Wednesday, July 13, 2011

Rice on the History of Congressional Naturalization Legislation

It is usually difficult to get a legal history article published as a student, given the absence of blind review by law reviews.  But Daniel Rice, a prospective Duke law student, shows it can be done with his article The 'Uniform Rule' and Its Exceptions: A History of Congressional Naturalization Legislation, Ozark Historical Review, Vol. 40, 2011.  Although not characteristic of Rice's article, usually the best strategy for writing a publishable article as a student is to base it on original, and if possible, unusual archival research.  Then, like Rice, target a regional publication.  My favorite example remains Linda Grathwohl, "The North Dakota Anti-Garb Law: Constitutional Conflict and Religious Strife," Great Plains Quarterly 13 (1993): 187–202, by one of my University of Iowa legal history students (cited and summarized here).

Here's Rice's abstract:
Article 1, Section 8 of the Constitution empowers Congress "[t]o establish an uniform Rule of Naturalization." In Part I of this article, I discuss the American colonial experience with naturalization laws and account for the Naturalization Clause's inclusion in the Constitution. I then examine the historical development of Congress's "uniform rule" and deconstruct the mechanism by which certain groups have been excluded from and brought back within its reach. Lastly, I scrutinize Congress's posture towards expatriation, the logical converse of naturalization. In Part II, I ask why Congress might have thought it expedient to carve out statutory exceptions to the naturalization procedures it had earlier prescribed, and I relate the content of two major kinds of historical exceptions to those procedures: derivative citizenship for women and children and an expedited naturalization timeline for alien veterans.

My joint investigation of procedure, exclusion and reinclusion, expatriation, and exceptions should furnish the reader an ensemble of rich perspectives from which to explore Congress's unfolding exposition of the meaning of American citizenship. Congress has often used its naturalization power to achieve nakedly partisan goals, an enterprise aided by the absence of any constitutional limitations on its procedural regulations. Congress has held prospective naturalized citizens to a much higher moral and behavioral standard than natural-born Americans, refusing to naturalize perpetrators of certain practices whose domestic criminalization would be ridiculed. The indiscriminate conferral of naturalization on certain non-white groups in the antebellum period sidestepped the implied racial limitations of existing naturalization laws; Congress similarly contravened its own pronouncement in declaring the existence of a natural right - complete discretionary expatriation - yet denying Americans its full enjoyment during wartime. Naturalization laws have often been propelled by the need to eradicate absurdities and prejudicial anachronisms, one of which threatened to hinder America's prosecution of World War II. And that citizenship could be transmitted and derived only through husbands and fathers until 1934 plainly signals another way in which women have been legally subordinate to men for much of American history.