Privilege against Public Right : A Reappraisal of the Charles River Bridge Case

Was The Charles River Bridge Case a watershed in American legal history and political economy, as legal historians have long maintained? Did the decision of the United States Supreme Court really present a sharp choice between privilege and creative destruction, and did that choice reflect a dilemma that was really forced upon Jacksonian society by economic conditions? This article suggests that the prevailing understanding of the case is based upon misconceptions of the significance of the Supreme Court\u27s limited jurisdiction in the case, misconceptions concerning the economics of transportation enterprises in Jacksonian America, and misconceptions concerning the reasoning underlying the decision. It suggests that portions of the opinion, which have been understood as the real reason for the decision, were in fact mere rhetorical posturing not intended to be taken seriously. The true basis for the decision lay in common law notions of community rights and the avoidance of upward redistributions of wealth, notions which formed the basis of a Jacksonian constitutional jurisprudence that died aborning

Jurisdiction in Nineteenth Century International Law and Its Meaning in the Citizenship Clause of the Fourteenth Amendment

This article addresses the meaning of the citizenship clauses of the Civil Rights Act of 1866 and the Fourteenth Amendment by augmenting the historical record relevant to those clauses. It argues that the key to understanding their meaning lies in the nineteenth century concept of allegiance, the central concept in the international law of citizenship and subjecthood in the nineteenth century. International law, diplomatic history, and international conflict centered around that concept, reveal complexities not fully explored in the previous scholarly literature on the citizenship clauses. Conflicting national claims to the allegiance of subjects and citizens and to the duties they owed to sovereigns caused, in part, the War of 1812. They almost led the U.S. to war with Austria in 1853, and they contributed to tensions with other German states. They flared up again with Great Britain in conflicts over conscription by the United States of British subjects in 1862, and in the Fenian conflicts of 1866. Conflict arose over the extent to which sovereigns whose subjects emigrated to the United States retained jurisdiction over those emigrants based on allegiance to their native sovereigns. This, to which I refer as the jurisdiction arising from allegiance, differed from and to some extent clashed with territorial jurisdiction. It was recognized as a matter of international law as an extraterritorial jurisdiction grounded in the relationship between the subject and the subject’s original sovereign. It was vastly more extensive and expansive than its enervated twenty-first century descendant, and so, in a seeming paradox, has remained generally invisible to the modern eye. To understand it is to gain important insights into the meanings underlying both the Act and the Amendment. The citizenship clauses of the Act and the Amendment offered opportunities to relieve this international tension, even while addressing their principal purpose of making citizens of the freedmen. The congressional debates over the Act and Amendment lapsed into incoherence because one group of legislators discussed the proposed Amendment as if the word ‘jurisdiction’ therein meant the jurisdiction arising from allegiance. That suggests that they intended to exclude from birthright citizenship the children of aliens, of persons who owed allegiance to some other sovereign at the time of the child’s birth in the United States. Their opponents discussed the proposed Amendment as if the word ‘jurisdiction’ meant only territorial jurisdiction. That meant that anyone born within the United States would be a citizen by birthright, with only the most trivial exceptions, unless excluded explicitly. The greater weight of language and history favors the conclusion that the word “jurisdiction” in the Fourteenth Amendment was predominantly understood to mean the jurisdiction arising from allegiance. The weight of the evidence is not overwhelming, however, and the disposition of enormously important modern issues on the basis of that weight, without further research, might well be ill-advised

Jurisdiction in Nineteenth Century International Law and Its Meaning in the Citizenship Clause of the Fourteenth Amendment

This article addresses the meaning of the citizenship clauses of the Civil Rights Act of 1866 and the Fourteenth Amendment by augmenting the historical record relevant to those clauses. It argues that the key to understanding their meaning lies in the nineteenth century concept of allegiance, the central concept in the international law of citizenship and subjecthood in the nineteenth century. International law, diplomatic history, and international conflict centered around that concept, reveal complexities not fully explored in the previous scholarly literature on the citizenship clauses. Conflicting national claims to the allegiance of subjects and citizens and to the duties they owed to sovereigns caused, in part, the War of 1812. They almost led the U.S. to war with Austria in 1853, and they contributed to tensions with other German states. They flared up again with Great Britain in conflicts over conscription by the United States of British subjects in 1862, and in the Fenian conflicts of 1866. Conflict arose over the extent to which sovereigns whose subjects emigrated to the United States retained jurisdiction over those emigrants based on allegiance to their native sovereigns. This, to which I refer as the jurisdiction arising from allegiance, differed from and to some extent clashed with territorial jurisdiction. It was recognized as a matter of international law as an extraterritorial jurisdiction grounded in the relationship between the subject and the subject’s original sovereign. It was vastly more extensive and expansive than its enervated twenty-first century descendant, and so, in a seeming paradox, has remained generally invisible to the modern eye. To understand it is to gain important insights into the meanings underlying both the Act and the Amendment. The citizenship clauses of the Act and the Amendment offered opportunities to relieve this international tension, even while addressing their principal purpose of making citizens of the freedmen. The congressional debates over the Act and Amendment lapsed into incoherence because one group of legislators discussed the proposed Amendment as if the word ‘jurisdiction’ therein meant the jurisdiction arising from allegiance. That suggests that they intended to exclude from birthright citizenship the children of aliens, of persons who owed allegiance to some other sovereign at the time of the child’s birth in the United States. Their opponents discussed the proposed Amendment as if the word ‘jurisdiction’ meant only territorial jurisdiction. That meant that anyone born within the United States would be a citizen by birthright, with only the most trivial exceptions, unless excluded explicitly. The greater weight of language and history favors the conclusion that the word “jurisdiction” in the Fourteenth Amendment was predominantly understood to mean the jurisdiction arising from allegiance. The weight of the evidence is not overwhelming, however, and the disposition of enormously important modern issues on the basis of that weight, without further research, might well be ill-advised