Despite all the heat that it’s generated, the most important citizenship-related issue facing Americans today is not the one revolving around whether long Census form should seek this information from residents of the country. Instead, given all the clashing views of national identity that have emerged in recent years, the most important issue is developing a coherent concept of citizenship – what it should entail in terms of rights and responsibilities, and why .
Suggesting that the United States – a 243-year old country with a history that’s been a rousing success by any reasonable standard – hasn’t been thinking clearly about citizenship certainly seems odd. But the history actually couldn’t be clearer. And the confusion begins at the beginning. Although the Constitution refers to “the Privileges and Immunities of Citizens,” the document says remarkably little about what these are and, more important, about the reasons that such privileges and immunities should be enjoyed by one group of residents in the country but not others.
Even the choice of some of the most prominent privileges and immunities that are specified are peculiar, to put it mildly. For instance, the framers of the document designated citizenship as a requirement for holding the offices of President, U.S. Representative, and U.S. Senator. But nowhere does the Constitution’s body say explicitly that the Vice President must be a citizen – that provision had to wait until the ratification of the Twelfth Amendment in 1804. Nor does the document explicitly require federal judges to be citizens.
At the same time, the Constitution’s federal office-holding criteria obviously assume that some citizens are more equal than others. In the best known example, only “natural born” citizens (a term never defined in the Constitution or by the Supreme Court, and still debated, though it’s widely thought to mean a citizens born in American territory or born outside the United States or its possessions to citizens parents) are eligible to be President. That’s why former Secretary of State Henry Kissinger or former California Governor Arnold Schwarzenegger could never realistically dream of becoming President. They, and so many other prominent Americans, were foreign born and naturalized.
But not just any natural born citizen can serve in the White House. He or she needs to be at least 35 years old, and have lived in the country for fourteen years.
As for voting in federal elections, it’s now a crime for non-citizens, but that’s only been the case since 1996. It’s by no means grounded in the Constitution, which generally authorized the states to decide eligibility for elections at all levels in the federal system. And the states have a long history of permitting voting by non-citizens. (See here for a detailed history of non-citizen voting – by a supporter of this policy.)
Further muddying the situation: Many citizens have long been denied rights and privileges extended to other citizens, at the federal, state, and local levels alike. Women have expressly been classified as eligible for citizenship since the earliest immigration and naturalization laws, which were passed shortly after the Founding. But for more than a century afterward, female citizens faced all manner of limits (mainly at the state level but including on the national level) on their “privileges and immunities” that didn’t apply to male citizens – notably, the right to vote and the right to own property. (See here for some key milestones in the history of such limits and the pushback.) Children born in the United States are unmistakably citizens, yet they still don’t enjoy many of the rights of adults.
Equally confusing are the obligations of non-citizens legally resident in the country. They can’t vote for the federal (and in most cases, the state and local) officials who make tax policy. But especially if they hold green cards, they’re considered “tax residents” upon legal entry and must declare their total income and pay taxes required under U.S. tax law.
The same goes for questions of war and peace: Legal non-citizens can’t choose the politicians who make these decisions, but they’re potentially required to live with the gravest consequences, since they’re obligated to register for the military draft (unless they’re women – who can’t register even if they are citizens) – and have been often during American history. (See, e.g., here and here.)
It’s not that the Founders didn’t think about citizenship seriously at all. The very first Article of the Constitution (Section 8) very prominently sets out “establishing a uniform Rule of Naturalization” as one of Congress’ powers. As early as March, 1790, the first Congress in U.S. history followed suit by passing a naturalization act to establish a process and criteria for grants of citizenship. Approved – revealingly – during the same month that that year’s Census was mandated, the law held that foreign-born persons could become U.S. citizens only if they were free, white, lived in the United States for at least two years, resided in the state where they filed the application for one year, proved their “good character” to a court, and swore allegiance to their new nation. Children of citizens born outside American territory would be considered citizens, too. Five years later, the U.S. residency requirement was raised to the current five years.
The residency requirement – and its durability – hints at one possible answer to the question of why citizenship matters. This category was valued because it identified residents judged (to paraphrase an article by former law professor and current U.S. Congress-person Jamin Raskin) “fit to govern” – and by extension (quoting directly now) deserving of “the opportunity to participate in the essential and representative act of democratic politics [voting].” The flip side of this coin, as observed by a much more conservative legal authority, Alexander Bickel, was a position found in western political theory since classical times – which inspired so much of the Founders’ political worldview: “It is by virtue of of his citizenship that the individual is a member of the political community, and by virtue of it that he has rights.”
The reference to a political community is crucial, because what little the Founders collectively said about citizenship often focused on precisely this aim, as did the (admittedly minimalist) legislative and Constitutional record they created. Jefferson and Hamilton embodied fundamentally different approaches to arranging political power within the new nation and equally clashing ideas about the optimal future for the economy (largely because of their political philosophies). But they both agreed that great dangers were likely from a large influx of newcomers from countries whose views and political traditions diverged much further still from those prevailing in the existing U.S. population – and whose national loyalties might be suspect – and that a major response was needed.
The residency requirement that became law clearly reflected Hamilton’s belief that “Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of at least a probability of their feeling a real interest in our affairs.” (See here for the case for the Constitution as a key part of the Founders’ exercise in political community-building. Interestingly, the author’s main thesis is that membership in this community should be expanded to include non-citizens.)
And yet, from literally the beginning, so many opportunities to link the creation of such a community to citizenship were went ungrasped. The Constitution could have specified that Congressional apportionment (determining the numbers of House of Representatives districts would be given to each state) must be based on numbers of citizens. Instead, it simply holds that the count should consist of “the whole number of free persons,” indentured servants, and “other Persons” (meaning slaves), who would be treated as three-fifths of the other two categories. Native Americans who were “not taxed” were the only category of resident explicitly excluded.
Moreover, because there is no Constitutionally mandated connection between citizenship and Congressional apportionment, there’s no link between citizenship and the allocation of electoral votes, either, since that figure is based in part on the number of House districts per state.
A third missing link – which seems a matter of recent bureaucratic custom rather than law: As of 2015, more than a hundred federal programs used Census data to determine the distribution of $675 billion in taxpayer funds to pay for everything from Medicare Part B to Medicaid to school lunches to highway construction.
And despite the loyalty oath required for naturalization, and the Founders’ concerns about divided or competing national allegiances, neither the Constitution nor any code of federal law has ever prohibited dual citizenship. Stranger still – many American citizens today legally serve in the militaries of foreign countries not engaged in hostilities with the United States, and even in senior government positions in foreign governments.
Numerous observers believe (and even hope) that these glaring contradictions in the treatment of citizens show that the concept is weakening. I fervently hope that they’re wrong. For I believe that the Founders were right. In other words, as clearly, and as consistently as possible, it’s essential that the law define citizens as that segment of the population that enjoys a specific set of (mainly voting- and governing-related) rights in exchange for supporting the nation’s core political values. Otherwise, Americans will never preserve what one commentator has called “the cohesiveness and sense of community…vital to the success of popular government.”
But the bitter divisions that have opened recently in America’s politics and society demonstrate that the wildly incoherent approach to citizenship that’s evolved until now is giving the nation the worst of all possible worlds. If a completely chaotic disintegration of the country into a gaggle of hostile, quarreling groups is to be avoided, a clear choice needs to made – and the sooner the better.