Citizenship comprises the legal status conferring full membership in the national political community. In the absence of any other definitive marker of membership, Citizenship has been central to the American experience. Citizenship has been an equalizing force among those afforded the status. It has been exclusionary to the extent that race, ideology, and other criteria have been deployed as qualifications.
The two primary routes to Citizenship are by birth and by naturalization. The Framers adopted no constitutional provision for Citizenship at birth, unable to resolve the Citizenship status of blacks. In Dred Scott v. Sanford, the Supreme Court held that even free blacks could not qualify as U.S. citizens. The Dred Scott ruling was reversed by the Citizenship Clause of the Fourteenth Amendment, which extends Citizenship at birth to all persons born in the territory of the United States and ‘‘subject to the jurisdiction thereof.’’ In the Wong Kim Ark decision, the Supreme Court found the clause to apply to the children of Asian parents who were themselves ineligible to naturalize.
Although the Citizenship Clause does not apply to members of Native American tribes and those born in unincorporated territories, most notably Puerto Rico, those groups have been extended birth Citizenship by statute. By constitutional practice, territorial birthright Citizenship is extended without regard to parental immigration status. Proposed constitutional amendments introduced in the 1990s to deny birthright Citizenship to the children of undocumented aliens and temporary immigrants were repulsed. Given the growing population of undocumented aliens in the United States (estimated to be as large as 10 million individuals), the strict rule of territorial birthright Citizenship has avoided the difficulties of intergenerational caste.
Citizenship is also extended at birth to the children of U.S. citizens born outside the United States, so long as the citizen parent has resided in the United States prior to the child’s birth. Citizenship by descent is extended by statute rather than under the Fourteenth Amendment, as highlighted in Rogers v. Bellei. The condition precedent of parental residence limits the possibility of a nonterritorially connected American diaspora.
The Constitution allocates to Congress the power to establish ‘‘an Uniform Rule of Naturalization.’’ Eligibility to naturalize was long qualified on the basis of race. The original naturalization statute, enacted in 1790, provided only for the naturalization of ‘‘free white persons.’’ Blacks were made eligible to naturalize by statute in 1868. Asian immigrants, however, were long barred from acquiring Citizenship. It was not until 1952 that the last race-based criteria for naturalization were repealed.
Racial exclusions aside, conventional wisdom has characterized naturalization requirements as minimal. While this is true in comparative perspective—the thresholds to naturalization have historically been much higher in the European context, for instance— other barriers to naturalization have been and continue to be formidable. From the early twentieth century, naturalization has not been open to those advocating anarchism, communism, and other such doctrines, activity that would otherwise enjoy core First Amendment protection. Naturalization also continues to be statutorily contingent on facility in the English language and a demonstrated understanding of ‘‘the fundamentals of the history, and of the principles and form of government, of the United States.’’ Naturalization applicants must pass a test by way of satisfying these requirements. Thousands fail each year, and many others are deterred from applying at all. Naturalization applicants must also pay a nontrivial application fee.
Finally, naturalization has been contingent on a durational residency requirement, first set at two years, briefly raised to fourteen under the Alien and Sedition Acts, reduced to five years in 1802 where it has stood since. Under current law, qualified residency must be as a permanent resident alien. Aliens in other status are thus ineligible to naturalize. Unlike other naturalization requirements, including the oath of naturalization, the durational residency requirement is not waivable.
Whether by birth or naturalization (at least where not procured by fraud), Citizenship cannot be terminated without an individual’s consent under Supreme Court decisions severely limiting the government’s power of expatriation.
As a determinant of constitutional rights, Citizenship status has been of declining significance. Some rights have long been extended to aliens, such as the rights of the accused and to equal protection, which the Constitution extends to all ‘‘persons.’’ Discrimination against aliens under state law has been restricted to political functions, in the wake of the Court’s designation of aliens as a ‘‘suspect classification’’ in Graham v. Richardson. Although the federal 1996 welfare reform act deprived noncitizens of important public benefits, many have since been restored. Noncitizens do remain subject to immigration control, including the possibility of removal, and they are also deprived of the franchise, although permanent resident aliens may make campaign contributions. As for the obligations of Citizenship, aliens must pay taxes and are subject to conscription. They are exempted only fromjury service. Consistent with a constitutional account in which Citizenship status is subordinated, Alexander Bickel found ‘‘it gratifying that we live under a Constitution to which the concept of Citizenship matters very little, that prescribes decencies and wise modalities of government without regard to the concept of Citizenship.’’
As a constitutional value, Citizenship may be enjoying a resurgence. Building on Charles Black’s interpretation of the Citizenship Clause to include a substantive component in the context of racial equality, scholars have deployed Citizenship as the basis for economic, gay, and multicultural rights. Linda Bosniak has argued that the Citizenship Clause is sufficiently expansive to protect the rights of noncitizens. With the Supreme Court’s rediscovery in Saenz v. Roe of the Privileges and Immunities Clause, which by its terms is Citizenship dependent, such theorizing may have jurisprudential consequences. On the other hand, Citizenship remains an exclusionary institution insofar as otherwise willing individuals are barred from membership. Although liberal theorists, notably Michael Walzer, argue that justice requires low thresholds to naturalization, most maintain the necessity of residency, language, and other naturalization requirements. The increasing density of transnational interactivity highlights the inherently illiberal aspects of Citizenship. Globalization may also challenge the correlation of Citizenship status to individual identity, as associational ties fragment and multiply. The increased incidence of dual Citizenship and the rise of social movements, on both domestic and global levels, point to the possible dilution of national Citizenship as a primary vehicle for community attachment.
PETER J. SPIRO
References and Further Reading
- Aleinikoff, T. Alexander. Semblances of Sovereignty: The Constitution, The State, and American Citizenship. Cambridge: Harvard University Press, 2002.
- Bosniak, Linda, Constitutional Citizenship Through the Prism of Alienage, Ohio State Law Journal 63 (2002): 1285.
- Black, Charles L., Jr. Structure and Relationship in Constitutional Law. Baton Rouge: Louisiana State University Press, 1969.
- Eskridge, William N., The Relationship Between Obligations and Rights of Citizens, Fordham Law Review 69 (2001); 1721.
- Forbath, William E., Caste, Class, and Equal Citizenship, Michigan Law Review 98 (1999): 1.
- Haney-Lopez, Ian. White By Law: The Legal Construction of Race. New York: New York University Press, 1996.
- Neuman, Gerald L. Strangers to the Constitution. Princeton: Princeton University Press, 1997.
- Schachar, Ayelet. ‘‘Children of a Lesser State: Sustaining Global Inequality through Citizenship Laws.’’ In NOMOS XLVI: Child, Family, State, Iris Marion Young and Stephen J. Macedo, eds. New York: NYU Press, 2003.
- Smith, Rogers. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven: Yale University Press, 1997.
- Spiro, Peter J., Questioning Barriers to Naturalization, Georgetown Immigration Law Journal 13 (1999):479.
- Walzer, Michael. Spheres of Justice. New York: Basic Books, 1984.
Cases and Statutes Cited
- Elk v. Wilkins, 112 U.S. 94 (1884)
- Graham v. Richardson, 403 U.S. 365 (1971)
- Saenz v. Roe, 526 U.S. 489 (1999)
- Scott v. Sanford, 60 U.S. 393 (1857)
- Wong Kim Ark v. United States, 169 U.S. 649 (1898)