Public Seminar (PS): Martha, in Birthright Citizens you rewrite the history of race and rights in the United States by means of showing how African American activists radically transformed the terms of citizenship for all Americans in the nineteenth-century. How did you come up with the idea to recover the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses prior to the Civil War?

Martha S. Jones (MSJ): My first inspiration was the years I spent as a public interest lawyer. I represented poor people of color in lower Manhattan’s trial courts and rarely did those cases reach high courts or turn on constitutional questions. Still, I knew that my clients were fighting for fundamental rights even in housing and family court proceedings. Birthright Citizens is my effort to look at the early history of the same local courthouses and ask how poor people of color – in my story former slaves in Baltimore – used trial courts to claim rights. The work of cultural historians such as Laura Edwards, Ariela Gross, and Dylan Penningroth had paved the way with their legal histories of women, enslaved people, and free people of color written out of quotidian legal culture.

PS: Could you tell us a little about the challenges and pleasures of writing this book?

MSJ: There were so many pleasures! I am an archive rat and so discovering that Maryland preserved Baltimore’s early courthouse records meant I had a stunning array of artifacts to work with: clerk’s docket books, pardon petitions, manuscript appellate briefs, and boxes upon boxes of soot-covered case files still tied with the original red string. I also got to spend time in Baltimore’s present day courthouse where I met lawyers, judges, and clerks who shared my fascination with the city’s legal past, and even shared a few secrets. The biggest challenge was to turn down the volume on writing about the 1857 US Supreme Court case of Dred Scott v. Sandford, which concluded that no black person could be a citizen of the United States. I had to learn that a high court opinion was only one point of view about the rights of black Americans before the Civil War. The history of citizenship, it turns out, was the history of a debate. My job was to take seriously the views of the free black figures in my archives, just as generations of historians had taken seriously the thought of judges and lawyers. Once I did that, I had something truly new to say.

PS: In a recent newspaper article, you claim that the experiences of former slaves in the 19th century and unauthorized immigrants today converge when it comes to making claims on citizenship. Can you expand on that for us a little?

MSJ: Researching the lives of former slaves I learned that they lived in a constitutional limbo, never certain whether they belonged, whether they could stay, or if they might be removed from the country. It was harrowing, and the stakes were high because free black Americans were building families, vocations, and institutions such as churches all with a legal sword over their heads. Lawmakers regularly planned for their removal to Africa, Canada, or the Caribbean. History proved former slaves right: the 14th Amendment made them birthright citizens and guaranteed their right to residence, even as their struggles for full rights would continue. I came to ask how history will judge our own moment, one in which we refuse to provide for the legal belonging of unauthorized immigrants. We erred once before as a nation when we turned our backs on people who had made their home here and had contributed to the nation’s fabric and prosperity. Like former slaves, unauthorized immigrants (and their birthright citizen children) live in harrowing circumstances, with deportation threatening their families and communities. Witnessing the humanitarian crisis in our own time helped me better understand how former slaves likely felt.

PS: What is the most important lesson for your readers to take away from Birthright Citizenship and how might it affect our general thinking about (the history of) citizenship?

MSJ: Contests over citizenship are a regular even an essential dimension of any democracy. There is nothing exceptional or aberrant about people, often those from despised groups, knocking on the door of the body politic. As a nation, we have repeatedly confronted the citizenship question. The aim is not to stifle such questions because they will never wholly subside. Instead, the goal is to take them on with one eye on humanitarian concerns and the other on history. The experience of former slaves is a cautionary tale about our capacity to resolve a citizenship question, one we should not repeat.

Epilogue to Birthright Citizens: A History of Race and Rights in Antebellum America

Today Baltimore’s courthouse sits in the very place that all the city’s courthouses have occupied. As far back as the era of the American Revolution, law and the social world have collided in that exact location. The modest courthouse of Roger Taney’s era remained standing until the end of the nineteenth century. Its proceedings, however, were transformed by the Civil War and emancipation, when new state and federal constitutions rewrote the fundamental terms of race and law. Black Baltimoreans continued to steadily stream to that building off Monument Square, but with new claims at their disposal.

The courthouse was once again changed with the rise of Jim Crow. A place for the enactment of interracial democracy became a battleground, testing the power of the Reconstruction era’s civil rights acts. By the 1890s the antebellum past was being razed. A new building with a grand scale and even grander pretensions replaced the nineteenth century’s modest structure. This edifice did not easily welcome rights claims. But nearby, a new icon of legal culture was born. He was a man who spoke to issues of race and law with all the force and conviction that had characterized Roger Taney, though with another valence altogether. Thurgood Marshall was born in Baltimore in 1908, and in his hometown’s courthouse he advocated a new order – desegregation – cutting his teeth, honing his skills, and laying the groundwork for a radical reordering of the relationship of race to rights.

It would be another seventy-five years before Thurgood Marshall would wholly remake the courthouse as an artifact of memory. In 1985, the 1890’s edifice to Jim Crow justice was renamed. Its rededication as the Clarence M. Mitchell, Jr. Courthouse was a powerful gesture of both remembering and forgetting. Mitchell was a peer to Marshall and had served as lobbyist for the National Association for the Advancement of Colored People (NAACP) for nearly thirty years. Bearing his name, the courthouse became both a tribute to and an emblem of the civil rights era’s vision of race and justice. But what did the same gesture erase? Is it possible to see through Mitchell’s name to a past less sanguine?

These days, I follow the daily goings-on in Baltimore with a special eye on the courthouse. Commentators most often lament its dilapidated state – leaks, vermin, and crumbling plaster. Hardly a gleaming monument to civil rights, but a monument nonetheless. On my first visit to the courthouse, I was in a hurry. I was headed to the Bar Library of Baltimore, to review bound volumes of nineteenth-century treatises and court opinions. I spied the sole public entrance, on Monument Square, then mounted the steps, already anticipating the metal detectors and security pat down. Almost inside, I heard a curious call. It wasn’t my name. The voice wasn’t one I knew. Still, it was oddly familiar – familiar enough that I paused just a moment to glance back. It was auction day.

The organized, determined actions of creditors still animate proceedings at the Baltimore courthouse. And those creditors still appear to be aiming to gain possession of the only assets held by many African American families, their homes. Since January 2008, when Baltimore charged Wells Fargo Bank with predatory lending, the story of how banks have targeted the city’s minority communities with unfair lending practices has become well known. Maryland’s attorney general leveled charges against illegal “foreclosure practices, including the ‘robo-signing’ of affidavits and other required documents.” The state’s high court echoed the attorney general’s concerns, issuing an “emergency” rule that explicitly “allows circuit courts to appoint independent lawyers to review foreclosure documents for problems.

The mortgage crisis that began in 2008, continues to play out on the steps of the city courthouse. On that fall afternoon, heeding Joseph Roach’s admonition that scholars should spend more time in the streets, I stopped to watch. The drama had begun offstage, with notices published in local newspapers and on the internet. Now, on the noticed day and time, the auctioneer had positioned himself at the top of the steps. At his feet at were red milk crates filled with files. He cradled a clipboard stacked with documents. He shuffled the paperwork and conferred quietly with another man. It was the sheriff. At some moments there was a small crowd gathered. Other times, there were only an interested few. Now I understood his purpose, even if I could not make out his exact words. I heard the auctioneer’s staccato words strung together in a distinct cadence. Then a pause signaled the single-word refrain and his open palm slapped the clipboard: “Sold.” Homes are for sale on the courthouse steps. Insolvent debtors – today, as defaulted mortgage holders – can watch as their homes are sold to the highest bidder. Underlying this scene are rights, including the right to make contracts and to sue and be sued. In this haunting performance, the city courthouse is again, as it was in the nineteenth century, a stage for complex dramas of race and law.

Inside the courthouse, I headed upstairs. I knew I was on Roger Taney’s turf. Both Taney’s home and the federal courthouse, where he sat on the US Circuit Court, were just one block from Monument Square. It still is possible to walk Taney’s streets, but only with a good dose of imagination. Some of the place names have changed, and the layout has too. Not the slightest of those changes is, of course, the courthouse itself. The buildings of Taney’s era were long ago razed, including the former Masonic Hall where he presided over the federal Circuit Court. Where once stood the Taney home, on the northeast corner of Saint Paul and Lexington Streets, is today the Courtside Building, erected in 1918 as the Wolf Building, housing a law firm of the same name. Perhaps the only vista that remains the same as in Taney’s era is that of the column of the war memorial that marks Monument Square.

What is there left of Taney, and of an era in which courthouse auctions disposed of the bodies as well as the homes of black Americans? Visit the Baltimore courthouse and you will be struck by how it embraces and honors its history. A courtroom space on the building’s first floor was set aside in 1984 as a museum, governed by the Baltimore Courthouse and Law Museum Foundation. Each weekday between noon and one, visitors can study the history of the courthouse and the city’s legal culture. Volunteer attorneys serve as docents. The courthouse also boasts of its prominent portraiture. Nearly every courtroom and many corridors are appointed with the oil likenesses of the city’s legal luminaries from across more than two centuries.

On my first visit, I prowled the courthouse halls and courtrooms looking for traces of its early nineteenth-century history. I would have to make my way to the top floor, methodically combing through the building, before I would find him. Taney might not mind that visitors need to ascend to the building’s uppermost floors to encounter his memory. Floors six and seven include vaulted ceilings and a domed roof that today, after renovations in the 1950s did away with the structure’s ground-floor atrium, are some of the building’s grandest features. And there, Taney still presides in the building as a figure accorded prominence and respect. I had heard tell of the Baltimore Bar Library well before I finally visited the courthouse’s sixth floor.

The city’s lawyers had banded together in 1840 to create the library, which had its first home in the courthouse that stood in this location from 1808 to 1895. Commentators complained about its cramped, poorly appointed rooms, but it was a shared meeting place for the city’s legal elite and made resources such as case reporters and legal treatises more broadly available. The library overlooked Taney’s home, it was said, though not by design. For historians today, the library holds tremendous allure because it is intact. The library’s collection from the nineteenth century has been preserved, set aside in a “historical” section, and researchers can browse the stacks much as nineteenth-century local attorneys once did. Some lawyers donated their personal libraries to the institution at the end of their career. Their book labels and handwritten names are scattered throughout the collection. Here I hoped to see the antebellum world from the perspective of the city’s practitioners.

I had not expected to find Taney there (even though I would have welcomed the discovery of his books). But as I pushed open the library doors, there he was, the first to greet me even before the staff had time to rise from their desks. Taney’s portrait is an imposing one. Completed during his lifetime by the artist Miner Kilbourne Kellogg, it depicts the chief justice at rest in an armchair, quill in one hand and paper under the other. A case reporter on the table just within reach, Taney is set in an elegant frame of silk drapes, classical columns, and heavy oak furniture. He gazes beyond the frame in studied concentration.

How should historians of race and law interpret the Bar Library, as an archive? I was welcomed there. As a member of the guild, the director assured me, lest I had forgotten, I am an honorary member of the library. I admired the ornate vaulted ceilings, long and wide reading tables, and green-shaded reading lamps. There was not a computer terminal in sight. I was invited to visit the “Moose Room” in which is prominently displayed the head of said moose. There is a story to go with it, about competing law firms and a bet: the winner got the head. Then I made my way back to the historical room, and I had the run of the place. I rummaged and rifled in the open stacks with no one peering over my shoulder. I began to piece together the libraries of men I had read about in the courthouse archives. Is there anything more alluring than having free rein in an archive, the run of the stacks, and the sort of privacy that lets you just sit right there on the floor and read?

But the portrait of Taney haunted me. I avoided taking it in when I stepped out to make a phone call or get something to eat. I could not reconcile how, despite the gracious accommodation that was extended to me, I wasn’t sure I belonged. Or did I mean my research topic did not belong? Could I discover here a history of race and law that sought to displace Roger Taney with Cornelius Thompson or George Hackett, one that sought to displace Dred Scott with deliberations in the local courthouse? What part of my work was intended to grapple with this scene? What tools did I have that might permit me to explain how I expected to dethrone Taney in the very place in which he still presided?

My last stop on that day was a courtroom at the other end of the hall. It was the city’s Circuit Court, a largely commercial, big-money part of the courthouse. It is the grandest courtroom in the building, with a domed ceiling inscribed with the names of the city’s legal forebears. I craned my neck searching for it: there was Taney, his name emblazoned in plaster. I had expected I might find him here. And I took a seat at the back, thinking I would quietly observe and reflect on all I had seen that day. But it was, as I said, a court set aside for resolving commercial disputes, with a trial under way. And while it is a public space, it is not unusual for the court to wonder about who visitors might be. Mostly, in my experience, they want to be mindful about reporters.

Judge Wanda Heard eyeballed me from the bench and then beckoned her clerk, whispering in his ear. He made his way over to me and asked my business. I am a historian, I explained, writing a history of the early courthouse. I was just there to observe, I said, and handed over my card. Some minutes passed before Judge Heard paused the proceedings just long enough to go off the record and speak directly to me: “Wait for the break. I’d like to talk with you.” It didn’t come as an order exactly, but I knew I needed to stay. And I did. It turned out that Heard herself is deeply interested in the courthouse and its history. I explained my project, and she presented me with a brief written history of her courtroom. The marble, I learned, had come from the Vatican quarry. We talked about the courthouse museum, the portraiture, and the library. I explained more about my history of race and rights. We mentioned Taney, and Heard, who is African American, chuckled, pointing to his name up above her head on the ridge of the courtroom’s dome. I didn’t tell her about the awkwardness that the chief justice’s portrait had generated in me. It turns out I didn’t have to.

“My courtroom is haunted,” said Judge Heard. Now, I am no believer in ghosts, but she is a judge and I was a researcher looking for clues. There had been, over the years, a series of inexplicable incidents in her courtroom, Heard explained. She had experienced them, and so had her clerks. Members of the bar were ready to confirm that something was not right, up there on the sixth floor. Some sort of spirit or force or energy was making itself felt. Broken glass and cold chills were examples of what regulars called the courtroom’s ghost. It was, Judge Heard believed, Roger Taney. The chief justice, whose name and likeness were so prominently on display, was unsettled. “He might have a little bit of a problem with me presiding,” Heard once told a reporter for the Sun. Her ancestors, she explained, had been slaves.

We do not need to be believers in ghosts to appreciate Judge Heard’s story. Whether discomfort with her presence is felt by the dead or also by the living, her story underscores the degree to which questions haunt a black woman, the descendant of slaves, when she presides in the Baltimore courthouse. Those who challenge her authority may be spirits from the past; they may be twenty-first-century men and women. What is certain is how race still animates that place where the city’s courthouse has sat for more than two centuries. Justice Taney, be he ghost or icon, remains a force in Baltimore even today.

Excerpted from Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America, published by Cambridge University Press.

Martha S. Jones is the Society of Black Alumni Presidential Professor and Professor of History at Johns Hopkins University and a co-President of the Berkshire Conference of Women Historians. She tweets at @marthajones_.

Leave a Reply