American Nationals and Interstitial Citizenship

Citizenship scholarship is pervasively organized around a binary concept: there is citizenship (which is acquired at birth or through naturalization) and there is noncitizenship (which accounts for everyone else). This Article argues that this understanding is woefully incomplete. In making this argument, I tell the story of noncitizen nationals, a group referred to by this Article as American nationals. Judicially constructed in the 1900s, and codified by Congress in 1940, American nationals possess some of the rights inherent to citizenship, such as the right to enter and reside in the United States without a visa. Yet, they do not have the right to vote or to serve on a jury. Thus, contrary to the usual binary framing of citizenship, the category of American nationals suggests that many people qualify as neither citizens nor aliens. Although American national status has existed for over a century, very little is known about how this status became part of U.S. nationality law. This Article aims to reverse this oversight by exploring the legal construction of noncitizen national status and its implications for our understanding of citizenship. In so doing, this Article makes two contributions. The first and primary goal of this Article is to complete our legal historical knowledge about how law has conferred and denied citizenship. Specifically, this Article examines key congressional, judicial, and executive actions between 1898 and 1940 that led to the creation of this liminal form of political membership for Americans living in the U.S. territories. Second, this Article introduces two conceptual frameworks that flow from noncitizen national status: interstitial citizenship and unbundling citizenship. That is, American nationals disrupt the binary framing of citizenship by occupying the space between the citizen and the alien. This liminal status, which this Article calls interstitial citizenship, reveals that citizenship is far more fluid than previously appreciated. Moreover, this flexible form of citizenship suggests that the rights of citizenship may be unbundled. Notably, both interstitial citizenship and unbundling citizenship have legal and policy implications for immigration reform