Excerpted From: Amanda Frost, Reparative Citizenship, 65 William and Mary Law Review 651 (February, 2024) (273 Footnotes) (Full Document)

AmandaFroststThroughout its history, the U.S. government has granted reparations for historical injustices. The United States paid $9 million to subjects of the Tuskegee syphilis experiments in which black men's illnesses were left untreated, and $117 million to survivors of radiation exposure from nuclear testing. The Native American Graves Protection and Repatriation Act mandated the return of looted property to Native American tribes, and the Indian Claims Commission paid out approximately $800 million to Native Americans for stolen land. Perhaps best known, in 1988 Congress enacted legislation to award $20,000 each to Japanese immigrants and Japanese Americans imprisoned during World War II, accompanied by an apology on behalf of the nation by Congress. Aside from one narrow exception, however, the United States has never considered reparations for 150 years of overtly discriminatory immigration and citizenship policies. This Article argues it is time for that to change.

The historical record is clear. The Naturalization Act of 1790 permitted only “free white persons” to naturalize, and racial barriers to naturalization remained in place until 1952. Throughout the nineteenth and twentieth centuries, the government excluded millions from immigration and citizenship based explicitly on race, gender, nationality, and political opinion. Included in that group were American women stripped of their citizenship for marrying foreigners, Asians and Arabs barred from immigrating to the United States, Mexican Americans deported in both the 1930s and 1950s, and foreign-born labor leaders denaturalized during the Red Scare. As political scientist Rogers Smith explained, “for over 80 percent of U.S. history, American laws declared most people in the world legally ineligible to become full U.S. citizens solely because of their race, original nationality, or gender.”

The ramifications of these policies extend into the twenty-first century. Individuals alive today were denied immigration status and citizenship on immoral and (for some) constitutionally prohibited grounds. The current racial and ethnic composition of the U.S. citizenry also reflects these unconstitutional and immoral policy choices, as do the demographics of the eleven million undocumented immigrants living in the United States.

This Article asks whether the United States should atone for these past transgressions by enacting “reparative citizenship” laws granting excluded individuals and their descendants immigration status and a pathway to citizenship. The Article examines the proposal from a number of angles, ranging from nuts-and-bolts details of institutional design to conceptual questions regarding its fit within the existing immigration system and U.S. constitutional commitments.

A reparative citizenship initiative could be narrowly crafted to repair harm to individuals wrongly denied immigration and citizenship status. Immigration officials could adopt a “reparative” mindset, loosening evidentiary standards, taking notice of relevant historical events, and granting discretionary forms of relief to those discriminated against in the past. Such changes could be made by the executive branch unilaterally and relatively quickly, through changes to guidance documents, the U.S. Citizenship and Immigration Services (USCIS) policy manual, and regulations--all without amending existing laws. Alternatively, the initiative could be broader in scope, including descendants of excluded individuals or even whole groups excluded by discriminatory policies of the past, which would require new legislation.

Reparations in the form of access to U.S. citizenship is intriguing in part due to the unique nature of citizenship--an economically, politically, and symbolically valuable status that would provide a fitting remedy with which to atone for immigration law's historical injustices. Reparative citizenship is a powerful form of corrective justice that could at least partially repair the past harm. Returning “stolen” citizenship could also serve an educative function, informing current citizens that the status they enjoy was denied to others on grounds now acknowledged to be both immoral and (at times) unconstitutional. Such an initiative would reaffirm constitutional commitments to equality generally, and equal access to citizenship in particular.

Although reparative citizenship is almost unheard of in the United States, the idea has taken hold in Europe. In recent years, a growing number of European countries have granted a “right of return” to individuals expelled in the past, as well as to their descendants. Germany, Austria, Poland, and most recently Greece created programs to return citizenship to Jews stripped of that status before and during the Second World War, as well as to their descendants. Announcing the initiative on a visit to Israel in November 2010, Greek Deputy Foreign Minister Dimitrios Dollis declared: “They're our people ... It's their natural right,” adding that the loss of citizenship is a “moral injustice that had to be corrected.” Similarly, Spain's 2007 “Historical Memory Law” grants citizenship to individuals and their descendants expelled from the country during the fascist regime of Francisco Franco. Both France and Germany permit children of citizen mothers and foreign fathers to apply for the citizenship denied to them at birth due to gender-based discrimination in citizenship transmission laws. Most remarkably, in 2015, Spain and Portugal significantly expanded the concept by offering citizenship to descendants of Sephardic Jews expelled from the Iberian Peninsula five hundred years before. These European laws serve as a potential model for similar initiatives in the United States.

Part I of this Article provides a brief history of explicitly discriminatory immigration and citizenship laws and policies that remained in place from the nation's founding until 1952. Part II gives an overview of reparations theory. Part III describes the lone example of reparative citizenship in the United States, as well as the recent, broad reparative citizenship initiatives in Europe. Part IV addresses questions of institutional design, describing how reparative citizenship could be implemented in the United States within the framework of the current immigration system.

With this groundwork established, Part V turns to broader normative and constitutional questions raised by reparative citizenship. Access to citizenship fulfills many of the reparation movement's goals for such initiatives, and avoids the pitfalls that come with forced wealth transfers long after a wrongdoing occurs. Yet the broadest version of the concept would be hard to implement for many reasons. Allocating immigration status and citizenship to a new category of noncitizens would be difficult to integrate into an already overburdened U.S. immigration system, in which wait times for visas are often decades long. In addition, granting a pathway to citizenship based on discrimination in the past is an uneasy fit with a forward-looking American conception of citizenship, which emphasizes current geographical connections over ancestry and “bloodline.” Similarly, such an initiative risks replacing citizenship based on an emotional and cultural connection to the nation (“affective citizenship”) with citizenship valued primarily for its economic and mobility benefits (“instrumental citizenship”), potentially undermining the value of citizenship for all. Finally, as a practical matter, a broad version of reparative citizenship will be a hard sell politically in a nation deeply divided over immigration policy and the future of the approximately eleven million undocumented immigrants currently living in the United States.

Nonetheless, the Article concludes that a discussion of reparative citizenship is worth having, if only to bring a fresh perspective to stalled debates on the topics of immigration and citizenship. Immigration enforcement policies under Republican and Democratic administrations alike view asylum seekers arriving at the southern border as presumptive criminals and lawbreakers. Both the Obama and Biden administrations supported legislation offering the nation's undocumented immigrants earned citizenship, requiring these immigrants “get right with the law” by proving themselves worthy during a decade-long probationary status. Reparative citizenship flips the narrative, asking instead whether the nation owes citizenship to individuals or groups unjustly denied or stripped of that status in the past.

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The United States has a long history of denying or revoking citizenship on the basis of race, gender, and political opinion--all grounds now recognized as at odds with the nation's constitutional commitments and values. Individuals alive today were denied citizenship on these grounds, and the ethnic and racial composition of the United States has been altered as a result. This Article suggests that the United States consider granting reparative citizenship as a remedy for these past wrongs, and examines several different methods of doing so--some that could be implemented by the executive branch acting on its own and others requiring significant legislative changes.

Even if reparative citizenship initiatives are never incorporated into immigration law, however, debating the idea could shift the current narrative around the eleven million undocumented immigrants living in the United States and the thousands of other would-be Americans arriving at the southern border. Today, both political parties often describe these groups as legal and moral wrongdoers who must “earn” their citizenship (in the view of President Biden and other Democrats) or who should be forever barred from legal status and citizenship (in the view of former President Trump and many Republicans). This framing ignores the fact that the vast majority of the current citizens of the United States did nothing to earn that status. These Americans were born on U.S. soil as a result of laws that permitted immigration of their ancestors while excluding others for reasons now recognized as immoral, unjust, and (in some cases) unconstitutional. Rather than arguing about who has earned a pathway U.S. citizenship, the nation might ask itself whether it owes that status to those long excluded.

Professor of Law, University of Virginia School of Law.