Authors

Gabriel J. Chin
Paul Finkelman

The "Free White Person" Clause of the Naturalization Act of 1790 as Super-Statute

Abstract

A body of legal scholarship persuasively contends that some judicial decisions are so important that they should be considered part of the canon of constitutional law including, unquestionably, Marbury v. Madison and Brown v. Board of Education. Some decisions, while blunders, were nevertheless profoundly influential in undermining justice and the public good. Scholars call cases such as Dred Scott v. Sandford and Plessy v. Ferguson the anticanon. Recognizing the contemporary centrality of statutes, Professors William Eskridge and John Ferejohn propose that certain federal laws should be recognized as part of legal canon because of their extraordinary influence and duration. These so-called “super-statutes” include the Sherman Antitrust Act of 1890 and the Civil Rights Act of 1964. 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.

Notwithstanding its racism, the Naturalization Act of 1790 has earned recognition as among the most effective pieces of legislation ever enacted by Congress. It deserves a place of dishonor alongside segregation laws, the Indian Removal Act, prohibitions on interracial marriage, and other laws establishing White supremacy.

Repository Citation

Gabriel J. Chin and Paul Finkelman, The "Free White Person" Clause of the Naturalization Act of 1790 as Super-Statute, 65 Wm. & Mary L. Rev. 1047 (2024), https://scholarship.law.wm.edu/wmlr/vol65/iss5/3