2. Restore Consent-Based Citizenship

A Plan to Renew the Promise of American Life, Plank 2

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Plank 2. Restore consent-based citizenship.


Specific Recommendations

2.1. On a prospective basis, restore the Founders’ principle of consent-based, rather than birthplace, citizenship. Do this by executive action or statute, or, as a last resort, by constitutional amendment. Specifically: 1) cease granting automatic U.S. citizenship to the child of a sojourner or unauthorized entrant, regardless of where the child is born, and 2) going forward, grant U.S. citizenship automatically only to the following: i) the natural child of a U.S. citizen, even if born abroad, and ii) the natural child, born on U.S. soil, of a non-citizen who is either (a) a permanent resident alien or (b) serving on active duty in the U.S. armed forces.

2.2. End dual citizenship, which should be anathema in a republic. Automatically withdraw U.S. citizenship from any person found to hold foreign citizenship, if the person, after a reasonable grace period, has not voluntarily renounced that citizenship. But do not penalize anyone who voluntarily renounces his U.S. citizenship.

2.3. Reform U.S. immigration laws to secure the borders, protect national security and the public health, and improve the quality of authorized immigration. Specifically: 1) maximize legal immigration by high-skilled workers likely to assimilate, 2) minimize immigration by persons unlikely to assimilate, 3) halt immigration by any class of persons whose presence in large numbers would disturb the nation’s political or economic tranquillity, and 4) stop impressing employers into the service of our immigration agencies.


Explanation

The purpose of this plank is to clarify who is and who is not a U.S. citizen, a basic question in any republic, and to diminish the large, unchecked wave of unauthorized entrants that, since the 1960s, has disturbed our economic and political tranquillity.

The short version of my argument is this: While we are a nation of immigrants, and should continue to welcome immigrants, we should also secure our borders for reasons of public health, safety, and security. And at the top of our immigration reform checklist must be a restoration of consent-based citizenship, going forward. The current policy of automatic ‘birthright’ (i.e., birthplace) citizenship greatly exacerbates the United States’ illegal immigration problems, and is unconstitutional. There is no constitutional right to citizenship for the children of sojourners and unauthorized entrants. Restoring the Founder’s wise, principled, and prudent policy of consent-based citizenship will, paradoxically, reduce the need for border walls and draconian immigration enforcement.

1. The True Principle: Mutual Consent

In our republic, citizenship is based on consent. In a monarchical system, it is based on subjection. The two principles are opposites, the first embracing the ideas of equality and freedom, the second the ideas of slavery and servitude. In the monarchical system, the king is sovereign and the people are his subjects. In the republican system, the whole people is sovereign, and every citizen shares in the sovereignty. No man is subject to any other. Each citizen is a little sovereign, as it were. The American Revolution effected a shift from the monarchical to the republican form and therefore permanently altered the basis of American citizenship from one of subjection to one of consent. All of our law on this subject flows from this initial fact.

Unfortunately, much confusion about the nature of U.S. citizenship has arisen in our law, because the original Constitution did not speak to the issue of citizenship in plain terms and, where it spoke indirectly, it used terminology from the common law (e.g., ‘naturalized,’ ‘natural born citizen’) that could be read as a continuation of, rather than as a radical break with, the monarchical form.

The Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War, defined citizenship in the Constitution for the first time. The first section of the Amendment declares that, to be a U.S. citizen, one must either be “born or naturalized in the United States, and subject to the jurisdiction thereof.” This phrase has been misconstrued for many decades now as meaning that any person born on U.S. soil is automatically a U.S. citizen. But that overlooks the phrase “and subject to the jurisdiction thereof,” which modifies and narrows the phrase “born or naturalized in the United States.” The correct reading is that a person, in order to be regarded as a U.S. citizen at birth, must be subject to the jurisdiction of the United States at birth. Being born on U.S. soil is not enough.

Since a child cannot freely choose his citizenship, his citizenship is presumed to follow that of his parents, until changed with the consent of both the child and the government. It flows from this that the child of a United States citizen is granted U.S. citizenship automatically, even if born abroad and the child of a foreigner is only granted U.S. citizenship after seeking and receiving naturalization by Congress. Both the child and the government are free. The governing principle is consent. (I am here describing the principle that underlies our policy, not the actual policy as currently implemented.)

The consent must be mutual. A person may refuse his consent, or withdraw it by renouncing his citizenship. Subject to the limitations of the Constitution, Congress may refuse its consent, or withdraw it, for example, in retaliation for treason.

It follows from all this that a mother cannot confer U.S. citizenship on her child simply by giving birth to that child within our borders. The child’s citizenship is determined, not by the spot on which his mother happened to go into labor, but rather by the free, mutual consent of the child and the government, with the child being presumed to choose to adopt the same citizenship as one or both parents. And from this it follows that sojourners and unlawful entrants have no power to come here and make new citizens without our consent.

Opposite of mutual consent, as we’ve seen, is perpetual allegiance. So-called birthright citizenship (I prefer to call it birthplace citizenship) is based on the feudal notion of subjectship, which is always presumed to be perpetual. Under that model, a child’s citizenship is determined by the soil upon which he is born and attaches to him until absolved by the government. He cannot renounce it unilaterally. If you are born in the king’s realm, you are the king’s subject. You owe the king your allegiance as a debt of gratitude. You must remain the king’s subject until he, at his sole pleasure, chooses to absolve you of your allegiance. You cannot unilaterally renounce that allegiance without offering insult to your sovereign, which is treason. For us, by contrast, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” (U.S. Constitution, Article III.)

So here are two opposing principles: feudal allegiance and republican consent—slavery and freedom. Our Constitution embraces freedom. As the lawyers would put it, we follow the rule of jus sanguinis not jus soli. In the soil-based model, consent is unilateral on the part of the government. The individual has no reciprocal right to choose. In the consent-based model, consent must be bilateral. Both parties must remain free to choose. The proof that American principles have always reflected jus sanguinis and never jus soli is that, from independence onward, we have always been allowed to renounce our citizenship without incurring the charge of treason. Therefore, any questions that arise in our citizenship laws should always be considered in the light of, and any disputes should be resolved in favor of, jus sanguinis. We should have a presumption in favor of freedom.

2. Citizenship under the Fourteenth Amendment

What does it mean to be “subject to the jurisdiction” of the United States? Some have argued that it means merely “being subject to its laws.” But that’s not right. The meaning is narrower. It means ‘owing it political allegiance.’ Foreign tourists and diplomatic personnel are subject to our laws during their stay here, but they do not owe us their political allegiance. Permanent resident aliens, by contrast, due to the freely chosen permanency of their residence among us, do owe us their allegiance, even though they are not citizens and cannot claim all the rights and privileges of citizenship.

How do we know whether a person owes political allegiance to the United States? By asking two questions: 1) Has the United States extended an offer of citizenship to this person by law? 2) Has this person accepted that offer? If the answer to both questions is yes, the person is a U.S. citizen and owes the United States his allegiance. He is “subject to the jurisdiction thereof.”

But what if the person is an infant, and therefore unable to accept the offer? Then, an additional question must be asked: 3) Do either of the child’s parents hold U.S. citizenship or status as a permanent resident alien? If the answer is no, then the child is not a U.S. citizen and the analysis is done. (It doesn’t matter on whose soil the child was born.) If the answer is yes, then yet another question must be asked: 4) If neither of the child’s parents is a U.S. citizen, but at least one is a permanent resident alien, was the child born on U.S. soil? If the answer is yes, then the child is a U.S. citizen under the Fourteenth Amendment. He was born in the United States and at least one of his parents is subject to the jurisdiction thereof. If the answer is no, then the child is not a U.S. citizen, unless Congress has by law extended to persons of his class an offer of citizenship. If the child isn’t a citizen, then he doesn’t owe the United States his political allegiance and therefore he cannot enjoy the rights and privileges that come with American citizenship.

3. ‘Natural Born Citizen’

Because every U.S. citizen is a sovereign, the spot on which one is born is irrelevant to whether one is a “natural born citizen.” The child of a U.S. citizen is always a “natural born citizen,” even if born abroad, for the same reason that, under British law, the child of the monarch or a royal ambassador is always a “natural born subject,” regardless of the child’s place of birth. (Randy Barnett explains this principle well here.) So when the Constitution speaks of a “natural born” citizen, in the provision requiring that the president be one, it means only that, to be eligible to be president, you must be a U.S. citizen and at the time of your birth one of your parents was a U.S. citizen, which is another way of saying you did not acquire your citizenship via naturalization. There is a lingering question whether “natural born” status can be conferred only by way of one’s father, since that was the practice of most nations before the Revolution. But my view is that that ancient custom, which was not universal, was rendered obsolete by the Revolution. Our republican Constitution does not make “natural born” status dependent on the sex of the citizen-parent.

4. Congressional Power

The power granted to Congress to naturalize foreigners as U.S. citizens (granted in Article I, Section 8, Clause 4) is very broad. Congress may extend offers of citizenship to any foreigners it wishes, although presumably this only applies to persons who actually reside within our borders. Famous examples of groups offered citizenship by statute include members of American Indian tribes and people living on land purchased by the U.S. government from a foreign power, such as the Louisiana Purchase and the Mexican Cession.

Congress could also, if it wanted, extend an offer of citizenship to any foreign child who happens to be born on our soil. It has never done so. And in my opinion, it should not do so, with two exceptions: 1) the children of permanent resident aliens, and 2) foreigners serving in our armed forces—that is, people who have signaled by their actions that they sincerely want to be ‘one of us’ in the sense of sacrificing for and assimilating themselves to the American people. People who by their actions have made clear that they are ‘all in’ on becoming Americans. The current policy of automatically extending citizenship to foreign sojourners and unauthorized entrants serves only to encourage foreign nationals to come to our shores simply for the purpose of conferring U.S. citizenship on their children. No sensible republic has such a policy, and, to my knowledge, the United States is unique in having one. We should not codify it.

5. A History of U.S. Citizenship

As we have seen, prior to the ratification of the Fourteenth Amendment in 1868, citizenship was not defined in the Constitution. The practice, carried over from colonial times, was to assume that, if you were born on U.S. soil, you were a citizen of the state in which you were born. But this was not jus soli. It was a rule of convenience. States could and did deny citizenship to some who were born on their soil: free blacks, for instance. The American Revolution had of necessity effected a shift from jus soli to jus sanguinis, even if the actual practice did not appear to change very much.

Prior to the Fourteenth Amendment, to be a citizen of the United States one had to be a citizen of a state. Although Congress had an explicit power to create “an uniform rule of naturalization” (Article I, section 8), states still set their own policies to a large extent. As we’ve seen, some of them could and did exclude free blacks from citizenship, or from some of the rights and privileges thereof.

In Dred Scott (1857), the Supreme Court ruled that blacks could never be citizens of the United States. The first sentence of the Fourteenth Amendment was framed precisely to overturn that part of Dred Scott. It provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This ensures national (and therefore state) citizenship to all persons, regardless of race or color, who are “born or naturalized in the United States, and subject to the jurisdiction thereof.” With this change, three things become true: 1) citizenship policy is governed primarily by national rather than state law, 2) all freed slaves and their descendants born in this country are citizens, and 3) the descendants of citizens born abroad may be extended citizenship as a general policy.

For the first three decades under the Fourteenth Amendment, the Court interpreted the Citizenship Clause correctly. The most prominent example of this is Elk v. Wilkins (1884). In this case, a member of an American Indian tribe who had renounced his tribal citizenship in favor of U.S. citizenship was found to have no right to claim the latter unilaterally. Although he was born on U.S. soil, he was born as a member of a tribe, and therefore did not have U.S. citizenship. He could only become a U.S. citizen with the consent of Congress, which at the time was not forthcoming. (Congress did extend an offer of citizenship to some American Indian tribes, but not to his. In 1924, it used its naturalization power to extended the offer of citizenship to all American Indians, and that policy remains in place.) What the Elk case shows is that, as late as 1884, the nation’s highest court assumed our policy was not one of just soli, that persons subject to a foreign power (as the American Indian tribes were rightly considered to be) were not citizens, even when born on our soil. The Court was confirming that our policy was jus sanguinis.

6. The Legacy of Wong Kim Ark

But then in 1898, in United States v. Wong Kim Ark, the Court seemed to change position. This famous decision has always been understood as imposing a policy of birthplace citizenship for everyone born on our soil, including sojourners and unauthorized entrants, with the exception of foreign diplomats and their families and foreign invaders and occupiers while on our soil. But Wong does not actually determine the question of birthplace citizenship with respect to the children of illegal immigrants. It only concerns the children of legal ones. The parents of Wong Kim Ark were permanent resident aliens in the U.S. who emigrated to the United States but were barred by treaty from ever becoming citizens. They were, in effect, non-temporary migrant workers or permanent resident aliens. Their son had been born on U.S. soil. They traveled abroad and came back, but the son was barred readmission under the Chinese Exclusion Act. Was he a U.S. citizen by virtue of his birthplace? The Court said yes, citing the feudal policy of jus soli.

In the Court’s 6-to-2 decision in Wong, Justice Horace Gray could be viewed as overruling his own earlier opinion in Elk. He interprets the words “subject to the jurisdiction thereof” broadly to mean “subject to the laws thereof.” The two Justices in the minority, however, interpret those words more narrowly to mean “owing to the United States their political allegiance.” Although the minority were outnumbered by the majority 3 to 1, their position is the correct one. For three reasons: 1) textual logic, 2) republican principles, and 3) legislative history.

1. Textual logic. If the majority’s reading were correct, the phrase “and subject to the jurisdiction thereof” would be superfluous. All who are in our country at any given moment are of course subject to our laws. That doesn’t mean, however, that they are all subject to the jurisdiction of our government or must render it their political allegiance. Foreign visitors, foreign diplomats, and permanent resident aliens are all subject to the laws of the United States without being subject to the jurisdiction thereof (although the last group may be viewed as having voluntarily accepted that jurisdiction as a condition of being allowed to remain in the country).

2. Republican principles. In Wong, Chief Justice Melville W. Fuller’s dissenting opinion argued that birthright citizenship, in the words of Fourteenth Amendment expert Ed Erler, “had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment.” (Source: Heritage Foundation WebMemo #925, December 1, 2005.) On this critical point, Fuller was right and the majority wrong. When in doubt, we should interpret the Constitution in light of the principles of the American Founding. The feudal notions of birthright subjectship and perpetual allegiance are alien to the principles of free republican government. We forsook feudal principles in securing our independence, as the Declaration of Independence makes abundantly clear. In securing our independence, we ceased to be subjects and became citizens.

3. Legislative history. Even if you don’t agree with my first two points, there can hardly be a doubt about what the Citizenship Clause really means, when you look carefully at the relevant legislative history. The bill’s sponsors and supporters explained what it means in terms sufficiently plain not to be misunderstood.

For example, supporters were asked in debate whether the clause conferred citizenship on American Indians? They answered: No, because Indians are subjects of an alien (if dependent) power, namely, their tribe. This same principle, of course, would rule out foreigners subject to a foreign power. Senator Reverdy Johnson:

Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States. … [T]he amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.

(Source: Congressional Globe, 1st Session, 39th Congress, May 30, 1866, part 4, p. 2893.)

By “subject to the authority of the United States,” Senator Johnson obviously means what he said in passing a couple of sentences earlier: “not subject to some foreign Power.” Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, confirms this view: “What do we [the committee] mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.” [Ibid.] Note the word “allegiance.” And at another point in the same debate Trumbull defines it as “subject to the complete jurisdiction of the United States.” [Ibid.] Note the word “complete.” But even more dispositive is the statement by Senator Jacob Howard, the actual author of the Citizenship Clause:

Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

(Source: Ibid., p. 2890.)

That should settle it. Persons born in the United States who are foreigners are not citizens of the United States. Who are “foreigners” born in the United States? The children of foreigners, obviously. How do we know the parents are foreigners? Because they are not subject to the jurisdiction of the United States. They are, rather, the subjects or citizens of “some foreign Power.”

The reader will notice I have inserted the word “or” in the second sentence of this quotation. I have made this correction to save the sentence from absurdity. I assume the congressional stenographer either did not hear the word, or inadvertently omitted it, or that Senator Howard failed to utter it. He must have meant it. Without it, he would be saying that only foreigners here as foreign diplomats, and their families (and presumably by extension foreign occupiers), are exempt from owing us political allegiance, all other foreigners, no matter how brief their sojourn, and no matter how unlawful their stay, are to be treated as if they were American nationals. If that had been his meaning, I’d think some objections would have been heard and the point debated. Instead, what we see is a discussion about whether the language would make citizens of the children of permanent resident aliens, such as the Chinese of California and the Gypsies of Pennsylvania. The controversial answer to these questions was, yes, the children of permanent resident aliens would be citizens, because such aliens are ‘subject to the jurisdiction of the United States’—they have accepted such jurisdiction, even though they have not been naturalized. To narrow the definition of “foreign” all the way down to just diplomats and their families (and by extension occupiers) strains credulity to the breaking point. The more reasonable interpretation is that, when Howard says “persons … who are foreigners, aliens,” he means all persons who are foreign nationals, including sojourners, and certainly including unauthorized entrants. The fact that foreign occupiers are consistently excluded from the possibility of being citizens should tell us what was intended with respect to unauthorized entrants: they are not citizens or even lawful residents. Their children are foreigners, too, unless, of course, one of their parents is a U.S. citizen.

Now, confusion has arisen in reading the the legislative history of the Citizenship Clause—understandable confusion—because in 1866 almost no one was actually excluded from the United States. Our borders were practically open. There was hardly an unauthorized entrant to be seen. (The Chinese Exclusion Act was more than a decade in the future.) Illegal immigrations wasn’t thought of as a problem worthy of discussion in this context. So when a senator in debate seems to embrace or reject the idea of birthplace citizenship for all (including Chinese immigrants in California and Gypsy immigrants in Pennsylvania), what he is really doing is taking a side on the question of whether consent-based citizenship extends to the children of permanent resident aliens. He doesn’t focus on how to treat the children of illegal aliens, because there are virtually no illegal aliens. Given that the Citizenship Clause was ratified, we must assume that the American people embraced the idea of citizenship for the children of permanent resident aliens, and therefore that the Court was, in Wong Kim Ark, essentially correct with respect to them—although that doesn’t mean that we follow jus soli. When we read the congressional transcripts with that understanding in mind, the intention of the Amendment’s framers becomes clear. They wanted to make citizens of both the children of citizens and the children of lawful permanent residents. They didn’t intend to make citizens of the children of foreigners who are in the country temporarily, and certainly not the children of those here illegally or as occupiers. In sum, in ratifying the Fourteenth Amendment, the American people did not guarantee citizenship to the children of sojourners and unauthorized entrants.

7. The Clincher

Those who wish to really explore the birthplace citizenship question should carefully compare the reasoning of legal scholars John Eastman and James Ho. Their essential difference is this: Eastman contends that we follow jus sanguinis, Ho that we follow jus soli. What clinches the argument for me in favor of Eastman is that the Supreme Court in Wong did not follow jus soli to its logical conclusion, namely, that we must regard as traitors those who voluntarily renounce their U.S. citizenship. It seems the Court thinks jus soli only applies partially or selectively. Well now. If jus soli doesn’t apply fully, then why must we assume it applies at all? I think the burden of proof is on the advocates of jus soli to show that it is the intended policy of those who framed and ratified the Fourteenth Amendment. Given how strongly the legislative history favors jus sanguinis, I think they cannot meet this burden. At any rate, so long as scholars continue to dispute the question, we should break the tie in favor of jus sanguinis and consent. We are, after all, citizens not subjects. And remember, Congress has the power to establish a policy of birthplace citizenship by statute in the future, if it wanted. Personally, I hope it never does. In our republic, citizenship is and should be based on consent.

8. Some Practical Questions

Question: Since the Wong ruling, our policy has effectively been one of birthplace citizenship. Should we change that policy? And if so, how?

Answer: Wong doesn’t really speak to the status of illegal immigrants’ children. But clearly we need to change or clarify the current policy. We should restore the constitutional policy of consent-based citizenship. This can be done by statute or by executive action, and of course, as a last resort, by constitutional amendment. The reason why the president can do it by executive action is that the Immigration Act merely quotes the language of the Citizenship Clause verbatim. He would be merely implementing the law as written. But if we want to truly settle the legal question once and for all, we will need a constitutional amendment.

Question: What about permanent resident aliens and foreigners serving in the U.S. military? When their children are born on our soil, should they be treated as aliens or as citizens?

Answer: Under the principles of consent and jus sanguinis, it’s clear they should be treated as citizens, and that their parents should be regarded as quasi U.S. citizens. These persons have, in effect, chosen to be “one of us”—to give the United States their political allegiance.

Question: Must we nullify or revoke the citizenship of aliens who have obtained U.S. citizenship under the Wong Kim Ark policy?

Answer: No. The return to consent-based citizenship should be prospective, applying to all future births, not to past ones. Depriving current citizens of their citizenship would be unjust and imprudent. Congress should confirm their citizenship retroactively by statute.

9. Immigration Reform

My personal immigration reform plan, for what it’s worth, is to have “a high wall and a wide door.” I say, welcome the stranger, but don’t go overboard. I would do all of the following things: 1) Restore consent-based citizenship, as defined in this plank. 2) Secure our borders. 3) Deport illegal aliens. (Yes, all of them. But no, we don’t have to round them all up. Most will leave voluntarily, once they conclude that the deportation policy is being enforced. Some will seek naturalization, which is fine. Deportation, by the way, is current law. There is nothing new or radical about it. It only seems radical, due to the mistaken perception that it isn’t our current policy.) 4) Expand legal immigration, at such time as the public clearly supports doing so. (At present, a slight majority of Americans would prefer to reduce legal immigration. So as a prudential matter, I would leave things as they are.) 5) Prefer immigrants with high skills who believe in democratic self-government and seem likely to assimilate. 6) Keep out immigrants who pose a threat to public health and safety, or national security, or who seem unlikely to assimilate, or who, if admitted in too-great numbers, would disturb our political and economic tranquillity. (I’m thinking of radical communists and radical Islamists, to give just two examples. As a practical matter, rather than profile people individually, it may be best to prohibit or restrict immigration generally from specific countries known to have high numbers of such persons, making reasonable exceptions, of course.) 7) Strictly enforce visa programs with close monitoring to detect overstays and deport overstayers. (For example, by requiring visitors to check in with the government online on a regular basis, using various means to determine their real identity and location.) 8) Stop impressing employers into the service of our immigration agencies. (It’s an unnecessary burden on the private sector.) 9) End wealth distribution (which is a magnet for some immigrants). And finally: 10) Unleash robust economic growth (so there are plenty of jobs for all, including immigrants).

What would happen? Illegal immigrants would exit the country, some would go home forever, some would get in line to become legal immigrants, some would secure U.S. citizenship. The immigration issue would be resolved. Tranquillity would be restored.


Constitutional Amendments

This plank does not require any constitutional amendments, unless the Supreme Court proves recalcitrant, in which case a constitutional amendment clarifying our citizenship policy will presumably be necessary.


Benefits

Will promote political and economic tranquillity.

Will permanently resolve the U.S. immigration issue.


Summary

Plank 1     Contents     Plank 3

Revised: September 25, 2017.

First published: June 21, 2013.

Author: Dean Clancy.

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