Sunday, May 26, 2019

Abstracted from: Ernesto Hernndez-Lopez, Global Migrations and Imagined Citizenship: Examples from Slavery, Chinese Exclusion, and When Questioning Birthright Citizenship , 14 Texas Wesleyan Law Review 255 (Spring 2008)

In the spirit of remembering the 200-year legacy of England's abolition of the transatlantic slave trade in 1807 and the 150-year legacy of the U.S. Supreme Court's decision in Scott v. Sandford in 1857, this Essay comments on the relationship between international migration and citizenship. Specifically, it uses the theme of the Texas Wesleyan University School of Law and the University of Gloucestershire's Fourth Annual Summer Legal Conference, "Law and Justice in the Age of Globalization: Marking the 200th Anniversary of Britain's Abolition *256 of the Slave Trade (1807)," to analyze the historical and global migration of persons and how responding to this domestic law re-imagines national identity in the form of citizenship. This Essay's objective is to provide international and cultural contexts to legal determinations of who is (or is not) a citizen. Citizenship is studied as one example, but not the only example, of national identity. This is done by looking at nineteenth-century instances from the U.S. slavery and Chinese migration experiences and current examples of birthright citizenship in the United States and dual-nationality in Mexico. A quick view of the slavery and Chinese Exclusion histories shows these legal citizenship determinations occurred 150 and 110 years ago (Dred Scott and United States v. Wong Kim Ark, respectively), in response to prior global migration. Similarly, current citizenship issues in U.S. and Mexican law developed from changes in U.S. migration policy *257 twenty years ago, i.e., the Immigration Reform and Control Act of 1986 (IRCA). This Essay is written in the year 2007, which inspires scholarly reflection of events in 1807, 1857, and 1898.

These cases illustrate how domestic law is forced by global processes to determine who is or is not a citizen. The decisions made in Dred Scott came after more than two centuries of slave trade to the United States. Similarly, in the last two decades of the nineteenth century, the U.S. Supreme Court decisions regarding the Chinese Exclusion measures took place after Chinese immigration to the U.S. began to increase in 1868. Likewise, Mexico's incorporation of dual-nationality for its citizens in 1997 and political and public calls to revisit birthright citizenship in the U.S. both come after steady increases in Mexico-U.S. migration. For the last twenty years, economic markets in the U.S. and in Mexico (bilateral demand and supply factors) and U.S. border policy have fed this increased presence of foreign nationals in the U.S. These trends lead to unauthorized migrants in the U.S. Children born to these migrants in U.S. territory are entitled to "birthright citizenship." Established U.S. legal interpretation entails that these children are U.S. citizens when born in U.S. territory, even if their parents are not "legally" in the U.S. This interpretation is continually contested as the "illegal" migrant presence grows consequent to economic practices and border policies.

First, this Essay argues that these four examples of migration (slave trade, Chinese migration, Mexico emigration and U.S. immigration) show how domestic law (re)determines citizenship standards after sustained exposure to the global movement of persons, e.g., the transatlantic slave trade (which ended in the early nineteenth century), Chinese migration to the U.S. (beginning in the later part of the same century), and Mexico-U.S. migration (increasing steadily since the 1980s). Even though they are distinct, these three migrations are part of global processes. By global, I mean these developments are not unilaterally caused or felt. This is the case with slavery representing openly racist mindsets and brutal notions of property; treaty-induced Chinese migration developing from U.S. imperial ventures in Asia and in the western parts of the American continent; and the market-driven U.S. migrant-pull and Mexico migrant-push.

*258 Second, this Essay contends that these legal determinations, each in distinct historical periods, reflect cultural processes of "imagined communities," borrowing the concept from Benedict Anderson. The process by which U.S. or Mexican law defines who is a citizen comes after cultural notions determine who is (or is not) part of the political community. The legal decision of who is (or is not) a citizen is illustrative of this mix of cultural imagination and legal determination. With these averments, this Essay provides a small global, historical, and cultural contribution to recent legal scholarship on migration and citizenship.

An overarching goal of the following paragraphs is to contextualize legal issues from the nineteenth century and from current debates. This conceptual environment, wherein law must determine the normative standards of domestic citizenship, is both cultural and global. In other words, legal decisions on citizenship are not made without the influence of forces outside national territory. Similarly, these decisions do not occur without changes in communal or shared values, i.e., culture. Instead, the Essay shows two things. First, legal determinations of citizenship (both current and historic) take place amongst a political and legal interplay between domestic and foreign influences. Second, this conceptual interplay rests on a cultural context deciding who is or is not within a political community. The first point is evident in legal citizenship determinations. The second point illuminates an "imagined community" implicit in the legal reasoning. Accordingly, *259 the Essay is not primarily focused on the substantive law that develops from slavery, Chinese migration, or current immigration to the U.S. Instead, the Essay points to a larger arena (both in terms of time period and geographic scope examined) from which legal citizenship determinations arise. These determinations include the historic examples of Dred Scott and Wong Kim Ark and more recent experiences with birthright citizenship in the U.S. and dual-nationality in Mexico.

To expand on this, Section I summarizes cultural studies' approaches to national identity and global analysis. This includes two, but by no means exclusive, influences. First is Anderson's Imagined Communities: Reflections on the Origin and Spread of Nationalism, arguing that nations are "imagined communities." Second is Eric Wolf's Europe and the People Without History, presenting how world history is characterized by transnational connections between communities and how this history often overlooks perspectives from migrants.

These theoretical approaches motivate this Essay to ask the following about legal citizenship determinations: (a) what is the global movement in persons that leads to the citizenship question?; and (b) what is the imagined community articulated by the legal determination of citizenship? From these questions, a legal inquiry into national identity and citizenship gains historical, global, and cultural perspectives. The next three sections briefly describe the examples of slavery, Dred Scott, and citizenship; Chinese migration to the U.S., Chinese Exclusion measures, and citizenship; and citizenship as seen from a migration experience of U.S.-pull and Mexico-push. For each of the cases their respective sections, Sections II through IV, present these legal citizenship determinations and then identify relevant global migration and imagined community contexts.

. . .


This Essay is written at the end of 2007 and near the beginning of 2008. These two years mark 200 years since the end of England's transatlantic slave trade, 150 years since the Dred Scott decision, and 110 years since Wong Kim Ark. Viewed quickly, the three events suggest how the movement in persons (slave trade and Chinese migration) is transnational, and eventually responding to them, domestic law determines who may (or not) become a citizen. This Essay uses analytical tools from Anderson's imagined communities to identify how national identity, in the form of citizenship, is conceived within these historic examples. It then uses similar analysis to examine the migration and citizenship law discourse evident in contemporary U.S. and Mexican law.

In all the instances explored, there is a clear suggestion that global and transnational forces initiate migration. For the slave trade, this was European and North American power transporting persons from Africa to the Western Hemisphere. For Chinese migration, it was the *288 imperial projects of the U.S. in Asia and in the western part of the American continent. Examining the migration dynamic between the U.S. and Mexico, this force is the bilateral supply of and push for labor. As we currently experience migration, it is sustained by transnational socio-economic networks.

After this migration occurs there is an eventual legal determination of who can or cannot be a citizen. This Essay suggests this legal question often rests on cultural notions. In the Dred Scott decision rejecting that blacks may be citizens, the cultural reasoning involved retrograde views of who was civilized or not and who literally was property belonging to another person. In the Chinese Exclusion process, the cultural arguments explicit in the law stated Chinese persons could not assimilate, could not participate in republican governance, and were "obnoxious." Wong Kim Ark refutes these notions in the law by holding that children of migrants born on U.S. soil are entitled to birthright citizenship. The Supreme Court was motivated by the negative prospects of having immigrants' children with mixed allegiances and/or unable to participate in the republican process.

With more recent immigration, Mexican law on the sending end has re-imagined its parameters to permit dual-citizenship. This is a cultural process envisioning the nation as not limited by territorial bounds. On the other side of the migration dynamic, the U.S. is the recipient of labor that seeks its high demand. The law has not changed to reject birthright citizenship. But political and public calls for this are constant and developed. This Essay argues these efforts are reactions to a global and transnational process. Similarly, by adding consent-based theories to citizenship, refuting a broad and inclusive legal history of jus soli, and refuting an equal future for children, they re-imagine citizenship.

In sum, painting in broad strokes over a canvas that is long and wide in history, this Essay poses new questions about migration and citizenship. This is done by highlighting the transnational elements of migration and by tracking the cultural process embedded in the law determining who is (or is not) a citizen.

Associate Professor of Law, Chapman University School of Law, Orange, California.

 

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