Can you fill in the blanks for me on this 19th century US citizenship law?
March 13, 2011 12:25 PM   Subscribe

I recall reading somewhere about a 19th century American law whereby a child born in the US would be a citizen only if the father was a citizen and the child was male. It applied either to all non-whites or to only asians. I can't seem to find this anywhere. . . probably because I can barely remember the details! Does this ring a bell for anyone?
posted by abirdinthehand to Society & Culture (11 answers total)
Are you thinking of the Chinese Exclusion Act, perhaps?
posted by vacapinta at 12:28 PM on March 13, 2011

I suspect you may have ingested some birtherism, as this idea has been circulating in birther circles for a while. Here's some information from Salon:
Myth 2: Obama can't be president because his father was a British citizen

Some of the Birthers -- like de facto leader Orly Taitz -- believe that Obama wouldn't be eligible for the presidency even if he were born in the U.S. That's because, in their infinite wisdom, the Founding Fathers included in the Constitution a fair amount of phrases they never really bothered to define. One of those is this explanation of who can be president: "No person except a natural born citizen."

The Supreme Court has never ruled directly on the question of what "natural born citizen" means. So the Birthers have simply settled on their own definition -- someone born to two citizen parents -- and found a source,"The Law of Nations," a 1758 book by the Swiss philosopher Emerich de Vattel, to back them up.

There are a couple of problems with this. Most important, Obama isn't the first president with a non-citizen parent: Chester A. Arthur, the 21st president, was. His father was from Ireland and apparently did not become a U.S. citizen until more than 10 years after the future president's birth.

Plus, even if the Founding Fathers did rely on Vattel as much as the Birthers say -- always a dubious proposition -- Swiss philosophy books aren't legal precedent in the United States. British common law is. And in 1898, in the case of U.S. v. Wong Kim Ark, the Supreme Court looked into the meaning of "natural born" in the common law and concluded that a non-citizen's mere presence in the U.S. is enough to make their child, if born here, a natural-born citizen.
posted by gerryblog at 12:29 PM on March 13, 2011 [1 favorite]

Also see:

The Naturalization Act of 1790
This law limited naturalization to immigrants who were "free white persons" of "good moral character". It thus, left out indentured servants, slaves, free blacks, and later Asians.

The Wong Kim Ark case
posted by vacapinta at 12:32 PM on March 13, 2011

Response by poster: gerryblog- thanks for the info, but this is not about Obama at all. The law I'm thinking of is most certainly no longer in force. I've just been reading up on US history of immigration all over the place and found this law or act interesting because of its gender discrimination. However, I have been unable to relocate its source.

Looking over vacapinta's links I think it must have been from 18th century.

Maybe it was the Naturalization Act of 1790, which says that citizenship is inherited through the father only, and I just imagined the part about the child also having to be male.
posted by abirdinthehand at 12:56 PM on March 13, 2011

A little digging on Wikipedia reveals that by the aftermath of the Civil War, the language used in legislation (and constitutional amendments) on the matter of citizenship is "persons", not "men". So you'd be looking for something before either the Fourteenth Amendment or the Civil Rights Act of 1866.

The Chinese Exclusion Act happened in 1882, so it's highly unlikely that it granted citizenship to men and not women.

I'm thinking the suggestion of the Naturalization Act of 1790 might be more on target.
posted by Sara C. at 1:07 PM on March 13, 2011

The principle that you are referring to is known as jus sanguinis. That may help in the google search.
posted by quodlibet at 1:49 PM on March 13, 2011

Presumably you know that any such law became moot after the ratification of the 14th Amendment in 1868.
posted by Chocolate Pickle at 3:33 PM on March 13, 2011

I don't know any name for the law, but up until 1922 any woman who married automatically took her husband's citizenship --- this is, for instance, how my own grandmother (emigrated to the US from Luxembourg in 1902, married my Pennsylvania-born grandfather in 1910) became an American. If a US woman married, say, a Frenchman, the same rule also worked, and she would lose her US citizenship and automatically become French. Perhaps you're thinking of a variation of this old law?

(As far as Obama goes, I believe this is another of the Birthers beliefs: that because his mother married a foreign national she lost her US citizenship --- which is false, because that law was changed in 1922: not merely long before she married Obama Sr, but long before either of Obama's parents was even born!)
posted by easily confused at 4:41 PM on March 13, 2011

(Oh yeah: and with that pre-1922 law, the children, both male and female, all took their father's citizenship.)
posted by easily confused at 4:43 PM on March 13, 2011

and with that pre-1922 law, the children, both male and female, all took their father's citizenship

According to the Fourteenth Amendment, this could only be true if they were born outside the US. Any person born in the United States is a US citizen by birth. Period.

This is a really interesting explanation of the citizenship issue for women prior to 1922. The upshot seems to be that the only women really affected by the policy at that time were white women who married immigrant men who were not eligible for naturalization, i.e. non-white men. (A woman whose husband became a US citizen after their marriage would get her citizenship back, of course.) Fascinating stuff...
posted by Sara C. at 4:59 PM on March 13, 2011

Response by poster: Thanks for the link Sara C., very interesting stuff.

I'm going to assume that I misremembered the naturalization act, where citizenship is passed down through the father, as the child also having to be male in order to gain citizenship. Although part of me is still certain that this is in fact what I read, I cannot find such a thing anywhere.

On a side note, the intersection with the Birther thing was interesting, as it is something I've been completely ignoring. I just think that, despite how far we've come (and how far we have to go), it's important to remember where we've come from and how this history shapes our world today.

Thanks everyone!
posted by abirdinthehand at 4:02 PM on March 15, 2011

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