Citizenship (Update 1)

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CITIZENSHIP (Update 1)

American citizenship can be obtained in three ways. The most common way, citizenship by birth in the United States (jus soli), is secured by the fourteenth amendment citizenship clause. Although customary exceptions to this principle exist (e.g., children born on foreign vessels or of diplomatic personnel), this birthright citizenship has been understood (wrongly, I have argued) to extend even to native-born children of aliens in the country illegally or on a temporary visa.

A second route to citizenship is through naturalization. To naturalize, one must be a resident alien who has resided in the United States continuously for five years (a longer period than in Canada and the Scandinavian countries); be of good moral character; and demonstrate an ability to speak, read, and write English and a basic knowledge of United States government and history. These requirements are relaxed for certain individuals, such as spouses of U.S. citizens.

The third route to citizenship is through parentage (jus sanguinis). Statutory law enumerates a number of parentage categories, sometimes augmented by residency requirements, that confer eligibility for citizenship on the child. The Supreme Court held in Rogers v. Bellei (1971) that in regulating this form of citizenship, Congress is not limited by the citizenship clause of the Fourteenth Amendment. In recent years Congress has liberalized eligibility.

Dual and triple citizenships, which arise as a result of the combination of the American jus soli rule with the jus sanguinis rules of other nations, are tolerated and legally protected. Still, the government discourages multiple citizenship; aliens who wish to naturalize must renounce any prior allegiance, which may or may not effectively terminate their foreign citizenships.

U.S. citizenship, once acquired, is almost impossible to lose without the citizen's expressed consent. The Supreme Court has severely restricted the government's power to denationalize a citizen for disloyalty, divided allegiance, or other reasons. Birthright citizens cannot be deprived of their citizenship unless the govenment proves that they specifically intended to renounce it. Naturalized citizens who procured their citizenship through fraud or misrepresentation are subject to denaturalization, but to prevail the government must satisfy demanding standards, most recently defined in Kungys v. United States (1988). This tiny risk of denaturalization is the only permissible difference between naturalized and other citizens.

As a result of a steady expansion of the equal protection and due process principles, legal resident aliens today enjoy almost all the significant rights and obligations that citizens enjoy, including access to most public benefits. Only five differences are worth noting. Three of them are political: citizens, but not aliens, may vote, serve on juries, and serve in certain high elective ofices and certain high (and not so high) appointive ones. Modern practice (many states in the nineteenth century permitted aliens to vote) and political inertia, more than sound policy, probably account for the durability of these differences. A fourth difference, which congress has considered eliminating, is that citizens can bring their noncitizen family members to the United States more easily than aliens can. Finally, aliens are subject to deportation, although the actual risk of deportation for a long-term resident alien who does not engage in serious criminal behavior is very low.

This progressive convergence of the citizen and resident-alien statuses suggests some devaluation of American citizenship. As public philosophy, this devaluation carries with it certain dangers for the polity. But it also represents an immense gain for the liberal values of inclusiveness and equal treatment. By maximizing individual opportunity and preventing the formation of a legally disabled underclass, the equality and due process principles have fostered the social mobility and optimism that seem essential to the success of American democracy. Moreover, the constitutional jurisprudence through which this has been achieved is probably irreversible, reflecting fundamental dynamics in domestic law and international relations that enjoy widespread support.

The conception of political membership has grown steadily more fluid, functional, and context-dependent. Before the rise of the modern nation-state, political membership was based upon kinship and ethnic ties. Today, membership is a far more complex, variegated, multipurpose idea. For purposes such as voting, citizenship is the crucial status, whereas mere territorial presence suffices for attributing most constitutional rights. For purposes of participation in an economic common market, membership is constituted by supranational groupings, exemplified by the recently established United States-Canada free-trade zone and the still-evolving European Community.

We live in an increasingly integrated world. Transnational economic relationships are ubiquitous, international travel has become inexpensive, migratory pressures are enormous, environmental problems are often global, scientific and cultural exchanges are highly valued, and political cooperation among nations is more essential than ever before. Even within America's borders, citizenship represents an increasingly hollow ideal. It neither confers a distinctively advantageous status nor demands much of the individuals who possess it.

National citizenship, however, is not anachronistic. It provides a focus of political allegiance and emotional energy on a scale capable of satisfying deep human longings for solidarity, symbolic identification, and community. This is especially important in a liberal polity whose cosmopolitan aspirations for universal principles of human rights must somehow be balanced against the more parochial social commitments to family, ethnicity, locality, region, and nation. Although these political and emotional aspects of citizenship remain significant, American society seems resolved that little else of consequence shall be allowed to turn on citizenship. But within that general understanding and social consensus, the precise role of citizenship and the special rights and obligations that should attach to it are open questions. Here, only one proposition seems certain: Today's conceptions of citizenship may not be adequate to meet tomorrow's needs.

Peter H. Schuck
(1992)