(This essay originally appeared in the November 1, 2004, issue of the American Lawyer.)
No Stranger To Rights;
We can't, and shouldn't, cavalierly change the privileges of citizenship.
By Peter H. Schuck, Simeon E. Baldwin Professor of Law
The U.S. Supreme Court's recent decisions in Rasul v. Bush and Hamdi v. Rumsfeld concerning the hearing rights of terrorism suspects detained at Guantanamo and in the United States have received much public attention, and deservedly so. By anyone's definition, these are landmark decisions--both for their holdings and for their supporting rhetoric about constitutional limits on the commander in chief during wartime. Less obvious but equally important, the decisions cast a spotlight on the status of American citizenship in the post-9/11 world.
One little-noted feature of the Court's analysis was its differential treatment of the U.S. citizen detainee, Hamdi, and the noncitizen detainees in Guantanamo. Although the Court did not prescribe in detail the kinds of hearings to which the two groups are entitled [and was especially cryptic about the nature of the Guantanamo hearings], it seems clear that citizens like Hamdi will be able to claim more procedural protections than noncitizens can. This may be true, moreover, whether the detainees are held onshore or abroad-although this is less certain. Also left open is the role that defense lawyers will be allowed to play during prehearing interrogations. Here too, however, citizens are likely to have more extensive rights than noncitizens.
This difference raises basic questions about the nature and meaning of citizenship. Why does the law distinguish between citizens and noncitizens at all? For which purposes should it do so, and with what legal consequences? More specifically, should detainees' procedural rights turn on their citizenship? And most fundamentally, who should answer these questions--the U.S. Congress? The courts? The military? International tribunals?
Questions like these are particularly vexing in the case of a citizen such as Hamdi. Born in the U.S., Hamdi left with his family for Saudi Arabia as a child, never [so far as we know] to return until seized on the battlefield in Afghanistan and brought here for interrogation and processing as an enemy combatant. Assuming that citizens can claim greater rights than noncitizens, is Hamdi--a man with no apparent links to the U.S. other than the accident of birth here--the kind of citizen who should receive them? The Constitution's answer appears to be yes.
Four aspects of citizenship are most relevant to cases like Hamdi: acquisition, duality, loss, and differential rights.
Acquisition. Most countries today base their citizenship, at least in part, on the jus soli [or birthright] principle-the idea that with very minor exceptions, anyone born on its territory is, simply by virtue of that fact, a citizen. Even some nations like Germany that traditionally limited citizenship to those with a common ethnicity have recently added certain jus soli elements. The U.S., however, has the most expansive version of jus soli citizenship, extending it even to the native-born children of illegal aliens and temporary visitors, however briefly either the mother or the native-born child is here--in Hamdi's case, not very long. For those not born in the U.S., naturalization is also relatively simple, requiring only five years' legal residency [three if married to a citizen], good moral character, and the most rudimentary knowledge of the English language and American government. Under the principle of jus sanguinis [law of descent], foreign-born children of an American parent can often acquire citizenship without meeting even these standards.
Dual citizenship. Easy acquisition of U.S. citizenship, combined with nationality laws of other countries and cross-national intermarriage, makes dual or even triple citizenship increasingly common. The children of such marriages who are born in the U.S. often enjoy both American citizenship through birth and their parents' citizenship[s] by descent. Hamdi, for example, was an American citizen by birth in the U.S. and a Saudi citizen by descent from his parents. In addition, although immigrants naturalizing here must renounce their earlier allegiances, their countries of origin may decide to treat such renunciations as legally ineffective, in which case they retain their original [renounced] nationalities as well as their new American one. In the past, the U.S. government discouraged dual nationality, seeing it as a potential source of conflicts of loyalty, diplomatic disputes, and other problems. Today, however, the government is resigned to it.
Loss of citizenship. If American citizenship is easy to acquire, it is also difficult to lose-unless the citizen intentionally expatriates himself in a formal document before a government official. Beginning in 1907, Congress enacted provisions that denationalized U.S. citizens who committed specified acts. [A woman's acquiring a foreign nationality through marriage was one such act, an egregiously discriminatory provision upheld by the Supreme Court but later repealed by Congress.] Expatriating acts included such conduct as naturalizing in or declaring allegiance to a foreign country, voting in a foreign election, deserting the U.S. military in a time of war, avoiding military service during wartime by leaving or remaining outside the country, returning to and living in one's country of origin for a certain period after having naturalized in the U.S., serving in a foreign government, and, of course, treason. In a zigzag series of denationalization decisions culminating in the 1967 case of Afroyim v. Rusk, the Supreme Court developed a rule that denies Congress any power to deprive a citizen of his citizenship without his consent. This rule, now codified in statute, limits denationalization to the rare situation in which one commits a legally defined expatriating act with a specific intent to relinquish citizenship.
Differential rights. Traditionally, federal and much state law allowed government and employers to favor citizens over noncitizens in the allocation of public benefits and jobs. This was justified on the theory [to the extent one was articulated] that these were discretionary privileges, not rights, and that visitors had weaker claims on them than citizens did. Supreme Court decisions, however, gradually limited the states' power to discriminate against noncitizens; in 1971 the Court rejected a state law denying noncitizens otherwise available welfare benefits. Thereafter, the law tended to minimize the differences between the legal rights [and duties, which are minimal in both cases] of citizens and noncitizens. I have termed this a "devaluation" of citizenship and argued that, although this reduced immigrants' incentives to naturalize, it was on balance desirable that the law treated citizens and noncitizens largely the same. [The main exceptions were the citizens' right to vote, their higher priority in bringing close relative immigrants to the U.S., and their eligibility for some public jobs barred to noncitizens.] In 1996 Congress seemed to "revalue" citizenship by enacting a welfare reform law that limited noncitizens' access to a number of federally funded benefit programs-a discrimination later upheld by the courts. Within a few years, however, Congress restored some of these benefits, and most of the high-immigration states used their own funds to replace some of the withdrawn support, so that most [though not all] legal immigrants can now claim much the same basic benefits that their citizen counterparts enjoy.
For almost all Americans, the idea of an exclusive national citizenship, one that draws a sharp line between members and nonmembers and treats the latter unequally in certain respects, is unexceptionable. To many, this idea is part of what it means to be an American. Fairness, in this conventional view, requires only that U.S. citizenship be available on easy terms to all long-term immigrants on a nondiscriminatory basis.
In contrast, however, many intellectuals who write about citizenship take a different view: They oppose pretty much any discrimination against noncitizens. The big exception is the right to vote, but even here many academics propose that noncitizens be allowed to vote, particularly in local or special-purpose [e.g., school board] elections, as permitted in many European and some American communities. The intellectual critique of traditional citizenship is of three types: egalitarian, functional, and transnational.
Egalitarian. In the egalitarian view, very common among academics, status differentials are presumptively illegitimate, especially when government mandates them. Even more objectionable are differentials that correlate with and disadvantage racial and ethnic minorities, as is the case with the citizen-noncitizen distinction. These inequalities, the argument runs, are like suspect classifications in equal protection jurisprudence; they must be narrowly tailored and can be justified, if at all, only by compelling reasons. In addition, many egalitarians, drawing on the work of the English social theorist T.H. Marshall, maintain that the legal-political conception of citizenship is radically incomplete. In this view, a robust citizenship requires a level of economic and social equality necessary for full participation in public and private life.
Functional. Another critique of traditional citizenship emphasizes that noncitizens are hardworking, pay taxes, and obey the laws [at least those in legal status do], just as citizens do. Given this functional equality, the argument goes, noncitizens should enjoy the same rights as citizens. Academics often extend this argument to undocumented workers, noting the unfairness of the fact that these workers pay the same payroll, sales, and indirect taxes as others do but are not in a position, because of their illegal status, to claim Social Security and other benefits that their taxes help finance.
Transnational. To many commentators, the traditional notion of citizenship, organized around the nation-state, is increasingly anachronistic. Human rights advocates cite the growing number of international conventions that recognize universal rights-for example, protections against torture, persecution, discrimination, and environmental insults-that individuals can claim as human beings rather than as members of a particular national polity. Others point to the growth of supranational institutions such as the European Union, World Trade Organization, United Nations, International Criminal Court, and many regional groupings such as NAFTA that exercise real power over individuals and nations. Multinational corporations and international nongovernmental organizations [NGOs] transcend national borders and allegiances. Even ordinary individuals are educated, work, invest, and consume in a global market that is increasingly shaped by forces over which any single nation, even the U.S., has relatively little control. In this environment, many academics think, it makes little sense for people's basic rights to vary simply by virtue of their nationality.
How, then, should we think about the nature and law of citizenship, post-9/11? The most important fact in our new world is that the main risk to our national security, which until 9/11 seemed to exist only abroad, is now domestic, indeed local [especially for New York and Washington, D.C.]. This risk can be contained only by intensive intelligence-gathering and by screening of people in public places, often on the basis of statistical profiles that inevitably produce some false positives ["A Case for Profiling," January 2002].
Should all U.S. citizens be automatically exempted from this screening, just as they can now avoid long lines and interrogation at airports and other ports of entry? Does the fact that the Oklahoma City bombers turned out to be U.S. citizens mean that citizenship is not a good screening criterion, that noncitizen status is a poor proxy for the risk of terrorism? These questions are complicated by legal rules that confer full citizenship on people like Hamdi who were born here but have no other ties to or stake in the U.S., and that give noncitizens fewer rights, both procedural [as Hamdi and Rasul seem to imply] and substantive [as the 1996 welfare law provides].
Citizenship is a broad legal category bearing rights that Congress may not constitutionally subdivide. In a 1964 decision, Schneider v. Rusk, the Court overturned a law that treated birthright and naturalized citizens differently, and under this principle, Congress may lack power to disadvantage birthright citizens like Hamdi just because they moved abroad at an early age and became strangers. [Interestingly, Hamdi has agreed to renounce his U.S. citizenship in return for being released and deported to Saudi Arabia.]
In contrast, Congress has broad discretion to regulate naturalization standards. Would it increase the nation's security or unity by requiring applicants for post-9/11 citizenship to demonstrate greater knowledge about, and loyalty and commitment to, American life than the law required in the past? This is an important question for us to debate. In my view, we should resist the temptation to toughen naturalization by imposing new tests of loyalty and commitment. For birthright citizens like Hamdi who lived among us only briefly and long ago severed any ties to our society, membership should perhaps lapse at some point. But any individual whom our government holds in custody, whether citizen or stranger, should be able to test the legality of that custody as a matter of human rights, not citizenship.
Peter H. Schuck is the Simeon E. Baldwin professor at Yale Law School, and author of Diversity in America [Harvard University Press, 2003].