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Ernesto Hernández-López,
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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