• January 31, 2014
    Guest Post
    by Andrew Guthrie Ferguson, Associate Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013)
    In his State of the Union Address, President Barack Obama stated, “Citizenship demands a sense of common cause; participation in the hard work of self-government; an obligation to serve to our communities.” So why does the official test to become a citizen fail to address these participatory values? Why in the battle over legal paths to immigration do we not rethink what we demand from new citizens?
    “Where is the Statue of Liberty?” So reads one of the 100 questions every new citizen might have to answer to pass the national citizenship test. The national citizenship test, created in 1986 and updated in 2008, involves 100 questions focused on American civics, history and geography. Actual questions include: “What are two Cabinet-level positions?” “The Federalist Papers supported passage of the U.S. Constitution. Name one of the writers.” “Who was President during the Great Depression and World War II”? “Name two national holidays.” The questions and answers are provided to study from, and applicants need only answer six out of ten randomly selected questions correctly to pass the test. But, the question remains: is this really the test we want to create productive and contributing citizens in American society?
    First, a bit of history: For much of early America, there was no citizenship test required to gain citizen status. In 1790, three years after the creation of the U.S. Constitution, Congress passed the first naturalization act that allowed free white people “of good character” to apply for citizenship after living in the United States for two years and swearing to uphold the Constitution. Subsequent acts extended the residency requirement to five and then briefly to fourteen years. In 1868, the Fourteenth Amendment extended birthright citizenship to “All persons born or naturalized in the United States” covering African Americans and others born on United States soil.
  • June 14, 2011
    Guest Post

    By Martha F. Davis, Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis filed an amicus brief in Flores-Villar v. United States on behalf of Equality NOW, Human Rights Watch and other groups.

    There must be a good story behind the single sentence that the Supreme Court issued as its “opinion” in Flores-Villar v. U.S yesterday. A full seven months after the oral argument in the case, after reviewing hundreds of pages of briefs on the merits, on the surrounding historical issues, on relevant international and human rights law, on remedial questions, the Court opined that “The judgment is affirmed by an equally divided Court.”

    Unfortunately, it will likely be decades before we learn the back story, when the Library of Congress opens the archives of one of the currently sitting Justices. Then, we’ll learn if it was Justice Kennedy or someone else who joined the dependable group of Justices Breyer, Ginsburg and Sotomayor to strike down the deeply discriminatory citizenship law, creating the even split on the Court. Then, years from now, we’ll find out whether the 4-4- split was just an expedient compromise mandated by the impending end of the term, when the Justices simply couldn’t reconcile competing concerns about deference to Congress, the Court’s remedial power, and even issues of standing. We’ll find out how many opinions were drafted and what the decision might have been if, for example, Justice Kagan hadn’t recused herself from the deliberations.

    Because the Court could muster only a single sentence, historians – not journalists and law professors -- will be the ones who tell the story of Flores-Villar v. U.S.

    One historian, Professor Linda Kerber of the University of Iowa, is ready.

  • November 8, 2010
    Guest Post

    By Sandra S. Park, a staff attorney in the ACLU Women's Rights Project. Ms. Park was counsel on the ACLU's amicus brief in Flores-Villar v. United States.
    When a child is born to an unmarried U.S. citizen living abroad, the parent's ability to transmit U.S. citizenship to the child turns on this question: Was the child born to a U.S. citizen father, or mother?

    If the child's mother is a U.S. citizen, the child will automatically be a U.S. citizen at birth, so long as the mother previously had lived in the U.S. for one year, at any age.

    But if only the child's father is a U.S. citizen, the law mandates more: The father must legitimate or legally acknowledge his child and have resided in the U.S. for many more years, at an age set out by statute.

    The law, originally enacted in 1940, is one of the few remaining in the U.S. Code that explicitly discriminates based on gender, and for that reason, has been the subject of a number of equal protection challenges. The Supreme Court first examined the legitimation requirement imposed on fathers in Miller v. Albright (1998), resulting in a splintered plurality opinion. In 2001, the Court revisited the issue in Nguyen v. INS, a case co-counseled by the ACLU, and upheld the legitimation requirement. In an opinion that has been widely criticized, the Court found that the legitimation condition fulfilled the government's interest in assuring that a biological parent-child relationship exists, and that the father and child have a demonstrated opportunity to develop a meaningful relationship.

    On Wednesday, the Supreme Court will hear argument in a challenge to the gender-based residency requirements contained in the law - Flores-Villar v. United States. Ruben Flores-Villar was born abroad in 1974. His U.S. citizen father brought him to this country when he was two months old, legally acknowledged him, and raised him as a single parent. Flores-Villar sought citizenship through his father, but was rejected based on his father's failure to satisfy the residency criteria for unmarried fathers: ten years in the U.S. prior to the child's birth, at least five of which were after the father was 14 years old. When Flores-Villar was born, his father had lived in the U.S. for more than a decade; however, because he was 16 years old, he could not show that five years of his residency occurred after the age of 14. Had Flores-Villar been born to a U.S. citizen mother with the same history of residency, he would have acquired citizenship through his parent.