The Supreme Court docket’s position in defining American citizenship

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The Supreme Court’s role in defining American citizenship

Ask the author



at 10:23 am

A rally before the Nov. 12, 2020, argument over the future of DACA (Victoria Pickering, CC BY-NC-ND 2.0)

The following is a series of questions posed by Professor Gabriel “Jack” Chin, University of California, Davis School of Law, to Professor Amanda Frost, American University Washington College of Law, on Frost’s new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.

Frost is an expert in constitutional law, immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. She writes the Academic Round-up column for SCOTUSblog, highlighting noteworthy scholarship on the Supreme Court. On Thursday, Jan. 28, at 8 p.m. EST, Politics & Prose will host a virtual book launch. For more info and to register for that event, click here.

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Can you start by describing the book in a few sentences, and what motivated you to write it?

(Penguin Random House)

The book describes the events surrounding the legal battles to safeguard citizenship. Over the past two centuries, the government tried, and sometimes succeeded, in revoking citizenship from millions, including disfavored racial and ethnic groups, women who married noncitizens, imprisoned Japanese Americans during World War II, as well as political activists and labor leaders. At times, the Supreme Court defended citizenship, but at others it acquiesced or even led the way in declaring that groups or individuals were no longer entitled to the rights and privileges of U.S. citizenship.

I wrote this book in part because this history is not well known, and I wanted to share this knowledge with a wider audience. The book is a legal history, but it is told primarily through the stories of those who lost their citizenship, using their own words whenever possible. These people were remarkable, and one of my goals was to write an accessible book in order to share their citizenship battles with a broader audience.

 

Those who lose their citizenship often turn to the courts for relief, but as you explain, the Supreme Court has not always protected citizenship. Why has the court protected some individuals from losing citizenship even as it refused to protect others?

Supreme Court decisions often reflect their historical moment. When the political branches choose to revoke citizenship, they do so from those viewed as “un-American” — whether because of their race, ethnicity, speech or even their choice of marriage partner or reading material. Like elected politicians (and the rest of us), the justices are influenced by the public’s perceptions of who is a “real” American entitled to the rights of citizenship, and who is not.

When the court decided Dred Scott v. Sandford in 1857, the nation was debating whether slavery could be reconciled with the Declaration of Independence’s founding principle of equality. Chief Justice Roger Taney thought he had solved that problem when he declared that no Black person, slave or free, could claim the “rights and privileges of citizenship” — in other words, that all Blacks were outside of the social compact. As the dissent pointed out, to reach that conclusion he had to ignore historical precedent supporting Black citizenship, including the fact that some Black residents of the United States had the right to vote, and some had even voted to ratify the Constitution that Taney thought denied them citizenship. But Taney and a majority of the justices could not see beyond their deep-seated assumptions about race and equality.

At other times, though, the court protected citizenship from the political branches’ efforts to take it away, even when it was not politically popular to do so. In its 1967 decision in Afroyim v. Rusk, the court put a stop to the government’s Cold War denaturalization campaign, declaring: “The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.”

 

Was there a Supreme Court decision regarding citizenship stripping that surprised you?

I was pretty taken aback by Mackenzie v. Hare, the 1915 decision in which the court unanimously upheld a federal law revoking U.S. citizenship from American women who married noncitizens.

The story behind that case is almost too good to be true. The plaintiff, Ethel Mackenzie, was a well-known suffragist who had successfully fought for the right to vote in California. But when she tried to vote in the next election, she was barred because she had married a Scotsman. Under the Expatriation Act of 1907, American women who married noncitizens automatically lost their citizenship. Mackenzie challenged the law in the Supreme Court, but none of the (male) justices could understand why it would be important for women to maintain independent citizenship.

The happy ending to the story is that two years after the 19th Amendment guaranteed women the right to vote in 1920, the Expatriation Act was partially repealed — though it was not eliminated entirely until 1931. And the credit for getting rid of it goes in part to the newly elected women in Congress.

 

You argue that citizenship stripping has “served as a proxy for overt discrimination.” Can you elaborate on what you mean by that, and how citizenship stripping fits in with more familiar forms of discrimination?

Citizenship stripping has been used to discriminate in ways otherwise prohibited by law. The Supreme Court has held that the right to vote, serve on a jury, own property, criticize the government, work in a variety of professions and remain in the United States cannot be denied on the basis of race, religion, gender, speech and other protected grounds. But, as the court explained in Mathews v. Diaz in 1976, it is legally permissible to discriminate against noncitizens in a variety of ways. I argue that at times the government has taken advantage of that distinction, using access to citizenship as a facially neutral means of accomplishing unconstitutional goals.

 

Is there a Supreme Court justice whose vote in a citizenship case you view as particularly significant?

I was struck by Justice Felix Frankfurter’s 1944 opinion for the court reversing the denaturalization of Carl Wilhelm Baumgartner, a German immigrant who had become a naturalized U.S. citizen in 1932.

Baumgartner supported the Nazis, made anti-Semitic statements and declared publicly that “he would be glad to live under the regime of Hitler.” Frankfurter was the court’s only Jewish member, and the case was decided on June 12, 1944 — just a week after D-Day, at a time when Nazi Germany still posed a very real threat to the world. Nonetheless, Frankfurter wrote that U.S. citizenship came with the “freedom to speak foolishly” without fear of expulsion for doing so. By authoring the opinion, Frankfurter drove home his point that citizenship could not be lost even for expressing abhorrent speech and beliefs.

 

Access to law and to lawyers has been essential for many litigants, especially the Chinese at the turn of the 20th century, and imprisoned Japanese Americans during World War II. How did these disempowered groups get access to the judicial system?

Chinese immigrants in the United States pooled their resources to hire high-profile, establishment lawyers, who filed thousands of cases on their behalf — a massive pro-bono effort comparable to that of the NAACP during the civil rights movement in the 20th century. In fact, the Chinese should get more credit for pioneering a legal strategy that is still used today.

ACLU lawyer Wayne Collins was dogged and passionate in fighting to restore the citizenship of the nearly 6,000 imprisoned Japanese Americans who had been coerced into renouncing their citizenship. After 15 years of litigation, the government finally admitted its errors and restored their citizenship. Collins is proof of the difference one lawyer can make.

 

How has race affected the Supreme Court’s citizenship decisions?

Not surprisingly, race plays a big role in this story all the way through.

Citizenship stripping was often intertwined with questions about race, membership and political power. Dred Scott’s declaration that Blacks could not be citizens epitomized the view that the United States was a white nation. The 14th Amendment’s citizenship clause overruled Dred Scott, declaring that “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.”

The Supreme Court played a vital role in implementing the 14th Amendment’s citizenship guarantee. In the 1890s, Solicitor General Holmes Conrad argued that the native-born children of Chinese immigrants did not qualify for birthright citizenship. Conrad was an un-Reconstructed former Confederate officer who rejected every aspect of the 14th Amendment. He even went so far as to argue before the Supreme Court that the amendment was itself unconstitutional because the southern states had been coerced into ratifying it — a startling claim even in 1898. But the court rejected that view, holding in United States v. Wong Kim Ark that birthright citizenship applied to all, regardless of race or ethnicity.

 

Is there a justice whose views on citizenship came as a surprise?

Justice John Marshall Harlan’s dissent in Wong Kim Ark startled me.

Harlan’s stance in favor of civil rights for Blacks led Frederick Douglass to declare him “a moral hero.” In 1896, just a year before Wong’s case reached the court, Harlan had written an angry dissent in Plessy v. Ferguson — the case establishing “separate but equal” accommodations for whites and Blacks, cementing Jim Crow racial segregation into U.S. law until the Supreme Court’s 1954 decision in Brown v. Board of Education finally began to put an end to it. The court’s lone dissenter in Plessy, Harlan had passionately argued that “our constitution is color-blind.”

But then just two years later, he was one of only two justices to conclude that the native-born children of Chinese immigrants were not citizens, despite the clear language in the 14th Amendment granting citizenship to all born on U.S. soil. As you have written, Jack, Harlan’s dissent in Wong Kim Ark complicates his legacy as an advocate for racial equality.

 

As you explain, citizenship stripping lives on today. Donald Trump questioned birthright citizenship for the children of undocumented immigrants and threatened to end it by executive order. The State Department refused to give passports to those born near the southern border and outside of institutional settings. Citizens are mistakenly detained and deported by immigration officials, and proving citizenship is getting harder. What do you think the Supreme Court would do now if people were told by their own government, “You Are Not American”?

 In recent years, the Supreme Court has been more protective of citizenship than the political branches. In Afroyim, the court thought it had put an end to the government’s aggressive denaturalization campaigns, and for a while it succeeded. But a footnote in that opinion allowed for denaturalization in cases of fraud or mistake — a tiny loophole that the Trump administration used as grounds to launch an investigation of over 700,000 naturalized citizens. Whether the government’s expansive interpretation of that footnote is legally permissible never reached the Supreme Court.

I think if and when new cases come before the court, the justices are likely to be skeptical of the government’s power to lightly revoke citizenship. In 2017, in Maslenjak v. United States, the government argued before the court that it could denaturalize anyone found to have made even a minor error in a naturalization application. At oral argument, Chief Justice John Roberts asked Assistant to the Solicitor General Robert Parker if failing to admit to having driven at 65 miles per hour in a 60-mile-per-hour zone would be grounds for denaturalization. Parker responded yes, and the government lost its case in a unanimous opinion.

 

Does the story you tell show that the United States is basically a bigoted, racist country? Or is it the opposite, given humane outcomes like the quick repudiation of Dred Scott, the rejection of racial limits on birthright citizenship in Wong Kim Ark, and the opportunity for women who were expatriated because they married noncitizens to regain their citizenship?

It is both at once. On the one hand, the United States claims to be an open, tolerant country that welcomes immigrants — and at times it lives up to that ideal. But citizenship stripping is evidence of our nation’s schizophrenia. The government has repeatedly passed laws casting out its own citizens, both native-born and naturalized. Women who married noncitizens, Chinese Americans at the turn of the century, Japanese Americans during World War II, even labor leaders and political activists have all been declared “un-American” — not just rhetorically but as a matter of their legal status. Some were even deported. And as I explain in the last chapter, citizenship stripping lives on today.

Happily, though, the story doesn’t end there. As I describe in the book, those groups successfully fought back, sometimes (though not always) with the help of the Supreme Court. So the book is in part about the nation’s constant struggle to live up to its stated ideals.