Citizenship Rights

Abstract

At the core of a democratic government's effectiveness (and longevity) is its ability to protect the rights of the multitude of diverse social groups under its charge. Individual rights (and the safeguards that are put in place to ensure their perpetuation) have throughout history been a central issue in social migration, state secession, and regime ousters. The rights of citizenship are as varied as they are critical. This paper explores the manifestations of citizenship rights as they pertain to the underpinnings of a nation-state as well as the laws and regulations that permeate a political system, using the United States system as the point of reference.

Overview

In the sixth century BCE, the ancient city-state of Athens was faced with an economic, political and social crisis. Greek tradition called for the installation of seven philosophers, statesmen, and lawmakers to bring wisdom and order to Athenian society. Among these "Seven Sages" was Solon, a poet and lawmaker. As one of the Sages, Solon developed a series of reforms and laws designed to address virtually every component of society, including crime and punishment, marriage, and economic development. Central to each of "Solon's Laws" was the mandate that all citizens of every strata of Athenian society must in some way contribute to the maintenance of the government serving them. In the course of establishing this early democracy, much attention was paid to whether Solon's institutions would protect the citizens' rights as well as create order. In one instance, he was asked whether his laws perfectly protected the people. "No," he replied, "but the best they could receive."

It can be said that all governments are established at least in part for the purpose of serving the people. Naturally, not all governments are alike—the level and quality of service provided varies with each system and structure. Authoritarian and totalitarian regimes, for example, tend to consider the rights and well-being of the people as lower priorities than consolidating power or establishing order. Then again, a great many authoritarian and totalitarian regimes have, in part, been toppled by their underserved subjects. Democratic governments tend to be driven by public input, especially in the form of free elections.

A democratic regime's efficacy and longevity largely hinges on its ability to protect the rights of the multitude of diverse social groups under its charge. Individual rights (and the safeguards that are put in place to ensure their perpetuation) have been a central issue in social migration, state secession, and regime change throughout history. The rights of citizenship are as varied as they are critical.

Inalienable Rights: Democracy. It can be said that the US Declaration of Independence was written with three points in mind:

• First, the founders condemned the actions of the British Crown toward the subjects within its empire.
• Second, they declared their intention to become a new nation, free of British charge.
• Third, they proclaimed that "all men are created equal" and "endowed by their Creator with certain unalienable Rights" (cited in Coates, 2001).

Thomas Jefferson, chief architect of that iconic document, worked tirelessly to ensure that the third purpose was manifest throughout the declaration as well as during his presidency. He, like the rest of the founders, was seeking to make a statement about the sanctity of the rights of all men. In a letter to James Monroe, he made this point abundantly clear: "Natural rights [are] the objects for the protection of which society is formed and municipal laws established" (cited in Coates, 2001).

Jefferson's views did not focus on only the burgeoning American society, but also on humanity as a whole. All people, he wrote, are born with certain rights, and it is the responsibility of government to protect these rights. After all, government does not just derive its legitimacy and strength from the people; it is responsible to them and to their needs as well. In other words, a government is duty bound to protect its people's needs and interests, a duty that is rooted in the people's basic rights.

There is no comprehensive list of these "inalienable" rights with which all people are born. The US Constitution's Preamble and the Bill of Rights name such rights as freedom of speech and expression, freedom of religion and conscience, freedom of assembly, and the right to equal protection under the law, but this list is not meant to be taken as complete. The founders knew that people are imbued with many more basic rights—in fact, discussions during the early years of the country centered on which of the known rights (as well as those that might surface later in America's historical lineage) would be outlined in the Bill of Rights.

An important point is that the founding documents of the United States did not identify the rights of American citizens for the purposes of empowering the people. Such empowerment, the founders felt, was understood. The reason for inclusion of these rights in the Constitution is evident in the language of the amendments themselves. Each right is identified as an area in which government may not interfere, or work to undo. In essence, the Constitution binds the hands of government so that it will not endanger the rights of the people. Government protects the rights of the people by limiting its own actions. The Bill of Rights, in a similar vein, was written not to underscore the rights of citizenship, but to establish parameters that prevent the government from impinging on a citizen's rights.

It has been suggested that democracy is the political system best suited to enhance and protect the rights of the citizens. Many states that have been marred by violence, war, poverty, or political instability look to the democratic model as a vehicle that will return citizens' rights and protect the integrity of the state itself. In their estimation, a government that is beholden to the rights of the people represents a polar shift away from the repression of an authoritarian regime or the chaos of an anarchic system (Elshtain, 2004).

The rights of citizens are not limited to the freedoms of religion, speech, assembly, and a fair trial. A myriad of rights, many of which were not manifest to the founders in the late eighteenth century, are recognized today. Likewise, one can expect that other rights will be named in generations to come. It comes as no surprise, therefore, that the founders hesitated to create a fully comprehensive list of citizens' rights. Such a list, they believed, could be used to deny citizens the rights that future generations deem necessary to recognize.

Slavery. That Jefferson and his colleagues sought a new society that was egalitarian and protected the rights of the citizens is an indubitable fact. However, the views of the founders were based on social attitudes of the time, and during that period of history not all races were viewed as worthy of such rights. After all, slavery had been practiced in North America since 1619, and it would not end until 1865. Jefferson himself owned slaves, as did George Washington. Of course, these icons of American history did not view slavery as an optimal way of running a plantation—Washington and Jefferson both are known for treating their slaves with dignity; both had also set some of their slaves free. In their positions as president, they spoke candidly about their disdain slavery's brutality.

But while Washington and Jefferson openly disliked slavery, they were less outspoken about their views on black Americans. In truth, the prevailing view in the young United States was that slaves were subhuman. If slaves were freed and reintegrated into American society (it was believed) they would contribute little and become a significant drain on US resources. From Washington to Lincoln, those leaders who preferred an end to slavery (at least early on) advocated recolonization, or a return of the slaves to Africa, rather than integration and an extension of basic rights to former slaves.

Thus, those who sought to build a set of defined rights and protections into the country's laws wished to set limits on people's rights as well as to whom those rights applied. However, because definitions were not ultimately laid out, the rights, as well as the laws governing whom they applied to, could be changed over time.

For instance, while all rights were not initially extended to black citizens or women, today all of the inalienable rights are applicable to US citizens of all creeds, races, ethnicities, sexual orientation, and genders. Furthermore, those rights with which people are born are complemented by civil rights. The civil rights are granted by virtue of citizenship and work to address the interests of all citizens of a specific country.

Civil Rights. Since the mid-twentieth century, the term "civil rights" has been applied to the pursuit of equal protections under the Constitution by minority groups. Such pursuits would seem unnecessary, and the definition of the rights themselves equally redundant given the fact that the Constitution does not discriminate among social groups. Then again, as shown above, the lack of definition of applicable recipients of those rights has allowed leaders to allow their own prejudices to influence their lawmaking.

The central conflict surrounding the application of civil rights is the ambiguity inherent in constitution-building. Much debate swirled around the development of the US Constitution, for example, as to whether it was necessary to create the Bill of Rights. A large component of that debate focused on the fact that creating in essence a list of the rights to which American citizens are eligible would almost certainly be incomplete in the short- and long-term.

Some scholars assert that such ambiguities can help create agreement on the application of civil rights. Those with diverse attitudes about a general precept of the Constitution may find common ground in using that precept as the basis for a common outcome. This "incompletely theorized agreement" model proffers that by focusing on the outcome and not the underlying (and often divergent and/or competing) points of view that lead to it, constitutional framers and lawmakers may find a common interpretation of such precepts and thereby enable the application of a civil right (Sunstein, 2007).

The slavery discussion provides an excellent example of this argument—a multitude of divergent interpretations of the civil rights of black Americans during and after slavery would take nearly two centuries to find accord with the adoption of the Thirteenth and Fourteenth Amendments, which banned slavery and guaranteed equal protection under the laws, respectively, as well as the Fifteenth Amendment, which ensures for all male citizens the right to vote (Zak, 2006). Creating an equitable playing field for black Americans in the field of education, economic empowerment, political representation, and even equal protection under the law has taken longer and remains an ongoing effort in some areas.

The movement for expanded civil rights continues on a wide range of fronts in the United States. One of the most salient issues in recent years has been the quest for equality under the law for lesbian, gay, bisexual, and transgender people, who in 2015 were granted the right to marry by the Supreme Court ruling in Obergefell v. Hodges, but who are still fighting for equal access to other public goods, such as public bathroom use for transgender people.

Further Insights

The term "citizenship rights" has taken on a new meaning over the last few years. With a steady influx of undocumented immigrants entering the United States, more and more have sought not just protections under the law but access to the same rights of citizenship afforded to native American citizens. While many are not rights, per se, but are rather considered "benefits," their underpinnings have root in the basic rights afforded to citizens alone. While access to quality schools and universities is technically not a Constitutionally guaranteed right, the ability to receive an education is interpreted by many to be part of the "pursuit of happiness" Americans enjoy (Thro, 2007). Undocumented immigrants seeking the same access to American schools have set off a firestorm of political controversy. As legislatures across the country and the federal government seek to mitigate this issue, a solution remains evasive.

Economic, Cultural & Social Rights. Thus far, this paper has identified two distinct manifestations of citizenship rights. The first are the basic rights, into which every individual is born, and the second are civil rights, which ensure that every citizen is treated equally and fairly. There remains an important third category of citizenship rights, however. These rights and privileges may not be as fundamental as freedom from persecution or the ability to speak one's mind. However, no society can operate in an open manner without at least an acknowledgement of one's economic, cultural and social rights (ECSRs).

As stated earlier, when the founding fathers of the United States were scribing the Constitution, they acknowledged that a thorough list of rights would be nearly impossible to create within one document. They instead focused on what was seen as the most obvious of the basic human rights to which all people should have access. ECSRs, however, differ from those rights in an important distinction—fundamental, inalienable rights are simply afforded to citizens, whether they seek them or not. ECSRs, however, entail providing access to certain services and programs for all citizens who, in turn, choose to take advantage of them or not.

This distinction is critical in that the inalienable rights are outlined in the Constitution within the confines of what the government may not do. The Bill of Rights, it may be said, was at least in part an indictment of the propensity of government to infringe on citizens' way of life. On the other hand, ECSRs (including the right to food and shelter, education, health care, and even gainful employment, according to Amnesty International) entail the government making a proactive effort to provide access for all citizens to the resources and programs that will satisfy those needs.

T. H. Marshall: Rights or Privileges? In 1950, British sociologist T. H. Marshall suggested that the free-market system and government institutions remained connected to the betterment of the public. In his seminal work, Citizenship and Social Class, Marshall argued that citizens are entitled to ECSRs and, by virtue of that entitlement, public policy should be directed toward the egalitarian application of those rights (Hibbert, 2008).

Marshall's socially oriented policymaking model, which entails the government taking an active role in leveling the playing fields among social and economic classes, set off a significant debate among sociological and political scholars. Many of the critiques offered are manifest on two fronts.

• First, detractors say, the assessments of social rights offered by Marshall are limited to the constructs of Great Britain, and therefore fail to adequately account for the appearance of such rights in other countries.
• Second, critics argue, the emphasis on social policy fosters the attitude that privileges are rights, and that the equality of treatment among established citizens groups are superseded by the government's effort to empower previously nonestablished social groups (Briener, 2006).

Still other critics of Marshall's ideals question whether many of the social rights as he defined are, in fact, "rights." Their point is that the "welfare state" created by a government's focus on ECSRs allows for virtually any aspect of life as a citizen to be a "right," not a "privilege." On the housing front, for example, Marshall would argue for the state to provide housing instead of the citizens working diligently to obtain housing on their own. A much broader interpretation of Marshall would suggest that the government, in its obligation to the people, would help citizens (who are proactively pursuing this goal) to locate and maintain a place to live and, if not, to provide state resources to make this pursuit a successful one (Bengtsson, 2001).

The debate over the government's obligation to correct the issues facing all strata of society, as well as an internationally adopted definition of economic, cultural, and social rights, remains complicated and unresolved. Nevertheless, as the political discourse on this subject continues, it also remains difficult to disregard the need to define the rights and privileges of citizens in this arena.

The Judiciary as Mediator. There are many instances in which consensus-building among diverse factions or even political mandates cannot put an end to a controversy. In a great many cases, citizens turn to the highest law in the nation, the Constitution and the judicial branch of the federal government.

Many issues surrounding the determination of the rights of citizenship are settled between the parties through negotiation as well as the aforementioned incompletely theorized agreement approach. However, there are many citizenship rights issues that require mediation from an unbiased party. Issues such as egalitarian educational access, same-sex marriage, and due process are often resolved not through negotiation but in the courtroom.

The judiciary was established as a counterweight to the legislative and executive branches of US government for this very reason. With regard to the rights of citizenship, for example, the US Supreme Court remains the most powerful participant in the ongoing pursuit of updating the American legal system to include a great diversity of social and political groups. When local, state, or federal laws (or proposed changes to those laws) are introduced that seemingly operate counter to the dictums of the Constitution, the Supreme Court (or its lower chambers) have been called upon to provide an application and resolution based not on public sentiment or regulation—instead, it proceeds with an application based on the Constitution.

Issues

Interpretation. Of course, the Constitution does not speak to specific circumstances and, as such, is subject to interpretation by the judiciary. Many of the decisions the courts make are based on precedent—the decisions on previous (and similar) cases tend to help judges and justices formulate their opinions in addition to applying the basic precepts of the Constitution. Hot-button civil rights cases such as Brown v. Board of Education, for example, necessitated that justices look back on previous rulings to help formulate the bases for their opinions. Such decision-making appears similar to the incompletely theorized agreement model—piecing together often disparate cases and situations to reach a consensus.

Unfortunately, two problems arise in this arena, particularly with regard to the issue of the rights of citizenship. The first is that if an analysis of a rights issue conducted by the Supreme Court does not have relevant precedent to support it, the Court may be less able to strike an accord in the manner of the incompletely theorized agreement. In fact, one study reveals that the less the Court is held accountable to historical precedent, the less applicable the incompletely theorized model becomes as a resource for consensus-building (Bathaee, 2007).

This issue raises an important second point. As the rights of citizenship are not all itemized in the Constitution (a deliberate incompletion allowed by the founders) and, without recent historical precedent on which to rely, the judiciary must often rely on the attitudes and moral beliefs of the judges and justices themselves. The idea of judges using their political ideologies rather than their legal background on civil rights issues has rankled activists on both sides of the political spectrum.

The issue of same-sex marriage, for example, has launched a nationwide debate on the right of marriage, a right that is not considered inalienable but fundamental nonetheless in every society. A lack of constitutional definition of who can and cannot get married has meant that most states (whose own constitutions were by and large based on the US Constitution) must either modify their own constitutions to define eligible candidates for marriage or simply allow same-sex marriage to occur. Many opponents of gay marriage insist that the judiciary, if it weighed in, would be doing so in an activist rather than constructionist motif—their preference, therefore, would be to allow the people to vote on this controversial issue rather than leave the issue to the courts ("Marriage: The bliss and the battle," 2008).

The important point to be echoed here is that the rights of citizenship have not been fully defined in the highest law in the nation. In many cases, the reconciliation of these rights may be remedied by the lawmakers, but in many other situations, the judiciary has been called in to review and interpret the Constitution's precepts as they pertain to the issue at hand. Such an undertaking is hardly free of political ideology and is therefore subject to great controversy among advocates and opponents alike. The rights of citizenship have never been without debate, and while the judiciary has often been well suited to create solutions to issues pertaining to citizenship rights, its input has not always been well received in the court of public opinion.

At the founding of the United States, the rights of citizenship were expected to be myriad, but the founders could not anticipate how the pursuit of such rights would expand to include sexual orientation, gender, immigration (both legal and undocumented) and others, nor could they anticipate the battlegrounds in which such rights would be pursued.

There are sociopolitical resources that may be employed to find common ground between diverse (and sometimes competing) factions who have the same goals in mind. Even so, the rights of all citizens are not always guaranteed while the public remains divided on their application.

Terms & Concepts

Civil Rights: Rights bestowed onto an individual or group thereof (particularly of a minority) by virtue of residence in a country.

Egalitarian: Promoting equality among social and economic groups.

Inalienable Rights: Rights with which individuals of any nation are born, not Inherited or earned.

Incompletely Theorized Agreement: Sociopolitical theory that suggests mitigation of civil rights disparities by establishment of common ground among otherwise divergent points of view.

Regime: Leadership or governing body of a political system.

Undocumented Immigrant: Individual who enters a country without proper identification or legal sanction.

Bibliography

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Suggested Reading

Ariely, G. (2011). Exploring citizenship spheres of inclusion/exclusion: Rights as ‘potential for power.’ Patterns of Prejudice, 45, 241–258. Retrieved November 4, 2013 from EBSCO online database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=62668212

Gonzales, R. G., Sigona, N., & Burciaga, E. M. (2016). Citizenship, rights, and deservingness. American Behavioral Scientist, 60(13), 1531-1533. doi:10.1177/0002764216664940. Retrieved January 26, 2018, from EBSCO online database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=118569791&site=ehost-live&scope=site

Iovane, M. (2007). The universality of human rights and the international protection of cultural diversity. International Journal of Minority and Group Rights, 14(2/3), 231-262. Retrieved July 15, 2008, from EBSCO online database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=26584632&site=ehost-live

Jacoby, S. (1992). When rights run wild. Woman's Day, 55, 162-163. Retrieved July 15, 2008, from EBSCO online database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=9202242589&site=ehost-live

Josephs, M. L. (1992). Fourteenth Amendment—Peremptory challenges and the Equal Protection clause. Journal of Criminal Law and Criminology, 82, 1000-1028. Retrieved July 15, 2008, from EBSCO online database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=17700801&site=ehost-live

Karst, K. (2007). The liberties of equal citizens: Groups and the due process clause. UCLA Law Review, 55, 99-142. Retrieved July 15, 2008, from EBSCO online database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=27493613&site=ehost-live

Naples, N. (2006). Sexual citizenship and social regulation: Towards a comparative and intersectional model. Conference Papers—American Sociological Association, 1-25. Retrieved July 15, 2008, from EBSCO online database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=26643277&site=ehost-live

Schmid, C. L. (1988). The Supreme Court, civil rights and racial equality: A sociological interpretation. Research in Law, Deviance and Social Control, 9, 63-84. Retrieved July 15, 2008, from EBSCO online database SocINDEX with Full Text. http://search.ebscohost.com/login.aspx?direct=true&db=sih&AN=15620650&site=ehost-live