Balkinization: What is a Citizen?

What is a Citizen?

Gerard N. Magliocca

This past week I led a teacher workshop for the "We The People" program, which is a civic education initiative at all levels that I participated in as a high school student. One part of our discussion was about the definition of citizenship, which gave me the idea for this post. Here's the question: What is the constitutional significance of United States citizenship?

One clear answer is that only citizens may be elected to Congress or to the White House. (You can be a federal judge without citizenship.) And then there is . . . nothing. There is no other benefit or right that the Constitution reserves to citizens. As Ripley used to say, "Believe It or Not."

"Wait a minute," you might think. "Only citizens vote, serve on juries, and get passports." That is true, but these are not constitutional requirements. States can give voting rights to aliens (at the ballot box and in the jury box) and Congress can do the same for federal juries, passports, and for voting in the District of Columbia. John Bingham argued in the 1850s that states could not give aliens the right to vote, but that view was rejected then and is hard to justify given the broad latitude that states have over voter eligibility (and he had to cite Dred Scott as his best case!)

My analysis makes a hash of a leading argument in the immigration debate. Some people say that Democrats want to give illegal immigrants amnesty because they will vote for Democrats when they become citizens. But they could vote for Democrats now if states gave them the ballot. (I very much doubt, by the way, that a federal court would rule that states are preempted from expanding suffrage in this way, as it would be extraordinary to say that a traditional state power like that is preempted.) Now the odds that any state will do this are close to zero, but you never know.

UPDATE: Eugene Volokh correctly pointed out to me that Section 2 of the Fourteenth Amendment refers specifically to citizens in setting forth its penalty for states that disenfranchise voters. Since Section 2 has never been enforced (and some think it was superseded by the Fifteenth Amendment), I don't think that detracts from my point, which is that the constitutional significance of citizenship is dependent on state law to a degree that is often overlooked.

Posted 8:24 PM by Gerard N. Magliocca [link]

Comments:

Of course, states once upon a time DID give some non-citizens a right to vote. At least for local elections, that might be fairly uncontroversial in certain cases (e.g., maybe long time residents with children would have the right to vote in school elections).

Anyway, what is covered by:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Doesn't this provide "constitutional significance" in ways other than who can be elected to Congress or the WH?

Anyway, case law has given some constitutional significance to citizenship, though with dissent.

UNITED STATES v. VERDUGO-URQUIDEZ, e.g., spells out details. Given recent discussion, one lower court at least suggested citizenship mattered for 2A rights.

# posted by

Joe : 8:39 PM

Joe's closing sentence:

"Given recent discussion, one lower court at least suggested citizenship mattered for 2A rights."

suggests that the lower court perhaps determined that the reference in the 2nd A to "people" equates with "citizens." This seems out of whack as a legal alien owning his/her own home would not have the limited Heller/McDonald 2nd A benefit of guns in the home for self defense. The words "people," "person(s)" appear in several places in the Constitution as amended where they are distinguished from "citizens." "We the People" includes non-citizens.

# posted by

Shag from Brookline : 9:18 PM

This comment has been removed by the author.

# posted by

Joe : 9:45 PM

Here's a discussion:

http://www.volokh.com/2011/06/13/the-constitutional-rights-of-illegal-aliens-under-the-first-second-and-fourth-amendments/

It is more of an illegal alien case or shall we say undocumented person. Still, Heller itself repeatedly speaks of "citizens" as if that matters. Of course, McDonald v. Chicago incorporated via the DPC, which protects persons.

And, though the feds have somewhat more power here, any classification against aliens here would have to meet equal protection commands.

https://saf.org/?p=3424

But, still, being a non-citizen might have some relevance. For instance, in membership of the militia in some fashion. Being a non-citizen mattered, e.g., in a post-Citizen United ruling that upheld limits on certain non-citizens specifically.

[To tie everything together, Justice Stevens referenced the case in his book.]

# posted by

Joe : 9:51 PM

My understanding is that non-citizen voting wasn't unheard of in the 19th century, though it was sometimes complicated. If you're interested in this subject, I suggest talking to Peter Spiro (or at least reading his book on the subject)

# posted by

Matt : 10:30 PM

"Still, Heller itself repeatedly speaks of "citizens" as if that matters."

"the people" has generally been regarded as a little more specific than just "people", intending to specify people who are part of the national community. Which, of course, sweeps in legal immigrants, but not illegal, in the same way a guest can be a member of your household without being a member of your family, but a burglar would be neither.

# posted by

Brett : 5:47 AM

And let's remember that because of the conservative majority in Citizens United corporations are "people."

And who can forget Barbra Streisand's:

"People,
People who need people,
Are the luckiest people in the world"

Brett at times in Humpty-Dumpty fashion defines "people" to fit his Quickdraw McGraw approach to the 2nd A. Lock and Load.

# posted by

Shag from Brookline : 7:13 AM

What about the first sentence of Section 1 of the 14th A?

****
U.S. Constitution › 14th Amendment
14th Amendment
Amendment XIV
Section 1.

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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

*****

And the balance of Section 1 is not chopped liver as to both citizens (PorI- as Joe pointed out) and persons who may not be citizens (due process, equal protection).

# posted by

Shag from Brookline : 8:39 AM

The case cited (V-U) did suggest "the people" means "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

Regardless, the case and other cases still treated "aliens" -- even those with such a connection -- differently than citizens. There was an "ascending" protection of rights that get to its apex when one becomes a citizen.

As noted, the USSC treated non-citizens differently regarding campaign finance laws. Also, "significant connection" suggests one day as a LEGAL immigrant might not be enough to be a membership of "the people" for all purposes. OTOH, if you were born here and left the same day, you would be a citizen and a member of "the people" by definition.

I'm all for a broad application of the rules and as noted personhood and equality protects everyone to some degree. And, though "the people" would not limit it to them, the Heller opinion does at times specifically highlight a "citizen" is involved, since as noted, they have to some degree a stronger claim.

# posted by

Joe : 9:42 AM

"Also, "significant connection" suggests one day as a LEGAL immigrant might not be enough to be a membership of "the people" for all purposes"

I think the only purpose for which it would not be enough would be qualification to be President. Nowhere else is there any constitutional basis for distinguishing between birth and naturalized citizens.

# posted by

Brett : 12:18 PM

This comment has been removed by the author.

# posted by

Joe : 1:22 PM

The comment quoted was meant to apply to non-citizens.

The language suggests some sort of connection is required to be a member of "the people," while citizenship provides that automatically at birth or naturalization.

I don't know the lines for this "connection" but mere legal residence for a day might not do it. The phrasing seems to imply some minimum residence, at least for certain things.

Your comment as to citizenship seems about right though it might not quite be what the law is now.

# posted by

Joe : 1:26 PM

I believe some local jurisdictions have given non-citizens the right to vote in local elections. Takoma Park, Maryland, comes to mind. Perhaps there are some others. I don't remember any challenges to those laws, though they only applied to such things as city council elections.

# posted by

Nancy Jane Moore : 2:22 PM

Oh, more than local jurisdictions have done it. Only local jurisdictions have done it openly. But, what else do you suppose the import of not permitting states to check citizenship when somebody registers to vote is?

# posted by

Brett : 5:34 AM

Brett apparently is talking about:

http://www.scotusblog.com/case-files/cases/arizona-v-the-inter-tribal-council-of-arizona-inc/

Here the state argued the federal requirement to swear on the penalty of perjury you are a citizen (a strange sort of "right" for non-citizens, but YMMV) was inadequate to protect state qualifications.

The USSC upheld the rule but gave state the power to challenge it if it was shown to be inadequate. The federal rule was in place to protect citizens with a fundamental right to vote not to be (as evidence shown) burdened inappropriately particularly given the limited evidence that undocumented immigrants risked registered fraudulent.

A discretionary safeguard that requires you swear to God (if that is your thing) you are a citizen does not seem to be a "right" for non-citizens' to vote. But, then, maybe the word is using in some special way.

# posted by

Joe : 9:56 AM

But, still, being a non-citizen might have some relevance. For instance, in membership of the militia in some fashion. Being a non-citizen mattered, e.g., in a post-Citizen United ruling that upheld limits on certain non-citizens specifically. Buy LOL Boosting
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