Citizenship and Race

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Citizenship and Race

RACE AND CITIZENSHIP IN THE COLONIAL ERA

NATURALIZATION RACE AND CITIZENSHIP

NATURALIZATION ACT OF 1870

WHITENESS AND RACIAL PREREQUISITE CASES

SECOND-CLASS CITIZENSHIP AND RACE

BIBLIOGRAPHY

Generally speaking, citizenship defines the relationship between the nation-state and those individuals who are considered to be a part of the national polity. Citizenship involves complex notions of rights, obligations, and identity and is a contested social category. Citizenship is a malleable term, which is easily conflated with geopolitical identity. Citizenship can refer to birthplace and national allegiance, but birthplace alone does not define a citizen. Most scholars define citizenship in reference to at least three categories: rights, political activity, and identity. Yet, the most complete definition of citizenship is membership. Citizenship can best be defined by membership in a political community (nation or state) that provides the benefit of political rights of participation, including a right to vote, own property, and participate in governance. Citizenship also involves burdens and duties, including supporting the general will of the nation-state, and participating in activities that benefit the broader community, including paying taxes, subordinating personal interests for the general welfare, and deferring to the broad police powers of the state. In the United States, racial lines and categories demarcated citizenship: whites were citizens, and blacks were, at best, “others.”

A review of legislative history before the U.S. Civil War (1861–1865) reveals significant ambiguity as to what the citizenship concerns were or what the term fully meant to legislators or crafters of the U.S. Constitution. However, one issue was clear: wealth and race were determinate factors in one’s ability to claim full inclusion and the rights associated with citizenship in the United States. The racial dimension of citizenship can be seen in the way that race determined rights and membership in colonial America, the centrality of race in determining who could become a citizen through the naturalization process, and the use of race to demarcate first- and second-class citizenship from the time of independence until the 1960s.

Immigration and subsequent naturalization petitions served a vital function in the early forming of the United States. Free, white Europeans were needed to pioneer and participate in westward expansion. Their arrival served a vital function in the eighteenth century to help claim territory from indigenous populations and create a new definition of citizenship in the West. The geopolitical taking of land and casting out indigenous populations energized a new identity category, whiteness, which defined citizenship at the time and continued to tug at the nation’s conception of citizenship through the Civil War, Reconstruction, the civil rights movement, and even post-9/11.

After the Civil War, amendments to the constitution addressed citizenship more clearly and directly by explicitly implementing language using the term citizenship, in the Fourteenth Amendment for example. Despite this inclusion, the scope of this term remains disputed largely because (as many people believe and legal cases confirm) citizens have at times been treated differently based on race, gender, sexual orientation, health, and religious status.

RACE AND CITIZENSHIP IN THE COLONIAL ERA

Although Africans were present at the very beginning of viable European settlement of North America, it was clear that they were in no means considered “citizens” of those colonies. A review of the history of black settlement in Jamestown, Virginia, and St. Augustine, Florida, reveals a two-tiered society where Africans were commonly denied the ordinary privileges of local white citizens, including the ability to litigate disputes, own property, and vote. Africans were not considered members of the newly established colonies. In fact, the early colonies permitted slavery and enforced brutal practices to keep slaves in check and enforce the authority of slave owners.

The colonial era came to define future notions of citizenship as well as delineate the proper roles between persons of different social origins. Crucial to the creation of citizenship for whites and denying the same to black people, particularly black women, were the development of anti-miscegenation legislation and the denial of inheritance through the paternal bloodlines, as had been an essential part of English common law tradition. Jack M. Balkin argues, “obviously, a system of subordination cannot be stable if it is too easy to exit from the criteria of subordination status. That is why biological traits can be such useful markers of cultural differentiation. The advantage of immutability lies in its guarantee of stability—it helps ensure that social hierarchy can be reproduced effectively” (1997, p. 2313). (See, for example, Act XII: Negro Women’s Children to Serve According to the Condition of The Mother, Virginia 1662; see also Franke 1999.)

Paul Finkelman provides a reminder that in early Virginia comparatively fewer white women settled, therefore white men engaging in sexual relationships often did so with enslaved blacks (1997). These contacts were by no means legally uncomplicated as they were often noncon-sensual, produced children, and yet the African women who bore these children were legally on par with animals. Despite tens of thousands of blacks being born to white fathers—who were often connected to plantations (owners, overseers, or their relatives)—they were cast as illegitimate and inherited (non)-citizenship according to their mothers’ enslaved status (Finkelman 1997).

In 1662 Virginia led the slave states in differentiating the citizenship of future sons and daughters of the United States. The Act provided (all sic):

Wheras some doubts have arrisen whether children got by any Englishman upon a negro women should be slave or ffree, Be it therfore enacted and declared by this present grand assembly, that all children borne in this country shalbe held bond or free only according to the condition of the mother, And that if any christian shall committ ffornication with a negro man or women, hee or shee soe offending shall pay double the ffines imposed by the former act. (Act XII, Negro Women’s Children to Serve According to the Condition of the Mother, Virginia, 1662).

Law scholar Cheryl Harris explains that this act and similar others were designed to “guarantee that the property in whiteness remained pure and inviolate,” but more importantly that the slaveholders would not suffer economic losses through their sexual misadventures with black slave women (quoted in Painter 1996, p. 333–335). Citizenship was naturally coveted as it conferred rights, privileges, and social legitimacy, which became critically important in the “new world.” Without citizenship even the black children of white fathers were relegated to what Derrick Bell refers to as the “bottom of the well” (1992).

The founding of American citizenship implicitly relied upon the denial of citizenship to those of African descent. This was most expediently achieved through the collective negative imaging of blacks. Historians comment that blacks were perceived as too immature, unsophisticated, and intellectually inferior to properly exercise the rights granted to citizens, including the right to vote, receive fair wages, contract, and express individual autonomy (Du Bois 1903, Bennett 1999, Painter 1996, Wade 1964).

William H. Harris, in his 1982 work The Harder We Run: Black Workers since the Civil War, comments on the economic rights associated with fair wages and labor. Harris observes that the need for black labor was apparent, but that blacks were pacified with diminutive wages, treating them not as respected, adult laborers. Harris also comments that when blacks were inclined to strike in protest of their punitive treatment, whites were known to respond with violence. They were considered an “inferior class of beings” who had to be “subjugated by the dominant race,” holding no rights except those the government might choose to give them (from majority decision of Dred Scott v. Sandford, 60 U.S. 393,1856).

Dred Scott v. Sanford (1856) is, by all measures, the defining antebellum case on citizenship status. In the Dred Scott case, the U.S. Supreme Court determined that persons of African descent were not and could not become citizens of the United States. The Court held that “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted” the Constitution.

Frederick Law Olmsted, an esteemed abolitionist, commented on the superficial, “childlike” relationship between blacks and whites, accepting this notion as a sad reality (1860). Essential to the sanctioning and political health of slavery and the protection of white propertied landowners’ interests were the denial of black citizenship and other exclusions (Fox 1999). Thus, although laboring and living in America, slaves were without placement and political identity in the United States. Blacks’ lack of political identity and recognition had both psychological as well as economic implications for both blacks and whites. For example, Nell Painter in Sojourner Truth: A Life, A Symbol (1996) describes with incredibly rich detail the psychological characteristics of slavery and the affects of subordination and “its characteristics—a lack of self-confidence, personal autonomy, and independent thought …” (p. 17). Winthrop D. Jordon, in his 1974 work The White Man’s Burden: Historical Origins of Racism in The United States, provides an excellent exposition on the perceived economic necessities of slavery and the psychological ramifications of reliance on unpaid black labor (see also Johnson 1999, Randall 2001). The psychological dimensions of antebellum period imagery continue to haunt and complicate race relations in America.

The economic empowerment and growth of the United States depended upon unpaid labor of African slaves, and as slavery was “an essential part of the original constitution,” blacks were relegated to the status of chattel or property (see also Blassingame 1972). Slavery became the source for economic power and growth for the United States; as Charles Johnson and Patricia Smith observed, “in 1795, the first year of the cotton gin’s operation, American planters produced 8 million pounds of cotton. By 1800, production increased more than 400 percent, fueling the demand for additional [slave] labor” (1998, p. 267). David Brion Davis noted that slavery was a “far stronger institution in 1880 than in 1770—largely because of the invention of the cotton gin” (2001, p. 1); Yuval Taylor asserted that “the cotton the slaves produced had become not only the United States’ leading export but exceeded in value all other exports combined” (quoted in Robinson 2000). Not only through sales in cotton, tobacco, sugar, hemp (for rope making), and other agricultural crops in the south, slavery also had presence in the American North: “black bondage had long been legal in all 13 colonies when the American Revolution began” (Davis 2001, p. 1). Slaves were bought, sold, used for collateral, and listed as assets in bankruptcy petitions (Weisenburger 1998).

Slavery itself was more easily justifiable if blacks, in the popular cultural imagination and legal texts, possessed infantile and unsavory attributes. Thomas Jefferson referred to slaves in terms of chattel and animals, suggesting that they possessed dull imaginations, were tasteless, and foul in odor (1954). As slaves, lacking voting power, credit power, and access to education, blacks did not possess the legal or social means to move themselves beyond servitude (Harris 1996). By contrast, poor whites, experiencing certainly a compromised status in America, were nonetheless able to benefit economically—even if marginally—from the absolute subjugation of blacks (Bell 1990). Moreover, they were not considered chattel within the law or society. As suggested by W.E.B. Du Bois, this quagmire was not wholly unintentional, as the concept of racial superiority would psychologically compensate poor whites by providing “public and psychological wage,” thereby diametrically positioning black inferiority in counterbalance to collective white dominance and citizenship (1935, p. 700). Whiteness is a stock, which needs no investment from whites, but provides economic, political, and social returns for their particular group. Buttressed against that was the unshak-ably distorted image of blackness; if whiteness is property and citizenship, blackness was an “alien” status.

NATURALIZATION RACE AND CITIZENSHIP

Naturalization, or the process of becoming a citizen when born elsewhere, was significantly determined by race. In the United States, whiteness was the sine qua non of becoming a citizen.

The first law setting forth citizenship requirements was the Naturalization Act of 1790. It established the first rules governing the granting of national citizenship in the United States. Citizenship at that time was limited to “free white persons,” excluding slaves and indentured servants. Under the Act, Native Americans, Asians, and other non-Europeans did not meet the legal definition of “white” for purposes of naturalization and citizenship. The law also limited citizenship to men, who in turn were free to vote. The naturalization process usually required two years of residency in the United States and one year of residency in a

state. Upon meeting such requirements, individuals were usually allowed to file a petition for naturalization with common law courts.

In 1790 Congress affirmatively acted to reserve naturalization exclusively for “white persons” (Act of March 26, 1790, Ch. 3, 1 Stat. 103). Because Congress defined naturalization as “[t]he conferring, by any means, of citizenship upon a person after birth,” it was clear that even petitions for citizenship would be denied to those who were not white by birth (United States Citizenship and Immigration Services). The racialization of naturalization endured until 1952, long after the abolition of slavery (Immigration and Nationality Act Section 101[a][23], 8 U.S.C. Section 1101[a][23][1952]). It was only then, in 1952, that naturalization was not preconditioned on race (Akram and Johnson 2002). The Immigration and Nationality Act (INA) of 1952 (also known as the McCarran-Walter Act) restricted immigration to the United States, but is also known for organizing a disparate body of statutes and regulations regarding immigration and naturalizing and solidifying U.S. policy under one legislative act.

For more than a century after the passage of the 1790 law, “Congress legislated separately regarding immigration and nationality” (Smith 2002). Marion Smith, a senior historian for the United States Immigration and Naturalization Services, explains that “one congressional committee drafted nationality law, defining U.S. citizenship and how it might be lost or gained. Another committee addressed immigration issues and only began serious attempts to govern or regulate immigration as the nineteenth century came to a close” (2002). Only later, and only for the purpose of excluding Chinese persons from naturalizing in 1882, did the two laws converge.

It was the Fourteenth Amendment, ratified on July 9, 1868, that granted citizenship to all children born of former slaves in the United States. A bold step forward for the country, it sought to protect the status of former slaves by guaranteeing equal treatment under the law as well as the protection of property and liberties typically granted white citizens. The Amendment was significant because it closed the federal and state social policy gap. It made clear that states could not abridge federally conferred rights of citizenship, effectively overturning Dred Scott v. Sanford. The Amendment provides:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (United States Constitution, Amendment XIV, Section 1, 1868).

The Fifteenth Amendment, ratified in 1870, recognized as granting citizens the right to vote, essentially extended this right only to black men; white women and black women were yet to be fully incorporated as voting members of the U.S. citizenry. In relevant part, the Amendment protects the right to vote against state or federal acts of discrimination. It gives power to the Congress to enforce the legislation, although the meaningful muscle of this Amendment would come nearly a century later with the Voting Rights Act of 1965.

NATURALIZATION ACT OF 1870

Now that the children of former slaves were automatically granted citizenship status in the United States, an important question remained unanswered: What about their parents and other immigrants? Following the passage of the Thirteenth Amendment (1865), which abolished slavery, the Fourteenth Amendment conferred citizenship on the formerly enslaved. Congress passed the Naturalization Act of 1870; while the 1870 Act ushered in a right for blacks to naturalize, overall the Act held only limited promise of equality in the United States; it provided only for the naturalization of whites and persons of “African descent” and continued to exclude Asians and Native Americans from citizenship. Moreover, the law became symbolic for blacks as their claims to legal citizenship were seemingly trumped by social and political subordination and physical backlash.

In 1882, Congress addressed Asian citizenship directly in the Chinese Exclusion Act. The anti-Asian legislation is considered one of the most significant laws restricting immigration into the United States on the basis of race. Chinese workers were the targets of significant racial animus from working class whites in Western states. Despite the fact that the Chinese comprised less than 1 percent of the U.S. population, Congress intervened to assuage racial fears that Asians were “stealing” jobs from white Americans.

The Exclusion Act, which was renewed in 1892 and in 1902, sought to restrict Chinese immigration and naturalization. The Act formed the basis for other race-based exclusion measures, including successful efforts to deny naturalization to Hindus, Japanese, Middle Easterners, and East Indians. Chinese persons, including Chinese Americans, were ineligible to apply for citizenship until 1943, when the Exclusion Act was effectively nullified.

Citizenship rights for Native Americans were dealt with in the case of Elk v. Wilkins (1884), which denied John Elk the right to vote in Nebraska. The Court held that citizenship was established by the federal government and that Native Americans were not included in the guarantees of citizenship, nor extended the right to vote by the Fifteenth Amendment. The Court emphasized that Congress did not intend for such rights to be established for Native persons. That precedent would stand until 1887, when Congress enacted the Dawes General Allotment Act, which granted citizenship to Native Americans who disavowed tribal affiliations and allegiance. Finally, in 1890, twenty years after blacks were granted the right to naturalize, Native Americans were extended the same right with the Indian Naturalization Act of 1890.

WHITENESS AND RACIAL PREREQUISITE CASES

Whiteness was a valuable commodity in the United States; it was unquestionably the most significant feature of citizenship requirements according to Justice Roger B. Taney’s infamous holding in the Dred Scott decision. Whereas the 1870 Naturalization Act provided citizenship to whites and blacks, for other ethnic, nonwhite populations, efforts to naturalize were met with unyielding legislative and judicial opposition. Color became the measuring stick by which to evaluate citizenship and naturalization in the United States. In a rather ironic twist, throughout the early twentieth century members of Asian and other ethnic groups petitioned courts claiming whiteness in order to gain citizenship.

Petitions for naturalization based on whiteness almost always failed for Asians and other ethnic minorities. Historians have yet to capture the full meaning of such efforts. For example, might some ethnic groups have been more successful applying for citizenship if they had cast themselves as black instead of white? Why was whiteness the natural or preferred avenue to citizenship given that blackness afforded—in naturalization cases—an equal opportunity for citizenship? Whiteness, just as blackness, however, was a social construction enforced by law, built on very unsteady ground. In other words whiteness was an arbitrary physiological distinction, but which courts claimed was clear by “common knowledge.”

Whiteness, however, also exposed the fault lines inherent in creating racial hierarchies. Clear distinctions were erected to define the quality of citizenship between whites and nonwhites. Nevertheless, all whites were not treated equally; the English, Irish, French, Scandinavians, Germans, and others found unity in whiteness buttressed against blackness in the competition for jobs, services, public accommodations, and quality schools, but divisiveness based on religion, national origin, or geographical affiliation and minor phenotype distinctions plagued that tenuous coalition throughout the second half of the

nineteenth century. Public forms of discrimination against the Irish, including signs posted in windows that read “No Irish Need Apply,” evidenced the tension. While the Irish hoped to ascend into politics and assimilate in the United States, southern Europeans, such as the Italians, preferred to build in small communities and often hoped to return to their homelands.

SECOND-CLASS CITIZENSHIP AND RACE

Is citizenship any less meaningful if members of a group enjoy legal entitlements, but experience social, political, and sometimes violent obstacles in obtaining or exercising those rights? The Jim Crow era in the United States (from Reconstruction through the 1960s) signified a return to the tyranny of second-class citizenship for Americans of African descent. The constitutional rights obtained during Reconstruction and later amendments to naturalization policies stood as hollow promises while blacks were subjected to mob violence for attempting to vote, denied equitable public education, and were the victims of heinous lynchings, sexual violence, and systemic brutality.

The tyranny of the Jim Crow era in American life is given stark definition by the murders (too often with the complicity of local law enforcement) of teenagers and young adults attempting to assist blacks in voting during the 1950s and 1960s, and the horrific lynching and castration of Emmett Till, a fourteen-year-old boy murdered in 1955 for allegedly whistling at a white storekeeper’s wife. When considering what citizenship meant during Jim Crow, it is clear that there were two tiers of social and political empowerment in society. Those tiers were vertical and not horizontal as the Supreme Court led the nation to believe by its ruling in Plessy v. Ferguson (1896).

Plessy v. Ferguson was central in recasting hierarchical differences in citizenship in the United States. In that case, the United States Supreme Court ruled that blacks enjoyed the same rights as whites, but those rights were to be accommodated in separate, but equal, spaces. The ramifications of this case traveled far beyond its original context (a biracial passenger on a train being removed from an all-white car), to justify housing discrimination; segregated schooling, and obstacles in blacks being admitted to universities, medical schools, and law schools; and discrimination in accommodations on trains, buses, and trolleys, and in pharmacies, restaurants, stores, and the voting booth. The reality of Plessy was a return to the state of affairs referred to by Taney in the Dred Scott decision when he iterated for the nation that those of African descent had no rights that whites were obligated to respect. Despite the U.S. Supreme Court’s ruling in Brown v. Board of Education (1954), overturning Plessy as a matter of law, the legacy of the Dred Scott and Plessy decisions lives on.

Citizenship is about membership and sociopolitical belonging. The test of one’s citizenship in a society may take place at the ballot box, but it also occurs during one’s daily routine of going to school, work, shopping, accessing accommodations, worshipping, and returning home. It is in these spheres where the quality of citizenship is often revealed, and it continues to be in these domains where immigrants, those of African descent, and others continue to encounter challenges to their status as U.S. citizens. Racial profiling, the denial of services, and hate crimes evidence that full incorporation of citizenship is not exclusively a legal function, but also a process with social, cultural, and political meaning.

SEE ALSO Civil Rights Acts; Dred Scott v. Sandford; United States Constitution.

BIBLIOGRAPHY

Akram, Susan M., and Kevin Johnson. 2002. “Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy: Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims.” New York University Annual Survey of American Law 58: 295.

Balkin, Jack M. 1997. “Group Conflict and the Constitution: Race, Sexuality, and Religion.” Yale Law Journal 106: 2313, 2324.

Bell, Derrick. 1990. “After We’re Gone: Prudent Speculations on America in a Post-Racial Epoch.” St. Louis University Law Journal 34: 393.

———. 1992. Faces at The Bottom of The Well: The Permanence of Racism. New York: Basic Books.

Bennett, Lerone, Jr. 1999. Forced into Glory: Abraham Lincoln’s White Dream. Chicago: Johnson.

Blassingame, John W. 1972. The Slave Community: Plantation Life in The Antebellum South. New York: Oxford University Press.

Davis, David Brion. 2001. “Free At Last: The Enduring Legacy of the South’s Civil War Victory.” New York Times, August 26: 1.

Dred Scott v. Sandford, 60 U.S. 393 (1856).

Du Bois, W. E. B. 1903. The Souls of Black Folk. Chicago: A.C. McClurg.

———. 1935. Black Reconstruction in America, 1860–1880. New York: Atheneum.

Finkleman, Paul. 1997. “Crimes of Love, Misdemeanors of Passion: The Regulation of Race and Sex in the Colonial South.” In The Devil’s Lane: Sex and Race in the Early South, edited by Catherine Clinton and Michele Gillespie. New York: Oxford University Press.

Fox, James W., Jr. 1999. “Citizenship, Poverty, and Federalism: 1787–1882.” University of Pittsburgh Law Review 60: 421, 479–577.

Franke, Katherine M. 1999. “Becoming a Citizen: Reconstruction Era Regulation of African American Marriages.” Yale Journal of Law and the Humanities 11(2): 251–309.

Harris, Cheryl I. 1993. “Whiteness as Property.” Harvard Law Review 106: 1709–1791.

———. 1996. “Finding Sojourner’s Truth: Race, Gender and The Institution of Property.” Cardozo Law Review 18 (2): 309–409.

Harris, William H. 1982. The Harder We Run: Black Workers since the Civil War. New York: Oxford University Press.

Hickman, Christine B. 1997. “The Devil and the One Drop Rule: Racial Categories, African Americans and the U.S. Census.” Michigan Law Review 95: 1161–1265.

Immigration and Nationality Act. 1952. Section 101(a)(23), 8 U.S.C. Section 1101(a)(23).

Jefferson, Thomas. 1954 (1784). Notes on the State of Virginia, edited by William Peden. Chapel Hill, NC: Institute of Early American History and Culture.

Johnson, Charles, and Patricia Smith. 1998. Africans in America: America’s Journey through Slavery. New York: Harcourt Brace.

Johnson, Walter. 1999. Soul by Soul: Life Inside the Antebellum Slave Market. Cambridge, MA: Harvard University Press.

Jones, Trina. 2000. “Shades of Brown: The Law of Skin Color.” Duke Law Journal 49: 1487.

Jordon, Winthrop D. 1974. The White Man’s Burden: Historical Origins of Racism in the United States. New York: Oxford University Press. Provides an excellent exposition on the perceived economic necessities of slavery and the psychological ramifications of reliance on unpaid black labor.

Olmsted, Frederick Law. 1860. A Journey in the Back Country. New York: Mason Brothers. Details the paternalism and violence associated with slavery in southern cities.

Painter, Nell Irvin. 1996. Sojourner Truth: A Life, A Symbol. New York: Norton.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Randall, Alice. 2001. The Wind Done Gone. Boston: Houghton Mifflin.

Robinson, Randall. 2000. The Debt: What America Owes to Blacks. New York: Dutton.

Smith, Marion. 2002. “Race, Nationality, and Reality: INS Administration of Racial Provisions in U.S. Immigration and Nationality Law since 1898, Part 1.” Prologue Magazine 34 (2). Available from http://www.archives.gov.

United States Citizenship and Immigration Services. Available from http://www.uscis.gov.

United States Constitution, Amendment XIV, Section 1 (1868).

Wade, Richard C. 1964. Slavery in the Cities: The South, 1820–1860. New York: Oxford University Press.

Weisenburger, Steven. 1998. Modern Medea: A Family Story of Slavery and Child-Murder from the Old South. New York: Hill and Wang.

Michele Goodwin

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