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Excerpted From: Blanche Bong Cook, Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (The "Whp") or Johnny and the Whp, 31 Yale Journal of Law & Feminism 57 (2019) (365 Footnotes) (Full Document

BlancheBongCookAmerican militarism and sexual tourism have much in common: Each has left an indelible footprint on the bodies of foreign women and the world. As Kristin Collins has argued, this footprint is an inestimable number of children that American men have fathered and abandoned around the world. On the streets of Olongapo, Philippines alone, the home of a former American naval base, countless abandoned Amerasian children are reduced to prostitution and crime. Far from innocence, accident, or some act of nature, these children are the products of centuries of American imperialism, lawmakers, judges, administrators, military men, and sexual tourists, who, taken together, reflect a societal policy that creates supremacy by making property of others. Collectively, these actors have decided that mass destruction is worth the price of a frolic.

Vulnerability is the lynchpin of exploitation. Historically, white heteropatriarchy--that is, power as it is raced, classed, sexed, and gendered deployed the legal mechanism of citizenship to perfect sovereignty in itself and vulnerability in others for the specific purpose of sexual exploitation. Title 8, United States Code, § 1409 is a variation of this scheme. It is a biopower (or a legal mechanism) that subjugates the bodies of women for both sexual pleasure and racial purity, all the while exerting control over populations.

Section 1409 regulates the transmission of citizenship from American citizens to their nonmarital, foreign-born children. Section 1409, however, draws an explicit gender distinction based on the sex of the parents: An unwed citizen mother, who has a child abroad with a foreign man, transmits citizenship automatically to her child. By contrast, an unwed citizen father who fathers a child abroad with a foreign woman has the prerogative to transfer citizenship to his child and, if he so desires, to complete a process to do so, which includes agreeing in writing to provide financial support to his child until the child is eighteen years old.

Many have argued that § 1409 treats citizen fathers and mothers differently because it is relatively simple to determine a child's mother, as opposed to the father at birth. The Supreme Court has, in fact, used this "natural," "biological," and "physiological" distinction between men and women to immunize § 1409 from three distinct gender-based equal protection challenges. Despite technologically advanced paternity testing, like DNA testing, § 1409 continues to thrive on antiquated justifications about the "natural" and "biological" differences between men and women--presumptions that scholars have universally denounced as "sexist, narrow-minded, and patently conservative."

So why does § 1409--with its explicit gender disparity between unwed citizen fathers and mothers when sexually active abroad in foreign places-- continue to endure? As Justice Ginsburg shrewdly noted, "[H]istory reveals what lurks behind § 1409." What lurks behind § 1409 is a long legacy of white heteropatriarchy deploying the legal mechanism of citizenship to perfect sovereignty in itself and vulnerability in racialized and "foreign" others for the purpose of sexual exploitation. The gender asymmetry in the transfer of citizenship between men and women in § 1409 reflects norms that privilege and protect male sexual prerogative outside of marriage while structurally supporting the creation and maintenance of vulnerability for purposes of sexual exploitation in foreign women. More concretely, § 1409 creates a white heteropatriarchal property right in philandering, sexual exploitation, and rape (the WHP).

Under § 1409, Congress, with the Supreme Court's blessing, conferred a property right to citizen men in the form of citizenship. Under this particular form of citizenship, citizen men have a property right to either grant or deny citizenship to their nonmarital foreign-born children. The prerogative to grant or deny citizenship functions like property. Section 1409 confers to citizen men a package of entitlements, a bundle of rights, that includes the right to exclude, transfer, destroy, possess, control, use, and enjoy. Under § 1409, citizen men have a right to exclude their nonmarital foreign-born children from the American polity. By bestowing citizen fathers with the right to exclude their children from citizenship, § 1409 entitles these fathers to abandon their children, leaving them profoundly vulnerable to the sting of "illegitimacy," ethnic and racial hatred, and financial precarity form of destruction and statelessness. Section 1409 simultaneously invests in these fathers a biopower to continue the sexual possession, control, use, and enjoyment of foreign women. (For more on this, see Figure 1, p. 101.) Unprotected philandering, sexual exploitation, and rape, liberated from parental responsibility, are property interests that flow from Congress's grant of power to citizen men under § 1409. Section 1409 is where American citizenship for men becomes indistinguishable from the right to engage in hypermasculinity. Although this may initially seem hyperbolic, once placed in a historical context of white heteropatriarchy's use of citizenship to both ensure racial purity and to create vulnerability for purposes of sexual exploitation, this net result is undeniable.

Section 1409 is part of a long-enduring legacy of using the legal category of citizenship, coupled with matrilineal succession (the status of the child following that of the mother), to control women's bodies for racial purity and sexual pleasure. This practice dates back to antebellum slavery, but continues forward to the sexual practices of the American military and sexual tourism. Moreover, the ability to control the legal status of the nonmarital child is vital to sexually dominating, controlling, and exploiting the mother. The blueprint for § 1409's 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 lethal trifecta of (1) excluding anyone of African descent from personhood, through the legal mechanism of citizenship; (2) the continued propertization of bodies; and (3) the rules of matrilineal succession outside marriage--the status of the offspring of an enslaved woman and a white man follows the status of the mother--perfected power in white men and vulnerability in anyone of African descent. By excluding anyone of African descent from citizenship, men, white men in particular, continued to enjoy a white heteropatriarchal property right in the unbridled use and enjoyment of the enslaved.

Following suit, § 1409 creates the WHP, a white heteropatriarchal property right in philandering, sexual exploitation, and rape. Section 1409 creates a property right that is "white" in that citizenship has been, and continues to be, highly racialized. Historically, white heteropatriarchy has used the legal category of citizenship to make America white--synonymous with whiteness--to make America the private property of whites. Of necessity, white supremacy, and its handmaiden racial purity, require control over women's bodies. White heteropatriarchy, however, not only exerts control over women's bodies for racial purity, but also for pleasure.

To be clear, like Dred Scott and the entire system of antebellum slavery, § 1409 is not averse to what Abraham Lincoln called the "disgust" and "odium" of racial mixing, miscegenation, or the "amalgamation of the races." After all, masters, overseers, and other males regularly raped the enslaved, male and female. Rather, the historical concern of § 1409 is to exclude foreigners from the polity--the governing body; ownership and inheritance of property--and the privileges and immunities of citizenship--"white space." Although any citizen man, including a man of color, can exclude or confer citizenship on his nonmarital foreign-born child, the American polity, as an institution, is synonymous with whiteness. The driving force in the bundle of rights that § 1409 confers upon citizen men is the right to exclude from the American polity, which structurally assumes whiteness. Section 1409 grants citizen men the right to transform their nonmarital foreign-born children into trespassers on (white) American soil. Congress protects citizen men from their nonmarital foreign-born children who, with the power of citizenship, might roam freely in America, and perhaps, arrive at the family gathering in the suburbs and ask Dad for inheritance as well as a serving of turkey.

Section 1409 is "male" in that it confers privileges upon men that it withholds from women. These are the right to decide whether to transfer citizenship to offspring, an ability to abandon offspring, and the right to engage in unprotected sex outside of marriage free from the responsibilities of parenthood. It would not be hyperbolic to say that § 1409 elevates a class of johns, purchasers of sex, sexual exploiters, philanders, sexual tourists, and rapists beyond the reach of parenthood and confers to them a statutorily sanctioned right to discard their children. It might also not be hyperbolic to say that Congress, with the Supreme Court's blessing, is facilitating an international, worldwide brothel.

Section 1409 is heteropatriarchal in that it facilitates a privilege in men to perform heterosexually on foreign women free from the sanction of parenthood and the burden of "illegitimate" inheritors. It paradigmatically exemplifies what Andrew Krinks calls "the heteropatriarchal familiast ideal," as it is a law that organizes life, human embodiment, social structures, and the political economy according to male desire by subjugating female bodies with a dominant-elite male gaze for the purposes of phallocentric sexual pleasure and the perpetuation of male-centered authority and lineage-- and describes this all as the natural order.

Section 1409 ensures female subjugation in two ways: First, § 1409 keeps foreign women steadfastly prone. Specifically, § 1409 enables citizen men to go abroad, spread their seed, and then dictate the terms of their relationship with their children and the mothers of their children or whether to have any relationship at all. Section 1409 assists citizen men in leaving the foreign mothers of their children solely responsible for those children. Section 1409 thwarts any duty owed by American fathers to their nonmarital foreign-born children or the mothers of their children. Second, § 1409 regulates the sexual activity of citizen women engaged in nonmarital sex with foreign men through the sanction of automatic parental responsibility--a kind of reproductive punishment.

On the surface, it may seem that § 1409 grants a privilege to citizen women that it denies citizen men: an opportunity to transfer citizenship automatically. By contrast, men must undergo a more arduous process. That, however, is § 1409's normative hegemonic trick: disguising treachery as something "good," and obfuscating the sexual domination of women as the biological difference between men and women. Section 1409 camouflages the sexual domination of women as a bonus for citizen mothers. This deflects attention away from the hypermasculine sexual performance of men with foreign women and the sanctioning of women with reproductive punishment for analogous sexual conduct with foreign men. Structurally, conceptually, and symbolically, § 1409 entertains male sexual prerogative and female domination, subjugation, and control.

In § 1409, Congress has turned a physiological difference between establishing paternity and maternity into assumptions, and therefore material realities, about sexual behavior. These assumptions are inextricably linked to male power, prerogative, and privilege. Women are not permitted the same range of sexual prerogative and agency as men under § 1409. Under § 1409, women, particularly citizen women, should be home raising children, not out "whoring." If Congress wanted to avoid the gender asymmetry of § 1409, it could have granted both citizen men and women prerogative citizenship for their children, but that would not exact punishment on citizen women who philander with foreign men. While § 1409 saddles women with the responsibilities of parenthood, it invests in men a property right to roam freely and abandon their children. As Justice Ginsburg shrewdly noted in the context of a § 1409 gender-based equal protection challenge, "There are ... men out there who are being Johnny Appleseed."

Section 1409 outsources the white heteropatriarchal work of the state to individual men--individual citizen fathers--middle managers--as gatekeepers at the American borders of what Angela Onwuachi-Willig calls "white space" and perpetrators of racialized and gendered violence. It confers a right in men to police white and nationalistic supremacy's control over the purity of bloodlines while simultaneously ensuring access to vulnerable foreign female bodies for pleasure. Section 1409 outsources the supply of available bodies for sexual domination beyond the border by liberating men from obligations under American law for the children who result from their sexual conquest. It thereby demonstrates the endless adaptability of white heteropatriarchy, particularly its limitless ability to morph into modern forms of female subjugation abroad despite the end of antebellum slavery domestically. Section 1409 allows citizen men to engage in hypermasculinity, as it shuts the door to hapless wards of the state discarded by their citizen fathers. Far from being an insignificant matter, § 1409 impacts the lives of an inestimable number of children abandoned by their American fathers.

Taken together, § 1409 creates an intersectional hierarchy--a hierarchy that is raced, classed, sexed, and gendered. Section 1409 grants citizen fathers the right to exclude their foreign-born children from the polity while facilitating the vulnerable conditions necessary to continue exploiting foreign women. Property, like citizenship, allocates resources, but in the context of § 1409, property and citizenship collude to dominate others and to ratify a hierarchical social order, all under the hegemonic cover of nature. Treating § 1409 as solely a problem of the biological differences between men and women allows it to surreptitiously advance its white heteropatriarchal agenda. It is not just race. It is not just class. It is not just gender. It is all of these things working in concert. Although § 1409 does not explicitly reference race, its explicit silence works an implicit racialized, as well as gendered, result. Section 1409 is a citizenship regulation that facilitates a white heteropatriarchal desire to perform hypermasculinity, while simultaneously functioning as a broader mechanism of population control. Section 1409 is a classic case of sexually explicit discrimination, masking and obfuscating racially implicit sexual subjugation, to work a white heteropatriarchal favorable outcome.

Enough cannot be said about § 1409. Section 1409 is perched at the entangled, intertwined, and mutually reinforcing valences of race, class, gender, sexuality, war, the American military, rape, sex, sexual tourism, sex trafficking, hypermasculinity, reproductive domination, racial purity, citizenship, property, belonging, and statelessness. It is ripe for intersectional analysis. Section 1409 exemplifies how sexism keeps racism in place and racism keeps sexism in place, with all the spoils awarded to white heteropatriarchy. What is at stake in equal protection challenges to § 1409 is not only its constitutionality, but also white heteropatriarchy's entrenched legacy of creating and sustaining hierarchy, vulnerability, and regimes of violence and exploitation.

Part I of this Article lays out the text of § 1409. Drawing on the extensive work of Kristin Collins, Part II historically contextualizes § 1409 to reveal its mens rea. Historical contextuality de-obfuscates § 1409's coercive nature and underlying legal legacy.

Part II grounds § 1409's genesis in the legacy of antebellum slavery to expose how the absence of citizenship in enslaved females in combination with the rule of matrilineal succession worked to facilitate the WHP--a white heteropatriarchal property right in philandering, sexual exploitation, and rape, prototypically exemplified in Dred Scott.

Drawing on the work of Cheryl Harris and modern theories of property, Part III proposes a theoretical foundation for the WHP as a conceptual model. As a conceptual model, the WHP problematizes § 1409's function, brings it into sharp relief, and exposes it to the precious antiseptic light of day. Historical contextuality and property as a theoretical framework expose the choices and values underlying § 1409, particularly the value of male access to the bodies of foreign women outweighing the value of discarded and abandoned foreign life.

Using the historical context of § 1409, as well as the property rubric of the WHP, Part IV analyzes the Supreme Court cases that have sustained the constitutional solvency of § 1409: Fiallo v. Bell, Miller v. Albright, Nguyen v. INS, and Sessions v. Morales-Santana. Part IV centralizes whiteness, hypermasculinity, and hypersexualized foreign women as the central tenets, governing principles, and driving forces upon which the Supreme Court has clung in defending the property interests embedded in § 1409. Whiteness, hypermasculinity, and hypersexualized foreign women are part of the intellectual machinery and Supreme Court narratives that justify the nefarious operations of § 1409. Part IV demonstrates how § 1409 is part of an intended and organized regime of racialized sexual domination, all ratified in law. As argued in more detail in Part IV, in the last of the four cases, Morales-Santana, Justice Ginsburg, writing for the majority, launched a Herculean effort to find an equal protection violation in § 1409. More specifically, she found that the more lenient physical presence requirement that applied to female citizens, not males, violated equal protection. In fashioning a remedy, however, the Court preserved male privilege at the expense of women, applying the more onerous standard to both men and women, as opposed to nullifying the more onerous standard entirely. Part V proposes solutions, including automatic citizenship for nonmarital foreign-born children of both citizen men and women.

[. . .]

Congress, with the Supreme Court's blessing, has created a white heteropatriarchal property right in philandering, sexual exploitation, and rape. In doing so, Congress has given men a right that suppresses any duty owed to their children or to the mothers of their children: They can discard them. As the Supreme Court sits perched and ready to roll back the tide of women's reproductive autonomy and undermine the integrity of Roe v. Wade, let it extend its moralizing about the responsibilities of parenthood, sexually responsible behavior, and the sanctity of human life to the inestimable numbers of children Americans have fathered and discarded. Congress, the courts, policymakers, and administrators have all seen fit to give men a right, amounting to a property right, to father children abroad and abandon them. Rather than subject this practice to the exacting, antiseptic light of day, the Court has ratified and reified this right over centuries of doctrine.

For some, the words of Chief Justice Taney in Dred Scott will appear shocking to the conscience, antiquated, and unfathomable. The day will come, however, when we look back on § 1409 with the same wonder. Future generations, as well as the current generation, must fundamentally understand: "Power concedes nothing without a demand." Power is neither natural nor inevitable. It is made. And it can be unmade.

Associate Professor of Law, University of Kentucky College of Law. B.A., Vassar College. J.D., University of Michigan School of Law.

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