The Asymmetrical Obligations of Citizenship
The language of equality in American law and tradition is wholesomely
generic: "All persons, born or naturalized in the United States, are citizens..."
But the practices of equality have been problematic. One of the axes along
which it has been problematic is gender as inflected by race.
As I have recently argued at some length in NO CONSTITUTIONAL RIGHT
TO BE LADIES, deep in American legal tradition and practice has been the
assumption that married women's obligations to their husbands trumps their
civic obligations to the state. (The corollary, of course, is that therefore
married men and married women are not equal. In theory the civic infirmities
of married women should have no impact on single women--never married,
divorced, or widowed, who make up at any moment a substantial proportion
of the population, even at times when divorce was rare--but in practice
all women were generally treated AS IF they were married.
This has meant in practice that the obligations of citizenship have
been differently invoked for men and for women; the practices of naturalization
and what counts as birthright citizenship have [with variations over centuries]
been taken into account the status of the father and the status of the
mother asymmetically; the practices of taxation ignored the large numbers
of people excluded from suffrage (which have included most African Americans
for long periods of time, most white women until 1920, Asians ineligible
for citizenship, etc) despite the principle of "no taxation without representation."
Black women have had heightened obligation to be seen to be working and
a simultaneously heightened risk of being charged with vagrancy; for most
of U.S. history women's inclusion in the pool of jurors was much more erratic
than it was for men.
I have argued that the genealogy of inequality can be traced not only
in the history of unequal rights [well known] but quite as deeply in the
history of asymmetical obligations. I have insisted that asymmetical obligations
has NOT meant that women were excused from civic obligation but rather
that it has burdened them in different forms than it has burdened men.
Because these inequalities have occurred in the various categories of specific
obligations [to which historically analysts have paid little attention]
rather than the generic category of rights [to which we have paid a great
deal of attention, a range of important inequalities has gone understudied
Several recent cases--MILLER V ALBRIGHT (1998) and others now being
litigated--raise questions about the gendered dimensions of claims of birthright
citizenship. In my comments on the panel I will address what I will know
of the recent cases, as well as try to set the issues in long historical