CITIZENSHIP (Update 2)

The Supreme Court has declared American citizenship "a most precious right," regarded by many as "the highest hope of civilized men." Recognition of the importance of U.S. citizenship led the Court to hold in afroyim v. rusk (1967) that Congress may not deprive a person of U.S. citizenship (other than in the case of wrongful naturalization) unless the person has a specific intent to relinquish it. American citizens may not be deported, and have the right to enter or return to the United States. Most citizens take these rights for granted, but they mark a significant distinction between the statuses of citizen and alien.

The fundamental norm of U.S. citizenship law is the principle of jus soli—that all persons born in the United States are citizens at birth. The language of the fourteenth amendment—written to overcome Chief Justice roger brooke taney's opinion in dred scott v. sandford (1857)—affirmed the common law rule of jus soli. In united states v. wong kim ark (1898), decided at the height of constitutionalized American racism, the Court held that the children of Chinese immigrants born in the United States were citizens at birth, despite federal law prohibiting the naturalization of their parents.

Citizenship may also be acquired by descent (jus sanguinis) and through naturalization. Since 1790, federal statutes have permitted aliens in the United States to naturalize, and have granted citizenship at birth to persons born to American parents outside the United States. These sources of citizenship are not secured by the Fourteenth Amendment, and traditionally the Court has recognized broad congressional authority to distribute citizenship by statute largely immune from judicial scrutiny. However, in Miller v. Albright (1998), the Court was sharply divided over the constitutionality of a federal statute permitting U.S. citizen mothers to pass citizenship to nonmarital children born outside the United States on easier terms than U.S. citizen fathers. A majority of the Justices indicated that they would invalidate the statute in a properly presented case.

Citizenship is at the same time universalistic and exclusionary. The Constitution forbids Congress from granting titles of nobility; in this republic, the office of citizen defines the class of governors. The concept of citizenship therefore pushes toward universal suffrage. So too, by defining membership in a polity, citizenship suggests a core class of right holders. In a famous formulation, T. H. Marshall noted that "[c]itizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed."

But formal equality on paper has rarely guaranteed equal treatment in life. Throughout American history large classes of citizens have been citizens in name only. Most adult Americans were not eligible to vote at the time of the Constitution's adoption, and discrimination based on race, gender, wealth, and other grounds has created huge political and economic inequalities among nominally "equal" citizens.

So too, laws regulating access to citizenship have included racial exclusions for more of our history than not. The naturalization act of 1790 limited eligible classes to "white persons." Following the civil war, the statute was amended to include persons of "African descent"—a formulation that continued to prohibit Asian immigrants from naturalizing. The racial bars on naturalization were not fully removed until 1952. For several decades early in this century, federal law provided that citizen women who married foreigners lost U.S. citizenship for so long as the marriage lasted.

Despite this history, the constitutional claim of equal citizenship is a powerful one, and distinctions that seem natural in one era become unconstitutional denials of equal citizenship in another. But it is here that the exclusionary aspect of citizenship arises. By drawing a circle and designating those within the circle sovereign and equal, the concept of citizenship perforce treats those outside the circle (aliens) as less than full members. Justice Byron R. White recognized this implication of citizenship in Cabell v. Chávez-Salido (1982): "Self-government … begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community."

Does the Constitution necessarily link rights and citizenship? The term "citizen" does not appear in the Bill of Rights; and it has long been bedrock constitutional law that aliens residing in the United States are protected by the Fourteenth Amendment's guarantee of equal protection of the laws, under the rule of yick wo v. hopkins (1886), and enjoy most of the rights secured by other provisions of the Constitution. Furthermore, the Court has applied strict scrutiny to state regulations based on alienage (with an exception for political rights and offices). At the same time the Court has adopted a virtually toothless standard of review for federal statutes that draw distinctions on the basis of alienage. The Court's deference to Congress extends both to explicit regulations of immigration and to statutes distinguishing aliens from citizens in the granting of federal benefits. As the Court stated expressly in Mathews v. Díaz (1976), "Congress regularly makes rules that would be unacceptable if applied to citizens[;] [and the] fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is 'invidious.' " Perhaps it is not an oxymoron to suggest that constitutional norms supply a "second-class citizenship" for aliens in the United States.

As the nation-state comes under challenge both from below (with claims for autonomy for subnational groups) and from above (with the establishment of supranational legal orders), the concept of citizenship has come under renewed focus. Proposals have been made to make citizenship "mean more"; and landmark changes in U.S. welfare policy in 1996 did just that by disentitling most future immigrants from federally supported welfare programs. Other proposals, of dubious constitutionality, would deny birthright citizenship to children born in the United States to undocumented aliens. Policies that grant significant benefits to citizens denied to aliens apparently have provided a substantial incentive to naturalization. The interesting question for those who seek to pour more content into citizenship is whether naturalizations based on a desire to preserve access to social programs in fact serve that goal.

The increasing frequency of dual nationality poses new questions for the meaning of citizenship. At the beginning of the twentieth century, dual nationality was disfavored. Prevailing international law norms pursued the goal of ensuring that every person was a member of one and only one nation-state. But migration and state practice have made dual nationality a more common phenomenon, arising usually from birth in one state to parents who are citizens of another state. In a significant shift in state practice, a number of countries are now permitting citizens who naturalize elsewhere to retain their original citizenship. Because the United States continues to admit large numbers of immigrants, it will likely face increasing numbers of dual nationals. The Constitution says nothing explicit about dual nationality. The Fourteenth Amendment's principle of jus soli (coupled with the laws of foreign states) is an important cause of dual nationality. Congress's Article I, section 8 power to adopt naturalization laws permits the federal government to either embrace, ignore, or seek to deter dual nationality of persons who attain U.S. citizenship by naturalization.

In the end, we face a constitutional conundrum. As a democracy, the United States needs a demos both as a location of sovereignty and from which to designate a class of governors. (Although in the nineteenth century a number of states permitted alien suffrage, those laws had been repealed by the early twentieth century.) But the Constitution does not define rights in terms of citizenship; rights are generally guaranteed as human rights, irrespective of status. Indeed, the Constitution imposes no specific obligations on citizens; and other than jury service, there are precious few obligations imposed by law on citizens qua citizens. Aliens, then, benefit from a kind of constitutional citizenship, even if the citzenry is deemed the source of the Constitution and the day-to-day governance of the republic is reserved to citizens.

T. Alexander Aleinikoff
(2000)

Bibliography

Brubaker, Rogers 1992 Citizenship as Social Closure. Pages 21–34 in Citizenship and Nationhood in France and Germany. Cambridge, Mass.: Harvard University Press.

Karst, Kenneth L. 1977 The Supreme Court, 1976 Term—Foreword: Equal Citizenship under the Fourteenth Amendment. Harvard Law Review 91:1–68.

Marshall, T.H. 1964 Citizenship and Social Class. Pages 65–122 in Class, Citizenship, and Social Development: Essays by T. H. Marshall. Garden City, N.Y.: Doubleday & Company, Inc.

Smith, Rogers 1997 Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven, Conn.: Yale University Press.

Walzer, Michael 1989 Citizenship. Pages 211–219 in Terence Ball, James Farr, and Russell L. Hanson, eds., Political Innovation and Conceptual Change. Cambridge, Mass.: Cambridge University Press.