Constitution Article 1 §8.4, Naturalization

The Constitution can’t defend itself, and we can’t defend it either if we don’t know what it says. That’s why I study a little bit of it each week. There are seven articles in the Constitution, and I’m still on the first one. Article One has ten sections; I’m studying Section 8, which enumerates the powers of Congress. Last week I read the Commerce Clause.

Buckle up, because Clause 4 is about immigration.

Article 1 §8.4

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Guidelines

When I was in high school, I was taught that “rule of law” was one of the foundational characteristics of Western civilization. I naturally assumed that our legal system was, you know, about laws. Imagine my horror, then, when I started working in local government and discovered just how much of American politics are conducted by tradition. A lot of appalling things can be accomplished in America if you are, like Keyser Söze, willing to the thing that just isn’t done.

The specificity of true rule of law would, I suppose, be stifling, so the Constitution is more like guidelines, and the judiciary is there to color in between the lines. In the case of Article 1 §8.3, the Constitution has handed Congress the power to set up all the rules about naturalization and bankruptcy – because, of course those go together?

Natural(ization) Power

There have been a couple of SCOTUS decisions examining possible limits on the power of Congress over naturalization. In 1857, Dred Scott v. Sandford, states were given the right to bestow some of the privileges of citizens to their residents, but could not bestow citizenship.

An aside on suffrage:

Most states have at some time allowed noncitizen to vote in state elections; in 1926, Arkansas was the last state to eliminate alien sufferage, but noncitizen voting is still permitted in local elections even today. If you are interested diving into this topic, read Hayduk’s 2006 “Democracy for All,” or Rosberg’s 1977 “Aliens and Equal Protection: Why Not the Right to Vote?” or if you can find it, Porter’s much earlier “A History of Suffrage in the United States.” If you do, please report back here with your impressions.

Now racism in America has long been draped in states’ rights clothing, so in case you’re inclined to imagine the Dred Scott decision as anything other than a specific exclusion of Blacks from citizenship, let me quote from the decision:

A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States.

This despite the fact that the Constitution specifically grants Congress the right to make up any rules it wants. In 1931, United States v. Macintosh cleared up once and for all how much latitude Congress has on this topic.

It is not within the province of the courts to make bargains with those who seek naturalization. They must accept the grant and take the oath in accordance with the terms fixed by the law, or forego the privilege of citizenship.

Congress rules, courts drool, as it were.

Citizenship

There is only one real limit on the power of Congress to regulate naturalization, but it is one of supreme importance. Once citizenship is granted, it cannot be revoked, even by an act of Congress. A citizen is a citizen, whether by birth or naturalization, and their rights under the law are identical. From Knauer v. United States (1946):

Citizenship obtained through naturalization is not a second-class citizenship. . . . [It] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government.

It’s not really true in practice, of course. There are many legal restrictions and expectations for naturalized citizens that native-born citizens don’t face, and any naturalized citizen can have citizenship revoked if the government decides they used fraud (including insincerity when making the oath of allegiance) to obtain citizenship. And of course, naturalized citizens cannot be President. But it is important that none of these differences in status arise from the Constitution.

Naturalization Rules

The history of naturalization rules in America is a history of America’s racism. Pluck your bunched panties if that upsets you, because there is no other way – short of willful misinterpretation – to look at it.

(And sorry, but I don’t have time to link to original text of all these. Google if one of them interests you.)

• Naturalization Act of 1790: The first naturalization law passed by Congress restricted naturalization to “free white persons.”
• Fourteenth Amendment: Sometimes guidelines are not enough. In 1868, passage of the 14^th Amendment enshrined the basic framework of naturalization we still work from today. Significantly, this is where citizenship by birth was established.
• 1870: Blacks were given the right to naturalize.
• Chinese Exclusion Act of 1882: Barred ethnic Chinese from entering the U.S. (Their naturalization was already barred by the Naturalization Act of 1790). This law was renewed and expanded several times over the following decades, and only repealed in 1943.
• Immigration Act of 1917: Aka the Literacy Act and Asiatic Barred Zone Act, it imposed literacy tests on immigrants, created new categories of inadmissible persons, and barred immigration from the Asia-Pacific Zone.
• Immigration Restriction Act of 1921: Aka the Emergency Quota Act (clearly we have entered the era of bureaucratic euphemism by now) restricted the number of immigrants admitted from any country annually to 3% of the number of residents from that same country living in the United States as of the U.S. Census of 1910, thus reducing the annual number of immigrants by more than half and guaranteeing that the vast majority of them would be white.
• Immigration Act of 1924: Aka the National Origins Act or Asian Exclusion Act limited immigration to 2% of the 1890 census population of people born in each country, further straining out non-European immigrants. According to the U.S. Department of State Office of the Historian the purpose of the act was “to preserve the ideal of American homogeneity.”
• Luce-Celler Act of 1946: It allowed Indian Americans and Filipinos the right to naturalization with a quota of 100 immigrants per year.
• Immigration and Nationality Act of 1952: It was the first immigration act without specific racial exclusions. With revised quotas based on the 1920 census, it ensured that the majority of permitted immigrants were Irish, English, and German relatives of U.S. citizens.
• Immigration and Nationality Act Amendments of 1965: The Hart-Celler Act replaced the system of national-origin quotas with a limitation on Western Hemisphere immigration of 120,000 per year and Eastern Hemisphere immigration limited to 170,000, shifting the majority of immigration into family-related sponsorships which are largely outside the quota system and tend to preserve existing ethnic proportions.

Many laws related to immigration have been passed since 1965. These laws deal with specific issues, like refugees, treatment of illegal immigrants, causes of deportation, and updates to the immigration limits, but Hart-Celler still defines the structure of American immigration. If you’re interested in this topic (and I assume if you’ve read this far, you are) I recently researched the current immigration process for AvvoStories.

Since I’m only talking about Congress here, I’ve skipped over some things that affected immigration – like the 1907 Gentlemen’s Agreement and the mass repatriation of Mexicans that took place during the Great Depression. Ellis Island has a nice little summary of how these laws and other forces have played out in American immigration patterns.

Other Stuff

The history of U.S. immigration law is primarily a story about race, but every story is woven from more than one thread. Communists and anarchists are banned from naturalization. From the very beginning, “good moral character” has been and continues to be a requirement. The definition of that term has, as you can imagine, been contested a few times. Citizenship has been denied on the basis of alcoholism, attitudes and behaviors related to adultery and polygamy, gambling, sexual orientation, and criminal record.

There’s still the question of dual citizenship, loss of citizenship, immigration without naturalization, and lots of technicalities around children of citizens born abroad, and children of noncitizens born here, or brought here while still minors.

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

And there’s bankruptcy. But I think I’ll save that for another day. Or maybe skip it.