Presidential address the stateless as the citizen's other: A view From the United States

American Historical Review

Volumn 112, Issue 1, 2007, Pages 1-34

  Kerber, Linda K ^a,b,c  

^a Department of Liberal Arts and Sciences ^*

^b UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

^c UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34047136020     PISSN: 00028762     EISSN: None     Source Type: Journal    
DOI: 10.1086/ahr.112.1.1     Document Type: Review

References (163)

1. Kaori O'Connor, "Introduction," in Pierre Loti, Madam Chrysanthemum (1901; repr., London, 1985), viii, 335.
2. John Luther Long, Madame Butterfly, chap. 10,
3. originally published in Century Illustrated Magazine, January 1898;
4. reprinted in Maureen Honey and Jean Lee Cole, eds., Madame Butterfly and A Japanese Nightingale: Two Orientalist Texts (New Brunswick, N.J., 2002).
5. Vera Mackie, "Feminist Critiques of Modern Japanese Politics," in Bonnie Smith, ed., Global Feminism since 1945 (London, 2000), 182-183, 190.
6. 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.
7. 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).
8. Tuan Ahn Nguyen v. INS, 533 U.S. 53 (2001).
9. I have written about this case in "Top Court Took a Step Backward on Gender Bias," Boston Globe, June 23,2001,
10. and "Toward a History of Statelessness in America," American Quarterly 57 (September 2005): 727-749.
11. 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.
12. Nguyen, 53, 60, 65-66,
13. 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.
14. See Lehr v. Robertson, 463 U.S. 248 (1983).
15. 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).
16. 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.
17. Nguyen, Brief for Respondent, 8.
18. Ibid., 19, 36.
19. Ibid., 42.
20. Nguyen, 65.
21. United States v. Ahumada-Aguilar, 189 F.3d.1121 (9th Cir. 1999).
22. 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 parentand 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.
23. Arjun Appadurai, "Patriotism and Its Futures," Public Cultures 5, no. 3 (1993): 423-424;
24. Aihwa Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Durham, N.C., 1999);
25. 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.
26. 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): 10-12.1 am grateful to Stanford Ross for this point.
27. 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),
28. especially Martin, "Introduction: The Trend toward Dual Nationality," 3-18;
29. and Aleinikoff and Klusmeyer, From Migrants to Citizens, especially Miriam Feldblum, "Managing Membership: New Trends in Citizenship and Nationality Policy," 475-499.
30. Afroyim v. Rusk, 387 U.S. 253 (1967);
31. Vance v. Terrazas, 444 U.S. 252 (1980).
32. 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.
33. 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.
34. 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).
35. 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).
36. 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.
37. Universal Declaration of Human Rights, 1948, Article IS; Convention Relating to Stateless Persons, Article 32; UNHCR, "Statelessness in Canadian Context," 8.
38. 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).
39. 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).
40. 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, "Birth-right 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).
41. 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.
42. 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).
43. 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."
44. Carol Batchelor, "Stateless Persons: Some Gaps in International Protection," International Journal of Refugee Law 7, no. 2 (1995): 232-259.
45. Legomsky, "Why Citizenship?" 299-300.
46. Edward Everett Hale, The Man without a Country (Boston, 1865),
47. 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,
48. 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.
49. 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."
50. Hannah Arendt, The Origins of Totalitarianism (New York, 1951).
51. For a judicious assessment, see Lex Takkenberg, The Status of Palestinian Refugees in International Law (Oxford, 1998),
52. 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.
53. 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;
54. 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,
55. 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.
56. 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).
57. 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.
58. 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.
59. 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,
60. see UNHCR, "Refugees 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 Kaikaesque 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."
61. See UNHCR, "Statelessness in Canadian Context," 16.
62. 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."
63. Kevin Bales, Disposable People: New Slavery in the Global Economy (Berkeley, Calif., 2004), 9;
64. stunning photographs are included in Andrew Cockburn, "21st Century Slaves," National Geographic 204 (September 2003): 2-25.
65. 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).
66. Jacqueline Bhabha, "Demography and Rights: Women, Children, and Access to Asylum," International Journal of Refugee Law 16 (2004): 232, 235;
67. 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.
68. Arendt, The Origins of Totalitarianism, 291-293.
69. 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,
70. see John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge, 2000), chap. 1.
71. 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.
72. James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill, N.C., 1978), chap. 7;
73. Torpey, The Invention of the Passport, 95.
74. 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;
75. and Gould, "States, Statelessness and the Law of Nations in the British Atlantic, circa 1756" (unpublished paper, American Society of Legal History, 2005).
76. 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.
77. See Christopher Tomlins, "The Threepenny Constitution (and the Question of Justice)," forthcoming in Alabama Law Review.
78. "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.
79. Arendt, The Origins of Totalitarianism, 296.
80. Dred Scott v. Sanford, 60 U.S. 393 (1856).
81. See also Mark Janis, "Dred Scott and International Law," Columbia Journal of Transnational Law 43 (2005): 763.
82. Worcester v. Georgia, 31 U.S. 515 (1832).
83. U.S. v. Rogers, 45 U.S. 567 (1846).
84. Worcester v. Georgia.
85. Cherokee Nation v. the State of Georgia 30 U.S. 1 (1831).
86. 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.
87. Elk v. Wilkins, 112 U.S. 94 (1884).
88. 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).
89. Martin v. Commonwealth, l Mass. 347 (1805).
90. 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.
91. 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.
92. See Mackenzie v. Hare, 239 U.S. 299 (1915),
93. upholding the denationalization of American women who married aliens. John L. Cable, Decisive Decisions of United States Citizenship (Charlottesville, Va., 1967), 41-42;
94. New York Times, May 4, 1918.
95. 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.
96. Downes v. Bidwell, 182 U.S. 244 (1901); note Justice John Marshall Marian's eloquent dissent.
97. Torpey, The Invention of the Passport, 4.
98. Most of those who entered at Angel Island in San Francisco did have to meet the registration requirements of the Chinese Exclusion Acts.
99. For the Nansen Passport, see Arendt, The Origins of Totalitarianism, especially 281 n. 30;
100. 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.
101. 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.
102. 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,
103. quoted in Seckler-Hudson, Statelessness, 2.
104. 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,
105. Marc Vishniac, The Legal Status of Stateless Persons (New York, 1945), 34;
106. and David S. Wyman, Paper Walls: America and the Refugee Crisis, 1938-1941 (Amherst, Mass., 1968).
107. Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants since 1882 (New York, 2004), 108.
108. For a full history of these developments, see Leonard Dinnerstein, America and the Survivors of the Holocaust (New York, 1982), especially chap. 8.
109. 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.
110. Takao Ozawa v. U.S., 260 U.S. 178 (1922);
111. U.S. v. Thind, 261 U.S. 204 (1923);
112. and Toyota v. U.S., 268 U.S. 402 (1925).
113. The Nation 123 (August 4, 1926),
114. cited in Bredbenner, A Nationality of Her Own, 135-136.
115. 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).
116. 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),
117. and the discussion in Bredbenner, A Nationality of Her Own, 136. For the exposure to statelessness of foreign women who married U.S. men,
118. see ibid., 157.
119. Seckler-Hudson, Statelessness, 23-99.
120. Bredbenner, A Nationality of Her Own, 174-183, 216.
121. 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.
122. 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,
123. see Weil, "Access to Citizenship," and on transmission of citizenship only through the father's bloodline,
124. see Anita Fabos, "Transnational Practices of Citizenship and Gender Making for Sudanese Nationals in Egypt," Northeast African Studies 8 (2001): 47-68.
125. 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).
126. 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,
127. see Kif Augustine-Adams, "Gendered States: A Comparative Construction of Citizenship and Nation," Virginia Journal of International Law 41 (2000): 93-139.
128. 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."
129. 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.
130. On Mexican migrant farm workers, and braceros in particular, see Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modem America (Princeton, N.J., 2004), chap. 4,
131. and Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS (New York, 1999).
132. 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).
133. 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.
134. 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.
135. 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,
136. see Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (New York, 2006), 111-113.
137. Oral Argument, Zadvydas v. Davis; Kneedler, 47; Stansell, 7.
138. 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."
139. Deborah Sontag, "In a Homeland Far from Home," New York Times Magazine, November 16, 2003, 48ff.
140. http://www.nsgtmo.navy.mil/htmpgs/gtmohistory.htm (accessed January 11, 2007).
141. 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.
142. See http://hrw.org/english/docs/2004/12/16/uk9890.htm (accessed January 11, 2007).
143. 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.
144. Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, Mass., 1991);
145. T. H. Marshall, Citizenship and Social Class (Cambridge, 1950);
146. Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in Twentieth-Century America (New York, 2001).
147. 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),
148. 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).
149. 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.
150. Aihwa Ong, Buddha Is Hiding: Refugees, Citizenship, the New America (Berkeley, Calif., 2003), 9.
151. 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.
152. 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,
153. 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).
154. http://www.usdoj.gov/opa/pr/2003/February/03_crt_108.htm (accessed January 11, 2007);
155. and see New York Times, April 20, 2002;
156. 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).
157. UNHCR, "Statelessness: Prevention and Reduction." EC/57/SC/CRP6, 4.
158. Herman Melville, Redburn, His First Voyage (1849; repr., Evanston, Ill., 1969), 293;
159. cited in Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America (Cambridge, Mass., 2006), 455.
160. Zolberg, A Nation by Design, 454-455.
161. Harlan Grant Cohen, "The American Challenge to International Law: A Framework for Debate," Yale Journal of International Law 28 (2003): 552.
162. 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.
163. New York, 1952.