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

• Author: Collins, Kristin A.
• Position: II. Guyer's Legacy B. Guyer as a Rule of Empire 3. Presumptions and the Pliability of Domestic Relations Law through III. The Guyer Rule in the Modern Era of Nationality Law A. Modernizing and Codifying Guyer: The Drafting of the Nationality Act of 1940, p. 2167-2206

3. Presumptions and the Pliability of Domestic Relations Law

   Not all foreign-born children of American fathers were denied the benefit of the presumption of legitimacy and other liberal rules of recognition that were common in nineteenth-century domestic relations law. Presumptions concerning marriage and legitimacy, along with a healthy dose of administrative discretion, were incorporated into citizenship law, allowing for selective determinations of legitimacy and citizenship status--determinations that were shaped by considerations of the children's ethno-racial identity.

   For example, contrast Rives's insistence that, for purposes of determining the citizenship of foreign-born children of American fathers, the children must be born into a marriage that is "exclusive" and "for life" with the Department of State's treatment of Louis Rover in 1901. Louis was the son of Leon Jean Rover, an American born in New York, and Germaine Rivere, a Frenchwoman. (131) Louis was born out of wedlock in France in 1888, and his parents married three years later in London. Shortly afterward they legally parted and Louis remained with his mother. (132) Confronted with Louis's claim for citizenship, Department of State officials were uncertain how to proceed. Louis was born out of wedlock and therefore appeared to fall outside the jus sanguinis statute, which, as per Guyer, applied only to an American father's marital children. On the other hand, Leon and Germaine eventually married, which may have legitimated Louis. Would such a child be counted as an American citizen?

   One possibility for Department of State officials was to adopt a strict rule that could be applied easily by administrators charged with making citizenship determinations: all children born out of wedlock were illegitimate and hence could not take citizenship through their American fathers. Instead, Louis Rover's case provided the occasion for the crystallization of an important exception to the Guyer rule: nonmarital foreign-born children who were "legitimated" by their American fathers would be recognized as American citizens. Rather than concluding that Rover was not a citizen under the jus sanguinis citizenship statute because he was born out of wedlock, Acting Secretary of State Alvey Adee took the initiative to write to the Attorney General of New York, John Davies, to inquire whether, under New York law, a child born out of wedlock was legitimized by his parents' subsequent marriage. Relying on Davies's assurance that, under New York law, Louis had been legitimized by his parents' nuptials, (133) the Department recognized Louis as a United States citizen.'34 Louis's parents had not been married when he was born, and it does not appear that Louis spent considerable time living in his father's household. Yet Louis's claim to American citizenship was granted. Semper praesumitur pro matrimonio.

   As with the Guyer rule, the Department of State's legitimation exception would become a standard interpretive gloss on the jus sanguinis citizenship statute. (135) But it was often applied in a race-selective manner. For example, in the years just after the Rover case, the Department of State did not use the same generous interpretation of the laws of marriage and legitimacy in cases involving the foreign-born children of American men and Chinese women. Summarizing Department of State practice in his 1904 handbook titled Citizenship of the United States, Assistant Solicitor Frederick Van Dyne explained that "[i] [legitimate children born to a Chinese woman in China do not become American citizens by the subsequent marriage of the mother to a citizen of the United States." Citing Guyer as the lead case, Van Dyne reasoned that "[illegitimate children follow the status of the mother, and the mother being Chinese, and not capable of being lawfully naturalized under the laws of the United States, her marriage to a citizen of the United States did not confer American citizenship on her." (136) Van Dyne's account of the citizenship status of nonmarital children born to American fathers and Chinese mothers makes no suggestion that a child born to a Chinese mother could be legitimized by her marriage to the American father, and thus acquire citizenship through the father, though that rule had been followed just two years earlier in the Rover case.

   Van Dyne's assessment of the status of the nonmarital child of a Chinese-American union is just one example of how the law of marriage and legitimacy aided in the enforcement of the Chinese exclusion statutes, a subject I turn to in the next Section. Before doing so, however, it is worth observing that although the racial operation of domestic relations law principles in nationality law was often obscured, this was not always the case. A few years after Rives wrote his letter to the American consul in Samoa, John Bassett Moore, a towering figure in international law--and one-time secretary to the Conference on Samoan Affairs--reported and summarized the laws governing jus sanguinis citizenship. In his discussion of the citizenship status of nonmarital children, Moore cited Rives's letter and comfortably declared that "[h]alf-castes born in Samoa, of American fathers by Samoan women, with whom the fathers lived 'fa'a Samoa,' are not citizens of the United States." (137) And in 1915, when Moore's protege Edwin Borchard wrote The Diplomatic Protection of Citizens Abroad, he reiterated and translated the conclusion of his mentor--"it seems clear that illegitimate half-castes born in semi-barbarous countries of American fathers and native women are not American citizens"--citing Guyer v. Smith. (138)

   3. Guyer as a Rule of Exclusion

   [T]he question of [jus sanguinis] citizenship, as it exists in Chinese cases, rarely became the problem of any other nationality. (139)

   --Wen-Hsien Chen (1940)

   In the late nineteenth and early twentieth century, the pressing questions of nationality law involved the status of persons of Chinese descent and others from the "Asiatic zone." (140) In this fiercely anti-Asian context, exclusionists vigorously challenged the citizenship status of American-born individuals of Chinese descent, and immigration officials attempted to use the exclusion laws to bar the entry of American-born citizens of Chinese descent returning from sojourns abroad. (141) But for the Supreme Court's 1898 intervention in Wong Kim Ark, which established that the Citizenship Clause of the Fourteenth Amendment applied to native-born Chinese American citizens, the exclusionists would likely have succeeded in ensuring Chinese Americans' exclusion from the United States. (142) Unable to categorically exclude native-born Chinese Americans from the United States, exclusionists made a concerted effort to limit jus sanguinis as a route to citizenship for the foreign-born children of Chinese American fathers. (143) These efforts were part of a larger process by which Chinese American citizens were marked as "alien citizens"--persons who, although "born in the United States ... remained alien in the eyes of the nation." (144) They were also part of an effort to maintain the purity and predominance of the white race in the United States. (145) This Section examines how the Bureau of Immigration embraced the Guyer rule in service of the racial exclusion laws.

1. Chinese American Fathers and Jus Sanguinis Citizenship

   For a whole host of reasons--including the illegality of interracial marriage and the severe gender imbalance in the ethnic Chinese population in America--it was not uncommon for a Chinese American man to marry a Chinese woman who remained in China while he traveled back to the United States. (146) Those couples had children, born in China, and the citizenship status of those children was an important, and vexing, question for the Bureau of Immigration. The Bureau was clearly concerned about fraud, and there is substantial evidence that fraudulent claims to a filial relationship with a Chinese American father had become a common way of evading the harsh exclusion laws. (147) But the Bureau's obsessive effort to restrict the transmission of citizenship between Chinese American fathers and their foreign-born children was not only animated by worry about fraud; it was animated by a racial xenophobia that characterized the exclusion laws more generally. In his 1916 annual report to the Secretary of Labor, for example, Commissioner General of Immigration Anthony Caminetti lamented the recognition of foreign-born children of Chinese American fathers under the jus sanguinis citizenship statute. Caminetti objected to the fact that American-born individuals of Chinese descent were birthright citizens under the Fourteenth Amendment's Citizenship Clause, and found it even more troubling that their foreign-born children could be considered citizens as well. Contending that "a person of the Mongolian race who is so fortunate as to be born here is vested by the 'accident of birth' with American citizenship," Caminetti thought it a travesty that such an individual could go "to the native country of his parents and marry[] ... and there beget[] children ... [who] could come to the United States, [and] be freely admitted at our ports." (148)

   The jus sanguinis citizenship statute contained no racial limitations, however; it was, as we say today, facially race neutral. But consistent with its animosity toward jus sanguinis citizenship for children of Chinese descent, the Bureau of Immigration implemented policies and procedures limiting its availability for the foreign-born sons of Chinese American fathers. (149) For example, in 1915 the Bureau issued a regulation stating that foreign-born male children of Chinese American fathers would be recognized as citizens only if they were found to be dependent members of the father's household-a limitation that was not imposed on any other racial or ethnic group of American fathers seeking citizenship for...