26 March 2014


'Citizenship and Protection' by Andrew Kent in (2014) 28 Fordham Law Review discusses
 the role of U.S. citizenship in determining who would be protected by the Constitution, other domestic laws, and the courts. Traditionally, within the United States both noncitizens and citizens have had more or less equal civil liberties protections (putting to one side the question of immigration law). But outside the sovereign territory of the United States, noncitizens have historically lacked such protections. This essay sketches the traditional rules that demarcated the boundaries of protection, then addresses the functional and normative justifications for the very different treatment of noncitizens depending on whether or not they were present within the United States.
Kent notes that
Chief Justice Earl Warren famously described citizenship as “man’s basic right” because “it is nothing less than the right to have rights.” As Justice Robert Jackson put it for the full Court, “Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship nor have they sapped the vitality of a citizen’s claims upon his government for protection.” U.S. citizenship—the topic of this Symposium—is thus theorized to be the foundation upon which all other rights rest and the ultimate basis upon which to claim protection against the U.S. government. 
But the actual connection over the course of American history between citizenship, the Constitution, and protection from government overreach has been much more muddled and complex than this. In ordinary peacetime contexts, citizenship has historically played a relatively minor role in demarcating the Constitution’s domain—that is, in determining who is under the umbrella of its civil liberties protections. Most political rights have always been reserved for citizens. And in the immigration context, of course, citizenship can be crucial. But with regard to civil liberties, the practice of U.S. constitutionalism has been to make relatively few distinctions based on citizenship within the United States and during peacetime. 
Instead of citizenship, the primary axes along which the domain of the Constitution’s protections has been demarcated are territorial location, domicile, and enemy status during wartime. For much of American history, constitutional protections stopped at the boundaries of the United States and did not extend to military enemies or persons in war zones, no matter their citizenship. The right to access the courts to claim legal protections, which often is as important as having substantive constitutional rights themselves, was also dependent on enemy status and territorial location more than on citizenship. 
In Part I, this Article summarizes the historical evidence about the role of enemy status, territorial location, domicile, and, to a lesser extent, citizenship in determining who was protected by the Constitution and could access U.S. courts. I also set out the most prominent typologies and theories that legal academics have used to describe the rules setting the boundaries of constitutional protection and contrast them with the actual historical concepts and practices used in earlier eras. 
Part II explores the justifications for these traditional limits on the domain of the Constitution’s protections by addressing two questions: First, why have both citizens and noncitizens generally been protected by the Constitution and courts while in the United States? Second, why have protections ceased—entirely for noncitizens and to a lesser extent for citizens—when they are outside the sovereign territory of the United States or when they are military enemies? Having explored the reasons why noncitizens have historically received robust protections while within the United States, this Article suggests that some additional protections for noncitizens present in the United States might be warranted. In particular, I suggest that there should be a rebuttable presumption that noncitizens in the United States during peacetime have equivalent constitutional protections to citizens. The lack of extraterritorial constitutional rights for noncitizens and for military enemies has been subjected to sustained criticism in recent decades. This Article acknowledges those criticisms, but suggests that there are some reasonable justifications for limiting constitutional protection to the traditional domains. Before proceeding, I want to note the limits of this discussion, which is focused on the national security and foreign affairs context. Over the course of American history, women, slaves, African Americans including freed slaves, suspects and defendants in state and local criminal cases, incarcerated convicts, the institutionalized mentally ill, and other groups have moved from largely or entirely outside the domain of the Constitution’s and the courts’ protections to their current position inside. Indeed, in many ways, the enlargement of the domain of protection has been the most important part of the story of U.S. constitutional development. Here I am talking instead about contexts involving national security and foreign affairs. Thus, when I say that enemy status, territorial location, domicile, and, to a lesser extent, citizenship determined the domain of the constitutional protections, I do not mean to slight the importance of race, gender, and other categories. Those topics are critically important, but are not mine in this Article.