Thursday, July 10, 2008

Burnett on The Noncitizen National and the Law of Empire

"They say I am not an American...": The Noncitizen National and the Law of American Empire is a new article by Christina Duffy Burnett, Columbia Law School. It appears in the Virginia Journal of International Law. There's no abstract, but Burnett blogs about the article at Opinio Juris, where there are responses by Mae Ngai, Dept. of History, Columbia, and Sam Erman, University of Michigan. Highly recommended for anyone interested in American Empire and in global approaches to U.S. legal history.

Burnett's post begins:
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.

The post continues here. Mae Ngai's response is here, with a reply from Burnett. Sam Erman comments here, and Burnett repies.

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