Organized outrage over the census citizenship question proposed by Commerce Secretary Wilbur RossWilbur Louis RossBannon's subpoena snub sets up big decision for Biden DOJ House panel, Commerce Department reach agreement on census documents China sanctions Wilbur Ross, others after US warns of doing business in Hong Kong MORE has temporarily shifted to celebration of the Supreme Court’s decision on the issue. The court rendered a mixed (up) decision holding both that the secretary of Commerce had constitutional and statutory authority to include the question on the census, but that Ross did so without a proper process. One thing is clear: the mixed decision means that neither side had a clear win. Accordingly, the question of citizenship — as distinct from border issues — becomes a major issue in the 2020 elections.
Opponents of the citizenship question include advocates of having the census include an LGBT question. For identity-politics ideologues, one’s group means more than American citizenship.
Citizenship has lost so much of its meaning. How did this happen? Look at the law schools and courts. The Constitution’s structural protections of liberty (federalism and separation of powers) largely are ignored in favor of focusing simply on “the individual.”
This lopsided view of the Constitution is the libertarian legacy of the Warren Court. That view refuses to recognize the distinction in the 14th Amendment between “the rights” of all persons (due process and equal protection of law) and the additional “privileges and immunities” supposedly enjoyed by American citizens.
The denigration of citizenship is reflected in the argument that those living here illegally, but paying taxes, essentially should be treated as citizens. Citizenship, however, implicates more than residence and taxes.
Look around the world. A few countries allow one to buy permanent residence or citizenship. Otherwise, in virtually no other country is even the fact of living legally and paying taxes enough to earn equal treatment with its citizens.
Actually, it’s a mistake even to label nationals of any number of countries “citizens.” Citizenship is a western concept connected to self-government. American military historian Victor Davis Hanson rightly explains that “[I]n the Western constitutional tradition, citizenship was based upon shared assumptions that were often codified in foundational constitutional documents.”
The United States was the first nation since the ancient Greek and Roman republics to establish citizenship. American colonists were “subjects” of the British Crown. Even in the ancient republics and pre-Civil War United States, citizenship was limited. Other inhabitants — whether slave or free — did not participate in governing.
Citizens belong to a particular political body. In the United States, we are dual citizens — both of the U.S. and of a particular state.
The ancient republics were political bodies, but not sovereign states. The emergence of “sovereignty” and “statehood” are foundational to the development of our constitutional tradition.
As a concept, sovereignty was born in the Middle Ages and was legalized by the Treaties of Westphalia (1648). From that, sovereign states emerged.
Sovereignty may not last, but political power always persists. Some countries are theoretically sovereign, but de facto power lies elsewhere. In such “failed states,” the formal government lacks effective power even to compete with, much less suppress, the various organized criminal and terrorist powers running drug, sex, labor and arms trafficking.
The United States is the only western sovereign capable of defending not only itself, but others as well. At a minimum, sovereignty requires control of a certain territory. A powerful, sovereign state, however, need not have a constitution, a bill of rights, or any form of the rule of law.
Maintaining both the external sovereignty of a powerful state and the internal liberty of its citizens in self-governing, smaller states is the federalist design of our Constitution.
The great constitutional improvement resulting from the Civil War was adoption of the 13th, 14th and 15th Amendments ending slavery, making citizens of all persons born in the U.S., and guaranteeing the right to vote to black males. The 19th Amendment, guaranteeing women the right to vote, completed the constitutional process of turning voting from a privilege to a right regardless of race or sex.
Women always have been citizens, even before the vote, and children under 18 born in the U.S. are citizens, even without the vote. While voting is not all there is to citizenship, it is the most important power possessed by each citizen.
Counting citizens is essential for protecting every eligible citizen’s right to vote. For the moment, the Supreme Court has blocked the citizenship question. The issue of citizenship, however, is not going away. This issue, which should be bipartisan or nonpartisan, nevertheless will dominate the 2020 elections in a very partisan way.
John S. Baker Jr. is professor emeritus, Paul M. Hebert Law Center, Louisiana State University, a visiting professor at the Center for the Constitution, Georgetown University Law School, and chairman of Our Citizenship Counts, a group of scholars and community partners. He has been a consultant to USAID, USIA (now part of the State Department), the Justice Department, the U.S. Senate Judiciary Subcommittee on Separation of Powers, and the White House Office of Planning. Follow him on Twitter @JohnSBakerPHD.