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On Asian American History and the Loss of Citizenship Through Marriage

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On Asian American History and the Loss of Citizenship Through Marriage DIVESTING CITIZENSHIP: ON ASIAN AMERICAN HISTORY AND THE LOSS OF CITIZENSHIP THROUGH MARRIAGE Leti Volpp This Article narrates a sorely neglected legal history, that of the intersection between race, gender, and American citizenship through the first third of the twentieth century. It is a little known fact that marriage once functioned to exile U.S. citizen women from their country; moreover, how racial barriers to citizenship shaped expatriation and dependent citizenship presents an even more complex history. Using an intersectionalanalysis to consider the impact of gender on racial bars to citizenship, as well as the impact of race on gendered bars to citizenship, the Article thus begins with a clarificationof the historicalrecord. But beyond narrating and clarifying history, exploring the contours of gender- and race-based exclusion offers a potent lesson about citizenship more generally. In particular, the history of dependent citizenship and marital expatriation shows how notions of incapacity were foundational to racial and gendered disenfranchisementfrom formal citizenship. Such notions of incapacity, reflected * Professor of Law, University of California, Berkeley, School of Law (Boalt Hall). This Article was delivered as the Barbara Black Lecture on Women and Law at Columbia Law School, and at faculty workshops at the UCLA School of Law, USC Law School, the Center for Social Justice at Boalt Law School, the University of Minnesota School of Law, the Washington and Lee University School of Law, the Ohio State University Moritz College of Law, the University of Pittsburgh School of Law, Scripps College, and the American University Washington College of Law. Previous versions were also presented at meetings of the American Society for Legal History, the American Studies Association, Law and Society, and LatCrit VI, as well as at the University of Texas "Subversive Legacies" Conference, the Duke University Franklin Fellows Seminar, the Asian Pacific American Historians Collective Conference, the Georgetown-PEGS Discussion Group on Constitutional Law, the UC Riverside Center for Ideas and Society Research Group on Migration, Culture and Social Transformation, the University of Illinois Asian Americans and the Law Conference, and the Columbia Law School International Law Workshop. I benefited enormously from comments at each of these sites. Particular thanks to Muneer Ahmad, Andrew Aisenberg, Linda Bosniak, Jim Chen, Ruth Colker, David Cruz, Mary Dudziak, David Eng, Katherine Franke, Philip Frickey, Ariela Gross, Angela Harris, Cheryl Harris, Tanya Hernandez, Grace Hong, Lisa Iglesias, Jerry Kang, Tom Keenan, Karen Knop, Jennifer Lee, Hope Lewis, David Lloyd, [an Haney L6pez, Lisa Lowe, Donald S. Moore, Blake Morant, Mae Ngai, Mary Ellen O'Connell, Kent Ono, Diane Orentlicher, John Parry, Catherine Powell, John Quigley, Jamin Raskin, Greg Robinson, Teemu Ruskola, Nayan Shah, Ann Shalleck, Howard Shelanski, Marian Smith, Jackie Stevens, Eleanor Swift, Sophie Volpp, Priscilla Wald, and Joan Williams. Special thanks to Devon Carbado. I am grateful to the UCLA Law Review for expert editing and to Dean Claudio Grossman of the American University Washington College of Law for providing generous research support for this project. I received excellent research assistance from Terry Ao, Lysandra L6pez-Medina, Catherine Ng, Sundeep Patel, Shirley Rivadeneira, Jessica Salsbury, and Rahul Shah, and must especially thank J. Laura Lee for her outstanding research assistance. 406 53 UCLA LAW REVIEW 405 (2005) in laws of coverture and race-based exclusion, were deeply connected to moral and republican ideals-which were assumed unattainable by Asian women and men. Therefore, our understandingof citizenship broadens if we focus not only on the status-race and gender-used to deny citizenship, but also on the rationales about appropriate conduct that precluded certain individuals from access to the American polity. In addition to literal access and exclusion, the Article examines how identity shapes citizenship more broadly. Whether one discusses citizenship in the form of rights, as political activity, or symbolically, it is apparent that continued ambivalence about admission to citizenship remains. Although race-based and gender-based bars to formal citizenship no longer exist, prosecution of the "War on Terror" suggests that identity still shapes notions of who is capable and incapable of fulfilling our moral and political ideals. IN TRO DU CTIO N ............................................................................................................. 406 1. H ISTORICAL C ITIZENSHIP ...................................................................................... 411 A . R ace and C itizenship ..................................................................................... 411 B. G ender and C itizenship .................................................................................. 418 C . T he 1855 A ct ................................................................................................. 419 D . The 1907 Expatriation A ct ............................................................................ 425 E. The 1922 C able A ct ...................................................................................... 432 F. Repeal of the C able A ct ................................................................................. 443 G. The Restoration of Women's Citizenship Act ............................................... 447 II. DISCOURSES OF CITIZENSHIP AND THE ASIAN AMERICAN WOMAN ...................... 449 A. The Citizenship of Republican Mothers ........................................................ 450 B. The C itizenship of A lien C itizens ................................................................. 453 C . G ender, Race, and C itizenship ...................................................................... 456 D. C itizenship, M orality, and Prostitution ......................................................... 458 E. C itizenship, Status, and Conduct .................................................................. 469 F. C itizenship Stripping Today .......................................................................... 472 CO N CLU SIO N ................................................................................................................. 477 In an age of citizenship, there are two sorts of non-citizen: those who have never been admitted, and those who are exiled.' INTRODUCTION Marriage is often conceptualized as a ritual that both reflects and enacts citizenship. Indeed, it is precisely this positive relationship between marriage and citizenship that explains why marriage continues to be 1. Sarah Benton, Gender, Sexuality and Citizenship, in CITIZENSHIP 151, 154 (Geoff Andrews ed., 1991). Divesting Citizenship 407 heterosexually policed.2 But marriage has not always been a citizenship enacting institution. Marriage also has functioned to divest citizenship. Consider the story of Ng Fung Sing. Born in Port Ludlow, Washington in October 1898 to Chinese parents, Sing Was a U.S. citizen thanks to the U.S. Supreme Court's decision in United States v. Wong Kim Ark,3 issued the same year, which held under the Fourteenth Amendment of the U.S. Constitution4 that Chinese born in the United States were entitled to birthright citizenship. At the age of five, Sing was taken by her parents to China, where, at the age of twenty-two, she married a Chinese citizen. After her husband passed away two years later, she decided to return to the United States. When she arrived in Seattle in April 1925, she assumed she could, in the words of the Washington district court, "resume her 'American citizenship."'5 But Sing was denied admission to the United States and found "ineli- gible for citizenship"-because of her marriage. Congress, in 1907, had mandated "[t]hat any American woman who marries a foreigner shall take the nationality of her husband."6 While the Cable Act of 1922 allowed some women who had lost their U.S. citizenship through marriage to rejoin the American body politic through naturalization, only women who themselves were "eligible to citizenship" were allowed to do so.] Although the court recognized that Sing "politically... was born a member of the citizenry of the United States," it noted ' that Sing was "Chinese," or, as the court clarified, of "yellow race. As such, Sing was barred from naturalization, since the racial restrictions that remained in place until the middle of the twentieth 2. See David B. Cruz, Disestablishing Sex and Gender, 90 CAL. L. REV. 997, 1082 (2002) ("The mixed-sex requirement for civil marriage marks lesbigay persons as less than full members of the political community. This is why so many critics of current marriage laws have objected that the mixed-sex requirement relegates lesbigay persons to an inferior class of citizenship."); see also William N. Eskridge, Jr., The Relationship Between Obligations and Rights of Citizens, 69 FORDHAM L.REV. 1721, 1742-49 (2001). 3. 169 U.S. 649 (1898). 4. The Court found that the Fourteenth Amendment was plain in its application as to "[aIllpersons"-aside from "children of members of the Indian tribes, standing in a peculiar relation to the National Government." Id. at 682; see also In re Yung Sing Hee, 36 F. 437 (C.C.D. Or. 1888) (recognizing the U.S. citizenship of a woman born in San Francisco in 1866 to Chinese parents); Ex parte Chin King, 35 F. 354 (C.C.D. Or. 1888) (recognizing the U.S. citizenship of Chin
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