Friday, November 17, 2023
The notion of citizenship lies at the core of our constitutional structure, determining possession of fundamental rights ranging from the rights to vote and hold public office to the right to enter and remain in the United States at all. Indeed, the entire constitutional project of self-governance rests on the premise of a defined group of “We the people.” Determining who qualifies as a citizen is thus central to our constitutional fabric. Prior literature has tacitly assumed that the federal judiciary has been the principal arbiter for deciding who qualifies for citizenship under our Constitution. This Article, however, demonstrates that political actors, rather than federal courts, have played the primary role in defining access to constitutional citizenship for members of historically marginalized groups, which raises significant normative implications.
This Article excavates records surrounding three pivotal episodes from our nation’s history: the contestation of citizenship for Black Americans in the early to mid-nineteenth century; the denial of citizenship to Chinese Americans during the Exclusion Era from 1882 to 1943; and the stripping of citizenship from American women who married noncitizens prior to 1922. In each case, members of historically marginalized groups seeking to assert their constitutional citizenship found little recourse in the federal courts. Political institutions, however, independently wrestled to determine their citizenship status, in the absence of — or even in defiance of — federal court opinions. The historical record tells a story of judicial abdication, which allowed political actors to both narrow and expand access to constitutional citizenship.
The histories unearthed in this Article raise an urgent fundamental normative question: To what extent should constitutional citizenship be determined by political actors? This Article argues that citizenship is unique among constitutional provisions in ways that generally cast doubt on the legitimacy of efforts — political or otherwise — to deny it to members of marginalized communities. Moreover, the histories uncovered in this Article show that political institutions are not inherently more or less likely than the federal judiciary to do so. The experiences of Black Americans, Chinese Americans, and married American women thus suggest that the road to a more inclusive citizenship requires involvement by both: federal courts must play an active role in policing the constitutional floor for citizenship, but the political branches must remain free to expand constitutional citizenship beyond that floor, which may, in turn, generate a new consensus on what that floor should be.View Full Article