The Sovereign Citizen. Patrick Weil
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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 of the principal grounds for denaturalization—residence abroad, race, and political belief—would ignite a series of conflicts within the executive branch (among the Justice, State, and Labor Departments) and the courts, which until 1940 had limited the scope of expatriation. But when World War II broke out, denaturalization, together with Congress’s denationalization of numerous American-born citizens, moved from the margins of the U.S. government’s policy to the front and center. Under the personal supervision of Francis Biddle, President Franklin Roosevelt’s Attorney General, denaturalization became an integral part of a proactive program by the Justice Department to bolster national security against threats from America’s “enemies.”
However, as I detail in Part III, even as the United States was caught in the upheaval of World War II, the Supreme Court intervened and began to reduce the scope of the federal government’s denaturalization authority. Before the outbreak of war, the Supreme Court had backed the authority of the executive to pursue the denaturalization of new Americans for failing to adhere to a myriad of legal minutiae, from the form of naturalization applications, to the duration of U.S. residence, to the age of their arrival in the United States. After 1943, however, the Supreme Court reversed course and began protecting denaturalized individuals. The first of these trailblazing new decisions was issued in 1943, in favor of William Schneiderman, the Secretary of the Communist Party in California. It was followed in 1944 by an even more surprising ruling to save Hugo Baumgartner, a former German citizen accused of harboring Nazi sympathies, from losing his American citizenship.
The Schneiderman and Baumgartner decisions put an end to America’s World War II denaturalization program. Yet denaturalization remained available on a number of grounds. The scope of the government’s denaturalization power would not be further reduced until the Supreme Court later