Abstract

Excerpted From: Ming Hsu Chen, The Road Not Taken: A Critical Juncture in Racial Preferences for Naturalized Citizenship, 65 William and Mary Law Review 1137 (April, 2024) (100 Footnotes) (Full Document)

Professors Gabriel Jack Chin and Paul Finkelman describe the legacy of the “free white person” clause of the Naturalization Act of 1790 in terms of its enduring racial impacts, especially for racial minorities considered to be perpetual foreigners--Asians, Latino/as, and Arab Americans--who were previously considered ineligible to naturalize. In their account, even after Reconstruction and statutory amendments that made the naturalization statute race neutral on the books, it continued to advance racial disparities in reality. Chin and Finkelman's account uses archival data to demonstrate that even after the racial restriction was modified, the introduction of the “declaration of intention to naturalize” (added five years after the original Naturalization Act of 1790) made it possible for state and federal law to grant political and economic rights to White immigrants immediately upon arrival, while ensuring that non-White immigrants could never enjoy them. The ephemeral elimination of the racial exclusion illustrates that the original Naturalization Act of 1790 constitutes a “super-statute.”

There are two implications that I explore in this essay. First, Chin and Finkelman's account resolves the racial preference of the Framers for a White country and places it in a “place of dishonor” alongside segregation laws, prohibitions on interracial marriage, and other laws establishing White supremacy. Their tongue-incheek characterization of the Naturalization Act as a “super-statute” renders it a part of the anti-canon of Constitutional law. But simply because the original intent for a pro-White, racially exclusionary naturalization was effective, was it inevitable? Second, Chin and Finkelman suggest that citizenship is not always essential to equal status, bringing together their current research on the “free white person” clause with prior research from “A Nation of White Immigrants” that showed White noncitizens were able to naturalize and become legally equal to White citizens. Even if formal citizenship was not essential to unequal status, could it have been skipped over entirely?

[. . .]

The history of race and citizenship in the U.S., as told by Chin and Finkelman, cautions against overreliance on formal citizenship laws as an antidote to racial inequality, but citizenship remains vital. Their study suggests that amending statutes and extending judicial doctrines will not by themselves cure racial inequality in citizenship. Scholars must also consider the institutional opportunities and limitations of citizenship given the path dependence of U.S. history on race.

Harry & Lillian Hastings Research Chair and Faculty-Director, Center for Race, Immigration, Citizenship, and Equality (RICE) at UC Law San Francisco.