The Sovereign Citizen. Patrick Weil

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СКАЧАТЬ poison the sources of our national character and strength at the fountain, if the privilege is claimed and exercised without right, and by means of fraud and corruption.” “The body politic,” Roosevelt explained, “cannot be sound and healthy if many of its constituent members claim their standing through the prostitution of the high right and calling of citizenship.”¹³ The Naturalization Act of 1906 responded to these concerns by introducing denaturalization as a new instrument for deterring any fraud and illegality that might occur during the naturalization process.¹⁴

      Denaturalization, however, would also serve another purpose. Buoyed by a growing public discourse in favor of purifying America’s citizenry, denaturalization became a tool for the expulsion of those deemed to possess “un-American” characteristics. The U.S. government targeted those new citizens who were later discovered to be of “un-American” opinion, race, or residence and stripped them of their citizenship. Foreign-born Americans were not the only ones at risk. When denaturalization became a central part of the government’s national security policy during World War II, the 1940 Nationality Act also expanded the number of American-born citizens subject to automatic loss of citizenship. American citizenship had become conditional.

      This was precisely when the Supreme Court inserted itself into the denaturalization debate. Although intensely divided, the Court progressively reduced the scope of the federal government’s authority to revoke American citizenship. It did so, in part, by upholding free speech and procedural guarantees for foreign-born Americans. But the most significant limits on the scope of the federal government’s denaturalization authority came later, in the middle of the 1960s, when the Supreme Court began to grapple with and question the constitutionality of denationalizing native-born Americans.

      The result of these rulings was nothing short of a revolution in the definition of American citizenship—one brought about by a reversal of the traditional concept of sovereignty. There is no better way to understand how this new definition of citizenship emerged than to follow the battles that broke out on the Supreme Court, first over denaturalization, and then over denationalization. During the first half of the twentieth century, citizenship was still defined as a constellation of rights contingent on the satisfaction of certain obligations, a regime in which the law could say: “if you act this way, you will lose your citizenship.” Yet as this book reveals in great detail, through a series of fascinating and sometimes rancorous clashes between the justices of the Supreme Court, a new definition of citizenship was slowly forged. The citizen was no longer required to submit to a sovereign power able to change and nullify his or her status. American citizens, naturalized and native-born, were redefined as possessing sovereignty themselves. Citizenship had moved from an era when it was provisional, qualified, and unsecure to one in which it was nearly unconditionally guaranteed.

      The concept of citizenship has always enjoyed multiple and varying definitions, but three of its dimensions are invoked most frequently. First, citizenship is sometimes described as possessing an affective dimension: “the feeling that one belongs, is connected through one’s sense of emotional attachment, identification and loyalty.”¹⁵ In nation-states, this feeling is sustained by membership in an “imagined community,” constructed from official cultural frames of social belonging within a nation-state.¹⁶ The second dimension of citizenship is political and civic. In a democracy, adult citizens elect their representatives, while foreign residents and citizen minors participate in civil and political society in other ways. As political theorist Judith Shklar notes, this dimension of “American nationality has its own history of exclusions and inclusions, in which xenophobia, racism, religious bigotry, and fear of alien conspiracies have played their part.” Rogers Smith has masterfully explained that in this history of citizenship exclusion occurs from within the bounds of formal nationality, as the tales of women and the descendants of American slaves show.¹⁷

      Although the affective and civic notions of citizenship will appear occasionally, it is the third, legal, dimension of citizenship that is the focus of this book. The legal dimension of citizenship reflects the formal linkage of each individual to the nation-state. It is manifested in the passports and national identification documents that confer the official status of national citizen on roughly 99 percent of all human beings. Legal citizenship exists independently of an individual’s sense of belonging or degree of participation in national and patriotic institutions.¹⁸

      This book’s investigation of denaturalization may not tell the entire history of American citizenship since 1906, but it does illuminate a significant yet overlooked aspect of it. By focusing on the practice of denaturalization and applying a micro-historical approach to the laws surrounding and institution of naturalization, I was able to discover phenomena that had not previously been observed and to uncover details and broader trends that have not previously been written about. Reducing the scale of observation and engaging in an intensive study of archival materials¹⁹ allows this book to reveal what were unknown dimensions of American political development and to unearth “how, and with what effect, American citizenship has changed over time”²⁰ In doing so, this study of denaturalization sheds light on three broader social historical phenomena, which are developed, respectively, in the three sections of this book.²¹

      As I describe in Part I, beginning in 1906 denaturalization provisions were established as the primary mechanism through which the government could exert control over citizenship status after it had been conferred by a court. Originally, this federal intervention in the citizen-making process served two principal purposes: deterring the fraud and illegality that could occur in naturalization and, at the same time, preserving a system for conferring American citizenship on foreigners by (mainly state) courts. But the competition for authority over the naturalization process—held simultaneously by state and federal courts as well as by various executive agencies (including the Departments of Justice and Labor), to say nothing of the specialized committees of Congress that also influenced naturalization procedures—created opportunities for changes.²²

      Denaturalization became an instrument through which the Division of Naturalization (later the Immigration and Naturalization Service), created in 1906, consolidated its power. The threat of denaturalization proceedings accelerated the transfer of the management of naturalization applications from the judiciary to the Division of Naturalization. This uneven trend, which proceeded through multiple stages, accompanied the transformation over time of naturalization from an institution largely controlled at the state-level into one entirely managed by an extensive federal bureaucracy.²³ The federalization of American citizenship was fully realized when responsibility over naturalization was transferred from the Department of Labor to the Department of Justice. Interestingly, the original target of these denaturalization proceedings was emphatically not the individuals being denaturalized: the denaturalized were often encouraged to reapply for citizenship. Rather, the government’s real interest was in the institution of naturalization, which it wanted to purge of fraud and illegality, and misbehaving courts, which the government wanted to force in line.

      At precisely the same moment that the federal government was consolidating its authority, the use of denaturalization as a tool for ridding the American citizenry of “undesirables” surged to the forefront. This brand of denaturalization was not entirely novel: it originated in 1907 as part of a restrictive and racist immigration policy illustrating the rise of a “conditional citizenship.”²⁴ New Americans could lose their citizenship if they violated certain standards not applied to the native-born: if a naturalized citizen was Asian, spoke out against war, was a Socialist, a Communist, or a fascist, or lived abroad, she risked the loss of her American citizenship. As I describe in Part II, these grounds rapidly became the primary justifications for denaturalization. They were rooted in both the explicit wording of statutes (for example, in the case of residence abroad), as well as in extensive interpretations of the law by the executive branch and the courts as a means for assessing loyalty to the United States. These interpretations left open the possibility of an ongoing evaluation of a new citizen’s allegiance to the United States.

      Yet three СКАЧАТЬ