The citizenship test: New, improved and wrong

Only some of the answers on the government's new test are flat-out incorrect, but many are misleading to would-be students of the Constitution.

Published January 3, 2007 12:37PM (EST)

With much fanfare, the U.S. Citizenship and Immigration Service recently announced the introduction of a redesigned naturalization test. Trumpeted as a great improvement over the old examination, the new format will "focus on the concepts of democracy and the rights and responsibilities of citizenship." Some critics and immigrants' rights advocates have complained that the new citizenship test is too demanding, asking questions that nearly all Americans, whether native born or naturalized, would be hard-pressed to answer. But the degree of difficulty is not the only problem.

The pilot test and the approved answers (as posted on the USCIS Web site) are riddled with misinformation, inaccuracies and outright errors. As many as 19 of the 144 questions are flawed. They either are woefully ambiguous, or accept simplistic answers that are factually wrong, or exclude answers that are clearly correct. While none of the individual mistakes is earthshaking, the wrong answers will mislead earnest citizenship applicants who use the pilot test as a study guide. It will distort the constitutional understanding of thousands of would-be Americans, and actually penalize those who are the most serious students of the Constitution.

Let's start with the second question, which gets the whole test off on the wrong foot constitutionally. Pilot question No. 2 asks, "What is the supreme law of the land?" The sole allowable answer is "The Constitution." That is only partially right, however, because it excludes at least two other correct answers. Anyone who has read Article VI would know that the supreme law of the land includes the "Constitution, and the laws of the United States ... and all treaties made ... under the authority of the United States." True, the Constitution might be called the most supreme of the supreme, but it's still only one-third of the triad. Someone might answer quite correctly with either of the other two answers and still be marked wrong. Or worse, someone might foolishly decide to take the "concept" concept to heart and provide a more conceptual answer -- like, say, "The supreme law of the land is the law that judges in every state shall be bound by, even if the Constitution or laws of that state are to the contrary." That moderately profound response would presumably be counted wrong, even though it is lifted from the language of Article VI itself.

Pilot question No. 11 introduces another important ideal, but provides another incorrect answer.

Question: What does freedom of religion mean?

Answer: You can practice any religion you want, or not practice at all.

Yeah, right. Just tell that to Muslim women who want to keep their faces veiled while passing through airport security, or rattlesnake-handling Pentecostals, or polygamists, or peyote eaters, or, well, you get the idea. Religious belief -- Jefferson called it "freedom of conscience" -- is protected by the First Amendment, but that has never been extended to cover any and all practices. Thus, according to the Supreme Court's opinion in Human Resources Department of Oregon v. Smith, freedom of religion means that while you may believe anything you want, your religious practices are subject to limitation, or even criminalization, by a "neutral, generally applicable law." But don't write that on your citizenship test, or you might find yourself stateless.

So far, we have mentioned only approved answers that are incomplete or imprecise, but pilot question No. 33 takes the inaccuracies to another level. Its only allowable answer is just plain wrong, and anyone who gave the right answer would no doubt have it marked incorrect.

Question: The president must be born in what country?

Answer: The United States (or, alternatively, America).

The correct answer, however, is that the president may be born in any country whatsoever, or no country at all (at sea or in a plane). The Constitution requires only that the president be a "natural born citizen," and that status is achieved either by birth in the United States or by birth to parents who are both U.S. citizens, the latter potentially living and reproducing absolutely anywhere in the world.

That fah-lunking noise you hear is the sound of the citizenship door slamming shut in the face of the best-informed test takers.

The dumbed-down answers to the pilot questions end up penalizing applicants who actually understand the Constitution. Thus, anyone who wants to guarantee a passing score should probably memorize the many misconceptions found in the USCIS pilot answers, such as the following:

A member of Congress represents all citizens in that representative's district (wrong; he or she represents all people in the district, including noncitizens).

Only state governments can provide police protection and fire departments, issue drivers' licenses, and provide education (wrong; the federal government can, and does, provide those services on military bases and in the District of Columbia).

Elections in the United States are always held in November (wrong; federal elections are in November, but state and local elections -- and federal primaries -- are held in many other months).

It is the responsibility of U.S. citizens, and only citizens, to vote and serve on juries (idealistic, but still wrong; jury service can be legally required, but voting is strictly optional -- and in any event, noncitizens may be allowed to vote in certain state and local elections).

Only U.S. citizens may apply for federal jobs (seriously wrong, especially given the context; permanent resident aliens -- meaning pretty much everybody who takes the citizenship test -- are eligible for employment by many agencies of the federal government, including the U.S. Postal Service).

"Inalienable rights" are "individual rights that people are born with" (wrong; inalienable rights are those that cannot be denied by government; they may or may not arise at birth; and some rights at birth are, in fact, alienable).

Everyone has the right to bear arms. (This is basically wrong, and probably ideologically motivated; the Second Amendment makes it clear that the right to bear arms is connected to a "well regulated militia," and the Supreme Court has held that this right does not belong to individuals -- and in any event, it is an "alienable" right, as in the case of convicted felons.)

And so on. There are half a dozen more like these, ranging from the subtly misleading to cringe-worthy. Although only one-eighth of the 144 pilot questions have imprecise or erroneous answers, the threat to hard-studying immigrants is palpable. The actual test for any applicant includes only 10 questions, selected at random, of which six have to be answered correctly. Simply by luck of the draw, a hapless aspiring citizen might end up facing five or more questions for which the most accurate answers would be disallowed, making a passing grade impossible for the best students and the most critical thinkers.

Fortunately, this is only a pilot test. During a trial period early this year, it will be given in just 10 cities, and anyone who misses a question will be immediately permitted to take the regular exam. That will allow USCIS "to work out any problems and refine the exam before it is fully implemented nationwide." Refining the exam will presumably involve double-checking the answers and reading the text of the Constitution, but we still have to wonder why no one appears to have done that before issuing the test in the first place.

Then again, this is the Bush administration we're talking about, and it hasn't exactly demonstrated scrupulous respect for the Constitution in other settings. Come to think of it, President Bush (not to mention Vice President Dick Cheney and Attorney General Alberto Gonzales) would probably have a fair bit of trouble with some of the pilot questions, given their, shall we say, uniquely aggressive view of executive authority:

Pilot question: Why do we have three branches of government?

Pilot answer: So no branch is too powerful.

Bush answer: So the president can ignore the other two if he decides to wiretap American citizens or declare someone an unlawful combatant.

Pilot question: Who makes federal laws?

Pilot answer: Congress.

Bush answer: The president, pursuant to his inherent, unenumerated and unchallengeable powers as commander in chief.

Given the foul-ups, it's hardly surprising that USCIS is a division of the Department of Homeland Security (which also runs FEMA, the Federal Emergency Management Administration). USCIS, you're doing a heckuva job!

By Steven Lubet

Steven Lubet is the Williams Memorial Professor of Law at Northwestern University.  His most recent book is John Brown’s Spy: The Adventurous Life and Tragic Confession of John E. Cook.

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Dick Cheney First Amendment George W. Bush