Citizenship

Citizenship In giving meaning to citizenship, the Supreme Court has often had to look beyond the “four corners” of the Constitution. With no definition of citizenship in the framers' text, the Court until after the Civil War decided its citizenship cases using a mix of ideas drawn from international law and natural law. The most famous antebellum attempt to define the limits of citizenship—Dred Scott v. Sandford (1857)— ultimately provided a rare occasion on which the amendment process reversed a constitutional decision of the Supreme Court. Since 1868, when the Fourteenth Amendment defined United States citizenship, the Court's decisions have been more concerned with safeguarding citizenship against unjust deprivation than with elaborating the content of U.S. citizenship.

The Constitution referred to but did not define U.S. citizenship. Article I required that representatives and senators be citizens of the United States. Article II further said that the president must either be a citizen of the United States “at the time of Adoption” or be a “natural born” citizen. Article III gave federal courts jurisdiction in cases involving citizens, among others. Article IV provided that “citizens of each state” would have “all Privileges and Immunities of Citizens in the Several States.”

What, then, would make a person a United States citizen? The framers' stipulation that the president be a “natural born” citizen is an implicit rule of jus soli. According to this ancient doctrine—the term means “right of land or ground”—citizenship results from birth within a territory. This contrasts with jus sanquinis, or right of blood, by which nationality derives from descent. Citizenship based on place of birth was a feudal remnant, in tension with principles of liberal theory that rest political legitimacy on a foundation of consent. Birth‐right citizenship, however, offered several practical advantages: it helped clarify property rights; it promoted immigration; it avoided jurisdictional conflicts; and it eased fears of massive expatriation in wartime.

Not until the slavery crisis did the principle of jus soli become an explicit part of the Constitution—in spite of what the Supreme Court had ruled. Chief Justice Roger B. Taney'sopinion in Dred Scott denied that a person of African descent could be a citizen of the United States. The Fourteenth Amendment exploded this decision by declaring that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The Fourteenth Amendment did not settle the matter entirely in favor of birthright citizenship. In Elk v. Wilkins (1884), for example, the Supreme Court ruled that Native Americans born in the United States were not automatically citizens. As members of tribes, they were not wholly “subject to the jurisdiction” of the federal government. Congress, however, later reversed the result of the Wilkins decision.

One of many Supreme Court cases arising out of late nineteenth‐century discrimination against persons of Chinese ancestry, United States v. Wong Kim Ark (1898), broadly interpreted jus soli. The Fourteenth Amendment's rule of citizenship by birth within U.S. territory made Wong Kim Ark a citizen, even though the parents could not legally be naturalized.

Once defined in 1868, citizenship became an operative term in four more amendments. In particular, the citizen's right to vote could not be denied because of race (Fifteenth Amendment); gender (Nineteenth Amendment); failure to pay a poll tax (Twenty‐fourth Amendment) or age (Twenty‐sixth Amendment). Though the Supreme Court has had many cases requiring interpretation of these amendments, the concept of citizenship per se has not been at the core of these disputes.

Despite the place of citizenship in several amendments, what is notable is the remarkably limited scope of citizenship in the Supreme Court's work. This is so since, while one must be a citizen to vote or hold federal office, most of the Constitution's key rights and liberties do not extend to citizens only. No less than the entire Bill of Rights applies to “the people”—citizen and the noncitizen alike.

The Supreme Court's interpretation of the Equal Protection Clause appears to diminish the constitutional consequence of citizenship. Beginning in 1971, the Court began to apply “strict scrutiny” to state laws affecting aliens. Under this test, the state must show that laws drawing distinctions based on citizenship serve compelling governmental interests. In Graham v. Richardson (1971), for example, the Court ruled that states could not deny welfare benefits to noncitizens based simply on their alien status. Two years later in Sugarman v. Dougall (1973), the Court created an important category of exceptions to the rule of Graham, holding that certain important public sector jobs may be set aside for a state's citizens. The Court's continued reliance on Graham, however, casts doubt on citizenship classifications drawn by the states.

Other decisions, however, have stressed the unique, valued, and protected position of citizenship. Schneiderman v. United States (1943), for instance, dealt with denaturalization. Schneiderman became a United States citizen in 1927. Since he was a member of the Communist party from 1924 and, after naturalization, became active in party leadership, the government moved to have his citizenship stripped. The government argued that Schneiderman's political conduct—though he had never been arrested—failed to show the attachment to constitutional principles that Congress required for naturalization. In ruling for Schneiderman, the Supreme Court held that a naturalized person could not lose citizen status without the clearest justification, construing the facts and law as far as is reasonably possible in the citizen's favor. In Trop v. Dulles (1958), the Court affirmed the importance of citizenship by holding that a citizen by birth could not be expatriated for desertion from the military in wartime. Chief Justice Earl Warren wrote for a four‐person plurality that loss of citizenship would amount to cruel and unusual punishment banned by the Eighth Amendment.

The Supreme Court's decisions have tended to reflect the Constitution's own ambivalence about citizenship. Despite its status as fundamental law, the Constitution did not explicitly define criteria for membership in the political community it created. The Court's antebellum attempt to fill this void broke apart on the fault line of slavery. While the Court has upheld birthright citizenship and has erected high barriers to deprivation of citizenship, its equal protection decisions have tended to underscore the Constitution's tendency toward a narrow conception of citizenship closely tied to voting and office holding.

See also Alienage and Naturalization; Equal Protection; Privileges and Immunities.

Bibliography

Joseph H. Carens , Who Belongs? Theoretical and Legal Questions about Birthright Citizenship in the United States, University of Toronto Law Journal 37 (1987): 413–443.
Peter Schuck and and Rogers Smith , Citizenship Without Consent: Illegal Aliens in American Politics (1985).

Patrick J. Bruer