Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (the 'WHP') or Johnny and the WHP
Yale Journal of Law & Feminism, Vol. 31, No. 1, 2019
University of Kentucky College of Law
Date Written: October 18, 2018
Title 8, United States Code, Section 1409—one of this country’s citizenship transmission laws—creates a white hetero-patriarchal property right in philandering, sexual exploitation, and rape (the “WHP”). Section 1409 governs the transmission of citizenship from United States citizens to their children, where the child is born abroad, outside of marriage, and one parent is a citizen and the other is not. Section 1409, however, draws a distinct gender distinction between women and men: An unwed female American citizen who births a child outside the United States, fathered by a foreign man, automatically transmits citizenship to her child. An unwed male American citizen, by contrast, who fathers a child abroad with a foreign woman has the distinctly male prerogative to either grant or deny citizenship to his foreign-born non-marital child at his leisure.
On the surface, it might appear that § 1409 treats men and women differently because it is easy to determine a child’s mother, as opposed to a child’s father, at birth. In fact, a majority of the Supreme Court has deployed these “natural” differences between men and women to shield § 1409 from three separate gender-based equal protection challenges. Justice Ginsburg, however, has keenly observed, “History reveals what lurks behind § 1409.” What lurks behind § 1409 is a long legacy of white hetero-patriarchy deploying the legal category of citizenship to perfect sovereignty in itself and vulnerability in “foreign” women for the very purpose of sexual domination.
The historical model for this racialized regime of sexual domination is the classic case of Dred Scott, where the denial of citizenship to anyone of African descent further facilitated a white hetero-patriarchal property right in philandering, sexual exploitation, and rape. In Dred Scott, the exclusion of anyone of African descent from person-hood, through the legal mechanism of citizenship, perfected power in white men and vulnerability in racialized others. By excluding anyone of African descent from citizenship, enslaved owners continued to enjoy an unbridled property right in the use and enjoyment of the enslaved. The denial of citizenship to the enslaved facilitated their use as property. Following suit, § 1409 makes citizenship the property of men, through which they can exclude their non-marital foreign-born children from membership in the American polity. Section 1409 vests in these fathers not just a right to exclude their children, but to discard them, leaving them profoundly vulnerable to the sting of “illegitimacy,” ethnic and racial animus, and financial precarity — a form of destruction, while simultaneously empowering these fathers to sexually possess, control, use, and enjoy foreign women. Section 1409 understands all too well: in order to sexually exploit the mother, one must control the status of the child.