“Free White Persons”: Constructing US Citizenship

Over ninety years ago this month, the Supreme Court upheld a law banning Japanese people from becoming US citizens in Ozawa v. US. The case is especially relevant now, as debates about building walls and securing borders dominate the presidential campaign.

After over twenty years of living in the U.S., Takao Ozawa wanted to become a citizen.  He was a family man, well-educated, a churchgoer. There was just one strike against him:  he was Japanese.

In October of 1922, when the Supreme Court heard his case, Ozawa v. U.S., our immigration and naturalization laws limited eligibility for citizenship to “free white persons . . . aliens of African nativity, and . . . persons of African descent.” African Americans had only been added fifty-two years earlier in the wake of Reconstruction, when Congress amended the Constitution to make clear that persons born in the U.S. were citizens.

Mr. Ozawa argued, in part, that he was white for purposes of the law, citing legal and ethnographic authorities to support that notion.  And, then there was his appearance.  As a light-skinned man, Mr. Ozawa suggested his skin color demonstrated that that he was white. But Justice Sutherland, writing for the Court, rejected that notion, saying a test based solely on skin color was “impracticable.” 

After all, he reasoned “Anglo-Saxons. . . , rang[e] by imperceptible gradations from the fair blond to the swarthy brunette, the latter being darker than many of the lighter hued persons of the brown or yellow races.”  As a consequence, relying on appearance alone would “result in a confused overlapping of races and a gradual merging of one into the other.”  Such blurring of the racial lines was to be avoided at all costs; it was essential to the fabric of the nation.themeltingpot1

The Court explained that the framers had referred to “free white persons” in the context of immigration and naturalization for the purpose of “excluding the black or African race and the Indians then inhabiting this country. . . The intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white, and to deny it to all who could not be so classified.”  This intention was “a rule of force from the beginning of the government, a part of our history as well as our law, welded into the structure of our national polity.”

Neither Mr. Ozawa’s appearance, his nuclear family, nor his devotion to the U.S.  could overcome the fact that a racial hierarchy had been “welded” into our legal system.

Ozawa v. US illustrates graphically how deeply racism’s tentacles are imbedded in our society.  Remarkably to 21st century eyes, the Supreme Court not only recognized the role of race in this context, but admitted that such classifications were imbedded in the law and the collective vision of our nation.

Although statutes such as the Immigration and Nationality Act of 1965 (discussed briefly here) helped disentangle overt racism from parts of our legal and social framework, Ozawa is worth considering particularly now.  Proposals to ban Mexicans and Muslims or construct a wall remind us that race continues to play a role in determining who can become or should be considered American.   But in today’s world, such proposals are un-American.

Author: Verna L. Williams

Interim Dean, Nippert Professor of Law, co-founder and co-director of Cincinnati Law's Center for Race, Gender, and Social Justice. Professor Williams joined Cincinnati Law's faculty in 2001. She teaches Constitutional Law; Gender and the Law; and Family Law. Her research examines the intersection of race and gender in law and society.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s