from NWSA Journal Volume 13, Number 3"We Do Not Want Our Girls to Marry Foreigners": Gender, Race, and American Citizenship
ANN MARIE NICOLOSI
Permission to CopyYou may download, save, or print for your personal use without permission. If you wish to disseminate the electronic article, or to produce multiple copies for classroom or educational use, please request permission from:
Copyright Clearance CenterFor other permissions or reprint use contact:
Professional Relations Department
222 Rosewood Drive
Danvers MA 01923 FAX: 978-750-4470/4744
Web address: www.copyright.com
Rights and Permissions, Journals Division
Indiana University Press
601 North Morton St.
Bloomington, IN 47404FAX: 812 855-8507
E-mail: journals@indiana.edu
This article argues that the Expatriation Act of 1907, which made citizenship for married American women contingent on the citizenship of their husbands, provided the state with a means to manipulate women's citizenship in order to obtain the objectives of foreign and domestic policy and of prevailing racial attitudes. While the act was officially designed to eliminate instances of dual citizenship when American women married foreign men, an application of a gendered analysis of the act reveals a much more complicated piece of legislation that penalized American women for marrying foreign men, especially men who were racially ineligible for American citizenship. Because citizenship has been constructed in the United States using a sex/gender system that established a hierarchy of male and female, the state was able to employ female citizenship to achieve its objectives.
One of the most exciting aspects of feminist scholarship is that it reveals implications in laws and social policy that are not evident using more traditional methodologies. Employing a gendered theoretical approach to examine the complexities of legislation exposes multi-layered consequences, intended and unintended, and raises questions about the aims of lawmakers. By using gender as a category of analysis, feminist scholars reveal how social policy and law mask gender bias despite proclamations that they have neutral intent, and are in the best interest of the nation (Scott 1988).
This article examines one such law. Passed in the beginning of the twentieth century, the Expatriation Act of 1907 appears to be nothing more than a poorly planned piece of legislation to keep U.S. foreign policy in step with other Western nations. Applying a "gendered" analysis to the legislation and its effects on women citizens and marriage, however, reveals less benign consequences. In 1907, Congress codified derivative citizenship for American women. Derivative citizenship—citizenship contingent on the civic status of one's husband—deprived American women of their political birthright: membership in the American polity. If an American woman chose to marry a foreign man, she forfeited her American citizenship. Derivative citizenship also provided the state with a means to manipulate women's citizenship in order to obtain the objectives of foreign and domestic policy and of prevailing racial attitudes. Because the Expatriation Act of 1907 redefined a woman as a member of their husband's race, ethnicity, and nationality, it affords a palpable example of the social construction of race. It reveals an anxiety concerned with guarding both the white American female and the concept of American citizenship. Legally, the American female citizen was any female born in or naturalized by the United States, but ideologically, she was a woman of Anglo descent who embodied the racial and cultural ideals of American identity. The act also illustrates the sex/gender system of American citizenship that was based upon race.
In examining these factors, it becomes clear that the act had far-reaching consequences. This also forces one to look beyond the "official" reasons Congress stated for the act. Evidence suggests that this act may have been used to limit the marriages of American women and undesirable alien men, especially Asian men. It suggests that the state practiced a method of reproductive control by penalizing the women who married these men.
The constructed and fluid boundaries of citizenship, race, and nationality complicate our understanding of the act. Citizenship implies a symbiotic political relationship between the citizen and the state. Nationality, while including a political relationship between the citizen and state, is also cultural. It implies membership in a community of people who have a common origin, tradition, and language. Race, the most elusive concept of the three, is a tangle of biologically- and culturally-constructed definitions. It was understood, in the early twentieth century, as biological and legal—biological in that each race had "racial traits" that were transmissible by descent and sufficient to characterize it as a distinct human type; legal as it was necessary to maintain boundaries between races, especially to sustain the existing racial hierarchy. The Expatriation Act of 1907 conflated citizenship, nationality, and race as it followed the guidelines for naturalization. As did the Immigration and Naturalization Service (INS), set by the 1790 and 1870 Naturalization Acts, that equated citizenship and nationality from certain areas, most notably Asia, with racial ineligibility.
Historians have begun to focus on derivative citizenship. Nancy Cott (1998) has examined how derivative citizenship is an example of the ways in which the state regulates marriage and how it can protect and advance its interests through the manipulation of marriage rules and prohibitions. Cott contends that an exploration of gendered citizenship—"one that starts with the female citizen"—must begin with the institution of marriage at its center (1442). Cott's analysis of marriage and citizenship provides a much-needed investigation of how gender differences and prohibitions in American citizenship are expressed through marriage-related statutes and codes. Building on the exhaustive and meticulously detailed account of derivative citizenship by Candice Lewis Bredbenner, Cott successfully shows that gender and the state—femaleness and marriage—must be examined in tandem. But while both Cott and Bredbenner (1998) ably elucidate the effects of marriage on American citizenship, especially Bredbenner's work on derivative citizenship and immigration policy, they do not elaborate the basic theory of how and why the state could regulate women's citizenship through marriage—the ability of the state to participate in the "traffic in women."
Anthropologist Gayle Rubin's analysis of the genesis of sexual difference can be useful in theorizing the sex/gender system of American citizenship (1975), specifically, how the state, through derivative citizenship, was able to use women's citizenship to achieve domestic and foreign objectives. Although Rubin focuses on pre-state societies, the basic tenets of her theory are applicable for citizenship and women in the modern nation-state. Nancy Cott states that "any modern nation-state is likely to concern itself with marriage, most basically because of concern for reproduction of its population," and as she demonstrates, for women, marriage and citizenship were entwined (1998, 1442). Citizenship for married women demonstrated that "citizenship [can] be delivered in different degrees of permanence or strength" (1441). Although derivative citizenship pertains to married women, it affects single women in its potentiality. By making citizenship derivative, Congress made all women's citizenship—married and single alike—vulnerable to the vagaries of political expediencies.
Rubin's theories are useful in understanding how the state was able to manipulate female citizenship. Historically, women's citizenship has varied from men's. American women have always been considered American citizens, regardless of the limitations of rights such as the franchise, until the passage of the Nineteenth Amendment.1 For white American men, citizenship has been consistently immutable and indisputable, to be forfeited only by their own choices, whether through voluntary renunciation or a treasonous act. Although the English common law concept of coverture, which subsumed the political and economic identity of a woman with that of her husband and limited women's economic and political rights, was adopted by the United States, women maintained an independent relationship with the state. However, between the years 1855 and 1931, a series of laws rendered married women's citizenship contingent on the actions or nationality of their husbands. That is, under derivative citizenship, she derived her citizenship status from a husband. Beginning in 1855, foreign women who married American men took the nationality of their American husbands. Under the Expatriation Act of 1907, Congress expanded derivative citizenship to every married woman in the United States by proclaiming that all womennative and foreign-born (if racially eligible)—took the citizenship of their husbands. American women between the years of 1907 and 1931, many unwittingly, chose their spouses over their nationality.2
When women lost their citizenship through marriage, they could also lose their racial, ethnic, and national identities. Because foreign women racially ineligible to become American citizens were unable to naturalize, they could find themselves without citizenship status altogether. Under naturalization laws, only whites were eligible for naturalization until 1870. After 1870, eligibility was expanded to include blacks born outside of the United States. For all racially eligible, alien women married to American citizens, their naturalization was automatic and obligatory. By law, American women who married foreigners after the 1907 act assumed their husbands' racial identity as well as his political identity. If he was not a citizen, neither was she. If he was ineligible for naturalization, so was she. According to law professor Ian F. Haney López, "law constructs race in a complex manner through both coercion and ideology, with legal actors as both conscious and unwitting participants" (1996, 13). The contingent status of women's citizenship permitted the state to construct the race and ethnicity of married women. The power to construct the racial identity of American women that married aliens racially ineligible for naturalization is a clear example of both the state's power to arbitrarily construct race and of the fluidity of racial categories. Derivative citizenship, as practiced in the United States, illustrated the complexities of gendered citizenship, that is, how a basic right was constructed differently for men and women. It also is an example of how gender and race determined nationality in the United States.
Section Three of the federal Expatriation Act of 1907 stipulated that an American born woman lost her citizenship when she married an alien man:
[A]ny American who married a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or if residing in the United States at the termination of the marital relation, by continuing to reside therein. (1228)3
The wording of the act ensured that an American born woman would share in the "nationality of her husband," as far as the United States was concerned. Implied in this phraseology was the recognition that she would also share in the immigration restrictions placed upon her husband's nationality.
There was no major outcry, no large-scale public protest when Congress passed this law. Only Sections Three and Four addressed the citizenship of married women. The act was passed to help the United States deal with the problems of citizenship status of Americans and their children who lived abroad. These two sections regarding derivative citizenship for married women were not the main focus of the act. They addressed the difficulties of regulating citizenship that arose because most other Western nations practiced derivative citizenship. A codification of derivative citizenship—some congressmen observed—ignoring the actual ambiguities of the matter, was simply a declaration of existing law, that a woman takes the citizenship of her husband (Cong. Rec. 1907, 1465). Codification, they reasoned, was necessary because it provided a way for a woman to regain her citizenship at the termination of the marital relation, or her husband's naturalization. It also eliminated the occurrences of dual citizenship, which arose when American women married foreign men whose countries extended derivative citizenship to the wives of their male citizens. According to New York representative, James Breck Perkins, and one of the bill's sponsors, the only significance of Section Three of the Expatriation Act of 1907 was the provision for a woman to regain her citizenship at the termination of the marriage. Perkins stated, erroneously, that derivative citizenship during the lifetime of the husband or the marital state was "present law," and the courts had already decided that a woman takes the citizenship of her husband. But this new legislation was necessary because the courts failed to "provide . . . means by which she may retake the citizenship of her own country on the expiration of the marital relationship." On these grounds, Perkins argued that the "bill contained nothing new" (Cong. Rec. 1907, 1465).
Despite the certainty expressed by Congressman Perkins, the Expatriation Act of 1907 was indeed new. Prior to its passage, derivative citizenship for American women was not law; independent citizenship was. The Supreme Court had ruled almost a century earlier that women were entitled to independent citizenship. In the 1830 case of Shanks v. Dupont (3 U.S. 242–9), Supreme Court Justice Joseph Story asserted the independent nature of women's citizenship. Story held that the marriage of a South Carolinian woman to a British officer during the American Revolution did not make her an alien:
because marriage with an alien, whether friend or enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not affect her political rights or privileges. The general doctrine, is, that no persons, can, by any act of their own, without the consent of the government, put off their allegiance, and become aliens.
Clearly, according to Justice Story and the Supreme Court, citizenship was a right and privilege that did not depend on the marital status of the citizen.4
The Expatriation Act of 1907 compromised this right and privilege for American women who wed foreign men, especially for women who married Asian men. The wording of the act, the seemingly innocuous phrase, "That any American woman who married a foreigner shall take the nationality of her husband," was certainly in keeping with concerns over racial purity as evidenced by the growing number of state miscegenation laws (1228). The act provided barriers in the form of denationalization to Asian and Caucasian miscegenation on the national level, as well as obstacles for all American women who wed alien men. Thus the law formed part of a growing web of immigration restrictions. As a penalty for choosing improper husbands, the Expatriation Act of 1907 also served as a deterrent for the reproduction of children that would naturally occur from the unions of American women and their undesirable alien husbands. Under the cloak of coverture, which the Expatriation Act of 1907 actually expanded, American policymakers wielded a powerful weapon for immigration restriction and population control (Sapiro 1984, 3). It did so at the expense of its female citizens. This could not be done with male citizens, as it would violate the ideology of citizenship as masculine and independent. To determine how Congress was able to manipulate women's citizenship, it is necessary to look to the ideological foundations of that citizenship, especially Lockean philosophy.
In America, political theorists of the Revolutionary generation looked to the writings of Enlightenment philosopher John Locke to help formulate the political ideology of their new nation. Locke's social contract, the contract between the government and the governed, emphasized the natural rights of independence. These rights are forfeited in exchange for the government's protection of person and property. Locke's views on women's participation in the social contract through the marriage contract, or what Carol Pateman calls the sexual contract, helped to determine the course of female citizenship in the United States (Pateman 1988). American women, like the women in Rubin's pre-state societies, seem to have accompanied the creation of state.
Locke's views on women and the state were contradictory and evasive. Although he, as Linda Kerber suggests, understood the problem of women's rights, he never fully defined a political role for women (1976, 188). In his First Treatise of Government, Locke articulated the principles of subjugation for women in the marital relation. Because there would be inevitable disagreements, rule would "naturally" fall with the man, who was the "abler and stronger." This was, of course, according to Locke, the result of Eve's transgression in the Garden of Eden. It was part of her punishment that her "desire" would be "to [thy] husband," and he would "rule over thee" (1996, 173). In his Second Treatise of Government, Locke acknowledged the rights of mothers as well as fathers, and the right of women to the same natural independence as men in the political realm (321). But he did not overturn his views from his First Treatise. Locke was quick to state that this did not apply to political power, but only to familial, or conjugal power. Women were entitled to the same natural rights as men, but as men willingly gave up those rights in the social contract with their governments, women did the same with their marriage contracts. Thus Locke, a major architect of American citizenship theory, proposed different definitions for male and female citizenship.
Locke also acknowledged that the right of male dominion over others extended to other males in the household, namely children, servants, and slaves. This dominion was temporary in the case of children and servants. Dominion over children ended when they reached the age of majority. Dominion over servants ended when their term of indenture or apprenticeship was satisfied. But for women and slaves, this dominion never ended. Unlike children or servants, wives' and slaves' subjugation was permanent (322–3). His articulation of a model of subjugation that included slaves influenced racialized citizenship as well as gendered citizenship in America.
It is this theory of subjugation that provides a rationale for the manipulation of women's citizenship. Although Locke acknowledged the independence of the female relationship with the state, it is voided with the marriage contract. Thus, as Cott shows, citizenship can be altered within the context of marriage.
Because of the inequities of gender, female citizenship was vulnerable as a tool of the state. The Nationality Act of 1855, which Cott calls "remarkable in its gender specificity" because it "[gives] a particular privilege to American male citizens only bestowed American citizenship on the foreign wives of American men, if racially eligible and achieved a number of desired objectives" (1998, 1456). The original impetus of the act was to ensure that the children of American men born abroad would share in the citizenship of their fathers. In keeping with the concept of the husband as the political, social, and economic representative of the family, Congress added foreign wives to those children. Prior to 1855, foreign women were able to naturalize on their own as would a male immigrant. But the 1855 act, besides re-enforcing the concept of coverture, also acted as a facilitator in encouraging immigration and settlement in an era of Manifest Destiny. In 1894, Justice Edward Billings, whose decision in the landmark citizenship case of Comitis v. Parkerson (56 F.557) that same year would be used as an argument for independent citizenship for women well into the next century, argued that the Nationality Act of 1855 addressed America's need for immigrants and settlers; that the naturalization of the alien wives of American men would help accomplish that goal by making naturalization easy and automatic for these women. Billings, quoted in a letter from Henry Hazard to the Commissioner of Naturalization on 31 October, 1925 (National Archives, RG 85), asserted that Congress had "uniformly encouraged and fostered the migration and naturalization of foreigners in every proper way" and that the relation of husband and wife "was dealt with by [c]ongress only in the furtherance of this public policy of the nation." According to Justice Billings's line of reasoning, the 1855 act can be construed as a pro-natalist reproductive policy to increase settlement and population.
The 1855 act enabled the state to achieve its objective of increasing population by the manipulation of the citizenship of foreign women who married Americans. To be sure, lawmakers thought themselves magnanimous in conferring the status of American citizenship to these women, but altruism was not their motivation. Indeed, the fact that, in American eyes, these women had lost their choice of nationality was overlooked. Suffragist Susan B. Anthony questioned the wisdom of an act that extended American citizenship to foreign-born wives of American men, when American-born women still did not have full participatory citizenship. Why, wondered Anthony, "[I]f a foreign-born woman may become a naturalized citizen, entitled to all the rights and privileges of citizenship, is not a native woman, a born citizen, possessed of equal rights and privileges?" (Anthony, forthcoming). Anthony wanted to know why a foreign woman could become an American instantly and with no procedure, but an American woman could not attain the political rights of citizenship. One can only surmise Anthony's angst if she had lived to see the passage of the Expatriation Act of 1907.5 The Nationality Act of 1855 laid the foundation for the Expatriation Act of 1907. Because the act conferred citizenship on the foreign wives of American men, many jurists and legislators believed that the converse was true, that American women married to aliens also shared in the nationality of their husbands. Lack of a clear directive ensured that there would be many conflicting applications, and there were.6 But in 1907 this would be clarified, and derivative citizenship—citizenship contingent on a husband's citizenship—would be codified.
By 1907, most Western countries practiced derivative citizenship. Derivative citizenship served multiple purposes beyond foreign policy; it also reified the concept of citizenship as a masculine attribute. One can speculate that it may have also served as a deterrent to women who might choose a spouse outside of a nation's borders. America's lack of a clear statute resulted in the dual citizenship of American women whose husbands' nations also extended citizenship to the foreign wives of its citizens. In order to bring American foreign policy in line with the rest of the Western world, the United States codified derivative citizenship for all married women, thereby establishing a unified system of citizenship that eliminated the possibility of women retaining their American citizenship while acquiring the citizenship of their husbands. The legislation did not consider women who became stateless because they married men whose nations did not extend derivative citizenship to the wives of its male citizens. This state use of female citizenship constituted a figurative "traffic in women," one that did not trade female bodies but female civic rights.
In addition to helping to adjust foreign policy, codified derivative citizenship provided an additional function for the state: a penalty for American women who married foreign men. In the era of nativist purity movements, derivative citizenship was a punishment for American women marrying foreigners, especially racially ineligible foreigners. Concern over the sheer number of immigrants as well as their changing ethnic and racial profiles led to various efforts to restrict immigration. In 1907, immigration reached a pinnacle. The numbers of immigrants arriving on American shores was never higher, and would never be again.7 In addition, they were overwhelmingly male, and many would have to choose American wives because of the dearth of female immigrants.8 Because American women who married aliens became aliens, they suddenly found themselves subject to the immigration restrictions placed on their acquired nationalities. The Expatriation Act of 1907, whether intended or not, served as a form of immigration restriction by imposing such handicaps.
Derivative citizenship is the most explicit example of how a woman's civic relationship is used by the state. Because it was codified, it was a legal way to employ the "sex/gender system" to the benefit of the state; Supreme Court Justice Joseph McKenna clearly stated as much in 1915. His opinion, in a challenge to the constitutionality of the Expatriation Act of 1907, sympathized with the plight of Ethel Mackenzie, who brought the suit because she lost her citizenship when she married her alien husband. Nonetheless, he upheld the act and the use of women's citizenship in service to the state. Arguing that the decision to denationalize women had international aspects, Justice McKenna agreed that fighting for citizenship was worthwhile, but in light of international complications, the act was necessary and constitutional:9
We concur with consul that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal consideration. As we have seen, the legislation was urged by conditions of national moment. And this is an answer to the apprehension of counsel that our construction of the legislation will make every act, though lawful, as marriage, of course, is, a renunciation of citizenship. The marriage of an American woman with a foreigner has consequences of like kind, may involve national complications like kind, as her physical expatriation may involve. (239 U.S. 299)
The case of Mackenzie v. Hare (239 U.S. 299) tested the constitutionality of Section Three of the Expatriation Act of 1907. Feminist and California suffragist Ethel Mackenzie, no stranger to political activism, sought recourse in the courts when the State of California refused to allow her to vote, as the state constitution specified that a voter had to be an American citizen. Mackenzie forfeited her citizenship when she married British subject Gordon Mackenzie in 1909. Her case eventually reached the Supreme Court where it set precedent and became the "outstanding court opinion interpreting the act of 1907" (U.S. Senate 1933, 21).
Mackenzie used the Fourteenth Amendment in her challenge to the constitutionality of the Act. Her defense stated that the Act was a direct violation of the Fourteenth Amendment, which provides that: "All persons born . . . or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside" (239 U.S. 299).
The Supreme Court had no quarrel with the status of Mackenzie's citizenship at birth; it did not deny that she was born a citizen, just that she no longer maintained that position. Mackenzie's defense then argued that citizenship is a twofold relationship, that neither the government nor the citizen could destroy the bonds of citizenship without the explicit consent of the other, with the exception of treason. Mackenzie's defense maintained that "the Constitution gave Congress the power to confer citizenship but not the power to take it away" (239 U.S. 299).
The Supreme Court disagreed, affirming that as the United States was invested with the attribute of sovereignty and possessed the character of nationality, it also possessed the power incidental to its sovereignty, hence the authority to decide nationality. Furthermore, the Mackenzie case had nothing to do with the concept of a twofold relationship, because Mackenzie's expatriation was voluntary. The court stated that the terms of Section Three of the Expatriation Act of 1907 were clear, and Mackenzie had voluntarily entered into the state of marriage with a British subject, thereby consenting to expatriation:
As long as the marriage relations last, it is tantamount to expatriation. This is no arbitrary exercise of government. It is one, which, regarding the international aspects, judicial opinion has taken for granted would not only be valid, but demanded . . . It is as voluntary and distinctive as expatriation and its consequences must be considered as elected. (239 U.S. 299)10
The Supreme Court's decision upheld the constitutionality of Section Three of the Expatriation Act of 1907, and determined that marriage to an alien was a voluntary act of expatriation. The Michigan Law Review in 1915 stated that "this statute, in effect, makes mere marriage conclusive evidence of intent to transfer allegiance" (W.W.S. 1915, 235). The act of marriage to a foreigner equaled the act of expatriation, similar to an act of renouncing American citizenship by serving in a foreign-armed service, or swearing allegiance to a foreign crown or government.
Manipulation of a married woman's citizenship could occur because of the historical acceptance of coverture, a vestige of English common law. But derivative citizenship is unique in that under English common law, and American law until 1855, coverture did not apply to a woman's relationship with her sovereign or nation. In other words, her citizenship was her own and, as Cott has shown, the "legal norm of a wife's dependence" did not "reach her national citizenship" (1998, 1455). If we use for a moment the citizenship as defined by the 1875 Supreme Court Minor v. Happersett (21 U.S. 162) case, that is, that citizenship is membership in the polity, then it is clear that derivative citizenship as defined in the 1907 act denied some American women membership in their native land.11
In denying that membership to American-born women married to aliens, the act placed these American women in jeopardy vis-à-vis immigration laws and restrictions. On 4 March 1925, Mary Banta wrote to Raymond F. Crist, the Commissioner of INS, to plead the case of her two neighbors. (National Archives, RG 85). The neighbors, two sisters, American born of Japanese descent, married men from Japan. One sister's "unfaithful" husband deserted her and returned to Japan, where he remarried. The other sister was a widow. Mary Banta tried to intervene to aid these women with their citizenship problems. Although they were American-born, their marriages to alien men made them aliens, and because they were of Japanese decent, their marriage to men racially ineligible for citizenship made them racially ineligible as well, because Asians could not apply for naturalization.
Commissioner Raymond Crist's reply prompted Mary Banta to seek legal counsel on behalf of her neighbors. She employed the law firm of Niebrugge & Maxfield to handle the case. Raymond Crist's reply of 20 May 1925 to Niebrugge & Maxfield reiterated his reply to Mary Banta (National Archives, RG 85). At issue in this case was that the sisters expatriated themselves when they married Japanese men, and as they were of Japanese ancestry themselves, there were no provisions for them to proceed toward naturalization. Their marriages to Japanese men forever barred them from regaining American citizenship, despite the fact they were born in the United States.
The previous year a woman identified only by her initials, R.W.Y., married a Korean doctor. Unlike Mary Banta's neighbors, R.W.Y. was a Caucasian woman descended from old New England stock. Her husband, a blood specialist and graduate of Johns Hopkins University, was Asian, and as such denied the privileges of naturalization because of racial exclusions. R.W.Y. and her husband made their home in Hawaii, where according to their congressman, Victor K. Houston, he was "looked upon as one of the most capable doctors we have" (U.S. House 1931, 21).
R.W.Y.'s marriage to her Korean doctor stripped her of her racial identity as well as her national identity and her citizenship. In the eyes of the United States, when she married a Korean man, she became a Korean woman who derived her citizenship, race, and nationality from her husband, and therefore became a member of a racially excluded group. Representative Houston lamented that both R.W.Y. and her husband could never become citizens even though her Korean husband was "as white of skin as the average so-called Caucasian, a perfect gentleman," and "whiter of heart than most people" (21).
The penalty of denationalization threatened other American women in the early twentieth century. As a consequence of marital transgression, women who married aliens faced the same punishment as if they had committed treason. By its enforcement, the Expatriation Act of 1907 could help prevent American women from altering the delicate racial and ethnic balance that immigration restrictionists and racial purists feared was already threatened. It could also deter wealthy American women, the heiresses of the Gilded Age fortunes, from marrying impoverished European titles, and putting American money in the hands of foreign influences ("Mr. Worldly Wiseman Defends the American Aristocracy" 1910).
But American heiresses were few and far between. While most women who married aliens did not possess great fortunes, they did possess the ability to determine the racial and ethnic composition of their children through their choice of husbands. It is this area that provided immigration restriction with an internal means of controlling immigration, one that did not restrict entry or deal with the immigrant population itself, and did not have to endure the tedious legislative process as did literacy tests. External means were well underway; the gates to America were slowly closing, as restriction became tighter with head taxes, literacy tests, exclusion of certain classes of immigrants, and so on. Internal restriction, however, could alleviate some of the problems of those undesirable male immigrants who still trickled in, and who might cast their eyes toward American women and look to father their children.
The use of women and their reproductive capacities to limit or define the ethnic and racial composition was not new. Ethnic cleansing and miscegenation laws have been used by various societies for population control. The United States has used miscegenation laws and sterilization as ways to deter the marriage and procreation of persons of different racial backgrounds, sponsoring hidden, yet legislated policies designed to control racial composition. As the bearers of children and future generations, women have been susceptible to penalties and restrictions, whether through legal means or social condemnation (Lopez 1996, 15).
At the heart of Section Three of the Expatriation Act of 1907 was the provision by which American women who lost their citizenship when they married foreign men could regain their citizenship. Those who married Europeans and Africans could again become citizens under this act. They married men who were eligible for citizenship, and became naturalized if and when their husbands were naturalized.12 But that left the choice of citizenship to their husbands, not themselves. They could not become naturalized as long as their husbands refused to do so, if the marriage remained intact. They could, however, become naturalized independently at the end of the marital relationship, whether through the death of their husbands or through divorce, if they were white or of African descent.
Mary Banta's neighbors were not entitled to regain their citizenship. They were of Japanese descent and had married Japanese men. Although it is unclear from the correspondence between Mary Banta and Raymond Crist, the two sisters must have married professional men, business men, or men of means. Although there was no federal legislation that banned Japanese immigration as with the Chinese, the 1907–1908 "Gentlemen's Agreement," a foreign policy between the United States and Japan, achieved the same results. This agreement between the two countries served to almost eliminate Japanese immigration to the United States, but without antagonizing Japan, a recognized world power.13 Japan agreed to deny passports to laborers headed for the United States, and the United States could exclude Japanese immigrants holding passports originally issued for other countries (Kim 1996).
White women who married Asians could regain their citizenship at the termination of the marriage. They were eligible for naturalization under the 1790 Naturalization Act; Asian women were not. Once American-born Asian women married Asian men, it was as if they had never been born in the United States. They held the same status as an Asian born woman seeking American citizenship. It could not be done. The two sisters could never again become American citizens under the present law. Although both Asian and white women shared in citizenship prohibitions based on gender, white women were able to use their "currency of whiteness" to regain their citizenship after the end of the marital relationship.14 But if a white woman such as R.W.Y. chose to remain married to her husband, or the marriage did not end as a result of her husband's death, she too could not regain her citizenship or her racial identity. The United States racially reconstructed R.W.Y. and all other women who married racially ineligible men.
There was no question that Asian restriction was racially motivated. Immigration and naturalization prohibitions forbade the naturalization of Asians who were racially, not nationally, determined. A Caucasian Chinese citizen could be naturalized (and through derivative citizenship, so could his wife), a point expressly illustrated 21 April 1928 by INS Commissioner Raymond F. Crist. Crist, responding to an inquiry by New York State senator, William M. Calder, regarding the eligibility of the friend of one of his constituents' sons, a man born in China of German parents, quoted the act of 6 May 1882: "that hereafter no State court or court of the United States shall admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed" (U.S. House). Crist then provided the explanation and interpretation that the law "applies to persons of the Chinese race and not to those racially eligible persons who may have been born in China of foreign parents" (National Archives, RG 85). Yet Caucasian women married to Asian men became racially ineligible for citizenship under the Expatriation Act and remained so until 1931.
The problems faced by women who married aliens under the Expatriation Act of 1907 were by no means inconsequential. Entangled in the capricious immigration laws and restrictions, derivative citizenship caused women to lose their national and racial identities. Many denationalized women also lost their livelihoods, as many occupations, especially education, law, and government jobs, required American citizenship. However, Congress's implementation of derivative citizenship raised even more important issues than individual women's difficulties. It raised the specter of racial control.
By forcing women to choose between their national identity and their husbands, derivative citizenship exerted a penalty for national, ethnic, and racial transgression. After 1924, persons ineligible for citizenship could not enter the United States; women married to ineligibles, therefore themselves ineligible, could never reenter the United States if they left.
When legislation such as the Expatriation Act of 1907 is examined without gendered analysis, its realities and far-reaching consequences are not readily evident. It appears benignly as a law to remedy some of the inconsistencies of American foreign policy. Also hampering an understanding of this law is a dearth of sources and a silence surrounding its passage. No Congressional records remain of the discussions of the law, only a few lines in The Congressional Record, making it impossible to know precisely what lawmakers were thinking when they passed the act. But the discourse surrounding the appeals of the act speaks volumes. Congressional hearings are riddled with references alternating between a woman's proper role as a wife and the effects of immigration and miscegenation on the United States. In April 1912, attorney Ellen Spencer Mussey appeared before the House of Representatives during hearings to protest the treatment and the consequences for her clients who had married aliens. Specifically, Mussey addressed the problems expatriation caused in regard to property, and why women who married aliens "should have the restriction they are alien applying to the property they had before marriage" (U.S. House 1912, 20). Congressman N.E. Kendell suggested to Mussey that her clients' problems were their own fault and that property restrictions were an inconvenience which "perhaps Congress thought that [these restrictions should be] one of the penalties women ought to be subject to if they married foreigners" (20). Mussey, revealing her own nativist tendencies, appealed to those of the Congress and stated that "we do not want our property handled by aliens," to which Kendell sharply retorted that "we do not want our girls to marry foreigners, either" (20).
Mussey's and Kendell's acerbic remarks to one another exemplified the gender politics inherent in the act. Their verbal sparring laid bare the reasons behind the act. Kendell's emphatic statement, "We do not want our girls to marry foreigners," could not have been clearer or more forceful in its interpretation of the congressional position on the subject. Kendell's statement is a glaring illustration of the reasoning behind the legislation: that America did not want its daughters to marry the sons of other nations.
The law began to change in 1922. Under pressure from various coalitions of woman's groups, such as the National Woman's Party (NWP) and the National Association for Woman Suffrage of America (NAWSA), Congress slowly dismantled derivative citizenship. Prior to suffrage, because of their efforts to obtain the vote, little attention was paid to the act by either of the major suffrage organizations. Most of the work done by both the NWP and the NAWSA for independent citizenship took place after the Nineteenth Amendment.15 The subject did, however, occasionally surface before, especially after World War I caused American women married to German immigrants to be declared as alien enemies, and the Alien Property Custodian confiscated their property (U.S. House 1920). In 1918, The Woman Citizen, organ of NAWSA, asked "Is This Fair?" ("Is This Fair" 1918, 115). The article expressed concern about Wisconsin women married to Germans who were declared enemy aliens. After suffrage, these organizations flexed their political muscles and made independent citizenship one of their primary goals. Derivative citizenship, in light of enfranchised women seemed anachronistic. Congressmen and senators, being professional politicians, could no longer ignore the wishes of their female constituents and support derivative citizenship for women who married eligible aliens. Bipartisan endorsement of independent citizenship for American women, as demonstrated by the 1920 Republican and Democratic platforms sensitive to gender issues because of newly enfranchised women voters, ensured the act's demise (U.S. Senate 1933).
The Act of September 22, 1922, or as it was more commonly known, the Cable Act, started the process of repealing the Expatriation Act of 1907, but only in a piecemeal fashion that left many of the original provisions, including racial ineligibility, intact. Reluctance to eliminate denationalization for American women who married racially ineligible men lingered for almost a decade. Lawyer Emma Wold, a member of the NWP's Legislative Committee and the technical advisor for the nationality discussions at the Conference on International Law held at The Hague in 1930, allayed Congressional fears that removing the remaining racial provisions of the Cable Act would result in miscegenation:
If the objection to removing the present discrimination against women in our Cable Act is due to sentiment against racial mixtures, let me call your attention to the fact that it largely fails of its purpose. It does not affect many white or Caucasian women. The provision in the law touches the large number of Chinese and Japanese girls born in the United States with the precious heritage of United States citizenship. If, unfortunately, but perfectly legitimately, such a girl falls in love with one of her own race who is an alien and marries him, she is the one who is penalized.
So far as white women are concerned, the fact is that under the laws of many of our states, especially the western states, where Japanese, Chinese, and Hindus are found in large numbers, the laws make illegal a marriage between a white person and a Mongolian or Asiatic person. A white woman who enters upon an attempted marriage of this sort may be punished for the violation of the laws on marriage, but the penalty of loss of citizenship can not fall upon her for the reason that there is no marriage. (U.S. Senate 1933, 38)
Wold, despite her international efforts to gain independent citizenship for women, upheld the mores against race-mixing. She assured potential congressional supporters of the bill to revise the Cable Act that there would be no increase in white-Asiatic marriages; miscegenation laws would see to that. What race-mixing the federal government might allow by the passage of the Act of March 3, 1931, or the Second Cable Act, state laws would prohibit.
The Act of 3 March 1931 finally repealed the last racial provisions of derivative citizenship. Further legislation repealed any vestiges of derivative citizenship. After 1934, marriage had no bearing whatsoever on an American woman's citizenship. Independent citizenship for American women was complete.
Law professor Ian Haney López has examined the legal construction of race in the United States. Race in early twentieth century America is a category bound by legal definitions and social meanings, as well as ancestry. Legal penalties for racial transgression, whether marriage or miscegenation, made interracial unions less likely. Thus, the penalty of denationalization, and racial ineligibility, "skewed the procreative choices that determined the appearance of the U.S. population. The prerequisite laws have directly shaped the physical appearance of people in the United States by limiting entrance to certain physical types and by altering the range of marital choices available to people here" (1996, 15).
The onus of racial purity fell on women because they determined the racial composition of their children by their choice of husbands and fathers. Penalties as severe as denationalization and racial ineligibility might have caused a woman to think twice about her decision to marry an alien. The Expatriation Act of 1907 provided the state with a means of immigration restriction that did not bar immigration outright. It was far subtler.
The act presents a moment in time where the legal construction of race is readily apparent. It also provides a clear example of how race and gender are intertwined, and can, and have been, used together to achieve the objectives of the state. The political limitations of women in the early twentieth century provided the site for the state to construct and exert racial boundaries and categories for American women contingent on their marriage choices.
Women's citizenship as a strategy of immigration restriction pointed to the ideological and practical negligence of the importance of that citizenship. Derivative citizenship tampered with the citizenship rights of American women, but more important, it exiled American women married to aliens and banned them from political and civic membership in their homeland. How could a nation deny its native born inhabitants basic rights as important as citizenship and membership? The answer lies in the historical relationship between women and American citizenship, and the assumption of women's citizenship as secondary to male citizenship and family obligations. As Linda Kerber has shown, different definitions of female citizenship and male citizenship have compromised woman's citizenship and continue to do so.16 Because a woman's identity was contingent on her role as a wife and mother, her citizenship was available to be used as a political tool in domestic and foreign affairs. This could never have been done with men's citizenship. The citizenship of America's sons was too important, but the citizenship of America's daughters was expendable.
Ann Marie Nicolosi is Assistant Professor of Women's and Gender Studies/History at the College of New Jersey. She teaches courses on feminist theory, sexual politics, gender and popular culture, and American women's history. Her research interests include women's citizenship, image, and body in women's movements. Correspondence should be sent to Nicolosi at the College of New Jersey, 2000 Pennington Road, Ewing, NJ 08628-0718; Nicolosi@TCNJ.EDU.
Notes
1. White women have always been considered American citizens. African American women, like African American men, did not achieve national citizenship until the passage of the Fourteenth Amendment.
2. Although it is difficult to ascertain just how many American women married foreign men, birth and census records hint at the numbers and also reveal the racial concerns regarding the children of immigrants. For example, in the 1920 census, the proportion of white children born in 1920 to a native-born mother and a foreign father was almost eighty-nine per thousand (U.S. Department of Commerce, Bureau of the Census, and Niles Carpenter 1927). Differences in the male and female population of foreigners also indicate that foreign men would have had to seek out native-born women in order to marry. In 1900, there were 119.3 foreign-born males for every 100 foreign-born females. The 1910 census reveals that almost six million (5,962,982) persons had one native-born and one foreign-born parent. But even more alarming, by the 1920 census, "Indians, Chinese and Japanese and males of all other races over 21 years of age" outnumbered "Indians, Chinese and Japanese females over 21 years of age" by a ratio over 2-to-1 with 206 males for every 100 females. In California, the state that experienced the largest Asian immigration, with 279.4 males for every 100 females. The 1920 census also indicates a slight rise in the "foreign-born white males" to "foreign-born white females" ratio from the 1900 census figures of 119.3 males to 100 females to 122 males to 100 females (Inter-university Consortium for Political and Social Research, 1977).
3. Section Four pertains to the status of alien women married to American men upon the termination of the marriage: "That any foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain the same after the termination of the marital relation if she continues to reside in the United States, unless she makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such marital relation" (Expatriation Act of 1907). Alien women (unless a member of one of the groups ineligible for naturalization) became naturalized citizens upon their marriage to American men under the Nationality Act of 1855 (604).
4. The Court did hold, however, that her subsequent removal with her husband to England operated as a virtual dissolution of her allegiance to the United States, foreshadowing the 1893 decision of Comitis v. Parkerson, (et al., 56 Fed. 556 1893) and fixed her future allegiance to the British Crown by the "Treaty of Peace of 1783" (3 September 1783). This was based on the Court's belief that having been born under the allegiance of the British Crown (prior to 4 July 1776), and no act of the government of Great Britain having absolved her from that allegiance, having adhered to the British Crown under the "Treaty of Peace 1783," she was a subject of that country.
5.Anthony died in 1906.
6. See for example, Pequignot v. Detroit, 116 Fed. 211 (1883); Beck v. McGillis, vol. 9 Barb. (N.Y.); Jennes v. landes et al. 84 Fed. 73 (1897); Ryder v. Bateman 93 Fed. 16 (1898); Ruckgaber v. Moore 104 Fed. 947 (1900).
7. John Higham asserts that immigration reached its zenith in 1907. He also contends that the years 1905 to 1915 witnessed a resurgence of nativism, with patrician nativists building a "systematic ideology" and "popular nativism struggling to regain the vitality it had had in the mid-nineties." (1963, 158–9).
8. Between 1900 and 1909, males accounted for 60 percent of America's newcomers, and for two out of three immigrants between 1910 and 1914 (Archdeacon 1983, 135).
9. Justice McKenna is referring to the Expatriation Act of 1907 as a remedy for problems of women's dual citizenship when they married foreigners.
10. Justice McKenna elaborated his decision:
The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental or arbitrary, and worked in many instances for her protection. There has been, it is true, much relaxation of it, but in its retention as in its origin, it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity. It has purpose, if not necessity, in purely domestic policy; it had greater purpose, and, it may be, necessary in international policy. (239 U.S. 299)
11. This case determined that the Fourteenth Amendment did not grant women the right of suffrage.
12. The Naturalization Act of 1870 extended the naturalization laws to include aliens of African nativity and to persons of African descent.
13. The Chinese were restricted as early as 1882 through "An Act to Execute Certain Treaty Stipulations relating to Chinese" (U.S. House). There are a series of acts restricting Chinese immigration. These acts are collectively known as the Chinese Exclusion Acts.
14. David R. Roediger argues that whiteness itself is a currency (1991).
15. For a thorough account of the legislative process of eliminating derivative citizenship and the participation of NAWSA and the NWP, see Bredbenner (1998).
16. Kerber shows how the obligations and rights of citizenship differ for men and women in the present vis-à-vis military service (1998, 221–303). Citizenship is also gendered in its definition of what constitutes grounds for political asylum. For an account of how these definitions hampered the asylum appeals of Fauziya Kassindja in her efforts to avoid female genital mutilation, see Do They Hear You When You Cry? (Kassinja and Bashir 1999).
References
Act of March 3, 1931. U.S. Statutes at Large 46:1511.
Act of September 22, 1922. U.S. Statutes at Large 42: 1021.
Anthony, Susan B. Forthcoming. The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony, Vol. 2 An Aristocracy of Sex, 1866–1873. Edited by Ann Gordon. New Brunswick, NJ: Rutgers University Press.
Archdeacon, Thomas. 1983. Becoming America: An Ethnic History. New York: Free Press.
Bredbenner, Candice Lewis. 1998. A Nationality of Her Own: Women, Marriage, and the Law of Citizenship. Berkeley: University of California Press.
Congressional Record. 1907. 59th Cong., 2nd session. Vol. 41, pt. 2.
Cott, Nancy. 1998. "Marriage and Women's Citizenship in the United States, 1830–1934." The American Historical Review 103:1440–74.
Expatriation Act of March 2, 1907. U.S. Statutes at Large 34:1228.
Higham, John. (1955) 1963. Strangers in the Land: Patterns of American Nativism, 1860–1925. New York: Atheneum.
Inter-University Consortium for Political and Social Research. 1977. Historical, Demographic, Economic, and Social Data: The United States, 1790–1970 (Computer File). Ann Arbor, MI: Inter-University Consortium for Political and Social Research [producer and distributor].
"Is This Fair?" 1918. The Woman Citizen, 6 July:115.
Kassindja, Fauziya, and Layli Miller Bashir. 1999. Do They Hear You When You Cry? New York: Delta.
Kerber, Linda. 1998. No Constitutional Right to be Ladies: Women and the Obligations of Citizenship. New York: Hill and Wang.
Kerber, Linda. 1976. "The Republican Mother—Women and the Enlightenment: An American Perspective." American Quarterly 28:187–205
Kim, Hyung-Chan. 1996. Asian Americans and Congress. Westport, CT: Greenwood Press.
Locke, John. (1960) 1996. Two Treatises of Government. Edited by Peter Laslett. New York: Cambridge University Press.
López, Ian F. Haney. 1996. White by Law: The Legal Construction of Race. New York: New York University Press.
"Mr. Worldly Wiseman Defends the American Aristocracy." 1910. American Magazine 69:859–64.
National Archives. RG 85. Immigration and Naturalization (INS) Correspondence Files. File 16/9, Box 392.
———. RG 85. Immigration and Naturalization (INS) Correspondence Files. File 23/2606, Box 451.
———. RG 85. Immigration and Naturalization (INS) Correspondence Files. INS Files, 23/6647, Box 510.
Nationality Act of February 10, 1855. U.S. Statutes at Large 10:604.
Naturalization Act of 1790. U.S. Statutes at Large 1:103
Naturalization Act of 1870. U.S. Statutes at Large 16:254–6.
Pateman, Carole. 1988. The Sexual Contract. Stanford, CA: Stanford University Press.
Roediger, David. 1991. The Wages of Whiteness: Race and the Making of the American Working Class. New York: Verso.
Rubin, Gayle. 1975. "The Traffic in Women: Notes on the Political Economy of Sex." In Toward an Anthropology of Women, ed. Rayna R. Reiter, 157–210. New York: Monthly Review Press.
Sapiro, Virginia. 1984. "Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States." Politics and Society 13(1):1–26.
Scott, Joan W. 1988. "Gender: A Useful Category of Historical Analysis." In her Gender and the Politics of History, 28–50. New York: Columbia University Press.
U.S. Department of Commerce, Bureau of the Census, and Niles Carpenter. 1927. Immigrants and Their Children, 1920. A Study Based on Census Statistics Relative to the Foreign Born and Native White of Foreign or Mixed Parentage. Census Monograph 7. Washington, DC: G.P.O.
U.S. House. 1931. Committee on Immigration and Naturalization. Amendment to the Women's Citizenship Act of 1922 and for Other Purposes. 71st Cong., 3rd session, 23 January.
———. 1920. Committee on Immigration and Naturalization. Readmission of Augusta Louise De Haven-Alten to the Status and Privileges of a Citizen of the United States. 66th Cong., 2nd session, 29 January; 3 February.
———. 1912. Committee on Foreign Affairs. Women's Expatriation on Marital Grounds, Review. 62nd Cong., 2nd session, 17 April.
———. 1882. Committee on Immigration and Naturalization. An Act to Execute Certain Treaty Stipulations Relating to Chinese. 47th Cong., 1st session, 6 May.
U.S. Senate. 1933. Congress, Senate, Committee on Immigration and Naturalization. American Citizenship Rights of Women. 72nd Cong., 2nd session, 2 March.
W.W.S. 1915. Expatriation resulting from marriage to alien husbands. Michigan Law Review 14: 235.
IU Press Journals
Home PageMore about NWSA Journal
Library
RecommendationAdvance
InformationTables of
ContentsCopyright
Clearance