Civic Ideals: Conflicting Views of Citizenship in U.S. History
by Rogers M. Smith
(Yale University Press, 719 pp., $35)
A few weeks ago, the Supreme Court heard arguments in a case called Lorelyn Penero Miller v. Madeleine K. Albright, and some of the drama of the case is encapsulated in the petitioner's name. Twenty-seven years ago in the Philippines, Lorelyn Penero Miller was born out of wedlock. Her mother, Luz Penero, is a citizen of the Philippines; her father, Charlie Miller, is a citizen of the United States who, in a Madam Butterflyish twist, was a 23- year-old serviceman on duty in the Philippines when his daughter was conceived. Unlike Pinkerton, however, Charlie Miller did not marry his Butterfly before abandoning her; nor did he return to collect his child from the arms of his bereft paramour. When his affair and his tour of duty ended, he returned to America, leaving Lorelyn to be raised in the Philippines by her mother.
Several months after her twenty-first birthday, Lorelyn applied to register as an American citizen. When her application was denied, she approached Charlie Miller in Texas and convinced him to sign papers acknowledging his paternity. Again she applied for a United States passport, and again she was turned down. The relevant naturalization law, amended in 1952, says that an illegitimate child born abroad whose father is a United States citizen can claim citizenship if the father acknowledges his paternity in writing, and agrees to support the child before and until the child's eighteenth birthday. Lorelyn had missed the deadline. By contrast, the same law permits illegitimate children born abroad to claim citizenship on the basis of their mother's American citizenship, as long as the mother was physically present in the United States for at least a year before the child's birth. And legitimate children born abroad are considered citizens at birth if either the mother or the father was a citizen who was physically present in the United States for at least five years before the child's birth.
Rather than giving up, Lorelyn Miller decided to sue. The immigration law is unconstitutional, she said, because it treats men and women differently, based on an archaic and unjustified stereotype--namely, that women, not men, are more likely to have a natural connection with their illegitimate children. (Never mind that the stereotype was true in this case. Miller claims that this shouldn't affect the constitutional analysis.) The U.S. Court of Appeals for the D.C. Circuit rejected the constitutional challenge, pointing to a Supreme Court decision, Fiallo v. Bell, which said in 1977 that Congress could treat illegitimate children born abroad to citizen fathers differently than those born abroad to citizen mothers, because of "a perceived absence in most cases of close family ties," and "a concern with the serious problems of proof that usually lurk in paternity determinations." But Judge Patricia Wald, in a concurring opinion, said that the Fiallo decision was "out of step with this Court's current refusal to sanction official action that closes a door or denies opportunity to women (or to men)' based on stereotypes or overbroad generalizations,'" embodied in Justice Ruth Bader Ginsburg's recent opinion ordering the Virginia Military Institute to admit women. (As for Charlie Miller, the citizen father, he could not assert his own parental rights because he was not a party to the case.)
But the case of Lorelyn Miller asks the Supreme Court to confront far more than the transformation in its view of gender; it also tests the Court's commitment to a broader transformation in the legal significance of citizenship itself. This is the really repercussive point. In the classical view, which prevailed for most of American history, citizenship was particularistic, which is to say that the distinction between citizens and aliens was taken seriously. There are traces, in the Constitution, of more universalist conceptions of citizenship, which hold that all persons, citizens and aliens alike, are endowed with certain unalienable rights, but the distinction between citizens and aliens, as William Rehnquist has noted, " is constitutionally important in no less than 11 instances in a political document noted for its brevity."
In addition to being particularistic, citizenship, once attained, was a thin status, according to the classical model, because it granted you a fairly narrow set of constitutional entitlements. For this reason, discrimination among citizens, like discrimination between citizens and aliens, has been generally permissible for much of American history. Outside the narrow range of (mostly economic) rights that could be denied to aliens but had to be extended to all citizens on equal terms--such as the right to inherit property--the government had broad discretion to deny certain groups of citizens (women or African Americans for example) all sorts of rights that we take for granted today, such as the right to vote or the right to serve on juries.
And the classical model gave government broad discretion to discriminate among groups of aliens as well as among groups of citizens. Thus naturalization laws were not only riddled with gender discrimination, they also singled out certain ethnic groups for special indignities, such as the Chinese, who were prohibited from naturalizing entirely in 1880s. In the old dispensation, these various discriminations--between citizens and aliens, among citizens, among aliens--were perfectly in accord with the idea of American citizenship, which was a rather ungrandiose idea, a privilege only mildly inflected by an ideal. Citizenship certainly had little to do with we would call a sense of community.
But things changed. In the modern view of American citizenship, which the Court largely created on its own initiative after World War II, citizenship is thicker and more universalistic. It is thicker because citizens are presumptively entitled to a much heftier bundle of fundamental rights that can, in theory, be denied to aliens--most notably, the right to vote and to serve on juries. Political rights as well as civil rights are now considered part of the core privileges of citizenship. Under the thick view of citizenship, distinctions among groups of citizens--both the morally invidious kind, represented by racial discrimination, and the more morally ambiguous kind, represented by affirmative action--are harder, constitutionally, to defend. At the same time, citizenship is more universalistic because the distinction between citizens and aliens has become far less important: the state has to justify any discrimination based on race, gender, national origin, or even alienage, by showing that the discrimination is necessary to achieve important public interests; and therefore, the status of being a citizen, as opposed to an alien, has become, in many cases, constitutionally insignificant. In 1975, at the high water mark of universalism, Alexander Bickel went so far as to declare that " citizenship is at best a simple idea for a simple government."
The question in the Miller case is whether the Court will take the thick, universalistic conception of citizenship to its logical conclusion, declaring that distinctions of race and gender among groups of aliens are just as suspicious as distinctions of race and gender among groups of citizens. It is hard not to sympathize with Lorelyn Miller, but there are good reasons for liberals to hope that she loses her case. If the status of a citizen becomes constitutionally indistinguishable from the status of an alien, then there will be no reason to view citizenship as anything more than a charter of convenience, when it is a charter of belonging. By rejecting her claim, the Court has the opportunity to blend the best features of the classical and modern models, embracing a vision of citizenship that is thick and particularistic at the same time. By reaffirming Congress's power to make threshold distinctions among aspiring citizens, while denying Congress's power to make distinctions among lawfully admitted citizens, the Court would only enhance the richness and the distinctiveness of American citizenship itself.
The idea that naturalization acts cannot make distinctions based on gender, race, or national origin would have surprised the framers of the Constitution, according to Rogers M. Smith's provocative new history of citizenship in American law. Fired by fears that the United States would be overrun by Jacobins and aristocrats fleeing the French Revolution, the first naturalization act, passed by the first Congress in 1790, extended citizenship to any "free white person" who resided for two years in the United States and for one year in the state in which the person sought admission. Foreign-born children of citizens were eligible for citizenship if their fathers had once resided in the United States.
When Congress passed a new naturalization act in 1855, moreover, it rejected a version that would have granted citizenship to children of mothers who were citizens. At the same time, the new act automatically naturalized all women who married American citizens, but only if the women "might lawfully be naturalized under the existing laws." That qualification was added "to prevent the citizenship of Negro, Indian or Chinese women." A supporter in the House defended the automatic naturalization of formerly alien married women by noting that the provision involved little cost to anyone, because "women possess no political rights," such as the right to vote or serve on juries, and so lost nothing by a change in citizenship.
It wasn't until the Progressive era, Smith tells us, that the Expatriation Act of 1907 resolved the ambiguity left by the Naturalization Act of 1855. Did an American woman who married a foreigner lose her citizenship? Nativists denounced American women who put on airs by marrying foreign aristocrats instead of "men of their own race"--never mind Puccini, here is Henry James-- as well as the scheming alien bluebloods who preyed on American women to establish a connection with the United States. The 1907 law, enchantingly known as "the Gigolo Act," settled the question by treating these marriages as acts of voluntary expatriation; it rejected common-law traditions that based citizenship on birthplace, rather than on marital status. And by codifying an archaic common-law notion of marriage as a form of couverture, where women's legal identities were derived from their husbands, the Gigolo Act might be hard to reconcile with the Supreme Court's current view of sex discrimination.
In 1955, when the modern view of citizenship began to pick up steam, Louis Hartz famously claimed that American thought had always been dominated by an inclusive Enlightenment liberalism, exemplified by the thought of Locke. Smith argues that Hartz was laughably wrong: that, in fact, American society has been, from the beginning, racist, sexist, and nativist through and through, and that these unpleasant impulses have been vividly reflected in citizenship laws. "Through most of U.S. history," he writes, "lawmakers pervasively and unapologetically structured U.S. citizenship in terms of liberal and undemocratic racial, ethnic, and gender hierarchies, for reasons rooted in basic, enduring imperatives of political life."
In the descriptive chapters of his book, Smith documents these hierarchies in convincing if heavy-handed detail. He criticizes Thomas Paine, for example, for having "no thought of changing the status of women." (That old reactionary Paine.) Later, Smith declares that "like Native Americans, Asian- Americans, African-Americans, and women, Puerto Ricans fully belonged to the American Empire' in virtually all ways that carried no implications of political equality." But these polemics are peripheral to Smith's narrative itself, which is comprehensive and important.
Yet Smith concludes with a peculiar chapter suggesting that because American society is historically racist, any policies today which deviate from left-liberal orthodoxy are intrinsically suspect. He goes out of his way to criticize liberals who have tried to find a middle ground on race, and who have questioned affirmative action under any circumstances. This makes for a jarring conclusion to a book about the history of citizenship in American law. To defend reverse discrimination and liberal universalism in the same breath, Smith has to do backflips to avoid the fact that the thick and universalistic view of citizenship that he wants to endorse has little tolerance for distinctions among citizens of any kind. (Or should our naturalization policy seek out aliens of color?) The irony is that liberals like Smith who support reverse discrimination today might do better to resurrect the thinner, more particularistic, classical view of citizenship, in which government is much freer to discriminate against or in favor of whatever groups it pleases. If the classical model has permitted widespread discrimination against women and minorities in the past, it also would permit far more discrimination in favor of minorities and women today than the liberal ideals Smith claims to embrace.
Smith uses the term "ascriptivism" to describe the dark tradition of citizenship that he argues has been embedded in American law since the founding. He refers, at different points, to "illiberal, inegalitarian ascriptive policies and outlooks"; to "ascriptive hierarchy"; and to " ascriptive denials of rights." What Smith means by "ascriptivism" is never entirely clear, especially because he distinguishes confusingly between what he calls the "illiberal, undemocratic ascriptive myths of U.S. civic identity, " and a different, more liberal civic myth that he calls the "ascriptive civic myth assuring Americans that, regardless of their personal achievements or economic status, their inborn characters make them part of a special community."
It is clear that Smith wants to distinguish between the dark, illiberal tradition of citizenship of which he disapproves, and sunnier, more appealing visions, such as the Lockean liberal tradition, glorified by Hartz, or the civic republican tradition, based on the egalitarian idea of shared membership in a virtuous community. Smith's thesis is that "U.S. citizenship laws have always expressed illiberal, undemocratic ascriptive myths of U.S. civic identity, along with various types of liberal and republican ones, in logically inconsistent but politically effective combinations."
The Constitution, as the Supreme Court announced in 1898, "contemplates two sources of citizenship, and two only: birth and naturalization." The Court might have said three sources, since either birth on American soil or birth to an American father was a basis for claiming citizenship in the nineteenth century. But citizenship derived from American birth and citizenship derived from American blood stem from very different legal traditions; and one of the most striking lessons of Smith's book is that the common-law tradition of citizenship by birth on American soil has been a friend of oppressed minorities throughout our history, while the competing traditions, in which citizenship descends by blood, or naturalization is based on mutual consent, have been malleable tools of nativists and racists.
The classic statement of birthright citizenship appears in Calvin's Case, which involved a dispute over whether Robert Calvin, born as a subject of King James in Scotland, could inherit land as an English subject after James ascended the throne of England. In the seventeenth century, English officials began to draw increasingly sharp lines between aliens and subjects. Since the King theoretically owned his entire realm, he insisted that only those who bore allegiance to him were entitled to possess land. Lord Coke held that Calvin owed allegiance to James the person as well as James the King, who gave him protection in return. It didn't matter, therefore, whether he had been born in James's Scottish realm or James's English realm; either way, he was entitled to inherit land in England as a natural subject of the English King.
The natural law writings of John Locke represent a less feudal tradition of citizenship in America. In the course of his attack on Stuart absolutism, Locke denied that citizenship could be based on birth under a particular, geographically defined government. Children are born free, Locke insisted, "a subject of no Country and Government"; and they could acquire citizenship only by choosing to join a particular civil society whose members consented to accept them. Rejecting Coke's notion of perpetual obedience, Locke also insisted that citizens could freely change their citizenship by selling their land and expatriating themselves from their community of birth.
In theory, Locke's vision of consensual citizenship seems more liberal than Coke's vision of birthright citizenship; but in America, Smith argues, the opposite has been true, as blacks, women, and Chinese immigrants have invoked the tradition of birthright citizenship to protect their rights in the face of claims by their opponents that the existing citizens never consented to their membership in the nation. The most important battle between the territorial, patrilinear, and consensual traditions of citizenship was fought over the status of free blacks before the Civil War. In 1820, the Missouri Compromise proposed admitting Missouri as a slave state, and allowing slavery in the territory to the south, while banning slavery in the territory to the north, of the Louisiana purchase. The Compromise was threatened, however, by a clause in the proposed Missouri constitution that banned free blacks from entering the state. Northern Federalists objected that this violated Article IV, section 1 of the Constitution, which says that "the citizens of each state shall be entitled to all the privileges and the immunities of citizens in the several states." Free blacks were citizens by virtue of their birth in free states, they argued, and the right to travel was clearly a privilege or immunity of citizenship.
Brandishing Locke and Vatell, and ridiculing the feudalism of Coke, the Jeffersonian opponents of black citizenship were able to present themselves as champions of citizenship by consent. The consent of existing citizens was necessary to admit new citizens, they argued. The fact that blacks were ineligible for naturalization under the law of 1790 was convincing evidence, for the Southerners, that the people who framed the Constitution had never consented to make blacks citizens. Arguing, as lawyers say, in the alternative, Jeffersonian congressmen also cited Vatell for the proposition that children inherit the status of their fathers, because "each citizen, on entering into society, reserves to his children the right of becoming members of it" by "tacit consent." Since black fathers were not eligible for naturalization, the Jeffersonians argued, they were not citizens, and neither were their free black children.
The debate between the Federalists and the Jeffersonians about the status of free blacks was rehearsed again in the Dred Scott case. Chief Justice Taney, posing as a consensualist, held that birth on American soil or to American parents could not make blacks citizens, because "we the people" who framed the Constitution had never consented to extend American citizenship to any blacks since the founding. As evidence for his erroneous conclusion that free blacks had never been recognized as citizens, Taney pointed to state laws denying blacks the right to vote or to serve in the militia. In his dissent, Justice Benjamin Curtis insisted that citizenship by place of birth, rather than by blood, was the American rule, and that several states had indeed viewed blacks as citizens, despite their legal disadvantages, because the "mere naked rights of citizenship" didn't include political privileges, like the right to vote. After the Civil War, Curtis's view was enshrined in the first sentence of the Fourteenth Amendment to the Constitution, which says that "All citizens 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."
Once constitutionalized, the principle of birthright citizenship soon came to the rescue not only of African Americans, but also of the native-born children of Chinese immigrants. In 1898, a majority of the Supreme Court ruled that Wong Kim Ark, who had been born and raised in California, was a citizen by virtue of his birth, and therefore was exempt from a congressional statute excluding laborers "of the Chinese race." At the same time, the Court didn't question Congress's power, in the Chinese Exclusion Acts of the 1880s, to ban the immigration of Chinese laborers for ten years, as well as to prohibit people of Chinese origin from being naturalized. The point is that, while Chinese born in the United States were entitled to the rights of citizens, liberals in the Gilded Age had little doubt that Congress could prevent Chinese laborers from entering the country, or reentering once they had left.
According to the premises of the classical model of citizenship, the Court's unanimous verdict in the Chinese Exclusion cases was correct; but Smith criticizes it. "The 1888 law was vicious," he notes, arguing that it also clashed with "liberal principles of procedural and economic rights that had been reinforced by the free-labor ideology of the postwar constitutional amendments" which "voiced demands of common decency and fairness." This isn't quite right. The free-labor ideology of the postwar constitutional amendments said that the right to engage in the common occupations of life had to be extended to all persons lawfully admitted to the United States, citizen and alien alike. For this reason, the Court in 1915 struck down a state law prohibiting private employers from hiring more than 20 percent aliens. Only a month later, however, the Court upheld federal and state laws requiring that public contractors hire only American citizens, on the grounds that the government, like a private employer, should have perfect freedom to hire or to fire anyone it pleased. The classical model of citizenship, in short, may seem ungenerous to Smith, but he fails to give it credit for its formalistic integrity.
Smith also criticizes judicial decisions in the 1870s that failed to extend political rights, such as voting, to women. "These cases form some of the clearest examples in the nation's history of clashes between egalitarian liberal principles that demanded changes in existing social, economic, and political hierarchies," he writes, "and the desires of governors who found those implications too threatening and who invoked state-centered republican and ascriptive arguments to rationalize their rejection." But there was nothing threatening about the implausible claim that the Civil War Amendments extended the vote to women. It was obvious to nearly everyone in the Reconstruction era that the privileges and the immunities of citizenship did not include political rights, like the right to vote: a citizen of Massachusetts traveling in South Carolina could not expect to vote in South Carolina elections. Indeed, Edward Bates, Lincoln's attorney general, arguing in 1862 that free blacks were citizens even though they could not vote, pointed to the example of a "free, white, natural-born female infant" as someone who was "certainly a citizen," but not entitled to political rights. Smith fails to identify any point in the Founding or Reconstruction periods when voting was widely seen as a necessary attribute of citizenship.
Of course, the denial of suffrage to women is explicitly contemplated in section 2 of the Fourteenth Amendment, which provides for a reduction in apportionment of any state that denies the vote to "male citizens twenty one years of age." Aside from his breezy reference to "egalitarian legal principles," Smith never identifies the constitutional methodology that he thinks judges should have applied in the 1870s to justify a decision to ignore the text and the history of the Constitution, and to impose on the country a political revolution--female suffrage--that was just beginning to be debated in the most progressive state legislatures, and that would not be officially enshrined in the Constitution until the ratification of the Nineteenth Amendment in 1919.
But maybe the omission isn't a coincidence. For reasons that he doesn't explain, Smith ends his history of conflicting visions of citizenship in American law in 1912, at the height of the Progressive era. The choice is peculiar, for it means Smith has nothing at all to say about the most dramatic change in America's legal conception of citizenship: the decision, made largely by the Supreme Court on its own initiative, to abandon the classical model of citizenship after the New Deal and to replace it with a liberal egalitarian vision that was thicker and more universalistic. In the end, if not in the beginning, America was Lockean.
The harbinger of the shift was the Takahashi case of 1948, in which the Court struck down a California law denying commercial fishing licenses to aliens who were ineligible to become citizens. Minimizing the importance of citizenship, Justice Black stressed that the Court should skeptically examine the state's interests in denying important rights to any person; and he held that California's interest in conserving its coastal waters was not strong enough to prevent lawfully admitted aliens from earning a living in the same way as California citizens. Black's holding was a dramatic departure from the nineteenth century vision of citizenship: in 1823, Justice Bushrod Washington famously held for the Pennsylvania circuit court that the right to fish in New Jersey oyster beds was not a privilege or an immunity of citizenship, and therefore New Jersey could deny fishing rights to visitors from other states in order to preserve its oysters for its own citizens.
The universalistic view of citizenship reached its apogee in 1971, when the Court struck down state laws that limited state welfare programs to resident aliens. Classifications based on alienage, like those based on race, were inherently suspicious, Justice Blackmun held, because aliens, like racial minorities, were a "discrete and insular minority," historically victimized by the sort of prejudice "which tends ... to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." Even on its own terms, Blackmun's opinion was peculiar. It seems odd to point to the political powerlessness of aliens as a sign that they are entitled to special judicial protection, since the traditional exclusion of aliens from the suffrage shows that the nation has not historically relied on the ordinary political processes to protect aliens in the first place. Blackmun's noble universalism threatened to erase the meaning of membership altogether.
Although Smith doesn't discuss Blackmun's vision of citizenship, he seems sympathetic to it. In his concluding chapter, he laments that "revived inegalitarian, ascriptive Americanist themes ... are far more visible in the 1990s than seemed imaginable as late as 1975," as racial tensions and anti- immigrants sentiments mount, exemplified by recent initiatives in California restricting the rights of aliens and forbidding racial preferences. Smith outlines his own normative vision of American civic identity, which he thinks other citizens can be persuaded to embrace. (He never explains how.) America should conceive of itself, he argues, as a political party, dedicated not to the "ascriptive inegalitarian" goals that it has embraced for so much of its history, but instead to the "liberal democratic goals of protecting and expanding civic capacities for personal and collective self governance," by all persons, citizens and aliens alike, including, "to some degree, the well- being of humanity generally." Smith thinks that American leaders must embrace this universalist vision "in order to sustain the allegiance of most citizens and perhaps their own sense of political identity and purpose as well, even though these purposes, like any purposes they might choose, will probably alienate other citizens permanently."
Alienate, indeed. Despite his best efforts, Smith seems to overlook the fact that America is not only an idea, it is also a state. (You don't need citizenship in an idea.) Smith acknowledges the importance of defining American civic ideals in a way that is politically concrete enough to sustain the loyalty of actual American citizens; but then he embraces a vision of citizenship so abstract, untethered, and universalistic that it provides no convincing reasons why Americans should be any more loyal to the party of America than to, say, the party of the United Nations. Anyway, we are all citizens of the world.
It is also bizarre for a book about the history of citizenship in America to end with a passionate defense of affirmative action. But Smith's "liberal democratic" vision is premised on the idea that American society is so infected by racism and sexism that minorities and women cannot participate equally in "national self-governance" unless they are compensated for the " group disadvantages" that have been historically inflicted on them. "Even with a society riddled with politically fostered inequalities such as the U.S. ," he writes, "anti-individualist measures like majority minority districts and affirmative action programs will often still be defensible means" to the end of "integrated inclusiveness within a common political culture."
Since Smith ends his history in 1912, and not in 1965 or 1992, he leaves his readers with no sense of how fundamentally the country has changed since the Progressive era. He invites us to believe what many liberal racialists appear to believe: namely, that the revolution in the law of citizenship, and, more generally, in civil rights, has failed to improve the lives of women or minorities in discernible ways; that we are no better or fairer a country than we were eighty-five years ago; that, because progress has been so small and rests on such fragile foundations, any compromise of liberal orthodoxy on affirmative action gives aid and comfort to racists. Smith is so eager to preserve multicultural shibboleths about affirmative action that he goes out of his way, in his footnotes, to criticize liberals such as William Galston who are more skeptical of race and gender preferences, and more strict in their vision of America as a nation defined by a common language and common civic traditions to which all ethnic groups should aspire to assimilate.
This is not the place to dwell on Smith's implausible claim that the American people, having spent most of their history being beastly to minorities and aliens, can suddenly be persuaded to rally around the liberal universalism that Smith calls "the party of America." Nor is it the place to evaluate the relative merits of Smith's multicultural vision of "liberal democracy" against the color-blind neutrality of the liberals whom he criticizes. Suffice it to say that, as a purely legal matter, Smith's vision of compensatory racialism is hard to reconcile with the universalism that he claims to embrace. Smith argues that Americans should "adopt measures that will erode the invidious ascriptive hierarchies their policies and laws have built up throughout their history, instead of perpetuating or heightening them." But if he wants the courts today to uphold his vision, he would do well to try to revive the thin classical model of citizenship that he spends most of his book denouncing.
Remember that under the thick, universalistic, modern view of citizenship, any classifications based on race, gender, or alienage are inherently suspect. This means that white men can challenge the affirmative action programs that have excluded them, and white women have a hard time arguing that they are entitled to compensatory preferences in contracting and employment. Under the thinner classical vision, by contrast, the state is free, in apportioning public benefits, to prefer people on the basis of race or gender if it pleases. Outside of the narrowly defined core of natural rights and procedural protections that, according to the Constitution, have to be extended to "all persons" on equal terms, government has broad discretion to discriminate against or in favor of minorities and women. Because fewer rights are constitutionalized, according to the classical model, there is much more room for politics.
This thin vision of citizenship might not have led to especially liberal results during the nineteenth century, when minorities and women didn't have the vote, when Caucasians were a national majority, and when, as Smith puts it, "ascriptive inequalities" were widely accepted. In the 1990s, however, Congress is more inclined to discriminate in favor of minorities and women than against them; and these preferences, which are legally impermissible under the modern view of citizenship, would be upheld under the classical view. Modern liberals and conservatives who are suspicious of racial preferences on policy grounds, in other words, would be hard pressed to argue that they are unconstitutional, at least in a world where the original understanding of citizenship was taken seriously.
Which brings us back to Lorelyn Penero Miller. The Supreme Court may well reject her challenge to the venerable gender distinctions in our naturalization laws, but Smith, presumably, would support it. If "citizenship laws made nationality as much a matter of choice as possible, then Americans could more genuinely regard their Americanism as something they could define as they saw fit," he writes. But the choice that Smith has in mind is a unilateral choice by the aspiring citizen, rather than a bilateral expression of mutual consent between the aspiring citizen and the existing ones. He opposes Michael Lind's argument that the nation "require a high degree of acculturation as a condition of immigration," to ensure the perpetuation of a common civic identity.
Smith's thick, universalistic notion of citizenship is hard to accept on historical or political terms. If the tradition of birthright citizenship, or jus soli, has been a force for liberalism throughout American history, that tradition can be usefully contrasted with the tradition of jus sanguinis, common in civil law countries, in which nationality descends by bloodline. As the Clinton administration argues in the Miller case, the birthright rule is " uniquely appropriate for a nation of immigrants, whose members have, since the beginning, aspired to create a national identity associated with a new place and liberated from the old world's preoccupations with blood lineage."
Smith, by contrast, wants to have it all: he insists that nearly anyone should be able to become an American citizen, no matter how tenuous their ties to this country, and he declares that American legislatures should have no power to distinguish among citizens and aliens in distributing public benefits. These conflicting impulses are hard, legally and politically, to reconcile. By permitting Congress to discriminate on the basis of gender in refusing to admit new citizens, the Court would give Congress more discretion to discriminate on the basis of gender in compensating existing citizens for the historical indignities that they have suffered. Reverse discrimination may seem like an odd rallying cry for a purportedly "liberal democratic" vision of citizenship, but this is not the first time that this unappetizing paradox has turned up in the cult of diversity. Those who are determined to preserve affirmative action at all costs can only hope that Lorelyn Miller loses her case.
But there is a far more compelling reason to hope that the Court reaffirms Congress's power to deny citizenship to Lorelyn Miller. It has to do with the crucial distinction between exclusion and discrimination, and, ultimately, with the meaning of citizenship itself. Rogers Smith has a mirror opposite in Pat Buchanan. They both think that exclusion and discrimination are two sides of the same coin. The liberal universalists, such as Smith, say that we may not exclude certain people because we may not discriminate; the illiberal nativists, such as Buchanan, say we may exclude certain people because we may discriminate. For Smith, America is an idea; for Buchanan, America is an ethnos. Both are mistaken.
In the Miller case, the Court has the opportunity to drive a wedge between the idea of exclusion and the idea of discrimination, by endorsing a vision of citizenship that is thick and particularistic. Congress has broad discretion to exclude certain people or groups from the privileges of citizenship, the Court could say; it can discriminate among groups of aliens (or groups of citizen parents) in deciding who is eligible for naturalization; and it is free to discriminate between citizens and aliens in apportioning public benefits. But it may not discriminate among citizens once they are lawfully admitted to the country.
This thick, particularistic vision of citizenship could lead, in theory, to jarring results. Congress could single out certain racial, religious, or sexual minorities, Muslims or women or gays and lesbians, and deny them access to naturalization. But when I defend Congress's power to discriminate among aliens as a constitutional matter, I certainly do not mean to endorse unreasonable and illiberal discrimination as a political matter. You don't have to be Rogers Smith to believe that naturalization policies should not mock the egalitarian ideals that make American citizenship worth seeking in the first place. Legislative power may be abused; and it is hardly the end of the story. If the Court upholds Congress's power to discriminate among potential citizens on the basis of their parents' gender, one hopes that the decision would provoke a robust political debate about whether gender distinctions in our naturalization laws should be repealed on policy grounds, because they rest on archaic notions of family relations that are hard to reconcile with modern conceptions of gender equality (not to mention modern genetic testing). This is a debate that should take place in Congress rather than the Courts. It would strengthen the country's commitment to its civic ideals.
By resurrecting the distinction between citizens and aliens that Justice Blackmun and Rogers Smith have tried to obscure, the Court could also resurrect the meaning of citizenship itself as something more than a pale and disembodied legalism. American citizenship is a particular status in a particular place, not a method of mending the world and hastening the advent of the messiah. Only if the status of being a citizen is plausibly distinguished from the status of not being a citizen can Americans view citizenship as a meaningful synecdoche of their civic identity. There is no inconsistency, in other words, in allowing some discrimination among non- citizens while forbidding all discrimination among citizens. Citizenship itself, during the Founding and Reconstruction eras, was the status from which the anti-discrimination principle flowed; and by reaffirming its relevance in American law, the Court might begin to restore its relevance in American life.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.