Chief Justice Roberts is Right: The Right to Citizenship is the Right to Have Rights

In the penultimate paragraph of his opinion for the Supreme Court majority in Trump v. Barbara, the birthright citizenship case, Chief Justice John Roberts wrote that both when the Fourteenth Amendment was adopted and today, citizenship “was the right to have rights—to freely participate in our political community.” The second half of that statement is plainly correct. Although state and local governments may extend the franchise to non-citizens in non-federal elections, federal law forbids non-citizens from voting in federal elections. Meanwhile, the provisions of the Constitution that forbid denials of the right to vote on various invidious grounds (the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments) all limit their coverage to “citizens of the United States.” Thus, Roberts was right that the right to citizenship is critical to participation in the national political community. What about the assertion that citizenship is the foundation for rights more broadly? In a recent essay, Amherst Professor Emeritus Hadley Arkes accused Roberts of getting things backwards. Citing the Declaration of Independence, Arkes said that rights precede government and thus citizenship. The founders did indeed believe in natural rights that governments are instituted to protect. However, that does not mean that the Chief Justice was wrong in contending that citizenship is the right to have legal rights. In our constitutional tradition, not all natural rights are legal rights, as Justice James Iredell famously explained in his concurring opinion in the 1798 case of Calder v. Bull. Arkes, not Roberts, was confused. Yet Roberts might appear to have erred in a different way. Let us focus only on legal rights. Even so, key provisions extend constitutional rights to “persons” or “the people,” not only to citizens. In a 1990 case, the Supreme Court held that the term “the people” in the Fourth Amendment does not encompass non-citizens with no ties to and living outside the United States. However, in that very ruling, the Court distinguished numerous cases holding that non-citizens in the United States do have constitutional rights. These include Fourth Amendment rights themselves, First Amendment rights, due process, and more. To be sure, non-citizens do not have all of the same rights as citizens, but they do have a great many. So did the Chief Justice goof after all? Was his claim that citizenship is the right to have rights at best an understandable rhetorical flourish? In a word, no. The Origins of Citizenship as the Right to Have Rights In his Barbara majority opinion, Chief Justice Roberts did not cite any authority for the proposition that citizenship was or is the right to have rights. However, his was not the first Supreme Court opinion to make the claim. That distinction belongs to two opinions by Chief Justice Earl Warren that came down on the same day in March 1958: Perez v. Brownell and Trop v. Dulles. In Perez, Warren was in dissent. He recognized that a person could lose their citizenship by voluntarily relinquishing it but thought that Congress had set statutory criteria for expatriation that fell short of voluntary relinquishment. In Trop, Warren wrote for a plurality that wartime desertion by a U.S. citizen soldier could not be the basis for expatriation. In both cases, Warren noted that expatriation of a natural born citizen could result in statelessness and cited studies showing how harmful statelessness is. I do not know whether in referring to citizenship as the right to have rights Roberts meant to invoke the view of the earlier Chief Justice, but it would be fitting if he did. Many of the people to whom the Trump executive order at issue in Barbara would have applied would suffer fates comparable to statelessness if the order were allowed to go into effect. Children born and raised in the United States to undocumented immigrant parents may know no other home but then one day be deported to a potentially unsafe land where they do not speak the language. Or they could be sent to a “third country” in which they lack even extended family. Meanwhile, there is another way in which the right-to-have-rights formulation is fitting. While it is true that non-citizens in the United States have constitutional rights, they generally do not have a substantive constitutional right to remain in the United States. With the Supreme Court’s acquiescence, the Trump administration has been especially aggressive in using congressionally delegated power to terminate programs like Temporary Protected Status. If permission to remain in the United States ultimately depends on citizenship, then citizenship is indeed a right to have the rights one has by remaining in the United States. Finally, although Chief Justice Warren preceded Chief Justice Roberts in calling citizenship the right to have rights, Warren was not the first to use the phrase either. In an essay that was later incorporated as chapter 9 of a 1951 book, Hannah Arendt apparently coined the phrase. Arendt cautioned that rights of the sort found in the Universal Declaration of Human Rights were less secure for their universality than the right to be a situated citizen in a functioning democracy. Neither Warren nor Roberts cited Arendt, but their respective opinions are consistent with the views she expressed. As many readers may know, the title of Arendt’s 1951 book was The Origins of Totalitarianism. That too is fitting, given the nature of the presidential regime that sought to strip millions of future Americans of their birthright and that in numerous other ways attacks the foundations of constitutional democracy.