Constitutional Rights “The instant case is not about the admission of aliens but instead concerns the logically prior question whether an individual is a citizen in the first place.” Justice Sandra Day O’Connor, Nguyen v. INS (2001)670 This section summarizes major constitutional issues raised in this chapter.671 However, the confluence of fraud-prevention, national security, immigration enforcement, and mixed federal and state or local administration of foundational proof of U.S. citizenship has obscured many practices in this area from a robust constitutional review. As noted above, a further infirmity in fundamental rights protections on display when governments dispute the predicate question of an individual’s citizenship is that all of the relevant substantive and procedural protections hinge on one’s status as a citizen. Exclusion policies based on “national origin” suddenly apply when the citizen becomes a foreign national in the eyes of the law.672 Procedural protections are more easily cut back or eliminated, thwarting serious administrative and judicial review and shifting procedural burdens from the state to the (non-) citizen; an expansive regime of administrative detention suddenly applies, accompanied by a torrent of other laws and regulations meticulously designed to effect expulsion of non-nationals as efficiently as possible. Buried in decades of rule-making and judicial doctrine, so much still depends on when the competent authority will reach the predicate question of citizenship and how the question is best answered. Citizenship Rights under the Fourteenth Amendment The Fourteenth Amendment’s guarantees related to citizenship were narrowed considerably just a few years after the amendment’s adoption, with the 1873 Slaughter-House Cases. There, the Supreme Court ascribed little significance to the Privileges or Immunities Clause of the Fourteenth Amendment, which could have afforded robust protection of substantive rights enjoyed by citizens of the United States, particularly in the post-Civil War era and its total restructuring of American citizenship to include former slaves. When the Supreme Court eviscerated Congress’s power to strip citizenship unilaterally in Afroyim v. Rusk (1967), Justice Hugo Black’s majority opinion barred “congressional forcible destruction of … citizenship,” upholding every American’s “constitutional right to remain a citizen in a free country.”673 Legal scholar Patrick Weil has proposed that access to a passport is a fundamental privilege of citizenship, vital in protecting against unconstitutional “destruction” of citizenship.674 He urges a new reading of the Fourteenth Amendment that would “read the Privileges or III. Denial and revocation of documentation of U.S. citizenship 149