Yale Law School
The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of restrictions on father-child citizenship transmission was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. At formative moments in the development the laws governing jus sanguinis citizenship – what is now called derivative citizenship – gender- and marriage-based domestic relations laws were enlisted by administrators, judges, and legislators to deny the citizenship claims of nonwhite children, especially those who were excludable under the race-based immigration and naturalization laws. For those who study citizenship and immigration law, Illegitimate Borders illustrates the concrete and enduring ways that ideas concerning family, gender, and race have shaped the rules that govern formal membership in the American polity. For legal historians and scholars interested in the development of the administrative state and nation building, this article provides a window onto the central role administrators played in crafting American nationality law. For family law scholars, Illegitimate Borders highlights the ways that laws regulating illegitimacy – long used to create and maintain racial hierarchies within the American polity – were regularly used to shape the racial composition of the polity as well. Finally, for constitutional law scholars, the history charted here undermines the view that gender-asymmetrical jus sanguinis citizenship laws reflect natural and inevitable means of regulating parent-child derivative citizenship – an understanding that has been embraced by a majority of the Supreme Court. Instead, the historical sources reveal that gender-asymmetrical citizenship laws are the product of choices made by officials and shaped by contemporary norms concerning gender, parental roles, and – as illustrated in great detail – the official imperative to enforce race-based nationality laws. To speak of gender-based distinctions drawn in modern citizenship law as inevitable obscures their origins and elides the ways that such laws continue to play an illiberal role in the practice and politics of citizenship.
Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,
Yale Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/72