Citizenship

The Declaration of Independence proclaims the self-evident truth “that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” However, the republic of the United States of America was founded by European settlers and their descendants who conceptualized these ideals as applying to persons like themselves as the best suited to participate as equal citizens with full rights and protections.  Legal citizenship conveys rights to vote; to enter, work, and reside in the United States; but has also secured standing for certain kinds of employment, property ownership, rights to testify and sue in courts, confer citizenship on spouses and children and live with them together, and claim constitutionally defined civil rights and protection from deportation.  In contrast, persons lacking citizenship possess lesser grounds to claim equal treatment in these areas.

From the beginning, the limits on the kinds of persons qualified for U.S. citizenship have been challenged by the realities of diverse populations already resident in the thirteen colonies, the lands and peoples absorbed as the United States expanded territorially, arrivals by immigration from around the world, and rights for women.  For example, the ending of slavery in 1865 placed enormous strains on the ideal of equality for all when confronted with the necessity of incorporating into the body politic African Americans who had formerly been racialized ideologically and institutionally as property.  Immigration over the decades added further complexity for although most immigrants came from Europe, they arrived in rising numbers and increasingly of backgrounds other than the English, French, Germans, and Dutch associated with America’s founding peoples.    [graph of immigration, 1821-2000]

With the 1790 Nationality Act, Congress imposed the earliest limits on what kinds of immigrants could gain citizenship through the legal process of naturalization—a right reserved for “free white persons”—or, white, male property owners like the Founding Fathers.  This racial, gendered, and classist conception of fitness for U.S. citizenship shaped immigration restrictions and enforcement for the centuries following, provoking deeply divisive struggles over what kinds of persons should be admitted into the United States, in what numbers, and what rights should be accorded to persons subject to legal exclusion from entry.

The first restriction to fall away was the requirement that citizenship by naturalization required property ownership, a restriction targeting poor Europeans who had arrived as indentured workers.  Other categories of persons excluded from claiming citizenship, and therefore confronted with more barriers to immigration, lasted longer.  Among the earliest immigration restrictions was the 1803 ban on Negro immigration in response to the revolution (1791-1804) and freeing of slaves in Haiti and fears that free blacks might migrate to the United States and present challenges to slavery and the treatment of blacks as property.  The law was not actively enforced but the United States would not abolish slavery for more than six decades and both enslaved and free African Americans experienced sharply restricted rights.  Between 1787 and 1861, enslaved African Americans were counted as three-fifths of Euro Americans for purposes of the census.  The Supreme Court’s Dred Scott decision (1857) ruled that the descendants of slaves could not hold U.S. citizenship whether free or enslaved and thus held no standing to sue in court. The 1863 Emancipation Proclamation ended slavery but not until the Civil Rights Act of 1866, the Fourteenth Amendment (1868), and the 1870 Naturalization Act did African Americans secure rights of citizenship and equal protections.  Despite the formal inclusion of blacks as one of two races eligible for U.S. citizenship, the Supreme Court handed down the 1896 Plessy v. Ferguson decision which upheld the constitutionality of racially segregated facilities as long as they were “separate but equal,” thereby institutionalizing practices of racial segregation which severely restricted African American access to many areas of social services, political institutions, and economic activities in the American south.

Native Americans were also placed beyond the pale of U.S. citizenship and were instead considered citizens of their tribal nations.  According to the Constitution, only Native Americans who paid taxes would be counted in the census and be eligible to naturalize as U.S. citizens if they abandoned their tribes.  The lack of U.S. citizenship made Native Americans vulnerable to loss of territory.  The 1830 Indian Removal Act authorized the stripping away of their territories and was followed by sanctioned military actions to remove them forcibly to barren western regions.  In Elk v. Wilkins (1884), the Supreme Court ruled that the Fourteenth Amendment and the 1870 Naturalization Act did not apply to Native Americans.  Not until the 1924 Indian Citizenship Act did Native Americans receive automatic standing as U.S. citizens.

Mexicans gained citizenship rights when tens of thousands came under U.S. jurisdiction through territorial conquest.  The Treaty of Guadalupe Hidalgo (1848) ended the U.S.-Mexico War and formalized U.S. sovereignty over a massive area extending from California to Texas.  The treaty conferred citizenship on Mexicans choosing to remain under U.S. authority.  Legally eligible for citizenship but of ambiguous racial status,  Mexican standing as citizens remained tenuous and often failed to secure their rights to property and protection from deportation.  For example, within three decades of California gaining U.S. statehood, Mexican property ownership and population shrank with the ascendance of Euro Americans.  Although Mexican immigration was not capped until 1965, they experienced systematic surveillance and procedural harassment with the Border Patrol established in 1924 to process and impose fees on their crossings.  In greater numbers than any other group, Mexicans, including significant percentages of U.S.-born citizens, have been rounded up and deported with surges occurring in the Repatriation of the 1920s and Operation Wetback (1954-55).  The Bracero program (1943-1964) underscores U.S. dependence on Mexican workers and the effort to restrict them only to work temporarily in the United States, but not settle permanently or be accompanied by their families.  These contradictions between economic interdependence, proximity as neighbors sharing a long land border, and U.S. reluctance to integrate Mexicans and other central and south Americans as equals and citizens remain at the heart of immigration struggles today.

During the nineteenth century, the largest population disenfranchised from citizenship were women.  Under the common law doctrine of coverture, roughly meaning that the husband’s status “covers” that of the wife, women’s formal and substantive citizenship derived from that of their husbands who also held control over their wives’ persons and property.  In 1855, Congress enacted a law that allowed only U.S. citizen men to confer their nationality on alien wives, but not U.S. citizen women on alien husbands.  Women also could not confer their citizenship upon children born abroad.  In contrast, unmarried women could retain as individuals their citizenship and control of property, but not vote.  The 1907 Expatriation Act even stripped women of their U.S. citizenship if they married alien men.  After winning the franchise with the Nineteenth Amendment (1920), married women gained the right to reclaim their U.S. citizenship, although those who married “aliens ineligible for citizenship,” or Asian immigrant men, continued to lose their birthright citizenship until 1931.

Asians were the primary group affected by racial restrictions on immigration and citizenship.  The earliest systematically enforced immigration laws targeted persons perceived as obviously ineligible for U.S. citizenship: Chinese as a racial group, criminals, the insane, and the poor.  However, only Chinese and later other Asians were also categorically prohibited by race from gaining citizenship by naturalization as “aliens ineligible for citizenship.” (See lessons on European and Asian Migrations.) Congress passed the earliest Chinese restriction law in 1882 which allowed only six narrowly defined classes of Chinese to enter legally.  Seeking to effectively enforce these anti-Chinese laws, the U.S. government claimed expansive authority over immigration and began developing bureaucratic and enforcement agencies that provided the foundations of immigration enforcement today.   U.S. powers to enforce immigration expanded alongside consequently diminishing rights and protections for persons targeted by immigration laws as targets for exclusion.

As noncitizens, excludable aliens and unauthorized residents are vulnerable to detention and deportation by immigration authorities.  The U.S. government claimed enormous executive powers to enact immigration laws and to debar, detain, and deport excludable aliens while steadily eroding the rights and protections of non-U.S. citizens, particularly excludable aliens and nonimmigrants with temporary visas.

The only right secured by Chinese challenges to immigration restriction and enforcement came with the 1898 Supreme Court Case of Wong Kim Ark which established the Fourteenth Amendment principle that any person born in the United States, regardless of race or parents’ status, held U.S. citizenship by birth.  This ruling still stands as the primary means available to unauthorized immigrants to gain a permanent toehold in this country.

Across the twentieth century, Congress and federal authorities targeted a growing array of targets for immigration restriction including anarchists (1903), Japanese (1907-1908), illiterates and natives of the “Barred Zone” (1917) which extended from Southeast Asia to the Middle East.  The line against Asian immigrants hardened with alien land laws in eleven states by 1920 restricting “aliens ineligible for citizenship” from owning or leasing land.  The Supreme Court upheld the constitutionality of such discrimination and affirmed racial restrictions on citizenship in Ozawa v. US (1922) and Thind v. U.S. (1923).  The 1920s witnessed the height of immigration restrictiveness as Congress succeeded in reducing immigration, primarily from Europe, several-fold through a quantitative system of national origins quotas which heavily favored “old stock” western and northern Europeans while banning altogether immigration by all “aliens ineligible for citizenship.”

The nadir of civil rights violations against “aliens” occurred during World War II with the mass incarceration of about 120,000 west coast Japanese Americans, two-thirds of whom were citizens by birth, who were racialized as “enemy aliens” for the purposes of “military necessity.”  Japanese Americans challenged their detention in court only to have the principle of “military necessity” in the war against Japan upheld by the Supreme Court even as the case of Ex parte Endo required the release of U.S. citizens because the U.S. government could not detain “concededly loyal” citizens.

World War II applied pressure for greater inclusiveness and civil rights reforms on multiple fronts.  Internationally, the United States needed to amend discriminatory immigration laws which insulted allies such as China.  African, Native, Mexican, Japanese, Filipino, and Chinese Americans who served as soldiers pressed harder for equality and status as military veterans.  Immigration reform was one result starting with the 1943 Repeal of Exclusion which placed Chinese on the same immigration restriction system as Europeans by giving them naturalization rights and a small immigration quota of 105.  Other Asian allies, Indians and Filipinos followed in 1946.

The 1952 McCarran-Walter Act ended racial restrictions on citizenship by naturalization, although it maintained preferences based on national origins and race for purposes of immigration.  The 1952 Act thereby abolished the legal racial category of “aliens ineligible for citizenship.”  Even though racial categories have stopped being barriers to gaining U.S. citizenship, the legal statuses of excludable aliens and unauthorized immigrants have developed into permanent legal designations for a class of persons ineligible for citizenship.  This systematic inequality has become more pervasive with growing efforts to enforce immigration restrictions after 1965.

In 1965, Congress legislated immigration restrictions that treated all peoples of the world with surface uniformity.  Shedding prior emphasis on race and national origins, the 1965 Hart-Celler Act enacted a system of preferences for family reunification, employment, and refugees.  It designated equal 20,000 annual caps for eastern hemisphere countries but for the first time imposed numeric limits on immigration within the western hemisphere.  These terms have facilitated migration from previously barred areas such as Asia and Africa but predominantly through the employment and refugee preferences.  The employment preference recruits for highly educated and highly skilled workers, thus skewing these populations towards immigrants with college and graduate degrees, leading Asian Americans to become stereotyped as “model minorities.” [Pathways to legal immigration since 1965]

Asians and Latin Americans immigrated at the highest levels but the national caps adversely affected the latter by making illegal what had been commonplace and circular migrations by millions of American neighbors.  As during the 1920s, when the imposition of national quotas made the immigration of hundreds of thousands of eastern and southern Europeans illegal, abruptly Latin Americans and Canadians accustomed to routine border crossings for employment, visits to family and friends, business, and tourism, became subject to quantitative restrictions that compelled many to choose to stay permanently on one side or the other of the border.

Consequently, the problem of unauthorized immigration has ballooned, as the immigration quotas imposed on the U.S.’s immediate neighbors fall the farthest short of those whose everyday lives, business, and employment transect the long shared borders.

Congress attempted to resolve this growing problem by passing the Immigration Reform and Control Act (IRCA, 1986) which gave amnesty to 1.6 million long-term residents of the United States with no criminal records who were allowed to regularize their status and become citizens even as funding for border control increased.  These measures did not end illegal immigration, however, with enormous economic disparities and politically unstable conditions in many Spanish American nations motivating ongoing unauthorized border crossings in response to readily available employment and safety in the United States.  Illegal entry is a lifetime sentence to second-class status, however, because it bars permanently access to citizenship by naturalization which leaves unauthorized immigrants vulnerable to detention and deportation.  Some unauthorized immigrants have been able to regularize their status through amnesty programs such as IRCA or by receiving asylum.

Since 1986, federal resources committed to border enforcement have increased steadily, as have deportations.  Economic and political pressures continue to drive unauthorized migration although the economic depression of 2008-2011 led numbers to drop.  The United States is now home to about 11 million unauthorized immigrants who are primarily central and south American, many of whom live in mixed status families, are employed in the United States, pay taxes, and are established members of their communities but have no recourse to citizenship except through Congressional action.  The existence of this significant population with diminished rights and status challenge the democratic ideals of the United States, and generate perhaps the most heated debates regarding appropriate solutions.