“it appears that the word ‘white’ has been used in colonial practice, in the federal statutes, and in the publications of the government to designate persons not otherwise classified.” (Halladjian, qtd in Haney Lopez)

1909 – Halladjian: “the word ‘white’ has been used… to designate persons not otherwise classified” / WBL p. 99

Science failed to prove what was to the courts eminently obvious, the existence of natural racial differences. In the fifty-two reported prerequisite decisions, only one court concluded that the term “white person” referred not to a natural category but only to a legal one. In this anomalous 1909 case, a federal district court sitting in Boston examined and dismissed various anthropological and geographic definitions of a “white” race before adopting a textual approach to the question of whether Armenians could naturalize. Examining statutes and census documents dating back to the original colonies, the court said “it appears that the word ‘white’ has been used in colonial practice, in the federal statutes, and in the publications of the government to designate persons not otherwise classified.”[57] Since Congress had not designated Armenians as non-Whites, the court concluded, they were still legally White and eligible for naturalization. Every other court deciding a prerequisite case, including the Supreme Court, continued to believe that races were natural and self-evident.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 99.
  1. [57]Halladjiansupra, 174 F. at 843.

“That no judge naturalized a person identified as having dark skin suggests an unwillingness among the courts to find such persons White” (Haney Lopez)

??? What about Rodriguez, seems like an exception here ??? / WBL 69ff

Despite Judge Newman’s assertion in Najour that the term “white person” “refers to race, rather than to color, and fair or dark complexion should not be allowed to control” in questions of naturalization, no judge, not even Judge Newman, was particularly comfortable with this legal point. Instead, the decisions betray judicial antipathy toward allowing dark-skinned persons to naturalize as Whites, a predictable response of the times. This antipathy can be seen in the way the various courts discussed the applicants’ skin color. Consider two decisions denying petitions for citizenship issued by a federal court in South Carolina. In the first, the judge said of the petitioner, “in color, he is about that of a walnut, or somewhat darker than is the usual mulatto of one-half mixed blood between the white and negro races.”[58] In the next, the same judge described another ill-fated applicant as “darker than the usual person of white European descent, and that of tinged or sallow appearance which usually accompanies persons of descent other than purely European.”[59] Though the judge did not identify skin color as a determining factor in his decisions, that the court thought it necessary to describe the applicants’ complexions suggests that this factor contributed to the decisions to deny them naturalization. Concern over skin color also manifests itself, albeit in different form, in those decisions allowing applicants to naturalize. Courts ruling for naturalization either noted the applicants light skin color or remained silent as [69] to physical features. That no judge naturalized a person identified as having dark skin suggests an unwillingness among the courts to find such persons White. This is true even of Judge Newman. In Najour, he wrote of the applicant: “He is not particularly dark, and has none of the characteristics or appearance of the Mongolian race, but, so far as I can see and judge, has the appearance and characteristics of the Caucasian race.”[60] Similarly, another federal court admitting several Armenian applicants remarked that they were “white persons in appearance, not darker in complexion than some persons of northern European descent traceable for generations.”[61] Najour‘s holding that color was legally irrelevant to race proved highly troublesome to the courts considering prerequisite cases, both to those deciding upon the application of persons perceived as dark-skinned, and, to a lesser degree, to those finding the petitioners before them White.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 69ff.
  1. [58]Shahidsupra, 205 F. at 813.
  2. [59]Ex parte Dowsupra, 211 F. 486; In re Dowsupra, 213 F. 355.
  3. [60]Najoursupra, 174 F. at 735.
  4. [61]Halladjiansupra, 174 F. at 835.

“Race is often seen in fixed terms, either as a biological given or a static social category. However, as the debates about race at the turn of the century demonstrate, racial categorization is a fluid process that turns not only on prejudice, but also on factors ranging from dubious science to national honor.” (Haney Lopez)

fluidity & contested nature of racial categories / WBL p. 63

Not everyone agreed with Wigmore in his willingness to support Japanese but not Chinese naturalization. Wigmore’s preference for the Japanese contrasts with the preference articulated by the editor of the Fresno Republican, Chester Rowell, in 1909. While against both Chinese and Japanese immigration in principle, as a businessman Rowell favored the Chinese: “Taking for the moment this [businessman’s] viewpoint, we find the Chinese fitting much better than the Japanese into the status which the white American prefers them both to occupy–that of biped domestic animals in the white man’s service. The Chinese [63] coolie is the ideal industrial machine, the perfect human ox.”[41] Rowell’s argument demonstrates that views regarding the race of Japanese and Chinese persons and their fitness for citizenship turned on racial prejudice. Wigmore’s determined advocacy, however, shows that many other factors also entered into debates about who qualified as White. Race is often seen in fixed terms, either as a biological given or a static social category. However, as the debates about race at the turn of the century demonstrate, racial categorization is a fluid process that turns not only on prejudice, but also on factors ranging from dubious science to national honor.

An extraordinary number of rationales surfaced as criteria in the prerequisite decisions. However, in the complex task of racial definition, judges deciding prerequisite cases relied principally on four distinct rationales: (1) common knowledge, (2) scientific evidence, (3) congressional intent, and (4) legal precedent….

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 62-63.

 

  1. [41]Chester Rowell, Chinese and Japanese Immigrants–A Comparison, 34 ANNALS OF AM. ACAD. 223, 224 (July-Dec. 1909).

In re Rodriguez and “the favorable ruling for Rodriguez even though the court did not believe him to be White” (Haney López)

In re Rodriguez. Nach Haney López, court rules RR non-white but eligible anyway (?). Rodriguez as exception in early cases, decision treaty-driven. WBL 61.

Rationalizing Race: The Early Cases

Between 1878 and 1909, courts heard twelve prerequisite cases, rejecting the applicants’ claims in eleven of them. The courts barred the naturalization of applicants from China, Japan, Burma, and Hawaii, as well as that of two mixed-race applicants. Given the virulent anti-Asian prejudice of the times, these results are not surprising. In the one case during this period in which the petitioner did prevail, In re Rodriguez, a federal court in Texas in 1897 admitted to citizenship the “pure-blooded Mexican” applicant, but remarked that “[i]f the strict scientific classification of the anthropologist should be adopted, he would probably not be classed as white.”[35] the court allowed the applicant to naturalize on the basis of a series of treatise conferring citizenship on Spaniards and Mexicans in the wake of U.S. expansion into Florida and the Southwest.[36] Rodriguez was thus admitted despite the court’s belief that he was not White.[37] As the exception, Rodriguez proves the rule. In this initial period, courts virtually always opposed claims of Whiteness.

These early prerequisite cases are important, however, not in the results they reached, but because of the rationales offered by the courts in making racial assignments. The task of deciding who was White may at first glance [62] seem a simple one. However, the evidence suggests otherwise: the favorable ruling for Rodriguez even though the court did not believe him to be White; the tentativeness of the court in Ah Yup; and the naturalization of some Chinese such as Gee Hop even in the face the [sic] “white person” bar….

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 61ff.
  1. [35]In re Rodriguez, 81 F. 337, 349 (W.D.Tex. 1897).
  2. [36]Id. at 354. Despite the admission of Rodriguez to citizenship, Mexicans in the Southwest suffered considerable legal repression in the decades after the U.S. conquest of that region. See generally RODOLFO ACUÑA, OCCUPIED AMERICA: A HISTORY OF CHICANOS (3rd. ed. 1988). The history of legal resistance to such repression is examined in George Martínez, Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980, 27 U.C. DAVIS L. REV. 555 (1994).
  3. [37]The Supreme Court subsequently drew into question the holding in Rodriguez. Morrison v. California, 291 U.S. 82, 95 n.5 (1933). The Court wrote: “Whether a person of [Mexican] descent may be naturalized in the United States is still an unsettled question. The subject was considered in Matter of Rodriguez, but not all that was there said is consistent with later decisions of this court.” For a commentator’s criticism of Rodriguez on the grounds that Mexicans are not “white persons,” see Gold, supra., at 499-501.

“National citizenship gained significance only in the wake of the Civil War and the Fourteenth Amendment” (Haney López)

significance of the nationalization of citizenship vs. old state citizenship system / WBL p. 50

The lag between the enactment of a racial prerequisite for naturalization and its first legal test may partly reflect the relative insignificance of federal as opposed to state citizenship during this country’s first century. Prior to the Civil War, state citizenship was more important than federal citizenship for securing basic rights and privileges. National citizenship gained significance only in the wake of the Civil War and the Fourteenth Amendment. After 1870, “[a]ll persons born within the dominion and allegiance of the United States were citizens and constituents of the sovereign community. Their status with respect to the states depended upon this national status and upon their own choice of residence, and it could not be impeached or violated by state action.”[3] Thus, the spate of naturalization cases that began in 1878 may reflect the increased importance of national versus state citizenship after the civil war.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 50.

 

  1. [3]Ichioka, supra, at 12.

“it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives)” (Haney López)

1855, 1868: only ‘white women’ can gain citizenship by marriage; loss of citizenship to white women married to barred men. / WBL p. 46

Notice the mention of gender in the statutory language ending racial restrictions in naturalization. The issue of women and citizenship can only be touched on here, but deserves significant study in its own right.[46] As the language of the 1952 Act implies, eligibility for naturalization once depended on a woman’s marital status. Congress in 1855 declared that a foreign woman automatically acquired citizenship upon marriage to a U.S. citizen, or upon the naturalization of her alien husband.[47] This provision built upon the supposition that a woman’s social and political status flowed from her husband. An 1895 treatise on naturalization put it, “A woman partakes of her husband’s nationality; her nationality is merged in that of her husband; her political status follows that of her husband.”[48] A wife’s acquisition of citizenship, however, remained subject to her individual qualification for naturalization–that is, on whether she was a “white person.”[49] Thus, the Supreme Court held in 1868 that only “white women” could gain citizenship by marrying a citizen.[50] Racial restrictions further complicated matters for noncitizen women in that naturalization was denied to those married to a man racially ineligible for citizenship, irrespective of the [47] woman’s own qualifications, racial or otherwise.[51] The automatic naturalization of a woman upon her marriage to a citizen or upon the naturalization of her husband ended in 1922.[52]

The citizenship of American-born women was also affected by the interplay of gender and racial restrictions. Even though under English common law a woman’s nationality was unaffected by marriage, many courts in this country stripped women who married noncitizens of their U.S. citizenship.[53] Congress recognized and mandated this practice in 1907, legislating that an American woman’s marriage to an alien terminated her citizenship.[54] Under considerable pressure, Congress partially repealed this act in 1922.[55] However, the 1922 act continued to require the expatriation of any woman who married a foreigner racially barred from citizenship, flatly declaring that “any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen.”[56] Until Congress repealed this provision in 1931,[57] marriage to a non-White alien by an American woman was akin to treason against this country: either of these acts justified stripping of citizenship from someone American by birth. Indeed, a woman’s marriage to a non-White foreigner was perhaps a worse crime, for while a traitor lost his citizenship only after trial, the woman lost hers automatically.[58] The laws governing the racial composition of this country’s citizenry came inseverably bound up with and exacerbated by sexism. It is in this context of combined racial and gender prejudice that we should understand the absence of any women among the petitioners named in the prerequisite cases: it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives).

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 46-47.
  1. [46] See generally Ursula Vogel, Is Citizenship Gender-Specific? THE FRONTIERS OF CITIZENSHIP 58 (Ursula Vogel and Michael Moran eds., 1991).
  2. [47] Act of Feb. 10, 1855, ch. 71,§ 2, 10 Stat. 604. Because gender-based laws in the area of citizenship were motivated by the idea that a woman’s citizenship should follow that of her husband, no naturalization law has explicitly targeted unmarried women. GORDON AND MAILMAN, supra., at
    § 95.03[6] (“An unmarried woman has never been [statutorily] barred from naturalization.”).
  3. [48] PRENTISS WEBSTER, LAW OF NATURALIZATION IN THE UNITED STATES OF AMERICA AND OTHER COUNTRIES 80 (1895).
  4. [49] Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604.
  5. [50] Kelly v. Owen, 74 U.S. 496, 498 (1868).
  6. [51] GORDON AND MAILMAN, supra at § 95.03[6].
  7. [52] Act of Sept. 22, 1922, ch. 411, § 2, 42 Stat. 1021.
  8. [53] GORDON AND MAILMAN, supra at § 100.03[4][m].
  9. [54] Act of March 2, 1907, ch. 2534, § 3, 34 Stat. 1228. This act was upheld in MacKenzie v. Hare, 239 U.S. 299 (1915) (expatriating a U.S.-born woman upon her marriage to a British citizen).
  10. [55] Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.
  11. [56] Id. The Act also stated that “[n]o woman whose husband is not eligible to citizenship shall be naturalized during the continuance of the marriage.”
  12. [57] Act of March 3, 1931, ch. 442, § 4(a), 46 Stat. 1511.
  13. [58] The loss of birthright citizenship was especially harsh for those women whose race made them ineligible to regain citizenship through naturalization, especially after 1924, when the immigration laws of this country barred entry to any alien ineligible to citizenship. Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 162. See, e.g., Ex parte (Ng) Fung Sign, 6 F.2d 670 (W.D.Wash. 1925). In that case, a U.S. birthright citizen of Chinese descent was expatriated because of her marriage to a Chinese citizen, and was subsequently refused admittance to the United States as an alien ineligible to citizenship.

“In the wake of the Civil War, the ‘white person’ restriction on naturalization came under serious attack …. However, racial prejudice against Native Americans and Asians forestalled the complete elimination of the racial prerequisites” (Haney López)

1870 Senate debate, ‘white’ in national discourse explicitly opposed to non-black racial categories. / WBL p. 43

The history of racial prerequisites to naturalization can be divided into two periods of approximately eighty years each. The first period extended from 1790 to 1870, when only Whites were able to naturalize. In the wake of the Civil War, the “white person” restriction on naturalization came under serious attack as part of the effort to expunge Dred Scott. Some congressmen, Charles Sumner chief among them, argued that racial barriers to naturalization should be struck altogether. However, racial prejudice against Native Americans and Asians forestalled the complete elimination of the racial prerequisites. During congressional debates, one senator argued against conferring “the rank, privileges, and immunities of citizenship upon the cruel savages who destroyed [Minnesota’s] peaceful settlements and massacred the people with circumstances of atrocity too horrible to relate.”[30] Another senator wondered “whether this door [of citizenship] shall now be thrown open to the Asiatic population,” warning that do do so would spell for the Pacific coast “an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out.”[31] Sentiments such as these ensured that even after the Civil War, bars against Native American and Asian naturalization would continue.[32] Congress opted to maintain the “white person” prerequisite, but to extend the [44] right to “persons of African nativity, or African descent.”[33] After 1870, Blacks as well as Whites could naturalize, but not others.

During the second period, from 1870 until the last of the prerequisite laws were abolished in 1952, the White-Black dichotomy in American race relations dominated naturalization law. During this period, Whites and Blacks were eligible for citizenship, but others, particularly those from Asia, were not. …

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 43-44.

 

  1. [30]Statement of Senator Hendricks, 59 CONG. GLOBE, 42nd Cong., 1st Sess. 2939 (1866). See also John Guendelsberger, Access to Citizenship for Children Born Within the State to Foreign Parents, 40 AM. J. COMP. L. 379, 407-9 (1992).
  2. [31]Statement of Senator Cowan, 57 CONG. GLOBE, 42nd Cong., 1st Sess 499 (1866). For a discussion of the role of anti-Asian prejudice in the laws governing naturalization, see generally Elizabeth Hull, Naturalization and Denaturalization, ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 403 (Hyung-Chan Kim ed., 1992)
  3. [32]The Senate rejected an amendment that would have allowed Chinese persons to naturalize. The proposed amendment read: “That the naturalization laws are hereby extended to aliens of African nativity, and to persons of African descent, and to persons born in the Chinese empire.” BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY, 1850-1990, at 239 n.34 (1993).
  4. [33]Act of July 14, 1870, ch. 244, § 7, 16 Stat. 254.

“From the start, Congress exercised this power in a manner that burdened naturalization laws with racial restrictions” (Haney López)

Although the Constitution did not originally define the citizenry, it explicitly gave Congress the authority to establish the criteria for granting citizenship after birth. Article I grants Congress the power “To establish a uniform rule of Naturalization.”[26] From the start, Congress exercised this power in a manner that burdened naturalization laws with racial restrictions that tracked those in the law of birth-right citizenship. In 1790, only a few months after ratification of the Constitution, Congress limited naturalization to “any alien, being a free white person who shall have resided within the limits and under the jurisdiction of the United States for a term of two years.”[27] This clause mirrored not only the de facto laws of birthright citizenship, but also the racially restrictive naturalization laws of several states. At least three states had previously limited [43] citizenship to “white persons”: Virginia in 1779, South Carolina in 1784, and Georgia in 1785.[28] Though there would be many subsequent changes in the requirements for federal naturalization, racial identity endured as a bedrock requirement for the next 162 years. In every naturalization act from 1790 until 1952, Congress included the “white person” prerequisite.[29]

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 42-43.

 

  1. [26]U.S. Const. art. I, sec. 8, cl. 4.
  2. [27]Act of March 26, 1790, ch. 3, 1 Stat. 103.
  3. [28]KETTNER, supra, at 215-16.
  4. [29]One exception exists. In revisions undertaken in 1870, the “white person” limitation was omitted. However, this omission is regarded as accidental, and the prerequisite was reinserted in 1875 by “an act to correct errors and to supply omissions in the Revised Statutes of the United States.” Act of Feb. 18, 1875, ch. 80, 18 Stat. 318. See In re Ah Yup, 1 F. Cas. 223 (C.C.D.Cal. 1878). (“Upon revision of the statutes, the revisors, probably inadvertently, as Congress did not contemplate a change of the laws in force, omitted the words ‘white persons.'”).

U.S. Naturalization Act of 1790

Whiteness was a condition for U.S. citizenship.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the constitution of the United States, which oath or affirmation such court shall administer; […]

Facsimile of text below:

“If the word white means anything at all it means a great deal and if it does not mean anything at all it is entirely superfluous” (Navarro, Weeks)

Mr. Navarro said, that if the word white means anything at all it means a great deal, and if it does not mean anything at all it is entirely superfluous, as well as odious, and, if you please, ridiculous. He made no remark with the idea that this question had any relation to the Mexican people, for they are unquestionably entitled to vote. By the application [159] of the word white, certain persons may be qualified, &c.,–and others, though white as snow, yet not white by descent, be disqualified. That is to say, white negroes or the descendants of Africans, who, in the course of time become so nearly white that no distinction or scarcely any can be made. He was as much opposed to giving the right of suffrage to Africans to the descendants of Africans as any other gentleman. He hoped the Convention would be clearly convinced of the propriety and expediency of striking out this word. It is odious, captious and redundant: and may be the means at elections of disqualifying persons who are legal voters, but who perhaps by arbitrary judges may not be considered as white.

William F. Weeks, Reporter. Debates of the Texas Convention.  Houston, Tex.: J.W. Cruger, 1846158-159.