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. Amend the Immigration Act to restore and affirm the Constitution’s default policy of consent-based citizenship, and thus bring the practice of granting soil-based or birthright citizenship into conformity with the original public meaning of the citizenship clause of the Fourteenth Amendment. Specifically, (1) grant United States citizenship automatically to each of the following descriptions of person, but only to them: (i) the natural child of a U.S. citizen, whether born on U.S. soil or abroad (unless the citizen-parent has never resided in the United States), and (ii) the natural child, born on U.S. soil, of a non-citizen who is a lawful permanent resident in the United States (green card holder) or who is serving honorably in the U.S. armed forces; and (2) cease granting automatic U.S. citizenship to the child, born on U.S. soil, of a tourist or sojourner (visa holder) or unauthorized entrant. Effectuate this policy prospectively, by legislation, without depriving any existing citizen of his or her citizenship. To the extent legally permissible, do it by executive action. If the Supreme Court gets the issue wrong, fix it by legislation, invoking section 5 of the Fourteenth Amendment, or as a last resort by constitutional amendment.
2.2. To promote undivided loyalty and wholehearted commitment to the well-being of our republic, amend the Nationality Act to disallow and discourage dual citizenship. Automatically withdraw U.S. citizenship from any adult verified as holding dual foreign and American citizenship, if that person, after formal notice and a reasonable grace period, has not relinquished the foreign citizenship. But do not penalize anyone who, for whatever reason, voluntarily renounces his U.S. citizenship. Do not impose citizenship relinquishment fees of any kind.
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 persons who are likely to assimilate and who can offer useful talents, skills, or backgrounds, (2) halt or greatly reduce immigration by any class of persons who are unlikely to assimilate or whose presence in large numbers would disturb the nation’s social, political, or economic tranquillity, including by reducing immigration from specific countries or regions, and (3) stop impressing employers into the service of our immigration agencies. Instead, (4) build and maintain effective physical barriers to prevent unauthorized border crossings, (5) intercept, detain, and promptly deport unauthorized border crossers and visa overstayers, (6) require temporary visitors to check in with immigration agencies on a regular basis, and (7) indefinitely exclude or detain persons claiming political asylum or refugee status until their claims are finally resolved. In doing these things, take care to safeguard the mental and physical well-being of detainees, especially children.
Comments
The purpose of this plank is to restore and reinvigorate American citizenship in light of our founding principles. It tries to do this in three ways. First, by clarifying the meaning of citizenship. Who is and who is not a citizen is a basic question in any republic. Indeed, ‘the question of citizenship in a nation is of the most vital importance … a precious heritage … an inestimable acquisition.’ /1
Second, by reviving the traditional but seemingly lapsed policy of discouraging dual citizenship, in order to reinvigorate the value of American citizenship and strengthen citizens’ commitment to our country.
And third, by adopting sensible immigration reforms that reflect our founding principles and protect our common interests.
At the intersection of these goals is the contentious issue of birthright citizenship, the automatic granting of citizenship to everyone born on U.S. soil other than the children of foreign diplomats.
The bulk of this discussion will make the case for why we should amend that policy, and why we do not need a constitutional amendment to do so.
We are a nation of immigrants, and we should welcome immigrants, but we should also secure our borders and define who is a citizen in keeping with our national principles and our national interest. This is common sense. No sane nation would do otherwise.
[Update January 20, 2025: Today President Trump issued an executive order that essentially implements the first recommendation of this plank and appears to be based on similar reasoning. If the Supreme Court takes due care in examining the legal and historical evidence, it will uphold the order and restore consent-based citizenship. And if it does not, Congress should do so. In fact, Congress should do so in any event.]
The Basic Argument
All men are created equal. That is the starting point of the American experiment. And from it many things logically flow. Including the nature of American citizenship.
Citizenship is defined in our Constitution, in the Fourteenth Amendment. The words used to define it establish a limited form of birthright citizenship. If you’re born on American soil, you are an American citizen, provided you are also ‘subject to the jurisdiction’ of the United States. But over the past half-century, a legal consensus has formed around an interpretation of that phrase, ‘subject to the the jurisdiction,’ that is extreme and harmful.
On one side of the debate are those whom I’ll call common law advocates. They hold that the language of the Citizenship Clause carries over almost entirely from English common law and should be interpreted according to that tradition, with the result that anyone born on our soil is automatically a U.S. citizen, with the narrow exception of the children of foreign sovereigns, diplomats, and occupiers.
On the other side are those whom I’ll call natural law advocates. They assert that common law is not the source of our law in this area, although we do continue to use terms and concepts borrowed from that tradition. In their view, ‘subject to the jurisdiction’ means ‘owing complete political allegiance,’ and therefore the Clause excludes, not just foreign sovereigns, diplomats, and occupiers, but also foreign tourists, sojourners, and unlawful entrants.
The natural law advocates have the better of the argument.
In a republic founded on the principle that all men are created equal, citizenship must be based on consent, that is, the mutual and reciprocal consent of the individual and of the government.
The common law version of birthright citizenship is based on feudal principles, on the idea that anyone born in the king’s realm is the king’s subject, regardless of the citizenship of his or her parents, with exceptions only for a very small subset of foreigners, namely, sovereigns, diplomats, and occupiers.
Importantly, in feudalism, subjectship arises from the principle of perpetual allegiance, the idea that you owe the king a debt of gratitude for his protection, in the form of your perpetual subjection, which may only be absolved at his pleasure. Such a policy may or may not be a good idea, but it is not rooted in consent.
Feudal law, rather, is rooted in obligation, the obligation of a vassal to his lord. It arises from a form of land ownership. The vassal holds his land in feud or fief from his lord in exchange for service or labor. In England, historically, the polite fiction was that the king owned all the land in the kingdom. Everyone was, as it were, his tenant. Birth on his land made you his vassal. You owed him your allegiance, since you are under his protection. And on the other side of the coin, if you renounce your citizenship without the king’s permission, you commit treason.
With the American Revolution, the nature of citizenship changed because it had to. Our constitutional principles had changed. We threw off monarchy and became a republic. In a republic, citizens are free and equal. Notions of subjectship and perpetual allegiance are out of place.
Natural law assumes freedom. We are free to change our citizenship, regardless of what the government thinks, so long as we are competent adults.
From the very beginning, American law has had no penalty for renouncing one’s citizenship. It’s not a crime, it is a right! An inalienable right.
The actual practice of most nations involves some mixture of the two ideas of soil-based and consent-based citizenship. Pure birthright citizenship of the English feudal variety is no longer followed anywhere, to my knowledge, not even in England.
But everywhere the rules do lean to one side. Most nations lean toward the natural law. A minority of nations rely on something more like the common law. Strangely, over the past half century, we in the United States, of all people, have basically revived the feudal practice, for no obvious or compelling reason. And it has caused havoc.
Even in colonial times, there were exceptions to the common law approach. British colonists in North America adapted the common law to local circumstances. For example, the children of slaves were not automatically granted citizenship. Nor were the children of free blacks, nor of Native Americans. Indeed, Indians were never regarded as citizens, as a general rule, even when they were born within the limits of the colony. They were treated as foreigners, while blacks were generally treated as something like permanent resident aliens at best.
After the Revolution, citizenship policy remained under the control of the former colonies, now states. Their practices did not change much on the surface. National citizenship in the British empire became national citizenship in the American republic. And while Congress was granted a new power to provide ‘an uniform rule of naturalization,’ binding on all the states, citizenship in the new nation still followed state citizenship, not the other way round. You had to be a citizen of a state before you could be a citizen of the United States. It was not Congress but the states who decided who is and is not a citizen.
Prior to the Fourteenth Amendment, the Constitution did not define U.S. citizenship. It did, however, employ some basic terms found in the common law, such as ‘naturalized’ and ‘natural born.’ A naturalized citizen is a foreigner or non-citizen who has acquired citizenship through a legal process. A ‘natural born’ citizen is one whose citizenship comes to him by birth, rather than through naturalization. From the beginning, it was not the soil on which you were born that mattered. What mattered was the citizenship of your parents.
The Naturalization Act of 1790 provided that ‘the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens, provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.’
Under this rule, a child born abroad to a citizen-parent is equally as ‘natural born’ as a child born to a U.S. citizen on U.S. soil. The child is not ‘automatically naturalized.’ He is ‘natural born’ from the very start. He acquires his citizenship from his parent, not the soil.
In 1868, the Fourteenth Amendment changed our citizenship policy, but not its underlying principles. Its first sentence, the Citizenship Clause, reads:
‘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.’
What does this mean? For on thing, it means the job of deciding who is and is not a citizen now belongs to the national government, not the states. And more importantly, it defines citizenship in the actual text of the Constitution for the first time. The Amendment sticks with the familiar term, ‘born or naturalized in the United States.’ Thus, it clearly recognizes a form of birthright citizenship. But it is not the feudal or common law form. It is an American, republican form. It connects citizenship to allegiance (‘and subject to the jurisdiction thereof’), but that allegiance is not perpetual. Renouncing one’s citizenship is not a crime, but rather a right. In short, citizenship is granted automatically to everyone born on U.S. soil to American parents. Both soil and parentage are part of the formula.
Ah, but who are American parents? They are parents who owe their political allegiance to the United States. They are ‘subject to the jurisdiction thereof.’ Including naturalized citizens.
The Amendment makes citizens of freed slaves and free blacks. And indeed, that was the primary reason for proposing the Amendment. The drafters wanted to overturn the Dred Scott decision (1857) in the wake of Emancipation and to secure the rights of black Americans against the hostile policies of the former slave states.
The Clause extends citizenship to lawful permanent resident, that is, aliens who, although foreign nationals, have their permanent legal residence within the limits of the United States. The Clause’s drafters made this very clear during the 1866 congressional debates.
Curiously, ‘subject to the jurisdiction thereof’ does not include Native Americans. They fit the description of permanent resident aliens, they are born on U.S. soil, and they are generally subject to American law. Yet they are not made citizens by the Amendment. Why? Because they owe their political allegiance to their tribe, which, legally speaking, is a foreign power. Therefore, unlike blacks, Indians are excluded from American birthright citizenship. The framers of the Clause were clear about this, too.
Now we come to the hard cases: temporary foreign visitors and illegal aliens. Are they included? The text does not specifically mention them, and the congressional debate transcripts are frustratingly silent about them. But the answer is that they, like Native Americans, are excluded, and for the same reason: they are not politically ‘subject to the jurisdiction’ of the United States.
While frustrating, the debates’ silence on this issue is understandable, since the concept of ‘illegal alien’ barely existed in 1866. Our borders were essentially open. The states generally encouraged free and open immigration.
It is only in 1875, after the Amendment’s ratification, that general restrictions begin to come in, on the national level, and the concept of an ‘illegal alien’ comes into view. In that year, Congress barred aliens from entering the United States who were convicts or prostitutes.
It’s true temporary visitors are subject to the ‘jurisdiction’ of the United States in a limited sense. They must obey our laws while here. Englishmen must drive on the right, for example. But that does not make them subject to our political jurisdiction.
So why do the common law advocates claim that ‘subject to our jurisdiction’ means, and has always meant, merely ‘subject to our laws’ in the ordinary sense? They hang their whole case for it on two legal pegs: an 1898 Supreme Court ruling (Wong Kim Ark) and a single sentence in an 1866 congressional speech transcript. But those pegs are weak. Neither can hold the weight of the historical evidence. Read carefully, both the ruling and the transcript leave the default policy of consent-based citizenship undisturbed.
Admittedly, the majority opinion in Wong does embrace the common law view. It claims the phrase, ‘and subject to the jurisdiction thereof’ means merely ‘and subject to the laws thereof,’ in the sense of ordinary local law. But this is a weak peg because both the holding and the opinion only speak to the question of whether the child of a permanent resident alien parent is entitled to birthright citizenship. Foreign tourists, sojourners, and unlawful entrants are left untreated.
Even the common law advocates admit this much. They just prefer to assume that those foreigners, too, are entitled to birthright citizenship, because, in their view, the common law requires it and has been constitutionalized.
But wait. If ‘jurisdiction’ and ‘laws’ are interchangeable, then ‘subject to the jurisdiction thereof’ is redundant of ‘born or naturalized in the United States.’ Why would the Constitution say the same thing twice, in the same place?
Isn’t it more natural to assume the jurisdiction language modifies and narrows the birthright language? If so, then the natural reading is that birthright citizenship is limited to those who owe us their political allegiance, as opposed to merely being subject to our local laws while physically present among us.
Temporary foreign visitors are not subject to all our laws. We do not ask a foreigner who is visiting his relatives in America to pay income tax. Nor do we require a foreign businessman who is here briefly for a meeting to report for jury duty or register for the draft. Why not? Because he is here only temporarily and is politically subject to a foreign power.
The Clause says that citizens of the United States are also citizens ‘of the State wherein they reside.’ This assumes the citizen is ‘residing’ in a state. Surely, this means legal residence, or what the lawyers call ‘domicile,’ meaning the place where you exercise your political rights. A tourist or unlawful entrant does not ‘reside’ in a state politically. Again, that is why we don’t require him to register on the local tax, voter, jury, or militia rolls.
If ‘jurisdiction’ excludes only foreign sovereigns, diplomats, and occupiers, then why not say that explicitly? And if the answer is ‘Because those exceptions have always been recognized in English common law, and therefore we don’t need to mention them,’ then why bother to make an exception? Why bother to add, ‘and subject to the jurisdiction’?
The answer is: to exclude American Indians. If they are not excluded in some explicit way, they are included. And what applies to American Indians applies with even more force to foreign visitors.
The common law advocates cannot eat their cake and have it. Either the jurisdiction phrase is redundant or it is not. And if it is, then Indians are citizens under the Fourteenth Amendment. And if it is not, then foreign visitors are not citizens under the Fourteenth Amendment. There is no way around this.
A key fact weighing in favor of the natural law view is the Civil Rights Act of 1866. It was penned by the same men who penned the Fourteenth Amendment and at almost the same time. It came into effect two months before the debates on the Fourteenth Amendment began. Indeed, the Amendment was proposed primarily to place the Civil Rights Act in the Constitution, beyond the reach of future congresses. (Additionally, concerns had been raised that the Thirteenth Amendment, abolishing slavery, was not a sufficient basis for enacting a federal civil rights law.) The first substantive sentence of the Act declares:
‘All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.’
Aha. ‘And not subject to any foreign power.’ There it is, right in front of us.
In debating the proposed Amendment, the drafters were asked about the exact meaning of the phrase, ‘subject to the jurisdiction thereof.’ They answered with phrases like ‘not subject to any foreign power’ and ‘not owing allegiance to anyone else.’ Which, of course, is how they phrased it in the Civil Rights Act. Incidentally, they reenacted the Civil Rights Act in 1870, unchanged, which strongly suggests they saw no difference between the meaning of the Citizenship Clause and the meaning of the citizenship provision of the Civil Rights Act, despite their different wording.
Now let’s turn to the second weak peg, the single sentence in the congressional debate. It was uttered by Senator Jacob Howard, the actual draftsman of the Citizenship Clause. It appears in the transcript thus:
‘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, 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.’ (Congressional Globe, 39th Congress, 1st Session, p. 2890.)
Is Howard speaking here only about foreign diplomats? Or is he listing three separate groups: foreigners, aliens, and foreign diplomats? The more reasonable interpretation is that he is rattling off a list. The burden of proof, I think, is on those who say otherwise.
In 1924, Congress offered citizenship to American Indians. If ‘subject to the jurisdiction’ means only ‘subject to the laws,’ then Native Americans were all made automatic citizens by the Fourteenth Amendment in 1868. Why would Congress go to the trouble of formally granting them citizenship half a century later, in 1924?
The answer is: Because the Fourteenth Amendment does not make them citizens. Non-citizen Indians are not ‘subject to the jurisdiction of the United States.’ They are subject to the jurisdiction of their tribe, a foreign power.
This explains why ‘subject to the jurisdiction’ is not mere surplusage. It is there for a reason. It is there for to exclude all persons who owe their political allegiance to a foreign power. And that includes more than just foreign diplomats.
In 1866, there was still a category of persons known as an ‘Indians not taxed,’ meaning Indians who were not citizens and who resided on reservations, beyond the limits of federal taxation. The Civil Rights Act of 1866 explicitly names them as excluded from birthright citizenship. The Fourteenth Amendment does not. But if the Act and the Amendment are trying to do the same thing, then Indians must be covered within the phrase, ‘and subject to the jurisdiction thereof.’ And in debate, the drafters confirmed that that’s the case.
Foreign visitors are subject to the jurisdiction of a foreign power. Why would the Clause treat foreigners differently (and, one might say, better) than Native Americans? The burden is on those who say it does.
Circling back to Wong, what exactly does the Clause mean with respect to lawful permanent residents? The question comes up several times in the debate, and the Clause’s drafters answer clearly: They are included. The children of permanent resident aliens enjoy birthright citizenship.
This seems strange, since resident aliens are foreign nationals. Wouldn’t the more natural reading be that they are excluded, like American Indians? Why would the drafters say over and over again that they are included? I think the answer is they viewed permanent resident aliens are quasi citizens, and even more so than Indians could, at that time, be regarded as quasi citizens. Indians owe their immediate political allegiance to their tribe. Permanent resident aliens have effectively transferred their allegiance to the United States by choosing to reside in it permanently and making themselves subject to things like taxes and militia duty. They are citizens in every respect except the right to vote.
Since 1776, Americans have been free to renounce their citizenship without incurring the charge of treason. If English feudal principles remained in force, then that liberal practice would be an exception to the common law, and not a minor one. It is the sort of exception that calls the whole rule into question.
The Citizenship Clause of the Fourteenth Amendment confers birthright citizenship based, not just on soil, but rather on a combination of soil and political allegiance. And those who say otherwise bear the burden of proof.
To be sure, the natural law argument does not forbid unfettered birthright citizenship as a policy matter. Congress could adopt such a policy, if it wished. The Citizenship Clause creates a floor, not a ceiling. Congress may expand the circle of citizenship, either through its power of naturalization or its treaty power. It has done so on more than one occasion. But it has never lifted a finger to offer birthright citizenship to temporary foreign visitors. It has merely allowed that policy to grow up weed-like in the shade of Wong, uncontested.
It’s time to prune. Any questions that arise in our citizenship law should be considered in the light of the natural law principles of the Declaration of Independence. And any close questions should be resolved in favor of those principles. Our presumption should be freedom.
How Should We Reform Immigration?
What should our day-to-day immigration policies look like? First, let’s remind ourselves why those laws have become controversial. For the past half-century and more, there has been a growing wave of illegal immigration and birth tourism, a wave that has increasingly disrupted our domestic tranquillity, both economic and political. And it has not been addressed. Our laws have not been enforced. It is having negative effects on our communities and welfare systems. It is disrupting job markets. It is distorting our politics. It is affecting the census and thus the apportionment of seats in the House of Representatives and votes in the Electoral College. To confront it, I think we should not only enforce but reform our immigration laws to promote assimilation and keep out criminals, enemies, and the like. We should not close our gates. We have a wide door, and a high wall. Welcome the stranger, but don’t go overboard. In addition to the three specific recommendations of this plank, I would deport illegal aliens currently residing among us. Yes, all of them. Does that mean we must round everyone up in mass raids? No. It means we must deport those who violate our immigration laws. Most of them will leave voluntarily, once they see the deportation policy being enforced, which incidentally is current law. Some will turn around and seek naturalization, which in many cases will be a good and welcome thing. Does it mean we must separate children from their parents? No. Families can remain together voluntarily, in their own country. Now, as for that wide door. I think we expand legal immigration as soon as the public clearly supports doing so, if only for national security reasons. A growing population can defend itself more easily than a shrinking one. But it should be a population whole-heartedly committed to the country and its well-being. This is why we should discourage dual citizenship. Now, since at present, a slight majority of Americans would prefer to reduce legal immigration, political prudence would suggest that we leave it at its current level for the time being, and only change it to follow a clear shift in public opinion. But at all events, we should change the nature of immigration: we should favor immigrants who are likely to assimilate. We should give first preference to people from within our own civilization, in the sense of Samuel Huntington’s famous book on that topic — I mean people from Europe and the nations most influenced by Europe. As a practical matter, it means more immigrants from historically Christian nations and Israel and fewer from Muslim and other states that are not culturally western, regardless of their race or specific religion. This approach should not be viewed as a rejection of other cultures, but rather as an affirmation of our own. Democracy and equal rights and the rule of law are precious and fragile. We weaken them at our peril. Race is immaterial in this context. And to a large extent, so is an individual’s personal religious affiliation or commitments. What matters is cultural and political compatibility and assimilability. Just to be absolutely clear: We should not exclude people based on their race or their religion. But we should prefer people who are likely to become culturally American. To be more specific, I mean only that we should exclude people whose political principles are incompatible with our own. I am thinking of people who openly reject democracy and support some form of despotism — neo-nazis, communists, radical Islamists, sharia law enthusiasts, and others of that ilk. And I’d include absolute monarchists on the list, too. If it were within my power, I would never let any such anti-democrats come into the country permanently. I would not let them come into the country at all, except briefly as tourists or diplomats. And to minimize the risk of their entering, I’d err on the side of minimizing immigration from the places most likely to produce such people. Finally, until we get illegal immigration under control, we should reconsider our liberal policy of allowing chain migration, that is, prioritizing family members of green card holders in the legal immigration queue. Oh, and one more thing. I’d end federal welfare programs because, in their current form, they are a magnet. Instead, we should adopt policies that strengthen the nation’s economic health (as with this plan), so there are plenty of good jobs for all, including immigrants. No one would suffer needless privation. The states would provide public assistance to those who need it, as they always have. But Congress would and should get out of that business, which it had no right to get into and in which it adds no unique or indispensable value. If we did all these things, the benefits would be clear and substantial: illegal immigration would shrink to a trickle, the economy would be healthier, and we’d have a greater measure of domestic tranquillity — a stronger sense of national brotherhood ‘from sea to shining sea.’ Importantly, it would be a brotherhood based, not on religion or race, but rather on our ancient civic faith — our common creed — that all men are created equal.
Note
1/ U.S. v. Wong Kim Ark, 1898, Justice Fuller dissenting.
Constitutional Amendments
This plank does not require any constitutional amendments, unless the Supreme Court proves recalcitrant, in which case we would need a constitutional amendment clarifying our citizenship policy based on the principle of mutual consent.
Benefits
Permanently resolves the U.S. immigration crisis.
Promotes political peace and domestic tranquillity.
Revised 23 September 2017
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