In 1858, Catharine Barr wrote to the Pension Commissioner in Washington, D.C., seeking reinstatement of her widow's pension. Barr explained that she had been married to two men who had died in the service of the United States: first to George Bundick, “a young and beloved husband” who had died in the War of 1812; then to William Davidson in 1835, who had died in 1836 of injuries sustained while serving on the USS Vandalia. She acknowledged that she was not, strictly speaking, a widow, as her current husband, James Barr, was still living and they were still married. She nevertheless sought reinstatement of the pension she had been granted as Davidson's widow. Pursuant to the terms of the relevant pension statute, Barr's pension had terminated upon her remarriage to James. However, as Barr explained to the commissioner, James “has neither been with me or given me one Dollar for my support since 1849, and I know not his whereabouts.” Having also lost her father in the War of 1812, Barr saw herself as particularly deserving of the federal government's assistance and believed that she and other widows in her position had a claim on the national coffers. “I for one,” she implored, “have no Dependence on Earth only what comes through my relations.”
Costica Dumbrava maintains that ius sanguinis citizenship is a historically tainted, outmoded, and unnecessary means of designating political membership. He argues that it is time to abandon it. His proposal is bold, and it has significant implications for an array of policies and practices. The parentchild relationship not only serves as a basis for citizenship transmission; it also entitles individuals to immigration preferences, and-in some countries-it facilitates automatic or 'derivative' naturalisation of the children of naturalised parents. In many countries that recognise ius soli citizenship, the parent-child relationship serves as an added requirement: one must be born in the sovereign territory and be the child of a citizen or a long-term legal resident. Dumbrava limits his challenge to ius sanguinis citizenship per se, and even suggests that family-based migration rights could be used to minimise the disruptive effect of abolishing citizenship-by-descent. But his core complaints about ius sanguinis citizenship-the mismatch of biological parentage and political affinity, the difficulties of determining legal parentagecan be, and have been, levied against these various family-based preferences and statuses, which are likely found in every nation's nationality laws. It is therefore important to consider his proposal in light of the role that the parent-child relationship plays in the regulation of migration, naturalisation, and citizenship more generally. With this broader context in mind, I concur with Rainer Bauböck and Jannis Panagiotidis that Dumbrava's proposal rests on an under-informed assessment of the historical record. I also argue that that, as a remedy for the problems that he has identified, Dumbrava's proposal is at once too restrained and too radical.
The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal courts’ power to issue and enforce equitable decrees to be an essential, constitutionally endowed dimension of the judicial function. Charting the demise of that theory over the first four decades of the twentieth century, this essay highlights the roles of social movements and, especially, of legal elites in forging and canonizing a new understanding of judicial power, and in normalizing debate over “who decides” as a routine dimension of ideologically divisive socio-legal disagreements in American political life.
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