Originally Published in Politico
Steven Lubet - December 3, 2020
On December 1, 2020, the U.S. Citizenship and Immigration Service began administering a new naturalization test to those hoping to become U.S. citizens. The test draws from 128 potential civics questions, with the approved answers posted on the USCIS website. The test is given orally, and all applicants for naturalization will have to answer 20 of those questions chosen at random, with a passing score of 12.
When the test was first released a few weeks ago, many critics focused on its needless difficulty and complexity. The previous iteration of the test, last revised in 2008, required applicants to answer six of 10 questions, drawn from a pool of only 100. Several new questions call for biographical details about Alexander Hamilton, James Madison and Dwight Eisenhower, while another asks for “the purpose of the 10th Amendment.” Critics of the new test believe that it is intended to create an additional and unnecessary barrier to naturalization.
But perhaps the most significant feature of the test is its decidedly conservative political tilt, sometimes to the point of inaccuracy.
We are unlikely to get a definitive answer from SCOTUS any time soon. (It appears probable that a host of complex procedural issues will send the case back to the lower courts for further consideration.) But fiddling with the census was not the Trump administration’s only opportunity to change our understanding of representation by limiting it to U.S. citizens. Here are two questions on the new naturalization test, as well as the only approved answers from the USCIS study guide, now embodying the Trump administration’s revisionist approach to government:
31. Who does a U.S. senator represent?
· Citizens of their state
33. Who does a member of the House of Representatives represent?
· Citizens in their [congressional] district
The acceptable answers have been changed from the 2008 iteration of the test, which accurately (at least for now, unless the Supreme Court decides otherwise) stated that U.S. senators represent “all people of the state.”
Does that mean anyone who answers “all people” rather than “citizens” will be marked incorrect? The examinations are administered orally by individual USCIS officers, who have some discretion, so it is impossible to know how often “all the people of the state” would be considered wrong, perhaps leading to a flunked test. But the instructions on the USCIS website explain that while “there may be additional correct answers to the civics questions, applicants are encouraged to respond” using only the sample answers. Regardless, the quite evident intent of the drafters was to change the model answer, from which applicants study for the exam, as part of a larger attempt to transform the government’s approach to representation.
It’s not hard to find more evidence of the test’s pronounced conservative bent. There are five questions and answers that include the Federalist Papers, revered by today’s American conservatives, including the Federalist Society, a legal organization whose members have included many of Trump’s judicial nominees, and The Federalist, a right-wing magazine. In contrast, there are only two questions about the civil rights movement and three about women’s suffrage. The study guide’s obsession with the Federalist Papers even leads to the inclusion of one acceptable answer that is flatly incorrect:
14. Many documents influenced the U.S. Constitution. Name one.
• Declaration of Independence
• Articles of Confederation
• Federalist Papers
• Anti-Federalist Papers
• Virginia Declaration of Rights
• Fundamental Orders of Connecticut
• Mayflower Compact
• Iroquois Great Law of Peace
The Federalist Papers, however, were published to urge adoption of the Constitution, which had already been written and circulated, and therefore could not have “influenced” the Constitution. (The same is true of the Anti-Federalist Papers.)
The conservative spin does not stop there. For example,
65. What are three rights of everyone living in the United States?
• Freedom of expression
• Freedom of speech
• Freedom of assembly
• Freedom to petition the government
• Freedom of religion
• The right to bear arms
Notably missing from the UCSIS answer list are the rights to counsel, due process, equal protection, and freedom from cruel and unusual punishment or unreasonable search and seizure. An aspiring citizen who gave one of those responses could presumably be marked wrong. Nor does “everyone” have the right to bear arms. It is a felony under current federal law for convicted felons, among others, to possess firearms or ammunition.
Here is another incomplete answer from the study guide:
2. What is the supreme law of the land?
• [U.S.] Constitution
In fact, Article VI provides that the supreme law of the land additionally includes the “Laws of the United States [and] all Treaties made.” While the Constitution is the most supreme of our laws, it also clearly provides that “Judges in every state shall be bound” by federal statutes and treaties. That is no doubt upsetting to extreme states’ rights advocates, which may explain why the test includes a specific question about what the 10th Amendment provides—answer: “powers not given to the federal government belong to the states or to the people”—but none about the 5th (the right to avoid self-incrimination) 6th (the right to counsel), or 8th (the ban on cruel and unusual punishment).
There are other problems with the civics test, including its unnecessary complexity, its obsession with battles and wars, and the fact that only a single answer set includes any women by name (there are 11 naming men). The word “democracy” appears just once. The first section on the 2008 test was titled “Principles of American Democracy,” now ominously replaced by “Principles of American Government.”
The most recent time the test was revised, the Bush administration posted an advance “pilot” of 144 proposed questions, many of which included errors, omissions and shortcomings. The 100 questions that made the final cut corrected most of the mistakes—after I pointed them out in an article for Salon, although I have no way of knowing whether I actually deserve any credit. The Trump administration created no similar opportunity for correction, instead publishing an overtly partisan test that is sometimes just plain wrong.
Successful applicants will have studied hard to obtain their cherished U.S. citizenship, and it is a shame for USCIS to mislead them so badly about the nature of the government to which they will soon pledge allegiance.