Red Summer

Nathan Connolly: Today, whether wives take their husbands’ names can make for a tense prenuptial conversation. But what if by getting married, you didn’t just lose your maiden name, you sacrificed your nationality too?

Brian Balogh: Well, that definitely raises the stakes for wedding vows. Why would somebody lose their citizenship just because they tie the knot?

Nathan Connolly: Well, in 1907 Congress passed something called the Expatriation Act. It declared that if any American-born woman married a foreign man, well sorry, but that means you’re no longer a US citizen, instead you take on your husband’s nationality.

Joanne Freeman: Well, hold on a second there, Nathan. What about the men? What if they marry somebody who isn’t an American?

Nathan Connolly: I hate to say it, but they were in the clear.

Linda Kerber: No American man, rich or poor, whatever his race or ethnicity, lost his citizenship by virtue of his marriage. And yet, hundreds, thousands of American women did.

Nathan Connolly: That’s historian, Linda Kerber. She’s been researching coverture in the US for decades. Coverture is laws and customs that transfer certain rights of women to their husbands. She says, “American women were made to take their husband’s nationality before the Expatriation Act. It just wasn’t a statute until 1907.”

Joanne Freeman: Okay, so if it was already happening in United States, why set it in stone with this law?

Nathan Connolly: Kerber says one of the influences behind the Expatriation Act was this trend happening among the elite in the late 19th century.

Linda Kerber: In the upper classes of society, you start to get the phenomenon of titled noblemen in France and Germany and the UK who had little in the way of financial resources thinking, “Hmm, maybe I can persuade an American heiress to marry me.”

Nathan Connolly: One of the most prominent heiresses at the time was Consuelo Vanderbilt. Through what was essentially an arranged marriage, Consuelo married the Duke of Marlborough and went off to live in a big English estate.

Linda Kerber: It made an enormous splash and all over the country and from many people in Congress came the angry response, “Couldn’t she find an American to marry? What’s going on here? We are insulted.”

James Scales: “There was, to be sure, a story abroad to the effect that Miss Consuelo would wed young John W. MacKay Jr., son of the great California millionaire. And there is no denying that he was, for a time, very attentive. But he appears to have been given the mitten or perhaps we should say of such wealthy people, the kid glove.” Nebraska State Journal, September 15, 1895.

Linda Kerber: And out of that insult came the Citizenship Act of 1907, which provided firmly by statute, so no longer custom, that when an American citizen woman married a foreign man she lost her citizenship.

Nathan Connolly: Once this was put on the books in 1907, more women started to challenge it and fight for their citizenship. I talked with Kerber about a woman named Ethel MacKenzie and the ripples of the Expatriation Act.

Linda Kerber: Ethel MacKenzie had been very active in the woman’s suffrage movement in California and when women in California got the right to vote in 1913, that is well before the federal statute of 1920, Ethel MacKenzie was delighted and she went down to register as quickly as she could. But she was told when she appeared to register for the vote that she was not eligible because she had married a foreigner. But Ethel MacKenzie was having none of it. As far as we know, she believed that she had worked hard for this right and she didn’t see why she should have to beg for it.

Linda Kerber: So she appealed the ruling of the board and her case made its way to the US Supreme Court in 1917, so we’re right at the cusp of the US entry into World War I. In that ruling, the Supreme Court said marriage to a foreigner is virtue expatriation. In effect, they’re saying, you knew what you were doing and you have been essentially taken yourself out of the American community.

Nathan Connolly: Wow. World War I was an event that I’m sure a lot of people decided they were going to pay attention to. It had an impact on this particular instance. You have German men registering as enemy aliens. What impact did that have on the women who were married to these men?

Linda Kerber: They too had to register as enemy aliens and hundreds of them did. We don’t have testimony from them as far as I’ve been able to find, but there are reports in newspapers of something like, 120 women register as enemy aliens because of their marriage.

Nathan Connolly: In 1920, women around the country gain the right to vote and they start lobbying to change the law. Tell us about the spark behind the Cable Act of 1922.

Linda Kerber: If you look at women’s magazines during 1920, you see editorials, “Ladies, use your right to vote. Use it to protect the integrity of married women’s citizenship.” There is a moment in the early 1920s when members of legislatures all over the country feared what the women’s vote might add up to. They knew what their constituency had been. It was all men. Now they had this unknown constituency, wasn’t clear what these women would do and they want very much to accommodate it. The Cable Act is part of this accommodation.

Nathan Connolly: Tell us a little bit more about the Cable Act’s exceptions and how it affected, say, a woman like Mary K. Das.

Linda Kerber: Cable Act provided that an American woman who married a foreign man who was himself eligible for naturalization could keep her American citizenship. But at that time, we’re talking 1922, going back to the Chinese Exclusion Acts in the 1880s, those people were not eligible for naturalization. So if an American woman married an Asian man, she was not eligible to keep her citizenship. Mary K. Das, who had been born in the United States, lost her citizenship because she was married to a man from south India who himself was no longer eligible for naturalization.

Linda Kerber: In The Nation, she wrote a powerful, powerful, heartfelt, I don’t know, cry, manifesto in which she says, “I am a woman without a country. I’m a woman without a country.” Which she was.

Joli Millner: I am an American-born woman. My ancestors came from England to America in the year 1700. By the existing double standard of the American government, I am not only rendered alien, but a stateless alien. According to the Cable Act, an American woman marrying an alien ineligible for citizenship loses her American citizenship. An American man may marry a Japanese, Chinese, Hindu, any woman he please, to do so does not lose him his citizenship. But an American woman is penalized when she exercises this right granted the American man.

Joli Millner: I feel that an American woman should not be penalized for marrying the person she loves. Marriage is not a matter of convenience. It has a spiritual bearing and none has the right to dictate the inner life of an individual.

Linda Kerber: And when she asked how she could fix this, she was told, “Well, you could divorce him or you could go find another country which would take you in.”

Nathan Connolly: How would you characterize the legacies of the Expatriation Act? What might be its relevance for today?

Linda Kerber: Oh, I think there’s a lot of relevance. When contemporary people, feminists, friends, acquaintances say to me, “Why is it so hard now? Didn’t we have in the decision of the Supreme Court in Frontiero v. Richardson back in 1974, didn’t we have a decision that said women are entitled to the equal protection of the laws that is promised in the 14th Amendment to the US Constitution? Can’t we count on the 14th Amendment?” I have to say no. We have not been able to count on it.

Linda Kerber: Ever since 1973, specific issue by specific issue we have had to make claims to what counts as equal protection. Is it okay to exclude women from medical schools? Well no, it’s not but that had to be litigated. I think all of this goes back to the deep distrust of women’s ability to manage their own concerns, whether they be financial or the moral and ethical choices she makes as invented in the woman can’t vote. So when we see distrust of women’s ability to make claims about her own body in the attacks on reproductive rights reforms of the 1970s in which we see skepticism of women’s testimony on sexual assault, we see now, I believe, the continuing percolation of old assumptions about women’s moral trustworthiness that have infused American law and custom and practice from the Revolution to the present moment.

Nathan Connolly: Linda Kerber is the May Brodbeck Professor of the Liberal Arts and Professor of History Emerita at the University of Iowa. She’s also the author of the book, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship.