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Should illegal immigrants become citizens? Let’s ask the founding fathers.

By Elizabeth Cohen,February 01, 2013

Elizabeth F. Cohen, the author of “Semi-Citizenship in Democratic Politics,” is an associate professor at Syracuse University’s Maxwell School of Citizenship and Public Affairs.

Who deserves to be a U.S. citizen?

It’s a question President Obama and Congress are trying to answer. But 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, which for many people stretch from 10 to more than 20 years, stray from these roots.

During the 18th century, there were no illegal immigrants in the United States, but there was a large group of people who posed a far more noxious threat than those who overstayed a visa or crossed a border without an inspection. They were British Loyalists — men who had taken up arms against the American revolutionaries and risked their lives to undermine the very foundation of our union.

Loyalists’ actions prior to the founding could hardly be called exemplary, yet they sought citizenship after the nation was established. They and their families made up approximately 20 percent of the population, and most of them stayed here after surrendering, despite hostility and episodic violence against them.

In 1805 the Supreme Court heard the first case testing whether members of this population could be considered citizens. The court stated that, because the former Loyalists stayed while the states were debating and ratifying the Constitution, they were qualified for citizenship. This and later decisions showed how, over time, 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.

Like the court, the nation’s first Congress saw the wisdom of requiring probationary residence before naturalization. Rep. James Madison of Virginia spoke eloquently in favor of such trial periods. He thought these wait times were the “proper prerequisite” to ensure the naturalization of only immigrants who would “increase the wealth and strength of the community.” Agreeing with him, Rep. Theodore Sedgwick of Massachusetts said the probationary period would ensure that immigrants shed the “prejudices” of their former regimes, exhibit “that zest for pure republicanism which is necessary in order to taste its beneficence” and acquire civic knowledge that would make them good citizens.

During House debates in 1790,Rep. Thomas Hartley of Pennsylvania stated that “an actual residence of such a length of time as would give a man an opportunity of esteeming the Government from knowing its intrinsic value, was essentially necessary to assure us of a man’s becoming a good citizen.” Hartley, who had served as a colonel in the Continental Army during the Revolutionary War and as a delegate to Pennsylvania’s constitutional convention, recognized the same fact that the Supreme Court did: Over time, people who are living somewhere are transformed into citizens by that experience.

It was vital to the founders that the probationary period be brief and apply identically to all immigrants; they avoided creating a patchwork of different statuses. It was a courageous position, and not everyone agreed that such a simple formula was right. Shortly after the passage of the First Naturalization Act in 1790, the nation experienced a time of extreme xenophobia. In reaction, Congress raised the probationary period to 14 years. In a speech to the opening session of the 1801 Congress, 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. His arguments persuaded Congress to return the probationary period to its original length.

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. And while the first Congress had to protect our fragile young democracy from monarchists and people from illiberal regimes, today legislators fear that immigrants are taking American jobs and violating immigration procedures. Then and now, some have responded by advocating very long probationary periods or even a perpetual guest-worker statusthat will never reward service with citizenship.