Author Archive for
Christina Duffy Burnett

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.

Beyond Nationalism: Reply to Professor Ngai

by Christina Duffy Burnett

Professor Ngai goes to the heart of the matter when she alludes to a literature on colonialism that takes issue with an essentializing nationalism. In my work on Degetau and on other figures of the intellectual elite of the American imperial periphery, I seek to offer an alternative to the nationalist perspective that has long dominated post-colonial historiography, in which the only legitimate anti-imperialist or “decolonizing” move belongs to the nationalist. Not only does this ignore the multiplicity of views that exist and engage with each other in the colonial periphery; it replaces them with the guilty fantasy of a liberal metropolitan intelligentsia, which, in a fit of vicarious repentance on behalf of its forebears, takes sides with the uncompromising nationalist. He alone (yes, he) can expiate the sins of empire with his strong arm, armed if needs be—and in the process take the whole mess off our hands. This bien pensant program for the remaking of the colonial world has caused as many catastrophes as it has resolved. Maybe more.

Then again, the historians of the metropole did not invent this maneuver all by themselves (nor of course do they deserve all the credit and/or blame for the phenomenon of nationalism). Degetau himself spent a great deal of his life fighting this essentializing move—and what concerned him most was the manipulation of nationalist discourse by his own generation of Puerto Rican political leaders, many of whom became increasingly enamored of the idea of “Puerto Ricanness” as the central organizing principle of political life on the island. They all started out as liberals and as “autonomists,” who confronted the Spanish government repeatedly with their demands for greater self-government for Puerto Rico, and who frequently cited the model of Canadian autonomy under the British North America Act. But Spain’s repeated rejection of their pleas for political reform had the unintended consequence of sharpening an emergent sense of Puerto Rican national identity—precisely what Spain foolishly hoped to prevent with its recalcitrance—and, inspired by this nascent sense of a distinct Puerto Rican identity, a segment of the late nineteenth century Puerto Rican autonomist leadership eventually turned against Canadian-style autonomy, and began calling with increasing stridency for a newly ethno-regional political regime. We are not Canadian autonomists, they declared; we are Puerto Rican autonomists.

Degetau was not among them. He and other like-minded autonomist leaders remained deeply skeptical of the suggestion that the political regime for which they were all struggling should have a defined ethnic content. An article published in the Puerto Rican newspaper El País on 3 November 1897 captures their reaction to the novel assertion that Puerto Rico must have “Puerto Rican” autonomy: “We don’t get it: we are Autonomist Spaniards; and because being Spanish is inherent in us, whatever form of autonomy we receive cannot alter that condition: if they give us a regime identical to the one enjoyed by Canada… will that somehow undermine what we are by our very nature—Spaniards?” (translated from the Spanish, emphasis added).

The split between the two autonomist factions not only persisted after the transfer of sovereignty to the United States, it became aggravated by the resistance of the United States to the idea of Puerto Rican statehood, a rejection which even further heightened the sense among the advocates of a specifically Puerto Rican autonomy that nothing but Puerto Rican autonomy would do. But Degetau and his colleagues persisted in their view that the goal was the implementation on the island not of Puerto Ricanness, but of liberal ideals, and that those ideals would become “Puerto Rican” if Puerto Ricans enjoyed the benefit of them. The same conviction informed Degetau’s arguments with respect to U.S. citizenship: he believed that, if they were going to live under U.S. sovereignty, then Puerto Ricans deserved U.S. citizenship quite as much as other Americans did, and he remained confident always that becoming U.S. citizens would not cost Puerto Ricans their Puerto Ricannness. Rather, it would simply make U.S. citizenship as consistent with “Puerto Ricanness” as it was with any ethnic identity. As it should be.

“They say I am not an American…”: The Noncitizen National and the Law of American Empire

by Christina Duffy Burnett

[Professor Christina Duffy Burnett is Associate Professor of Law, Columbia University]

My article in the latest issue of the Virginia Journal of International Law forms part of a larger project in which my goal is to tell a different kind of constitutional history of empire. Rather than focus on the question that has long occupied constitutional historians of U.S. imperialism—whether the Constitution “follows the flag”—I look beyond the text, and beyond the United States, in order to examine the interaction among different constitutional traditions in the context of empire in the Americas—U.S., Spanish, Cuban, Puerto Rican. In the process, I hope to enrich constitutional history in general (as well as the history of imperialism) by bringing to bear the intellectual traditions and legal perspectives of the inhabitants of the colonial periphery.

In this particular contribution to that project, I tell the story (or stories, really) behind the 1904 Supreme Court case Gonzales v. Williams. The decision in Gonzales came down several years after the United States annexed Puerto Rico and the Philippines at the end of the war with Spain in 1898. Departing from its usual practice with respect to previous territories, Congress declined to offer U.S. citizenship to the native inhabitants of these new territories. But it did not treat them as foreigners, either. Instead, Congress invented a new status for them: they became “citizens of Porto Rico” and “citizens of the Philippines.” No one knew what these sui generis labels meant: were these people implicitly citizens of the United States? Were they aliens? It seemed like they were neither, but didn’t they have to be one or the other?

Before addressing these questions, the Supreme Court dealt with the status of the territories themselves: it decided that they were neither “foreign” nor “domestic”: instead, they were “foreign to the United States in a domestic sense,” or as they later came to be known, “unincorporated territories” (because they had been annexed, but not “incorporated” into the United States). But eventually, the question citizenship found its way to the Court too, in a dispute involving a Puerto Rican woman named Isabel González. González, who was pregnant at the time of the incident giving rise to her litigation, traveled to New York from Puerto Rico in August of 1903. She was detained at Ellis Island, where immigration officials denied her entry on the ground that she was an alien immigrant “likely to become a public charge.” But González soon found powerful allies, including the prominent international lawyer Frederic R. Coudert, Jr., who took her case to the Supreme Court, and won—sort of.

The Court held that, under the immigration laws in force at the time, González was not an alien, and therefore could not be denied entry into New York. At the same time, however, the Court stopped short of declaring that she was a U.S. citizen, declining to the reach the constitutional question altogether. As a result, even after the Court took up the question of the citizenship status of the inhabitants of the new island territories, their situation remained confusing, ambiguous, and contested. Neither citizens nor aliens, they came to be known as something in between: “noncitizen nationals.”

The story of González herself is one of the stories behind the case. Very little is known about the details of her life, but she did end up staying in New York and marrying the man we understand to be the father of her baby, with whom (as best the record shows) she had come to be reunited. Another story behind the case, about which we know more, is that of Federico Degetau y González (no relation to Isabel). Degetau too was Puerto Rican, but he had encountered no difficulty in moving to the mainland: he traveled to Washington, D.C., as Puerto Rico’s first “Resident Commissioner,” or nonvoting representative. Although he was generally welcomed there and treated in many ways as if he were a citizen, he nevertheless dedicated himself to the struggle to gain U.S. citizenship, not only for himself but for all Puerto Ricans.

Degetau was a lawyer, politician, writer, and statesman with a long history of struggling for equality for Puerto Ricans. He had been one of the leaders of the “autonomist” movement in the nineteenth century, a movement dedicated to obtaining greater self-government for Puerto Rico while it was still a Spanish colony. After the United States took sovereignty over the island, Degetau became an advocate of statehood, equal rights, and full citizenship for Puerto Rico and its people. One of his many contributions to this struggle was an amicus brief he filed in González’s case.

In his brief, Degetau drew on his knowledge of Spanish history to make arguments to the Court that they were unlikely to hear from the other lawyers (whether González’s lawyer Coudert or the Solicitor General, Henry M. Hoyt). Degetau pointed out to the Court that by denying U.S. citizenship to the native inhabitants of Puerto Rico, the United States had perpetuated a form of discrimination that Puerto Ricans had suffered under Spain: geographic discrimination, under which Spaniards born on the Iberian Peninsula had rights that Spaniards born in Puerto Rico did not. With this argument, Degetau hoped to shame the Court into rectifying the unacceptable situation in which Puerto Ricans found themselves—living on U.S. territory, subject to U.S. sovereignty, but denied U.S. citizenship and the rights it implies—by comparing U.S. imperial policy with the imperial policy of Spain, which after all was supposed to be the less “enlightened” empire. But as we have seen, the Court was not persuaded: it agreed that Puerto Ricans were not aliens, but it did not conclude that they were citizens.

The legal designation that emerged out of all of this—that of the “noncitizen national”—was the product of constitutional improvisation in the face of imperial exigency. Once embarked on an imperialist quest, the United States needed some way to annex territory without necessarily expanding the ranks of U.S. citizens (or promising statehood to annexed territory). Congress obliged by inventing a novel membership category—“citizen of” such-and-such annexed territory—and the Court followed suit by declaring these territories “not incorporated,” and by allowing the liminal citizenship status of their native inhabitants to persist. In doing so, the United States failed to live up to its promise to bring the “blessings of enlightened civilization” (as General Nelson Miles put it upon landing on Puerto Rico’s shores in 1898) to the new territories. Instead, as Degetau made clear to the Court, the United States perpetuated the geographical discrimination devised by the Spanish empire, adopting it into U.S. law.

For the affected colonial subjects, this turn of events proved to be a crushing disappointment. Indeed, even the eventual conferral of U.S. citizenship on Puerto Ricans in 1917 (three years after Degetau died) would prove to be a mixed blessing, for it was done by Congress without consulting them, and it did not change Puerto Rico’s status as an “unincorporated territory.”

As a legal historian (and a Puerto Rican), I seek to contribute to the continued struggle for equality for Puerto Rico by recovering the struggles of my compatriots in the past, and remembering that their experiences, too, form part of the constitutional history of American empire. These have been my goals in telling the story of the Gonzales case through the experience of Isabel González and the arguments of Federico Degetau.