Monday, December 09, 2019

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Abstract

Excerpted from: Deenesh Sohoni and Amin Vafa , The Fight to Be American: Military Naturalization and Asian Citizenship, 17 Asian American Law Journal 119 (2010) (Footnotes) (Full Document)

 

Military AsianIn 1908, a district court in the state of Washington denied Buntaro Kumagai's application for naturalization on the basis of his racial status as Japanese. In his opinion, Judge Hanford held that Congress had limited “the privilege of naturalization to white people,” with the sole exception occurring in the aftermath of the Civil War, when, “in view of the peculiar situation of inhabitants of African descent, the laws were amended so as to permit the naturalization of Africans and aliens of African descent.” What makes Kumagai's case historically important is not that he was denied U.S. citizenship based on his racial status as “non-white” (because members of many different Asian immigrant groups had been denied citizenship on similar grounds previously), but instead that he sought to naturalize based on his service in the U.S. Army.

Over forty years earlier, with passage of the Act of July 17, 1862, Congress had authorized the naturalization of “aliens” honorably discharged from U.S. military service. It was under the provisions of this Act that Kumagai sought to gain citizenship. However, despite evidence provided by Kumagai that he had served honorably in the U.S. Army, the district court in Washington ruled that the racial restrictions governing naturalization in the Act of February 18, 1875, took precedence over those of military naturalization. This legal conflict between military and race-based naturalization reflected a broader tension that existed, and still exists, within American society regarding U.S. citizenship. That is, the contrast between the ideological underpinnings of U.S. citizenship as universal and inclusive based on natural rights and principles of equality with U.S. policies, and practices that frequently promote racial differentiation and exclusion.

Because citizenship is the dominant form of defining collective identity in modern societies, “struggles over citizenship's meanings are, in fundamental respects, struggles over competing normative visions of collective life.” Scholars of immigration, race, and nationality, therefore, utilize citizenship as a key concept to examine battles over community membership-- i.e., who is allowed to acquire membership and which characteristics determine eligibility. Some scholars further contend that public discourses about immigrants and citizenship help define “American-ness,” ascribing meaning to citizenship by contrasting legitimate members of society with “aliens,” “illegals,” and “foreigners.”

In this Article, we study the relationship between race, naturalization, and citizenship by examining an important, yet generally ignored aspect of American history: the attempts of Asian aliens to gain U.S. citizenship through service in the U.S. military. More specifically, we analyze court cases brought by resident Asian aliens who served in the U.S. military between 1900 and 1952 to understand how the legal system negotiated the competing ideologies of civic nationalism, represented by military naturalization, and ethno-cultural nationalism, symbolized by immigration and naturalization laws that favored aliens from Europe. In doing so, we seek to explain the role of structural and institutional factors in shaping the construction of citizenship, and how legal deliberations over the nature of citizenship influenced the evolution of national identity.

Military naturalization is particularly useful in examining the dynamics of U.S. citizenship. Central to military naturalization is a powerful symbolic message: those willing to fight and die for the United States are worthy of its citizenship. For immigrants historically considered “racially distinct,” military naturalization afforded an opportunity to challenge preexisting conceptions of citizenship that equated color with country. Military naturalization also squared well with legal ideals of racial equality enshrined in the Declaration of Independence and the Fourteenth Amendment, as well as the operational exigencies of the military, which sought to meet its demands for labor.

At the same time, however, the influx of Asian aliens into the United States after the Civil War led to an increased hostility towards members of these groups and greater public support for restrictive immigration policies. The growth of non-European populations also raised questions about who should be able to naturalize and to gain U.S. citizenship, and the characteristics that should determine these rights. It is within this context that the judiciary, as the guardian of normative aspects of collective identity, sought to specify the meaning of naturalization and citizenship.

[. . .]

These modifications, and attempted modifications, to U.S. naturalization policies continue the long-standing practice of expedited naturalization for those willing to serve in the U.S. armed services, particularly in times of military conflict. These types of policies have become particularly vital for the U.S. military, whose growing manpower demands, which are not being met by the U.S.-born, have led to increased reliance on those born abroad. At the same time, recent policies, aimed at certain minority groups to make it more difficult for their members to enter the United States legally or at all, have increased the attractiveness of U.S. military service as a pathway to citizenship.

Attempts like the DREAM Act--which would allow “high quality” undocumented immigrants to gain citizenship through military service likely to raise new legal issues regarding naturalization and citizenship that the judiciary will need to address. Given the history of the judicial deference to Congress with respect to immigration and naturalization laws, and its continued failure to repudiate the “plenary power doctrine,” it is quite possible that the courts will continue to permit Congress to pass racially and ethnically discriminatory legislation, such as allowing Congress to craft a version of the DREAM Act that does not permit undocumented immigrants from Middle Eastern countries the same access to military naturalization as other undocumented immigrants due to post-9/11 security concerns. Therefore, efforts to observe how the legal system handles various definitions of inclusion and exclusion remain as relevant today as it was for the period analyzed in this Article.


Deenesh Sohoni is Associate Professor of Sociology, College of William and Mary. Amin Vafa is a graduate


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