Wednesday, June 25, 2014
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?
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.
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.
Here's a discussion:
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.
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.]
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)
"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.
And let's remember that because of the conservative majority in Citizens United corporations are "people."
And who can forget Barbra Streisand's:
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.
What about the first sentence of Section 1 of the 14th A?
U.S. Constitution › 14th Amendment
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).
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.
"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.
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.
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.
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?
Brett apparently is talking about:
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.
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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