Tag: McCarran-Walter Act (1952)

U.S. First Congress: Establishment of Racial Categories for the U.S. Census and Citizenship Naturalization, 1790

Important tasks for the First Congress of the U.S. were establishing the requirements for the first census of the country and for becoming a citizen by naturalization. [1]

Anyone who has studied any American history knows that slavery existed at the adoption of the U.S. Constitution in 1788 and that the Constitution’s original Article I, Section 2 apportioned representatives in the House of Representatives “according to their respective Numbers, which shall be determined by adding to the number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons [i.e., slaves].” (Emphasis added.)[2]

Therefore, it should not be surprising that the very First Congress of the U.S. enacted a statute for the first U.S. census and a statute establishing requirements for becoming a naturalized U.S. citizen, both of which distinguished between “white” individuals and “slaves.” Nevertheless, it was still startling for me to discover these two statutes and the subsequent history of these aspects of U.S. law.

The First U.S. Census

On March 1, 1790, the First Congress enacted a statute that established the following categories for the first enumeration or census: “Free white males of sixteen years and upwards, including heads of families; Free white males under sixteen years; Free white females, including heads of families; All other free persons; and Slaves.” (Emphasis added.) It also called for identifying an individual’s occupation.[3]

These provisions were not controversial. There, however, was controversy, according to Fegus Bordewich, over whether the first census “was too ambitious, too detailed, and subdivided the population into [occupational] ‘classes too minute’” and was too invasive of privacy. (P. 196)

The First Naturalization Statute

On January 8, 1790, President George Washington delivered the first State of the Union address, in which he said, “Various considerations also render it expedient that the terms on which foreigners may be admitted to the rights of citizens should be speedily ascertained by a uniform rule of naturalization.”(P. 180) [4]

Thereafter the members of the First Congress debated whether an oath of allegiance should suffice, whether there should be a residence requirement, whether there should be a national or a state-by-state requirement and whether foreign seamen could easily become citizens. The answer to these fears apparently was provided by Virginia’s Representative John Page, a large slave owner: “’It is nothing to us whether Jews, or Roman Catholics, settle amongst us; whether subjects of kings or citizens of free states wish to reside in the [U.S.], they will find it their interest to be good citizens; and neither their religious or political opinions can injure us, if we have good laws, well executed.’” (Pp. 196-97)

On March 26, 1790, the First Congress enacted a statute that limited naturalization to an “alien, being a “free white person.”(Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship. Other requirements were being a “resident” for one year of a state, possessing “good character,” and having taken “an oath or affirmation . . . to support the constitution of the [U.S.].” [5]

As discussed in another post, the “white” racial category (with subsequent additions of other racial categories) for naturalization remained in U.S. statutes until 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.” [6]

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[1] See generally The U.S. First Congress: Overview, 1789-1791, dwkcommentaries.com (Feb. 15, 2017); Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster, New York, 2016)[the above text of this post cites to to specific pages of this book].

[2]  The above provision of the original Constitution was deleted by Section 2 of the Fourteenth Amendment thereto, which was adopted after the Civil War in 1868 and which states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

[3] An Act providing for the enumeration of the Inhabitants of the United States, 1 Stat. 101 (1790), U.S. Constitution.  The “white” category has been used in every decennial census through 2010 while “slave” was used through 1840.

[4] President Washington, State of the Union Address,  (Jan. 8, 1790), presidency.ucsb.edu/was/?pid=29431 , http:www.

[5] An Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790),

[6] Long History of Racism in U.S. Laws Regarding United States Citizenship, dwkcommentaries.com (June 24, 2016).

Long History of Racism in U.S. Laws Regarding United States Citizenship

To my great amazement, I recently have discovered that the United States has had a long history of racism in its statutes regarding U.S. citizenship. In the words of Blum and Haney-Lopez, “From this country’s inception [in 1789-1790], the laws regulating who was or could become a citizen were tainted by racial prejudice. Birthright citizenship, the automatic acquisition of citizenship by virtue of birth, was tied to race [from 1790] until 1940. Naturalized citizenship, the acquisition of citizenship by any means other than through birth, was conditioned on race [from 1790] until 1952.”[1]

The following is a brief summary of these laws.

Birthright Citizenship

“The U.S. Constitution as ratified did not define the citizenry, probably because it was assumed that [U.S. law included] the English common law rule of jus soli,” i.e., “citizenship accrues to ‘all’ born within a nation’s jurisdiction.”

The Supreme Court, however, in its now infamous 1857 decision in the Dred Scott case held that Scott, an enslaved Negro of the African race whose ancestors were brought to the U.S. and sold as slaves, and all other Blacks, free and enslaved, were not and never could be citizens because they were a “subordinate and inferior class of beings.” Therefore, Scott did not have standing to sue in federal court to claim a right to his freedom. (Scott v. Sanford, 60 U.S. 393 (1857).)

This was changed after the Civil War in the Civil Rights Act of 1866, 14 Stat. 27 (1866), which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” This was confirmed in Section 1 of the Fourteenth Amendment to the U.S. Constitution, adopted in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” https://www.law.cornell.edu/constitution/amendmentxiv

This statute and constitutional amendment, however, left two minorities in the cold on birthright citizenship.

The first group was children born in the U.S. to non-citizen parents. Their status was unclear until the U.S. Supreme Court in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), held that such children were birthright citizens of the U.S.

The second group was Native Americans who were born in the U.S. Here, the Supreme Court rendered a negative opinion in 1884 in Elk v. Wilkins, 112 U.S 94 (1884). It held that Native Americans owed allegiance to their tribes and thus did not acquire U.S. citizenship upon birth.

Thereafter Congress granted such citizenship in piecemeal fashion, tribe by tribe, until 1924, when it enacted the Indian Citizenship Act (Snyder Act), 43 Stat. 233 (1924), which stated “that all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”

This statute, however, left unclear whether it covered individuals born after its effective date. That issue was finally resolved in section 201(b) of the Nationality Act of 1940, which stated, “The following shall be nationals and citizens of the United States at birth . . . A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.”

Citizenship by Naturalization

Although the Constitution, as just noted, did not originally define the citizenry, it did make an explicit grant of authority to Congress to establish the criteria for granting citizenship after birth. That is found in Article I, Section 8 of the Constitution, which provides that Congress has the power “To establish an uniform Rule of Naturalization.” From the very start in 1789-1790 through 1952, Congress exercised this power in a manner that burdened naturalization laws with racial restrictions that tracked those in the law of birthright citizenship. This history can be seen in two periods: 1790-1870 and 1870-1952.

1790-1870

In 1790, only a few months after ratification of the Constitution, the very First Congress of the U.S. adopted the “Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790). It provided that naturalization was limited to immigrants who were “free white persons of good character.” (Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship.

This sole requirement of being a “white person” for naturalization remained in the U.S. statutes until after the Civil War in 1870 when Congress adopted a statute that made it possible for naturalization for “aliens of African nativity and to persons of African descent.” This was contained in section 7 of An Act to amend the Naturalization Laws and to punish Crimes against the same, and for other purposes,” 16 Stat. 254 (1870).

In the 1870 congressional debate over this change, Senator Charles Sumner argued that racial barriers to naturalization should be struck altogether. However, racial prejudice against Native Americans and Asians forestalled the complete elimination of the racial prerequisites. For example, one senator argued against conferring “the rank, privileges, and immunities of citizenship upon the cruel savages [Native Americans] who destroyed [Minnesota’s] peaceful settlements and massacred the people with circumstances of atrocity too horrible to relate” in the U.S.-Dakota War of 1862.[2] Another senator wondered “’whether this door’ [of citizenship] shall now be thrown open to the Asiatic population,’ warning that to do so would spell for the Pacific coast ‘an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out.’”

1870-1952

Thus, as of 1870, being either “white” or “African nativity or descent” was a requirement for naturalization, and these options remained in U.S. law until 1952.

Other individuals, particularly those from Asia, were not eligible with this 1870 change in the law. Moreover, starting in 1882, Congress passed a series of laws that specifically excluded from naturalization individuals from China, Japan, India and the Philippines although the laws never specifically labeled them as “Asians” or “Orientals” or another supposed racial category. Thus, in 1922, the U.S. Supreme Court in Ozawa v. United States, 260 U.S. 178 (1922), held that a Japanese man was not “white” or Caucasian and thus ineligible for naturalization.

The next year in Thind v. United States, 261U.S. 204 (1923), the Court decided that an immigrant from India was not “Caucasian” and thus not eligible for naturalization. Important for the Court was the criterion of assimilability to separate the desirable immigrants from the undesirable ones: Asian Indians were distinguished from the swarthy European immigrants, who were deemed ‘readily amalgamated’ with the immigrants ‘already here.’

This limitation of naturalization to persons who were “white” or “African nativity or descent” eroded during World War II as a result of political pressures on the U.S. associated with its well-founded opposition to the horrendous racism of Nazism. In 1940 eligibility was extended to “descendants of races indigenous to the Western Hemisphere;” in 1943, to Chinese persons; and in 1946, to persons from the Philippines and India.

Thus, at the end of World War II, U.S. laws permitted naturalization for:

  • (1) white persons. persons of African nativity or descent, and persons of races indigenous to the continents of North or South America or adjacent islands and Filipino persons or persons of Filipino descent;
  • (2) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (1);
  • (3) Chinese persons or persons of Chinese descent; and persons of races indigenous to India; and
  • (4) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (3) or, either singly or in combination, as much as one-half blood of those classes and some additional blood of one of the classes specified in clause (1).

All of this complexity was eliminated in 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.”

Conclusion

 Although I was a history major at an excellent U.S. college, studied law for three years at a prominent U.S. law school, practiced law for 35 years, including some exposure to U.S. immigration law, and taught in another prominent law school for nine years, I am embarrassed to admit that until recently I was unaware of this history of racism in U.S. laws regarding U.S. citizenship beyond the post-Civil War changes regarding African-Americans.

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[1] Except for specific statutes cited and discussed, this account is primarily based upon Blum & Haney-Lopez, Racial Restrictions in the Law of Citizenship, Ch. 2. See also Braziel, History of Migration and Immigration Laws in the United States (Spring 2000).

[2] Prior posts to dwkcommentaries.com have discussed the U.S.-Dakota War of 1862: (1) The U.S.-Dakota War of 1862 (Nov. 3, 2012); (2) Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862 (May 21, 2013); ; (3) White Settler’s Contemporaneous Reaction to the U.S.-Dakota War of 1862 (Nov. 6, 2012); (4) U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862 (June 11, 2013); (5) President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians (June 24, 2013); (6) Commemoration of the 150th Anniversary of the U.S.-Dakota War of 1862 (Nov. 9. 2012); (7) Commemoration of the 150th Anniversary of the Hanging of the “Dakota 38” (Dec. 26, 2012); (8) Minneapolis and St. Paul Declare U.S.-Dakota War of 1862 “Genocide” (Jan 12, 2013); (9) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part I) (Nov. 18, 2012); (10) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part II) (Nov. 25, 2012); (11) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part III) (Nov. 29, 2012); (12) Personal Reflections on the U.S.-Dakota War of 1862 (Dec. 10, 2012).