Abstract

Excerpted From: Rose Cuison-Villazor, Creating a Racialized Liminal Status: The 1790 Act and Interstitial Citizenship, 65 William and Mary Law Review 1157 (April, 2024) (115 Footnotes) (Full Document)

Born in the Philippines in 1902, when the country was a territory of the United States, Roque Espiritu De La Ysla moved to Los Angeles, California, and petitioned to become a naturalized U.S. citizen in 1935. De La Ysla applied under the Naturalization Act of 1906, which allows persons who are not citizens “who owe permanent allegiance to the United States” to apply for naturalization. The district court, however, denied his petition, and the U.S. Court of Appeals for the Ninth Circuit affirmed. De La Ysla faced two barriers to naturalization. First, the court explained that the Naturalization Act of 1906 did not apply to De La Ysla. Naturalization applies only to those who are “aliens,” and as a Philippine citizen who owed allegiance to the United States, De La Ysla was not an “alien.” Second, even if he were, the 1906 Naturalization Act barred him from naturalization because only those noncitizens who were “free white persons or persons of African nativity or descent” were eligible to apply. De La Ysla was therefore doubly-barred from citizenship. Both his political status as neither citizen nor “alien” and his “race” made him racially ineligible to acquire citizenship.

This Comment began with De La Ysla's case to highlight the political status that Filipinos held when the Philippines was a U.S. territory. This Comment argues that this status, which a court would later describe as a “hybrid status ... the so-called 'non-citizen national,”’ was a racialized liminal political status with roots in the 1790 Naturalization Act (1790 Act). Professors Jack Chin and Paul Finkelman claim that the 1790 Act played a critical role in shaping “the very composition of the people of the United States” by including the “free white person” clause in the country's first naturalization law. One of the goals of Congress in passing this law, as Chin and Finkelman contend, was to intentionally encourage the immigration of primarily White immigrants and ensure that the country would be a White nation. The 1790 Act did so not only by explicitly restricting the group of immigrants who were deemed racially eligible to become citizens but by providing the “foundation for a variety of other discriminatory laws” as well.

I wholeheartedly agree with Chin and Finkelman's claim. Indeed, I argue that the 1790 Act had a greater role in the establishment of the country as a White nation than Chin and Finkelman maintain in their article. Using De La Ysla's case and those of other Filipinos whose naturalization applications were also denied, I contend that the racial restriction on citizenship that the First Congress pioneered provided powerful support to the United States's imperialist goals at the turn of the twentieth century when it acquired territories after the Spanish American War, including the Philippines, and denied U.S. citizenship to the estimated six million Filipinos residing there. In particular, courts relied on the 1790 Act's goal of limiting citizenship based on race and laws governing the Philippines, including naturalization laws, to ensure that Filipinos were confined to a liminal non-citizen U.S. national political status. In doing so, courts placed Filipinos outside of the ambit of naturalization laws and guaranteed that they remained racially barred from citizenship. As neither citizen nor “alien,” this racialized liminal political status ensured that Filipinos would not have a path to citizenship during the territorial period (1898 to 1946) despite their allegiance to the United States. Thus, more than a century since the passage of the 1790 Act, the First Congress's vision “of the United States as a White nation” not only endured but also expanded beyond the nation's borders. The newly acquired territories, whose residents were primarily people of color, provided challenges to both Congress and the courts as they sought to implement Congress's goal of promoting a White nation through the 1790 Act.

In Part I, I briefly situate the arguments presented in this Comment within the liminality literature and the work of other legal scholars who have theorized liminality in immigration law. I have previously used liminality as a concept to describe noncitizen nationals as liminal or interstitial citizens and explored how this status disrupts the framing of citizenship along a citizen or noncitizen binary paradigm. I build on this prior work by connecting interstitial citizenship to the 1790 Act.

In particular, as I claim in Part II, the 1790 Act laid the foundation for the denial of citizenship to Filipinos at the turn of the twentieth century, which led to their interstitial political status. Congressional remarks surrounding the Treaty of Paris, which ended the Spanish American War, demonstrate the overarching sentiments against extending citizenship to residents of the Philippines, Puerto Rico, and Guam. Based on fears of millions of people of color acquiring U.S. citizenship, Congress subsequently passed laws that created a new political status that was liminal in nature. This in-between status would subsequently receive the support of the Supreme Court in the Insular Cases.

Part III discusses the role that the 1790 Act played in naturalization cases filed by Filipinos residing in the United States. As that Part explains, courts interpreted subsequent amendments to the 1790 Act as indicative of Congress's goal to continue to limit naturalization based on race and, in so doing, ensured that Filipinos would never be able to leave their racialized liminal status.

The final Section explores the implications of this colonial history for Chin and Finkelman's understanding of how the 1790 Act shaped the United States as a White nation.

[. . .]

I. Liminality in Citizenship Law

This Part explains what I mean by liminality and its connection to immigration and citizenship literature. At the outset, the concepts of liminal, liminality, and liminal spaces were popularized by anthropologist Victor Turner. Turner referred to liminal as the movement “between the formerly familiar and stable and the not-yet familiar and stable.” As scholars who have recently explored Turner's work have explained, Turner “regard[ed] liminality as characteristic of inter-structural, 'betwixt and between’ situations, of ambiguity and transition, and the 'liminaries' as those who cannot be classified in the ordinary classification for they are neither here nor there, neither one thing nor the other.”

The concept of liminality has been theorized in other fields, including in immigration law. As professors Juliet Stumpf and Stephen Manning noted recently, “[l]iminality in immigration law is at the cutting edge of the new functionalism in immigration scholarship.” Some scholars use the concept to refer to the body of immigration rules, such as those arising from agencies and courts, that shape “the governance of migration in the United States.” Others deploy the term to refer to the liminal immigration status held by individuals whose liminal status was produced by varied immigration laws. For instance, Professor Jennifer Chacón explains that “the notion of liminal legality is used to describe individuals moving in and out of, and living on the edges of, legal immigration status.”

Although immigration scholars differ slightly on how they are using liminality as a theoretical framework, an important point these scholars have made is that immigrants who fall in these liminal spaces are legally vulnerable due to the discretionary nature of immigration law enforcement. As Stumpf and Manning noted, those with liminal status are “vulnerable to forms of marginalization that are themselves less visible and so less accountable.”

I have used the term liminal in a related but different context--citizenship law. In particular, I have deployed the term “liminal” to describe a type of formal political membership I call “interstitial citizenship.” Interstitial citizenship in general “is an intermediate status in which its holders possess some rights that are limited to U.S. citizens, yet are still denied some citizenship rights because they are formally noncitizens.” Interstitial citizens, I have argued, disrupt the framing of citizenship along a citizen/noncitizen binary. As neither citizens nor “aliens,” interstitial citizens enjoy some of the benefits limited to U.S. citizens but are denied some rights because they are noncitizens. American Samoans, for example, who are the only group of Americans today who still possess U.S. nationality status at birth, possess the right--like U.S. citizens--to freely move to the United States and to permanently remain. They can never be deported. However, as U.S. nationals, they do not have the right to vote, serve on a jury, or apply for jobs restricted to U.S. citizens. American Samoans may choose to naturalize, but they must do so by moving to one of the fifty states or four territories.

The next Part further discusses interstitial citizenship by providing the historical and political context that led to its establishment. As Part II explains, the acquisition of new territories, including the Philippines, at the end of the nineteenth century, led some members of Congress to fear the expansion of citizenship to people of color. To minimize these fears, Congress opted not to extend citizenship to Filipinos and other territorial residents and instead established the path towards U.S. nationality. In other words, interstitial citizenship emerged in the backdrop of the American Empire. Part III explains that the 1790 Act's racial restrictions ensured that nationals were prohibited from acquiring citizenship.

[. . .]

The foregoing discussion offers at least two implications for Professors Chin and Finkelman's claim about the importance of the 1790 Act. First, the 1790 Act is connected to the colonization of territories and territorial peoples in the twentieth century. In 1790, Congress viewed naturalization laws as central to immigration by encouraging White persons to immigrate to the United States and discouraging non-White persons from doing the same thing. The 1790 Act was instrumental to the nation-building project of the young nation. The Congress of the late 1890s and early 1900s had a different type of nation-building project--one that involved acquiring new territories thousands of miles away from the continental United States while simultaneously ensuring that the millions of residents there would not become U.S. citizens. In other words, the 1790 Act would subsequently become a tool for the American Empire.

Second, citizenship, as Chin and Finkelman have shown, has two sides--the part that is inclusionary and the other that is exclusionary. Their paper should serve as an important reminder of the need to explore the normative view that citizenship should be desired given its susceptibility to subordinate people of color.

Professor of Law and Chancellor Social Justice Scholar, Rutgers Law School.