Im-Politic: America Needs to Get Its Citizenship Act Together

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Alexander Hamilton, Census, citizenship, Constitution, Founding Fathers, Im-Politic, immigrants, Immigration, national identity, naturalization, non-citizens

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.

Im-Politic: Trump Derangement Syndrome Breaking Out on the Supreme Court?

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Balkan wars, Bosnia, citizenship, deportation, Im-Politic, Immigration, Immigration and Citizenship Services, John Roberts, Muslims, naturalization, refugees, Reuters, Serbs, Srebrenica, Stephen Breyer, Supreme Court, Trump

Question: When is serving in a military unit that’s committed horrendous war crimes the legal equivalent of getting a speeding ticket? Or absentmindedly bringing a key-chain pen knife into a government office building? Or maybe even jaywalking? Answer: When the U.S. Supreme Court nowadays is evaluating an immigration case.

Think I’m kidding? Then check out this Reuters account of a hearing held by the high court that dealt with an immigrant from Bosnia who was deported and stripped of her citizenship last October. The reason? She had lied on her application to enter the country as a refugee. Now, Divna Maslenjak is seeking to restore the status quo ante. And according to the Reuters piece, several Justices are concerned that in defending the U.S. government’s previous decision (made, mind you, under the Obama administration), President Trump’s Justice Department is laying the groundwork for revoking citizenship for false statements that had no significant influence on the original refugee decision.

Nothing intrinsically wrong with that. Everyone, for example, forgets things or gets details confused. These lapses are particularly understandable in the chaotic conditions with which most refugees struggle. Nor could any reasonable person quibble with Chief Justice John Roberts concern that the Trump administration position (even though it’s drawn straight from the U.S. Citizenship and Immigration Services’ naturalization form) could enable the government to strip citizenship from naturalized Americans for lying or for omitting information about minor legal infractions that even the most scrupulously law-abiding folks everywhere are hard-pressed to avoid completely.

As Roberts noted, “in the past he has exceeded the speed limit while driving. If immigrants failed to disclose that on a citizenship application form asking them to list any instances of breaking the law, they could later lose their citizenship, the conservative chief justice said. ‘Now you say that if I answer that question ‘no,’ 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all?'”

Associate Justice Stephen Breyer, who is viewed as considerably more liberal than Roberts, agreed, “noting he had once walked into a government building with a pocketknife on his key chain in violation of the law.”

Added Breyer: “It’s, to me, rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw Into doubt the citizenship of vast percentages of all naturalized citizens.”

Fair enough. But the lie in question did not concern a speeding ticket or an innocent failure to check the contents of one’s pockets. Nor did it concern an intrinsically legal but possibly questionable act that had no important bearing on Maslenjak’s application for refugee status. In fact, it concerned a subject central to her request: Despite telling the government that, as ethnic Serbs, she and her family feared ethnic persecution by Bosnia’s Muslims, she never mentioned that, as the Reuters article reports, her husband (who had received refugee status when she did) served “in a Bosnian Serb Army brigade that participated in the notorious 1995 massacre of 8,000 Muslims in the Bosnian town of Srebrenica.” And P.S.: He lied about the matter as well.

Now it’s possible that the husband was completely uninvolved in this, or any other, atrocity (another subject about which the naturalization form inquires). It’s also possible that, whether he was complicit or not, that’s what Divna, his wife, believed. Or he simply could have lied to her. If he was innocent, he might have been afraid that the relevant American authorities simply would not have believed him. Certainly, no one could blame inhabitants of countries ruled by oppressive and/or corrupt governments for not trusting U.S. officials right off the bat.

But apparently, neither spouse has offered any such excuses. Nor did any of the Justices apparently mention them. Both the Maslenjaks and Roberts and Breyer (and possibly some of their colleagues) seem to be focused on technicalities – and perhaps the former and their lawyers are counting on the Trump administration’s “anti-immigrant” reputation and the resulting backlash to help sway the Court.

The Justices’ final decision isn’t due until late June. It could be a great test of whether they, like so much of the rest of the country, have succumbed to Trump Derangement Syndrome.

Im-Politic: What Khizr Khan Gets Completely Wrong About America and Islam

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2016 election, ABC News, American Muslims, citizenship, CNN, Democratic National Convention, Donald Trump, Hillary Clinton, Humayun Khan, identity politics, Im-Politic, immigrants, Islam, Khizr Khan, military, Muslims, naturalization, refugees, terrorism

It’s hard to imagine even the strongest Donald Trump supporter not being moved, at least temporarily, by Khizr Khan’s speech at the Democratic National Convention last Thursday night. So many of the elements of an emotional blockbuster were present:  the deep gratitude expressed to America by a Muslim immigrant success story; the supreme patriotic sacrifice made by one of his sons in military service; and the heartbreak of losing a child. And of course for many other Americans, Khan’s remarks raised major questions about the Republican presidential nominee’s views on the domestic security threats posed by refugees and immigrants seeking admission to the United States today, as well as by Muslims already living in the country.

That’s why it’s so important to explain why Khan’s speech, and the rave reviews it’s received in the establishment media, sadly exemplify many of the ways in which Trump’s critics on this score keep undermining constructive debate on these crucial issues.

First, Khan practiced a version of almost-always-irrelevant (at best) identity politics with his headline-making charge that Trump has “sacrificed nothing and no one” for his country – unlike the Khans and the families of other “brave patriots who died defending the United States of America.” The clear implication is that the GOP standard-bearer – and all other Americans who haven’t lost family members in combat – have no right to speak out, or perhaps even to hold opinions, on matters concerning eligibility to immigrate or domestic terrorism.

Of course, few positions have been more un-American – at least once the nation began expanding suffrage beyond white male property holders. Freedom of speech and voting and policy-making are now completely independent of not only race and creed and wealth, but of experience – and properly so. Instead, they are functions of, variously, citizenship or residency.

In addition to being philosophically noxious to current notions of representative government, any other approach would be utterly impossible to put into effect. Just to cite one example – whose experience on Muslim immigration should count for more: Those of the Khan family and their like? Or those of the families of the victims of September 11, or San Bernardino, or Orlando?

And as some Twitter commenters have reminded me, Khan’s views on the subject would also deny Hillary Clinton the right to weigh in on these Muslim immigration subjects – for her family hasn’t lost anyone in combat, either.

Second, in recent months, Khan’s speech, along with Trump’s various statements on Muslim immigration, and especially on the American Muslim community, have generated a flood of statements not only expressing outrage that American Muslims’ patriotism could be impugned, but implying that, if anything, this group is actually more patriotic than the U.S. population as a whole. One especially popular version has emphasized how many American Muslims, like Khan’s son, have served in the American armed forces.

Of course, this is another form of identity politics. And “patriotism” can take many different forms. Just as important, though, is noting that, however admirable the life and career of the late Army Captain Humayun Khan, who was killed in Iraq in 2004 by a car bomb, it wasn’t an especially typical U.S. Muslim life.

The emerging conventional wisdom was summed up nicely by CNN: “Many [Muslims] have served in the military protecting the country against terrorists….” Stated ABC News pointedly: “Despite recent rhetoric against the fastest-growing religion in the world, Islam has contributed a great deal to the U.S., including in the military, Defense Department figures show.

“Muslims have played an essential part in guarding the homeland and fighting for its interests in war-torn countries the world over, fighting in all major U.S. Wars….”

But the actual data these statements are based on – when placed into any minimally adequate context – tell a very different story. ABC News cited Pentagon figures as pegging the number of self-identifying Muslims serving in the U.S. military at 5,986 – including reserve and national guard members. That’s out of a total of 2.14 million total personnel in all these branches of the American armed forces. Do the math and U.S. Muslims add up to slightly less than 0.28 percent of servicemen and women.

How does that share compare with Muslim’s total percentage of the U.S. population? Not all that well. For that figure was 0.90 percent, according to a 2014 Pew Foundation study. So although the absolute numbers are tiny, America’s Muslim residents are actually significantly under-represented in the military.

ABC took pains to note that the Defense Department statistics show that “400,000 service members have not self-reported their faith. So the total number of Muslims currently serving in the U.S. military is likely higher.” But by the same logic, the total number of Americans of all faiths serving is likely higher, too. In addition, the Pew report found that the nation’s Muslim population is significantly younger than the American public as a whole, including those of prime military service age. So Muslims’ under-representation is arguably greater than the raw figures indicate.

Again, military service isn’t the only form of patriotism, and patriotism isn’t and shouldn’t be a legal standard for opining or voting or entering politics or government. (Immigrants who want to become naturalized American citizens do need to pass tests on the English language, and American history and government. Moreover, most are required to take an Oath of Allegiance to the United States, including a promise to serve in the military under any relevant Selective Service laws and regulations unless they can prove that their religious or other “deeply held” beliefs bar such activity.)

But the claim that the American military contains surprisingly large numbers of Muslims clearly is false.

Finally, like nearly all other critics of Trump’s Muslim immigrant and domestic Muslim proposals, Khan offers no viable ideas on addressing the special domestic security problems revealed by the data that these populations unquestionably present. In fact, he has compounded the obstacles to needed solutions by joining the chorus accusing Trump (and his supporters) of “consistently [smearing] the character of Muslims.” What Khan and the like continue overlooking is the exponentially disproportionate role played by Muslims – including American citizens and including the children of immigrants, who have been exposed to American values all their lives – in recent terrorist attacks, and the consequent imperative of focusing anti-terrorism efforts on this population.

Worse, Khan’s full-throated support for Democratic presidential nominee Hillary Clinton suggests that he backs her plan to quintuple the admission of Middle East refugees, and thereby inevitably magnify the current threat.

Having never lost a child, I can’t honestly say that I feel the Khan family’s pain. Not being a Muslim, I can’t honestly say that I have experienced or even fully understand the frustrations no doubt felt by the great majority of American Muslims whose beliefs and actions have never jeopardized the United States. But I am someone who at least tries to concentrate on the facts rather than spreading anecdotes (either representative or misleading).

So I do feel justified in maintaining that Khan and his Islamic and non-Islamic enthusiasts need to start purveying less outrage and more wisdom, and recognizing the clear and present dangers posed to Americans by Muslim populations inside and outside the Middle East that are still in general struggling with reconciling their faith with the values of Western secular democracy.