Illegitimate borders: jus sanguinis citizenship and the legal construction of family, race, and nation.

• Author: Collins, Kristin A.
• Position: Introduction through II. Guyer's Legacy B. Guyer as a Rule of Empire 2. Half-Castes, Polygamy, and the Presumption of Legitimacy, p. 2134-2167

ARTICLE CONTENTS INTRODUCTION I. PERSONAL STATUS LAWS, CITIZENSHIP, AND THE CIVIL WAR A. Guyer v. Smith B. Domestic Relations Law and the Legal Construction of Race II. GUYER'S LEGACY A. A Primer on Racially Nativist and Gender-Based Nationality Laws B. Guyer as a Rule of Empire 1. Samoa and "an Institution of Our Civilization" 2. Half-Castes, Polygamy, and the Presumption of Legitimacy 3. Presumptions and the Pliability of Domestic Relations Law C. Guyer as a Rule of Exclusion 1. Chinese American Fathers and Jus Sanguinis Citizenship 2. The Legitimation Exception and Polygamous "Stock-Farms" 3. Race, Polygamy, and Legitimacy D. The Practice of Jus Sanguinis Citizenship III. THE GUYER RULE IN THE MODERN ERA OF NATIONALITY LAW A. Modernizing and Codifying Guyer: The Drafting of the Nationality Act of 1940 1. Women's Claims to Equal Citizenship Rights as a Threat to the Exclusion Laws, 1922-1940 2. Nonmarital Children of American Fathers and the Proposed Code 3. The Maternalist Exception: Nonmarital Children of American Mothers B. The Guyer Rule at War: War Brides, War Babies, and "Bui Doi" C. On Nation Building, Nationality, and Family Law IV. REFLECTIONS ON THE PRACTICE AND POLITICS OF MODERN DERIVATIVE CITIZENSHIP A. Re-reading the Present B. "Biological Inevitability" and Constitutional Choices CONCLUSION INTRODUCTION

[I]t seems clear that illegitimate half-castes born in semi-barbarous countries of American fathers and native women are not American citizens.

--Edwin Borchard, The Diplomatic Protection of Citizens Abroad (1915)

Children born in the United States are citizens by virtue of the Fourteenth Amendment's Citizenship Clause, but the citizenship status of children born to Americans living outside the United States is governed by a complex set of statutes. (1) When the parents of such children are unmarried, those laws encumber citizenship transmission between the father and his child, while providing nearly automatic citizenship transmission between an American mother and her child. (2) In three constitutional challenges to the gender-based regulation of parent-child citizenship transmission-Miller v. Albright, Nguyen v. INS, and Flores-Villar v. United States--the Supreme Court upheld these distinctions while laboring to explain why Congress has drawn such sharp lines between the nonmarital children of American mothers and fathers. (3) Historians and legal scholars have also addressed this issue, and the resulting scholarship has largely focused on the origin of the gender-based regulation of jus sanguinis citizenship in the traditional cultural and legal norms that governed mothers' and fathers' respective parental rights and responsibilities outside marriage, and the perpetuation of those norms in what is now called derivative citizenship law. (4)

In this Article, I argue that a primary and overlooked explanation for the development and durability of gender-asymmetrical jus sanguinis citizenship law was the felt need of judges, administrators, and legislators to further the racially nativist policies (5) that were central to American nationality law until 1965. (6) At formative moments in the development of American nationality law, gender- and marriage-based domestic relations laws (7) were enlisted by administrators, judges, and legislators to deny the citizenship claims of nonwhite children, especially those who were excludable under the race-based immigration and naturalization laws.

Although the statutes governing parent-child citizenship transmission were facially race neutral, the practices and legal regulation of family formation and recognition were not. Once incorporated into jus sanguinis citizenship law by judges, administrators, and legislators these racialized domestic relations law principles could be, and regularly were, used to exclude nonwhite children from citizenship. In some instances, these racialized practices were explicit as administrators and legislators incorporated race-based domestic relations laws governing marriage and legitimacy into jils sanguinis citizenship law. (8) In other instances the practices were race salient, in that officials used restrictive conceptions of marriage and legitimacy in cases involving jus sanguinis citizenship claims of nonwhite children. (9) Regardless of the particular means by which citizenship transmission between American fathers and their nonmarital foreign-born children was restricted, it is clear that gender-based domestic relations law principles incorporated into jus sanguinis citizenship law served a larger racially nativist nation-building project. (10) And they did so in a very literal way: by determining which citizens' children would be recognized as citizens, they helped regulate the actual reproduction (11)--and racial composition--of the citizenry. By focusing on the citizenship status of children, (12) this history makes visible, in granular detail, the means by which laws regulating birth status--long used to create and maintain racial social and legal hierarchies within the American polity (13)--were regularly used to shape the racial composition of the polity as well.

My account begins in Part I with a little-studied but influential case decided by the Maryland Court of Appeals in 1864, Guyer v. Smith. (14) In Guyer the court denied the citizenship claims of two brothers born in St. Barthelemy. The Guyer brothers' American father was white, but their mother was reportedly "of African descent." The jus sanguinis citizenship statute then in effect recognized as citizens foreign-born "children of persons who ... are ... citizens of the United States." (15) The statute was silent regarding the marital status of the parents, but the Guyer court declared that foreign-born illegitimate children of American fathers were not citizens under the statute. The Guyer court said very little about race, but even as the legal substructure of slavery was crumbling, it silently incorporated into citizenship law a set of domestic relations law principles that had been instrumental to the maintenance of slavery and the denial of citizenship for persons of African descent: laws that recognized the unmarried mother as the source of status for her children, including slave status. (16)

The Guyer case is a crucial starting point for any thorough examination of the evolution of jus sanguinis principles as applied to the citizenship claims of nonmarital foreign-born children of American fathers. (17) As shown in Part II, Guyer's legacy was long and impressive, as the opinion became part of the legal lexicon of American citizenship and empire over the course of the nineteenth and into the early twentieth century. The interpretive rule that nonmarital foreign-born children of American fathers were not citizens figured prominently in administrative decisions concerning the citizenship status of Samoan-born children of American fathers (18) and was also deployed in efforts to enforce race-based exclusion statutes--the laws that barred the entry of Chinese, and eventually all Asians, into the United States. (19) The Guyer rule (20) thus served as an important resource for judges and administrators, who were regularly called on to interpret the jus sanguinis citizenship statute in the course of administering racially restrictive immigration laws.

The jus sanguinis citizenship statute, although modified several times, remained silent on the question of nonmarital children's citizenship (21) until 1940, when Congress codified a modernized version of the Guyer rule by continuing the default exclusion of nonmarital foreign-born children of American fathers. (22) Part III tells the story of how and why pre-1940 judicial and administrative rulings concerning the citizenship of nonmarital children became the basis of the Nationality Act's jus sanguinis provision--a provision that, in its basic contours, survives to this day. It then turns to the implementation of the jus sanguinis statute during the U.S. military's multi-decade tour of duty in Europe and Asia. In these theaters of war, the jus sanguinis citizenship laws operated in tandem with race-based immigration laws and race-based military marriage policies to exclude Amerasian children from citizenship. (23) In sum, well into the twentieth century, officials charged with policing membership in the American polity consistently relied on the gender- and marriage-based regulation of jus sanguinis citizenship to help enforce racially nativist nationality policies.

The fact that, during significant periods of American history, nationality law was designed and implemented in ways that served racially nativist objectives is not news, nor is the fact that many of the laws used to achieve those objectives were facially race neutral. (24) What is distinctive about the account of jus sanguinis citizenship provided here is the particular legal technology that was enlisted in the service of a nativist agenda: durable but pliable gender-based domestic relations law principles. (25) In this regard, this detailed history of jus sanguinis citizenship contributes to a growing body of literature that examines the important roles nationality law played in nation-building and in the development of the administrative state by examining the central role that family law played in those processes. As others have demonstrated, much of the administrative apparatus developed to implement the increasingly elaborate body of federal nationality law in the late nineteenth and early twentieth century was built up in the service of a nativist agenda. (26) The history of jus sanguinis citizenship law demonstrates that laws governing marriage and birth status served this agenda as well, and they did so by providing officials with an exclusionary tool that appeared both natural and race neutral in the lines it drew between citizen and noncitizen. (27)

For some students of American nationality law, the importance of this...