{"id":2961,"date":"2019-12-11T14:31:14","date_gmt":"2019-12-11T19:31:14","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=2961"},"modified":"2020-09-23T20:35:25","modified_gmt":"2020-09-24T00:35:25","slug":"ties-that-bind","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/12\/11\/ties-that-bind\/","title":{"rendered":"Ties that Bind"},"content":{"rendered":"<p><a href=\"https:\/\/www.law.pitt.edu\/people\/jessie-allen\">Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n<p><a href=\"https:\/\/blackstoneweekly.wordpress.com\/2009\/08\/\"><strong>BOOK I. \u00a0Chapter the tenth. Of the PEOPLE, whether ALIENS, DENIZENS, or NATIVES.<\/strong><\/a><\/p>\n<p><a href=\"http:\/\/avalon.law.yale.edu\/18th_century\/blackstone_bk1ch10.asp\" target=\"_blank\" rel=\"noopener noreferrer\">This chapter<\/a>\u00a0is about the different legal statuses of residents within a governmental territory. \u00a0The part that caught my eye was Blackstone\u2019s elucidation of \u00a0the concept of \u201callegiance.\u201d \u00a0According to Blackstone, \u201cAllegiance is the tie, or\u00a0<em>ligamen<\/em>, which\u00a0binds the subject to the king, in return for that protection which the king affords the subject.\u201d \u00a0p. 354 \u00a0Now, the\u00a0<em>Commentaries\u00a0<\/em>are full of these wonderful etymologies, but reading them I always feel a bit like I\u2019m playing that \u00a0party game, in which false, but formally plausible, definitions for some unknown term are mixed up with the \u00a0dictionary entry, and the object is to pick the authoritative one. \u00a0If the game goes on long enough with canny enough participants, the false entries get better and better until eventually the published dictionary definitions begin to seem as contingent as the outrageous lies your fellow players are inventing. \u00a0In this\u00a0case, though, I don\u2019t think it really matters whether the word allegiance actually comes from the word for a physical tie, or whether this is a linguistic creation myth. \u00a0Either way, the notion that allegiance to a government leader is like being tied to that person with ligaments illuminates something about Blackstone\u2019s concept of government.<\/p>\n<p>There is something so\u00a0<em>personal,\u00a0<\/em>even physically intimate, about the relationship Blackstone draws between sovereign and subject \u2014 and between the law and the people.\u00a0\u00a0Quoting Sir Edward Coke, he explains that even without taking any express oath, \u201call subjects are equally bounden to their allegiance . . . because it is written by the finger of the law in their hearts.\u201d \u00a0p. 357 \u00a0Is this a sentimentalized characterization of subjection by governmental force? \u00a0(I can almost hear Nietszche cackling.) \u00a0Or does it offer us a glimpse of some authentic affective connection between a citizen and her government once more readily experienced and now almost completely lost? \u00a0Is there any difference?<\/p>\n<p>Here is a conversation I had recently with my nine-year-old daughter, Lincoln, as we were leaving the house on some quotidian errand:<\/p>\n<ul>\n<li>Lincoln: \u00a0Mom, you know what\u2019s really funny?<\/li>\n<li>Me: \u00a0No, what?<\/li>\n<li>Lincoln: \u00a0If you weren\u2019t my mom, I wouldn\u2019t love you.<\/li>\n<li>Me: \u00a0Unh.<\/li>\n<li>Lincoln: \u00a0I mean, I can\u2019t imagine not loving you, but if you weren\u2019t my mom, I wouldn\u2019t.<\/li>\n<\/ul>\n<p>Though I find this particular structural analysis of affective connection a bit unsettling, I don\u2019t for a second doubt its accuracy. \u00a0My child is passionately attached to me and I to her, and there is no question that our roles as mother and daughter begat the passion, not vice versa. \u00a0She didn\u2019t see me one day across a crowded playground and think to herself \u2014 \u201cnow there goes a womanI would like to be my mother.\u201d \u00a0More to the point of this essay, she didn\u2019t check off my name on a list of candidates vying for that position. \u00a0She didn\u2019t choose me, nor I her. \u00a0We were thrust into our role relation by an accident of genetics \u2014 just like the sovereign and subject of a hereditary monarchy.<\/p>\n<p>Here, I realize that I need to clarify that the mother daughter role relation I mean to reference as the source of maternal\/filial connection is practical, not biological. \u00a0Just as my daughter did not fall in love with me on a playground, so I did not instantly love the baby that came from inside me. \u00a0I did the things mothers do and love followed. \u00a0And though it is, as she said, impossible to imagine, if she were not my child, I would not love her.<\/p>\n<p>The way I love Lincoln seems utterly bound up in her unique individual self \u2014 in the way she raises her eyebrows when she makes a joke, in her voice, her joyousness, her smell. \u00a0And yet, it is undeniable that if she were not my daughter \u2014 if she were just exactly who she is in every other way but some other relationship brought us into daily contact \u2014 I might recognize and appreciate all those same qualities, but I would not love her \u2014 passionately, totally and beyond all reason or restraint of any kind, indeed I doubt I would love her at all. \u00a0And just as soon as I write these words I want to take them back. \u00a0 That can\u2019t be right! \u00a0It\u2019s not possible, it can\u2019t be so \u2014 and, I feel as if in saying it I have just somehow threatened the safety of that connection \u2014 it is like a kind of sedition, true as it may be. \u00a0For how can a relationship be both so contingent and, once formed, so indissoluble?<\/p>\n<p>I pledge allegiance to the flag, of the United States of America, and to the republic, for which it stands . . . .<\/p>\n<p>So, going back to Blackstone\u2019s allegiance between sovereign and subjects the thing that strikes me now is what this all means for the importance of the role of \u201cchoice\u201d in democratic government. \u00a0Because in the standard Lockean, libertarian account of representative democracy, choice is everything. \u00a0The entire legitimacy and a large part of the efficacy of government and the rule of law is supposed to flow from the fact that in a democracy citizens\u00a0<em>choose<\/em>\u00a0to be bound to that government and by its laws. \u00a0Moreover, in an electoral democracy, citizens choose who that government is. \u00a0We think this guy is absolutely great, so we make him \u00a0our president. \u00a0And that is supposed to matter.<\/p>\n<p>Of course I\u2019m not suggesting that the feeling of connection doesn\u2019t also depend on how good a parent or a sovereign the person turns out to be \u2014 however s\/he is selected. \u00a0But in the classic social contract story, quite apart from how good they are at their jobs, or how good they are, period, it is supposed to matter greatly that government leaders\u00a0were freely chosen instead of genetically determined. \u00a0But for my connection to my daughter \u2014 and hers to me, that doesn\u2019t matter a bit. \u00a0Just as she wouldn\u2019t love me if I were not her mother, I dare say that she would not love me more if, instead of having me thrust upon her, she had selected me. \u00a0But why not? \u00a0Shouldn\u2019t her allegiance be greater to a mother she had picked for her excellent qualifications \u2014 or because of a mad attraction \u2014 than to a mother she got stuck with in the biological lottery?<\/p>\n<p>It\u2019s interesting that the role of choice is so different in these two kinds of connection, in our 21st century democracy. \u00a0Choice is the source, the fountain of our allegiance to government. \u00a0In our allegiance to children and to parents it\u2019s out of the picture. \u00a0Of course as soon as I say that, I realize that in terms of the choice to have a child at all (as opposed to the ability to choose who your children will be) \u201cchoice\u201d has a huge role in the liberal conception of maternal allegiance. \u00a0Indeed, a big part of the argument in favor of abortion rights is the idea that if someone is forced to be a mother, rather than choosing to be one, she won\u2019t be a very good one. \u00a0And indeed isn\u2019t one of the, often unspoken, critiques of that position an idea that in rationalizing motherhood in this way \u2014 in making the relationship between a mother and her child more chosen and less accidental \u2014 something is lost, \u00a0that in some way the depth of feeling I have been describing between a parent and child depends on being flung into that relationship by fate, rather than walking into it with your eyes open, as a matter of deliberate choice? \u00a0And come to think of it the choice-based allegiance of modern electoral democracy has its counterpart in family relations too: \u00a0 Unlike one\u2019s child, in the U.S.A. today, one\u2019s spouse is a matter of individual choice, with at least the ideal that affective connection precedes marriage. \u00a0In this light the move from monarchy to electoral democracy looks like the shift from arranged marriage to a love match.<\/p>\n<p>For that matter it would be easy to see the development of electoral democracy as part of a larger modern trend toward rationalization and abstraction in all forms of social relations in families and governments generally. \u00a0You might think that the founders of our republic were looking to repudiate exactly the kind of heated up, emotional, irrational connection between sovereign and subject that appears in the\u00a0<em>Commentaries<\/em>. \u00a0Blackstone himself laments the rationalization of the British oath of allegiance that took place after the English revolution, substituting a \u201cmore general and indeterminate\u201d promise to be \u201cfaithful and bear true allegiance to the king\u201d for the older, more visceral promise \u201cto be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom.\u201d \u00a0p. 356 \u00a0The thing is, as everyone knows, there is nothing cooly rational about our modern system of electing government officials.<\/p>\n<p>Finally, all this makes me wonder about \u00a0that crazy rumor that our current chosen leader was born abroad and is thus ineligible to be president under the\u00a0<a href=\"http:\/\/www.usconstitution.net\/xconst_A2Sec1.html\" target=\"_blank\" rel=\"noopener noreferrer\">constitutional clause<\/a>\u00a0that says the U.S. president must be \u201ca natural born Citizen.\u201d \u00a0First of all, focusing on the role of choice in ties to democratic government makes me wonder why the U.S. Constitution includes the requirement that a presidential candidate be a native in the first place. \u00a0 Because if the choice to be governed is what distinguishes a democratic citizen, you would think that naturalized citizens would get priority when we chose our governmental leaders. \u00a0After all, these are the people who come closest to actually instantiating the social contract ideal \u2014 the ones who have stepped forward and selected the United States and its governmental structure as their government of choice and sworn an oath to defend them. \u00a0(I seem to recall Sanford Levinson arguing this point in his excellent book\u00a0<a href=\"http:\/\/www.amazon.com\/Constitutional-Faith-Sanford-Levinson\/dp\/0691023212\/ref=sr_1_1?ie=UTF8&amp;s=books&amp;qid=1251209588&amp;sr=1-1\" target=\"_blank\" rel=\"noopener noreferrer\">Constitutional Faith,<\/a>\u00a0which I don\u2019t have in front of me so I can\u2019t check the reference.)<\/p>\n<p><a href=\"http:\/\/avalon.law.yale.edu\/18th_century\/blackstone_bk1ch10.asp\" target=\"_blank\" rel=\"noopener noreferrer\">This chapter<\/a>\u00a0of the Commentaries suggests that the native birth requirement in the U.S. constitution may be just another vestige of the English system that sort of came along for the ride without a great deal of consideration. \u00a0Blackstone reports that in England, although naturalization puts an alien \u201cin exactly the same state as if he had been born in the king\u2019s ligeance,\u201d \u00a0no naturalized citizen could be a member of either privy council or parliament. \u00a0p 362 \u00a0The more I read Blackstone, the more I realize how much of the 18th Century British parliamentary monarchy got passed along to our U.S. government. \u00a0It may be that the native birth prerequisite was simply transposed by the constitution\u2019s framers from the parliamentary to the presidential context, without stopping to consider that the U.S. Constitution\u2019s underlying political theory ought to reverse, or at least erase, the preference for accidental native birth. \u00a0Then again, the fact that the\u00a0<a href=\"http:\/\/www.usconstitution.net\/xconst_A1Sec2.html\" target=\"_blank\" rel=\"noopener noreferrer\">constitution\u00a0<\/a>expressly allows legislators to be naturalized citizens makes this theory less plausible.<\/p>\n<p>If I were looking for a more geneaological explanation, I might say that in the nativist preference for the presidency, we seem to have preserved a role for chance in determining the object of our allegiance. \u00a0Maybe the important feature is not so much the requirement of native birth as the\u00a0<em>absence<\/em>\u00a0of rational choice in meeting that requirement. \u00a0It\u2019s as though on some level the constitution injects back into the carefully structured method of choosing our nation\u2019s leader a role for a kind of arbitrariness, of luck and fate, more associated with emotional than rational ties.<\/p>\n\n<div class=\"twitter-share\"><a href=\"https:\/\/twitter.com\/intent\/tweet?via=HedgehogsFoxes\" class=\"twitter-share-button\">Tweet<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"<p>Jessie Allen, School of Law, University of Pittsburgh BOOK I. \u00a0Chapter the tenth. Of the PEOPLE, whether ALIENS, DENIZENS, or NATIVES. This chapter\u00a0is about the different legal statuses of residents within a governmental territory.&#46;&#46;&#46;<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-2961","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-LL","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2961","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=2961"}],"version-history":[{"count":4,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2961\/revisions"}],"predecessor-version":[{"id":3020,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2961\/revisions\/3020"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=2961"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=2961"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=2961"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}