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 Constitution’s default policy of consent-based, rather than birthplace, citizenship (or to put it in legal terms, go back to jus sanguinis rather than jus soli as the default policy, employing jus soli in select cases as an administrative convenience). In practical terms: 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, and ii) the natural child, born on U.S. soil, of a non-citizen who is a permanent resident alien or who is serving on active duty in the U.S. armed forces; and 2) cease granting automatic U.S. citizenship to the child of a sojourner or unauthorized entrant, regardless of where the child is born. Effectuate this policy prospectively, without depriving any existing citizen of his or her citizenship, and do it by statute (and to the extent possible by executive order) or as a last resort by constitutional amendment.
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 relinquished that citizenship. But do not penalize those who, for whatever reason, voluntarily renounce their 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 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 our nation’s social, political, or economic tranquillity (including, when necessary by reducing immigration from entire countries or regions), and 3) stop impressing employers into the service of our immigration agencies. Instead, 4) intercept, detain, and promptly deport unauthorized border crossers and visa overstayers, 5) build and maintain effective physical barriers to prevent unauthorized border crossings, 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 primary purpose of this plank is to clarify who is and who is not a citizen, a basic question in any republic. A secondary purpose is to identify practical policies that can diminish the large, unchecked wave of unauthorized entrants that in recent decades has disturbed our social, economic, and political tranquillity. At the intersection of these twin goals we face the issue of birthright citizenship, that is, the automatic granting of citizenship to anyone born on U.S. soil. Thus, this plank focuses primarily on that issue.
The short version of my argument is this.
We are a nation of immigrants, and we should welcome immigrants, but we should also secure our borders and reform our citizenship rules to protect public health and safety and to promote domestic tranquillity. This is common sense. No sane nation would do otherwise.
The U.S. Constitution neither requires nor forbids a policy of birthright citizenship, that is, a policy directing that anyone born on U.S. soil is automatically granted U.S. citizenship. (For clarity, I will hereafter refer to this policy primarily as birthplace citizenship.)
From the beginning, our federal constitution has by default assumed the opposite policy, namely, that citizenship is granted automatically to those who have at least one American parent, regardless of birthplace.
To put it in legal terms, our default policy has always been jus sanguinis, not jus soli. Nothing in the Citizenship Clause of the Fourteenth Amendment, ratified in 1868, alters that default policy.
Jus sanguinis is the natural policy for a free people. In a monarchical system, citizenship is based on subjectship, that is, on subjection to the monarch. In a republic, the only truly appropriate basis is consent — the mutual consent of both the citizen and the government. We are a republic, not a monarchy — we call it the Revolution for a reason. Therefore, our default policy is and should be jus sanguinis.
Now, to be clear, Congress does have the power to adopt a policy of birthplace citizenship (jus soli). But it is not required to do so. And it has never actually done so. And it should not do so.
Jus soli is the wrong policy for a republic. It is manifestly harming our republic. It is encouraging unlawful entry and birth tourism. It is disrupting our institutions. It is disturbing our domestic tranquillity.
Jus soli is being imposed on us through an unfortunate misreading of an 1898 Supreme Court ruling, Wong Kim Ark. Advocates of birthplace citizenship have tried to justify that misreading by pointing to the unfortunate omission of a single word in an 1866 congressional speech transcript.
To be clear, the Fourteenth Amendment does make automatic citizens of the children of permanent resident aliens, and that is a good policy. But it does not do so with respect to the children of sojourners and unlawful entrants.
So, what should we do? Congress should restore the Constitution’s default policy. It should do so by statute, if possible, and if necessary, the president should restore it by executive action. Congress has implicitly delegated that power to him through the Immigration Act, which simply quotes the Fourteenth Amendment‘s Citizenship Clause verbatim. And finally, if all else fails, we should amend the Constitution.
It’s time to restore the Founders’ original policy of consent-based citizenship.
Okay. That was the ‘short’ version. Now for the long version!
1. The True Principle Is 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 and the second ideas of slavery and servitude. In the monarchical, the king is sovereign and the people are his subjects. In the republican, 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 automatically and permanently altered the basis of American citizenship from one of subjection to one of consent. All 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 carried over 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, monarchical principles.
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.’ Alas, these rather clear words have been misconstrued for many decades now as meaning that any person born on U.S. soil is automatically a U.S. citizen. That reading, of course, overlooks the modifying phrase, ‘and subject to the jurisdiction thereof,’ which modifies — and narrows — the phrase ‘born or naturalized in the United States.’ What is the correct reading? 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. From this principle, it follows 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 underlying principle is consent. (Obviously 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 thence 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. 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 your 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 we have two principles as opposed to each other as slavery and freedom. Our Constitution embraces freedom. 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 is bilateral. Both parties remain free to choose. The proof that American principles have always reflected jus sanguinis and never jus soli is that, from independence on, 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. Freedom is the presumption.
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’ or ‘subject to its authority.’ But that can’t be right. The meaning has to be narrower. It has to mean something like ‘owing it political allegiance.’ Foreign tourists and diplomatic personnel are obviously ‘subject to our laws’ during their stay here, but we would never pretend they 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.’
Now, 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 does not matter on whose soil the child was born. If the answer is yes, then yet a further 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 Fourteenth Amendment tells us that that child is a U.S. citizen because the child 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 is not a citizen, then he does not 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’
When the Constitution speaks of a ‘natural born’ citizen, in the provision requiring that the president be one, what does it mean? It means that, to be eligible to be president, you must be a U.S. citizen, and that 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 through naturalization. The soil on which you were born is not relevant. The child of a U.S. citizen is always a ‘natural born citizen,’ even if born abroad. This, by the way, is similar to the rule in British law whereby the child of the monarch or a royal ambassador is always a ‘natural born subject,’ regardless of the child’s place of birth. (Professor Randy Barnett explains this principle well here.) For originalists, there is a lingering question of 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. My own view is that that ancient custom, which importantly was not universal, was rendered obsolete by the Revolution. There is nothing inherently masculine about citizenship. Therefore, it is presumptuous to claim our republican constitution being ‘natural born’ depends on the sex of the citizen-parent. Imagine the headaches if it did.
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 applies only 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, but we should make two exceptions: 1) the children of permanent resident aliens, and 2) foreigners serving in our armed forces — 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 (in short, people who by their actions have made clear they are ‘all in’ on America). 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. We should end it.
5. A History of U.S. Citizenship
As we have seen, prior to the ratification of the Fourteenth Amendment, 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. Some states could and did deny citizenship to some who were born on their soil: free blacks, for instance. (Not every state did that, thankfully.) 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 a uniform rule of naturalization (Article I, section 8), states still set their own policies for the most part. Some of them, as I say, excluded free blacks from citizenship, or from some of the rights and privileges thereof. They had a legal right to do this, even if it was wrong for them to do it.
In Dred Scott (1857), the Supreme Court ruled that blacks could never be citizens of the United States, simply because they are black. The first sentence of the Fourteenth Amendment was framed precisely to overturn that part of Dred Scott. It declares: ‘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 change permanently guarantees national (and thus 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 U.S. citizenship 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, Congress used its naturalization power to extend the offer of citizenship to all American Indians, and that policy remains in effect.) 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, but rather held 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. (The questions that arise from simultaneously belonging to an American Indian nation and holding U.S. citizenship are important but beyond the scope of this discussion.)
6. The Legacy of Wong Kim Ark
In 1898, in United States v. Wong Kim Ark, the Court changed position. Or rather, it seemed to do so. It did not, in fact. The decision has long 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.
But that is not correct. Wong did not determine the question of birthplace citizenship with respect to the children of illegal immigrants. It concerned the children of legal ones. And while its result appears to be right, its reasoning appears to me to be flawed. Okay, so let’s see if we can disentangle this skein.
The parents of Wong Kim Ark were permanent resident aliens who emigrated to the United States and lived here but were barred by treaty from ever becoming U.S. citizens. They were non-temporary migrant workers, permanent resident aliens. Their son was 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. For a 6-to-2 majority, Justice Horace Gray expressed a view that could be read as overruling his own earlier opinion in Elk. He interpreted the words ‘subject to the jurisdiction thereof’ broadly to mean ‘subject to the laws thereof.’ (Emphasis added.) The two Justices in the minority, however, interpreted those words more narrowly to mean ‘owing to the United States their political allegiance.’
The dissenters had it right, for three reasons: 1) textual logic, 2) republican principles, and 3) legislative history.
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 subject to our laws. They cannot commit murder or run a red light with impunity. That does not mean, however, that they are all subject to the jurisdiction of our government or owe it their political allegiance. Foreign visitors, foreign diplomats, and permanent resident aliens are subject to the laws of the United States but are not subject to the jurisdiction thereof. Permanent resident aliens may and should be viewed as having voluntarily accepted our jurisdiction as a condition of being allowed to remain in the country. They, too, owe us their political allegiance.
Republican principles. In Wong, Chief Justice Melville W. Fuller’s dissenting opinion argued that birthplace 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.’ (Heritage Foundation WebMemo #925, December 1, 2005.) When in doubt, we should always interpret the Constitution in light of the principles of the American Founding. As we have seen, 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. The Declaration of Independence makes this abundantly clear. In securing our independence, we ceased to be subjects and became citizens.
Legislative history. Even if the reader isn’t persuaded by these first two arguments, there can be little doubt about what the Citizenship Clause really means, when one looks carefully at the relevant legislative history. The bill’s sponsors and supporters explained what it means, and in terms sufficiently plain not to be misunderstood.
For example. Supporters were asked in debate whether the clause conferred citizenship on American Indians? No, they explained, 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.)
That final phrase, ‘subject to the authority of the United States,’ is critical. Does it mean ‘subject to the laws’ of the country? No, because Senator Johnson just a couple of sentences earlier said it means ‘not subject to some foreign power.’ Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, confirms the same 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 that 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 that word, ‘complete.’
But — and this is the knockout — hear 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. How do we know the parents are foreigners? Because neither parent is subject to the jurisdiction of the United States, the ‘complete’ jurisdiction. Both parents are subjects or citizens of ‘some foreign power.’ Foreign couples cannot give rise to Americans, even on our soil, without congressional consent. QED.
Wait a minute, Clancy. You inserted ‘or’ in brackets in the second sentence of this quotation!
You’re right. I have. And for good reason. I made that textual correction to save the sentence from absurdity.
I assume the congressional stenographer either did not hear it or inadvertently omitted it or that Senator Howard failed to utter it. He must certainly have meant it. As Michael Anton has pointed out, it is very common in spoken English to rattle off a list, for example, ‘apples, oranges, bananas,’ omitting the final conjunction and leaving it to the hearer to supply it mentally. If Howard did not intend the word ‘or,’ he would be saying that only foreigners here as foreign diplomats, and their families — and presumably foreign occupiers — are exempt from owing us their political allegiance. All other foreigners, under this interpretation, no matter how brief their sojourn, and no matter how unlawful their stay, are to be treated as if they were American nationals when it comes to giving birth within our borders. If that had been Senator Howard’s meaning, surely an objection would have been raised.
Instead, what we find 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 would be absurd. To interpret Howard as having intended such an absurdity strains credulity beyond 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. If we have to exclude foreign occupiers, we have to exclude unauthorized entrants. They are not here lawfully. Thus, their children, too, are foreigners. Well, unless, that is, at least one of their parents is a U.S. citizen.
Why, in the debate record, do we find no discussion of illegal immigrants? I can think of two reasons. First, in 1866 almost no one was actually excluded from the United States. Our borders were practically open. So there was hardly an issue to discuss. Second — and this seems the more likely reason — every senator simply took it for granted that the child of an illegal immigrant could not possibly be regarded as being entitled to automatic citizenship. Everyone knew that was impossible. When a senator in debate seems to either embrace or reject the idea of birthplace citizenship, the best way to interpret what he is doing is to view him as taking a position with regard to the children of permanent resident aliens. He is not thinking of illegal aliens. They are not in his mind, because everyone knows they are not on the table for discussion.
Both the words and the history of the Fourteenth Amendment tell us the same thing: the American people, in ratifying the Amendment, understood the Amendment as conferring citizenship on the children, born on our soil, of permanent resident aliens. Therefore, as I’ve said, the result in Wong Kim Ark, was correct, but was its reasoning correct? I don’t think so because it seems clear the draftsmen of the Fourteenth Amendment wanted to make citizens of two groups only: the children of citizens and the children of permanent resident aliens, including, of course, freed slaves. They did not intend to make citizens of the children of foreigners who are here temporarily, and certainly not of those here unlawfully.
7. The Clincher
But the clincher argument, for me, is to be found in the meaning of jus soli itself. The Supreme Court in Wong did not follow it to its logical conclusion. It did not hold that we must regard those who voluntarily renounce their U.S. citizenship as traitors. Indeed, no federal officer has ever tried to give effect to such a policy. The Constitution gives a very narrow definition of treason, and renouncing one’s citizenship is not part of it. The Court, it seems, thinks jus soli is our policy only partially or selectively. But why? If the Constitution does not embrace jus soli fully, then why must we assume it embraces it at all? Surely the burden of proof is on the advocates of a selectively partial jus soli to show that theirs is the proper reading of the constitutional text. Given how strongly both republican principles and the legislative history favor jus sanguinis, I think it’s fair to say they cannot meet this burden.
But so long as the question is disputed, let us break the tie in favor of jus sanguinis and mutual consent. We are, after all, citizens and not subjects. And, to be clear, let us do it prospectively. There is no need to deprive existing citizens of their citizenship.
For those who are interested to learn more, I would recommend carefully comparing the reasoning of two legal scholars who have debated the birthright-citizenship question: John Eastman and James Ho. Both are politically conservative. Each describes himself as a textualist and an originalist. And yet they come down on opposite sides. Why? They differ on one thing: Ho contends that the Fourteenth Amendment makes jus soli the default policy of the country. Eastman contends that it does not and that therefore jus sanguinis remains the default. For the reasons given above, I think Eastman’s argument clearly wins.
8. Some Practical Questions
From the time of Wong, birthplace citizenship has been the predominant policy. Should we change that policy? And if so, how? Yes, we should change it. As I’ve explained, Wong doesn’t speak to the status of illegal immigrants’ children. Indeed, no Supreme Court case ever has. But people’s misunderstanding of Wong forces us to act.
Could the president fix the problem by executive order? If so, should he? Yes and yes. Congress has failed to do its job in this area. And that has forced the other branches to try to fill in the gaps. In enacting the Immigration Act, Congress chose to quote the language of the Citizenship Clause of the Fourteenth Amendment verbatim, without additional detail. This has had the effect of delegating the details of citizenship policy to the other two branches, which has ultimately had the effect of ceding the issue to the courts. Ideally, Congress would fix its error by amending the Immigration Act to implement the Constitution’s default policy of consent-based citizenship. In the meantime the president can and should fix the problem by issuing executive order ending birthplace citizenship for unlawful entrants and temporary visitors. Can he do that? Yes, because, as I said, the Immigration Act merely recites the Citizenship Clause. The president would be merely implementing existing law as written. Of course, whatever happens, the issue will find its way into the courts. The Supreme Court will have the last word, legally speaking, or at least try to do so.
What if the Supreme Court double downs on jus soli? In that scenario, we should confront the Court legislatively. People would decry this as a constitutional crisis, but I believe the elected branches would ultimately win the fight. And if all else fails, we can amend the Constitution.
What about permanent resident aliens? When their children are born on our soil, should they be treated as aliens or as citizens? Permanent resident aliens are quasi U.S. citizens. They have signaled their desire to be ‘one of us,’ and have given the United States their political allegiance. Therefore, their children should be entitled to automatic U.S. citizenship. Likewise, the children of foreign citizens while serving on active duty in our military. Their willingness to die for our country is loyalty incarnate.
Must we nullify or revoke the citizenship of aliens who have obtained U.S. citizenship under the Wong Kim Ark policy? Nope. The return to consent-based citizenship can and should be prospective, applying to all future births, not to past ones. Depriving current citizens of their citizenship would be unjust. It would also be imprudent. Imagine!
9. Immigration Reform
My personal immigration reform plan, for what it’s worth, is to have ‘a high wall and a wide door.’ Yes, 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 have to round everyone up? No. Most will leave voluntarily, once they see the deportation policy being enforced, which incidentally is current law. Some will turn around and seek naturalization, which is great. Does it mean we have to separate children from their parents? No. Families can remain together voluntarily, in their own country. Personally, I’d also expand legal immigration as soon as the public clearly supports doing so. At present, a slight majority of Americans prefers to reduce legal immigration. This is a prudential matter that reasonable citizens can differ about. So, the prudent course would seem to be to leave legal immigration at its current level and only change it to follow clear shifts in public opinion. But I would change its nature. We should not hesitate to favor immigrants who are likely to assimilate. What does that mean in practice? It means giving 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 Asian states, regardless of their race or religion. Race and religion do not matter. What matters is cultural and political assimilability. To be absolutely clear, I do not support excluding people based on their race or religion. But I do support excluding people whose political principles are fundamentally incompatible with our own. I’m thinking of people who openly reject democracy and support some form of political or religious despotism — fascists, nazis, communists, radical Islamists, and their ilk. I wouldn’t let such anti-democrats become permanent U.S. residents, to the extent I could prevent it. So, it seems common sense not to let them into the country in the first place, and certainly not on a permanent basis. Make permanent entrants sign a statement of support for our political principles based on the Declaration and the Constitution. Finally, and this may strike some readers as out of left field, but I’d end federal welfare programs, which in their present form act as a magnet. Instead, I’d adopt policies that strengthen the nation’s economic health, so there are plenty of good jobs for all, including immigrants. The states would continue to provide public assistance to the needy, as their means allow, but Congress would get out of that business. If we did these things, the immigration problem would be solved, the economy would be healthier, and we’d have greater domestic tranquillity — a stronger sense of national brotherhood. And happily, it would be a brotherhood based, not on race or religion, but on our common creed that all men are created equal.
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: September 23, 2017.
First published: June 21, 2013.
Author: Dean Clancy.
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