CITIZENSHIP AND RACIAL SUBORDINATION

Students typically begin the study of citizenship with a sense that citizenship means equal basic rights, even if such rights are not identified precisely.¹³ Characterizing citizenship as a font of human equality, British sociologist T. H. Marshall offered a rights-based conception of citizenship in his classic essay Citizenship and Social Class.¹⁴ Marshall described stages of development of democratic citizenship, from a citizenship defined by political rights to one that encompasses civil rights and, eventually, social rights. Political rights include voting and holding office.¹⁵ Civil rights relate to rights of speech, conscience, and assembly, among others. Social rights relate to human welfare, including education and health care. Marshall’s conception offers an appropriate starting point for thinking about the meaning of citizenship, as it presents the familiar view of citizenship as “a bundle of rights.”¹⁶

A binary conception of citizenship—a status that you have or don’t have—comes under strain quickly. As Elizabeth F. Cohen has argued in her book Semi-Citizenship in Democratic Politics, liberal democracies need a concept of citizenship lest the “promise of secure political membership that they hold out” dissolve.¹⁷ But citizenship “has never been a unitary concept, nor can it even be neatly characterized as binary.”¹⁸ Instead, she argued, citizenship “exists in gradation” and has “degrees of membership and no clear boundaries.”¹⁹ These gradations of citizenship are forms of what Cohen has called “semi-citizenship.”²⁰ Semi-citizens enjoy some portion of the full bundle of rights. Different semi-citizens enjoy different bundles of rights.

On Cohen’s view, semi-citizenship is inevitable and full citizenship largely a myth. Democratic nations inevitably rely on semi-citizenship to organize the polity into different groups not governable under the same set of rules.²¹ For example, children can be citizens but aren’t treated as political agents or voters.²² Most people will agree that the same rules cannot and should not apply to children and adults in some settings, although people will disagree about how different the rules can be. Given the proliferation of semi-citizenships in democratic politics, Cohen has characterized full citizenship as a myth—a condition never realized and likely impossible to realize.²³ This construction of semi-citizenship responds to gradations among members and residents, such as undocumented immigrants; it further explains why “differentiated” forms of citizenship have been a consistent feature of our history.²⁴

The major citizenship cases showcase these semi-citizenships, with race occupying a prominent role in delineating the boundaries of the polity’s membership. The cases we study offer a vehicle for reflecting on and challenging citizenship’s assumed role as an antidote to racial subordination. Students generally start from the position that full and equal citizenship means an equal bundle of rights regardless of race; after all, those denied citizenship historically have been deemed racial others. If the government extends citizenship to these groups, that means these new citizens are being included and integrated into the “we” of “We the People.” Citizenship and equality are also linked textually, as the Citizenship Clause appears alongside the Equal Protection Clause in the Fourteenth Amendment.²⁵ This primes students to view national citizenship as a “good” made more accessible over time, a sign of progress, and a necessary condition for different kinds of equality.

The history of birthright citizenship, however, neither tracks a linear story of progress nor portrays citizenship as an unalloyed “good.” Whereas many people view citizenship as a source of equality and inclusion, per Marshall, scholars such as Linda Bosniak have identified and explicated citizenship’s dark side.²⁶ As Bosniak demonstrated in her classic work The Citizen and the Alien, the institution of citizenship reinforces exclusionary logics; it embodies national self-preference and presupposes a population excluded from citizenship’s inclusive promise, i.e., noncitizens.²⁷ Other scholars have illustrated the substantial harm associated with the imposition of citizenship, such as the incursion on Native American sovereignty.²⁸ The core citizenship cases assigned in my seminar create a context for considering these larger themes, which supports a fuller understanding of citizenship.

The cases we study span nearly a century and various phases of national and constitutional development. Dred Scott v. Sandford predated (and helped precipitate) the Civil War, and the Supreme Court in that case held in part that Black Americans, whether free or enslaved, were not citizens of the United States or of any state and, therefore, could not sue in federal court on a theory of diversity jurisdiction.²⁹ Chief Justice Taney’s opinion, which showcases his theory of Black racial inferiority, often stuns students who have never studied the case; they readily identify its abundant moral and analytic failings. Moreover, the case provides a low starting point in the story of racial progress many expect to see: the Fourteenth Amendment repudiated this holding by recognizing all persons born within the United States and subject to its jurisdiction as citizens of the United States.³⁰ Seeing Taney’s opinion undone in a constitutional amendment is powerful. It nourishes the sense that citizenship is essentially connected to racial equality. But of course, they see that the formal grant of citizenship does not itself produce racial equality, as evidenced in the Black Codes, Reconstruction, and Jim Crow.³¹

We then read Elk v. Wilkins and consider judicial interpretation of the Citizenship Clause and the implications of citizenship for Native Americans.³²Elk presented the Supreme Court with the question of whether a Winnebago man who had severed ties with his tribe was a constitutional birthright citizen under the Fourteenth Amendment. The Court determined that at the time of his birth, Elk was subject to the jurisdiction of his tribe, not the United States. Moreover, he did not assume citizenship simply upon ending tribal relations. Along the way, the majority alluded to Native Americans’ purported racial unfitness for U.S. citizenship.³³ Overall, Elk fits well into the narrative of citizenship as a good that is initially, and perhaps unjustly, denied to members of subordinated groups.

Reading Elk, students home in on Justice Harlan’s dissent, especially his disavowal of the majority’s racism.³⁴ Justice Harlan doubted that the very constitutional amendment that extended national citizenship to Black Americans, most of whom had been previously enslaved, did not contemplate extending citizenship to Native Americans who had abandoned tribal relations. This fragment of egalitarian thinking resonates with students who have read Justice Harlan’s dissent in Plessy v. Ferguson, in which, famously, he made the case for a “color-blind” Constitution.³⁵

Nevertheless, some students note that in his “color-blind” Plessy manifesto, Justice Harlan’s enlightened views on race do not extend to the Chinese.³⁶ When we read portions of Wong Kim Ark v. United States, the next foundational case interpreting the Citizenship Clause of the Fourteenth Amendment, which recognized as a birthright citizen a man born in San Francisco to Chinese parents, students see that Justice Harlan dissented. He denied that people of Chinese descent born in the United States could be birthright citizens due to their perceived inability to assimilate and their parents’ allegiance to a foreign power.³⁷ Accordingly, a justice willing to view Black and Native American people as citizens could not countenance the same for the Chinese.

Beyond Elk, the broader struggle over Native American citizenship captivates students. Lila Teeters’ recent study portrayed citizenship for Native Americans in the early twentieth century as “not a promise but a threat.”³⁸ It meant the end of sovereignty and the intensification of forced assimilation. But other scholars have noted the pragmatic and strategic reasons for pursuing citizenship, namely access to resources and protection.³⁹ Here, too, Elk and related materials open a discussion of citizenship: alternatingly coveted and feared, inclusive and oppressive.

Justice Harlan reappears as a dissenter when we read a few of the Insular Cases as part of our study of the significance of U.S. citizenship for residents of U.S. territories. In Downes v. Bidwell, a case about whether the revenue clauses of the Constitution apply in Puerto Rico, he played a more benign (and possibly noble) role, arguing that the Constitution applies in its entirety to U.S. territories. In so doing, he disavowed that some territories could never be incorporated as states due to the perceived racial unfitness of their residents.⁴⁰ It appears once again that applying the Constitution is an egalitarian move, one that includes people in the national constitutional culture—but this view lost out.

Although Congress ultimately extended citizenship to the residents of Puerto Rico, the Virgin Islands, Guam, and other territories,⁴¹ it did not extend citizenship to American Samoans.⁴² They remain “nationals” rather than citizens, ineligible for some federal employment (among other limitations).⁴³ As part of our study of the contemporary implications of the Insular Cases, we read the federal appellate decision in Fitisemanu v. United States, which considers whether American Samoans are in fact birthright citizens under the Fourteenth Amendment for having been born “within the United States.”⁴⁴ Many students are surprised to learn that the Supreme Court has never decided this question, and with its denial of certiorari in Fitisemanu,⁴⁵ it won’t soon do so.

Finally, we consider the necessity or sufficiency of citizenship to the protection of civil and social rights. Korematsu v. United States illustrates that, at least during wartime, citizenship isn’t sufficient to protect its holders from race-based incarceration given assumptions of group disloyalty.⁴⁶Plyler v. Doe demonstrates the inverse—that citizenship, or even lawful presence, is unnecessary for basic rights. This holds at least for children who lack “culpability” for their unauthorized presence and when access to education is on the line.⁴⁷

All these cases demonstrate the ways in which citizenship has a complex relationship to formal and substantive rights. It is neither necessary nor sufficient for state protection. It is neither an unalloyed good nor an institution we can dispense with. It is a tool for advancing federal government interests, whether those interests are benign or nefarious. Rather than serving as a foundation for solidarity, citizenship has often had the most concrete stakes, implicating rights to employment, land, voting, and travel. The cases we study in my seminar illustrate that, as a historical matter, formal status citizenship has served as only a weak antidote to racial subordination—and in some settings, it has fortified it. As liberating and inclusive as a grant of citizenship might be, it also stands to serve as a tool of oppression. The remaining sections of this essay examine these cases more closely.

Citizenship provides a useful lens for thinking about the transformation in race and rights in the nineteenth century, and so my students and I start there. The Supreme Court denied Black Americans formal citizenship based on race in Dred Scott. But after adopting the Fourteenth Amendment and recognizing formerly enslaved persons as birthright citizens, Congress settled Black Americans’ legal status without providing a modicum of security from the violence of Jim Crow.

Like most of us, students typically do not think of the institution of slavery as connected to citizenship overtly.⁴⁸ In reading Dred Scott, however, they see the necessary alignment between a pro-slavery ideology and a denial of citizenship based on race. One could not support the former without at least implicitly endorsing the latter.

In Dred Scott, the Supreme Court notoriously ruled that Dred Scott, a Black man, could not maintain a civil suit for his freedom in federal court.⁴⁹ Scott sought to sue in federal court based on diversity jurisdiction, but the Court concluded that his Black race precluded his citizenship in any state.⁵⁰ Accordingly, he could not establish diversity of citizenship, and the federal courts lacked subject matter jurisdiction in his case.⁵¹

In historian Don E. Fehrenbacher’s leading exegesis of the decision, he identified the stunning moral and analytical deficits in Chief Justice Taney’s majority opinion. As the “first invalidation of a major federal law,”⁵² the decision showcased Taney’s ambitions, namely, his desire to “settle” highly contentious political and constitutional questions by fiat.⁵³ The decision spanned over one hundred pages, but the analysis of Black citizenship constituted only a portion. Taney first expounded on citizenship, equating it with the “sovereignty” of the people who created the Constitution and forgetting the countless white people—landless men, all women, and all children—who were “citizens” despite their exclusion from the process of creating the Constitution (and their exclusion from the franchise).⁵⁴ After equating citizens with those who exercise the nation’s sovereignty, Taney posed the question of whether Black people are part of “the people” in this sense.⁵⁵

Taney proceeded to reframe the question before the Court as whether Scott was a citizen under the federal Constitution, thereby entitled to all the privileges and immunities that extend to citizens. He answered this in the negative, noting the subordinate position of enslaved Blacks in the nation, and then, critically, conflating free and enslaved Blacks.⁵⁶ He further dismissed the notion that a state could endow Scott with citizenship that would then elevate him to being a citizen under federal law. Thus, Taney concluded that Black men had no “rights the white man was bound to respect” and accordingly were excluded from citizenship.⁵⁷

Taney used the occasion to decide a huge question: the validity of congressional restrictions on slavery in the territories. He claimed that the Constitution protected the property right in an enslaved person and that Congress could not eliminate this property right through the mere presence of an enslaved person in a free state or territory.⁵⁸ Fehrenbacher noted the slippage here from the denial of citizenship to denial of personhood, for Taney’s view that Black people were excluded from all constitutional rights implied that even the Fifth Amendment’s Due Process Clause was inoperative, despite its application to all “persons,” not merely all “citizens.”⁵⁹ This brash assertion of judicial power and conceptual opacity spilled into Taney’s characterization of U.S. territories as well. Fehrenbacher wrote that, like enslaved people in Taney’s view, who were in some respects persons and in others property, the territories were “betwixt and between, being neither colonies nor self-governing states but a distinctive American” combination.⁶⁰ One might hear the echo of Justice White’s characterization of Puerto Rico some years later: that the island was “foreign … in a domestic sense.”⁶¹

Although Dred Scott suggests a flattening of free Black people’s legal personae and closure of the federal courthouse door, Martha S. Jones has shown that this is not the full story. In her study, Birthright Citizens: A History of Race and Rights in Antebellum America, Jones chronicled free Black people’s symbolic construction of citizenship in antebellum Baltimore.⁶² Denied status citizenship in the era of Dred Scott, free Blacks were relegated to the category of denizen, an in-between status of people classified neither as citizens nor aliens.⁶³ In this liminal space, free Black Americans pursued fundamental rights to marry, associate, pray, bear arms, and travel. They did so by applying for permits and licenses to protect the exercise of their rights, even though these requirements were seldom enforced.⁶⁴

Free Blacks operated in a fundamentally hostile environment. Controlling their mobility preoccupied slave jurisdictions.⁶⁵ A medley of expulsion, entry bans, and registration requirements all worked to eliminate free Blacks’ presence to the extent possible and, as other scholars have noted, “to ensure that blackness was coterminous with slavery.”⁶⁶ As Jones chronicled, free Blacks presented white society with a problem, for they were neither citizens nor “aliens.”⁶⁷ The Committee on the Free Negro Population, for example, drew up a plan to rid Maryland of all free Black people by sending them to Africa. One proposal cast free Blacks as “burdening” the state with their “passivity, lack of ambition, and complacency.”⁶⁸ It called for forced removal, without due process, and a registration requirement. The second proposal prohibited free Blacks from holding real property, negating their longstanding strategy of asserting ties to Maryland through homeownership.⁶⁹ The third proposal called for voiding manumissions if formerly enslaved people failed to leave Maryland within thirty days of gaining freedom, upon punishment of re-enslavement. The fourth proposal would bar any free person of color from entering the state. Lacking the unencumbered right to remain in the places of their birth, free Blacks experienced nothing remotely resembling modern citizenship.

States in antebellum America limited not only free Blacks’ presence in their territory but also their ability to travel. This came at a time when the Supreme Court had begun to recognize a federal right to interstate travel for whites.⁷⁰ For example, Jones noted that an 1844 statute required free Blacks to seek permits to travel out of state and to obtain the court’s permission if they planned on returning to Maryland. Free Blacks seeking these permits had to obtain the endorsement of “three respectable white persons.”

As someone who also teaches a survey course on immigration law, I find it striking how strongly this travel-permit regime, and the way it rendered Black travelers dependent on three white endorsers, resembles the registration requirements imposed on Chinese immigrants. In Fong Yue Ting v. United States, the Supreme Court considered three Chinese immigrants’ challenge to a section of the Geary Act of 1892 that required them to obtain certificates of residence to prove lawful presence and avoid deportation.⁷¹ These certificates required the testimony of a “credible white witness.”⁷² Just as free Blacks cultivated a “delicate dependency” on would-be endorsers,⁷³ Chinese immigrants depended on white witnesses throughout the legal system—for example, in criminal cases as well as those involving immigration and citizenship.⁷⁴ Ultimately, the Fong Yue Ting plaintiffs defied the law for the purpose of bringing a test case.⁷⁵ They lost in a decision announcing that the power to deport was coextensive with the power to exclude, even though the named plaintiffs were never deported.⁷⁶

The system of registration and permitting, moreover, applied to a range of rights that free Blacks sought to exercise. For example, a gun permit requirement applied only to Blacks, not to whites. The right to own a gun symbolized empowerment and raised the prospect that “free black men would participate in Southern state militias.”⁷⁷ Free Black gun owners were viewed as people assisting slaves seeking freedom. Similarly, Blacks were required to obtain permits for keeping a dog or going hunting—anything that could threaten slavery or enhance independence. With hunting, the legislature’s fear was that enslaved Black people would, through hunting, obtain their own food, items for trade, and such. Many Black gun owners sought weapons to protect themselves from violent crime, but they also knew that their lack of a license could be used against them at any time—with prosecution by often-hostile government officials. This mirrors a dynamic with which unauthorized immigrants are all too familiar.⁷⁸

Apart from registration and permitting, proposals for voluntary emigration as well as expulsion proliferated. Those backing colonization efforts included both white supremacists, who insisted that free Black people could never become “enlightened citizens,” and a subset of free Black people who recognized the impediments to full citizenship if they remained in the United States under white supremacy.⁷⁹ This prompted them to look to Africa as a place to start their lives anew.⁸⁰ But the land they sought to colonize was hardly empty, and the plans for a landowning utopia where Black people could fully exercise their rights faced difficulties.⁸¹ Accordingly, the question persisted of what citizenship could mean for Black people in America.

Reconstruction revolutionized the citizenship landscape, featuring as it did the passage of three constitutional amendments: the Thirteenth, Fourteenth, and Fifteenth.⁸² Students generally associate the Fourteenth Amendment with the Equal Protection Clause, but we discuss it primarily as a repudiation of Dred Scott. Although students are typically aware of and conversant in contemporary debates relating to birthright citizenship, they rarely have opportunities to focus on the Citizenship Clause’s text and judicial interpretations of it. The clause states, “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.”⁸³ With the passage of the Fourteenth Amendment, federal citizenship came to be regarded as the locus of fundamental rights, such as voting.⁸⁴ Eric Foner’s definitive study on Reconstruction showcases the political vitality of the new Black citizenry.⁸⁵

The violence of Jim Crow and crushing poverty facing freed people, however, doomed hope for an equal citizenship. Justin Leroy has analyzed the post–Civil War economy of the South, one in which, despite the freeing of “four million enslaved souls,” old modes of production were tweaked rather than transformed.⁸⁶ He quoted Frederick Douglass, who observed, “The landowners of the South want the labor of the Negro on the hardest terms possible. They once had it for nothing. Now they want it for next to nothing.” Douglass’s comparison of “the disappointments of freedom with the horrors of slavery,” Leroy argued, is best understood metaphorically or hyperbolically.⁸⁷ Nevertheless, it underscores the gap between formal national citizenship and a basic minimum level of safety, security, and well-being.

The lived experience of newly recognized birthright citizens revealed a gap between citizenship and belonging beyond the Black community. In United States v. Wong Kim Ark, the Supreme Court held that a man born in San Francisco to Chinese parents was a birthright citizen under the terms of the Fourteenth Amendment.⁸⁸ The question was whether Wong Kim Ark was “subject to the jurisdiction” of the United States at the time of his birth. The government argued that because his parents were ineligible to naturalize under the racial restrictions in effect at the time, they, and by extension he, would always be subject to the jurisdiction of the Chinese empire.⁸⁹ Wong Kim Ark himself led a “transnational life,” according to scholars.⁹⁰ Upon returning from one trip to China, the government excluded him and detained him in preparation for deportation. Wong Kim Ark filed a petition for a writ of habeas corpus, bringing the issue into the federal courts.

In adopting a broad principle of jus soli, or citizenship based on place of birth, the Court held that birthright citizenship was not limited by race or color or to the status of one’s parents. Children born in the United States to people themselves ineligible for naturalization based on race, as the Chinese were, were eligible for birthright citizenship. Scholars have noted that earlier cases interpreting the Fourteenth Amendment’s Privileges or Immunities Clause, rather than the Citizenship Clause, created uncertainty on this point.⁹¹ Dicta in the Slaughterhouse Cases suggest that at least one justice believed that children born in the United States to noncitizens were not born citizens.⁹² Children born in the United States to naturalized citizens, in contrast, were. Although the common law principle of jus soli had a long and illustrious pedigree in England and the United States at the time of Wong Kim Ark’s suit, it was not certain that the Court would acknowledge its force regarding the child of a noncitizen, especially a nonwhite one.⁹³

Writing for the majority, Justice Gray emphasized the core function of the Fourteenth Amendment to establish birthright citizenship without regard to race.⁹⁴ Under established English law at the time the Fourteenth Amendment was adopted, birthright citizenship did not extend to children of foreign diplomats or children of “alien enemies in hostile occupation.”⁹⁵ Beyond these traditional exceptions, however, the Fourteenth Amendment applied broadly. To limit its application to the children of naturalized citizens would undercut its core function.

Justices Harlan and McKenna dissented, finding that “the children of aliens,” whose parents could not naturalize due to race-based limitations in U.S. law, remained “subject to the same sovereignty as their parents” and thus could not be “completely subject” to the jurisdiction of the United States.⁹⁶ Unlike the children of those who have established a permanent domicile in the United States, the children of temporary residents lacked access to citizenship based on jus soli. Moreover, the exclusion of the Chinese from naturalization means that Chinese immigrants could not establish a permanent domicile. They were perpetually subject, in part, to the jurisdiction of a foreign power.

Scholars note the material stakes of citizenship here—the right to travel and to maintain a “transnational life.”⁹⁷ For citizens like Wong Kim Ark, citizenship did not bring “belonging” in terms of social experience. Indeed, during this era, the political branches continued their policy of Chinese exclusion, which was repudiated only in 1943.⁹⁸ Chinese exclusion involved entry bans, registration, deportation, and, as historian Beth Lew-Williams has illustrated, widespread violence.⁹⁹ Vigilantes burned down Chinese homes and districts up and down the West Coast during this era. Accordingly, Wong Kim Ark occupies an ambiguous perch, simultaneously the definitive construction of the Citizenship Clause and a weak guard against mistreatment and expulsion.¹⁰⁰ That birthright citizenship existed alongside a harsh policy of exclusion and the continuing denigration of Asians and Blacks suggests that citizenship alone failed to safeguard these groups’ well-being. The core citizenship cases illustrate that citizenship status does little to protect against racial subordination.

In contrast to the view of citizenship as an inclusive institution denoting membership in the national community, the history of Native Americans illustrates how the bearers of citizenship might regard it as a tool of oppression and dispossession.¹⁰¹ One scholar has written that

Native American citizenship presented the Supreme Court with the first significant opportunity to interpret the Fourteenth Amendment’s Citizenship Clause, which extends citizenship to persons born in the United States and “subject to the jurisdiction thereof.” Drafters of the Fourteenth Amendment believed that Native American tribes were not subject to the jurisdiction of the United States.¹⁰³ In Elk v. Wilkins, the question arose whether a Native American man who had left his tribe was a U.S. citizen under the Fourteenth Amendment. Essentially, once a Native American is no longer “subject to the jurisdiction” of the tribe and voluntarily surrenders to the jurisdiction of the United States, does he acquire citizenship?

A man of Winnebago origin,¹⁰⁴ John Elk brought an action in Nebraska against a “registrar of one of the wards” in Omaha for failing to register him as a qualified voter.¹⁰⁵ The registrar, Wilkins, refused to register him out of a belief that, as an Indian, Elk was not a U.S. citizen and therefore was ineligible to vote. Elk argued that, under proper interpretation of the Citizenship Clause, he was in fact a birthright citizen. Specifically, he became subject to the United States’ jurisdiction upon disavowing his tribal membership over one year before filing suit.¹⁰⁶

But the majority disagreed. Justice Gray framed the question as whether a member of an Indian tribe who severs tribal relations becomes a U.S. citizen “merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens.”¹⁰⁷ He then addressed the ambiguous position of Indian tribes as neither “foreign states” nor fully integrated into the United States, characterizing them as in a state of “pupilage,” like the relationship of “ward” to “guardian.”¹⁰⁸ Acknowledging Chief Justice Taney’s Dred Scott dictum regarding Indians that if “an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any foreign people,” Justice Gray noted that such a population would be required to naturalize to be recognized as citizens.¹⁰⁹

Further, Justice Gray emphasized the link between taxation, public support, and citizenship. He observed that Indians “were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect” either declaring a particular tribe to be citizens or authorizing naturalization.¹¹⁰ He focused on Indians’ status as “not taxed.”¹¹¹ They were further exempted from the basis of representation, from pensions for service in the army or navy, and from the obligation to support the U.S. Constitution.¹¹² Justice Gray interpreted these facts to suggest that Indians possessed a status outside citizenship.

In sum, Justice Gray identified the two modes of acquiring citizenship as birth and naturalization. Here, “[t]he alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States.” Moreover, “[t]he fact that he has abandoned his nomadic life or tribal relations … may be a good reason why he should be made a citizen of the United States but does not itself make him one.”¹¹³ Absent a statute providing for naturalization, Elk would remain ineligible for citizenship.

Justice Harlan dissented, condemning the majority’s conclusion that Native Americans who had adopted “civilized” habits should be excluded from citizenship.¹¹⁴ He began by noting that Elk was born within the territorial limits of the United States to parents who were members of Indian tribes and that Elk had surrendered himself completely to the jurisdiction of the United States over a year before. In Justice Harlan’s view, the issue of taxation was a red herring, for even if he were taxed, the majority’s result would remain unchanged based on the circumstances of Elk’s birth.¹¹⁵

He then analyzed the Civil Rights Act of 1866, “[a]n act to protect all persons in the United States in their civil rights.”¹¹⁶ This Act stated, “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”¹¹⁷ In his view, this reached Indians not in tribal relations, making them citizens upon enactment and disturbing Justice Gray’s tidy description of the two exclusive paths to citizenship for Indians. He determined that the Fourteenth Amendment should be read consistent with that dimension of the 1866 law.

In her study of Elk, Bethany Berger noted that Elk was likely illiterate and selected as a plaintiff to bring a test case by ambitious social justice–minded attorneys.¹¹⁸ Although his claim arose through a failed effort to register to vote, Berger posited that Elk’s stakes in the citizenship question likely had more to do with land rights, freedom from coercion, and other practical concerns.¹¹⁹ Berger observed that the litigation for Indian citizenship emanated from Boston-based philanthropists filled with “love for the red man.”¹²⁰

Congress responded to Elk, and Berger noted that Indian citizenship became “the center of federal policies of Indian assimilation and transformation.”¹²¹ In 1887, Congress passed the Dawes Allotment Act, which granted an individual land allotment as well as citizenship to any Native American born in the United States who voluntarily left their tribe and adopted “civilized habits” of whites.¹²² This process of transforming members of tribes into individual citizens centered on property allotments, purportedly to induce Native Americans to work; boarding schools to reeducate Native American children; and the application of state civil and criminal laws.¹²³ K. Tsianina Lomawaima characterized these allotments as “corrupt,” noting that the trust status of individual allotments “blocked off access to mortgages and homeownership.”¹²⁴ Berger summarized what citizenship exacted: the formal status did not grant Native Americans the franchise, but it demanded individual property ownership rather than tribal ownership, cultural assimilation, and complete integration into white society.¹²⁵

Against this backdrop, Teeters’ characterization of Indian citizenship serving as “not a promise but a threat” resonates.¹²⁶ Teeters traced the history of an earlier attempt to impose citizenship, the 1920 Carter citizenship bill, which failed in the face of Native American resistance. According to Teeters, the Pueblos led resistance to the unilateral imposition of citizenship without consent, taking the view that the Pueblo people would ask for citizenship when (and if) they wanted it.¹²⁷ Citizenship carried the prospect of economic devastation, as individual land allotments were subject to taxation.¹²⁸ The land allotments of the Dawes Act had “wiped out” Indians; they expected the same with the unilateral imposition of citizenship under the proposed bill.¹²⁹ As an alternative, Pueblo leaders voiced support for citizenship based on protection, not civic inclusion.¹³⁰ Although Congress eventually passed the ICA and made citizens of all Native Americans born in the United States, Teeters has argued that the ultimate bill reflected Pueblo activism that had defeated the bill’s predecessor. Principally, the ICA contained no assimilation requirement.

Scholars have identified a genre of citizenship scholarship that explores its “dark side.”¹³¹ But this dark side typically refers to the hidden toll of the exclusionary logic of citizenship, not the way in which explicit recognition of formal status itself constitutes a burden on citizens. Studying the saga of citizenship for Native Americans offers an important corrective to the prevailing view that citizenship in a liberal democracy—although an inherently exclusive category—signals an abundance of rights, privileges, and resources for those who possess it.

Modern citizenship debates regarding residents of U.S. territories also illustrate the federal government’s use of “citizenship” as a tool of control rather than an acknowledgment or guarantee of equality. U.S. governance of the territories features both the withholding of citizenship altogether, in the case of American Samoans, and the grant of second-class citizenship, in the case of Puerto Ricans and other territorial residents. As a result, political equality has remained elusive.

Students learn that citizenship for residents of U.S. territories depends on whether Congress wishes to grant it, and they generally find it surprising that the Supreme Court has never settled the fundamental question of whether U.S. territories count as “the United States” under the Citizenship Clause. The constitutional status of the territories and history of citizenship for their residents, thus, offers a context for students to think critically about the bounds of an imperial nation and the meaning of membership. It, too, features arguments for resisting the “imposition” of citizenship against arguments for extending full citizenship and complete constitutional protection.¹³² Superficially, the debate pits advocates for territorial autonomy against those seeking political equality, but there are many layers to uncover.

Recent litigation has called on the federal courts to interpret the Citizenship Clause. In Fitisemanu v. United States, American Samoan plaintiffs seeking jobs open only to U.S. citizens sued for birthright citizenship.¹³³ Without citizenship, residents of these territories lack the right to vote in U.S. elections, the right to be considered for certain federal employment opportunities, and the right to jury trials. They argued that they were born within the territory of the United States and subject to its jurisdiction; accordingly, even absent a statute granting citizenship, they were constitutional birthright citizens. This question had been avoided previously because Congress had provided for citizenship by statute to residents of many U.S. territories.¹³⁴

The District Court awarded summary judgment to the plaintiffs, but the U.S. Court of Appeals for the Tenth Circuit reversed. Relying on a distinction between unincorporated territories, which were not on a track to statehood, and incorporated territories, which were, it determined that residents of the former were not birthright citizens.

The distinction between incorporated and unincorporated territories originates not in the Constitution but in the Insular Cases. In those cases, the Supreme Court notoriously distinguished between territories on a path to statehood and those destined for perpetual territorial status.¹³⁵Downes v. Bidwell is the principal case of those constituting the Insular Cases.¹³⁶ There, the Supreme Court considered the constitutionality of a tax statute as applied to Puerto Rico. Did the statute, which imposed special duties on products imported from Puerto Rico, violate the constitutional requirement of uniform duties “throughout the United States”? Furthermore, did the revenue clauses of the Constitution apply of their own force?

This question called for a judgment as to whether the territories were part of the United States.¹³⁷ Interesting alliances developed. Anti-imperialists, the ones aligned against U.S. conquest abroad, often harbored maximal racial anxiety about incorporating “foreign races” into the American polity.¹³⁸ In contrast, imperialists split based on their appetite for integrating conquered people into the citizenry: some had no reservations about acquiring and integrating conquered peoples, but others sought new lands without the new citizenry. On this latter view, residents of acquired territories would inhabit an in-between status—not quite “alien,” but not “citizen” either.

The Court articulated the conundrum of an imperial power: it may be desirable to acquire far-flung territories, but “if those possessions are inhabited by alien races, different from us in religion, customs, laws, methods of taxation, and modes of thought,” application of “Anglo-Saxon principles” may prove impossible.¹³⁹ How integrated would or should these “alien races” be with respect to the existing citizenry? Importantly, the majority assumed that an annexed territory would either become a state or become an autonomous nation of its own; the Court did not countenance perpetual limbo.¹⁴⁰

The concurring opinion similarly regarded perpetual occupation without incorporation as a violation of the Constitution but concluded that, for now, Puerto Rico was best considered “appurtenant thereto as a possession” rather than truly part of the United States.¹⁴¹ Infamously, Justice White described the island as “foreign to the United States in a domestic sense.”¹⁴² This logic drew on the perceived racial unfitness of territorial residents to join the citizenry and facilitated territorial and economic expansion without a corresponding growth in the citizenry—exercising sovereignty without extending full constitutional protections to people of lands acquired by conquest or contract.¹⁴³

Even at the time of decision, this logic had its detractors. Notably, Justice Harlan dissented, pointing out that judgments of racial fitness should be made before the United States conquers new lands.¹⁴⁴ Once the government acquires new territory, the Constitution applies. He noted, “The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet [purported emergencies].”¹⁴⁵

Other cases subsequently rejected automatic application of all provisions of the Constitution to Puerto Rico, entrenching the territories’ constitutional limbo.¹⁴⁶ The Territory Clause, located in Article IV, Section 3, Clause 2 of the Constitution, states, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”¹⁴⁷ This provision authorizes Congress to regulate U.S. territories. In the Insular Cases, the Supreme Court characterized this as a “plenary power.” Judge Juan R. Torruella described this “unbounded” plenary power as further entrenching a “colonial” dynamic.¹⁴⁸ Although Congress made Puerto Ricans citizens in 1917, this was not an equal citizenship; rather, it merely further signaled the United States’ ownership of the island.¹⁴⁹ Torruella has described the indignity of this subordinate status, with Puerto Ricans living as “citizens” of the United States—but a hollowed-out version.¹⁵⁰ Torruella further described his simultaneous position as a judge on the U.S. Court of Appeals for the First Circuit, second highest in the land, and a citizen incapable of voting for any member of Congress or the president because of his place of residence. The justification for this situation, in his view, has been and remains “bankrupt.”¹⁵¹

These cases from America’s imperial past have contemporary relevance, in part because America’s imperial past is present. In Fitisemanu, American Samoan plaintiffs sought birthright citizenship, but the U.S. government and even some representatives of the Samoan people opposed the imposition of birthright citizenship on a large scale. The controversy centered on concerns about land alienation,¹⁵² although objections were lodged in principled terms against “citizenship without consent.”¹⁵³ American Samoa has racially restrictive land rules to keep land in American Samoan hands. Some worry that if Samoans are birthright citizens and the U.S. Constitution applies of its own force, these laws risk invalidation under the Equal Protection Clause.¹⁵⁴ At risk is “the Samoan way of life.” As a result, a segment of the Samoan populace has backed the current regime, under which Samoans are noncitizen nationals.¹⁵⁵

These considerations swayed the Fitisemanu majority, which rejected calls to overrule the Insular Cases. The majority reasoned that “citizenship by consent” is the prevailing norm of U.S. citizenship and that public opposition in American Samoa counseled against its imposition. Instead, the majority determined that the Insular Cases can and should be “repurposed” to “preserve the dignity and autonomy of the peoples of America’s overseas territories.”¹⁵⁶ Specifically, by withholding application of the Equal Protection Clause, Samoans could be confident that their race-based land-alienation laws would remain in force.

The majority first observed that the Insular Cases had remained a potent precedent. The Supreme Court has continued to rely on their logic in delineating the “extraterritorial” reach of the Constitution.¹⁵⁷ Under this approach, the Court considers the “particular circumstances, the practical necessities, and the possible alternatives which Congress had before it,” focusing on whether judicial enforcement would be “impracticable and anomalous.”¹⁵⁸ The Fitisemanu majority cited Reid v. Covert¹⁵⁹ for what it saw as the continued relevance and vitality of the Insular Cases as applied to questions about the scope of rights abroad.

Instead of following this logic, the court below had relied on Wong Kim Ark, which used the common law English principle of jus soli, discussed above, which is based on the notion that everyone born within the “king’s allegiance, and subject to his protection” has citizenship.¹⁶⁰ In Wong Kim Ark, as discussed in part I, the Supreme Court affirmed this “ancient and fundamental rule.” Following this principle, the district court held that birth in American Samoa is birth within the United States for purposes of the Citizenship Clause.

But the appeals court determined that the district court erred in several ways. First, it should have applied the Insular Cases to determine if the Citizenship Clause applied to American Samoa in the first instance. It further noted its “misgivings” about imposing citizenship on the American Samoan people when some segment of the Samoan population opposed it.¹⁶¹ The majority emphasized that imposing citizenship without the American Samoan people’s consent would run afoul of “a basic principle of republican association.”¹⁶² In separate litigation, the D.C. Circuit addressed the same question and determined that imposing citizenship would endanger American Samoan cultural practices—without considering whether imposing nationality has any of these same effects.¹⁶³

The appeals court majority imbued the Insular Cases with new content—one piece of which it claimed was deeply respectful of the will of the American Samoan people, as revealed by a single survey, and one piece of which offered a race-neutral, flexible approach to membership as a means of rectifying the sins of imperialism.¹⁶⁴ This softening and repurposing allowed the court to apply the maligned Insular Cases without apology.

Judge Bacharach dissented, finding that the Citizenship Clause unambiguously applies to people of American Samoa because American Samoa is a U.S. territory.¹⁶⁵ Judge Bacharach plumbed dictionaries, maps, and censuses backing this conclusion, eschewing the distinction between incorporated and unincorporated territories.¹⁶⁶ At the time the Fourteenth Amendment was ratified, no court had recognized such a distinction; the United States had not acquired any territories that it did not intend to place on a path to statehood.¹⁶⁷ Accordingly, for purposes of analyzing the original public meaning of the Citizenship Clause, one could not invoke the distinction later created by the Supreme Court itself—one that Justice Harlan noted had “an occult meaning.”¹⁶⁸

In a recent article in the Yale Law Journal, Christina D. Ponsa-Kraus argued for overruling the Insular Cases and recognizing American Samoans as birthright citizens.¹⁶⁹ She explained first that the Insular Cases have not had their intended effect—to truncate the Constitution’s applicability. The “halfway” application of the Constitution has meant that, in practice, nearly all provisions do apply.¹⁷⁰ Accordingly, these cases have had minimal effect in limiting the reach of the Bill of Rights.

She also observed that birthright citizenship need not come at the cost of territorial autonomy and dignity.¹⁷¹ Specifically, applying the Bill of Rights would not automatically negate traditional Samoan rules about land ownership.¹⁷² Under Equal Protection Clause jurisprudence, the Samoan government would have to articulate a compelling state interest for its race-based classification and demonstrate that the land ownership rules are narrowly tailored to achieve this objective.¹⁷³ Samoan autonomy does not require “repurposing” the Insular Cases. Indeed, Ponsa-Kraus condemned the Insular Cases as outdated, racist, and poorly justified. With the Supreme Court’s recent denial of certiorari in Fitisemanu, however, the most promising vehicle for overruling them has passed by.¹⁷⁴

Although the grant of birthright citizenship has frequently symbolized progress in the project of racial equality, citizenship at times raises a notoriously weak shield against state violence (or state complicity in private violence) for racial minorities. The era of Jim Crow illustrates this phenomenon for Black citizens, and the World War II–era internment illustrates the same for Americans of Japanese descent. In Korematsu v. United States, the Supreme Court affirmed Fred Korematsu’s conviction for remaining in a prohibited area during Japanese internment.¹⁷⁵ A web of statutes and military rules made it a crime both for Korematsu to stay at his home in San Leandro, California, and for him to leave it without reporting to an “Assembly Center.”¹⁷⁶ The legal backdrop was complex. Congress had passed a statute criminalizing violation of military rules, and the interlocking scheme of military rules prohibited Korematsu from staying home or leaving. It left one legal option: reporting to an assembly center. These military orders applied only to people of Japanese descent, whether U.S. citizens or noncitizens.

Although the Court applied “the most rigorous scrutiny” to the race-based order, it refused to cast the case as one of “the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.”¹⁷⁷ Instead, it invoked “very real military dangers” and succumbed to the pull of deference at the war’s end.¹⁷⁸ Noting that “hardships are part of war,” Justice Black, writing for the majority, invoked the “responsibilities” of citizenship during wartime.¹⁷⁹ The full quote is breathtaking: “Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier.”¹⁸⁰ Strikingly, this statement implies that the status of being a citizen brings with it these greater burdens during wartime—incarceration based on race—as if a noncitizen of Japanese descent would face lesser burdens!

Several justices dissented separately. Justice Roberts summarized the case as one of “convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.”¹⁸¹ He noted that a series of military orders forbade Korematsu from leaving the zone in which he lived or being found within that zone outside of an “Assembly Center,” which Justice Roberts noted “was a euphemism for a prison.”¹⁸² He resisted analogy to an earlier case involving a curfew, “a temporary expedient made necessary by a sudden emergency,” noting that the challenged measure in this case was neither temporary nor prompted by a sudden emergency.¹⁸³

Justice Murphy described the challenged orders as falling “into the ugly abyss of racism.”¹⁸⁴ Although the military must be afforded deference regarding its judgments of how to conduct a war, Justice Murphy maintained that “it is essential that there be definite limits to military discretion, especially where martial law has not been declared.”¹⁸⁵ The allowable limit of military discretion is a “judicial question” hinging on whether the rights deprivation is “reasonably related to a public danger that is so ‘immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.”¹⁸⁶

Ironically, rather than applying the “rigorous scrutiny” Justice Black found applicable to race-based classifications, Justice Murphy essentially called for rational basis review—and determined that the challenged order failed on that mild standard. He noted that only a belief in “racial guilt” could provide a reasonable basis for the orders and that General DeWitt’s Final Report on evaluation from the Pacific coast revealed as much.¹⁸⁷ The Final Report spoke of the Japanese as “an enemy race” rather than offering expert military judgment justifying a race-based exclusion order.¹⁸⁸ Allegations of “dual citizenship” and ties to an alien “race, culture, custom, and religion” abounded.¹⁸⁹ Although the military had identified isolated instances of disloyalty, Justice Murphy maintained that examples of individual disloyalty did not prove group disloyalty.¹⁹⁰ Further, the war had wound down by this point, and Justice Murphy did not credit the government’s assertions that it could not hold individualized “loyalty hearings” for the persons involved.¹⁹¹ Justice Jackson also dissented, decrying the racial guilt theory the majority had endorsed and the contortion of the Constitution the decision had effectuated.¹⁹²

Just as Korematsu illustrates the weak shield that citizenship provides during wartime, Plyler v. Doe illustrates the obverse—that even unauthorized immigrants have some rights despite their lack of citizenship or lawful presence.¹⁹³ In that case, the Court narrowly rejected the constitutionality of a Texas statute that excluded children of unauthorized noncitizens from a free public education.¹⁹⁴ The Court began by considering whether the Equal Protection Clause applied to the “alien” children and parents affected by the law. The Court observed that the Due Process Clause and equal protection explicitly apply to “persons,” not citizens.¹⁹⁵ So the lack of citizenship was no bar to the formal recognition of rights. But it then determined that the mere application of the Equal Protection Clause does not dictate substantive equality in outcomes. Instead, whether a defendant has satisfied the demands of equal protection depends on the Court’s assessment of the strength of the government interest and the precision with which the challenged measure is tailored to advance that interest. Here, the Court maintained that a form of rationality review applied, rather than heightened scrutiny, because noncitizens were not a “suspect class” in the equal protection jurisprudence and education was not a “fundamental right” like marriage.¹⁹⁶ Accordingly, the government did not need to satisfy strict scrutiny.

The Court determined that the law failed under this review. First, the Court noted the structural factors shaping unauthorized migration patterns, namely the tacit acceptance or even encouragement of unauthorized migration due to the nation’s need for cheap labor.¹⁹⁷ But it noted that even if one views unauthorized migration as a matter of individual culpability, the children subject to this law were inappropriate objects of scorn. The majority emphasized that their parents had brought them into the country or remained here in violation of federal immigration law.¹⁹⁸ Accordingly, the “wrong” of unauthorized migration could not justify penalizing immigrant children.

Second, the Court rejected the state’s assertion that the law helped it reduce expenditures. The state had argued that the cost of schooling children of unauthorized migrants burdened local budgets and that the law served to alleviate that burden by denying those children access. The majority noted, however, that the claimed burden related to the provision of ESL services for English-language learners, a service provided regardless of a child’s citizenship status. It turned out that citizen children also used those services. Accordingly, the cost for ESL services was not sufficiently linked to the children’s unauthorized immigration status, even if it was loosely associated. Plyler presents a rare case in which the Court invalidated the law without explicitly applying heightened scrutiny. However, much like in the “animus” cases,¹⁹⁹ the Court appears to have applied a more discerning form of rationality review.²⁰⁰

The dissent agreed that the Equal Protection Clause applied to unauthorized immigrants present within the territory, but it determined that the state’s justifications easily met the mild standard of review to which plaintiffs were entitled.²⁰¹ Unsurprisingly, the dissent characterized the majority’s reasoning as “unabashedly result-oriented.”²⁰² In the vast scholarly literature analyzing Plyler, commentators characterize the decision as both watershed and precarious.²⁰³Korematsu reveals citizenship’s weakness as a shield against racial subordination (and the government’s potential use of it as a sword), and Plyler opens the door to the modest, potentially short-lived possibility of rights and equality without citizenship. Recent constitutional rulings suggest the increasing salience of citizenship,²⁰⁴ but ultimately, the relationship of rights to citizenship remains unsettled and, at times, counterintuitive.²⁰⁵

The typical law school curriculum does not offer law students an opportunity to study the cases discussed above in any depth, but I contend that the cases and the questions they address are important and worth students’ while. These cases illustrate the multiple dimensions of citizenship and the impact of legal citizenship on civil rights and belonging, as well as cultural preservation and autonomy. Studying these cases creates a space for critically reflecting on the significance of citizenship for subordinated groups.

Citizenship remains a popular preoccupation of scholars in law, philosophy, history, and related disciplines. Part of its popularity follows from its assumed role in advancing equality, rights, and belonging. Through the study of the antebellum experiences of free Blacks, birthright citizenship during Reconstruction and Jim Crow, indigenous citizenship, citizenship for subjects of the American empire, and so forth, one can construct a story of America as a nation reckoning partially and unevenly with its sins through the extension of citizenship. The extension of citizenship, on this story, is largely the advancement of equality, of righting past wrongs and greater inclusion. But these cases also showcase the persistence of semi-citizenship as well as citizenship’s dark side, illustrating that story’s incompleteness. They demonstrate that as a historical matter, citizenship has served as a weak antidote to racial subordination, often spectacularly failing to protect its bearers’ basic rights and well-being. Frequently hailed as a tool of liberation and inclusion, it can also subject groups to coercive federal control and perpetuate subordination. Just as immigration status itself consists of shadows as well as bright lines, so, too, does citizenship. This fuller story should inform our expectations of citizenship as a solution for precarity, a balm for our national wounds.