The Asymmetrical Obligations of Citizenship

Linda Kerber

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 until recently.

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 context.