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Who would the founders deport?

Back then, no illegal immigrants

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 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. They made up 20 percent of the population, and most of them stayed here after surrendering, despite hostility 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 the country exercised reason and consent to create citizenship – even forgiving the sin of fighting against the formation of the nation.

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 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 recognized that over time, people who are living somewhere are transformed into citizens by the 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. 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 1801 Congress, Thomas Jefferson pleaded for a repeal of the extended waiting period, painting it as denying “asylum” and the “privileges” enjoyed by their forefathers. His arguments persuaded Congress to return the probationary period to its original length.

Our conundrum today is 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, today legislators fear that immigrants are taking American jobs and violating immigration procedures. Then and now, some have responded by advocating long probationary periods or even a perpetual guest-worker status that will never reward service with citizenship.

Ultimately, the founders recognized that they needed to avoid re-creating the circumstances that led us to rebel in the first place: taxation without representation. Jefferson argued fervently against creating a class of semi-citizens with no political voice.

Of course, there were exceptions to the founders’ rule that time, physical presence and good moral character were sufficient to earn citizenship: Women, indentured servants and many racial minorities weren’t eligible. Each of these is now a source of national shame. So, too, is the indefinite delay or denial of citizenship to today’s immigrant workers.

For those who can outlast the lengthy wait for legal status and citizenship, another hurdle exists: the cost of sponsorship and visas, and any fines potentially levied on aspiring citizens. One reason the founders were committed to awarding citizenship based largely on time-in-residence was the 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. The Obama administration has strengthened immigration enforcement more than the Bush administration did, reaching most of the goals laid out in a 2007 immigration bill. Still, we find ourselves no closer to living in a country of political equals.

Our system should value the time of today’s immigrants, just as the time of our forebears was valued. And this should hold true for everyone - not just agricultural workers, students or members of the military, but also people who process meat, teach in universities, work for small businesses or care for children.

Today we live in a robust democracy, yet 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. 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 is an associate professor of political science at Syracuse University’s Maxwell School of Citizenship and Public Affairs.)

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