Professor Kunal M. Parker: Rethinking America’s Legal History

BY:  
CREATED:  

Professor Kunal ParkerKunal M. Parker enjoys challenging assumptions about America’s legal history. “It’s not just our knowledge of history, the stuff of the past, that changes,” said Parker, who is Professor of Law and Dean’s Distinguished Scholar at Miami Law. “By looking at the basic structure of the historical narrative—and how that has changed over time—we gain new insights about how we think about the past and its relationship to the present.”

Since joining the School of Law’s faculty in 2009, Parker has taken a fresh look at important legal issues, such as the role of the common law in nineteenth-century America and the evolution of U.S. immigration and citizenship law. In recognition of his ground-breaking studies, Parker was awarded a fellowship by the National Humanities Center, and spent the 2014-15 academic year in the Research Triangle, North Carolina, sharing ideas with about forty other scholars drawn from a range of disciplines and hailing from many countries. (Parker was the only legal scholar to have received the fellowship.) “This was an immensely rewarding experience for me,” Parker said. “It allowed me to be engaged with a diverse community of scholars, many of whom I would never have gotten to know, as I was completing my new book.”

Looking at ‘foreignness’

Parker’s new book, Making Foreigners: Immigration and Citizenship Law in America, 1600-2000, was published in late September by Cambridge University Press. It seeks to expand the idea of “foreignness” beyond the traditional concept of “outsiders” immigrating to the United States.

“Americans have a long history of naming people as foreign, including Native Americans, free Blacks, and women who married non-American men,” he said. “They also have a long history of placing territorial restrictions on the movement of the poor. That realization led me to rethink what it has meant to be a foreigner over the long span of American history and how that has changed over time.”

During the pre-Civil War era, for example, state legislatures and judiciaries routinely classified free Blacks and out-of-state poor as foreigners. At the same time, the beginnings of mass immigration to the United States after 1820 resulted in the passage of laws among east coast immigrant-receiving states to restrict the entry of poor immigrants. “When the major international shipping lines challenged those state immigration laws, the U.S. Supreme Court was careful not to strike them down completely,” Parker said. “That was because of concerns about regulating internal foreigners. As long as the slave states insisted upon their right to exclude and remove free Blacks from other states, states would continue to possess the right to exclude immigrants.”

Only when the 14th Amendment extended federal and state citizenship to native-born Blacks after the Civil War did the U.S. Supreme Court strike down those state immigration laws in favor of a federal policy. In other words, there would have been no federal immigration regime without the end of slavery. This is just one of the many connections between Americans’ treatment of immigrants and their treatment of internal foreigners. “Over the past 300 years, we have changed our concepts of citizen and alien in ways that might not have made sense to our nation’s founders,” Parker said.

Commenting on Parker’s new book, Professor Linda K. Kerber, an emeritus professor at University of Iowa and one of the United States’ leading historians of women and gender, said, “Kunal Parker has accomplished the remarkable feat of challenging us to think differently about concepts—what it is to belong, what it is to be alien—that once seemed simple. As we struggle in our own political moment to reform immigration law, ‘Making Foreigners’ offers indispensable perspective.”

A noted legal researcher

A native of India, Parker grew up in Bombay (now Mumbai) and came to the U.S. in 1986 to study at Dartmouth College. He transferred to Harvard University and earned a bachelor’s degree in economics in 1990. Parker went on to Harvard Law School, where he was editor of the Harvard Law Review and Harvard Human Rights Journal, before graduating cum laude in 1994.

While in law school, Parker returned to India for a year. “1992-93 in India was a time of intense cultural polarization and renewed interest in the nation’s history,” said Parker. This led to his interest in Indian legal history, and he began research that led to his first scholarly article, “A Corporation of Superior Prostitutes— Anglo-Indian Legal Conceptions of Temple Dancing Girls, 1800–1914,” published in 1998 in Modern Asian Studies. The article is an exploration of how religious and secular conceptions of marriage and sexuality were used to criminalize groups of temple servants in nineteenth-century colonial India.

After earning his law degree, Parker joined the New York law firm Cleary, Gottlieb, Steen & Hamilton as an associate specializing in derivatives regulation, corporate bankruptcy, and securities law. During his time at Cleary, Gottlieb, Parker was also busy with pro bono representation of political asylum applicants.

He practiced at the firm for two years and then accepted a faculty position at Cleveland-Marshall College of Law where he taught until 2009. In 2001, he took an extended leave to study American history, earning a master’s degree in history in 2003 and a doctorate in history in 2007 from Princeton University.

Along the way, Parker received fellowships from New York University Law School, Cornell Law School, and the William Nelson Cromwell Foundation for his studies. He also participated in the St. Petersburg Summer Law Institute leading a seminar on comparative U.S. and Russian legal history.

In 2009, Parker joined Miami Law where he typically teaches first-year classes on property law and estates and trusts, as well as smaller seminars on topics related to his current research. In smaller seminars, students read a book or more for every session, something that law students are unaccustomed to doing. “I believe that it’s important for law students to be able to understand and digest books quickly and intelligently,” he said. “History monographs have certain assumptions and present sets of arguments. To be able to absorb and make sense of a significant amount of material is a valuable skill for any lawyer.”

Parker, who speaks French, German, Hindi, Marathi, and Spanish, appreciates Miami’s multicultural environment. “I grew up in a multilingual country, so I love Miami’s easy bilingualism. South Florida attracts people from around the world with different ways of thinking,” he said. “That creates an atmosphere where we can learn from each other and where new ideas can emerge and flourish.”

Active researcher and commentator

Parker has been in the forefront of legal historical research for many years, serving as co-editor of the Legal History Section of Jotwell, on the editorial boards of PoLAR: Political and Legal Anthropology Review and Law and Social Inquiry, and as an outside reviewer for several journals and university presses. He has also been active in the Law and Society Association and in the American Society for Legal History.

Parker’s first book, Common Law, History, and Democracy in America, 1790- 1900—Legal Thought before Modernism, published by Cambridge University Press in 2011, is an exploration of the relationships between legal, historical, and political thought in America before the “Holmesian revolution” in legal thought around 1900.

“Most contemporary historians have considered law in the nineteenth century as nothing other than a different version of politics,” Parker said. “From that perspective, the decisions by unelected, common law judges could be considered an encroachment on the democratic process.” However, Parker’s book argues that nineteenth-century Americans saw things very differently. The significance that nineteenth-century Americans placed on God, morality, reason, logic, and other foundations meant that not everything was seen as “mere” politics. Law, specifically the common law, had a special role to play in such a polity, a role that it would lose in the twentieth century.

Parker said he has begun thinking about his next book project. The book will be a study of American legal thought in the middle decades of the twentieth century and will seek to explore the relationships between modernism and conservatism. He said: “Like many intellectual historians, I enjoying taking on subjects in law, history, and our society that make us question our assumptions, take a fresh look at the facts, and continue the learning process.”