Tuesday, May 16, 2023

Article of the Day: International Lawyers for White Supremacy and the Road to Wong Kim Ark, by Sam Erman & Nathan Perl-Rosenthal

Guest Blogger Ashley Mains, UC Law San Francisco (formerly UC Hastings) JD ‘23

The foundation of the United States is a nation of immigrants, but at what point were immigrants no longer automatically citizens? When did birthright citizenship come to be, and what shaped it? These questions find answers in International Lawyers for White Supremacy and the Road to Wong Kim Ark, an in-progress paper written by Sam Erman and Nathan Perl-Rosenthal, as he thoughtfully discusses the history of birthright citizenship policies and the application of the Fourteenth Amendment.

While many recognize that the United States distinguishes citizenship according to two principles, jus soli and jus sanguinis, right of birthplace and right of blood respectively, Erman points out that this citizenship binary was an invention of the nineteenth century (p.6). The English practice of principle of "power and protection" at a person's birth was used following the United States revolution and into the 1820's but unofficially, it was referenced in discussions of allegiance of birth (p.8). While this principle bestowed citizenship to those born within the U.S. regardless of parentage and to children born to U.S. citizens regardless of birthplace, this standard did not apply to people of color, nor did it create citizens of free people of color (p. 8-9). Erman goes on to trace the invention of jus soli and sanguinis, first introduced in vocabulary by jurist Charles Demolombe and then Demolombe and John Westlake, a Cambridge Professor of law went on to analyze the terms, while tying them to Roman law and German or feudal law to infer a sense of legal tradition and timeliness.

By going through the history of many citizenship policies and theories of citizenship, Erman tracks the United States' accidental uptalking of jus soli and jus sanguinis as an effort to secure a commitment from European states to abandon the "infeasible allegiance" doctrine and adopt expatriation. This accidental adoption of the nationality binary by the United States was then strategically swept into discussions of international law across the board for international lawyers to protect whiteness. As a result, jus sanguinis, being born to national parents outside of the national territory, was spun as the "modern, preferable, and civilized rule favored by most European states” (p.18).

In the piece, Erman discuss how later, white-supremacist attorneys hoping to convince the Supreme Court to turn the Citizenship Clause of the Fourteenth Amendment on its head by only applying it to those with United States citizen parents or, as they positioned it, a jus sanguinis framework. The authors point out that while the racial implications were only part of these efforts, these white supremacist forces were driven by their beliefs that people of African descent were inherently inferior, and that Chinese people were unassimilable, temporary intruders (p.21-25). This was actualized in coordinated commitments to international law and racism. To support an application of jus sanguinis, these racist forces built a foundation of their arguments in the predecessor to the Fourteenth Amendment, the Civil Rights Act of 1866. Erman states, "It guaranteed U.S. citizenship to anyone born in the United States, "not subject to any power” (p.27-28). To apply their argument, the jurists edited Congress’s choice of preposition, declaring it obvious that any subject of a foreign power would be subject to that foreign power. (p.27-28). They then applied this same meaning to the Fourteenth Amendments wording,

"subject to the jurisdiction," insisting that like Native Americans, children of any unnaturalized immigrants or visitors had a non-U.S. national allegiance.

As a final discussion point in Erman’s paper, there is a conversation about territorial nonincorporation. This doctrine came to be known when the Philippines became part of the United States, and following the Wong Kim Ark decision, citizens of the Philippines should have been Americans, but the Supreme Court responded with the doctrine of territorial nonincorporation, which designated the Philippines as part of the United States land for international purposes but not part of the United States for Constitutional purposes. While the author does not go so far as to say that this was racially motivated, he alludes to the fact that this has only been replicated in countries where black and brown populations are. This point drew me back to Professor Tendayi Achiume's work, Racial Borders, which so eloquently stated that "in the contemporary migration context, the embodied race of migrants, the color of their skin, the texture of their hair, and so on still functions as infrastructure for their territorial exclusion from and subordinate inclusion within the First World.” Professor Achiume's work unpacks how race itself is a border infrastructure and a means of enforcing liberal territorial and political borders. This may make quite a jump by taking Professor Achiume's conclusion to the context of birthright citizenship, but the citizenship injustice that exists for noncitizen nationals in nonincorporated territories is a contemporary system of racial borders.

As we are in an era of heightened originalism, it was fascinating to read about the invention of jus soli and jus sanguinis and how they were imagined and placed strategically for the benefit of whiteness. And it was easy for these racist forces to use these theories without understanding their origins because they believed the posturing that they had been fundamental principles in feudal laws. In the Wong Kim Ark case, luckily, the Supreme Court ruled in favor of settled law and the Fourteenth Amendment in the face of exclusionists and racist forces, finding that common law was a better guide to constitutional meaning than international law and that there was no "settled and definite rule of international law" that favored jus sanguinis citizenship.

Erman's paper alongside You Are Not American by Amanda Frost grounded the implications of these manufactured policies as it was complete with examples that, while unimaginable, are entirely too real. Frost's work is full of numerous examples of citizenship stripping from the time of Dred Scott to the Dreamers. Chapter nine showcased several instances in which mistake or fluke was not to blame when families or individuals were accused of being illegal citizens, denied reentry to the United States, or even deported after serving time. She continued to thread the same needle that Erman used, that both the letter and spirit of the Fourteenth Amendment have been continuously ignored or sometimes discredited validity for the sake of racist policies. Frost pointed out that policies have transitioned from a facially discriminatory practice to a practice of denying documents based on phenotype characteristics.

While Erman’s pieces thoroughly discussed the history of international law and citizenship theories, it was of little surprise that those who were promoting jus sanguinis, when faced with questions of Asian American citizenship status, reached to the Dred Scott decision, clinging to the outdated opinion that free black Americans were not U.S. citizens because citizens were "those only who were then members of the several State communities, or who

should afterward by birthright or otherwise become members, according to the provisions of the Constitution and the principle on which it was founded.”

Looking collectively at the works discussed highlights the fact that white supremacist legal forces are ingrained within the history of citizenship in the United States and continue to be present in today's modern era. While being a citizen implies that no one is above the law, there is certainly an argument to be made that many individuals are seen as lesser in the eyes of the law, as there is a deep history of efforts to strip citizenship from immigrants and people of color. Wong Kim Ark was not the first and certainly not the last to have had their birthright citizenship questioned, and there are currently strong efforts to overrule the Wong Kim Ark decision and strip the Citizenship Clause of its meaning and protections. In the zeitgeist that we face in 2023, the work of Sam Erman serves an important role in providing clear historical knowledge and legal analysis that we can only hope today's Supreme Court justices will be persuaded by in the event that birthright citizenship and the protections of the Fourteenth Amendment are called into question.

Here is a photo and video from the RICE Colloquium where the work was presented.

Erman 1

Erman 2


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