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American Quarterly EditorsEditor: Sarah Banet-Weiser, University of Southern California Associate Editor: Rosa-Linda Fregoso, University of California, Santa Cruz Associate Editor: Claire Jean Kim, University of California, Irvine Associate Editor: Shelley Streeby, University of California, San Diego Associate Editor: Daniel Widener, University of California, San Diego Book Review Editor: Glenn Hendler, Fordham University Event Review Editor: Karen Tongson, University of Southern California Managing Editor: Jih-Fei Cheng, University of Southern California American Quarterly Board of Managing EditorsMacarena Gómez-Barris, University of Southern California Judith Halberstam, University of Southern California Kara Keeling, University of Southern California Josh Kun, University of Southern California George Lipsitz, University of California, Santa Barbara Kelly Lytle-Hernandez, University of California, Los Angeles Tara McPherson, University of Southern California Natalia Molina, University of California, San Diego Julie Sze, University of California, Davis Executive Director: John F. Stephens, ex officio, American Studies Association American Quarterly Board of Advisory EditorsNed Blackhawk, University of Wisconsin, Madison Anna Brickhouse, University of Virginia Bruce Burgett, University of Washington, Bothell Sharon P. Holland, Duke University Min-Jung Kim, Ewha Woman’s University, Korea Melani McAlister, George Washington University Maria E. Montoya, New York University Roopali Muhkerjee, City University of New York, Queens José Muñoz, New York University Kent Ono, University of Illinois, Champaign-Urbana Carolyn de la Peña, University of California, Davis Donald Pease, Dartmouth College Brenda Gayle Plummer, University of Wisconsin, Madison Marita Sturken, New York University Penny Von Eschen, University of Michigan Executive Director: John F. Stephens, ex officio, American Studies Association |
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Legal Borderlands: Law and the Construction of American Borders , Vol. 57, No. 3
Introduction
Romantic Sovereignty: Popular Romances and the American Imperial State in the Philippines
Romantic Sovereignty examines U.S. imperial governance in the Philippines in relation to popular turn-of-the-century romances. Placing these novels alongside bureaucratic and legal discourses, the essay looks at how the literary modes of realism and romance mapped onto modes of governance. By moving between realism and romance according to a particular narrative logic, these novels created a convention for transforming seemingly insurmountable contradictions between ordinary and extraordinary acts of governance into a powerful form of regulation. The essay claims that this form of regulation ultimately allowed the state to be a peculiar kind of narrative object, one that marked ordinary governance (civil service) as incongruous to extraordinary state actions (like state violence), and yet one that also articulated these forms of state power together. In other words, the convention that this essay explores produced a stable instability that allowed the imperial state a wide latitude for action over racially marked populations and yet still allowed it to appear as a coherent element within the romantic narrative of U.S. empire.
Where Is Guantnamo?
This essay argues that Guantnamo lies at the heart of the American Empire. The legal status of the prisoners there must be understood in the context of an imperial history that dates back to the US occupation of Cuba in 1898. This history explains how the U.S. Naval Station, Guantnamo Bay, Cuba, has become an ambiguous space,both inside and outside national and juridical borders and how this ambiguity reinforces the harsh penal regime. The essay argues that the legacies of U.S. imperialism inform key contemporary debates about Guantnamo: the question of national sovereignty, the codification of the prisoners as enemy combatants, and the uncertainty about whether the U.S. Constitution holds sway there. Turning to the 2004 Supreme Court decision, Rasul v. Bush, the essay argues that the justices are not only interested in restraining executive power to bring Guantnamo within the rule of domestic law; they also show concern with the scope of U.S. power in the world and the extent to which the judiciary should accompany or limit U.S. military rule abroad. A close reading of the Supreme Courts decision and dissent shows that the logic and rhetoric of Rasul v. Bush rely on and perpetuate the imperial history the decision also elides. In concert other recent decisions about civil liberties and national security, Rasul v. Bushcontributes to the global expansion of U.S. power by reworking the earlier history of imperial rule. The Courts legal decisions respond to the changing demands of empire today by creating new categories of persons before the law that extend far beyond Guantnamo Bay, Cuba.
Canton Is Not Boston: The Invention of American Imperial Sovereignty
What is Americas place in the history of international law, and what is Chinas? From the beginning, international law was premised on the exclusion of those outside of Europe, first on the basis of religious, then cultural, difference. In declaring its independence in 1776, the United States overthrew its colonial yoke and insisted on political parity with the sovereign states of Europe. Yet it remained an open question how the young nation would organize its political relations with the extra-European world. The United States rejected (ostensibly) all forms of territorial imperialism, and it appeared during the first decades of the nineteenth century that it would in fact treat Oriental states as sovereign equals. However, in its first treaty with Chinaa Treaty of Peace, Amity and Commerce, signed in 1844the United States obtained the right of extraterritorial jurisdiction in China. For the next century, Americans in China were subject only to the laws of the United States, each U.S. citizen becoming effectively a floating island of American sovereignty in the middle of the Chinese empire. Ultimately, the expectation of extraterritoriality in dealings with states of the Asia-Pacific region became a hallmark of American-style non-territorial imperialism through the beginning of the twentieth century. To explain the ideological transformation in American diplomacy from an assumption of equality among states to an Orientalist expectation of extraterritorial privileges for American citizens among uncivilized peoples, this essay first considers Americas place in the global expansion of (Western) international law and then analyzes how the United States re-configured its legal relationship to Europe and the rest of the world in the post-Revolutionary era. After a short account of Americas early trade relations with China, Ruskola analyzes the conventional narrative about Britains aggressive role in opening China for free trade in the Opium War, and then contrasts it with the received wisdom about Americas special relationship with China. Questioning the latter view, the essay suggests that the 1844 Treaty of Wanghia was a constitutive moment in U.S. political relations with Asia. By re-narrating the early history of American foreign relations, the main author of the treaty, Caleb Cushing, invented a historically unfounded but politically potent form of American imperial sovereignty, which became dominant in the Pacific in the second half of the nineteenth century. Moreover, this practice of American imperial sovereignty became a model for various European imperial nations that entered into their own extraterritoriality treaties in the following years, thus signaling Americas rise to the status of imperial state in its own right. Finally, the essay turns to the Chinese Exclusion Laws in the United States, to analyze how the differential construction of sovereignties operated on this side of the Pacific. Remarkably, the law of nations was seen to give Americans both the right to open China for the entry of Americans and the right to exclude Chinese from the United States.
Liberation Under Siege: U.S. Military Occupation and Japanese Womens Enfranchisement
Liberation under Siege analyzes knowledge produced about Japanese womens enfranchisement under U.S. military occupation, 1945-52. American popular memory remembers that Douglas MacArthur liberated Japanese women but forgets that the space in which Japanese womens civil rights was realized was one of un-freedom and non-rights. The article reveals the ways in which mainstream and other U.S. media representations over the transwar decade (from 1940 through 1955) contributed to the initial knowledge formation regarding how Japanese women obtained legal and other rights while under occupation. Relying on the critiques of liberal and radical feminisms by Third World and other feminists of color, the article demonstrates that the knowledge that uni-dimensionally celebrates the U.S. liberation of Japanese women while obscuring the reality of military occupation was in large part facilitated by what might best be termed a cold war feminism. Prescribing equal opportunity for women while insisting on a pure notion of gender and the disavowal of race, class, colonial, and other social relations, this feminism ultimately allowed the United States to assert itself as the liberator and rehabilitator of the defeated enemy while masking the paradox of the simultaneity of violence and benevolence. Moreover, cold war feminisms representation of Japanese womens liberation was intimately tied to the American audiences subjecthood: the presence of Japanese women helped contain American women domestically while centering them securely within cold war global politics. Finally, the article demonstrates that the knowledge concerning Japanese womens enfranchisement has enduring ideological effects as it continues to be mobilized in the current post-9/11 milieu. Popular memories of Japanese womens enfranchisement reinforces the belief that U.S. military operations serve the purpose of rescue and rehabilitation, so much so that they remain vital to the production of U.S. just war narratives. In order to undo this myth that propels us into wars and military occupations, it is crucial to remember that the celebrated space of womens liberation was simultaneously one of liminality, a legal borderland in which U.S. sovereignty asserted itself by both suspending and granting the rights of people under siege.
Between Camps: Eastern Bloc Escapees and Cold War Borderlands
During the early cold war, the Truman administration fabricated a new legal status that helped consolidate the cold war border between east and westslave world and freeby the act of transgressing it. This unique person was the escapee. Over the cold wars forty-five year duration, eastern bloc exiles achieved considerable prominence in the United States, whether as dancers, chess players, writers, or physicists. Yet the legal and intellectual ingenuity required to produce the escapee, and the complications this endeavor encountered, have evaded scholarly scrutiny. In the main, scholars have conflated this category with the refugee, commonly asserting that Washington not only molded international conventions to its own ends but reconfigured domestic immigration policy in the interests of opening U.S. borders to symbolically-freighted entrants from the eastern bloc. But on closer inspection, assumptions about the ease with which Washington manipulated cold war escapology appear unwarranted. Focusing on the United States Escapee Program (launched in 1952), this essay highlights the international and internecine conflicts that surrounded the orchestration of cross-border flight, the fabrication of a unique legal subject, the escapee, and the production of meaning from this phenomenon. The exhortation to flight, delineation of a specific escapee identity, and disposal of its incumbents were processes simultaneously enabled and constrained by law. To encourage foreign nationals exodus was a profoundly unorthodox practice of statecraft, destabilizing sovereign norms in its assault on territorial boundaries. Whether Washington wished to encourage a mass exodus of Soviet bloc citizens, or engage in a more restricted policy of encouraging elite defections, wavered in the balance. The most contentious question, however, remained how to employ, and where to resettle, individuals whose symbolic significance exceeded their desirability as putative citizens. The early 1950s constituted a moment when anti-communism and nativism found common cause. Thus for all that the escapee appears a privileged recipient of cold war patronage, reading the cultural narratives spun from escape against the conflicted circumstances of escapees lives suggests something different. The intimation of inclusion extended by a nation of escapees often proved chimerical. Encamped between camps, suspended in both space and time, those who breached the iron curtain existed in precarious limbocaught between the administrations desire to promote escape and powerful legislators disinclination to accommodate those who did so within the United States. Summoned to both defy and define cold war borders, escapees were commonly relegated to the shadowy interstices of sovereign space: the borderland where east and west, foreign and domestic, symbolic and material awkwardly overlapped.
The Biopolitics of Security: Oil, Empire, and the Sports Utility Vehicle
Oil and U.S. security policy are often said to go hand in hand. While that is the case, this paper argues that the nature of the relationship is such that oil should not be seen as an external, mechanistic, material cause. Using some of the insights of Michael Hardt and Antonio Negris Empire in conjunction with a conception of biopolitics inspired by Michel Foucault, and drawing on Campbells earlier work concerning U.S. foreign policy and the politics of identity, this article details how a more complex, network-oriented understanding of the relationship between oil and security refigures the question of national identity and responsibility. Central to the argument is the development of the sports utility vehicle (SUV), and the way in which the politics of consumption and desire embodied in this automobile has been enabled by domestic laws and regulations that combine to produce transnational effects. As an iconic part of the hybrid assemblage known as automobility, the SUV performatively enacts key elements of American national identity, and is integral to the problems of contemporary geopolitics, which are inscribed within biopolitical networks.
Setting the Conditions for Abu Ghraib: The Prison Nation Abroad
This article explores the intersection of punishment, democracy, and the law at Abu Ghraib, an unusually complex instance of American imprisonment in a transnational context. As the story of Abu Ghraib unfolds, the limits of that narrative are being constructed primarily by and through law. This legal contest centers in many ways upon how various kinds of law will come to view events at the Baghdad prison while under American occupation and which vision of law will be privileged. The stakes of that contest, much like the conditions at the prison, are centered in a vocabulary of interrogation, accountability, blame, and retribution. Through a discussion of the predominant legal frames surrounding Abu Ghraib, including what the law can and cannot name, the author argues that a public discourse coded in penal terms has helped set the conditions for what Judith Butler refers to as a new war prison, rife with possibilities for the violation of human rights. Such unprecedented penal expenditures mark the global emergence of a new discourse of punishment, one whose racial divisions and abusive practices are revised into a technical, legal language of acceptability where Americans are conveniently further distanced from the social realities of punishment through strategies of isolation and exclusion. In this respect, the new war prison is constituted by both material practices and a discursive language whose expansion and intensification need recognize no limits, borders, or bounds. For these reasons, Abu Ghraib marks a critical site from which to consider how what it means to do American studies is irrevocably bound up with the practice and conjugation of U.S. punishment, not simply at home but abroad, and especially in those spaces lost somewhere in between in a time of empire.
At the Boundaries of Law: Executive Clemency, Sovereign Prerogative, and the Dilemma of American Legality
In this essay the author examines the issue of borders and borderlands in regard to the rule of law itself. Sarat looks at the way courts and judges chart the boundaries of legality as they wrestle with sovereignty and sovereign prerogative. Sovereignty troubles the rule of law by being at once prior to, and yet a product of, it. Sovereignty in a constitutional democracy exists in a legal borderland, where ideas of principled predictability and meaningful constraints on officials meet their limits. Sarat takes up one example of sovereignty prerogative, namely executive clemency, and examines its treatment in and by law. Executive clemency provides an arena in which to examine how law explains and justifies gaps in its facade of principled predictability and constraint. In its dealings with executive clemency, law authorizes a kind of lawlessness, or acknowledges the limited ability of rules to tell officials how, when, and why they may exercise the power accorded to them. Here we see law constructing and policing its own boundaries, boundaries within which, on its own account, prerogative power cannot be contained. In the jurisprudence of clemency we find laws borderland and, as in all borderlands, uncertainty and anxiety as well as possibility and opportunity.
Racial Naturalization
Notes toward a Queer History of Naturalization
Studies of sexuality and U.S. citizenship have offered rich and transformative insights about the ways in which ideologies of the nation both shape and are shaped by questions of sexuality. But existing scholarship has less frequently and consistently attended to the ways that the state itself might be understood as sexualized. This article begins to trace a queer history of the formal mechanisms that the state uses to produce new citizens by focusing on the earliest federal law on naturalization, passed in 1790, as well as contemporaneous commentaries on immigration and acquired citizenship in the early national period. I argue that we should be more skeptical of the distinction typically drawn between birthright citizenship and naturalization ascriptive vs. consensual. Instead, I show how the opposition between the two models actually serves to mask the ways that both birthright citizenship and naturalization have historically been embedded within (hetero)sexualized understandings of production. Rather than breaking with a model of citizenship based on bloodline, the very language of naturalization has been encumbered with assumptions about a reproductive subject, and so tends to reinforce the model of an organic, sexually reproduced citizenry. Despite its potential to make good on the liberal promise of consent, even naturalization cannot escape a logic of belonging that depends upon the transmission of citizenship through biological reproduction. This is not simply because legislation has tended to instantiate exclusionary ideologies of identity (race, gender, class, sexual orientation) that have spoiled the liberal promise of citizenship in the U.S., but also, and perhaps more stubbornly, because this blood logic is embedded within the very metaphors through which such a form of producing citizenship is imagined.
Outlawing Coolies: Race, Nation, and Empire in the Age of Emancipation
Exploring the ambiguous status of coolies in nineteenth-century American culture and law, Outlawing Coolies proposes an alternative interpretation of the first federal laws restricting immigration into the United States. Rather than focusing on the modern immigration system that the Page Law (1875) and the Chinese Exclusion Act (1882) inaugurated, Jung examines their legal and political precedents: slave trade prohibitions. Through diplomatic correspondence from China and Cuba, proslavery propaganda from the Old South, and antislavery legislative efforts in Congress, he demonstrates how coolies came to embody coerced labor in the age of emancipation. The antebellum equation of coolies with enslaved plantation labor in the Caribbean eventually drove Republicans to prohibit American participation in the international trafficking of coolies during the Civil War. This little known law of 1862, he suggests, reflected and established a racial logic that would enable the passage of anti-Asian immigration restrictions as antislavery, pro-immigrant measures. Outlawing coolies also allowed the U.S. nation-state to deepen and defend its imperial presence in Asia and the Americas under the banner of freedom.
Between Oriental Depravity and Natural Degenerates: Spatial Borderlands and the Making of Ordinary Americans
This article examines how a series of California court cases in the 1910s and 1920s recast the boundaries of American masculinity by tackling the ambiguities of sexual and social interaction between male adolescents and Asian migrant workers. Specifically, the prosecutors and police characterized South Asian and Chinese men as the importers of unnatural sexual practices. Police suspicion of illicit and immoral activity remade the spatial locations of contactthe streets, alleys, boardinghouses, labor camps, and ranches where migrant workers congregatedinto borderlands spaces. My critical approach tracks the transit of migrant workers and how their presence proliferates borderlands spaces along and beyond national borders. The surveillance of interracial contact and alleged sexual activity remade transient domestic and leisure spaces into sites of public scrutiny. My analysis tracks how prosecutors and judges deployed categories of normality and degeneracy to create racialized and sexualized typologies of masculinity to police the relationships of roaming male youth and foreign migrants in the early twentieth century. I argue that the jurisprudence in these cases reinterpreted and combined three seemingly distinctive strands of case law sodomy, statutory rape, and vagrancy to both explain and punish the contact between Asian migrants, domestic transients, and male adolescents. Yet the sexual and moral ambiguity of male adolescence confounded the jurists, forcing them to consider whether a youth was innocent, criminal, or delinquent. The protection of a specific male victim, however, became secondary to the protection of American society and civilization and the affirmation of normative masculinity. By extending the interpretive methodologies of queer borderlands scholars, this analysis denaturalizes the normalizing project of American nationality, masculinity, and heterosexuality. The policing of internal and external nomadic subjects revealed the ambiguity and insecurity of cross-racial and cross-class intimacy and intensified the fixing of new social boundaries of perversity and normality in the first decades of the twentieth century.
Toward a History of Statelessness in America
In the Shadow of NAFTA: Y tu mam tambin Revisits the National Allegory of Mexican Sovereignty
The film Y tu mam tambien, directed by Alfonso Cuarn, provides an occasion to analyze how gendered and sexual subject formation inevitably unfolds within a context of global economic relations, on the one hand, and racialized colonial legacy, on the other. This seemingly innocent story of two boys discovering their sexuality while accompanying a dying Spanish woman on a cross-country jaunt is often dismissed by cultural critiques as Mexican cinema "lite", especially when contrasted with the first Mexican cross-over sensation Amores perros. However, I suggest that the film offers more radical insight into the formation of Mexican subjectivity and the possibility of representing subalternity within this subjectivity then its predecessor. This essay unfolds in two parts, with the first section considering the role colonial fantasy plays in the psychic formation of Mexican masculinity. Using a psychoanalytic approach, I explore how the Oedipal crisis is ambivalently resolved between the film's two young male protagonists, Julio (Gael Garcia Bernal) and Tenoch (Diego Luna), as they vie for the sexual attention of a substitute mother figure in Luisa (Maribel Verd). The boys' homoerotic desire for each other is well accounted for by Freud in the Oedipal complex; however, the role of the mother-figure in this film augments the psychoanalytic script in interesting ways. Luisa, as the mother-substitute, is neither a member of the Mexican bourgeois, represented by Tenoch, nor of the striving middle class, represented by Julio. Either scenario might have placed Y tu mam tambien within a predictable ambit of Mexican revolutionary or post-revolutionary nationalist film. Instead, the object of maternal desire is a beautiful, dying Spanish woman, thereby suggesting that the Oedipal crisis for these two boys unfolds against a lost ideal of maternity, that hidden Spanish character within Mexican mestizaje. The timing of this return to the colonial fantasy of Spanish nurturing of a narcissistic nationalism coincides with a moment of historical time in which Mexican national identity, and particularly its subaltern character, is threatened with extinction by free trade economics and the homogenizing force of capitalist expansion. Thus, the geography of Mexico is de-nationalized even as the boys re-stage and conflate colonial expansion and sexual possession in their travel narrative. This dispossession is registered in the film through a series of silences that hiccup through the narrative as interruption to the primary script. I consider how it is that director Alfonso Cuarn represents the unrepresentable through these "subaltern" silences. In the break of the dominant script from the formation of bourgeois masculinity, the subaltern aspects of Mexican character emerge as violent interruption at margins of the national script, and, as always, bracketed by silence. This marginal existence repeatedly forces its way into the dominant script of Mexican masculinity, only to be threatened with erasure, as the effects of NAFTA are registered in the disappearance of any viable economic alternatives for the indigenous elements of Mexican character. Nevertheless, a question remains concerning the film's own attachment to a lost ideal of subalternity: how is the script of the film melancholically re-living a nostalgic past of revolutionary nationalism in its heroic representation of Mexican peasant culture? It is my hope that this essay will make evident how the psychic formation of Mexican masculinity is racially codified, and necessarily dependent on an economic narrative as well.
The Edges of Empire and the Limits of Sovereignty: American Guano Islands
The origins of the legal framework of U.S. overseas expansion can be traced to a largely forgotten mid-nineteenth campaign to secure a sprinkling of remote oceanic islands for the benefit of American commerce and industry. These guano islands, which promised American farmers cheap and nearly miraculous fertilizer (in the form of deep deposits of seabird droppings), aroused enormous public passion in an agricultural nation poised to become a global power. Could the United States acquire these islands? If so, were they part of the United States? Who had jurisdiction over them, and what were the implications for the Constitution and the law of nations? This essay offers a legal history of the relationship between American-claimed guano islands and the United States. Examining American efforts to take control over guano islands in the nineteenth century, and to make sense of their legal status, the essay uses the story of these islands to shed light on more familiar features of American territorial expansion and imperialism. Not only were the meanings of specific terms central to the jurisprudence of the post-1898 American empire codified in the legal wranglings over guano islands, so too were larger principles of extra-territorial jurisdiction. In the end, the episode sheds light on a significant dynamic in the law of empire: expansions of power may be attended by legal retrenchments; from the nineteenth century through to the twentieth, the plus ultra of the flag and the creative inertia of the law mutually reinforce colonial ambitions.
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