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Citizenship, law, and injustice:
The misuse of citizenship and law in Germany and the United States
Stephanie Wolfe
Abstract:
Citizenship laws have been utilised throughout history in the structuring of state and society
and as the legal basis on which acts of atrocity and/or injustice are perpetrated. This paper will explore
the use of citizenship law by the United States and Germany during WWII to separate ethnic
populations from the remaining populace.
Revocation or denial of citizenship is often a first step on the path to injustice. Germany’s
implementation of citizenship revocation with respect to its Jewish population was a vital component of
their steady removal of rights which led to the eventual relocation and genocide.
This paper will compare the German case with the lesser-known case of manipulation of
citizenship rights in the United States with respect to the Japanese-American population. Refused the
right to nationalise within the United States due to colour barriers found within the law, permanent
residents and their children who were citizens by birth were subject to restrictive legislation prior to
World War II. Following Pearl Harbour citizens and residents alike were forcibly relocated to
internment camps, and held throughout the war. Misinformation and rumours abounded within the
internment camps, creating conditions which pushed many to the point that they felt that had no choice
but to renounce their citizenship. Those who revoked their citizenship either were deported to Japan or
were forced to institute post-war legal proceedings in order for their citizenship to be reinstated.
Keywords:
Germany, United States, Holocaust, Internments, citizenship, naturalisation, Jewish, Japanese
Americans, law
1.
The Concept of Citizenship
While citizenship has been an evolving concept over time, in general, it has afforded certain
legal protections to those who hold this coveted status. These protections range from the unambiguous
right to remain in the country, economic and civic freedoms, fair treatment under the law and general
protection, both from foreign states and from others within society. Duties such as military service or
an obligation to pay taxes might be included as a cost of being afforded these rights. Citizenship laws,
and laws restricting which groups can qualify for protection under the law, have been essential in the
formation of modern-day state and society.
Citizenship answers the formal questions of who belongs, while creating mutual
responsibilities between state and citizen. Of the rights guaranteed by citizenship, it is the implicit or
explicit contract of protection that is the arguably the most important. The state, at least in theory, is
obliged to protect the rights of its citizens vis a vis outsiders while not violating the rights of its own
citizens – the violation of this latter contract is the concept underlying asylum law. What happens, then,
when the mechanics of citizenship are turned against the state’s ethnic minorities?
Prior to World War II, citizenship within Germany acted as a guarantee against deportation,
allowed a greater freedom of movement, access to certain professions and access to communal poor
relief.1 Likewise, within the United States, citizenship guaranteed that one could live without fear of
deportation, travel to and from the country without fear of exclusion, and enabled certain political and
economic rights such as the ability to own land in certain states.2
Citizenship was therefore a coveted status. The United States and Germany were, according to
Eli Nathans, among the most exclusionary of the Western nations in regards to immigration,
naturalisation and manipulation of the legal system to disenfranchise minorities.3 It was not until after
World War II had begun, however, that the two countries utilised the legal process to physically
separate certain ethnic populations from the remaining populace and utilised citizenship laws to violate
-- rather than protect -- these citizens’ rights. During the war, Germany attempted to murder the entirety
of its Jewish and Roma populations, while the United States imprisoned its Japanese American citizens
and permanent residents. In both case, citizenship laws were invoked.
This paper will explore the actions taken by Germany and the United States during World War
II against, respectively, the German Jews and Japanese Americans. The exploitation of the legal
system, including laws relating to citizenship, was a key tool used in orchestrating the Nazi genocides
Citizenship, law, and injustice
2
and the United States internments. Although the outcomes of the actions were quite different, they
utilised a similar legal approach.
2.
Origination and Development of Citizenship Policies
A. Development of German Citizenship
German citizenship law is based on the principle of jus sanguinis, or descent. One of the first
codifications of citizenship law within the German Reich was in 1842 when Prussia established that
citizenship was based on paternal lineage.4 At this time, various states within the German empire had
their own laws regarding who was or was not a citizen. In addition to the principle of descent,
citizenship could be based on place of residence, adherence to a territorial state or allegiance to a
sovereign.
On 22 July 1913, with the signing of the Imperial and State Citizenship Law, Germany
developed a unified concept of German citizenship law, although Germany itself remained highly
federal. The implementation of this law shifted the power over citizenship away from exclusive control
at the individual state level to the imperial level. The law firmly established the Prussian model of
citizenship for the German nation: Article 4 stated that “the legitimate child of a German acquires by
birth the citizenship of the father: the illegitimate child of a German woman, the citizenship of the
mother.”5 It has been argued that that the law was designed to be exclusionary towards immigrants.6 It
severed remaining state linkages of jus domicile (citizenship based on residence) and rejected several
amendments which would have given those born and raised in Germany the right to naturalise. It has
also been argued that the law was intended to protect existing citizens, the majority of whom were of
German origin. Previously, the 1870 citizenship law terminated one’s citizenship no later then 10 years
after one’s departure from Germany. This law was replaced by the concept that Germans who resided
abroad could retain their citizenship indefinitely and transmit their citizenship to their foreign-born
children.7
The 1913 law, despite arguments as to its exclusive character, created a unified naturalisation
process for foreigners. Applicants for naturalisation still applied for citizenship in the state which they
resided. The requirements for naturalisation (as stated in Article 8) were similar to prior naturalisation
laws created by the states: a foreigner was to have led a “blameless” life, have his own dwelling or
lodging in that state, and be able to support himself and his family.8 An important addition to the 1913
law, however, was that the Imperial Chancellor had to verify that no other German state objected to the
naturalisation. If a state objected, then the Federal Council was to decide whether the naturalisation
should proceed. The change in the naturalisation procedure was intentional. The law was drafted in
order to give Prussia greater control over the naturalisation, particularly of Polish and Jewish
immigrants. With 17 of the 58 votes in the Federal Council, Prussia could generally enforce its will
upon the other states.9
B. Development of United States Citizenship
Citizenship in the United States has been based, since 1868, on the principle of jus soli, or
place of birth. The 14th amendment set forth a clear definition of a citizen: “All persons born or
naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside.” This amendment is based, not upon the United States as an
immigration country, but upon the inclusion of the African American population as citizenry in the
post-Civil War reconstruction and was intended to safeguard the principles stated in the 1866 Civil
Rights Act (which first set forth the position of citizenship via birth within the United States).
Despite the singular inclusion of “all persons” in the 14th amendment, the question of
citizenship was not conclusively settled until the 1898 Supreme Court Case United States v. Wong Kim
Ark. Wong Kim, a Chinese American, was born in California and under the principle of jus soli, he was
automatically a United States citizen. He departed the United States for two brief visits to China, once
when he was 17 and then again at age 21. Upon his second return to the United States he was denied
entry on the grounds that only United States citizens were eligible for unrestricted entry into the
country. This was despite the fact that Wong Kim was born in and resided in the United States –
according to the officials, his Chinese heritage obviously meant that he could not be a citizen. In 1898,
the Supreme Court found in favour of Wong Kim and confirmed that the 14th amendment applied to all
those born in the United States, regardless of race or ethnicity.10 Thus, thirty years after the introduction
of jus soli for “all persons”, it truly became the case.
Naturalisation laws in the United States, on the other hand, took a more complex route. They
are not based solely on the Constitution as such, but on federal laws. The first naturalisation law,
enacted in 1790, restricted the right to become a citizen to “free White persons”. In 1870, Congress
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amended the law to read “aliens being free white persons, and to aliens of African nativity and to
persons of African descent,” as, again, part of the post-War Reconstruction, since slavery had been
banned in 1865.
Both the initial naturalisation laws and the later expanded version failed to include Asians. At
the time, the Chinese and Japanese population was relatively small - approximately 0.2 percent of the
population11 - however, the 1870 exclusion was not an oversight. Recognition of the discrimination
faced by Chinese immigrants on the West Coast was acknowledged within the debates concerning the
1870 Civil Rights Act; however, when it came to extending the naturalisation laws to include Asians, it
was rejected.12 The Chinese Exclusion Act in 1882 affirmed “hereafter no State court or court of the
United States shall admit Chinese to citizenship”. The ban on Japanese citizens naturalising within the
United States was upheld in the Supreme Court case, Ozawa v. United States (1922) which ruled that
“the words ‘white persons’ were meant to indicate only a person of what is popularly known as the
Caucasian race” and since Ozawa was “clearly of a race which is not Caucasian”13 he therefore was
ineligible for naturalisation. Further, it was the opinion of the court that the original naturalisation laws
provided:
not that Negroes and Indians shall be excluded but it is, in effect, that only free white
persons shall be included. The intention was to confer the privilege of citizenship
upon that class of persons whom the fathers knew as white, and to deny it to all who
could not be so classified.14
The results of this court case effectively denied the right to naturalisation to any race deemed to not be
Caucasian. However, another Supreme Court case soon followed, United States v. Thind (1923). Thind
contended that, although Caucasian and white persons were treated as synonymous for the previous
case, they were not identical, and as such, a person from a “Caucasian race” (the appellant was from
India), but who was not “White”, was ineligible for naturalisation.15
It was not until 1943 that Chinese citizens could naturalise. This change in the naturalisation
policy was highly political as the amendment was prompted in part due to China being an important
ally in the war against Japan, and as a method to combat the accusations that the United States
discriminated against Asians. Japanese citizens, however, could not naturalise until 1952, in the form of
the McCarran-Walter Act. This act eliminated racial considerations in regards to naturalisation,
however set strict quotas on immigration, allowing only 2,000 Asians to immigrate annually, which
remained in place until 1965.16
C. Conclusions
Although the United States and Germany utilised different principles for ascribing citizenship
(jus soli versus jus sanguinis), their exclusionary practises and discriminatory treatment of
“undesirable” ethnic groups were similar. Both countries attempted to exclude certain minorities and
both attempted to keep certain segments of their populations from becoming citizens. The United States
prevented Asians and other groups they defined as “non-white” from naturalising, in addition to strict
immigration laws which prevented “undesirables” from migrating; however it did ascribe citizenship at
birth for those born within its territories. Jews and Poles were not legally prohibited from naturalisation
in Germany; however, they often faced difficulty on the individual state level where they could be
denied citizenship on the basis of vaguely worded naturalisation laws and by disagreement over who
was “desirable” among the German states.
The citizenship policies of Germany and the United States were well established prior to
World War II. The policies of both of these countries led to discrimination in regards to citizenship,
and further policies would be developed which would further restrict the rights of United States citizens
and lead to the death of German citizens. The next section will examine how the legal system was
utilised to physically separate the ethnic groups from the main populace, and to provide a method with
which to remove citizenship.
3.
Citizenship, Discrimination and World War II
A. German Citizenship Policy During the Nazi Regime
Upon Hitler’s assumption of power in 1933, the Nazi government passed legislation aimed at
removing Jews from German economic and, to a certain extent, political spheres. The Restoration of
the Professional Civil Service was enacted on 7 April 1933, which authorised the dismissal of civil
servants, defined to include direct and indirect employees in all public sectors, who were not of Aryan
descent and whose political loyalties were suspect.17 The law was furthered in the First Regulation for
Citizenship, law, and injustice
4
Administration of the Law for the Restoration of the Professional Civil Service of 11 April 1933 where
Article 3 articulated who was or was not an Aryan, defining a non-Aryan as a person with at least one
non-Aryan parent or grandparent, especially if the parent or grandparent was Jewish.18 Under these
laws, Jewish judges and lawyers lost their jobs, in addition to Jews working in schools, public
transportation, communications, government and law. Further decrees were passed which forbade Jews
from working as lay assessors and jurors, physicians, professors, notaries, dentists, dental technicians,
journalists, and other professions. In the Law Against Overcrowding of German Schools and Higher
Institutions of 25 April 1933, the government limited the number of Jewish students allowed to attend
schools and universities, in essence barring Jewish students from all forms of education.19 The policy of
stripping economic rights and freedoms culminated in a series of citizenship laws, known as the
Nuremberg Laws.
The first two Nuremberg laws were passed on 15 September 1935. The first, Law for the
Protection of German Blood and German Honour, established a series of prohibitions meant to isolate
Jews from the German population, forbidding both marriages and sexual relations between Jews and
citizens of German or “Kindred blood.”20 The second law, and the more damaging of the two, was the
Reich Citizenship Law of 15 Sept 1935. This law divided the concept of citizenship into two distinct
levels: subjects and citizens. Article 1.1 put forth that “A subject of the State is a person, who belongs
to the protective union of the German Reich, and who, therefore, has particular obligations towards the
Reich.” Article 2.1 stated: “A citizen of the Reich is only that subject, who is of German - or kindred
blood and who, through his conduct, shows that he is both desirous and fit to serve faithfully the
German people and Reich.” The status of a subject replaced the concept of a citizen as defined by the
1913 law.21 Those who had previously been considered to be citizens, either by descent or by
naturalisation, could now be deemed subjects and denied the full equality that citizenship often, in
theory, demands. The wording of the law implies that it created an “elevated” class of people, but in
essence, it was a legal way to strip Jews of their citizenship and of their political rights. The desire to
remove the rights of Jewish citizens was reinforced in the third and final Nuremberg law, the First
Regulation to the Reichs Citizenship Law of 14 Nov. 1935, stating in Article 4.1 that “A Jew cannot be
a Reich citizen. He has no voting rights in political matters …” Article 5.1 and 5.2 of this legislation
also detailed who was to be considered a Jew based on ancestry.22
In theory, these regulations allowed Jews to remain members of the state and thus entitled to
the state’s protection, but denied them the rights to which they had been entitled as citizens, primarily
of their political rights. However, as of 1940, one immediately lost one’s state membership by taking
up residence abroad, even if this move was not a voluntary one, such as forced deportation to a
concentration camp, which most were.23
The erosion of rights was implemented in a very legalistic manner by the German
government, beginning with the denial of economic freedoms and leading to denials of political
freedom. Germany systematically stripped Jews of all fundamental rights which are inherent to German
citizenship. The basic guarantees that all Germans had: the right to economic freedoms, the right to
enter into marriage with a person of one’s choice, the right to vote in political matters, and the right of
free movement (which was violated with the incarceration and deportation to concentration camps and
ghettos) were all stripped. It was the loss of the right of protection which was the most significant
violation. Germany recognised that protection of its citizens was a fundamental obligation of the state,
as evidenced by the debates in 1913 when the legislators were determining whether a person should
lose their citizenship after 10 years or be able to retain it indefinitely. One of the reasons that
citizenship could now be retained, it was argued, was because Germany had the ability to protect its
citizens which lived abroad through its consulates and navy.24 The revocation of German citizenship
from Jews diminished this contract between citizen and state; however as subjects they were still, in
theory, afforded protection. The loss of one’s state membership, however, created the legal situation
wherein many of those who were killed in the concentration camps were no longer German citizens,
but stateless persons.25 The strategy of depriving rights through the application of new laws regarding
citizenship and membership in a minority group was hardly unique, and would shortly be mirrored in
the United States.
B. United States Citizenship Policy through World War II
While the United States did not sponsor atrocities of the same sort or on the same scale as
Nazi Germany, the government was responsible for the systematic violation of the citizenship rights of
its Japanese American population; the perpetrators again utilising the legal process to restrict the
actions of its citizens, and to then incarcerate and segregate them from the main populace. The
violations began shortly after the United States entered World War II, with Executive Order 9066
issued on 19 February 1942 by President Roosevelt.
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Executive Order 9066 permitted the Secretary of War and designated military commanders the
right to establish military areas within which the “rights of any person to enter, remain in, or leave” was
subject to the military commander’s discretion.26 Additionally, on 21 March, Congress enacted section
1383 of Title 18 of the U.S. Code - Public Law 503 - which made one’s adherence to the Military
Commanders’ orders mandatory for civilian populations, and failure to comply with said orders left one
subject to criminal penalties.27 These two laws led directly to the incarceration of approximately
120,000 people of Japanese descent within the War Relocation Authority (WRA) camps - 76,000 of
whom were United States citizens, and comprised the majority of the Japanese American population
within the country.28
The first step towards internment was taken by the military commander for the Western region
of the United States, General John Dewitt. Dewitt designated the West Coast (California, Washington
and Oregon) and neighbouring states (Arizona, Idaho, Montana, Nevada, and Utah) as military areas29
and on 24 March 1942 issued Public Proclamation No. 3, declaring:
all alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry
residing or being within the geographical limits of Military Area No. 1 . . . shall be within
their place of residence between the hours of 8:00 P.M. and 6:00 A.M.30
This proclamation also restricted the free movement of Japanese Americans; forbidding them to travel
more then a five mile radius from their homes and places of work during non curfew hours.31
Between March and July, General Dewitt issued 108 different Civilian Exclusion Orders.
These orders forbade “all persons of Japanese ancestry, both alien and non-alien” from remaining in the
areas prescribed and instructed them to report to a specific Civil Control Station. Additionally, Public
Proclamation No. 4 issued a week after the first exclusion order forbade all persons with Japanese
ancestry from leaving the military areas. These two orders, in conjunction, meant that Japanese
Americans had no option other to report to the authorities for relocation to an Assembly Centre. The
constitutionality of the exclusion orders was challenged in the Supreme Court Case, Korematsu v.
United States (1944); however, the court ruled against Korematsu.
Justice Roberts, in his dissenting opinion, summarised the problem Japanese Americans and
permanent residents faced:
The predicament in which the petitioner thus found himself was this: he was forbidden, by
Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after
a date fixed, to be found within that zone unless he were in an Assembly Center located in that
zone. General DeWitt's report to the Secretary of War concerning the programme of
evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to
that document -- and, in the light of the above recitation, I think it is not, -- that an Assembly
Center was a euphemism for a prison. No person within such a center was permitted to leave
except by Military Order.32
Thus, Japanese American rights had been violated on numerous levels including the right to freedom
and the right to a fair trial. The Assembly Centres’, however, were merely an intermediary step
between exclusion and internment. From these Assembly Centres, Japanese Americans were sent out to
one of ten designated internment camps.
A year after the relocation, the loyalty review program began. The program, meant to facilitate
both the drafting of Japanese Americans into the military and as a screening process to begin the
process of granting leave, was severely flawed.33 Due to discord, misinformation and violence within
the camps, the loyalty review program led to over 5,500 revocations of citizenship.
The Loyalty Questionnaire was not intended to cause further discord among the internees,
however the drafting and implementation of the questionnaire was handled poorly. Many internees
were distrustful; they had been promised certain living conditions and the promises had not been
upheld. There was rampant hostility outside of the camps towards Japanese Americans, including
Congressmen who were pushing for revocations of the citizenship of Japanese Americans. The
questionnaire was then administered by the army, of which many Japanese Americans were wary of,
and forced on the internees with little to no explanation.34
The crux of the discord centred on questions 27 and 28 respectively:
[27] Are you willing to serve in the armed forces of the United States on combat duty,
wherever ordered?
Citizenship, law, and injustice
6
[28] Will you swear unqualified allegiance to the United States of America and faithfully
defend the United States from any or all attack by foreign or domestic forces, and forswear
any form of allegiance or obedience to the Japanese emperor, or any other foreign
government, power, or organization?35
The majority of those interned answered yes to both questions, however over 6,000 people
answered no to question 28.36 A “no” response was considered a declaration of disloyalty; however the
reasons for a response of “no” were complex and generally had little to do with individual loyalty or
disloyalty to the United States. The first issue was administrative confusion: internees at some camps
were told that they had to give the same answer to both 27 and 28, while at other camps these questions
were considered separately.37 Internees were not aware of how their answers would be interpreted.
Both the army and the camp officials failed to address these concerns in several of the camps, which
lead to a higher instance of answering no in those areas. In regards to questions 27 and 28, many feared
that “yes” answers would be interpreted as voluntary enlisting into the service, while some utilised a
“no” answer as a protest against the draft while their families were interned. Many responded “no”
because they were concerned that if they were drafted there would be no one to take care of their
families still in the camps.38 Answering “no” therefore, was a way to stay together and ensure the safety
of one’s family. Many feared that if internment ended and they were drafted or deemed loyal while
another family member was deemed disloyal, that they would be separated. This was an issue on
several levels including economic security and physical safety – because of the internments most were
homeless having lost not only their homes, but their businesses and possessions because of their
confinement.39. Question 28, additionally, was believed by many alien Japanese to be worded so that a
yes answer would strip them of Japanese citizenship, while according to than current law - they would
still be unable to obtain American citizenship. Some citizens thought it was a trick; that a yes answer
would prove that at one time they had been loyal and were just then revoking said loyalty. The
questions was eventually reworded, but not before thousands were already branded as disloyal.40
Once the questionnaires were administered, the camps were reorganised into “loyal” and
“disloyal”. These newly segregated camps created more problems for Japanese Americans, as
evidenced by the citizenship issues which arose in the primary centre for disloyal – Tule Lake in
California. Once the camps had been rearranged, the newly arrived “disloyal” internees were subjected
to pressure from gangs to participate in “anti-American” activities. Both gangs and the camp leaders
pressured the internees into requesting repatriation to Japan and to renouncing one’s United States
citizenship. Beatings of those who refused to conform to the gangs’ viewpoint, or who were seen as
cooperating with the camp authorities were common. Misinformation and rumours abounded within the
camps, creating conditions which pushed many to the point that they felt that had no choice but to
renounce their citizenship. Congressmen in Washington D.C., were also attempting to find a legal
method in which to strip Japanese Americans of their citizenship. A solution presented itself with the
problems at Tule Lake requests to be returned to Japan, Congress implemented on 1 July 1944, Public
Law 405, the Renunciation of Citizenship Act.41 The renunciation law, the refusal of the camp
authorities to interfere with the internal workings of the camp (refusing to protect internees against
gang violence and pressure), and the absence of real information from the authorities lent credence to
the idea that the government did not wish to protect its citizens.
During the internment years (1942-1945), almost six thousand people renounced their
citizenship, with ninety-five percent coming from the Tule Lake camp. The renunciations were a
“cumulative process including the stigma of disloyalty from the registration and segregation processes;
the pressures of internee extremists groups, the failure of the government to stop or punish the pressure
groups; the demoralizing effect of four years in the centres; and beatings of evacuees by European
American personnel.”42 Japanese Americans and Japanese permanent residents, had their economic
rights violated, their freedom denied, and were treated as enemy aliens regardless of their citizenship
and without any evidence of previous disloyalty.
C. Conclusions
The actions taken before and during the war in Germany and the United States were quite
different. Within Germany, economic and educational rights were violated first, then marriage rights,
and then the revocation of Jews’ German citizenship and political rights. The right to freedom and life
soon followed as 6 million European Jews were killed in concentration camps. The United States
violated economic rights, judicial rights and the right to freedom of its own Japanese American
citizens, and upon a smaller portion of that group attempted to force denaturalisation. What is common
in these two examples, however, is the method by which each country acted through the domestic laws
7
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to deprive these groups of their rights. The countries not only relied on the law, but undertook the effort
to ensure that each violation or restriction of rights was clearly approved by law, and in the case of the
United States, upheld in the courts as well.43
4.
Restoration of Citizenship
Following World War II, both countries reversed the discriminatory policies, declaring them
illegal in Germany’s case and unconstitutional in the case of the United States. Both restored the
citizenship of many, but not all, of the persecuted citizens who survived the atrocity/injustice.
Germany was fairly straightforward in restoring the citizenship of those citizens deprived of
citizenship during World War II. Article 116, Section 2 of the constitution states:
(2) Former German citizens who between January 30, 1933 and May 8, 1945 were deprived of
their citizenship on political, racial, or religious grounds, and their descendants, shall on
application have their citizenship restored. They shall be deemed never to have been deprived
of their citizenship if they have established their domicile in Germany after May 8, 1945 and
have not expressed a contrary intention.
The United States, however, applied a more complex formula for restoring citizenship due to
the citizenship having been renounced rather then revoked. The question then became a legal one: did
the conditions in the camps lead to voluntary renunciations or had individuals been coerced? Once the
war ended, President Truman ordered all those who renounced their citizenship to be sent to Japan.
Once the perception of hostility and anti-Japanese violence had lessened in the United States, most did
not want to return to war-devastated Japan. Of the 5,700 people who renounced their citizenship,
approximately 5,400 requested that their citizenship be returned on the grounds that those renunciations
were a result of misinformation, coercion and even temporary insanity. Wayne Collins, a lawyer from
the Korematsu litigation, filed over 10,000 affidavits in the legal fight to return Japanese American
citizenships challenging the legality of renunciation during incarceration.44 Acheson v. Murakami,
Sumi, and Shimizu, (1948) ruled that a constitutional right of citizenship can only be waived voluntarily
and that the renunciation within camps were invalid, stating:
Underlying all the particular factors so found as leading to a condition of mind and spirit of
the American citizens imprisoned at Tule Lake Center, which made the renunciations of
citizenship not the free and intelligent choice of the appellees, is the unnecessary and cruel and
inhuman treatment of these citizens (a) in their deportation for imprisonment and (b) in their
incarceration for over two and a half years under conditions in major respects as degrading as
those of a penitentiary and in important respects worse than in any federal penitentiary and (c)
in applying to them the Nazi-like doctrine of inherited racial enmity, stated by the
Commanding General ordering the deportation as the major reason for that action. 45
The fight continued until 1968, and almost 5,000 had their citizenship restored through the court
system.
5
Citizenship, Law and Injustice: Some Conclusions
Whether axis or ally, the methodology of legally sectioned suppression of rights and
revocation of citizenship was similarly applied during World War II. Both Germany and the United
States passed laws or created legal decrees which denied the fundamental right of citizenship to certain
populations based on a prescribed ethnicity. Both countries stripped citizens of their civil rights
including freedom of movement and freedom from incarceration (without a fair trial). Both countries
stripped citizens of their economic rights, including their jobs, homes, and possessions. Both countries
have also acknowledged these acts as illegal or unconstitutional and have restored citizenship to the
majority of the populace who in Germany was still alive and in the United States who fought the
renunciation in court.
The manipulation of rights vis a vis the legislation of discriminatory regulations in Germany
and in the United States permitted and facilitated the Holocaust and the Internments. It is particularly
unsettling to note that although the extremes of these injustices were taken to differ, the means by
which they were achieved were quite similar.
Citizenship, law, and injustice
8
Notes
1
R Brubaker, Citizenship and Nationhood in France and Germany, Harvard University Press,
Cambridge, 1992, pp. 64, 69-70. E Nathans, The Politics of Citizenship in Germany: Ethnicity, Utility
and Nationalism, Berg, Oxford, 2004, pp. 154-157. Citizenship also held the advantage of a greater
freedom to marry. Prior to 1957, German women who married a foreigner automatically were assigned
the citizenship of their husband. For more information on citizenship and gender see Nathans.
2
E K Yamamoto, M Chon, C L Izumi, J Kang and F H Wu, Race, Rights and Reparation: Law and the
Japanese American Internment, Aspen Law & Business, New York, 2001, pp. 35-38. M L Smith,
‘Women and Naturalization, ca. 1802-1940’, in Prologue Magazine, vol. 30, no. 2, Summer 1988,
viewed on 16 February 2008, <http://www.archives.gov/publications/prologue/1998/summer/womenand-naturalization-1.html>. Yamamoto et al. gives an overview of the United States discriminatory
legislation and restriction of rights within the United States prior to World War II, including the alien
land laws, which restricted the right to own land to those who were citizens or of a race eligible for
citizenship. These laws were found in approximately 12 states, including California. Smith reviews
gender and citizenship within the United States, including the loss of citizenship for women who
married a foreigner (changed in 1922).
3
Nathans, pp. 112-114.
4
M Bös, ‘The Legal Construction of Membership: Nationality Law in Germany and the United States’,
in Germany and Europe Working Papers Series 00.5, The Minda de Gunzburg Center for European
Studies at Harvard University, viewed on 20 December 2007, <http://www.ces.fas.harvard.edu/
publications/docs/pdfs/Boes.pdf>, p. 9. As of 1 January 1975 German citizenship is granted if either the
mother or the father is a German.
5
‘German Imperial and State Citizenship Law. July 22, 1913’, in The American Journal of
International Law, vol. 8, no. 3, Supplement: Official Documents, July 1914, p. 218.
6
Brubaker, p. 114, D Gosewinkel, ‘Citizenship and Naturalization Politics in Germany in the
Nineteenth and Twentieth Century’, in D Levy and Y Weiss (eds), Challenging Ethnic Citizenship:
German and Israel Perspectives on Immigration, Berghahn Books, New York, 2002, p. 65.
7
Brubaker, pp. 114-115, Nathans, p. 169.
8
‘German Imperial and State Citizenship Law. July 22, 1913’, pp. 218-219. Citizenship and
naturalisation was not gender neutral. Since the citizenship of a woman was contingent on the
citizenship of her father and then her husband, women, in general, did not naturalise. Article 10 of the
1913 law, however, provided an exception and stipulated that widows and divorced wives of
foreigners, who were German citizens prior to marriage, were eligible for naturalisation.
9
Nathans, pp. 179-181. The objection had to be based “only on facts such as justify the fear that the
naturalisation of the applicant would imperial the welfare of the Empire or the State.” ‘German
Imperial and State Citizenship Law. July 22, 1913’, Article 9, p. 219.
10
United States v. Wong Kim Ark, 169 U.S. 649, 1898.
11
According to the 1870 Census, there were 62,736 Chinese and 55 Japanese (foreign born and native
combined) within the United States, compared to an overall population of 38.5 million. When the first
naturalisation law was introduced in 1790, the census only composed of “Free White”, “All Other Free
Persons” and “Slaves”. See U.S. Census of Population and Housing, 1790: Return of the whole number
of persons within the several districts of the United States, Philadelphia, 1793. U.S. Census of
Population and Housing, 1870: Population of the United States in 1870, Washington: Government
Printing Office, 1872.
12
C J McClain, In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth
Century America, University of California Press, Berkeley, 1994, pp. 36-40.
13
Ozawa v. United States, 260 U.S. 178, 1922.
14
Ozawa v. United States
15
United States v. Thind, 261 U.S. 204, 1923.
16
Yamamoto, et al., pp. 36, 261-263. Comparatively, 2/3 of the yearly quota was given to Great
Britain, Germany and Ireland.
17
‘Law for the Restoration of the Professional Civil Service, April 7, 1933’, in Documents on the
Holocaust, Selected Sources on the Destruction of the Jews of Germany and Austria, Poland and the
Soviet Union, 8th edition, Yitzhak Arad, Israel Gutman, and Abraham Margaliot (eds), University of
Nebraska Press, 1999, document no. 10.
18
‘First Regulation for the Implementation of the Law for the Restoration of the Professional Civil
Service, April 11 1933’, in Documents on the Holocaust, Selected Sources on the Destruction of the
Jews of Germany and Austria, Poland and the Soviet Union, 8th edition, Yitzhak Arad, Israel Gutman,
and Abraham Margaliot (eds), University of Nebraska Press, 1999, document no. 11.
9
Stephanie Wolfe
19
‘Law Against Overcrowding of German Schools and Higher Institutions of 25 April 1933’, in Nazi
Conspiracy and Aggression Volume IV, The Avalon Project at Yale University, viewed on 19
November 2005, <http://www.yale.edu/lawweb/avalon/imt/document/nca_vol4/2022-ps.htm.>
20
‘Law for the Protection of German Blood and German Honor, 15 September 1935’, on Shofar FTP
Archive File, viewed on 20 November 2005, <http://search.nizkor.org/ftp.cgi?places/germany/
nuremberg/nuremberg.003>
21
Article 1.2 stated: “The status of a subject is acquired in accordance with the provisions of the Reichand State Law of Citizenship.” ‘The Reich Citizenship Law of 15 Sept 1935’, in Nazi Conspiracy and
Aggression Volume IV, The Avalon Project at Yale University, viewed on 20 November 2005,
<http://www.yale.edu/lawweb/avalon/imt/document/nca_vol4/1416-ps.htm>
22
‘First Regulation under the Reich Citizenship Law, 14 November 1935’, on Shofar FTP Archive
File, viewed on 20 November 2005, <http://search.nizkor.org/ftp.cgi?places/germany/nuremberg/
nuremberg.003>.
23
Most destinations for Jewish deportees (i.e. concentration camps) were defined as “abroad”.
Brubaker, pp. 167-168.
24
Brubaker, p. 117.
25
Brubaker, pp. 167-168.
26
Executive Order 9066, February 19, 1942.
27
Korematsu v. United States, 323 U.S. 214, 1944
28
U.S. Census of Population and Housing, 1940: Summary Population and Housing Characteristics.
Washington: Government Printing Office, 1942. There were 120,313 people under the control of the
War Relocation Authority. Comparatively in 1940, there were 126,947 people residing within the
United States who were classified as Japanese; 93% living in three of the exclusion states: California,
Oregon, and Washington and 79,642 being native born citizens. This excludes the territory of Hawaii,
whose Japanese American population comprised 32% of the populace. Hawaii’s population was not
interned, with the exception of 2,000 people who were brought in immediately following Pearl Harbor.
29
Gordon Hirabayashi V. United States 320 US 81, 1943.
30
Gordon Hirabayashi V. United States quoting Public Proclamation No. 3. 7 Federal Register 2543.
31
P Irons, Justice At War: The Story of the Japanese American Internment Cases, University of
California Press, Berkely, 1983, p. 70.
32
Korematsu v. United States, 323 U.S. 214, 1944
33
United States: Commission on Wartime Relocation and Internment of Civilians, Personal Justice
Denied: Report of the Commission on Wartime Relocation and Internment of Civilians, University of
Washington Press, Seattle, 1997, pp. 189-191.
34
United States: Commission on Wartime Relocation and Internment of Civilians, p. 192.
35
United States: Commission on Wartime Relocation and Internment of Civilians, pp. 191 – 192.
36
Grodzins, M., ‘Making Un-Americans’, in The American Journal of Sociology, vol. 60, no. 6, May
1955, p. 570.
37
Grodzins, pp. 527 - 575.
38
United States: Commission on Wartime Relocation and Internment of Civilians, pp. 192 – 194.
39
Grodzins, pp. 572-576.
40
United States: Commission on Wartime Relocation and Internment of Civilians , pp 191 – 197;
Grodzins, pp. 572-576.
41
United States: Commission on Wartime Relocation and Internment of Civilians, pp. 248 - 249.
42
Yamamoto et al, p. 227.
43
The internment cases were: Hirabayashi V. United States, Yasui v. United States (regarding the
curfew), Korematsu v. United States, and Ex Parte Endo (regarding detention of “loyal” Americans).
Each internment case failed except Endo. Endo concluded the detainment of loyal Americans was not
allowed; however, the judgement was released the day after the internment ended.
44
United States: Commission on Wartime Relocation and Internment of Civilians, pp. 250-251.
45
Acheson v. Murakami, Sumi, and Shimizu, 176 F. (2d) 953. U.S Ct. App, Ninth Circuit, August 26,
1949.
Bibliography
Bös, M., ‘The Legal Construction of Membership: Nationality Law in Germany and the United States’.
Germany and Europe Working Papers Series 00.5, The Minda de Gunzburg Center for
European Studies at Harvard University, viewed on 20 December 2007,
<http://www.ces.fas.harvard.edu/publications/docs/pdfs/Boes.pdf>.
Citizenship, law, and injustice
10
Brubaker, R., Citizenship and Nationhood in France and Germany. Harvard University Press,
Cambridge, 1992.
Executive Order 9066, February 19, 1942.
‘First Regulation for the Implementation of the Law for the Restoration of the Professional Civil
Service, April 11 1933’. Documents on the Holocaust, Selected Sources on the Destruction of
the Jews of Germany and Austria, Poland and the Soviet Union. 8th edition, Arad, Y., Gutman,
I., and Margaliot, A. (eds), University of Nebraska Press, 1999, document no. 11.
‘First Regulation under the Reich Citizenship Law, 14 November 1935’, on Shofar FTP Archive File,
viewed on 20 November 2005, <http://search.nizkor.org/ftp.cgi?places/germany/nuremberg/
nuremberg.003>.
‘German Imperial and State Citizenship Law. July 22, 1913’. The American Journal of International
Law, vol. 8, no. 3, Supplement: Official Documents. July 1914, pp. 217-227.
Gordon Hirabayashi V. United States 320 US 81, 1943.
Gosewinkel, D., ‘Citizenship and Naturalization Politics in Germany in the Nineteenth and Twentieth
Century’. Levy, D. and Weiss, Y. (eds). Challenging Ethnic Citizenship: German and Israel
Perspectives on Immigration. Berghahn Books, New York, 2002, pp. 59-75.
Grodzins, M., ‘Making Un-Americans,’ The American Journal of Sociology. vol. 60, no. 6, May 1955,
pp. 570-582.
Irons, P., Justice At War: The Story of the Japanese American Internment Cases. University of
California Press, Berkeley, 1983.
Korematsu v. United States, 323 U.S. 214, 1944
‘Law Against Overcrowding of German Schools and Higher Institutions of 25 April 1933’. Nazi
Conspiracy and Aggression Volume IV. The Avalon Project at Yale University, viewed on 19
November 2005, <http://www.yale.edu/lawweb/avalon/imt/document/nca_vol4/2022-ps.htm.>
‘Law for the Protection of German Blood and German Honor, 15 September 1935’ on Shofar FTP
Archive File, viewed on 20 November 2005, <http://search.nizkor.org/ftp.cgi?places/germany/
nuremberg/nuremberg.003>.
‘Law for the Restoration of the Professional Civil Service, April 7, 1933’. Documents on the
Holocaust, Selected Sources on the Destruction of the Jews of Germany and Austria, Poland
and the Soviet Union. 8th edition, Arad, Y., Gutman, I., and Margaliot, A. (eds), University of
Nebraska Press, 1999, Document no. 10.
McClain, C. J., In Search of Equality: The Chinese Struggle against Discrimination in NineteenthCentury America. University of California Press, Berkeley, 1994.
Nathans, E., The Politics of Citizenship in Germany: Ethnicity, Utility and Nationalism. Berg, Oxford,
2004.
Ozawa v. United States, 260 U.S. 178, 1922.
‘The Reich Citizenship Law of 15 Sept 1935’. Nazi Conspiracy and Aggression Volume IV. The
Avalon Project at Yale University, viewed on 20 November 2005, <http://www.yale.edu/
lawweb/avalon/imt/document/nca_vol4/1416-ps.htm>.
Smith, M. L., ‘Women and Naturalization, ca. 1802-1940’. Prologue Magazine, vol. 30, no. 2, Summer
1988, viewed on 16 February 2008, <http://www.archives.gov/publications/prologue/1998/
summer/women-and-naturalization-1.html>.
United States v. Thind, 261 U.S. 204, 1923.
United States v. Wong Kim Ark, 169 U.S. 649, 1898.
United States: Commission on Wartime Relocation and Internment of Civilians, Personal Justice
Denied: Report of the Commission on Wartime Relocation and Internment of Civilians.
University of Washington Press, Seattle, 1997.
U.S. Census of Population and Housing, 1790: Return of the whole number of persons within the
several districts of the United States. Philadelphia, 1793.
U.S. Census of Population and Housing, 1870: Population of the United States in 1870. Washington:
Government Printing Office, 1872.
U.S. Census of Population and Housing, 1940: Summary Population and Housing Characteristics.
Washington: Government Printing Office, 1942.
Yamamoto, E. K., Chon, M., Izumi, C. L., Kang, J. and Wu, F. H., Race, Rights and Reparation: Law
and the Japanese American Internment. Aspen Law & Business, New York, 2001.
Author Affiliation:
The author is completing a Ph.D at the University of Kent, Brussels on the Differential Application of
Restorative Justice in Reparation Politics examining Germany, Japan and the United States.