Abstract

Excerpted From: Gabriel J. Chin and Paul Finkelman, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, 65 William and Mary Law Review 1047 (April, 2024) (390 Footnotes) (Full Document)

In recent years, scholars have classified a body of landmark cases as part of the “canon” of American constitutional law. There has also been substantial work on cases that were influential and important in a negative way--Johnson and Graham's Lessee v. M'Intosh, asserting that the United States government owns all lands occupied or used by Native Americans, who had no ownership in such land; Prigg v. Pennsylvania, denying the need for any judicial hearing or due process rights for people seized as fugitive slaves; Dred Scott v. Sandford, denying citizenship to people of African ancestry; and Plessy v. Ferguson, upholding racial segregation, are key examples of the anticanon. In recognition of the centrality of statutes in contemporary law, Professors William Eskridge and John Ferejohn proposed that some federal statutes are so significant and influential that they should be understood as super-statutes.

A super-statute is a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law--including an effect beyond the four corners of the statute.

Examples of super-statutes include the Civil Rights Acts of 1866, 1871, and 1964; the Voting Rights Act of 1965; the Sherman Anti-Trust Act of 1890; the National Labor Relations Act (Wagner Act) of 1935; and the Endangered Species Act of 1973. Other acts not mentioned by Eskridge and Ferejohn might include the Social Security Act of 1935; the Social Security Amendments of 1965 (the Medicare and Medicaid Act of 1965); and the Immigration and Nationality Act of 1965.

Just as cases promoting liberty and justice are sometimes matched by decisions doing the opposite, it is also the case that laws that do not promote the common good can rise to the rank of super-statutes. Surely among these would be the Fugitive Slave Laws of 1793 and 1850; the Indian Removal Act of 1830; the Chinese Exclusion Act of 1882; and the Immigration Act of 1924; which dramatically restricted immigration of “undesirable” White people from southern and eastern Europe and eliminated all immigration for most non-White people. In this Article we nominate a clause of the comparatively obscure Naturalization Act of 1790 as a super-statute, one that established a fundamental principle of racism in American law, state and federal, by limiting naturalization to “any ... free white person.” An early project of the First Congress, the Naturalization Act of 1790 remained in effect with various modifications until it was finally repealed in 1952. The 1790 Act shaped both broad areas of state and federal law and the very composition of the people of the United States.

Immigration and naturalization were central to the revolutionaries and Framers. One count against King George III in the Declaration of Independence charged that, “He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.” Accordingly, the original Constitution gave Congress the power to establish “an uniform Rule of Naturalization.” In his first annual address to Congress in January, 1790, President George Washington noted that “[v]arious considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens, should be speedily ascertained by a uniform rule of naturalization.” The First Congress responded to President Washington with the Naturalization Act of 1790, which made naturalization a relatively simple process. Unlike naturalization in other countries, the Act did not have a religious test and “refrained from subjecting applicants to political vetting” except for “foreign-born persons who had left the United States at the time of the Revolution.” The Act was self-consciously intended to encourage immigration of anyone from Europe or of European descent, if the immigrant was “a free white person.” The Act was a major step in the creation of “A nation of immigrants ... but not just any immigrants.” As Ian Haney López noted in his now-classic study of race and naturalization White by Law, “[t]he United States is ideologically a White country not by accident, but by design at least in part affected through naturalization and immigration laws.”

One indication of the Act's influence is its longevity; it was, as noted above, in effect as amended from 1790 until 1952. Congress amended the Act several times in the Early National period and considerations of equality were discussed at length. Some elected representatives spoke in favor of naturalizing Jews and Catholics without discrimination (Congress agreed sub silentio), debated making citizens of European hereditary nobles who found their way here, and considered whether it was consistent with equality to allow naturalized citizens to own enslaved persons. Yet, research has uncovered no opposition to the free White person restriction. This appears to have been a policy so widely shared or so sufficiently settled that discussion was unnecessary.

Racial restrictions on citizenship in federal law provided the foundation for a variety of other discriminatory laws. The states and the federal government offered political and economic benefits to those who had taken the first statutory step toward naturalization, which was filing what was called a “declaration of intention” to naturalize. Only a person eligible to naturalize--which would exclude anyone who was not White--could file such a valid declaration; for example, a White immigrant fresh off the boat could file a declaration of intention to naturalize. The law required a waiting period to become a full U.S. citizen. However, under the laws of some states and territories, a declarant immediately became eligible to vote or, importantly, to own land. Such laws were, to a degree, a progressive change over traditional Anglo-American land law, which usually limited land ownership to citizens. But, of course, while functioning to welcome White immigrants from Europe, these rules also discriminated against non-White immigrants.

Some benefits offered by federal and state law turned not on whether an immigrant had fully naturalized or had started the naturalization process but on whether they were racially eligible to become a citizen. In this way, the laws carried out the intention of the 1790 Act: encouraging desirable White immigration, without offering benefits or removing restrictions with respect to noncitizens of undesirable races.

In the aftermath of the Civil War, some members of Congress openly opposed racial restriction in principle. They were a minority, however. Just as at the time of the framing, Congress repeatedly elected to restrict naturalization by race. In 1870, Congress amended the existing naturalization law to punish fraud, perjury, and other crimes associated with aliens becoming citizens. The law left in place the existing rules on naturalization for any “free white person.” However, reflecting the fact that slavery was over and more than 200,000 Black Americans had served in the military to preserve the Union and defeat southern treason, the final section of the Act also provided “[t]hat the naturalization laws are hereby extended to aliens of African nativity and to persons of African descent.” But after several opportunities to consider the issue, Congress failed to make the law race neutral in toto. The Republicans who controlled Congress in this period cared deeply about Black civil rights and making formerly enslaved and free Black persons “equal” under the law, but a majority refused to open naturalized American citizenship to any other non-White newcomers.

The term “White” in the naturalization laws was also vital in the courts, not just in direct application, but in influencing other bodies of law. Although it may well be that Congress in 1790 intended to exclude persons of African ancestry and Indians, since there were virtually no other people of color in the nation at the time, the courts in subsequent years readily applied the law to other non-White persons. For example, in Dred Scott and other important cases, the Supreme Court and other courts recognized the 1790 Act as establishing a federal policy of White racial nationalism. In 1922, a unanimous Supreme Court recognized the foundational nature of the 1790 Act, calling the racial restriction “a rule in force from the beginning of the Government, a part of our history as well as our law, welded into the structure of our national polity by a century of legislative and administrative acts and judicial decisions.”

The 1790 Act then had an extraordinary career, both in terms of duration and influence. It facilitated and encouraged the immigration of White people by offering full citizenship and status and economic opportunities along the way. Simultaneously, it discouraged the immigration of non-White people from other countries by creating legal barriers to their economic and political participation. The policy of the 1790 Act was carried forward in substantive immigration laws as well as through citizenship law. The 1960 Census reported that 99.1 percent of the U.S. population was either “White” or “Negro”; Indians, Chinese, Japanese, Filipinos, and “All Others” collectively made up less than 1 percent of the nation. This is more complicated than the raw numbers suggest, because there was no separate racial or ethnic category for Hispanic or Latinx Americans. Nevertheless, the purpose of the First Congress to populate the United States with White citizens must be regarded as one of the most effective laws ever enacted. Congress set a goal and successfully carried it out.

Part I discusses the “free white person” clause of the Naturalization Act of 1790, the creation of the declaration of intention to naturalize in 1795, and the debates that surrounded these early laws. Part II discusses some of the noncitizenship bodies of law which arose to leverage the racial restriction on citizenship created in 1790. Part III discusses the influence of the clause in the Supreme Court, and its survival, in amended form, through the end of slavery and Reconstruction. Part IV describes the end of the policy, coincident with World War II and the Cold War.

[. . .]

The free white persons clause was a considered, fundamental, and consequential decision of the First Congress which remained in place for over 160 years. It is entitled to recognition as revealing the views of the members of Congress in the 1790s, of the Reconstruction Congresses, and other federal officials and leaders who chose to leave it in place, reinforce it, and maintain it until the middle of the twentieth century. The existence and influence of the free white persons clause also undermines the notion, supported by Justice Scalia and others that “racial discrimination against any group finds a more ready expression at the state and local than at the federal level.” The federal government was a leader in this and other methods of discriminating based on race. Some states then applied this discrimination to their own laws and regulations. To reiterate the words of the Supreme Court, the Naturalization Act of 1790 created “a rule in force from the beginning of the Government, a part of our history as well as our law, welded into the structure of our national polity by a century of legislative and administrative acts and judicial decisions.” A statute of this impact is entitled to rank with laws mandating school segregation, segregation in public accommodations, segregation in the armed forces and other employment, prohibition on interracial marriage, and in housing segregation as part of an anticanon of statutes establishing and maintaining White supremacy.

Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor, University of California, Davis School of Law.

Robert F. Boden Visiting Professor of Law, Marquette University Law School; President William McKinley Distinguished Professor Emeritus, Albany Law School.