Title 8, United States Code, Section 1409-one of this country's

citizenship transmission laws-creates a white heteropatriarchal 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 nonmarital

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, "[H]istory reveals what lurks behind § 1409." What lurks behind

§ 1409 is a long legacy of white heteropatriarchy 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 heteropatriarchal property right in

philandering, sexual exploitation, and rape. In Dred Scott, the exclusion of

anyone of African descent from personhood, 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 nonmarital 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 precaritya

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


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Notes/Citation Information

Blanche Bong Cook, Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (the WHP) Or Johnny and the WHP, 31 Yale J.L. & Feminism 57 (2019).


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