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
Cook, Blanche, "Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (the WHP) Or Johnny and the WHP" (2019). Law Faculty Scholarly Articles. 747.