AFTERWORD: A REPLY TO COMMENTATORS. (history and demographics of American citizenship) (response to articles in this issue, p. 1117, 1137, 1157, 1177)

• Date: 01 April 2024
• Author: Chin, Gabriel J.,Finkelman, Paul
• Published date: 01 April 2024

We are extremely grateful to the distinguished scholars who have written reflections on the issues raised by our article; they, as well as other attendees at a symposium at the University of California, Davis School of Law asked helpful questions and offered challenging comments to which we now respond.

When contending that the Framers envisioned the United States to be a White nation, we agree that they did not necessarily mean the complete exclusion of non-White people. Moreover, as we note in our article, about one-fifth of all Americans in 1790 were either Black or Indian. (1) But the nation's legal policy and some favored social policies were designed to make it more White and less non-White. For example, the goal of the American Colonization Society, formed in 1816, was to resettle former slaves in Africa, which of course would make the nation less Black and more White. (2) Many of the leaders at the Society were Founders or what we might call second-generation Founders. The first national president of the Society was Supreme Court Justice Bushrod Washington, the nephew of President George Washington, who was appointed to the Court by President John Adams. (3) The leader of the Society in Virginia (the most important state branch) was Chief Justice John Marshall, who was a key figure at the Virginia Convention which ratified the Constitution. (4) Chief Justice Marshall was an important diplomat in the 1790s and served as Secretary of State under President Adams before Adams nominated him as Chief Justice. (5) As Chief Justice, Marshall would never support Black freedom, but did not use the full authority of federal laws to suppress the African slave trade. (6) Henry Clay of Kentucky served as president from 1836 to 1849. (7) Clay was a United States senator during the Jefferson and Madison administrations, served as the Speaker of the House of Representative while James Monroe was president, and was Secretary of State under John Quincy Adams. (8) These three leaders of the Colonization Society--who were also slaveowners--were the younger generation while the Founders were presidents. After 1819, federal laws required that slaves illegally imported into the United States would be sent back to Africa, (9) but otherwise no federal laws required the forcible deportation of Black persons on the basis of race. Nor do we see in the early statements of the Founders the idea that the one and only possible fate of the Indians was extermination; assimilation and relocation west of the Mississippi River were also possibilities. The forcible removal of the tribes in the American South to what is today Oklahoma protected their tribal identity, even as it removed these Indians from American states, making the rest of the nation more White. (10)

On the other hand, it seems clear that Congress was not eager to encourage voluntary immigration to the United States of persons of African ancestry. While the immigration of Canadian Indians was protected by the Jay Treaty, (11) we see little indication that the Founders contemplated substantial Indian immigration from any source.

We do...