when westward migration made family separations common, and as efforts to insure that dependent women retained property bestowed on them by fathers or other protective male relatives (Dubois 1978: 40; Leach 1980: 178; Taub and Schneider 1982: 119).




To an extent that remains in dispute, these Republican views came to be expressed in the post-Civil War Thirteenth, Fourteenth, and Fif- teenth Amendments, which, in essence, abolished involuntary servitude, prohibited the states from infringing the privileges and immunities of United States citizens or denying them legal due process or equal protection, or from setting racial restrictions on the franchise. Those liberal amendments served as the legal basis for post-war challenges to various ethnocentric and republican inequalities embodied in American citizenship and immigration laws.'2

THE SUPREME COURT AND AMERICAN IDENTITY

The attacks on behalf of women were brought first and most signifi- cantly in Bradwell v. the State, 16 Wall. 183 (1872), but that case must be seen against the backdrop of the case that immediately preceded it. The epochal decision in the Slaughter-House Cases, 16 Wall. 36 (1873) provided the first major judicial construction of the post-war amendments. The two cases are clearly parallel. In each, the complaints against the states' actions centered on a state effort to restrain the most fundamental right in Republican party ideology and, arguably, in the classical liberal tradition: the aforementioned right to labor productively, to pursue one's vocation and reap its rewards. In Slaughter-House, New Orleans butchers challenged a state slaughterhouse monopoly that forced them to work for the monopoly or give up their trade. They claimed this situation im- posed on them a form of involuntary servitude, in violation of the Thir- teenth Amendment, and violated their privileges and immunities, due process, and equal protection rights, in violation of the Fourteenth. Former Supreme Court Justice John Campbell's brief for the butchers argued that the state's rights, republican view of citizenship put forth by John C. Calhoun and others had been decisively repudiated by these amendments (52). Now, national citizenship was primary, and state powers were limited. National citizenship, moreover, was based on the liberal commitment to securing the inalienable rights of life, liberty, and property for all members of the American political community, against the states if need be. Those rights included, as "property of a sacred kind," the "right to labor . . . and to the product of one's faculties" (53, 56).

By a narrow 5-4 majority, the Supreme Court rejected all these claims, in ways of paramount importance for future interpretations of all the clauses in question. Significant here is that the Court's reasoning ultimately appealed to the importance of federalism and state's rights, and a belief

12 To be sure, the amendments did not go as far as many feminists wished: the most expan- sive of the post-war amendments, the Fourteenth, outraged the leaders of the women's movement by including no explicit protection for women and instead referring three times to the suffrage granted to "male" citizens. These references provided some basis for assuming the amendment did not affect women's domestic role (Flexner 1975: 155-56, 223; Dubois 1978: 135-37, 163-202; Degler 1980: 315-20, 347-50). Its language seemed sufficiently broad, however, to support assaults on numerous state discriminations.




that the centralized despotism long feared by American republican thought would be inevitable if the federal government could protect a wide range of individual rights against state regulation. Justice Samuel F. Miller main- tained that state citizenship still embraced "nearly every civil right for the establishment and protection of which organized government is in- stituted" (71); and with mounting fervency, he insisted that the nation could not have meant to "fetter and degrade the State governments" by subordinating them so greatly to national power as Campbell had sug- gested (78). Why a national institution dominated by appointees of the party that passed these liberalizing and nationalizing amendments should have professed such allegiance to republican state's rights constitution- alism is hard to explain. But Miller's language surely suggests that, faced with the seemingly radical Reconstruction Congress, Miller's majority found the traditional republican scenario of a tyrannical central government plausible enough to resuscitate their commitments to older Jackso- nian notions of "dual federalism" (Bickel 1975: 45-46).

Justices Stephen A. Field and Joseph P. Bradley dissented in the case, each arguing, in a fashion that foreshadowed the laissez-faire liberal jurisprudence of the later Lochner era, that certain economic liberties were basic to citizenship in any free government. These liberties were supposed to be protected against the states by the Fourteenth Amendment, especially by the due process clause. Each stressed that the amendment had made national citizenship clearly fundamental, and that United States citizenship transformed the natural and inalienable rights of free men into rights of citizens - including the "sacred" right to pursue "unmolested a lawful employment in a lawful manner" (95, 96, 105, 112). That liberal right was, indeed, in Field's view "the distinguishing privilege" of United States citizenship. He saw it as a natural right, citing Adam Smith, and he assimilated both republican and ethnocultural conceptions of citizenship to this liberal view. A government could not truly be republican, or free "in the American sense of the term," Field insisted, without that crucial vocational liberty (110-11, emphasis added).

Bradley concurred, arguing that "citizenship means something" in America because of the nation's belief in sacred liberties and its inherited "traditionary rights." Rights to engage in their preferred vocations were constitutionally guaranteed to Americans, even without any express provision, by "their very citizenship . . . if they did not possess them before" (119). The dissenters' liberal stress on inalienable economic rights secured by national citizenship against the states was a quite plausible reading of the spirit of the amendments. Hence, the fact that state's rights republicanism narrowly prevailed says much about how intimidating the other justices found any dramatic departure from now-traditional Ameri- can republican notions of what constituted free political communities.

The next case handed down by the Court indicated, moreover, that the division in the Slaughter-House Cases actually exaggerated the power of liberal views. Bradwell v. the State involved Myra Bradwell's appeal of the Illinois Supreme Court's refusal to admit her to the state bar, even though, apart from her sex, she was clearly qualified. Bradwell's attor-




ney, Matthew Hale Carpenter (who had represented the monopoly in the Slaughter-House Cases) here followed Campbell's line and centered his argument on a liberal conception of U.S. citizenship. He invoked the liberal individual rights of the Declaration of Independence, understood to be "privileges and immunities" and due process rights protected against the states by the Fourteenth Amendment. Central to them was the right to labor in one's chosen vocation without invidious restrictions or discriminations. Quoting Cummings v. Missouri, 4 Wall. 321, Carpenter argued that the "theory upon which our political institutions rests is, that all men have certain inalienable rights - that among these are life, liberty, and the pursuit of happiness, and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law" (134). He then contended that the legal profession was such an avocation, that women were both persons and citizens within the meaning of the Four- teenth Amendment, and that the amendment "opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life" (137). By resting his brief on the liberal right to labor, and analogizing the discrimination against women to the racial discrimination that the amendment was undeniably meant to combat, Carpenter appeared to have made the strongest possible case. He also faced no opposing counsel.

But as in the Slaughter-House Cases, most of the justices were not willing to give up the antebellum commitments to republican state sov- ereignty in which they had been schooled. Justice Miller, again writing for the Court, provided another straightforward statement of state's rights like the one he had just rendered in the New Orleans case. The right to practice law, like most rights and privileges (including the franchise) was essentially a privilege of state citizenship, not United States citizenship.13 Therefore the states had the power to bestow it or withhold it as they chose (139).

The case was more difficult for Justice Bradley, who had found the liberal claim of vocational rights compelling against just such republican state's rights arguments in the preceding decision. He responded with a notorious concurring opinion that relied not on republicanism but on arguments in the ethnocultural Americanist mold. Bradley appealed to the order of "nature," God's "divine ordinance," and Anglo-American traditions in law and life, all of which he thought proved that man was naturally destined to be "woman's protector and defender," and that she

'3 Two years later, in Minor v. Happersett, 21 Wall. 162 (1875), Chief Justice Waite sustained a state denial of the suffrage to women essentially on the ground that this was a non-fundamental right that the state could regulate as it wished. To reach that conclusion, however, he had to adopt a "liberal" reading of "republicanism," insisting that political participation was not essential to citizenship in a republican government (175). This severing of the franchise from citizenship, along with ethnocentric reasoning, was later used to support other forms of second-class citizenship, such as the colonial status of Puerto Ricans [Downes v. Bidwell, 182 U.S. 244 (1901) at 282-83].




was fated for the "domestic sphere." Neither "recent modifications" in her civil status, such as new property rights laws, nor the fact that some women never married could alter this "general constitution of things," which Bradley took to be definitive of the American Constitution (141).

Bradley's opinion is a classic example of the influential "domestic sphere" doctrine, defended by the attachments to "nature" and the "American way" that characterize ethnocultural Americanism. This doctrine has played a vital role in defending gender inequalities historically, and so Bradley's opinion has received much attention in recent scholarship. But it was only a concurrence: it prevailed only by reestablishing the alliance between ethnocentric outlooks and the republican concern for state's rights. The republican argument was perhaps preferable to the majority because, in this as in other contexts, it permitted them to defer to the states. Thus they could sidestep, instead of directly denying, the liberal claims of fundamental human rights that the Declaration of Inde- pendence and the Republican party ideology of the amendments clearly supported.

Their stance left Bradley, who was already committed to the primacy of economic liberties over state's rights, alone in his overt reliance on ethnocultural reasoning; but his ethnocentric assumptions were hardly unique. All the justices found it easy to reach the same result without even hearing opposing counsel. That fact suggests they all found it difficult to conceive that the nation's profession of liberal egalitarian ideals really meant that it was improper to shape civic rights so as to reinforce the existing social order. The opinions of both Miller and Bradley reveal tacit beliefs that women do not really have to be regarded as equal citizens, that being American means accepting certain traditional, unequal gender roles and relations as legitimate. These beliefs were so fundamental to the justices' notions of American citizenship that they readily over- rode the obvious implications of liberal principles and the language of the Fourteenth Amendment.

That ethnocentric pattern of reasoning was repeated nearly twenty years later in the leading case considering America's initial restrictions on immigration, the Chinese Exclusion Case of 1889. The Chinese, first drawn to California during the Gold Rush, had been arriving in large numbers since the Civil War to work the new western railroads and ranches, even though they were statutorily ineligible for naturalization. Their pres- ence aroused resentments due to job competition and xenophobia, feelings articulated in anti-immigrant tracts like Strong's Our Country (Higham 1966: 39). In this climate, and under pressure from western legis- lators, the U.S. Congress gradually began placing restrictions on Chinese immigration, leading up to the 1888 law considered in Chae Chan Ping. The law prevented formerly resident Chinese laborers who had departed from the United States from returning - even those who possessed certificates authorized under an 1882 law as guarantees of readmission (598). The ex post facto voiding of these certificates was held by the lower courts to prevent Chae Chan Ping from reentering the country.




Once again, the appellant's lawyer relied on characteristically liberal economic arguments before the Supreme Court. Attorney Carter's most heavily stressed contentions were that the earlier law authorizing the certificates represented a contract with then-resident Chinese laborers, which the nation could not morally violate, and that the law had created vested property and liberty rights that should be honored (586). "States, as well as individuals, are moral agents, and the common rules of morality and good faith are as binding upon them as upon individuals" (588). Those "common rules" embodied the liberal commitment to vested rights, and they could not be violated by any legitimate exercise of legislative power (588).

Justice Field of California, a forceful champion of vocational and con- tractual liberties in his Slaughter-House dissent and throughout his ca- reer, nevertheless wrote for the Court in rejecting these claims and upholding the retroactive exclusion. Like Bradley, Field turned chiefly to ethnocentric Americanism to justify this departure from his usual economic liberalism, but the reinforcement for his nativism provided by republican concerns about a qualified, homogeneous citizenry was clear enough. Drawing on his own experience of Sino-American tensions in the West, he argued that Californians and the Congress reasonably believed that the "difference of race," especially, made the Chinese pres- ence an enormous problem. Unlike those of previous immigrants, this difference could not be overcome, Field thought. Despite generous treat- ment, the Chinese had "remained strangers in the land, residing apart by themselves, and adhering to the customs and usages of their own country," making it seem "impossible for them to assimilate" and producing fears that they would one day "overrun" the West (595). The threat was not only to the material interests of native American laborers. The Chi- nese were also seen as endangering "public morals," indeed as constitut- ing a potential "Oriental invasion" that would be "a menace to our civilization." Although Field did not dwell on the point, his language echoed the republican assertion often made since Jefferson, that racial and cultural differences rendered aliens unfit to participate in self- government. Their admission to citizenship would imperil the main- tenance of the nation's free institutions, as well as its special culture (Franklin 1906: 38, 71, 210, 298).

Since both free republican government and America's civilization were at stake, the United States' very "right of self-preservation" was involved, according to Field. The preservation of America's national life constituted a "public trust" that its governing representatives could not make "the subject of barter or contract" (608-9). The nation's sovereign authority to determine who would be admitted to it therefore could not be limited by any of its prior acts. The threat of "vast hordes" of "foreigners of a different race ... who will not assimilate with us" and who jeopardized American "peace and security" more than outweighed any concerns about the injustice of altering past legislative "contracts" or guarantees (601).




These cases and the many similar legislative and judicial statements of the period indicate that the great upheavals wrought by the Civil War agitations, and later by the post-war era's increased immigration and economic transformations, provoked deep concern among many Americans about the survival of the forms of collective life that were vital to their values and interests (Wiebe 1967: 11-75). Most of these transformations stemmed from liberal policies that opposed slavery, favored immigration, and encouraged enterprise while protecting property rights. The laws challenged in these cases show that American governors often responded to the results of those measures with state and national citizenship policies that were quite obviously illiberal, inconsistent with the ideals of liberty and equality professed in what Huntington terms the nation's "Creed." If the Supreme Court is any guide, many Americans had little difficulty in dismissing claims made in terms of those liberal democratic principles - not because they accepted the inevitability of an "Idea versus Institution" gap, but because they could invoke republican and ethnocultural conceptions of American civic identity that were also authoritative and more protective of the communal status quo. And while republicanism may have been a more palatable defense for the policies thus ad- vanced, those policies display the exclusionary anxieties of ethnocentricism far more than participatory republican ideals.

CONCLUSION: THE UNRESOLVED DILEMMAS OF AMERICAN IDENTITY

The enforcement of these communitarian conceptions, however beneficial to America's traditional social order, thus meant sustaining gender and ethnic discriminations in America's citizenship laws. Those policies did not change quickly or easily, and indeed they have never been completely effaced. All the conceptions of civic identity discussed here remain discernible in American public law, though their formulations, and the prevailing mix, have greatly altered over time, with ethnocentric elements sharply attenuated. Women obtained the vote by means of the Nineteenth Amendment in 1920, but its passage is commonly held to have been based on arguments about the need to extend women's special role into the public sphere, not on egalitarian views (Flexner 1975: 305; Degler 1980: 309). Accordingly, the liberal feminists' next step, the Equal Rights Amendment, received little support in the 1920s, and restrictions on women's occupational opportunities went largely un- challenged in law until the 1970s (O'Neill 1969: 276-94; Degler 1980: 360-61, 402-3, 437). Similarly, the nation erected severe ethnically restrictive quotas on the national origins of immigrants in the 1920s, which lasted until 1965; and all bans on naturalizing Asiatics were not lifted until 1946 (Higham 1975: 64; Ueda 1980: 746).

Those modern reforms reflected the increased acceptance, among policy-makers at least, of a further ideal of American identity, which may be termed "democratic cultural pluralism" (Gordon 1964: 14, 57; Higham 1975: 59-60, 220; Gleason 1980: 119-21; Keely 1982: 29-31). This ideal carries on the cosmopolitanism, tolerance, and respect for human lib-




erty of the older liberal tradition, and so it can properly be termed a modern version of the liberal ideal. It is novel, however, in its rejection of Lockean liberalism's absolutist natural law elements in favor of modern philosophic pragmatism and cultural relativism. And one of its chief theoretical architects, philosopher Horace Kallen, argued that cultural pluralism better recognizes human sociality, our constitutive attachments to distinctive ethnic, religious, and cultural groups. It therefore envisions America as a "democracy of nationalities, cooperating voluntarily and autonomously through common institutions in the enterprise of self- realization through the perfection of men according to their kind" (Kallen 1924: 124). Since all groups and individuals should be guaranteed equal opportunities to pursue their own destinies, the nation's legacy of legal racial, ethnic and gender discriminations is unacceptable according to the cultural pluralist ideal. At the same time, there must be no effort to transform equality into uniformity, to insist that all fit into a standard "Americanized" mold.

The ideal of democratic cultural pluralism finally came to predomi- nate in American public law in the 1950s and especially the 1960s, find- ing expression in the 1964 Civil Rights Act, the liberalizing 1965 Immigration and Naturalization Act, the 1965 Voting Rights Act, in new programs to provide educational curricula more attuned to the nation's diverse cultural heritage, in bilingual ballots and governmental publica- tions, and in affirmative action measures (Gordon 1981: 179-81; Keely 1982: 30-31). Cultural pluralism also became the ideal underlying treat- ments of community and citizenship in mainstream liberal theory during the 1960s and 1970s (Rawls 1971: 442, 450, 523-29; Ackerman 1980: 82-83, 194-96, 347, 375).

But the Great Society policies based on democratic pluralist ideals have long been under various assaults. Desegregation via busing and affirmative action programs have produced mounting acrimony. The Equal Rights Amendment provoked fears of radical change sufficiently strong to de- feat it. The return to more open immigration since 1965 has led to a new influx of Asian and, especially, Spanish-speaking immigrants, heavily con- centrated in a few regions, provoking new disputes over bilingualism, immigration and refugee policies, welfare, health care, and amnesty for illegal aliens, education for their children, and other related issues (Keely 1982: 28-65; Glazer 1985: 3-13).

Nor has the increased reliance on democratic cultural pluralism in liberal theory proven more successful. Numerous analysts have argued that the cultural pluralist ideal has yet to be given a theoretical formula- tion that can enable it to serve the role Huntington assigns to the Ameri- can Creed: it does not provide a public philosophy that can define and sustain a meaningful sense of national community, and civic identity, without suppressing legitimate variety (Higham 1975: 230, 246; Beer 1978: 44; Gleason 1980: 142-43; Keely 1982: 32-33; Smith 1987: 20-35). These commentators generally endorse John Higham's view that in face of the continuing dilemma between the extremes of excessive assimilation and a pluralism that verges on atomism, "our greater problem" now




is not learning to appreciate "diversity" but "rediscovering what values can bind together" our "kaleidoscopic culture" (Higham 1975: 246). But the democratic cultural pluralist ideal, with its stress on tolerance of diverse communal groups, tends to deprecate the importance or even the existence of a common national identity (Kallen 1924: 59, 64; Gleason 1980: 140-41; Beer 1984: 362, 381). Although its proponents obviously wish to sustain some bounds to what can be claimed in the name of sub- group autonomy, theorists of cultural pluralism have so far left those limits vague and inadequately defended.

Hence the questions raised by the nation's historic experience of its still-competing conceptions of citizenship remain pertinent. Can the United States respond effectively to anxieties about the adequacy of American political community and civic identity if its membership is understood, in theory and law, to rest only on the cosmopolitan ideal of shared commitment to liberal democratic principles? Huntington's belief, again, is that contemporary conflicts will ultimately only reinforce the role he thinks American "creedal" ideals have traditionally played in defining a unifying national identity (1981: 230-31). His optimism becomes hard to sustain once we recognize the considerable degree to which American identity has never in fact rested on allegiance or even full adherence to liberal democratic values. The nation's frequent rejections of liberal conceptions of citizenship, particularly in times of stress, must cause us to doubt whether traditional liberalism can provide a sense of civic identity that will prove politically feasible or morally satisfying. Simi- larly, the contemporary liberal policies favored by modern democratic cultural pluralism arguably compel citizens in practice either to seek community in various parochial subgroups, sometimes heightening ethnocultural rivalries, or to turn to non-liberal, more communal conceptions of American national identity.

Perhaps the historic failings of American liberalism make such a turn advisable. But it is at least equally improbable that the nation will be led to more commendable and workable citizenship policies if it simply em- braces the main historic alternatives, admittedly more communitarian, that can be found in American political thought. Despite republicanism's attractions for contemporary theorists, any honest assessment of it as an actual American communal tradition must recognize that in legal and political debate it has usually and quite naturally served to assist the repressive side of American ethnocentricism. The resulting longstanding history of invidious discriminations demonstrates that in the United States attention must always be paid to the threats these ideals pose to liberal values.

Where, then, does all this leave us? I have argued elsewhere that we should reformulate the nation's dedication to liberty into a positive, sub- stantive goal of human empowerment (Smith 1985: 220-24; 1987). Free- dom should not be understood to mean simply a lack of hindrance in doing what we will. It means valuing and exercising our capacities for reflective self-direction and choosing ways of life that preserve and en- hance those capacities for all. If we therefore conceive of a liberal polity




not as a neutral umpire for subjectively valued pursuits, but as a shared endeavor to create institutions and policies that will increase all citizens' personal and collective capacities for deliberative self-governance, we may better support feelings of meaningful community membership. There can be no better founded source of pride in one's polity than the belief that it aims above all at furthering the capacities for conscientious autonomy that give persons moral dignity. Hence liberalism's tendency to degener- ate into narrow self-seeking might be attenuated by adopting a commitment to liberty in this sense. Moreover, the very substance of that goal should predispose us to honor the disparate but responsible choices of others. Hence the repressive potential of communitarian positions might also be combatted.

I cannot pursue this case here. But I would insist at a minimum that, whatever directions we believe the nation's civic evolution should take, we must recognize that it is likely to develop within the boundaries defined by these traditional liberal, republican, ethnocultural, and pluralist notions, with all their limitations. Hence we must study the lessons experience provides about their characteristic tendencies, strengths and weaknesses if we wish to achieve a more viable and morally acceptable conception of American civic identity than the nation has realized thus far.

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