Basic citizenship in the United States takes no account of sex. Every child, male or female, white, black, brown, red, or yellow, “born in the United States and subject to the jurisdiction thereof,” is ipso facto a citizen. And every unmarried woman of that nativity is, and continues to be such, as long as she remains unmarried. Upon marriage she takes forthwith, whether she will or no, so far as our law is concerned, the nationality of her husband—even if he be an alien. It is the unbroken tradition of our law, and of the laws of nearly all other nations—in so far as they recognize women as being individual citizens at all—that the nationality of a wife follows that of her husband. Of that tradition was born a section of the law of 1907 which seeks to confer upon any American woman marrying a foreigner the nationality of her husband. When an alien man becomes a citizen of the United States by naturalization, his wife, in ordinary circumstances, becomes a citizen with him; the law says specifically that “a woman who is now, or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, may be deemed a citizen.” But, generally speaking, she must, unless herself American born, be resident in this country. The practice in this regard has not been wholly consistent; the State Department has held repeatedly that the naturalization of a husband does not reach the wife if she continue to reside in the old country; but a very uniform line of decisions is to the effect that her husband’s naturalization makes her a citizen wherever she may be, and that she remains a citizen even after his death unless she takes action to repatriate herself. The Act of 1907 makes it necessary for such a foreign-born widow resident abroad to register with a United States consul within a year after the termination of her marriage; otherwise her citizenship lapses.
The phrase, “who might herself be lawfully naturalized,” has given rise to much controversy, and its significance has not been definitively declared. Some authorities hold it to apply only to the Oriental races excluded as such from citizenship; others hold that it should be interpreted to call for an examination of the wife as to her views on the subject of anarchism, polygamy, etc. But the general tendency seems still to hold that the family is one, and the husband that one; that, therefore, any sort of wife comes into citizenship automatically with the naturalization of her husband.
“A WOMAN WITHOUT A COUNTRY”
The nonresident American-born wife of a foreigner may, upon his death or the termination of the marriage in any other legal manner, resume her American citizenship by registration with a United States consul. But what of the woman, born an American citizen, married to an alien who continues to live? The United States statute of 1907 undertakes to expatriate her—“any American woman who marries a foreigner shall take the nationality of her husband.” But, in absence of specific treaty, or of legislation in the husband’s country to that effect, that pronouncement is without force or validity outside of the United States; Congress has no power to confer or inflict the citizenship of any other nation upon anybody. “The operation of this statute might easily deprive a woman of her American citizenship—even if she had it by right of birth—and leave her with none.”[33] It seems rather extraordinary that of all the judges of American naturalization courts replying to the questionnaire of the Americanization Study, whose results are discussed elsewhere in this volume,[34] not one referred directly to this aspect of the citizenship of the American woman.
The person without a country is an alien everywhere his foot may fall—no matter under what roof or flag he may seek shelter. He is subject to the local laws and limitations governing aliens; but he has no homeland whose flag he may call his own; no government anywhere to which he may appeal for protection; he is dependent without recourse upon the hospitality, grace, and mercy of the public authorities and the people of the land where he chances to make his habitation.
THE AMERICAN UNDER THREE JURISDICTIONS
In notable contrast with this dismal prospect, the American citizen, native or naturalized, is quite otherwise. He is subject to three concurrent jurisdictions. This fact is a source of great puzzlement to many an applicant for citizenship, and constitutes one of the stumbling-blocks which beset him in his initial understanding of our system of government.
First, the nature of his relation to the United States. In the case of Minor vs. Happersett,[35] decided in 1875, the Supreme Court of the United States said:
Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of government. “Citizen” is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the states upon their separation from Great Britain, and was afterward adopted in the Articles of Confederation and in the Constitution of the United States. When used in that sense it is understood as conveying the idea of membership of a nation, and nothing more.