The Fragility of American Citizenship
Some people are learning that their birth or naturalization certificates aren’t enough to prove citizenship—a problem that the Fourteenth Amendment should ideally prevent.
About the author: Amanda Frost is the Ann Loeb Bronfman professor of law & government at American University’s Washington College of Law. She is the author You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.
Establishing U.S. citizenship is supposed to be easy. In 1868, the first sentence of the newly ratified Fourteenth Amendment declared: “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.” In light of those words, either a birth certificate or a naturalization certificate is all that is needed to prove U.S. citizenship and to gain all the rights that come along with it—to vote, to hold public office, and to enter and remain in the United States.
The power of those words is diminished today. Through a variety of initiatives, the Trump administration is undermining the Fourteenth Amendment’s citizenship guarantee, and many Americans are learning the hard way.
Naturalized citizens are at particular risk of losing their citizenship under the Trump administration, as Baljinder Singh recently discovered. Singh has lived in the United States for nearly three decades, married a U.S. citizen, and became a naturalized citizen more than 10 years ago. Nonetheless, last year the government revoked his citizenship. Why? Because when he arrived in the United States as a teenager, the government recorded his first name as “Davinder” rather than “Baljinder”—quite possibly due to an interpreter’s error—and he never received the notice to appear in immigration court under that different name.
Singh is among the first targets in a denaturalization campaign launched by the Trump administration, which opened a new office in Los Angeles last summer, staffed by dozens and dedicated to investigating the citizenship files of 700,000 naturalized Americans.
But even some born within America’s borders are having their citizenship questioned. Take, for example, retired Marine Gunnery Sergeant Enrique Martinez. His birth certificate stating he was born in Texas was good enough for the U.S. Marine Corps. Nonetheless, the State Department refused his application for a passport on the grounds that it was insufficient proof that he was a U.S. citizen.
Martinez is one of thousands of Americans denied passports since George W. Bush’s administration because, in the government’s view, their citizenship is in doubt. These individuals are typically of Hispanic descent born near the southern border, and their birth certificates were signed by midwives. Because some midwives have admitted to issuing fraudulent birth certificates in the past, the government now takes the view that hundreds of thousands of Americans are presumed foreigners unless or until they can prove otherwise. “You’re getting questioned on something so fundamentally you,” one woman told The Washington Post last year. Although denials of passports began before Donald Trump took office and the State Department has disputed the details, lawyers report “a surge in cases” over the past few years.
The Trump administration’s rejection of U.S. birth certificates, denials of passports, and denaturalization campaign amount to an attack on the citizenship of ethnic, racial, and religious minorities. Surely it is no coincidence that all of the administration’s initiatives have primarily targeted people of color, be they Hispanics living near the border or naturalized citizens from Muslim countries.
Although these citizenship-stripping initiatives are a sharp break from recent practice, they have roots in the nation’s long history of denying certain disfavored groups full membership. The Constitution of 1789 said next to nothing about citizenship. That omission allowed the Supreme Court to declare in Dred Scott v. Sandford that no African American, whether slave or free, could ever be a citizen of the United States. In the aftermath of the Civil War, the authors of the Reconstruction amendments aimed to right that wrong by enshrining citizenship in the Fourteenth Amendment, elevating it above politics and insulating it from the whims of a tyrannical majority. As is true for so many of the most important constitutional provisions, however, putting the words on paper was only one step in the struggle to realize those ideals.
The Fourteenth Amendment’s first test came in 1870, when Hiram Rhodes Revels became the first African American elected to Congress. In a delicious irony, Revels would represent Mississippi in the U.S. Senate, a position last held by Jefferson Davis before he abandoned the Union to become president of the Confederacy. Before Revels could take his seat, however, he had to defend himself against the claim that he was ineligible to serve because he was not an American citizen.
“Revels is not a citizen of the United States,” declared Senator Garrett Davis of Kentucky, because the “farce” that was the Fourteenth Amendment could not make him one. Senator Willard Saulsbury of Delaware insisted that the Fourteenth Amendment “is no more a part of the Constitution of the United States today than anything which you … might write upon a piece of paper and fling upon the floor.”
Revels’s supporters rushed to defend both the Fourteenth Amendment and his citizenship, and eventually he was allowed to take his seat. But by the end of the 1870s, the country had abandoned Reconstruction, and black people lost their citizenship in all but name.
African Americans are not the only racial group to have had its citizenship questioned. Wong Kim Ark was born in San Francisco in 1870, making him a U.S. citizen at birth under the Fourteenth Amendment. Nonetheless, when he tried to enter the United States in August 1895 after a trip to China, immigration officials denied him admission.
The government argued before the U.S. Supreme Court that no person of Chinese ancestry qualified as a U.S. citizen, even if born in the United States. Wong’s parents were citizens of China, and so Wong was “subject to the jurisdiction of the Emperor of China” and not the United States at the time of his birth, the government claimed. If the government had prevailed, it would have put at risk the citizenship status of the millions of children of immigrant parents living in the United States.
Wong won his case and was permitted to enter the United States. But the U.S. government continued to deny Chinese Americans’ claims to citizenship for decades. All four of Wong’s sons had to defend their citizenship over the next three decades. One lost his case—officials refused to recognize him as Wong’s son—and was barred from ever returning to the United States.
The government did not limit citizenship-stripping to racial minorities. Hundreds of thousands of American women also lost their citizenship under a federal law enacted in 1907 that revoked U.S. citizenship from women who married noncitizens. (When women complained, one congressman responded, “Aren’t our boys good enough for you?”)
The suffragist and socialite Ethel Mackenzie, born and raised in San Francisco, helped to win the vote for California’s women. Nonetheless, she lost her own right to vote along with her citizenship when she married a Scotsman. She took her case all the way up to the Supreme Court, arguing that the Fourteenth Amendment barred Congress from stripping native-born American women of their citizenship. She lost. Congress did not repeal the law until 1931.
The government has also turned to citizenship revocation as a useful way to rid itself of its political enemies. The prominent anarchist Emma Goldman was deported in 1919 after the U.S. government went to great lengths to denaturalize her. Starting in 1949, the government forced the troublesome labor leader Harry Bridges to defend his citizenship in two separate trials that stretched over six years.
As this history shows, for nearly a century after the Fourteenth Amendment supposedly protected citizenship, the government took it away from groups and individuals that it deemed “un-American.” Then, in the 1960s, the civil-rights movement took hold, and the nation began to question policies that denied some their full rights of citizenship. In 1967, the U.S. Supreme Court formally put an end to the government’s power to revoke citizenship, declaring in Afroyim v. Rusk that “in our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.” For decades afterward, the government revoked citizenship rarely. Finally, citizenship was sacrosanct, safeguarded from the whims of politicians, just as the Fourteenth Amendment’s drafters intended.
That is now changing under Trump. So far, the Trump administration has explicitly targeted the citizenship of Americans born near the southern border and naturalized citizens, jeopardizing the citizenship of millions of people on the grounds that there was fraud or error in the naturalization process—the one avenue left to revoke citizenship after Afroyim v. Rusk. But there is no reason to think the government will stop there. Last year, President Trump announced he has the power to issue an executive order denying citizenship to tens of millions of native-born children of undocumented immigrants, despite the clear language of the Fourteenth Amendment stating otherwise. Already, the assumption that some people are not “real” Americans has permeated the culture of immigration agencies, leading the government to mistakenly arrest, detain, and deport U.S. citizens who code as “un-American” to the immigration officials charged with making these decisions.
Nor is it paranoid to predict that in a world in which citizenship is up for grabs, the government will attack its critics as less than “real” Americans. President Trump did just that in a tweet instructing four congresswomen of color to “go back … [to the] places from which they came,” even though they are all U.S. citizens and three of the four were born in the United States.
Of course, Trump’s attacks on the sanctity of citizenship pre-date his election to the presidency—in fact, it was the basis of his rise to political prominence, as he questioned whether Barack Obama was a citizen at birth and thus eligible to be president. That the claim was baseless did little to deter registered Republican voters, three-quarters of whom believed it, according to a 2016 NBC News poll.
The authors of the Fourteenth Amendment knew what America today seems to have forgotten: In a democracy, the people choose the government; the government cannot be allowed to choose its people. The drafters of that amendment tried to shield citizenship from politics by declaring that all those born or naturalized in the United States—whatever their race, their religion, or the immigration status of their parents—are U.S. citizens, period. And yet the country cannot seem to accept that whatever people may feel about their fellow Americans, they are all just that—fellow Americans.