Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage

Abstract

This Article narrates a sorely neglected legal history, that of the intersection between race, gender, and American citizenship through the first third of the twentieth century. It is a little known fact that marriage once functioned to exile U.S. citizen women from their country; moreover, how racial barriers to citizenship shaped expatriation and dependent citizenship presents an even more complex history. Using an intersectional analysis to consider the impact of gender on racial bars to citizenship, as well as the impact of race on gendered bars to citizenship, the Article thus begins with a clarification of the historical record.

But beyond narrating and clarifying history, exploring the contours of gender- and race-based exclusion offers a potent lesson about citizenship more generally. In particular, the history of dependent citizenship and marital expatriation shows how notions of incapacity were foundational to racial and gendered disenfranchisement from formal citizenship. Such notions of incapacity, reflected in laws of coverture and race-based exclusion, were deeply connected to moral and republican ideals-which were assumed unattainable by Asian women and men. Therefore, our understanding of citizenship broadens if we focus not only on the status-race and gender-used to deny citizenship, but also on the rationales about appropriate conduct that precluded certain individuals from access to the American polity.

In addition to literal access and exclusion, the Article examines how identity shapes citizenship more broadly. Whether one discusses citizenship in the form of rights, as political activity, or symbolically, it is apparent that continued ambivalence about admission to citizenship remains. Although race-based and gender-based bars to formal citizenship no longer exist, prosecution of the "War on Terror" suggests that identity still shapes notions of who is capable and incapable of fulfilling our moral and political ideals.

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About the Author

Professor of Law, University of California, Berkeley, School of Law (Boalt Hall). This Article was delivered as the Barbara Black Lecture on Women and Law at Columbia Law School, and at faculty workshops at the UCLA School of Law, USC Law School, the Center for Social Justice at Boalt Law School, the University of Minnesota School of Law, the Washington and Lee University School of Law, the Ohio State University Moritz College of Law, the University of Pittsburgh School of Law, Scripps College, and the American University Washington College of Law.

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