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One of the most exciting aspects of feminist scholarship is that it reveals implications in laws and social policy that are not evident using more traditional methodologies. Employing a gendered theoretical approach to examine the complexities of legislation exposes multi-layered consequences, intended and unintended, and raises questions about the aims of lawmakers. By using gender as a category of analysis, feminist scholars reveal how social policy and law mask gender bias despite proclamations that they have neutral intent, and are in the best interest of the nation (Scott 1988).
This article examines one such law. Passed in the beginning of the twentieth century, the Expatriation Act of 1907 appears to be nothing more than a poorly planned piece of legislation to keep U.S. foreign policy in step with other Western nations. Applying a "gendered" analysis to the legislation and its effects on women citizens and marriage, however, reveals less benign consequences. In 1907, Congress codified derivative citizenship for American women. Derivative citizenship--citizenship contingent on the civic status of one's husband--deprived American women of their political birthright: membership in the American polity. If an American woman chose to marry a foreign man, she forfeited her American citizenship. Derivative citizenship also provided the state with a means to manipulate women's citizenship in order to obtain the objectives of foreign and domestic policy and of prevailing racial attitudes. Because the Expatriation Act of 1907 redefined a woman as a member of their husband's race, ethnicity, and nationality, it affords a palpable example of the social construction of race. It reveals an anxiety concerned with guarding both the white American female and the concept of American citizenship. Legally, the American female citizen was any female born in or naturalized by the United States, but ideologically, she was a woman of Anglo descent who embodied the racial and cultural ideals of American identity. The act also illustrates the sex/gender system of American citizenship that was based upon race.
In examining these factors, it becomes clear that the act had far-reaching consequences. This also forces one to look beyond the "official" reasons Congress stated for the act. Evidence suggests that this act may have been used to limit the marriages of American women and undesirable alien men, especially Asian men. It suggests that the state practiced a method of reproductive control by penalizing the women who married these men.
The constructed and fluid boundaries of citizenship, race, and nationality complicate our understanding of the act. Citizenship implies a symbiotic political relationship between the citizen and the state. Nationality, while including a political relationship between the citizen and state, is also cultural. It implies membership in a community of people who have a common origin, tradition, and language. Race, the most elusive concept of the three, is a tangle of biologically- and culturally-constructed definitions. It was understood, in the early twentieth century, as biological and legal--biological in that each race had "racial traits" that were transmissible by descent and sufficient to characterize it as a distinct human type; legal as it was necessary to maintain boundaries between races, especially to sustain the existing racial hierarchy. The Expatriation Act of 1907 conflated citizenship, nationality, and race as it followed the guidelines for naturalization. As did the Immigration and Naturalization Service (INS), set by the 1790 and 1870 Naturalization Acts, that equated citizenship and nationality from certain areas, most notably Asia, with racial ineligibility.
Historians have begun to focus on derivative citizenship. Nancy Cott (1998) has examined how derivative citizenship is an example of the ways in which the state regulates marriage and how it can protect and advance its interests through the manipulation of marriage rules and prohibitions. Cott contends that an exploration of gendered citizenship--"one that starts with the female citizen"--must begin with the institution of marriage at its center (1442). Cott's analysis of marriage and citizenship provides a much-needed investigation of how gender differences and prohibitions in American citizenship are expressed through marriage-related statutes and codes. Building on the exhaustive and meticulously detailed account of derivative citizenship by Candice Lewis Bredbenner, Cott successfully shows that gender and the state--femaleness and marriage--must be examined in tandem. But while both Cott and Bredbenner (1998) ably elucidate the effects of marriage on American citizenship, especially Bredbenner's work on derivative citizenship and immigration policy, they do not elaborate the basic theory of how and why the state could regulate women's citizenship through marriage--the ability of the state to participate in the "traffic in women."
Anthropologist Gayle Rubin's analysis of the genesis of sexual difference can be useful in theorizing the sex/gender system of American citizenship (1975), specifically, how the state, through derivative citizenship, was able to use women's citizenship to achieve domestic and foreign objectives. Although Rubin focuses on pre-state societies, the basic tenets of her theory are applicable for citizenship and women in the modern nation-state. Nancy Cott states that "any modern nation-state is likely to concern itself with marriage, most basically because of concern for reproduction of its population," and as she demonstrates, for women, marriage and citizenship were entwined (1998, 1442). Citizenship for married women demonstrated that "citizenship [can] be delivered in different degrees of permanence or strength" (1441). Although derivative citizenship pertains to married women, it affects single women in its potentiality. By making citizenship derivative, Congress made all women's citizenship--married and single alike--vulnerable to the vagaries of political expediencies.
Rubin's theories are useful in understanding how the state was able to manipulate female citizenship. Historically, women's citizenship has varied from men's. American women have always been considered American citizens, regardless of the limitations of rights such as the franchise, until the passage of the Nineteenth Amendment. (1) For white American men, citizenship has been consistently immutable and indisputable, to be forfeited only by their own choices, whether through voluntary renunciation or a treasonous act. Although the English common law concept of coverture, which subsumed the political and economic identity of a woman with that of her husband and limited women's economic and political rights, was adopted by the United States, women maintained an independent relationship with the state. However, between the years 1855 and 1931, a series of laws rendered married women's citizenship contingent on the actions or nationality of their husbands. That is, under derivative citizenship, she derived her citizenship status from a husband. Beginning in 1855, foreign women who married American men took the nationality of their American husbands. Under the Expatriation Act of 1907, Congress expanded derivative citizenship to every married woman in the United States by proclaiming that all women--native and foreign-born (if racially eligible)--took the citizenship of their husbands. American women between the years of 1907 and 1931, many unwittingly, chose their spouses over their nationality. (2)
When women lost their citizenship through marriage, they could also lose their racial, ethnic, and national identities. Because foreign women racially ineligible to become American citizens were unable to naturalize, they could find themselves without citizenship status altogether. Under naturalization laws, only whites were eligible for naturalization until 1870. After 1870, eligibility was expanded to include blacks born outside of the United States. For all racially eligible, alien women married to American citizens, their naturalization was automatic and obligatory. By law, American women who married foreigners after the 1907 act assumed their husbands' racial identity as well as his political identity. If he was not a citizen, neither was she. If he was ineligible for naturalization, so was she. According to law professor Ian F. Haney Lopez, "law constructs race in a complex manner through both coercion and ideology, with legal actors as both conscious and unwitting participants" (1996, 13). The contingent status of women's citizenship permitted the state to construct the race and ethnicity of married women. The power to construct the racial identity of American women that married aliens racially ineligible for naturalization is a clear example of both the state's power to …