THE ROAD NOT TAKEN: A CRITICAL JUNCTURE IN RACIAL PREFERENCES FOR NATURALIZED CITIZENSHIP. (response to Gabriel J. Chin and Paul Finkelman in this issue, p. 1047)

• Date: 01 April 2024
• Author: Chen, Ming Hsu

TABLE OF CONTENTS
                INTRODUCTION 1139
                I. RACIALIZED CITIZENSHIP 1140
                A. Time One (1790-1868): American Means White
                Persons 1143
                B. Time Two (1868-1952): American Means Black and
                White Persons 1144
                C. Time Three (1952-1965) Critical Juncture: Person
                Means Non-Alien American 1146
                II. THE ROAD-NOT-TAKEN OF MULTIRACIAL DEMOCRACY 1149
                III. WHERE TO GO FROM HERE? A POST-RACIAL CITIZENSHIP
                AGENDA 1153
                

INTRODUCTION

Professors Gabriel Jack Chin and Paul Finkelman describe the legacy of the "free white person" clause of the Naturalization Act of 1790 in terms of its enduring racial impacts, especially for racial minorities considered to be perpetual foreigners--Asians, Latino/as, and Arab (1) Americans--who were previously considered ineligible to naturalize. (2) In their account, even after Reconstruction and statutory amendments that made the naturalization statute race neutral on the books, it continued to advance racial disparities in reality. (3) Chin and Finkelman's account uses archival data to demonstrate that even after the racial restriction was modified, the introduction of the "declaration of intention to naturalize" (added five years after the original Naturalization Act of 1790) made it possible for state and federal law to grant political and economic rights to White immigrants immediately upon arrival, while ensuring that non-White immigrants could never enjoy them. (4) The ephemeral elimination of the racial exclusion illustrates that the original Naturalization Act of 1790 constitutes a "super-statute." (5)

There are two implications that I explore in this essay. First, Chin and Finkelman's account resolves the racial preference of the Framers for a White country and places it in a "place of dishonor" alongside segregation laws, prohibitions on interracial marriage, and other laws establishing White supremacy. (6) Their tongue-in-cheek characterization of the Naturalization Act as a "super-statute" renders it a part of the anti-canon of Constitutional law. But simply because the original intent for a pro-White, racially exclusionary naturalization was effective, was it inevitable? Second, Chin and Finkelman suggest that citizenship is not always essential to equal status, bringing together their current research on the "free white person" clause with prior research from "A Nation of White Immigrants" that showed White noncitizens were able to naturalize and become legally equal to White citizens. (7) Even if formal citizenship was not essential to unequal status, could it have been skipped over entirely?

I. RACIALIZED CITIZENSHIP

Regarding the first question, was racial naturalization inevitable? That is, could naturalization have incorporated the egalitarian spirit of the 1960s civil rights era or was citizenship inextricably bound up in the racialized history of the U.S.?

Chin and Finkelman describe the "free white person" clause of the Naturalization Act of 1790 law as a "super-statute" because it "successfully penetrate[s] public normative and institutional culture in a deep way" and more specifically in a "quasi-Constitutional" way. (8) I would use a different word for this kind of stickiness. I would instead use what Paul Pierson in Politics in Time speaks of as a "critical juncture" in American political development; institutional arrangements within a political system can lead to "path dependence" or dynamics of self-reinforcing processes with enduring consequences--namely, inequalities of power can be reinforced over time and come to be deeply embedded in organizations, political action, and shared understandings. (9)

What is different between these conceptions is understanding the institutional mechanism that maintained racialized naturalization. Whereas a super-statute is a statement of public values or norms, path dependence describes institutional development. (10) The way that change happens in legal institutions can be captured in statutes, but the government institutions that implement them have a motive force of their own. (11) Legal institutions can articulate norms that become entrenched in court cases, statutory interpretations, and agency issuances. (12) Stare decisis governs courts that rely on prior court cases as precedent. Congress is not bound by prior enactments, but the statutory meanings they enact give rise to implementing guidance and shape beliefs (e.g., in agency guidance) and behaviors (e.g., of regulated entities) going forward. (13) Over time, the accumulated norm articulations become part of the institution and infrastructure of legal institutions.

While path dependence can be found in many types of institutional development, my argument highlights the distinctive institution of citizenship. Naturalized citizenship redefines outsiders as members of a political society. (14) This political society can vote, write policy, and hold office. The civil rights era was a critical juncture in the definition of the political society. The statute itself certainly presented Congress an opportunity to revise ideas about racial equality, such as with the elimination of racially exclusionary clauses and national origin quotas in immigration law and passage of the 1964 Civil Rights Act. Close on the heels of the 1964 Civil Rights Act was passage of the 1965 Hart-Celler Act that brought new immigrants to the U.S. Beyond amending statutory language to be less discriminatory, these new immigrants could become naturalized citizens. (15) The passage of civil rights and immigration statutes enlarged the electorate and made possible an egalitarian road-not-taken for naturalized citizenship. The enlarged electorate is subsequently able to directly participate in politics, for example, by voting and articulating new egalitarian norms. It also influences who elected officials consider their constituents, such that representative democracy can indirectly impact communities with immigrants. Thus, the newly refreshed citizenry redraws the national identity and the governing laws around equality--the sources of legal authority, the range of statutory interpretations, and the context for policy implementation.

This mechanism of institutional development bears traces of Daria Roithmayr's racial "lock-ins"; using economic concepts, Roithmayr says White advantage functions as a powerful self-reinforcing monopoly or cartel that reproduces itself from generation to generation even in the absence of intentional discrimination. (16) Racial covenants that restrict homebuying and influence neighborhood school assignments might be one example. (17) In the context of citizenship, the removal of racial prerequisites and national origin quotas could have led to a multiracial democracy that would vote in the interest of its co-ethnics and elevate racial minority groups into racial majority groups.

This egalitarian pathway toward a multiracial electorate would have been counterfactual to the one that immigrants encountered after the "free white person" clause was eliminated from the letter of the law, as they found themselves ineligible for many rights within the U.S.--owning property, working certain jobs, and mobilizing as voters. (18) Chin and Finkelman convincingly show that the path actually taken--the purportedly race-neutral interpretations of the 1790 Naturalization statute--did not disrupt the boundaries of "American" as White persons, with Asians, Latino/as, and Arabs as "non-Americans" and perpetual foreigners rather than new Americans. (19) By arguing that the civil rights statute in combination with the Hart-Celler Act brought the possibility of a multiracial majority even though the White majority prevented that possibility from taking hold. Multiracial naturalization could have broken through the status of the founding era, when White meant White (time period one: 1790-1868), and the Reconstruction era, when race neutral was pretext for White (time period two: 1868-1952). (20) It could have avoided a colorblind interpretation of civil rights statutes that converged with the post-racial interpretation and that collectively prevail in the contemporary moment.

A. Time One (1790-1868): American Means White Persons

During time period one (1790-1868), the statutory language of "White" meant White persons. The 1792 Naturalization Act contained an explicit racial exclusion from naturalization. (21) It limited naturalization to "free white person[s]" with a two-year residence limitation and supported the construction of federal citizenship law as being only available to White persons. (22)

The 1795 repeal of "free white person" from the federal statute could have been revolutionary, but instead it was an empty gesture. This is because the "declaration of intention" to naturalize (first papers) injected an additional step into the naturalization process that narrowed the possibilities for non-White persons by conditioning political and economic benefits--land owning, employment, and voting (most critically)--for those racially ineligible to naturalize. (23) Restricting those who could file first papers to those "racially eligible to naturalize," such as European immigrants, pointedly meant that Asian immigrants could not become rights-bearing citizens and voters. (24) Rather than opening the gates to citizenship, it maintained pass codes for entry that were selectively given out after a probationary period. (25)

The "declaration of intention" functioned as a lock-in during the 1849 Passenger cases (26) and the 1857 Supreme Court decision Dred Scott v. Sandford, which relied on the interpretation of the 1790 Act as being for White naturalization to reach its conclusion that black persons could not be rights-bearing citizens and voters. (27) In other words, the declaration of intent created a Black/White dichotomy justified by a racial hierarchy in the law. (28)

B. Time Two (1868-1952): American Means Black and White Persons

The 1868 Reconstruction laws were ostensibly based on person-hood, but they...