Second-Class Citizens, Naked Nationals: Reply to Sam Erman

by Christina Duffy Burnett

In his generous response to my article, Sam Erman rightly points to the importance of understanding the intersection between the Gonzales case and other struggles over citizenship that were unfolding even as Isabel González tried to make her way to New York City from her native Puerto Rico. Ngai’s book Impossible Subjects is a good place to start in order to learn about those other struggles; Erman’s valuable new article is where one must turn if one wants to make the connections between the Gonzales case and the broader history of membership in the United States. My own future work, I hope, will make additional contributions to this literature. In particular, I am currently up to my neck in a study that aims to enhance our understanding of the relationship between the history of U.S. citizenship and the history of nationality in international law. I therefore appreciate Erman’s well-placed suggestion that a more extended treatment of citizenship, the Constitution, and international law than the one I offer in my article on the Gonzales case would be welcome.

My work-in-progress looks at the emergence of the category of the noncitizen national (before its adoption into domestic U.S. law) in the work of nineteenth century authorities on international law. Toward the late nineteenth century, international legal experts became increasingly concerned that divergent domestic legal regimes governing citizenship gave rise to conflicts that could not be solved without clear and authoritative international legal rules. Their concerns included, but were not limited to, problems associated with statelessness, coverture (which could lead to a wife’s loss of her citizenship, even if she could not acquire her husband’s citizenship), and territorial conquest and annexation (which had consequences for the nationality of the inhabitants of the affected territory). These and other problems did not lend themselves to domestic legal solutions, because the relevant domestic legal regimes were either silent or in conflict. And so late nineteenth-century international lawyers took up the project of crafting a modern international law of nationality, attempting to capture the bond between the individual and the state at its most essential level (one writer used the phrase “naked nationality” to describe what fell within the purview of international law).

These developments shed light not only on the law of membership on an international level, but also on the interaction between international and domestic law more generally. It was a fruitful interaction to be sure, but one that could also have perverse results. International lawyers in this period did not merely hope to develop a particular area of international law; their broader goal was to promote respect for international law itself, and to invest it with authority. To do so, they had to carve out a space subject to the jurisdiction of international law, comprising whatever was not strictly “domestic.” In the process, they duly declared a distinct, domestic space off-limits to international law. In the context of nationality, this meant that they carefully refrained from questioning domestic rules creating hierarchies of political membership: on the contrary, authorities on international law borrowed the idea of partial political membership, devoid of the full rights of citizenship (“naked,” as it were), from the domestic practices of imperial states, and distilled from that idea the category of nationality under international law. As all of this suggests, the cost of carving out a space for international law was the uncritical acceptance of practices characterized as “domestic.”

My ongoing work on the international legal history of nationality examines this legitimizing dynamic as it played out in the United States: its own imperial practices contributed to international legal developments, and these developments in turn helped to shape a changing domestic constitutional landscape—in the process giving sanction to those very same imperial practices. To put it in more specific terms, this is the dynamic we can see playing out in the events surrounding the Gonzales case: the writers of international legal treatises looked to second-class citizenship in the United States, and to analogous statuses in other empires, in coming up with the idea of the noncitizen “national”; the United States then borrowed that label from international law, and applied it to Puerto Ricans and Filipinos.

Despite the newfangled nomenclature, not everyone, of course, was convinced of the “legitimacy” of this new status—least of all those upon whom it was conferred. Their arguments against their colonial condition would draw on international law as well—specifically, on the right to self-determination. And so the story continues.

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