Copyright by Douglas Marshall Coulson 2013 The Dissertation Committee for Douglas Marshall Coulson Certifies that this is the approved version of the following dissertation: The Rhetoric of Common Enemies in the Racial Prerequisites to Naturalized Citizenship Before 1952 Committee: Patricia Roberts-Miller, Supervisor Susan Heinzelman, Co-Supervisor Jeffrey Walker Davida Charney Gretchen Murphy Sanford Levinson The Rhetoric of Common Enemies in the Racial Prerequisites to Naturalized Citizenship Before 1952 by Douglas Marshall Coulson, BA, MA, MA, JD Dissertation Presented to the Faculty of the Graduate School of The University of Texas at Austin in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy The University of Texas at Austin May 2013 Acknowledgements I am grateful to many friends, colleagues, and advisors who read some or all of this dissertation and offered helpful comments. First and foremost, I owe a great debt of gratitude to the direction I received from my supervisors Patricia Roberts-Miller and Sue Heinzelman. They have been patient and generous as we shared countless conversations about this dissertation and many other topics. I have also benefitted from the support and insightful commentary of the other members of my dissertation committee: Davida Charney, Jeff Walker, Gretchen Murphy, and Sanford Levinson. Their careful reading, critical commentary, and good company have been invaluable. The University of Miami Race and Social Justice Law Review published an article version of Chapter 3 of this dissertation entitled “Persecutory Agency in the Racial Prerequisite Cases: Islam, Christianity, and Martyrdom in United States v. Cartozian” in its Winter 2012 issue which facilitated helpful comments from readers. I am grateful to the journal and its editorial staff for its hard work and commentary during the editorial process. I have delivered presentations on various aspects of this dissertation in many venues where I have received engaging questions and comments. Both the English Department at Carnegie Mellon University and the Oklahoma City University School of Law invited me to speak about this dissertation. Harvard Law School’s Institute for Global Law and Policy, with the support of the Qatar Foundation, invited me to attend the IGLP workshop in Doha, Qatar in January 2013, at which I presented excerpts from Chapter 1 of this dissertation. I also delivered conference papers regarding the United iv States v. Cartozian case at the 2011 Federation Rhetoric Symposium and at the 2012 Conference of the Association for the Study of Law, Culture, and the Humanities. I presented various aspects of this dissertation during graduate seminars at The University of Texas at Austin, particularly in Gretchen Murphy’s seminar on Race, Americanization, and Empire—in which I accepted Professor Murphy’s invitation to write a seminar paper on the racial prerequisite cases which inspired my interest in this project—and in Lester Faigley’s seminar on Visual Rhetoric, as well as in Kathleen Cleaver’s legal history seminar on Citizenship and Race at the University of Texas School of Law. The graduate students who have participated in Patricia Roberts-Miller’s writing group at The University of Texas at Austin have also commented on various chapter drafts. The Graduate School at The University of Texas at Austin awarded me the Graduate School’s Continuing University Fellowship to support a year of my work on this dissertation without teaching duties, and the Department of English at The University of Texas at Austin has supported this project with professional development awards for conference travel and archival research. The Department of Rhetoric and Writing at The University of Texas at Austin also provided me with outstanding teaching opportunities during my doctoral program and I have grown from my conversations with many of the students I have worked with while writing this dissertation. The University of Texas at Austin Libraries and the Tarlton Law Library at The University of Texas School of Law have provided me with exceptional research support. The archivists at the National Archives and Records Administration’s Pacific Region, Pacific Alaska Region, and Washington, D.C. archives also offered tireless and invaluable assistance. David Thind v agreed to speak with me on the phone about his father’s naturalization case and generously provided me with American and British intelligence documents related to his father. Jack Chin provided me with electronic copies of the briefs in the Takuji Yamashita case within hours of an e-mail inquiry. Finally, throughout this project my family has supported me both emotionally and financially, but perhaps more importantly they have through the years taught me a passion for language and argument that informs my appreciation for the breadth and richness of rhetoric. There are many more who I have shared conversations with about this project or who have simply listened while I raved. I cannot list them all but they have all benefited me. The shortcomings are mine. vi The Rhetoric of Common Enemies in the Racial Prerequisites to Naturalized Citizenship Before 1952 Douglas Marshall Coulson, PhD The University of Texas at Austin, 2013 Supervisor: Patricia Roberts-Miller Co-Supervisor: Susan Heinzelman This dissertation examines the rhetorical strategy by which groups unite against common enemies as it appears in a series of judicial cases between 1878 and 1952 deciding whether petitioners for naturalization in the United States were “free white persons” as required by the United States naturalization act at the time. Beginning in 1870, the naturalization act limited racial eligibility for naturalization to “free white persons” and “aliens of African nativity and persons of African descent.” Based on the conclusion that Asians were neither “white” nor African, many courts interpreted these provisions to reflect a policy of Asian exclusion. As the distinction between “white” and Asian became increasingly disputed, however, the racial eligibility requirements of the act raised difficult questions about the boundaries of whiteness. I examine the rhetorical strategies adopted in a series of these cases between World War I and the early cold war involving Asian Indian, Armenian, Kalmyk, and Tatar petitioners who were represented as political or religious refugees at risk of becoming stateless if they were denied racial eligibility for naturalization in the United States. I argue that by representing the petitioners in the cases as victims of persecution by vii the nation’s adversaries, the cases reflect a rhetorical strategy of uniting against common enemies which is also prevalent in the legislative, executive, and judicial discourse surrounding the act. I argue that the prevalence of this rhetorical strategy in racial prerequisite discourse suggests that a martial ideal of citizenship often influenced racial classifications under the act and that by recognizing the ways in which this discourse adapted to the rapidly changing enmities of the early twentieth century, a rhetorical interpretation of the cases offers advantages over other interpretive approaches and highlights the value of a rhetoric of law. viii “Give me your . huddled masses . .” —Mother of Exiles, in Emma Lazarus’s “The New Colossus” Martyrdom (bearing witness) is so essentially rhetorical, it even gets its name from the law courts. —Kenneth Burke, A Rhetoric of Motives ix Table of Contents CHAPTER 1: RHETORICAL CONSTRUCTIONS OF RACE AND CITIZENSHIP ............1 Critical Race Theory Scholarship on the Racial Prerequisite Cases..........12 Common Enemies in Race and Naturalization ..........................................31 The Rhetoric of Enemies and Realistic Group Conflict Theory ................39 Historical Background and Scope of the Study .........................................51 Notes 66 CHAPTER 2: ASIAN INDIAN NATURALIZATION DISCOURSE AND THE INDIAN INDEPENDENCE MOVEMENT ........................................................................82 The Supreme Court’s Opinions in Ozawa and Thind ................................88 A Revolutionary for the Ghadr Party .......................................................101 Questions About Thind’s Character in the District Court .......................111 Thind’s Claim of High Caste Privilege Before the Supreme Court.........116 The Solicitor General’s Citation of British Authorities on the “Unalliability” of the Indian Caste System ..................................125 Justice Sutherland’s Opinion in Thind .....................................................129 Gandhi’s Satyagraha and Sakharam Pandit as “Outcaste” ......................137 The Epideictic Qualities of Judicial Discourse ........................................159 Notes 169 CHAPTER 3: ISLAM, CHRISTIANITY, AND MARTYRDOM IN UNITED STATES V. CARTOZIAN ..................................................................................................187 The Armenian Genocide and Refugee Crisis...........................................192 The Cartozian Trial: A Story of Persecution and Martyrdom .................198 The Historical Interpretation of Race and the Role of Narrative in the Cartozian Opinion .......................................................................214 x Martyrdom and Transcendence ................................................................225 Notes 231 CHAPTER 4: PEARL HARBOR, THE RED SCARE, AND THE END OF THE RACIAL PREREQUISITES TO NATURALIZATION ......................................................245