Article I, section B, of the Constitution authorizes Congress "to establish a uniform Rule of naturalization." The power afforded Congress in this spare textual authorization has long been interpreted as plenary, effectively insulating from constitutional challenge congressional decisions about whom to admit to the national community. The theory of national community expressed through this constitutional interpretation was summarily sketched by the Supreme Court nearly a century ago in Nishimura Eiku v. United States (1891): "It is an accepted maxim of international law, that every sovereign nation has the power, inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its domain, or to admit them only in such cases and upon such conditions as it may see fit to prescribe."
This still regnant theory of sovereignty has become, for most people, entirely natural and unimposed. Its inchoate justification, articulated in abstract terms, does have a natural and necessary air: one can understand nations asserting an absolute right to decide whom to admit or to exclude as advancing the universal right to form communities and the right to keep them distinctive and stable. While nations have grown significantly more interconnected and while the world's creatures are one for some important purposes, the notion of protecting the right to form and maintain special communities within larger communities resonates with our understanding of how America became a nation. Still, even for one who believes in protecting the national community, a moral question remains: what constitutes membership in the political community to be protected?
In a strictly positive sense, the answer is that citizenship in this country has been conferred by birth (either in the United States or abroad to American parents) or by naturalization. Although only "a natural born Citizen" can be President, naturalized citizens are otherwise the formal equals of citizens by birth. Moreover, the Constitution extends many of its protections to "persons" or "people" so that aliens are protected in much the same way as citizens even before they are naturalized.
But the United States has been a national community not readily inclined to ask what constitutes membership in the political community—or perhaps more accurately, not genuinely curious about the answer or willing to give it constitutional significance. Congress has long presumed that those who currently share citizenship (citizens and, during most but not all historical periods, documented residents) constitute the community to be protected and maintained.
The judiciary, in turn, has long deferred to whatever Congress decides. This deference, while varying across the range of immigration law disputes, radically diverges from the political relationship between judiciary and legislature that informs most constitutional jurisprudence. Consider a range of congressional "membership" decisions and the corresponding judicial response: Exclusion decisions and procedures are treated as extraconstitutional; congressional power to classify aliens is effectively unconstrained by equal protection values; deportation is treated as a civil and not a criminal proceeding, thereby denying certain constitutional protections expressly limited or interpreted to apply only to criminal proceedings; the power to detain remains unlimited by any coherent set of values, and is available effectively to imprison individuals and groups for long periods and under disreputable conditions; immigration judges remain intertwined with government agencies responsible for administering and enforcing immigration law. In so deferring to Congress, the judiciary either denies the constitutional relevance of the always amending character of the national community or indulges absolutely Congress's habitual response to what constitutes membership in the political community.
If together Congress and the courts "freed" us from being genuinely curious about ourselves, they were not without help in constructing this reality. It has been commonplace for many to deny that citizenship does or should play a central role in our political community. No less a figure in recent constitutional jurisprudence than alexander m. bickel insisted that citizenship "was a simple idea for a simple government"; others entirely ignored the question, as if a view on membership in the process of self-determination were not itself constitutive of the national community's very nature. But, of course, citizenship in the United States never has been a simple idea. Naturalization laws, implementing the fourteenth amendment, were not extended to persons of African descent until 1870; citizens of Mexican descent were deported in 1930 raids; citizens of Japanese descent were interned during world war ii because of their ancestry; women citizens were not allowed to vote until 1920; Puerto Ricans and people of other conquered territories were afforded only second-class citizenship status. Yet the relationship of these and other events to our conception of United States citizenship has been far more often ignored than attended to, as if the denial of contradictory acts would somehow save the regnant theory of national community.
These efforts notwithstanding, the experience of community is beginning to challenge the prevailing constitutionalized attitude toward membership in the political community. The presence of millions of undocumented workers—sharing neighborhoods, burdens, and laws—has prompted intense and frequently conflicting responses to the general question of citizenship and its role in the political community. In plyler v. doe (1982) the Supreme Court compelled the state of Texas to provide the children of undocumented workers with a free public education. At the same time, attention to the relationship of citizenship to the political community has led the Court to intensify its scrutiny of laws that deny documented residents access to certain occupations. State laws barring aliens from permanent civil service positions and from the practice of law and civil engineering have been struck down. But where the position is intimately related to the process of democratic self-government (the so-called political function exception), the Court has upheld laws requiring police, public teachers, and probation officers to be citizens.
What this communitarian challenge foreshadows defies facile forecasting; a theory so long dominant as ours toward community membership and sovereignty resists predictable or simple change. Still, in its unwillingness to be silenced, in its refusal to accept uncritically the regnant theory, today's challenge focuses attention on our history, and on the relationship of work to full political life. At least in this sense, there is the hope that we will no longer blithely disregard the values formally expressed in our vision of citizenship. After all, whom we acknowledge as full members of the political community tells us much about who we are and why we remain together as a nation.
Gerald P. LÓpez