Citizenship and Its Exclusions: A Classical, Constitutional, and Critical Race Critique

6. The De Jure Subordinates

| 83 6 The De Jure Subordinates As the preceding chapters demonstrate, Western societies have followed the pattern set by the ancient world concerning the citizenship construct. From the classical period to the Renaissance, influential theorists and politicians repeatedly extolled the virtues and necessity of equal citizenship within a democracy. Though the dominant discourse focused on equality, the practice of granting citizenship was far more exclusionary. This pattern was practiced with zeal in the United States’ development of the construct. In fact, little of the modern domestic discourse on citizenship questions the concept of equality, let alone accepts that there exist differentiated levels of membership for subordinate social or ethnic groups. Indeed, Congress as well as the Supreme Court has repeatedly addressed the importance of the citizen in a democracy but has never admitted to endorsing gradations of membership. Despite this fact, many American citizens to this day fail to enjoy equal rights. These inferior rights are vividly evidenced in the U.S. Supreme Court’s creation of legal fictions when racial and ethnic minority groups sought equal and full membership rights. In fact, the role that constructions of subordination , including those based on national origin and race, have played in excluding members from the U.S. body politic at the very least calls into question the sincerity of domestic citizenship rhetoric. American citizenship has unfortunately all too often been a tool for including Caucasians and excluding African Americans,1 indigenous people,2 and other non-Whites.3 For instance, the legal doctrines created over a century ago to maintain African American slave status4 and to deport and exclude legal immigrants still maintain inferior citizenship status for millions of United States citizens, such as the inhabitants of this country’s island colonies and the indigenous people of this land. Despite this reality, the concept of citizenship in the United States Constitution is based on equality. The primary source for citizenship, the Citizen- 84 | The De Jure Subordinates ship Clause of the Fourteenth Amendment, is a post-Reconstruction amendment specifically aimed to provide former slaves—African Americans—with political rights associated with citizenship. Although this clause centers on the notion of equality, in practice Congress and the Supreme Court have repeatedly denied people of color the benefits of equal treatment.5 Many of the inconsistencies in the treatment of these groups stem from century-old constitutional doctrines that gave the political branches of government complete or plenary power over these groups and established disparate treatment for these less favored citizens.6 Those whom the United States government exercised complete power, in effect, were deemed by that same government not to be true citizens, but “outsiders.”7 The Supreme Court addressed the repeated pleas for equality of racial and ethnic minority groups by deferring to the plenary power of the political branches of government. This so-called plenary powers doctrine forms the central constitutional basis for the disenfranchisement of millions of Americans . The disparate treatment of these groups provokes this criticism of the citizenship jurisprudence’s rhetoric concerning equality. The period from the early nineteenth century to the second decade of the twentieth century is the key juridical period when the Supreme Court and Congress attempted to define what groups were true American citizens eligible for full and complete citizenship rights.8 The Supreme Court’s response to claims for equal treatment was that each and every member of every statistically significant racial minority group was not eligible for full citizenship rights and therefore could be treated in an unequal and often repugnant manner.9 Between 1823 and 1922, the Supreme Court reiterated the importance of citizenship in a democracy but endorsed a model of differentiated levels of membership. The Supreme Court responded to actions by racial minorities seeking citizenship by removing the issue from the courts and into the political branches through the plenary powers doctrine. In matters of citizenship, Congress’s acts were effectively unreviewable because its constitutional power on these questions was plenary. As a rationale for avoiding a more strict level of judicial review, the plenary powers doctrine was used as a means to defer questions about the nature of citizenship to Congress and its wisdom. Limited judicial review and broad congressional discretion resulted in a citizenship matrix with different classes of citizens enjoying discrepant rights to participate in the body politic: some were full citizens, but others were subordinate citizens. The De Jure Subordinates | 85 In...