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In what way is gender relevant to constitutional citizenship? This is a genuine question, although, perhaps, more tendentious than open-minded. As intended, it assumes that gender is relevant, but in what way remains to be established.

My current research on this question focuses on a particular aspect of history that sounds arcane and, once explained, may seem minor, but that was in reality of major significance: marital denaturalization.

‘Marital denaturalization’ refers to the legal practice of stripping citizenship from women who married foreign men. The idea was that a woman who married ‘out’ ceased to be a citizen of her own country. It took legislative form, at one time or another, between the mid-nineteenth and the mid-twentieth centuries, in virtually every part of the world. It coincided with (and, I argue, was related to) key developments in the formation of the modern constitutional state: the democratisation of political and legal rights (paradoxically, including for women), the growth and solidification of international relations, and the shift from common law to statute in regulating the status of citizens.

Marital denaturalization provisions were found in most countries’ citizenship laws; they were also implicated in laws and practices governing diplomacy, the classification of aliens (including enemy aliens), the right to hold property, the taking of oaths, the changing of names, and more. Each country had its own nuances, but each was committed to the un-nuanced practice of denaturalizing a whole class of married women. Countless numbers of women were affected. This practice was situated in a large, international landscape.

The post-revolutionary constitutional state required a new legal classification of persons. The modern concept of citizenship emerged. Allegiance to a particular state displaced allegiance to the monarch. Allegiance was essentially an attribute of male citizens; women’s allegiance was derivative.

The assumption was that a woman held her husband’s citizenship (although this had not been the case under common law). Women who married alien men therefore presented a classification problem. They had, it was assumed, shifted allegiance, and could no longer be classified as citizens. Transformed into aliens, they lost those political rights they had acquired, as well as the protection of their former constitutional sovereign. They lost what are, effectively, the defining characteristics of the modern citizen: political rights and state protection. We arrive at this understanding of citizenship via the gendered history of loss. So, rather than a story about women, this is a story about the citizen and the modern state.

(I discuss this further in my SSRN paper: ‘When Women were Aliens: The Neglected History of Derivative Marital Citizenship' http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2110546 )

This history has received scant attention. Several wonderful scholars in the U.S. have chronicled their own country’s marital denaturalization laws, but have explained these primarily as serving the goals of America’s racial-exclusion policies. The temporal coincidence of denaturalization laws around the world has gone unnoticed. At the time, however, the international community noticed. Years of campaigning by citizenship equality advocates, plus a growing worldwide recognition that marital denaturalization increasingly led to statelessness, attracted the attention of the League of Nations and finally the United Nations. It concluded in the UN Convention on the Nationality of Married Women, which came into force in 1958, and which proscribed laws that changed a woman’s citizenship by marriage, without her consent. The events that led to this conclusion are complex, and their consequences were at times tragic. But they underscore both the practical and the existential dimension of constitutional citizenship.

Is this the end of the story? Are women now (in the ‘west’ at least)– as equal bearers of legal citizenship and political rights – full citizens? Is gender no longer relevant to constitutional citizenship?

The focus has shifted. A growing body of literature on the constitutional ‘person’ and membership of the constitutional state has generated multiple sub-categories. Alongside constitutional citizenship, we find constitutional identity, constitutional patriotism, constitutional belonging, and more. These converge around a shared concern with pluralism and difference: with ways of reconciling the commonality of constitutional membership with the plurality of its members. The principal concern of such literature – indeed, the virtually exclusive concern - is ethno-cultural difference and the strains this creates on the liberal-constitutional consensus. But, while theories of constitutional identity and constitutional citizenship turn on difference, they almost uniformly neglect a universal and critical form of difference: gender.

What, it will be asked, is particular about women that needs recognition or reflection in the constitutional state? Aren’t women an entirely disparate group, with no more in common than their mere biological characteristics, and aren’t we opposed to essentialism these days, having seen the oppressive stereotyping it permitted in the past?

I will explore these questions further in another post, focusing on the recent Cardozo Law Review Symposium on Michel Rosenfeld’s The Identity of the Constitutional Subject, a work in which the female subject is all but invisible.