The Stateless as the Citizen’s Other: A View from the United States
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By Linda K. Kerber
President of the Association, 2006
This presidential address was delivered at the 121st annual meeting of the American Historical Association, held in Atlanta, Georgia, 2007.
I begin by asking an anachronistic and playful but nevertheless deeply tragic question: What passport would the ill-fated child of Madame Butterfly and Captain Pinkerton carry? Normally historians do not turn to an opera libretto for inspiration. Yet this story carries with it hints that help us map the landscape of statelessness in U.S. history, from the founding generation to the present.
It is a subterranean tale that haunts the imperial imagination. The roles have been dramatized over and over again—the man whom the American military has deployed in a strange landscape in a foreign part of the globe; the exotic woman whom he impregnates and abandons. Giacomo Puccini relied on American sources when he wrote the opera Madame Butterfly, which had its premiere at La Scala a century ago, in 1904. Puccini was inspired by a play of the same title, written by David Belasco, which he saw in London in 1900 in the Duke of York's Theatre (where Tom Stoppard's Rock and Roll is now playing). Belasco based his play on a novella by the Philadelphia writer John Luther Long, who, in his turn, was revising a fictionalized memoir by the French writer Pierre Loti.1
Whether in novella, play, or opera, the lover is Benjamin Franklin Pinkerton, a U.S. naval officer whose name signals the self-made, cynical American. He beds a trusting Japanese girl, tricking her into breaking with her family. She is pregnant when Pinkerton leaves with his fleet, promising to return. Slowly it dawns on Cho-Cho-San that this respectable military man cannot be counted on; nor will the laws of his nation enforce his promises to her. In Long's story, Cho-Cho-San speaks in broken English; but as the reader adapts to the way she talks, she becomes a figure whom we respect and with whom we sympathize. Cho-Cho-San clings to the dream of Pinkerton's return—with the robins, as he has promised—and she resolves not to beg:
He don' naever egspeg we got this nize bebby, account I don' tell him. I don' kin tell him. I don' know where he is. But—me? I don' tell if I know, account he rush right over here, an' desert his country, an' henceforth git in a large trouble—mebby with that President United States America, an' that large Goddess Liberty Independence!"2
A year later, the fleet returns, and she sees him on the deck of a ship in the harbor, arm in arm with a blonde woman; the woman introduces herself to the American consul as Mrs. Benjamin Pinkerton when Cho-Cho-San happens to be in the room. Devastated, Cho-Cho-San attempts suicide with her own father's sword, inscribed "To die with Honor / When one can no longer live with Honor."
Cho-Cho-San—"San" is an honorific; we're speaking of "Miss Cho-Cho"—has been reinvented in our own time as Miss Saigon. Now the composers are French—Claude-Michel Schönberg and Alain Boublil—and the setting is the American war in Vietnam. Boublil has been explicit about how Pierre Loti's fiction resonated with what he learned while growing up in Tunisia: "Vietnam was a French colony and a French mistake before it became an American one." The authors were also inspired by a 1985 photograph of an airlift of "bui-doi"—the mixed-race children of American soldiers and Vietnamese women.
Schönberg and Boublil have transformed Pinkerton into Chris, an appealingly naive American soldier, authentically in love with Kim, a young woman from a respectable family who has been driven to work as a bar girl. When they are separated by the hurricane of war, Kim is brave and resilient, even prepared to kill to protect the child whom Chris does not know he has fathered. Some years later, when Chris finds out about the child, he is back in the U.S. and married. He is ravaged by guilt and the desire to be a true father to his child. His American wife can suggest no solution except to adopt the child themselves. Even in the context of decent people trying to do the right thing, the only way for Miss Saigon to make a respectable future for her child is to disappear. The music stops with her suicide. Miss Saigon has had its own stunning success; the London and New York productions ran for ten years each. Duplicate productions have been staged in dozens of other cities around the world.
So now to our anachronistic question: What passport would the child of Madame Butterfly and Captain Pinkerton carry? In the Meiji period in Japan, as in the West until roughly World War I, practices of documenting individual identity were underdeveloped, and the strict system of passport controls with which we have come to be familiar had yet to be invented. Long after Admiral Perry "opened" Japan to foreign intrusion in 1853, it remained rare for Japanese subjects to leave the island. Still, trying to answer the question is a useful exercise.
Was the child a Japanese subject? In the Meiji period, where the story is set, the concept of national civic identity was weak. What counted for legitimacy was inclusion in the father's family registry. Not until 1985 was Nationality Law in Japan revised to permit Japanese women to transmit Japanese citizenship to their children.3 In Butterfly's time, an illegitimate birth was frequently disguised by being registered as the child of the woman's parents, born late in their lives; but in the story, Butterfly has broken from her family, so this registration is unlikely.4
Was the child an American citizen? If Butterfly had stowed away on Pinkerton's ship, and given birth to their baby on American soil, the child would have been a citizen at birth, even if Butterfly had never married Pinkerton. The Fourteenth Amendment of the U.S. Constitution, ratified in 1868, guarantees that "all persons, born or naturalized in the United States, are citizens of the United States and of the state in which they reside." If Pinkerton had married Butterfly, he would have transmitted his citizenship to their child wherever that child was born. But Butterfly does not stow away, nor does Pinkerton marry her, nor does he claim or legitimize the child, who therefore has no claim on the United States. In the U.S., nonmarital children born overseas to American citizen fathers are not citizens until the father legitimizes them. Unrecognized by either nation, Butterfly's baby is effectively stateless.
A century stretches between our time and Pinkerton's. His story has been relived countless times, and the American answer to the passport question has not substantially changed. The practices that define which children born abroad are to be considered citizens from birth and which must be naturalized still take into account the status of the mother and the status of the father asymmetrically. Indeed, a case involving these issues came before the U.S. Supreme Court as recently as 2001, and in dealing with it, the Court found itself contemplating our assumptions about belonging and protection, about birthright citizenship and its absence.
Tuan Ahn Nguyen was born in 1969. His father, Joseph Boulais, was an American army veteran who, after his discharge from service in Germany, went to Vietnam in 1963 as a civilian employee of a construction company. Boulais had a son with a Vietnamese woman. In a reversal of the Madame Butterfly trope, the Vietnamese mother abandoned her son at birth. In this true story, the father is the nurturer: Boulais remained in Vietnam, married another Vietnamese woman, and cared for his son. In the chaos of the collapse of the Saigon regime in 1975, Nguyen was brought to the U.S. along with other refugees and was reunited with his father and stepmother; from the age of six, he grew up in Houston in his father's home.
Various statutes provide that children born abroad whose parents are married to each other, and at least one of whom is a citizen, are citizens at birth, so long as one parent has lived in the United States for five years, at least two of which were after age fourteen. But should the parents not be married to each other, and if only one is a U.S. citizen, then the sex of the citizen parent has major consequences. In a practice that reaches back to medieval England—when the older rule that the bastard was the child of no one was revised to make the bastard the child of the mother (continuing to free the father from any obligation to that child), extended when the American colonies reified the practice in the form of statutes that provided that children fathered by slave masters "followed the condition of the mother"—birthright citizenship for children born overseas to unmarried couples is transmitted effortlessly only through the mother. But the law requires that a child born overseas to an unmarried citizen father and a foreign woman is not a citizen until the father acknowledges paternity legally and provides financial support until the child reaches the age of eighteen.
So Nguyen was not a citizen. Although Joseph Boulais provided financial support, he neglected to register the birth officially or to demonstrate a blood relationship with the child. So long as life moved along quietly, what did formal paperwork matter? But in the early 1990s, Nguyen was found guilty of two counts of sexual assault on a minor and was given an eight-year prison sentence. While he was serving his term, Congress, responding to a rising tide of anti-immigrant sentiment, tightened the rules for lawful permanent residents such as Nguyen. Conviction for an aggravated felony now meant deportation. And in 2001, a five-to-four U.S. Supreme Court majority denied Nguyen's father's claim that he should have been able to transmit birthright citizenship to his child on the same terms that an American citizen woman can.5
In reaching this decision, the Supreme Court wrestled with the meaning of gender equity, scrutinizing Section 1409 of the Immigration and Nationality Act of 1952 and its subsequent revisions (the statute that makes distinctions between how men and women confer citizenship on nonmarital children born abroad). The members of the Court considered whether the statute met the high level of scrutiny that has been required since 1996. To meet that standard, those who defend discrimination on the basis of sex must show an "exceedingly persuasive justification" for that discrimination. It must serve "important governmental objectives," and the discriminatory means employed must be "substantially related" to the achievement of those objectives. Writing for the majority, Justice Anthony Kennedy defended the additional requirements placed on men to legitimize a nonmarital child on the grounds that these rules ensure that an authentic parent-child bond exists; that bond, in turn, could be counted on to transmit the values of citizenship (the important governmental objective). Boulais was not being burdened more severely than nonmarital fathers of children born within the United States who are required to exhibit their relationship to the child. Moreover, requiring men to legitimize their nonmarital children guarded against error or trickery: "Given the 9-month interval between conception and birth, it is not always certain," Justice Kennedy observed, "that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father's identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock." As for the birthright citizenship transmitted by the nonmarital birth mother, that, Kennedy thought, merely equalized her situation with that of the married mother or of the nonmarital mother who was in a position to return to the United States to bear her child.6
Lurking behind the reasoning of the majority opinion lay a fear that was not spoken in the opinion, but that was spelled out at length in the brief filed by the Department of Justice in support of making distinctions between mothers and fathers: "Congress minimized the burdens on unwed mothers who seek citizenship for their children ... in order to advance its important interest in avoiding statelessness." In the United States, citizenship accompanies birth on American soil, whatever the citizenship or marital status of the parents. But in most nations, citizenship is traced through bloodline and only secondarily through place of birth. By the law of many nations, including nations in which the U.S. has had a substantial military presence, a child born out of wedlock inherits the citizenship of the mother. 7 There was, the Department of Justice argued, a real danger: "that the foreign-born children of unwed citizen mothers might become stateless if they were not eligible for United States citizenship, because the children would not be eligible for citizenship in the country of birth or in the country of the unwed father." 8
Congress had recognized this danger in 1940 and again in 1952, framing the law to "insure that the child shall have a nationality at birth." In Germany, South Korea, and Japan (and to a lesser degree in Thailand), "the danger of statelessness in the event that the [nonmarital] father does not acknowledge the child remains a concern." 9 Men and women were differently situated in exposing their nonmarital child to the risk of statelessness: "The foreign-born child of an unwed American mother is at much greater risk of losing his or her 'status in organized society' than the foreign-born child of an unwed American father." 10 Congress left nonmarital children of U.S. citizen fathers exposed to the vagaries of the individual men's variable sense of personal responsibility and the rules of the countries in which they happened to be born.
"One concern in this context," Justice Kennedy observed, "has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries." Over one million military personnel were stationed in foreign countries in the year Nguyen was born. 11 In a dissenting opinion in one of the cases that formed a backdrop to Nguyen, Judge Andrew Kleinfeld of the Ninth Circuit Court of Appeals had emphasized that Congress understood full well what they were doing:
This statute was passed during the Korean War. Members of Congress knew that American soldiers who went abroad to fight wars, and caused children to be conceived while they were abroad, were overwhelmingly male, because only males were drafted, so that the number of children born illegitimately of male citizens might be large enough to affect immigration policy, while the number of illegitimate children of female citizens would be negligible. They may also have sought to minimize the administrative burden on the Department of Defense for paternity and citizenship claims respectively by the women the soldiers left behind and their children. This may not be pretty, but it is a rational basis for the sex distinction ... Some noncustodial fathers of children born out of wedlock do not care to pay child support if it can be avoided. 12
n other words, even those men representing the United States abroad have the Court's permission to father children out of wedlock and abandon them. "I expect very few of these are the children of female service personnel," Ruth Bader Ginsburg wryly observed to uncomfortable laughter in the courtroom during the oral argument in Nguyen. "There are these men out there who are being Johnny Appleseed." 13 In arriving at its judgment about gender equity, the Supreme Court responded to the fear of statelessness.
Statelessness is a subject that most historians of the United States have treated as belonging to other national histories—Jews, Gypsies, Palestinians. That U.S. history is taken to be innocent of engagement with the subject is yet another example of the habits of American exceptionalism. Since the meanings of statelessness have changed over time, the subject is one that should command the attention of historians as well as humanitarians.
In recent years, when some boundaries between states have become more plastic, "statelessness" has sometimes been given a positive valence. Statelessness can be made to sustain a cosmopolitan dream. The dreamers include many citizens of the member states of the European Union, whose passports carry them over the borders of twenty-five nations, and hundreds of thousands of people who hold more than one passport, often wealthy people with property on two continents. For these people, a destabilized citizenship is an enriched citizenship. Such people may speak cheerfully of multiplied citizenships, a comfortable cosmopolitanism, being a citizen of the world. If citizenship is about what might be called statefullness, then some people are rich in it. 14
Somewhat less expansively, but with more stability, simple dual nationality is increasingly common. One result of the technological and economic changes we call globalization is that more and more people now live outside their natal countries—the UN's 2000 estimate was some 185 million, and the number is clearly growing. Sometimes parents share the same nationality; international marriages are also becoming more frequent. Increasing numbers of children hold citizenship of one country through descent and of another by jus solis—birth on the soil. 15
The old tradition that required the renunciation of all other nationalities at the time of naturalization has substantially—but not completely—eroded. Canada dropped its renunciation requirement in 1947. The 1997 European Convention on Nationality accepts dual nationality, although some countries, including Germany, require adults who gained dual citizenship at birth to make a choice of nationality when they reach adulthood. In an effort to enable expatriates to protect themselves against increasingly harsh U.S. deportation laws and heightened discrimination, and responding to the hesitation, on sentimental and practical grounds, of expatriates to take oaths of naturalization, Mexico and some other Latin American countries changed their laws in the late 1990s to embrace dual citizenship (generally with provision to eliminate dual voting). And although the first item in the United States of America's oath of naturalization is the renunciation of allegiance to "any foreign prince, potentate, state or sovereignty of whom or of which I have heretofore been a subject or citizen," the Department of State puts virtually no energy into enforcing this provision. In 1967, the U.S. Supreme Court ruled that voluntary denationalization must be explicit—that even voting in a foreign election did not imply expatriation. In a powerful opinion, Justice Hugo Black wrote that the intention of Congress in the era of the Fourteenth Amendment had been "to put citizenship beyond the power of any governmental unit to destroy." Without a specific and voluntary renunciation, the Court held, "Congress has no power to divest a person of citizenship." Consular officials now abide by that rule; even the holding of dual nationality in the face of the naturalization oath is not construed by the Executive Branch as voluntary relinquishment. 16
Yet even the enriched state is still defined by borders. Inside those borders are citizens and subjects, legal permanent residents, refugees, undocumented aliens. It has become essential to a state's identity that it be able to distinguish between those who belong—and are vulnerable to taxation and conscription—and those who do not. Citizens' identities are secured by passports, which they must have in order to leave the nation and in order to reenter it. International law limits the power of a nation to exclude or deport its own nationals; U.S. citizens have a virtually absolute right to enter the United States. 17 Legal permanent residents leave with nonbinding assurances that they can reenter; they are vulnerable if the rules or policies change while they are away. In times of danger—as last summer in Lebanon—the U.S. will seek to evacuate its citizens; but lawful permanent residents (green card holders) generally are not entitled to emergency and protective services provided by the U.S. government and must turn to the nearest diplomatic representative of the country of which they are nationals. 18 Undocumented aliens had better leave by the invisible modes by which they came. Most nations require a visa of foreigners who enter, and thus control admission at their borders. The ultimate "other" to the citizen is not the citizen of a different country, not the multiply passported, but rather those who lack passports of any sort; the stateless are defined by what they lack.
When Hannah Arendt—who herself was stateless for more than a decade—wrote memorably about statelessness a half-century ago, it was technically a legal term of art, describing "a person who is not considered as a national by any State by the operation of its law." 19 The stateless person may be a refugee, but not necessarily, for in times of peace a state may not have much interest in emphasizing vulnerability. A refugee may—but not necessarily—be a stateless person. If a refugee has a state, it is a state to which he or she is unable or unwilling to turn for protection; a stateless refugee is presumed not to have access to state protection at all. 20 (The German constitution explicitly provides that people cannot be denationalized if that would expose them to statelessness.) 21 The 1948 Universal Declaration of Human Rights asserts that "Every person has a right to a nationality." The 1954 Convention Relating to the Status of Stateless Persons prohibits expulsion of stateless persons "save on grounds of national security or public order," but provides no oversight or enforcement mechanism. Neither the U.S. nor Canada ratified the 1954 Convention, apparently because both were concentrating on the overwhelming problem of refugees and displaced persons after the war and feared that the convention's recognition of de facto (as well as de jure) stateless persons might encourage them to seek "a new nationality for the sake of convenience." 22
In our own historical moment, the contours of statelessness are somewhat different than they were in the immediate aftermath of World War II. It is true that statelessness is the formal description of lack. But statelessness is also a condition that changes over time, dynamically created and re-created by sovereignties in their own interests, defining the vulnerable in ways that affirm the invulnerable, and in the process revealing changing domestic values and changing power relations across international boundaries.
The nightmare of statelessness—of the man, woman, or child without a country—exists everywhere in our own time. As the meanings of work, racial identity, and gender identity have shifted over time under the stress of war, political struggles, global economic relations, and developing ideologies, vulnerability to statelessness has been reconfigured. The definition of statelessness itself has expanded. In the United States now, perhaps the most chilling signal that reconceptualization is possible is the presence of a vigorous political attack on the Fourteenth Amendment's guarantee of birthright citizenship, an attack that destabilizes one of the strongest founding principles of American identity and makes highly likely the increase of statelessness. Although a parent receives no immigration benefits from having a U.S. citizen child until that child turns twenty-one, this attack has been soaked with the complaint that pregnant women enter the United States illegally in order that their children may claim citizenship by birthright, in effect tricking the generous provision of the Fourteenth Amendment. 23
The United Nations High Commissioner for Refugees now speaks of effective nationality and ineffective nationality, and of de facto statelessness. 24 It has broadened the definition to include "the unprotected." 25 "Statelessness spells vulnerability," writes the immigration lawyer Stephen Legomsky. "In a world built on nationality, one simply cannot leave home without it ... Every individual needs one sovereign state to play the role of guardian angel." 26
The pace of attention paid to the issue of statelessness can be traced in the lineage of fiction and nonfiction writings, tracking with chilling accuracy the rise and fall of the threat of statelessness throughout the world. There is Edward Everett Hale's classic novella The Man without a Country, written during the Civil War and republished dozens of times since, especially during World War I and World War II, most recently shortly after 9/11. 27 There are films—Casablanca (1942), I Was a Male War Bride (1949), Lady without a Passport (1950), and most recently Steven Spielberg's Terminal (2004). The only monograph in the field was published seventy years ago: Catheryn Seckler-Hudson's 1934 Statelessness: With Special Reference to the United States (A Study in Nationality and Conflict of Laws). 28 In the aftermath of World War II, when the Atlantic world was swarming with displaced people, Hannah Arendt wrote what remains the most powerful set of reflections on statelessness—the stunning ninth chapter of The Origins of Totalitarianism, written between 1945 and 1951, when she herself was stateless. 29 Attention to statelessness receded again in the 1960s, reemerged modestly when attention was claimed by refugees from Vietnam and by the contested condition of Palestinians, and then exploded in our own time. 30 The UNHCR has recognized that distinctions between stateless people and refugees are somewhat less sharp than they once were. It now describes stateless people as one of several categories among the 20.8 million who represent a "population of concern." 31 Refugees are the largest category, accounting for roughly 40 percent of the total. Other categories are asylum seekers and "internally displaced persons" who, once uprooted, fall through the cracks of current human rights law. Although international conventions have long provided protections against refoulement—the expulsion of persons who have the right to be recognized as refugees—its practice is increasing as asylum seekers are increasingly sent back to their nations of origin or to third countries, many of which will not provide them safety. 32 Some 2.4 million people are conservatively estimated by the UNHCR to be stateless, living "in a Kafkaesque legal vacuum," their numbers uncertain, hard to document, "non-persons, legal ghosts." 33
These "persons of concern" introduce a new dimension into our understanding. Stateless persons have been commonly understood to be a population made vulnerable by movement; Philip Nolan, the "Man without a Country" in the nineteenth-century novella, is forced out of the state he calls home. But citizenship ties can be fractured in stasis as well as in movement; liminal people who have not moved physically can find that state boundaries have shifted, and the protections that citizenship was thought to provide can suddenly evaporate. A good example is the now stateless citizens of the former Soviet Union who have not obtained nationality in any of the new countries that succeeded the USSR. 34
Imprisonment heightens vulnerability. In the normal course of events, the citizen can claim some measure of state protection when abroad. If arrested, a U.S. citizen who is charged with a crime while in another country can expect a personal visit and assistance from a U.S. consular officer. (The consul staff may not be able to resolve the problem, but they can be counted upon to make a good faith effort to try.) The stateless person has no consul to whom to turn.
Extreme economic vulnerability also can propel people into something that looks like statelessness; they dare not ask for asylum, and often have no one whom they can ask for it. In this situation, most notably, are the millions of desperate laborers, many of whom are women, who can escape the dire circumstances of their home countries only by accepting airfare from traffickers who transport them to labor situations close to slavery, in which they have no recourse against the exploitation and anger of their employers. 35 Indeed, the term "slavery" is once again in use as a descriptor of current conditions, and among the conservative estimates of the number of slaves in the world today is Kevin Bales's of 27 million. 36 Last February, the UNHCR called on states "to cooperate in the establishment of identity and national status of victims of trafficking, many of whom, especially women and children, are rendered effectively stateless." 37
Gender has, in fact, been a key factor in the history of statelessness. Only recently have gender-specific asylum claims such as rape, dowry-related violence, and coerced female circumcision been recognized, and that recognition has been sporadic. Among refugees, in settings in which gender and age demographics are provided by the United Nations High Commissioner for Refugees, adults divide evenly between men and women, but women are much more likely to be accompanied by children. Most significant, as Jacqueline Bhabha has recently emphasized, crude numbers do not describe the situation as women experience it: there is a substantial disparity in exposure to statelessness between men and women refugees and asylum seekers in different parts of the world, which emerges only when microclimates are examined. "In every single developing country of asylum neighboring the refugees' country of origin, women and children refugees substantially outnumber adult males [representing nearly 80 percent of the refugees] ... [I]n every developed state, male asylum seekers far outnumber females." Women historically have had less access than men have to "the formal and informal structures that facilitate migration (state agencies, travel agents, smugglers, family funding), together with dependent family status, resource inadequacy, personal history and social positioning, which militate against a self-perception as an autonomous asylum seeker, [and] are likely to be powerful impediments to individual flight," Bhabha observes. 38
In short, statelessness did not disappear with World War II, nor is the United States innocent of its terrors. How are we to understand its resilience—the continued reconstruction of an absence? Is it possible that the state needs its negation in order to know itself?
To historicize statelessness is to write a history of the practices of race, gender, labor, and ideology, a history of extreme otherness and extreme danger. It is time, I think, to examine the phenomenon in the long course of American history, and also as it now presents itself—in the context of new turn-of-the-century wars, in the context of American fears of terrorism, and when, as likely as not, it is the woman who lacks the country.
The work of Hannah Arendt is a crucial starting point for any examination of statelessness. I begin where she—with her perfect pitch for irony—begins, in the era of state building that marks the opening of the modern era. She calls our attention to the paradoxes of the age of the democratic revolutions of the eighteenth century. Americans spoke of inalienable rights, the French of the rights of man, both "inalienable because they were supposed to be independent of all governments; but," writes Arendt, "it turned out that the moment human beings lacked their own government and had to fall back on their minimum rights, no authority was left to protect them and no institution was willing to guarantee them ... [What was] supposedly inalienable, proved to be unenforceable." 39
The democratic transformations of the late eighteenth century paradoxically gathered an increasingly mobile population, one no longer tied to the soil, into populations fictively tied to a nation. As Robert Wiebe brilliantly discerned, systematized citizenship has great advantages for the state: it simplified taxation, and it provided an identifiable pool of male citizens vulnerable to military conscription. And in these redefinitions, it might be added, distinctions between those who belonged to a state and those who lacked one were invented, elaborated, and expanded. 40
In the United States, where the foundations were weaker, nation-state building did not go as far as it did in France, which in 1792 began to construct a new civil order in which citizenship required a stabilized personal identity; criteria of residence, parentage, age, and status were regularized, even extending to reshaping naming practices, such as those of Jews, that were regarded as exotic. 41 Even in the more relaxed United States, however, state building and its centralization was key—that is the struggle, after all, between the Articles of Confederation and the federalist coup that makes the Constitution. Were you inside the new polity? Outside? By 1856, Congress had asserted the exclusive right to issue passports. 42
The process of constructing the nationally integrated state—the state that defined the rights of citizens and simultaneously defined who was to be excluded—stretched out across the long nineteenth century, from the confederation of colonies that made a revolution against Britain at the end of the eighteenth century to the state that was Britain's defender in 1917.
By the middle of the eighteenth century, the Swiss scholar Emmerich de Vattel's Law of Nations had made explicit some two centuries of political development since the state system established by the Treaty of Westphalia that ended the Thirty Years' War in 1648. States were to be understood as moral entities, creating a moral international law of their own devising. In that context, Eliga Gould has brilliantly argued, those who are outside the state system can easily be understood as being outside the law; the stateless float in an immoral world. The Empire for Liberty protected its citizens against statelessness in part by strengthening distinctions between those of European descent inside the borders and placing Indians, slaves, and pirates outside the protective boundary, in a stateless realm of problematic morality and ethics. 43 Giorgio Agamben's long meditation on the indispensability of absences to the definition of the state is helpful here; the state requires the "state of exception" to define what it is not. 44 The new concept of citizenship required its opposite, its state of exception. Nation building has its ironies; the stateless becomes the citizen's other.
Nowhere is absence —and the dependence of the state on its own construction of the stateless—more sharply limned than in the contradictory centrality of slavery to the new republic. Slaves' presence was central to the economy of the new republic, yet their absence from its protections was central to the agreement—the three-fifths compromise—that made the Federal Constitution possible. Slaves were the exception to "We the People," frozen in Agamben's state of exception; they were, as Christopher Tomlins brilliantly puts it, "the living dead of the United States Constitution," violently, shockingly disfigured by the clause that counted slaves as three-fifths of a person for the purposes of representation. 45
In 1773, as Massachusetts patriots were challenging the Tea Act, enslaved inhabitants petitioned the legislature: "We have no Property. We have no Wives. No Children. We have no City. No Country." Three years before Thomas Jefferson was to articulate a fundamental right to the "pursuit of happiness," they described themselves repeatedly as "unhappy," described their "greatest unhappiness," and signed themselves, wistfully, "FELIX." 46 Like Arendt's stateless people, slaves were deprived "of a place in the world which makes opinions significant and actions effective ... belonging to the community into which one is born is no longer a matter of course and not belonging no longer a matter of choice ... They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to opinion." 47
On the eve of the Civil War, voting with the majority in Dred Scott v. Sanford—a decision that arguably helped to bring the war into being—Associate Justice Peter V. Daniel of Virginia stated what he took to be truth: that among Africans, "there never has been known or recognized by the inhabitants of other countries anything partaking of the character of nationality, or civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of commerce or traffic." His is a blunt definition of permanent statelessness. 48 The state of exception continued to define the boundaries of the nation, and it would take the explosion of civil war, and millions of deaths, to destabilize it.
Indians were also stateless against the Constitution, neither foreign nor domestic, existing in the interstices of the landscape and the law. Like the British before them, Americans chose definitions where it suited their interests. Sometimes the Indians were foreign, organized in force, led by chiefs, resembling a state. The new United States conducted treaties with Indians—some twelve between 1785 and 1819 with the Cherokee alone. "No one has ever supposed," Chief Justice John Marshall mused in 1830, "that the Indians could commit treason against the United States." 49
But Americans could just as readily define Indians as savages, people who had no state formation to which recognition was due. In the Declaration of Independence, they figure only as "the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions." Indians have no state; they are vaguely the "inhabitants of our frontiers." Thus no tribe was included as a party to the peace treaties between the United States, Britain, and France, even though the Indians of the Old Northwest had successfully defended their claim to lands north of the Ohio River. (What would it have meant to include the Indians directly in the peace settlement, already multinational, of 1783?) In 1847, Justice Roger Taney observed that "the native tribes ... have never been acknowledged or treated as independent nations ... On the contrary, the whole continent was divided and parcelled out, and granted by the governments of Europe as if it had been vacant and unoccupied land." 50 By the late nineteenth century, even though treaties reserved vast expanses of land for Indians, maps in general circulation showed only the states of the United States, with no acknowledgment of Indian lands.
In 1830, in Worcester v. Georgia, Marshall admitted (his word) that the Cherokee, although not a foreign state, "yet, having the right of self government, they, in some sense, form a state ... [but] they may not be admitted to possess the right of soil." They had, he thought, "a peculiar relation" to the United States. 51 It was indeed peculiar: forced into removal, their lands a state without soil, truly a "state of exception." For this exception, Marshall offered the convoluted concept of a "domestic dependent nation." 52 In that dependent nation, individuals had no reliable claims against the United States; locked into the landscape, they could not declare their autonomy. The authorization of removal, one Cherokee leader would try to persuade Congress, was a "scheme ... to denationalize us." 53 And indeed it did. The Trail of Tears did not lead to vacant land; it led to lands already inhabited by other peoples, who had no reason to welcome the newcomers. The Fourteenth Amendment assigned citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof." In 1884, the Supreme Court ruled that an Indian born in the United States but within the geographic boundaries of tribal authority (already so undermined that it could offer little protection against the state) was not born "subject to the jurisdiction" of the United States and therefore was not a citizen at birth. 54 By 1903 it was established that Congress had plenary power to abrogate any Indian treaty. Native Americans lacked, in Arendt's words, "a place in the world which makes opinions significant and actions effective."
In a willful refusal to respect the relationship that Indians had with each other and with their lands, U.S. policymakers failed to acknowledge that while citizenship for Americans meant strengthening their civil and property rights, citizenship for Native Americans meant dispossession. Not until 1924 did all Indians get the right to vote; not until the New Deal was tribal authority grudgingly recognized within narrow limits. 55 Finally the stacked deck was reshuffled; the state mattered, and Indians' opinions mattered. Issues could be addressed, challenges could be seriously made. Indians did not always get their way, and still do not. But the challenges are carried on within the boundaries of the state. Sometime in the 1930s, it ceased to be reasonable to construe Indians as stateless.
The legal baggage carried from the colonial era into the republic included the concept of coverture, a set of rules and practices that linked married women to the state through their husbands, defining them as "covered" by their husbands' legal identity. The culture of coverture had no room for the concept that there might be limits to a husband's sexual access to his wife's body. It embedded the husband's control of the wife's body, property, and earnings in the heart of the marriage contract. Married women were thus extremely vulnerable under the law: as one judge in the Supreme Judicial Court of Massachusetts observed in 1805, "a married woman has no more political rights than an alien." 56 In this culture—and Americans were not peculiar; these practices persist in other nations into our own time—the common sense of the matter was that when a male citizen married a foreign woman, his citizenship stretched to embrace her. She did not even have to go through the process of naturalization. But when a woman citizen married a foreign man, she lost her citizenship, and, depending on the laws of the other country, statelessness loomed. Even President Ulysses S. Grant's daughter was denationalized when she married an Englishman in 1874, and it took a special act of Congress to reinstate her citizenship when she was widowed. "Are we aliens because we are women?" demanded abolitionist Angelina Grimke. 57
No one definitively answered Grimke's question until 1907, when Congress passed a statute, and 1915, when the U.S. Supreme Court upheld it, that provided that the marriage of a woman citizen to a foreigner produced her denaturalization, even if she had been born in the United States. The Expatriation Act confirmed that hundreds of American-born women were no longer citizens. When World War I began, many hundreds of American-born women who had married men from countries with which the United States was at war were required to register as alien enemies. 58 Yet not all of their husbands' homelands embraced them as citizens. Once American women seized the vote, one of the first things for which they used it was to press for the integrity of married women's citizenship.
At the turn of the twentieth century , in the aftermath of the Spanish-American War of 1898 (which stretched, in the Philippines, at least to 1902), the United States invented the ambiguous and unstable category of "noncitizen national" to describe a new status of people who lived under the U.S. flag without the full range of constitutional protections that flag normally carries. When the United States acquired the Philippines, Guam, Cuba, and Puerto Rico, Congress and the Supreme Court devised a series of related statutes, decisions, and conceptualizations that defined the status of these places in ways that simultaneously, as Christina Duffy Burnett eloquently puts it, took "control over territory while avoiding many of the responsibilities that sovereignty implies." Like other imperial powers—the British in India, Africa, and elsewhere; the Germans in Africa; the French in North Africa and Asia—the United States, through the Supreme Court, simultaneously asserted sovereignty while holding that these territories were "neither foreign nor part of the United States." 59 Despite the extension of numerous federal statutes to these territories, they could not look forward to developing into states. The U.S. Supreme Court drew a distinction between "incorporated territories," such as those that had been covered by the Northwest Ordinance of 1787, and "unincorporated territories," such as Guam and the Philippines. When Congress provided a Bill of Rights for the Republic of the Philippines after quashing an insurgency in 1902, it omitted the right to bear arms and the right to a jury trial. The Constitution did not follow the flag. At the borders, Congress exercised plenary power, largely excused from constitutional oversight by the courts. 60 In the aftermath of 1898, as the United States developed an empire, some geographical configurations—states—were defined by the United States as fully peopled by citizens; other geographical configurations were colonies, inhabited by subjects who were not, and could not be, citizens. The nation experimented with the creation of ambiguous spaces between the domestic and the foreign, between the national and the international, between sovereignty and subjugation. And in those spaces lay great potential for statelessness.
The mature modern state, John Torpey has written, can be said to have accomplished three defining seizures: the first, described by Marx, is the appropriation of the means of production from workers by capitalists; the second, described by Max Weber, is the appropriation of the means of violence from individuals by the state; and the third is the expropriation by the modern state of the legitimate means of movement across national boundaries. This last is a characteristic of state formation in the twentieth century, a century in which documentation of a relation to the state or its lack became a defining aspect of statelessness. 61
In the early years of the twentieth century, before visas were required for entry into the United States, and when the United States understood itself to be in great need of new labor, most of the people who entered at Ellis Island lacked documents of any sort. 62 By contrast, the words "undocumented alien" now describe a condition of danger in relation to statelessness.
Throughout the century, grassroots movements for opening borders—to refugees, displaced persons, and the stateless after World War II; to a wider range of ethnicities in the remarkable immigration reforms of 1965—were in tension with skepticism and caution, embodied most obviously in the continued enforcement of the Chinese Exclusion Acts (not repealed until 1943), the Immigration Restriction statutes of the 1920s, the political restrictions of the McCarren-Walter Act of 1952, and the refusal of the United States to be party to a number of international conventions that included the stabilization of nationality, notably the 1954 Convention on Statelessness and the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which the U.S. signed but has not ratified.
Statelessness continued to figure in American life in the twentieth century. The disruption of national boundaries devised by the Treaty of Versailles in the aftermath of World War I gave already well-established federal claims of plenary power at the borders considerably more frequent occasions on which to be deployed. The fascists' rise to power intensified the pressures. In this context, Fridtjof Nansen, the League of Nations' High Commissioner for Refugees, devised a passport that granted departure without the right of return and was widely used as an identification and travel document by the USSR and Eastern European countries. The Nansen Passport was a devil's bargain. 63 In its wake, Britain, France, and the United States hastened to stabilize and seal their borders against the millions of refugees and stateless whom the post-Versailles remapping of the European landscape created. 64 But what contemporaries called "nationality problems" entered anyway. It was the fault of the airplane, one political scientist dourly reflected in 1930, for exacerbating population movements and heightening the visibility of the vulnerable. 65
The United States Immigration Act of 1924 reduced entry into the United States by some 85 percent of what it had been on the eve of World War I. Once the statute was backed by enforcement mechanisms, Mae Ngai writes, deportation "amounted to permanent banishment under threat of felony prosecution." The clash between the new statute and the explosive aftermath of the war meant that the difference between the immigrant and the refugee began to blur; even more blurred became the difference between the refugee and the stateless. Fleeing the Nazis, thousands of stateless Jews begged for sanctuary and were turned back at the U.S. borders. 66
The forced displacements of the 1940s from World War II and the Cold War that followed it—in Europe, in India/Pakistan, in the Middle East—turned uncountable numbers of people into refugees (between 7 and 11 million, it is estimated, for Europe alone). Most of these "displaced persons" were not technically stateless, since they were entitled to the passports of their home countries, but few could safely return there. Nearly a quarter-million Jewish DPs were in zones occupied by the Allies in Germany, Austria, and Italy in early 1946. Those from Germany or Austria had been denationalized by the Nazis and were technically stateless; those from Poland, where a pogrom killed forty Jews in 1946, had good reason to refuse to return. The response of the United States ranged from hostile to guarded; it was understood to be a generous gesture when President Harry Truman reserved to DPs half the quotas already in place for immigrants from Europe and allowed NGOs (as well as individuals) to certify that they would not become a public charge. Even so, barely 5,000 DPs, less than 10 percent of total European immigrants, entered the U.S. that year. Only in 1948, after intensive lobbying and much legislative struggle, did Congress authorize a capacious statute that authorized the admission of 200,000 over and above immigration quotas in two years (extended for another two years and another 200,000 visas in 1950). Even then, the State Department and Immigration and Naturalization Service dragged their collective feet, understanding themselves, as historian Roger Daniels puts it, to be "gatekeepers whose function was to 'protect' America from foreign contagion." Among those admitted, only about 15 percent were Jewish, many of whom were stateless. 67
In the twentieth century, until well after World War II, it was common practice for married women to travel on their husbands' passports. The implications—that husband and wife would always be together, that she would not leave the country without him—are harmless only in times of peace and quiet. Suspicion of foreigners soaked the political atmosphere during World War I and in the years that followed; restrictive immigration legislation in the 1920s and its even more restrictive interpretation in the 1930s was supplemented by major decisions of the U.S. Supreme Court that made people of various non-white and non-African ethnicities ineligible for naturalization and enforced these rulings retroactively.
The Cable Act, passed in 1922 in the midst of a movement for immigration restriction, secured married women's nationality—up to a point. If an American woman married a foreign man who was himself eligible for citizenship, but went overseas with him to live, she lost her citizenship; if she wished to return (perhaps as a widow), she would need to naturalize (that is, she could not reclaim her original birthright citizenship), and she would first have to enter under the immigrant quota of her husband's nation. She could not pass her own American citizenship to her children. 68
Despite the Cable Act's promise to stabilize the nationality of native-born women, should such a woman marry a man who was ineligible for citizenship (as were people from China; Japanese were added in 1922, "Hindus" in 1923, and Filipinos in 1925), she was considered to have renounced her citizenship and could not easily reclaim it if the marriage ended in death or divorce. 69 When the Supreme Court declared in 1923 that Hindus could not be naturalized, Mary Das's naturalized husband lost his citizenship, and she was retroactively denied a passport even though she had been born in the United States. The only advice the State Department (still thinking in the old concepts that linked married women's identity with their husbands) had to offer was that she might consider divorcing her husband or remaining stateless while she searched for some other country to be naturalized in. She was, she wrote in an angry essay published in The Nation, "A Woman without a Country." 70
Women from nations that expatriated them when they married an alien—countries that then included Britain and Canada, and still include some states that impose an automatic change in nationality status on women who marry foreigners 71 —could become temporarily stateless when they married American men after the passage of the Cable Act. "Women Without a Country Are in Straits from the New American Nationality Law" was the headline of an article in the New York Times in 1922. And, writes Candice Bredbenner, "most resident immigrant women who married Americans after the passage of the Cable Act became stateless on their wedding days and remained so until they earned a naturalization certificate." 72 In the United States in the interwar years, "woman" was a category of instability and potential statelessness; most individual cases of statelessness involved women and arose from marriage. 73
As fascists moved from harassing Jews to murdering them, naturalized women, many of them Jewish, desperately tried to bring husbands and fiancés into the United States during the 1930s. They organized themselves as the Citizen Wives Organization, established in an office by the Hebrew Immigrant Aid and Sheltering Society in New York. In the context of fascist expansion, the inability of American women, whether citizens by birth or by naturalization, to transmit their citizenship to their stateless children or husbands spelled danger. Even when the Naturalization Law was revised in 1930, its changes were not made retroactive; a citizenship that married women could take with them wherever they went was not fully achieved until the 1960s. 74
The problematic national identity of married women, and their exposure to statelessness, was a key item on the League of Nations' human rights agenda. But the League's work was aborted by the onset of war. The American member of the League's Committee of Experts on the Legal Status of Women, Dorothy Kenyon, was deeply disappointed to lose the chance to pursue these questions, and after the war she worked hard, and successfully, to be appointed to its successor, the UN Commission on the Status of Women. Although red-baiting derailed Kenyon's UN career, she and her allies doggedly kept the issue alive. In 1957, the UN created a "Convention on the Nationality of Married Women," forbidding compulsory expatriation. 75 The issue was not solved. Signatories to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979, undertake to ensure that "neither marriage to an alien nor change of nationality by the husband during marriage" shall automatically change the nationality of the wife, force upon her the nationality of the husband, or render her stateless. But although the U.S. signed the treaty, Congress never ratified it. In any event, there is virtually no enforcement mechanism for any provision of CEDAW; in some nations today, women who marry foreign men lose their citizenship, exposing themselves and the children of that marriage to statelessness. 76
Children—often subsumed in the category "women and children"—have had and continue to have their own specific vulnerabilities to statelessness. In the United States, where "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," children are citizens at birth. But the meanings of citizenship are different for children and adults, not least because children are spared or excused from the key rights and obligations of citizenship: to vote, to serve on a jury, to perform military service. The 1989 Convention on the Rights of the Child provides that every child (including children born to noncitizen parents in the territory of a state party to the convention) "shall be registered immediately after birth and shall have the right from birth to a name, [and] the right to acquire a nationality." It provides that "States Parties shall ensure the implementation of these rights ... in particular where the child would otherwise be stateless." But the Convention, which the U.S. has signed but has not ratified, does not stipulate obligation to confer nationality, and there is no enforcement mechanism. Among the states that today grant nationality only through the father are Algeria, Bangladesh, Egypt, Kuwait, and Saudi Arabia. 77
A crudely drafted American statute of 1802 excluded foreign-born marital children of American fathers from citizenship. Had they the misfortune to be born in a nation in which citizenship followed blood rather than birth—a category that grew as the Code Napoleon spread—these children could find themselves without any citizenship at all. In 1855, it was American fathers (not mothers) who transmitted citizenship to their children, and that continued to be the case well into the 1930s.
When adults are deported or interned, their citizen children go with them. The most notorious example of this is the U.S. internment camps of World War II, where the birthright citizen children of Japanese-American parents (some of whom were themselves birthright citizens) were confined without recourse. 78 The Bracero Program of 1948–1964 involved several million Mexican men as temporary contract laborers; by the time it ended, many had built families in America. Their citizen children could not force a pause for reconsideration; they left with their parents. In the aftermath of 9/11, an uncounted number of citizen children have risked or actually faced the deportation of noncitizen parents. 79
A Civil War statute provided that a deserter would lose his "rights of citizenship"; by the time it was embedded in the Nationality Act of 1940, the wording had been made so capacious that the deserter would simply lose his "citizenship." Over the course of World War II, some 21,000 men were convicted of desertion from the army, and some 7,000 of them were separated from the service and rendered stateless. These figures do not include the navy and marines. The scope of the problem was not recognized until 1958, when a deserter applied for a passport. Deeply dismayed that the law conceded to "the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless," Chief Justice Earl Warren wrote the ringing opinion in Trop v. Dulles. 80 "Citizenship is not a license that expires upon misbehavior ... We believe ... that use of denationalization as a punishment is barred by the Eighth Amendment [against cruel and unusual punishment] ... The punishment strips the citizen of his status in the national and international political community ... While any one country may accord him some rights ... no country need do so because he is stateless ... In short, the expatriate has lost the right to have rights." 81 Although he did not cite her, Warren had clearly read Arendt.
After the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 required deportation for what immigration law referred to as aggravated felony convictions and defined as such felonies an expansive range of crimes, minor as well as serious, thousands of permanent legal residents were subject to deportation. If they were stateless, or came from nations with which the United States had no treaty of reciprocity (including Vietnam and, at the time, Cambodia), there was no obvious place to send them. In Seattle, Assistant Federal Public Defender Jay Stansell found an entire floor of the Federal Detention Center devoted to nearly two hundred prisoners who had prospect of neither freedom nor deportation. In the spring of 2001, a hundred such cases were brought together for appeal for habeas corpus proceedings and a limit to the indefinite detention to which they were subject. Among them was the stateless Kestutis Zadvydas, who had been born to Lithuanian parents in a refugee camp in Germany. He was not a citizen of Germany (which does not recognize jus solis) and not a citizen of Lithuania (or of Russia, which succeeded the former Soviet Union, of which Lithuania had been a part when he was born); nor had he ever naturalized in the United States, although his family had moved there when he was eight years old. The crime for which he was convicted made him deportable after 1996, but no country would accept him. The 1954 Convention on Statelessness promises that all persons—it does not say all persons not convicted of crime—have a right to a nationality; but there is no practical provision for enforcing that promise. 82
During the Supreme Court argument, while defending indefinite detention in response to a series of questions from Justice Ginsburg, Deputy Solicitor General Edwin Kneedler found himself saying, in an eerie reprise of Edward Everett Hale's Civil War novella The Man without a Country, that "one way to remove the alien [who has no country to go to] would be to put him on a boat." And when Stansell emphasized the vulnerability of one of the youthful prisoners—his inability to speak the language, his lack of contacts if he were to be sent back to Cambodia—Justice Antonin Scalia was skeptical: "It is up to you to find a country to get sent back to. The burden is not on us." 83
But the Supreme Court ruled (although Scalia dissented) that although the attorney general "may" continue to detain aliens who present risks to the community, he does not have unlimited discretion. 84 "[O]nce an alien enters the country ... the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent." Stansell's clients were spared indefinite detention—a limbo not unlike statelessness—only until the administration found a place to which to deport them. Once a repatriation agreement was negotiated with Cambodia, some were deported to that country, where they knew no one, and whose languages they did not speak. 85
Indefinite detention has long been the norm at the U.S. Naval Station at Guantánamo Bay, Cuba, which identifies itself as the United States' "oldest U.S. base outside the continental United States," and host to the "War on Terrorism Detainee Mission." 86 Guantánamo is now the prison for men captured in Afghanistan and elsewhere who are thought to have fought for al-Qaeda. In three separate decisions in 2004, justices of the U.S. Supreme Court expressed their suspicion of unlimited detention and simultaneously limited severely the ability of the detainees to test it. But these decisions were narrowly framed, and the general thrust of the Patriot Act of 2001, the proposals to strengthen it in 2003 (the most severe, which came to light only in a leaked draft, were never passed), and the Military Commissions Act of 2006, all make indefinite detention a familiar strategy. Some men have been held in indefinite detention for five years; some were in their teens when they were first imprisoned. 87 Indefinite detention may be our contemporary opposite of expulsion. Guantánamo, the island prison where the American flag flies, inhabited by men whose own nations cannot ensure them decent prisoner-of-war treatment, is today's floating prison of men without a country.
If citizenship is linked to work—as it is in Judith Shklar's understanding of citizenship as the "right to earn," T. H. Marshall's understanding of social citizenship as the right to basic material well-being, and Alice Kessler-Harris's understanding of economic citizenship—then what citizenship can be claimed by those trapped jobless in the underworld of the globalized marketplace? 88 It is estimated that 14,500 to 17,500 people are illegally trafficked in or through the United States each year against their will, despite the Thirteenth Amendment's strictures against involuntary servitude. The Victims of Trafficking and Violence Protection Act of 2000, and its steady reauthorization and expansion, most recently in 2005, recognizes something of the scope of the problem in the United States. At least twenty-three states now have laws making trafficking a state felony offense. 89 Anthropologist Aihwa Ong has argued that in the last generation, "the norms of good citizenship in advanced liberal democracies have shifted from an emphasis on duties and obligations to the nation to a stress on becoming autonomous, responsible choice-making subjects who can serve the nation best by becoming 'entrepreneurs of the self.'" 90 Those who lack resources—and 70 percent of the world's poor are women—are almost bound to fail that entrepreneurial challenge. 91
Labor trafficking is the third-largest international criminal enterprise, behind only drug and arms smuggling, producing billions of dollars in profit. (The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children is the internationally agreed-upon definition.) 92 Although this traffic involves both men and women, the largest categories by far are in the kinds of work in which women are most likely to be found: domestic service; marginally skilled labor in hotels, restaurants, and nursing homes; and sex work. So long as labor contracts are taken at face value, the realities of trafficking remain masked. Ambiguous borders cloud the margins between Ong's "mobile homo economicus" and the trafficked, between the trafficked and the refugee, between the refugee, the "essentially stateless," and the stateless.
Contemporary vulnerabilities to "essential statelessness" were recently made transparent by the largest successfully prosecuted human trafficking case in U.S. history, involving over two hundred Vietnamese and Chinese women and some men imported to work in near-slavery conditions at the Daewoosa garment factory in American Samoa. Opened in 1999, Daewoosa held contracts with several important American retailers of clothes, including JC Penney and Sears, which could import from Samoa at lower tariffs with products labeled "Made in American Samoa." In April 2002, the High Court of American Samoa awarded $3.5 million (approximately $13,000, or two years' salary, each—far less than minimum wage) to more than two hundred workers; in 2003, the U.S. Federal District Court in Hawaii sentenced Kil Soo Lee, the proprietor of the by then defunct factory, to forty years in prison for extortion, money laundering, and—in a rare invocation of the Thirteenth Amendment—"involuntary servitude." The workers who were imported into American Samoa were technically citizens of Vietnam and of China, but they had little hope of protection from either country. The government of Vietnam acknowledged its own general mandate to assist Vietnamese nationals residing overseas, but as in many countries where it is national policy to encourage labor migration, government ministries and offices have multiple responsibilities, and overseeing or protecting the interests of workers usually falls below expanding labor exports and serving the interests of labor exporters. No Vietnamese consul visited the Daewoosa factory. 93 In this context, and when home states decline to protect them effectively, the UNHCR's conclusion of February 2006 is especially apt: trafficked women and children are "essentially stateless." 94
The dream of a cosmopolitan citizenship —and the nightmare of its absence in statelessness—in American history is a complicated one, whose presence we are only just beginning to acknowledge. In trying to understand the expansive meanings embedded in the status of statelessness, we come to consider not only questions of who can be a citizen and on what terms, but also some of the instabilities of public/private distinctions, of the way the personal and the political merge, of the way in which the state regularly relies on the microclimates of the workplace, the bedroom, and the birthing room to sustain national citizenship.
Behind the public story is a backstory of distrust: a distrust of the future complexities of sorting out the claims of thousands of people who might well conclude that they could now claim citizenship retroactively, and a distrust of women as tricksters, accompanied by a belief that men should be able to pick and choose for which of their children they will be responsible. These issues have such resilience not only because they are stereotypes based on actual trends, but also because these issues are rooted in concepts that reach back to the founding era, when the property regime of coverture ensured that married women's relation to the state was filtered through their husbands.
The categories that define who is vulnerable to statelessness have been refigured since the 1930s, when Catheryn Seckler-Hudson sought to provide it with a syntax. Statelessness is not a static conceptual matter; it now breaks along the fault lines of perceptions of state security, race and ethnicity, ideal workers, and gender. Indeed, the fault lines are not themselves always clear. Hannah Arendt has reminded us of the difficulty of distinguishing between stateless refugees and "normal" resident aliens. "Who," she asked, "will guarantee human rights to those who have lost their nationally guaranteed rights?" Statelessness is now made in the daily decisions of captors in prisons such as Abu Ghraib and Guantánamo, deciding who is entitled to the protections of international law and who is not. Today's transnational market in domestic labor is filled with people who are not technically refugees, but who are homeless in having left their home country, who are citizens of one country but undocumented aliens where they work. By far most of these people are women, many of whom, like Miss Saigon, slide all too easily into the international traffic in women and into the United Nations High Commissioner for Refugees' understanding of "ineffective nationality" and "de facto statelessness." In this volatile political context, statelessness is no longer so easily measured only by the presence or absence of a passport; it is a state of being, continually produced by new and increasingly extreme forms of restriction and of the creation of new categories of stateless human beings.
And so it may be that—from the days of the founding to our own time—the state has needed the stateless: needed them at some deep level, to construct what it is not; needed them for its own definition, to stabilize its own borders and boundaries. It is widely understood—thanks not least to Nansen and to Arendt—that statelessness haunted twentieth-century Europe. Statelessness has also haunted the United States throughout its history, from its oxymoronic founding as a republic of slavery to our own time. "Once they had left their homeland they remained homeless; once they had left their state they became stateless; once they had been deprived of their human rights they were rightless." Arendt's heartbreaking words conspicuously begin not with a crime but with an apparently neutral behavior: "once they had left." It is the leaving that makes the individual or community vulnerable, whether or not the leaving was itself voluntary. But if, for Arendt, twentieth-century statelessness was triggered by a single act, statelessness today, in particular in relation to the borders and borderlands of the United States, is most usefully understood not only as a status but as a practice, made and remade in daily decisions of presidents and judges, border guards and prison guards, managers and pimps. The stateless are the citizen's other. The stateless serve the state by embodying its absence, by providing frightening models of the vulnerability of those who lack sufficient awe of the state. The stateless serve the state by signaling who will not be entitled to its protection, and throwing fear into the rest of us.
Is it possible to end not with the nightmare, but with the dream? Is it possible, still, to imagine a citizenship of the world?
Herman Melville imagined it—Melville, who had been a seaman on an immigrant ship, fleeing the Ireland of the Great Hunger. "Let us waive that agitated national topic," he wrote in Redburn, "as to whether such multitudes of foreign poor should be landed on our American shores; let us waive it, with the one only thought, that if they can get here, they have God's right to come; though they bring all Ireland and her miseries with them. For the whole world is the patrimony of the whole world; there is no telling who does not own a stone in the Great Wall of China." 95
Melville's dream has recently been invoked by Aristide R. Zolberg, professor of political science emeritus at the New School in New York, whose connection with the subject was forged when he himself was a child hidden from the Nazis. Zolberg calls on us to address the central asymmetry in international human rights law: if indeed "everyone has the right to leave any country, including his own," we need the concomitant principle: "Everyone has the right to enter any country." The world was made better in 1990 "when Hungary opened up its border to Austria, providing to masses of East German vacationers the possibility of driving their sputtering Trabants to freedom, and the processes unleashed by this turn of events amounted to a major turning point in world history." Zolberg muses, "the strict confinement of individuals to membership in the states under whose jurisdiction they happened to be born negates their being as members of a common species." 96
Now, Zolberg is no fool, and he recognizes that "under present world conditions, in the absence of border controls, the world's affluent countries would be quickly overwhelmed by truly massive flows of international migrants in search of work, social benefits and safety ... The prospect imposes a major constraint on the application of the Melville principle." But at the very least, we can shift our starting point, searching for an ethical immigration policy that places the burden of proof on those who would restrict.
The end of the Cold War and the successes of the European Union have turned much critical attention toward inherited understandings of citizenship; whatever "globalization" is understood to be, it is having an impact on how people understand their relationship to the jurisdictions in which, as Zolberg says, "they happened to be born." Identities shift and fracture; the relation of national identity to religious, gender, class, and ethnic identities blurs and re-forms. Millions of people right now are experiencing what it is like to be members of a nation and the European Union simultaneously. It may be possible to feel our way into a meaningful cosmopolitanism, in which a robust international law protects human rights in reliable ways, and reliance on the vagaries of the single nation-state is less essential. We are in the early days, but we can watch the dream expand in the European Union, which every day offers fresh examples of federalism in practice and of the framing of a robust and expansive international law of equity and human rights, practiced in courts of relatively recent invention: the International Court of Justice, the European Court of Human Rights, the International Criminal Court. As the European Union prepares to embrace new members, including Bulgaria and Romania, it may well be that we are living in the early years of a new and vibrant cosmopolitanism. We may not be able to assess this for fifty years; even a century is not long as these things go—we are in a time frame in which we repeatedly invoke the Treaty of Westphalia, after all. The United States itself has deep ambivalence toward these developments—"often at the forefront of efforts to redress human rights abuses and to bring the world under the power of international law," as Harlan Cohen has observed, while at the same time being "equally careful to remain outside such legal schemes." 97 That the United States hesitates to play a leading role in this enterprise is to be regretted, but already we see a telling rhetorical shift, from talk of "civil rights"—rights that rely on the nation for maintenance—to "human rights," with the claim that the validity stretches throughout humanity. "The time may have come once again," writes Ralph W. Mathisen, thinking of the expansive imperial citizenship of Rome, "for a form of citizenship unburdened by the baggage of nationalism or political allegiances." 98
While we are engaged in constructing an authentically capacious citizenship, we can be strengthened by the example of efforts by individuals to forge such a citizenship out of their own desperation. So let me end as I began, now with a third version of Madame Butterfly, this one by the novelist Pearl Buck; this one written in 1952; this one stretching across the globe, engaging the Atlantic as well as the Pacific; this one with a wistfully optimistic ending (which is the more believable for its imperfection and the deep sadness at its core).
Josui is a modernized Cho-Cho-San, who navigates between the United States and Japan in the context of the postwar occupation in Pearl Buck's mesmerizing novel The Hidden Flower. 99 Married by Japanese rite in Japan, despite her skeptical family, Josui actually goes to the U.S. to marry her American soldier under American law, but discovers that he is from Virginia, where interracial marriage is illegal, as it would be until 1967. His wealthy family pressures him—threatening the loss of his inheritance—should he move with Josui to New York, and he capitulates to them, abandoning her (as Pinkerton and Chris, in their different ways, abandoned their commitments to their Asian lovers). The scion of the First Families of Virginia is humiliated in the readers' eyes as spineless, unreliable, and without ethics. While Josui is pregnant with the child of her faithless American "husband," she is wooed by her Japanese former suitor—himself a fine young man, eager to enter the modern world, who has remained loyal and loving during her absence. But he cannot find the strength to bear the shame that in his society would accompany not only marrying a divorced woman but also raising the biracial child of her first husband. He will marry her, but not if she brings the child back to Japan. And so Josui returns to America, to Los Angeles, as far away from Virginia as she can get. She gives birth to her son in a charity clinic. In a marvelous twist of fate, she is saved from giving him up for anonymous adoption by the intervention of a refugee Jewish woman physician, who has lost all that made her life worthwhile in the Holocaust, but whose heart is stirred by Josui's infant. The doctor adopts the infant, who is key to her new life; Josui can return to Japan a respectable woman to make a new life of her own. The exemplars of the ethics of a cosmopolitan world are these two women—the Butterfly who finds a way to ensure her child's future without having to kill herself; the survivor of the Holocaust who stretches her hands across the Pacific, across boundaries of language, race, and nation. Together they will make a world in which state boundaries are less important than ethics and love.
A somewhat different version of this address was offered as the Harold Vyvyan Harmsworth Memorial Lecture at Oxford University, November 16, 2006. I have many people to thank for their good counsel as this project developed over an extended period of time. My recent debts in the UK include invigorating conversations with Tony Badger, Nicholas Bamforth, Jane Caplan, Desmond King, Simon Newman, Matthew Nicholls, Peter Thompson, and the Cambridge University American History Seminar. I am grateful to the Citizenship Study Group at the Radcliffe Institute for Advanced Study in 2003 and to my colleagues in the University of Iowa Department of History and College of Law. Over the years, I have depended on the wise counsel of many scholars: Thomas Bender, Jacqueline Bhabha, G. Daniel Cohen, Nancy Falgout, Paula Fass, Drew Faust, Michael Grossberg, Charles Hawley, Elizabeth Hillman, Frederick Hoxie, Stephen Legomsky, Gerda Lerner, Barbara Schwartz, Mark Sidel, Avi Soifer, Christopher Tomlins, Barbara Welke, Marilyn Young, all of whom must be absolved from responsibility for any misinterpretations of mine. My greatest debt is to Mary Dudziak, who understood this project when it was just a gleam in my eye, and has offered wise counsel from the beginning.
Linda K. Kerber served as president of the American Historical Association in 2006. She is May Brodbeck Professor in Liberal Arts and Sciences and Lecturer in the College of Law at the University of Iowa. During the academic year 2006–07 she was Harold Vyvyan Harmsworth Visiting Professor of American History at Oxford University.
1 Kaori O'Connor, "Introduction," in Pierre Loti, Madam Chrysanthemum (1901; repr., London, 1985), viii, 335.
2 John Luther Long, Madame Butterfly, chap. 10, originally published in Century Illustrated Magazine, January 1898; reprinted in Maureen Honey and Jean Lee Cole, eds., Madame Butterfly and A Japanese Nightingale: Two Orientalist Texts (New Brunswick, N.J., 2002).
3 Vera Mackie, "Feminist Critiques of Modern Japanese Politics," in Bonnie Smith, ed., Global Feminism since 1945 (London, 2000), 182–183, 190. See also Chikako Kashiwazaki, "Citizenship in Japan: Legal Practice and Contemporary Development," in T. Alexander Aleinikoff and Douglas Klusmeyer, eds., From Migrants to Citizens: Membership in a Changing World (Washington, D.C., 2000), 434–471.
4 On this point I am grateful for the good counsel of Patricia Steinhoff and Robert Straton of the University of Hawaii. Straton, "Patriarchy in Meiji Japan" (Ph.D. diss., University of Hawaii, 2006).
5 Tuan Ahn Nguyen v. INS, 533 U.S. 53 (2001). I have written about this case in "Top Court Took a Step Backward on Gender Bias," Boston Globe, June 23, 2001, and "Toward a History of Statelessness in America," American Quarterly 57 (September 2005): 727–749. See also Kristin Collins, "When Fathers' Rights Are Mothers' Duties: The Failure of Equal Protection in Miller v. Albright," Yale Law Journal 109 (2000): 101–142.
6 Nguyen, 53, 60, 65–66, and Tuan Ahn Nguyen v. INS, Brief for Respondent, December 13, 2000, 10. This is a development that many feminists had supported, in an effort to strengthen the rights of unmarried birth mothers within the United States. See Lehr v. Robertson, 463 U.S. 248 (1983).
7 Nguyen, Brief for Respondent, 34. On the transmission of citizenship, good places to start are Sarah A. Adams, "The Basic Right of Citizenship: A Comparative Study," Center for Immigration Studies, Washington, D.C., Summer 1994, http://www.cis.org/articles/1993/back793.html (accessed January 11, 2007). An important survey is Patrick Weil, "Access to Citizenship: A Comparison of Twenty-Five Nationality Laws," in T. Alexander Aleinikoff and Douglas Klusmeyer, eds., Citizenship Today: Global Perspectives and Practices (New York, 2001), 17–35.
8 Nguyen, Brief for Respondent, 8.
9 Ibid., 19, 36.
10 Ibid., 42.
11 Nguyen, 65.
12 United States v. Ahumada-Aguilar, 189 F.3d.1121 (9th Cir. 1999).
13 Oral Argument in Nguyen. It should be emphasized that the minority was unpersuaded. In dissent, Sandra Day O'Connor stressed the principle—well established, she argued, in a long train of decisions stretching back to the 1970s—that "sex based statutes deny individuals opportunity." The dissenters did not agree that the statute ensured "that children who are born abroad out of wedlock have, during their minority, attained a sufficiently recognized or formal relationship to their United States citizen parent—and thus to the United States—to justify the conferral of citizenship upon them," since biological mothers could also be neglectful of their relations with their children. Nguyen, 79. That administrative convenience may not be used as justification for discrimination on the basis of sex had been established in Reed v. Reed, 404 U.S. 71 (1971), the first decision in which the Court found discrimination on the basis of sex to be a denial of equal protection of the laws. Ruth Bader Ginsburg, then thirty-eight years old, and ACLU director Mel Wulf wrote the brief for Sally Reed, who challenged the Idaho rule that when separated parents competed to serve as administrator of their dead son's estate, the father must be preferred.
14 Arjun Appadurai, "Patriotism and Its Futures," Public Cultures 5, no. 3 (1993): 423–424; Aihwa Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Durham, N.C., 1999); Linda Bosniak, "Denationalizing Citizenship," in Aleinikoff and Klusmeyer, Citizenship Today, 237–252. A contradictory trend has been the effort of some wealthy individuals to relinquish their citizenship, and of the manipulations of corporate nationality to avoid paying taxes. A place to begin to consider this is G. Warren Whitaker and B. Dane Dudley, "Departing Is Such Sweet Sorrow: Giving Up U.S. Citizenship or Residence," Probate and Property 19 (September/October 2005): 10–12. I am grateful to Stanford Ross for this point.
15 Among the many discussions of this subject are David A Martin and Kay Hailbronner, eds., Rights and Duties of Dual Nationals: Evolution and Prospects (The Hague, 2003), especially Martin, "Introduction: The Trend toward Dual Nationality," 3–18; and Aleinikoff and Klusmeyer, From Migrants to Citizens, especially Miriam Feldblum, "Managing Membership: New Trends in Citizenship and Nationality Policy," 475–499.
16 Afroyim v. Rusk, 387 U.S. 253 (1967); Vance v. Terrazas, 444 U.S. 252 (1980).
17 Stephen Legomsky, "Why Citizenship?" Virginia Journal of International Law 35 (1994–1995): 289. See International Covenant on Civil and Political Rights, Article 12.4, adopted by the United Nations 1966, entered into force 1976; adopted by the United States and entered into force 1992.
18 Consular officials are guided in this matter by the Foreign Affairs Manual, vol. 7, 012—Eligibility: Section c. The manual does provide, however, that "When an L[egal] P[ermanent] R[esident] applicant has exceptionally close and strong ties to the United States, and overriding humanitarian and compassionate grounds exist, request guidance from CA/OCS/ACS about the propriety of providing the service, with the understanding that the host government may not, and is not obligated to, honor a request from the U.S. Government on behalf of such an individual." I am grateful to Charles Hawley, Vice Consul, U.S. Consulate General, Ho Chi Minh City, Vietnam, for this reference.
19 The 1954 Convention Relating to the Status of Stateless Persons entered into force June 6, 1960, but as of September 2006, only sixty states had signed and ratified it. The U.S. is not among them. The text is conveniently found on the UNHCR website: http://www.unhcr.org/protect/PROTECTION/3bbb0abc7.pdf (accessed January 11, 2007).
20 Andrew Brouwer for UNHCR, "Statelessness in Canadian Context: A Discussion Paper," July 2003, 23; http://www.unhcr.org/protect/PROTECTION/40629ffc7.pdf (accessed January 11, 2007).
21 Basic Law, Section I, Basic Rights; Article 16: (1) "German citizenship may not be taken away. Citizenship may be lost only pursuant to a law, and against the will of the concerned person only if they do not become stateless as a result." Gisbert H. Flanz, ed., Constitutions of the Countries of the World (Dobbs Ferry, N.Y., 2003), n.p.
22 Universal Declaration of Human Rights, 1948, Article 15; Convention Relating to Stateless Persons, Article 32; UNHCR, "Statelessness in Canadian Context," 8.
23 On the inability of noncitizen parents to benefit from the citizenship of their child, see 8 U.S.C. section 1151(b)(2)(A)(I). An argument for reinterpreting the Fourteenth Amendment was made by Peter H. Schuck and Rogers H. Smith in Citizenship without Consent: Illegal Aliens in American Polity (New Haven, Conn., 1985). More recently it was made in the Brief of Amicus Curiae Eagle Forum Education and Legal Defense Fund in Support of Respondents in Yaser Esam Hamdi et al. v. Rumsfeld, 542 U.S. 507 (2004). An effort to undermine birthright citizenship by statute was defeated in the immigration reform bill of December 2005. For an international overview, see Andrew Grossman, "Birthright Citizenship as Nationality of Convenience," Proceedings of the Third Conference on Nationality, Council of Europe, October 2004, http://uniset.ca/naty/maternity/ (accessed January 11, 2007). In 1993, Representative Elton Gallegy of California sponsored a constitutional amendment that would have changed the language of the Fourteenth Amendment to read "All persons born in the United States ... of mothers who are citizens or legal residents of the United States ... are citizens of the United States." See "The Birthright Citizenship Amendment: A Threat to Equality," Harvard Law Review 107 (1994): 1026–1043. For a defense against the constitutional attack, see Walter Dellinger, "Statement before the Subcommittees on Immigration and Claims and on the Constitution of the House Committee on the Judiciary," December 13, 1995, http://www.usdoj.gov/olc/deny.tes.31.htm (accessed January 11, 2007).
24 International conventions on statelessness were established in 1954 (Convention Relating to the Status of Stateless Persons) and 1961 (Convention on the Reduction of Statelessness). They can conveniently be found at http://www.ohchr.org/english/law/stateless.htm and http://www.ohchr.org/english/law/statelessness.htm (both accessed January 11, 2007). The UNHCR web page http://www.unhcr.org/protect/3b8265c7a.html (accessed January 11, 2007), framed as an answer to the question "Who is stateless?" is very helpful. It has the current definition: "A stateless person is someone who is not recognized by any country as a citizen. Several million people globally are effectively trapped in this legal limbo, enjoying only minimal access to national or international legal protection or to such basic rights as health and education." The UNHCR site also has convenient links to texts of conventions, case law, and UN reports. Among the most useful are UNHCR, "2005 Global Refugee Trends: Statistical Overview of Populations of Refugees, Asylum-Seekers, Internally Displaced Persons, Stateless Persons, and Other Persons of Concern to UNHCR," Geneva, June 9, 2006, http://www.unhcr.org/cgi-bin/texis/vtx/events/opendoc.pdf?tbl=STATISTICS&id=4486ceb12 (accessed January 11, 2007). A very good resource is UNHCR, "Statelessness in Canadian Context."
25 Carol Batchelor, "Stateless Persons: Some Gaps in International Protection," International Journal of Refugee Law 7, no. 2 (1995): 232–259.
26 Legomsky, "Why Citizenship?" 299–300.
27 Edward Everett Hale, The Man without a Country (Boston, 1865), first appeared in the Atlantic Monthly in 1863. It was reprinted steadily throughout the nineteenth century; several editions were timed to coincide with the Spanish-American War. For Hale's own reflections on the origins of the story, see E. E. Hale, "The Man without a Country," Outlook 59 (May 5, 1898): 116. There was another flurry of printings the year after Hale died in 1909. Prompted by World War I, Harvard Classics published its edition in 1917. On the edge of World War II, with the world filled with stateless people who had not denounced their country but who were desperate for sanctuary, the circulation was energized again by cheap copies distributed to schoolchildren. (That may be the form in which I first read it.) It was most recently reprinted by the Naval Institute Press in 2002.
28 Catheryn Seckler-Hudson, Statelessness: With Special Reference to the United States (A Study in Nationality and Conflict of Laws) (Washington, D.C., 1934), published under the auspices of the Department of International Law and Relations of the American University Graduate School, with a preface by Ellery C. Stowell, who described statelessness as "an inexcusable anomaly" and an "intolerable condition."
29 Hannah Arendt, The Origins of Totalitarianism (New York, 1951).
30 For a judicious assessment, see Lex Takkenberg, The Status of Palestinian Refugees in International Law (Oxford, 1998), especially chap. V: "Laws Relating to Stateless Persons." "Palestinians who were displaced as a result of the 1948 war are at the same time both refugees and stateless persons," Takkenberg observes. Their situation is made more unusual because they were not displaced from a state; the citizenship they once held in the British mandate was erased in 1948. "Gradually, the legal and political impairment of being stateless, not belonging to a state, not having a national passport, became more significant ... Although the host states have generally provided permanent residency status to those refugees who took direct refuge ... during and in the aftermath of the 1948 war ... with the exception of Jordan, citizenship has generally not been available, not even for second or third generation refugees"; 347–350. Takkenberg concludes that "the entity 'Palestine' currently does not fully satisfy the international legal criteria of statehood ... Palestinians who have not acquired the nationality of a third state therefore continue to be stateless for the purpose of international law"; 181. In The Iron Cage: The Story of the Palestinian Struggle for Statehood (Boston, 2006), his judicious history of the impact of the absence of nationality, Rashid Khalidi observes that without a Palestinian state to maintain a central archive of documents, the historical record is greatly and permanently impoverished; xxxv. The UNHCR has been cautious about how it describes Palestinians, generally treating them as stateless but making rhetorical room for those who do not agree; thus the wording of the UNHCR Global Appeal 2005 Middle East Regional Overview, 189: "although Palestinians may not be considered as stateless since a Palestinian state has technically existed since the approval of UN General Assembly Resolution 181 (1947), some three million have been unable to return to their homes and their legal status has constantly been disputed by the Israeli government." For a careful analysis of the ambivalent citizenship offered—and denied—to Palestinian Arabs resident in Israel between 1948 and 1952, see Shira Nomi Robinson, "Occupied Citizens in a Liberal State: Palestinians under Military Rule and the Colonial Formation of Israeli Society, 1948–1966" (Ph.D. diss., Stanford University, 2005), chaps. 1 and 2.
31 A good place to begin is the UNHCR home page, especially "2005 Global Refugee Trends," http://www.unhcr.org/statistics/STATISTICS/4486ceb12.pdf (accessed January 11, 2007).
32 For the definition of refoulement, see http://portal.unesco.org/shs/en/ev.php-URL_ID=4145&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed January 11, 2007). The definition is included in the UN Convention Relating to the Status of Refugees of 1954, Article 33(1): "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." But not all countries are parties to the UN Convention. See the important essay by Stephen H. Legomsky, "Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection," International Journal of Refugee Law 15 (2003): 567–677.
33 UNHCR, "The World's Stateless People: Questions and Answers," September 1, 2006, http://www.unhcr.org/basics/BASICS/452611862.pdf (accessed January 11, 2007). For the estimate of nearly 2.4 million stateless, see UNHCR, "ugees by Numbers 2006 Edition," http://www.unhcr.org/cgi-bin/texis/vtx/basics/opendoc.htm?tbl=BASICS&id=3b028097c#Stateless (accessed January 11, 2007). This report includes the observation "The Universal Declaration of Human Rights underlines that 'Everyone has the right to a nationality.' Unfortunately, circumstances have conspired to deny many of that right, often leaving them in a Kafkaesque legal vacuum ... As a result of a concerted effort to improve the data provided by states, the number of stateless people identified as being of concern to UNHCR rose sharply from 1,455,900 in 2005 to 2,381,900 at the beginning of 2006. Although precise numbers are still difficult to estimate, UNHCR believes the actual total of people without a country to call their own may be at least 11 million."
34 See UNHCR, "Statelessness in Canadian Context," 16.
35 For a recent example, see Amy Waldman, "Sri Lankan Maids Pay Dearly for Perilous Jobs Overseas," New York Times, May 8, 2005, A1, detailing "exploitation so extreme that it sometimes approaches 'slaverylike' conditions, according to a recent Human Rights Watch report on foreign workers in Saudi Arabia."
36 Kevin Bales, Disposable People: New Slavery in the Global Economy (Berkeley, Calif., 2004), 9; stunning photographs are included in Andrew Cockburn, "21st Century Slaves," National Geographic 204 (September 2003): 2–25.
37 UNHCR, "Statelessness: Prevention and Reduction of Statelessness and Protection of Stateless Persons," February 14, 2006, http://www.unhcr.org/excom/EXCOM/43f1f6682.pdf (accessed January 11, 2007).
38 Jacqueline Bhabha, "Demography and Rights: Women, Children, and Access to Asylum," International Journal of Refugee Law 16 (2004): 232, 235; see also Bhabha, "'More Than Their Share of Sorrow': International Migration Law and the Rights of Children," Saint Louis University Public Law Review 22 (2003): 253 n. 1.
39 Arendt, The Origins of Totalitarianism, 291–293.
40 Robert Wiebe, "Framing U.S. History: Democracy, Nationalism, and Socialism," in Thomas Bender, ed., Rethinking American History in a Global Age (Berkeley, Calif., 2002), 239. For a similar perspective based on European examples, see John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge, 2000), chap. 1.
41 For the process in France, see Gérard Noiriel, "The Identification of the Citizen: The Birth of Republican Civil Status in France," in Jane Caplan and John Torpey, eds., Documenting Individual Identity: The Development of State Practices in the Modern World (Princeton, N.J., 2002), 29–47.
42 James H. Kettner, The Development of American Citizenship, 1608–1870 (Chapel Hill, N.C., 1978), chap. 7; Torpey, The Invention of the Passport, 95.
43 Eliga H. Gould, "Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772," William and Mary Quarterly 60 (2003): 471–510; and Gould, "States, Statelessness and the Law of Nations in the British Atlantic, circa 1756" (unpublished paper, American Society of Legal History, 2005).
44 I am grateful to Christopher Tomlins for prompting my thinking on these matters. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford, Calif., 1998), 18.
45 See Christopher Tomlins, "The Threepenny Constitution (and the Question of Justice)," forthcoming in Alabama Law Review.
46 "Petition of the Africans, Living in Boston, 1773," in James Oliver Horton and Lois E. Horton, Slavery and the Making of America (New York, 2005), 51. In a 1792 debate in the French Assembly, a deputy would say, "slaves have no civil status. Only the free man has a city, a fatherland; only he is born, lives and dies a citizen." Quoted in Noiriel, "The Identification of the Citizen," 29.
47 Arendt, The Origins of Totalitarianism, 296.
48 Dred Scott v. Sanford, 60 U.S. 393 (1856). See also Mark Janis, "Dred Scott and International Law," Columbia Journal of Transnational Law 43 (2005): 763.
49 Worcester v. Georgia, 31 U.S. 515 (1832).
50 U.S. v. Rogers, 45 U.S. 567 (1846).
51 Worcester v. Georgia.
52 Cherokee Nation v. the State of Georgia 30 U.S. 1 (1831).
53 John Ross in 1840, quoted in William McLoughlin, After the Trail of Tears: The Cherokees' Struggle for Sovereignty, 1839–1880 (Chapel Hill, N.C., 1993), 28. I am grateful to Frederick Hoxie for this reference, and for an extended conversation that helped me develop these ideas.
54 Elk v. Wilkins, 112 U.S. 94 (1884).
55 The best overview of these matters is to be found in R. David Edmunds, Frederick E. Hoxie, and Neal Salisbury, The People: A History of Native America (Boston, 2007).
56 Martin v. Commonwealth, 1 Mass. 347 (1805). I have discussed this case at some length in No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York, 1998), chap. 1.
57 House Joint Resolution no. 238, 55th Cong., 2nd sess. (May 18, 1898), 30 Stat. 1496; Angelina Grimke, Appeal to the Women of the Nominally Free States (Boston, 1838), 19.
58 See Mackenzie v. Hare, 239 U.S. 299 (1915), upholding the denationalization of American women who married aliens. John L. Cable, Decisive Decisions of United States Citizenship (Charlottesville, Va., 1967), 41–42; New York Times, May 4, 1918.
59 Christina Duffy Burnett, "The Edges of Empire and the Limits of Sovereignty: American Guano Islands," American Quarterly 57, no. 3 (September 2005): 798, 795; my italics.
60 Downes v. Bidwell, 182 U.S. 244 (1901); note Justice John Marshall Harlan's eloquent dissent.
61 Torpey, The Invention of the Passport, 4.
62 Most of those who entered at Angel Island in San Francisco did have to meet the registration requirements of the Chinese Exclusion Acts.
63 For the Nansen Passport, see Arendt, The Origins of Totalitarianism, especially 281 n. 30; and Torpey, The Invention of the Passport, 127–129. When the Germans occupied France, they used the Nansen Passport for their own purposes, detaining all the Russians who had one.
64 Despite the severity of U.S. immigration restriction policies in the 1920s and thereafter, Catheryn Seckler-Hudson estimated that some 18.5 million immigrants entered the United States in the first third of the twentieth century. Seckler-Hudson, Statelessness, 1.
65 Richard W. Flournoy Jr., "Nationality Convention Protocols and Recommendations Adopted by the First Conference on the Codification of International Law," American Journal of International Law 24 (1930): 467, quoted in Seckler-Hudson, Statelessness, 2.
66 I am indebted to Mae Ngai's remarkable essay "The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921–1965," Law and History Review 21 (2003): 69–107, especially nn. 11 and 14. In her analysis, immigration restriction makes the illegal alien; she gives relatively little attention to statelessness, although it is implicit in the situation. On the results of Nazi denationalization, see the moving testimony by a man himself stateless, Marc Vishniac, The Legal Status of Stateless Persons (New York, 1945), 34; and David S. Wyman, Paper Walls: America and the Refugee Crisis, 1938–1941 (Amherst, Mass., 1968).
67 Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants since 1882 (New York, 2004), 108. For a full history of these developments, see Leonard Dinnerstein, America and the Survivors of the Holocaust (New York, 1982), especially chap. 8.
68 Candice Lewis Bredbenner, A Nationality of Her Own: Women, Marriage and the Law of Citizenship (Berkeley, Calif., 1998), is indispensable on these matters. See chap. 4, especially 134–136.
69 Takao Ozawa v. U.S., 260 U.S. 178 (1922); U.S. v. Thind, 261 U.S. 204 (1923); and Toyota v. U.S., 268 U.S. 402 (1925).
70 The Nation 123 (August 4, 1926), cited in Bredbenner, A Nationality of Her Own, 135–136.
71 Department of International Protection, UNHCR, "Final Report Concerning the Questionnaire on Statelessness Pursuant to the Agenda for Protection," March 2004, http://www.unhcr.org/protect/PROTECTION/4047002e4.pdf (accessed January 11, 2007).
72 For an American-born woman of Chinese descent who irretrievably lost her citizenship when she married a Chinese man, see Ex parte (Ng) Fung Sing, 6 F.2d 670 (1925), and the discussion in Bredbenner, A Nationality of Her Own, 136. For the exposure to statelessness of foreign women who married U.S. men, see ibid., 157.
73 Seckler-Hudson, Statelessness, 23–99.
74 Bredbenner, A Nationality of Her Own, 174–183, 216.
75 The original agenda of the UN Commission on the Status of Women expressed a grave concern for the risks of statelessness, and a fear for the fragility of married women's nationality. I have written about this aspect of Kenyon's career in "'I Was Appalled': The Invisible Antecedents of Second Wave Feminism," Journal of Women's History 14 (2002): 86–97.
76 Convention on the Elimination of All Forms of Discrimination against Women, Article 9. Full text is found at http://www.un.org/womenwatch/daw/cedaw/cedaw.htm (accessed January 11, 2007). For an overview, see Weil, "Access to Citizenship," and on transmission of citizenship only through the father's bloodline, see Anita Fabos, "Transnational Practices of Citizenship and Gender Making for Sudanese Nationals in Egypt," Northeast African Studies 8 (2001): 47–68.
77 Convention on the Rights of the Child, 1989, Article 7. Full text is found at http://www.unhchr.ch/html/menu2/6/crc/treaties/crc.htm (accessed January 11, 2007). This is more elaborate than the provision in the International Covenant on Civil and Political Rights, 1996, Article 24.3: "Every child has a right to a nationality"; http://www.ohchr.org/english/law/ccpr.htm (accessed January 11, 2007). For a convenient digest of the rules of transmission of birthright citizenship, see Sarah Adams, 263–264. Algeria will provide birthright citizenship if the father is stateless. For a detailed account of an unsuccessful legal challenge to the rule in Bangladesh, see Kif Augustine-Adams, "Gendered States: A Comparative Construction of Citizenship and Nation," Virginia Journal of International Law 41 (2000): 93–139. For an international summary (which does not, however, list individual states), see UNHCR, "Final Report Concerning the Questionnaire on Statelessness Pursuant to the Agenda for Protection."
78 Hannah Arendt misunderstood the status of the interned, many of whom were technically enemy aliens, nationals of Japan. But she did articulate a delicious irony that I cannot help but quote here: the test of statelessness is when one would have more rights as a criminal. "A West Coast Japanese-American, who was in jail when the army ordered internment ... would not have been forced to liquidate his property at too low a price; he would have remained right where he was, armed with a lawyer to look after his interests." The Origins of Totalitarianism, 287 n. 42.
79 On Mexican migrant farm workers, and braceros in particular, see Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, N.J., 2004), chap. 4, and Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS (New York, 1999). Holly Brewer opens the large question of "What 'inalienable rights' do children have?" in By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill, N.C., 2005).
80 Trop v. Dulles, 356 U.S. 86 (1958). Mr. Trop, an army private, had escaped from the stockade in Casablanca in 1944. A day later, he was found making his way back to the base, cold, hungry, and penniless. He served three years at hard labor and received a dishonorable discharge. Some years later, he applied for a passport.
81 The principle was strengthened in 1967, when the U.S. Supreme Court held, in Afroyim v. Rusk, that "every citizen in the United States has a constitutional right to remain a citizen ... unless he voluntarily relinquishes that citizenship." The rules about what counts as voluntary relinquishment are very strict. See nn. 15 and 16 about dual citizenship above.
82 Zadvydas v. Davis, 533 U.S. 678 (2001), argued February 21, 2001. After the German government refused to admit Zadvydas, he filed this writ of habeas corpus. The district court granted the writ, finding that his detention was unconstitutional because Zadvydas was "stateless" and would be detained forever. The Fifth Circuit reversed, finding that despite five years in detention and numerous failed efforts by the INS to establish citizenship for Zadvydas somewhere, there was not yet a definitive showing that deportation would be impossible, so his detention could continue without violating the Constitution. For reflections on Zadvydas as an example of the erosion of plenary power, see Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (New York, 2006), 111–113.
83 Oral Argument, Zadvydas v. Davis; Kneedler, 47; Stansell, 7.
84 This time the Court drew on Justice Robert H. Jackson's legendary dissent in Shaughnessy v. United States ex rel. Mezei, in 1953 at the height of the Cold War, when a legal permanent resident who, after twenty-five years of quiet living in the U.S., had visited family behind the Iron Curtain found himself barred from returning, and was imprisoned indefinitely on Ellis Island. Mezei was released only after four years by a presidential "act of grace."
85 Deborah Sontag, "In a Homeland Far from Home," New York Times Magazine, November 16, 2003, 48ff.
87 The Patriot Act gave the attorney general expanded power to detain noncitizens who are suspected of terrorist activity; he is not required to notify them of the reason for detention or to share with them the evidence on which detention is based. The draft of Patriot II contemplated stripping even native-born Americans of their citizenship if they provide support for organizations marked as terrorist. For a detailed report on the leaked document, see "ACLU Fact Sheet on Patriot Act II," March 28, 2003, http://www.aclu.org/safefree/general/17383leg20030328.html (accessed January 11, 2007). In December 2004, the Law Lords, Britain's highest court, ruled that the indefinite detention of foreign terrorism suspects is incompatible with the European Convention on Human Rights. See http://hrw.org/english/docs/2004/12/16/uk9890.htm (accessed January 11, 2007). See also Mark Denbeaux, "Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data," Seton Hall Public Law Research Paper no. 46, available at Social Science Research Network, http://ssrn.com/abstact=885659 (accessed January 11, 2007). I am grateful to Elizabeth Hillman for this reference.
88 Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, Mass., 1991); T. H. Marshall, Citizenship and Social Class (Cambridge, 1950); Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in Twentieth-Century America (New York, 2001).
89 See also U.S. Department of State, "Victims of Trafficking and Violence Protection Act of 2000: Trafficking in Persons Report," June 5, 2002, http://www.state.gov/g/tip/rls/tiprpt/2002 (accessed January 11, 2007), and Center for Women Policy Studies, State Laws/Map of the United States, http://www.centerwomenpolicy.org/programs/trafficking/map/default_flash.asp (accessed January 11, 2007). Also see Judith Resnik, "Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry," Yale Law Journal 115 (2006): 1564–1670, especially n. 485.
90 Aihwa Ong, Buddha Is Hiding: Refugees, Citizenship, the New America (Berkeley, Calif., 2003), 9.
91 See UN Department of Economic and Social Affairs, The World's Women 2005, and other resources in Resnik, "Law's Migration," especially 1667 n. 510.
92 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, UN GAOR, 55th Sess., Annex 2, Agenda Item 105, at 31, UN Doc. A/RES/55/25 (2000); "Jobs and Borders: The Trafficking Victims Protection Act," Harvard Law Review 118 (2005): 2180–2202, and U.S. Department of Justice, "Report on Activities to Combat Human Trafficking: Fiscal Years 2001–2005" (2006), 75 pp., http://www.usdoj.gov/crt/crim/introduction.pdf (accessed January 11, 2007).
93 http://www.usdoj.gov/opa/pr/2003/February/03_crt_108.htm (accessed January 11, 2007); and see New York Times, April 20, 2002; and Jiang Shunzhe v. Daewoosa Samoa LTD and Kil-Soo Lee, High Court of American Samoa, Trial Division, CA 68–99. Mark Sidel, "Legal Reform in Whose Interests: Illuminations from Vietnamese Labor Export and Its Regulation" (unpublished paper delivered at Institut d'Etudes Politiques de Paris, October 2003).
94 UNHCR, "Statelessness: Prevention and Reduction." EC/57/SC/CRP6, 4.
95 Herman Melville, Redburn, His First Voyage (1849; repr., Evanston, Ill., 1969), 293; cited in Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America (Cambridge, Mass., 2006), 455.
96 Zolberg, A Nation by Design, 454–455.
97 Harlan Grant Cohen, "The American Challenge to International Law: A Framework for Debate," Yale Journal of International Law 28 (2003): 552.
98 Ralph W. Mathisen, "Peregrini, Barbari, and Cives Romani: Concepts of Citizenship and the Legal Identity of Barbarians in the Later Roman Empire," AHR 111, no. 4 (October 2006): 1040.
99 New York, 1952.
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