James Fox


Sections two and three of the Fourteenth Amendment, being more political than legal enactments, have had essentially no judicial or legal development. Yet even the first sentence of section one and the ensuing Privileges or Immunities Clause have had relatively little play in the courts. With the single exception of the 1999 case of Saenz v. Roe, 6 the citizenship language of the Fourteenth Amendment has practically no legal significance.

Still, these approaches to equal or constitutional citizenship represent a starting point, not a conclusion. Taking up the invitations of these scholars, my project is to delve more deeply into the possible meanings of constitutional citizenship, but to do so from a different angle. Somewhat in the tradition of the popular constitutionalism scholars, I propose that the best source for meanings of constitutional citizenship will come not from traditionally originalist sources but from those who attempted to redefine citizenship in a more egalitarian and democratic manner and who established, both in word and in practice, meanings for citizenship on the ground. To do this, however, I will borrow a theoretical framework from political and social theory: the theories of civil society and the public sphere. I do so because I think they capture—in ways often missed by both legal scholars and historians—the structure of nineteenth century social experience while at the same time also connecting this experience to modern notions of politics and society. After explicating some of the main principles of civil society and public sphere theory, I will then analyze a particular form of civil society and the public sphere that I think reveals important aspects of democratic citizenship—the black convention movement. As we will see, this movement both enacted citizenship on the ground and engaged in a discourse about citizenship in the public sphere that presented alternative visions of citizenship. Ultimately this experience shows how one essential aspect of citizenship is the creations of spaces for citizenship activities and engagement with the democratic public sphere.