American Nationals and Interstitial Citizenship

Fordham Law Review Volume 85 Issue 4 Article 7 2017 American Nationals and Interstitial Citizenship Rose Cuison Villazor UC Davis King Hall School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Fourteenth Amendment Commons, and the Immigration Law Commons Recommended Citation Rose Cuison Villazor, American Nationals and Interstitial Citizenship, 85 Fordham L. Rev. 1673 (2017). Available at: https://ir.lawnet.fordham.edu/flr/vol85/iss4/7 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . AMERICAN NATIONALS AND INTERSTITIAL CITIZENSHIP Rose Cuison Villazor* Citizenship scholarship is pervasively organized around a binary concept: there is citizenship (which is acquired at birth or through naturalization) and there is noncitizenship (which accounts for everyone else). This Article argues that this understanding is woefully incomplete. In making this argument, I tell the story of noncitizen nationals, a group referred to by this Article as American nationals. Judicially constructed in the 1900s, and codified by Congress in 1940, American nationals possess some of the rights inherent to citizenship, such as the right to enter and reside in the United States without a visa. Yet, they do not have the right to vote or to serve on a jury. Thus, contrary to the usual binary framing of citizenship, the category of American nationals suggests that many people qualify as neither citizens nor aliens. Although American national status has existed for over a century, very little is known about how this status became part of U.S. nationality law. This Article aims to reverse this oversight by exploring the legal construction of noncitizen national status and its implications for our understanding of citizenship. In so doing, this Article makes two contributions. The first and primary goal of this Article is to complete our legal historical knowledge about how law has conferred and denied citizenship. Specifically, this Article examines key congressional, judicial, * Professor of Law, UC Davis King Hall School of Law. I am grateful for comments and feedback I received about this project from Christina Duffy Ponsa, Kevin Johnson, Gabriel “Jack” Chin, Michelle Adams, Elise Boddie, Jennifer Chacon, Veena Dubal, Andrew Gilden, Rachel Godsil, Pratheepan Gulasekaram, Angela Harris, David Horton, Courtney Joslin, Joseph Landau, Carlton Larson, Stephen Lee, Robin Lenhardt, Henry Monahan, Hiroshi Motomura, Melissa Murray, David Pozen, Andrea Roth, Brian Soucek, and attendees of the Association for American Law Schools Annual Conference (January 2012), Association of Asian American Studies Conference (2014), Columbia Law School Faculty Workshop, Rutgers University School of Law, Law & Society (2015), Santa Clara School of Law, UC Berkeley School of Law Asian Pacific American Law Students Spring 2014 Symposium, UC Davis School of Law Aoki Critical Perspectives Workshop, and UCLA Whiteness as Property Conference (Fall 2014) where I presented an earlier version of this Article. An earlier version of this Article was selected from a call for papers for a panel on birthright citizenship at the 2012 AALS Constitutional Law Section. I am grateful to UC Davis School of Law reference librarian Elisabeth McKechnie for outstanding archival research assistance, Noel Abcede (’14), Andrew Alfonso (’15), Sarah Chi (’15), Jamie Knauer (’17), Jose Mafnas (’16), Anna Pifer-Foote (’16), Chanpreet Singh (’15), Steven Vong (’16), and Vicky Yau (’17) for their excellent research assistance and to Miranda Lievsay and the staff of the Fordham Law Review for their helpful technical and editorial assistance. 1673 1674 FORDHAM LAW REVIEW [Vol. 85 and executive actions between 1898 and 1940 that led to the creation of this liminal form of political membership for Americans living in the U.S. territories. Second, this Article introduces two conceptual frameworks that flow from noncitizen national status: interstitial citizenship and unbundling citizenship. That is, American nationals disrupt the binary framing of citizenship by occupying the space between the citizen and the alien. This liminal status, which this Article calls interstitial citizenship, reveals that citizenship is far more fluid than previously appreciated. Moreover, this flexible form of citizenship suggests that the rights of citizenship may be unbundled. Notably, both interstitial citizenship and unbundling citizenship have legal and policy implications for immigration reform. INTRODUCTION ........................................................................................ 1675 I. THE CITIZEN/NONCITIZEN BINARY: A STORY ABOUT RACIAL EXCLUSION ................................................................................... 1681 A. Common Law (Jus Soli) .......................................................... 1682 B. Fourteenth Amendment’s Citizenship Clause ......................... 1684 II. THE LEGAL CONSTRUCTION OF AMERICAN NATIONALS .................. 1687 A. The American Empire: No Citizenship for U.S. Territorial Residents ............................................................................... 1689 B. The Insular Cases and Territorial Residents as Not “Aliens” ..................................................................... 1691 1. Gonzales v. Williams ........................................................ 1692 2. Toyota v. United States .................................................... 1694 III. CODIFICATION OF NONCITIZEN NATIONAL STATUS ........................ 1697 A. The Need for Comprehensive Nationality Law ....................... 1698 B. Congressional Hearings on the Proposed Nationality Act ..... 1702 C. Defining and Codifying Noncitizen National Status............... 1707 IV. INTERSTITIAL CITIZENSHIP AND THE UNBUNDLING OF CITIZENSHIP RIGHTS .................................................................... 1711 A. Interstitial Citizenship ............................................................ 1711 1. Rights of Citizenship........................................................ 1712 2. American Nationals and Disruption of the Citizen/Alien Binary .............................................................................. 1714 B. Unbundling Citizenship .......................................................... 1720 CONCLUSION ........................................................................................... 1723 2017] AMERICAN NATIONALS & INTERSTITIAL CITIZENSHIP 1675 INTRODUCTION The law of citizenship1 is typically framed as a binary concept. There is citizenship (which is acquired at birth2 or by naturalization3) and there is noncitizenship (which accounts for everyone else). Along this brig (...truncated)