Who would the Founders deport?
Who deserves to be a U.S. citizen?
It's a question President Obama and Congress are trying to answer. It's also one we've been grappling with since our country's earliest days.
The Founders had a clear answer: People who immigrated and spent years building lives in this country deserved citizenship. They were also keenly aware that making new immigrants wait a long time for citizenship denied them the very rights that Americans had just fought to claim for themselves.
Today's complex visa system and lengthy wait times stray from these roots.
During the 18th century, there were no illegal immigrants in the United States, but there were British Loyalists. Loyalists' actions prior to the founding could hardly be called exemplary, yet they sought citizenship after the nation was established.
In 1805 the Supreme Court heard the first case testing whether they could be considered citizens. The court stated that they were qualified for citizenship. This and later decisions showed how the country exercised reason and consent to create citizenship — even allowing the original sin of fighting against the formation of the nation to be forgiven.
The court decisions created a sort of temporal formula: time + residence + good moral character = citizenship. We have always imposed a probationary residential waiting period on anyone wishing to become a citizen. For much of our history, that period held stable at five years.
It was vital to the Founders that the probationary period be brief. Not everyone agreed. Shortly after the passage of the First Naturalization Act in 1790, Congress raised the probationary period to 14 years. Thomas Jefferson pleaded for a repeal of the extended waiting period, painting it as denying “asylum” and the “privileges” enjoyed by his and his colleagues' forefathers.
Our conundrum today is remarkably similar. Backlogs in the immigration system have effectively reinstated waiting periods that are as long as or longer than the ones Jefferson decried. Some legislators advocate long probationary periods or even a perpetual guestworker status that will never reward service with citizenship.
For those who can outlast the lengthy wait for legal status and citizenship, another hurdle exists: the cost of sponsorship and processing visas, and any fines. One reason the Founders were committed to awarding citizenship based largely on time in residence was that it fit with the American belief that citizenship should not be for sale or restricted to the affluent.
For the Founders, Obama's call to reward people for “playing by the rules” would require rewarding citizenship to continuous residents who have invested their labor and affections in this land, rather than punishing them with fines and lengthy waits for legal status.
Many people are afraid that naturalizing undocumented or temporary workers who have lived here for years will trivialize our immigration laws. We might learn from the example of our Founders, who conquered a far greater fear when they gave citizenship to former Loyalists and created rules for naturalizing new immigrants.
People become citizens when they invest years building their lives in this country. Denying them naturalization or selling legal status only to people who can afford high fees and legal expenses doesn't make our border-control and immigration laws stronger. It makes them unfair.
Elizabeth F. Cohen, the author of “Semi-Citizenship in Democratic Politics,” is an associate professor of political science at Syracuse University's Maxwell School of Citizenship and Public Affairs.