Dual citizenship

[Eugene Volokh]

        Hmm -- is the claim really that the government may never discriminate
against dual citizens of both the U.S. and an enemy nation?  (I set aside
the much harder question of the non-dual citizens.)

        To begin with, we're talking here not about *race* discrimination, but
*citizenship status* discrimination.  I realize the two may overlap in such
situations, but there is an important different of principle here.  During
World War II, for instance, I take it that everyone would agree that we were
entitled to treat Japanese *citizens* differently from, say, Canadian
citizens.  The status of being a citizen of an enemy nation is surely a
permissible basis for government classification.  (Let's set aside for a
moment the question whether Japanese, German, and Italian citizens could be
treated differently; I suspect that even this discrimination wouldn't be
subject to strict scrutiny, but surely it isn't the case that citizenship
status discrimination as such is subject to strict scrutiny.)

        But what about dual citizens, who are also American citizens?  Well, I
certainly sympathize much more with their plight; but I'm not sure whether
the Constitution protects them against discrimination based on their having
another form of citizenship other than American.  Yes, if someone is an
American citizen, we should generally assume (absent other evidence) that
he's loyal to the U.S.  On the other hand, if someone is a German citizen,
we can likewise assume -- with no bigotry or insult -- that he's loyal to
Germany; people are usually supposed to be loyal to their country of
citizenship.  If he's a citizen of both countries, we have a problem here:
We have some reason to think that he feels loyalty to both, but we don't
know which loyalty is stronger.  Today, of course, that dual loyalty doesn't
matter; in December 1941, it obviously mattered a lot.  Sounds like very
good reason (and, since strict scrutiny isn't implicated, a perfectly
constitutional reason) to investigate this person further -- and in a close
case, to take at least certain forms of action detrimental to him, such as
not hiring him in a sensitive military position.  (I reserve the question of
when it should be permissible to intern people who are citizens both of the
U.S. and an enemy nation.)

        Citizenship is not an irrelevant characteristic.  Nor is it a
characteristic that, like race or ethnicity, might be statistically
probative of certain attitudes, but that we should strive to ignore.
Citizenship matters, it should continue to matter, and it seems to me that
the government may act as if it matters.


Shubha Ghosh writes:

> The argument for rational discrimination based on the
> divided loyalties of dual citizens or naturalized
> citizens seems as weak as the arguments that gay
> individuals should be signalled out as security risks
> because of the risk of blackmail (a rationale I
> understand that was quite common under the Hoover
> administration and perhaps still exists now).