The Passport in America: The History of a Document (22 page)

The awareness that the documentation of identity did not necessarily verify a preexisting identity is an example of how documents generated in a bureaucracy help make the world they inhabit.
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A passport was not a neutral representation of identity, despite its emergence within claims to neutrality articulated in the logic of bureaucratic objectivity; to standardize and centralize identification is to exclude. As noted a document such as the passport reduced or “simplified” identity to merely that which could facilitate the official recognition of the inhabitants of a territory by creating an official identity that enabled a person to exist within a bureaucracy.
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Identity had to be broken down into recordable evidence in the form of specific facts. Critically, each fact had to be intentionally processed so it could be placed in an organized and meaningful relationship with other facts to constitute an individual’s identity.
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The passport then had to be produced in such a way that it accurately and reliably represented this identity to people outside of the bureaucracy that created it. The previous chapters have taken specific identification technologies to trace how a correspondence was created between them and a person, or at least how they came to be accepted as offering the possibility of facilitating the accurate identification of a person
by linking that person to a document. The ad hoc development of these newer, more objective claims to identity, and the tension between them and the subjective claim to identity creates the contested emergence of the passport as an identification technology.

The attempts to control the production and representation of identity beginning in the mid-nineteenth century through bureaucratically issued documents were intended to reduce personal discretion and leaps of faith in official identification. These attempts would eventually coalesce into a widely accepted documentary regime of verification. This occurred as officials came to depend more and more on specifically issued documents in the belief that they returned an acceptable degree of certainty to the official identification of individuals. However, in the attempt to realize these aspirations, the passport in the United States emerged as an accommodation to a variety of disputes over its authority and function. While the stabilization of identity was articulated through bureaucratic claims to objectivity, its manifestation in the passport was subject to numerous logical and local contingencies. Therefore, while the preceding chapters have offered a sketch of how it became possible and practical to assume that identities could be documented, the following chapters seek to understand the establishment of that authority specifically in the passport. The emergence of the passport as a document used by officials and the public makes explicit that who could document official identity, or the social or institutional purposes for which it was documented—indeed the very nature of citizenship or nationality as a documented identity—were all subject to historical contingencies. In a time of racial instability the targeting of naturalized citizens (as an indication, possibly unconscious, of the privileging of a native-born, Anglo-Saxon whiteness) is an important reminder of how documents can be used to “fix” identity and thus “objectively” resolve culturally specific problems of identification. The contested and negotiated emergence of the passport as documentary proof of identity in such situations provides the passport with the history the remainder of this book outlines. Episodes from the passport’s role in debates about citizenship and the control of immigration and travel provide important insights into the difficulties associated with the expansion of the documentation of identity from the margins to the center of society. While many of the issues raised in these disputes and deliberation were not immediately resolved, they contribute to our understanding of the piecemeal development of modern identification documents. These episodes illustrate how this key category of contemporary public and private life emerged, and
how over several generations officials and public alike negotiated the new forms and types of knowledge that it depended on and generated.

To understand how the U.S. passport as a piece of paper became a reliable identification document demands breaking it down into its various components. However, an equally important perspective on the identity supposedly fixed in the document can be found by locating the passport in its use in historically specific administrative and political contexts. The passport did not simply arrive as an identification document, ready to enforce border security and manage international mobility at the moment when politicians and officials decided such a document was necessary. Rather, it emerged with its contemporary authority and function through confusion and contestation that challenged its status and that of the institutions that sought to deploy it, as well as the identity categories the passport purported to merely verify.

Part Two: Using the Passport

8
Dubious Citizens

Although the Continental Congress authorized the issuance of a U.S. passport in 1782, it was another fifty years before any branch of the government gave serious consideration to the precise nature and authority of the passport and its relationship to citizenship. In 1835 the Supreme Court offered its first comments on the legal status of the U.S. passport. As part of an appeal, the court had to determine whether a passport was legal and competent evidence of citizenship—in this case a passport John Quincy Adams had issued as secretary of state in 1824. The Court ruled that a passport did not provide sufficient legal proof of citizenship.

In writing the Supreme Court decision, Justice Thompson outlined two functions for a passport. He argued that within international law a passport, through its usage to facilitate the freedom of travel, had come to be accepted as evidence of the fact of citizenship. However, while custom had made it evidence of citizenship, in origin a passport was a “political document.” By this Thompson meant that the purpose of the passport was not to provide legal proof of citizenship; rather, it was a document “which from its nature and object is addressed to foreign powers, purporting only to be a request that the bearer of it may pass safely and freely.” As a “political document,” the majority of the justices believed, it could not function as a legal document in a U.S. courtroom. Outside of the world of diplomacy, when presented in a courtroom, a passport became merely an “ex parte certificate” that did not offer any evidence of citizenship. In the eyes of the Court, as a letter from the secretary of state, a passport had no legal standing. To determine citizenship
a court would require the evidence that had been presented in the passport application—assuming that some evidence had indeed been presented, and that it was evidence “of a character admissible in a court of justice.” The Court, however, was skeptical as to whether evidence was ever actually demanded in a passport application. Thompson outlined how the justices understood the issuance of passports in the United States.

There is no law of the United States in any manner regulating the issuing of passports, or directing upon what evidence it may be done, or declaring their legal effect. It is understood as a matter of practice, that some evidence, of citizenship is required by the Secretary of State before issuing a passport. This, however, is entirely discretionary with him. No inquiry is instituted by him to ascertain the fact of citizenship, or any proceedings had, that will in any manner bear the character of a judicial inquiry.

Therefore, the Court believed, a passport offered no legal proof of citizenship. From a legal perspective, a passport was merely the opinion of the secretary of state, who, as a member of the executive, had no judicial authority to rule on citizenship.
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This Supreme Court opinion provides a useful starting point for examining an important transition in the emergence of the United States passport as an identification document—the development of the passport from a “letter” to a “certificate of citizenship.” The Court’s ruling would be invoked by other courts and government documents for more than a century, but it had little impact on the use of the passport. Outside the courtroom, it became a document that was considered evidence of citizenship. However, the Court’s decision to use the form of the letter to define its purpose, over and above any other use, does offer an important insight into the nature of the use and authority of the passport, as it indicated that the passport functioned within a system of diplomatic accommodation. For officials, applicants, and bearers, the passport—particularly in the first half of the nineteenth century—was in practice a document more akin to a letter of introduction or letter of protection than an identification document. It satisfied occasional regional demands that a document be presented to local officials when a visitor stayed in the area, or it offered the possibility of entry into certain social circles abroad. In this tradition of documentation, the
authority of the writer and the character of the bearer were critical. A letter of introduction was not thought of as a document offering absolute proof of identity; rather, it was a letter that referenced a person (and therefore only identified them) through their name. It did not claim a legal status for the bearer, nor did it have to include a physical description, signature, or any other technique intended to link the bearer unambiguously to the document; it was not a document intended to prove identity. The association of the passport with this tradition of documentation limited attempts to constitute the passport as a document that could be consistently trusted to verify an individual’s identity. We have encountered numerous attempts to make the document a more reliable and accurate presentation of individual identity, but, as the Supreme Court’s decision accurately stated, in terms of passport applications, no laws existed to establish evidence, nor were there any departmental rules guiding issuance—the latter did not appear until 1845, a decade after the decision.

In his early twentieth-century law digest, John Bassett Moore described the system for issuing passports during the first half of the nineteenth century as “exceedingly loose.”
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In this period State Department officials issued passports to noncitizens; on occasions this was done deliberately, as the passport was considered a letter of protection or introduction not a document that had anything to do with citizenship. Passports also ended up in the hands of noncitizens out of confusion over who exactly could be a U.S. citizen. This confusion created “dubious citizens.” With citizenship a disputed and contested category, the passport lacked the stable identity critical for its development as an accurate identification document. How could a passport be considered a reliable certificate of citizenship if citizenship itself was not clearly defined? To answer that question, this chapter focuses on nineteenth century citizenship debates as they affected the development of the passport as an identification document—that is, when, as a result of social and legal debates about citizenship, it became difficult to document identity and, therefore, to position the passport as a reliable document to verify citizenship. In the first half of the nineteenth century, immigrants who had declared their intention to be citizens and free African Americans who applied for passports, provide important examples of two kinds of noncitizens who challenged the definition of citizenship. The attempts by free African Americans to obtain passports in the mid-nineteenth century link the problem of documentation both to challenges to the racial constitution of U.S. citizenship and to tensions between individual states and the federal government. The endeavor to make the passport a reliable certificate of
citizenship also encountered problems when naturalized citizens returned to their countries of origin and sought to renew passports repeatedly throughout what increasingly seemed to be a permanent residence abroad. Such long-term absences from the United States called into question the loyalty that officials considered reciprocal to the promise of protection made by the passport. Beyond the unclear legal boundaries of categories of citizenship, the novelty of the practice of documentation also created another type of dubious citizen. While these people were apparently legitimate citizens in the eyes of the law, their citizenship became doubtful when they presented what they thought was a passport to U.S. officials abroad. Instead they were presenting a document issued without the authority of the State Department by a more proximate and local official such as a state governor, a mayor, or a notary. It was becoming apparent the stabilization of identity through documentation depended on a knowledge of the protocols and formalities associated with identification, particularly how identification practices trumped the authority of certain officials to issue documents.