when pigs fly … expect the unbelievable

Archive for May 28th, 2009

The case of Mackinzie v. Hare, 239 US 299 (1915) is another case of interest to women.  This opinion’s author was Justice McKenna, who was nominated for a position on the Supreme Court in 1897 and confirmed by the U. S. Senate in 1989.  Justice McKenna served until 1925.  He retired in that year after being visited by Chief Justice Taft who confronted him with his lessened ability to perform the work required of a Justice of the Court.  [It is interesting to note that Justice McKenna is not known for the quality or quantity of his work.  Historians have credited him with authoring only two “important” opinions, one which affirmed the constitutionality of the Pure Food and Drug Act of 1906 and one which affirmed the constitutionality of the Mann Act (1914). 

Mackenzie v. Hale is an extraordinary opinion which is certainly “important” to over 50% of the American public.  So I would add it to the “important opinions” that the Justice authored.  It must be remembered, however, that in authoring a Supreme Court opinion, a justice does not write alone.  While the document is his, Justice McKenna  has reached consensus with his colleagues and they agree with his reasoning and legal application to the facts of the case.  In the Mackenzie case, there was a lone dissent, and it was on procedural grounds so the nine justices were as one in 1915 in when they upheld the Citizenship Act of 1907.

The Act which the Mackenzie case upheld was only 8 years old at the time of its challenge.  The act’s purpose was codification of derivative citizenship for women.  Derivative citizenship was a creature of common law in the sense that a married woman became one with her husband in sense of political identity.  The act simply legislatively redefined all American women as a member of their husband’s race, ethnicity and nationality. Thus, if a woman married a foreign gentleman, she was deprived of her birthright, American citizenship.

Contemporary scholars suggest that the act was passed to guard the social desire of the majority of the population at the time to refrain from mixing races in American marriages.  However, similar issues are retained in American polity as reflected by the relatively recent case of  Nguyen v. Immigration and Naturalization Service, 533 US 53 (2001).  I would submit that this suggests that the social desire apparent in 1907 still remains.

Perhaps it is understandable that the Cable Act of 1922, which in some deliberate ways remedy the offense of the Citizenship Act of 1907, is an act that is discussed with women as the first legal recognition of an American woman as a separate political entity from her husband.  It is rarely, however, suggested that the Cable Act had limitations (such as if prospective husbands were Japanese or Chinese) – again predictors of the disapproval of mixed marriages.  It must be suggested, however, that men came back from World War I (prior to 1922), as well as World War II, Korea and VietNam with war brides.  Different consequences obtain, as would be expected for these men who made the sacrifice of military service.  Likely, while war brides are not often “approved of” by the receiving family, the community as a whole understands the fact that this woman is seeking a better life for herself and may often be kind and welcoming.  (It is a bit of the NIMBY analogy.)

The Nguyen case considered 8 USC 1409, a statute which governs citizenship of persons born to a U.S. citizen and a non-citizen, particularly when the parents are unmarried and the child is not born in the United States or one of its territorial possessions.  Essentially, the application of section 1409 is dependent upon whether the citizen parent is the mother or father.  The question argued before the Court was “whether the statutory distinction is consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment”.  Amazingly, by acknowledging that indeed the statutory distinction IS CONSISTENT with the equal protection clause, the Court acknowledged that “…a mother must be present at birth but the father need not be….” and suggests that to fail to consider the basic biological differences makes a guarantee of equal protection “superficial, and so disserving” suggesting that the “difference between men and women in relation to the birth process is a real one….”

Justices O’Connor, Souter, Ginsburg and Breyer dissented, suggesting that for three decades the Supreme Court had applied heightened scrutiny to legislative classifications based on sex.  Justice O’Connor, writing for the dissenters, suggested that section 1409, on its face, creates a difference solely on account of the sex of similarly situated individuals, and she described this as “patently inconsistent with the promise of equal protection of the law.”  The minority further argued that the majority decision “represents a deviation from a line of cases in which we have vigilantly applied heightened scrutiny….[we] trust that the depth and vitality of these precedents will ensure that today’s error remains an aberration.”

The question that must be asked, of course, is whether race and gender remain guiding principles in the application of due process.  By any reasonable reading of the Mackinzie and Nuygen cases, one must conclude that they do and that these guiding principles are not, unfortunately, mere anomalies.  Perhaps the cigarette advertiser was mistaken when it suggested:  “You’ve come a long way, baby!”



[1] Nguyen v. Immigration and Naturalization Service, 533 US 53, 57 (2001).

[2] Id. at 63.


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