Friday, July 11, 2014

Immigration Article of the Day: Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation by Kristin A. Collins

Yale law

Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation by Kristin A. Collins

Abstract. 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 difference.” Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of gender- and marriage-based derivative citizenship law—jus sanguinis citizenship—was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. The complex interaction of gender, race, family law, and nationality law charted here demonstrates that gender-based jus sanguinis citizenship is not a biologically inevitable feature of American nationality law, as has been argued, but is in important respects the product of choices made by officials engaged in a racially nativist nation-building project. This history also suggests that what is at stake in modern challenges to gender-based citizenship laws is not only the constitutionality of those statutes, but a mode of reasoning about citizenship, family, gender, and race that continues to shape the practice and politics of citizenship in ways that are often obscured in modern citizenship debates.

KJ

http://lawprofessors.typepad.com/immigration/2014/07/immigration-article-of-the-day--3.html

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