“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.

“descendants of races indigenous to the Western Hemisphere” in the Naturalization Act of 1940 (Haney López)

During the war, the United States seemed through some of its laws and social practices to embrace the same racism it was fighting. Both fronts of the war exposed profound inconsistencies between U.S. naturalization law and broader social ideals. These considerations, among others, led Congress to begin a process of piecemeal reform in the laws governing citizenship.

In 1940, Congress opened naturalization to “descendants of races indigenous to the Western Hemisphere.”[39] Apparently, this “additional limitation was designed to ‘more fully cement’ the ties of Pan-Americanism” at a time of impending crisis.[40] In 1943, Congress replaced the prohibition on the naturalization of Chinese persons with a provision explicitly granting them this boon.[41] In 1946, it opened up naturalization to persons from the Philippines and India as well.[42] Thus, at the end of the war, our naturalization law looked like this:

The right to become a naturalized citizen under the provisions of this Act shall extend only to–

(1) white persons, persons of African nativity or descent, and persons of races indigenous to the continents of North or South America or adjacent islands and Filipino persons or persons of Filipino descent;

(2) persons who possess, either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (1);

(3) Chinese persons or persons of Chinese descent; and persons of races indigenous to India; and

(4) persons who possess, either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (3) or, either singly or in combination, as much as one-half blood of those classes and some additional blood of one of the classes specified in clause (1).[43]

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 45.
  1. [39]Act of Oct. 14, 1940, ch. 876, § 303, 54 Stat. 1140
  2. [40]Note, The Nationality Act of 1940, 54 HARV. L. REV. 860, 865 n.40 (1941)
  3. [41]Act of Dec. 17, 1943, ch. 344, § 3, 57 Stat. 600.
  4. [42]Act of July 2, 1946, ch. 534, 60 Stat. 416.
  5. [43]Id.

“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; […]

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