Article(s) of the Day: The Free White person Clause of the Naturalization Act of 1790 by Jack Chin and Paul Finkelman

Professors Gabriel Jack Chin and Paul Finkelman have published the lead article in The Free White person Clause of the Naturalization Act of 1790 as Super Statute in the Vol 65 (issue 5) of the  William and Mary Law Review. The article draws on the notion of the “anti-canon” — cases upholding segregation, internment, etc. — and applies it to the realm of statutes that deserve a place of dishonor in the law. Here is the abstract:

This Article proposes that the Naturalization Act of 1790 is a super-statute whose impact is not fully appreciated. Responding to George Washington’s first Address to Congress and reflecting a complaint leveled against King George III in the Declaration of Independence, in the 1790 Act, the First Congress limited naturalization to “any alien being a free white person.” The racial restriction, as modified, would remain in effect until 1952, inducing White immigration and discouraging that of others. Through the mechanism of the “declaration of intent to naturalize,” added in a 1795 amendment, Congress made it possible for state and federal law to grant political and economic rights to White immigrants immediately upon arrival while ensuring that non-White immigrants could never enjoy them. The Naturalization Act of 1790 helps explain why, for example, as late as 1960, more than 99 percent of Americans were White or Black. It also resolves the question of the racial attitudes of the Framers—whether or not they supported slavery, a majority of them unambiguously conceived of the United States as a White country.

Ultimately, they conclude that the Naturalization Act of 1790 has earned recognition as among the most effective pieces of legislation ever enacted by Congress notwithstanding its racism. 

The lead article is paired with commentary from Bethany Berger (Separate, Sovereign, and Subjugated: Native Citizenship and the 1790 Trade and Intercourse Act), Ming Hsu Chen (The Road Not Taken: A Critical Juncture in Racial Preferences for Naturalized Citizenship), Rose Cuison-Villazor (Creating a Racialized Liminal Status: The 1790 Act and Interstitial Citizenship), and Amanda Frost (Paradoxical Citizenship). The table of contents for the issue is here.