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. 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 legal reasoning. In my opinion, this is a great day for our country. Doubtless the president’s order will be legally challenged. But 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. And indeed, Congress should do so in any event.]

The Basic Argument

Citizenship is defined in our Constitution. The words used to define it, which we will look at shortly, set forth a form of birthright citizenship policy. If you’re born on American soil, you are an American citizen, provided you are also ‘subject to the jurisdiction’ of the United States. In the past half-century, a legal consensus has formed around a particular interpretation of that phrase, ‘subject to the the jurisdiction,’ that is, to say the least, controversial.

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, except the children of foreign sovereigns, diplomats, and occupiers, is automatically a U.S. citizens.

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, for the following reasons.

In a republic founded on the principle that all men are created equal, citizenship must be based on consent, 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 obviously not rooted in consent.

Feudal law is rooted in obligation, the obligation of a vassal to his lord. It arises from a form of land ownership. The vassal holds 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.

Birth on his land made you his vassal. You owed him your allegiance, since you are under his protection. And, quite sensibly, the reverse side of the coin of obligation is that expatriation is a violation of your obligation. Renouncing your citizenship without the king’s permission is treason.

With the American Revolution, the nature of citizenship changed in this country 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, by contrast, assumes freedom. You are free to change your citizenship, regardless of what the government thinks, so long as your are a competent adult.

From the very beginning, there has been in American law no penalty for renouncing one’s citizenship because, in a free republic, doing so is not a crime, it is a right. An inalienable right.

The actual practice of most nations involves some mixture of these two ideas. 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 one way or the other. And most nations lean in favor of something like the natural law practice, determining a child’s citizenship primarily, not on the basis of the soil on which the child happens to be born, but rather on the basis of the parents’ citizenship, until the child is old enough to make a choice for himself.

In a minority of nations, the common law approach still predominates, although none, as I say, takes it as far as English historically did. Yet strangely, in the past half century, we in the United States, of all people, have basically revived the feudal practice.

The lawyers sometimes refer to the common law approach as jus soli, meaning ‘right of soil,’ a concept derived from ancient Roman law), and distinguish it from jus sanguinis, ‘right of blood.’

Since 1776, our constitutions have not been based on jus soli, even if our practice has resembled it. And even before then, our practice has not followed it exactly.

Even in colonial times, there were exceptions. British colonists in North America adapted the common law to local circumstances. The children of slaves were not automatically granted citizenship, for one thing. Nor the children of free blacks, Nor Native Americans. The latter were never regarded as citizens, as a general rule, even when born within the limits of a colony. They were generally treated as foreigners, while blacks were generally treated as something like permanent resident aliens, at best. Common law and jus soli law did not extend to them.

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 empire became national citizenship in the republic. And while Congress was granted a new power to provide a uniform rule of naturalization, binding on all the states, citizenship in the new nation still followed state citizenship, not the other way around. You had to be a citizen of a state before you could be a citizen of the United States. And it was states, not Congress, that decided who is and is not a citizen.

The Constitution proposed in 1787 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. In American practice, from the Constitution’s ratification in 1788 until today, it has not been the soil on which you were born that matters most in determining your citizenship. What matters most has been the citizenship of your parents.

For example, the federal 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 U.S. citizen parent, is just as ‘natural born’ as a child born to a U.S. citizen on U.S. soil. He is not, as it were, ‘automatically naturalized.’ He is natural born. He acquires his citizenship through his parent rather than from the soil.

The Fourteenth Amendment, drafted in 1866 and ratified in 1868, effected major practical changes in citizenship policy, but not in the underlying basis or principles. The first sentence of the Amendment, 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 do? It reassigns the job of deciding who is and is not a citizen to the national government, and for the first time, it defines citizenship in the text of the Constitution itself. The Amendment uses the term ‘born or naturalized in the United States,’ and thus makes use of the pre-existing categories of ‘natural born’ and ‘naturalized.’

And to be clear, it recognizes a form of birthright citizenship. But it is not the feudal or common law form. It is not exclusively soil-based.

And while it connects citizenship to allegiance (‘and subject to the jurisdiction thereof’), the allegiance is not perpetual. Expatriation is not a crime. The Citizenship Clause recognizes and constitutionalizes an Americanized form of birthright citizenship, a republican form.

What effect did this have, practically? It meant citizenship would be granted automatically to everyone born on U.S. soil to American parents. Both soil and parentage are part of the formula.

Who, then, are American parents? They are parents who owe their political allegiance to the United States: they are ‘subject to the jurisdiction thereof.’ This includes naturalized citizens, of course.

It also includes freed slaves and free blacks — and indeed, it is for them that the Amendment was primarily intended. The drafters wanted to overturn the notorious Dred Scott decision (1857) in the wake of Emancipation (1865), and to secure the rights of those Americans against the hostile policies of the former slave states.

The Clause also covers permanent resident aliens, that is, persons who, although foreign nationals, have their permanent legal residence within the limits of the United States. We know this latter fact from the public statements of the Clause’s drafters in 1866.

Curiously, ‘subject to the jurisdiction thereof’ does not include Native Americans, despite their also fitting the description of permanent resident aliens in the sense that they are born on U.S. soil and are generally subject to American law. But they also owe their political allegiance to their tribe, and this political allegiance trumps any political allegiance they may owe to the United States. Therefore, unlike blacks, they are excluded from American birthright citizenship. The framers of the Clause were clear about this.

Does the Clause include temporary foreign visitors and illegal aliens? The text does not specifically mention them, of course, and the congressional debate transcripts are frustratingly silent on the issue. But the answer is that they are excluded, like Indians, and for the same reason. They are not ‘subject to the jurisdiction’ of the United States in the political sense.

While frustrating, the debates’ silence on this issue is understandable, since the concept of ‘illegal alien’ did not really exist in 1866. Our borders were essentially open. The states generally encouraged free and open immigration.

It is only later, in 1875, that restrictions begin to come in, on the national level, and the concept of an ‘illegal alien’ clearly comes into view. In that year, Congress barred aliens from entering the United States who were convicts or prostitutes.

It’s true that temporary visitors are subject to the ‘jurisdiction’ of the United States in a limited sense, while physically present among us. They must obey our laws while here — Englishmen must drive on the right — but that does not make them subject to our political jurisdiction. It does not make them ‘subject to the jurisdiction’ of the United States in the sense of that term at it is used in the Citizenship Clause.

It has become fashionable in the past half-century for those whom I’m calling common law advocates to assert the opposite, to claim that ‘subject to our jurisdiction’ means, and has always meant, merely ‘subject to our laws’ in the ordinary sense.

And where do they get this idea? 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.

The majority opinion in Wong embraces the common law view. It claims the phrase, ‘and subject to the jurisdiction thereof’ means ‘and subject to the laws thereof’ in the sense of ordinary local law. But this opinion, as I say, is a weak legal peg because both the holding and the opinion speak only to the question of whether the child of a permanent resident alien parent is entitled to birthright citizenship.

Neither the holding in the case nor the opinion explaining addresses the question of whether birthright citizenship is conferred on foreign tourists, sojourners, and unlawful entrants.

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 itself has been constitutionalized.

But let’s set that aside. Let’s consider the Wong majority’s argument on its own terms. If ‘jurisdiction’ and ‘laws’ are interchangeable terms, then ‘subject to the jurisdiction thereof’ is redundant of the phrase, ‘born or naturalized in the United States.’ Why would the Constitution say the same thing twice, in the same place?

Is it not more natural to assume the two halves of the definition are both there for a reason? The conjunction ‘and’ tells us something. It tells why the second half of the definition has been added: to modify the first half, and specifically to narrow it, that is, to narrow it down to owing political allegiance, as opposed to merely being subject to our laws.

Are temporary foreign visitors subject to all of our laws, or only to some of them? The answer is: only to some of them. Do we expect a foreign family visiting relatives in America to pay income tax? Do we expect a foreign businessman here for a meeting to report for jury duty or register for the draft? We do not. Why not? Because they are politically subject to a foreign power.

The Clause says that citizens of the United States are also citizens ‘of the State wherein they reside.’ The assumption is that the citizen is residing in a state. Surely, this means legal residence, or what the lawyers call ‘domicile,’ the place where you exercise your political rights. Does a tourist ‘reside’ in a state in that sense? Does an unlawful entrant? Must a tourist or unlawful entrant register on the tax, voter, jury, or militia rolls?

Another thing. The Constitution requires the president to be a natural born citizen, rather than naturalized. If ‘jurisdiction’ means ‘laws,’ then the natural born child of foreign parents, who has spent more than half his life residing overseas, is eligible under the Constitution to become president of the United States, while the naturalized child of foreign parents, who has lived here all his life, is forever barred from that office. Does that make sense?

If ‘jurisdiction’ excludes only foreign sovereigns, diplomats, and occupiers, as would be the case if we followed English common law, then why not say that explicitly in the Citizenship Clause?

And if the answer is ‘Because those exceptions have always been recognized in English common law, and therefore need not be mentioned’ — then why bother to make an exception at all? Why bother to add, ‘and subject to the jurisdiction thereof’?

The answer, of course, is to exclude American Indians. If not excluded in some explicit way, they must be assumed to be included.

But what applies to American Indians applies also applies to foreign visitors. The common law advocates cannot eat their cake and have it. Either the phrase is redundant or it is not. 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.

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, that amendment was proposed primarily to place the Civil Rights Act in the Constitution, beyond the reach of future congresses. 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.’ The same thing they wrote in the Civil Rights Act.

And here we come 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.‘ (Emphasis added.) (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? As I’ll explain in more detail, the more reasonable interpretation is that he is stating a list. The burden of proof, I think, is on those who say otherwise. But let us, for the moment, move on to another point.

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. So why would Congress go to the trouble of formally granting them citizenship fifty-six years later, in 1924?

The answer is: Because the Fourteenth Amendment did 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, which, legally speaking, is 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. Not 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 made clear that that is in fact the case.

Foreign visitors, like Indians, are subject to the jurisdiction of a foreign power. Why would the Clause treat foreigners differently from, 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, does it not, since they are foreign nationals. Wouldn’t the more natural reading be that they are excluded, like American Indians? Why would the drafters say they are included? I think the answer is that the drafters viewed permanent resident aliens are quasi American citizens, and more so than Indians could, at that time, be said to be quasi Americans.

The difference is Indians owe their immediate political allegiance to their tribe, whereas permanent resident aliens have effectively transferred their allegiance to the United States by choosing to reside in it permanently and make themselves subject to things like taxes and militia duty. The latter are citizens in all but the right to vote, to put it in simple terms.

As we’ve seen, since 1776, Americans have been free to renounce their citizenship without incurring the charge of treason. If English feudal principles remained in force in this area of the law, then that liberal practice would be an exception to the common law, and not a minor one. It is the kind of exception that ‘proves’ the rule, in the sense of testing it, pressuring it to see whether it really is a rule.

I hope from this discussion it is clear that the Citizenship Clause of the Fourteenth Amendment confers birthright citizenship based, not just on soil, but on a combination of both soil and political allegiance. And that those who say otherwise bear the burden of proof.

Now, I must add that 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 has, and has always had, the freedom to expand the circle of citizenship. It has always been able, either through naturalization law or the treaty power, to offer it to additional groups of people. It has used those powers from time to time. 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. Any close questions should be resolved in favor of those principles. Our presumption should be freedom.

What should we do, practically? We should explicitly, in law, answer the question that Wong leaves unaddressed, by amending federal law. We should explicitly deny birthright citizenship to the children of those who are here merely temporarily or illegally, and thus restore and reaffirm the Constitution’s default policy of consent-based citizenship.

Congress has the power to do this. And it should do so. And if necessary, as a stopgap measure, the president can do it as well, by executive action. He can do it because federal law (8 USC § 1401) simply restates the Citizenship Clause of the Fourteenth Amendment. In effect, Congress has left it the president to fill in the gaps.

But if the judiciary, which effectively has the last word, blocks the president or Congress, and clearly gets it wrong, then Congress should resist by passing clear legislation pursuant to its enumerated power under section 5 of the Fourteenth Amendment: ‘The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’

And if the Court still persists in a wrong interpretation, then we, the People, should resort to our rightful remedy and have the last word by amending the Constitution.

Diving Deeper

That, for what it is worth, is my argument. But since this particular debate tends to be complicated and contentious, at the risk of a tedious prolixity, I’ll go back over the same ground again, in greater detail this time, so the reader may have greater confidence that I’m not playing fast and loose with either the law or the facts.

Those who are full may leave the table. You gluttons, dig in!

In 1865, Congress proposed, and the states ratified, the Thirteenth Amendment. It abolished slavery and involuntary servitude throughout the United States. But former slave states notoriously sought to get around the Amendment and keep those evils going under other guises. So, the following year, Congress used its power, which it understood to have been granted to it by the Thirteenth Amendment, to enact the very first Civil Rights Act, the first sentence of which 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.’

With that statutory declaration, states lost the ability to deny U.S. citizenship to the children of freed slaves and free blacks. Henceforth, those persons would be U.S. citizens. Dred Scott, which had declared members of the African race ineligible for citizenship, as a matter of constitutional law, was overturned. Likewise, the Civil Rights Act’s policy of birthright citizenship would apply to the children of American Indians who were U.S. citizens. It clearly exempted non-citizen Indians.

Concerned by assertions that the Thirteenth Amendment did not in fact provide Congress with authority to enact the Civil Rights Act, and more urgently that a future congress might repeal it, the Act’s authors proposed a constitutional amendment, to place it beyond the reach of future congresses and transient popular majorities. The first sentence of the Act 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.’

The debate over whether to ratify the Amendment was the main issue of the 1866 congressional elections. The American people decided in favor of the Amendment and, through their state legislatures, ratified it in 1868. Two years later, the Civil Rights Act was reenacted, unchanged.

Why, then, does the wording of the Amendment differ from the wording of the Act? Why use one phrasing in the Constitution and another in statute? Presumably, for more than poetic or accidental reasons. Now, it is possible the drafters merely wanted, in the Constitution, to employ a more elegant way of saying, ‘excluding Indians not taxed.’ But a more likely reason, I think, is they wanted to drop the word ‘allegiance’ in that harder-to-change law. ‘Allegiance’ has monarchical undertones running back through English common law to Calvin’s Case (1608), which is usually cited as providing the first formal explanation of obligatory subjectship in terms of allegiance arising from royal protection.

I think the framers omitted ‘allegiance’ because they didn’t want anyone to mistakenly assume American citizenship is based on, or incorporates, the feudal principles of English common law. They wanted to base it on the natural law principles of the Declaration of Independence. They recognized that there had been a break and wanted to ensure American citizenship is consent-based rather than purely soil-based. Or to put it more simply, they wanted to distinguish between a partial and a complete allegiance. And while they could have just said, ‘owing complete allegiance,’ they chose instead to say, ‘subject to the jurisdiction.’

In doing so, I think they risked being too ambiguous, but on the other hand, constitutional provisions should generally err on the side of brevity.

Why didn’t they amend the Civil Rights Act to use the same language as the Fourteenth Amendment? Because it was not necessary to do so. The two formulations can be read to mean the same thing. A statute intended to enforce a constitutional provision can be, and usually is, more specific than the provision it enforces. Certainly, the wording of the Civil Rights Act should be given weight when interpreting the corresponding language in the Fourteenth Amendment, since they were written and passed by the same people at the same time. The Act was enacted in 1866. The Amendment was ratified in 1868, primarily to make the policy of the Act hard to repeal. And then, in 1870, the Act was reenacted, unchanged. If that’s not dispositive evidence of identical meaning, I’m hard-pressed to say what would be.

Lawful permanent residents are foreign nationals, nominally subject to a foreign power, but they have transferred their allegiance. They reside among us permanently, and are not going to answer their home country’s call to serve in the military or pay taxes. In a real sense, they are Americans, and our law describes them as American ‘nationals.’ Having consented to be ‘one of us’ for the rest of their lives, they have put themselves under our jurisdiction, our complete jurisdiction. They have voluntarily become our ‘subjects’ in a political sense, without having the title, ‘citizen.’ They have to pay taxes and serve in the military if called, but they cannot vote. (And if they want to become citizens, they can pursue naturalization, absent some legal bar, such as a prohibition in a treaty.)

The Principle Is Consent

Why is consent so important? Because in a republic, citizenship is based on it. All men are created equal. No man is subject to any other. In a monarchical system, consent is not assumed. What’s assumed is dominion, subjection. The king is sovereign, the people are his subjects. In a republic, the whole people is sovereign, and every citizen shares in the sovereignty. In a republic, each man is his own sovereign, as it were. And while he gives up some of his liberty and some of his property to enjoy the benefits of protection by government, he does not thereby give up his sovereignty. His sovereignty can never be taken away from him. It is his by nature, inalienable.

When the American Revolution effected a shift from the monarchical to the republican form, it altered the basis of American citizenship from one of subjection to one of consent.

In English common law, allegiance to the king is perpetual. If you are born in the king’s realm, you are the king’s subject. You owe him your allegiance as a debt of gratitude. You must remain his subject, and pay him your allegiance, until he, at his sole pleasure, chooses to absolve you of it. You cannot unilaterally renounce it without offering him insult, which is treason. With 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.) Renouncing one’s citizenship is not treason. It is a right.

Unfortunately, the original, unamended Constitution did not speak to the issue of citizenship in plain terms. It spoke to it only indirectly, and in doing so used terms carried over from the common law (e.g., ‘naturalized,’ ‘natural born citizen’).

The Fourteenth Amendment resolves the ambiguity in the original Constitution by defining citizenship in way that is consistent with natural law principles.

If citizenship must be based on consent, why don’t we let a child choose his own citizenship? We do, when he reaches the age of majority. A minor cannot freely choose his citizenship, because he is a minor. He lacks enough life experience for his judgment in such an important matter to be relied on and treated as binding. So, his citizenship is presumed to follow that of his parents until changed. Any change must have the consent of both the child and the government. Whence it follows that the child of a United States citizen is to be granted U.S. citizenship automatically, even if born abroad, and the child of a foreigner is only to be granted U.S. citizenship after seeking and receiving an offer of citizenship from Congress, as by law or treaty. Both the child and the government are free.

The consent must be mutual and reciprocal. A person may refuse his consent, or withdraw it by renouncing his citizenship. Similarly, subject to the limitations of the Constitution, Congress may refuse its consent, or withdraw it. It could presumably withdraw it, for example, for treason. But it could not do so for voluntarily renouncing one’s citizenship.

Tourists, sojourners, and unauthorized entrants have no power to come here and make new citizens without our consent.

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 likes. Famous examples of groups offered citizenship by statute include people living on land purchased by the U.S. government from a foreign power, such as the Louisiana Purchase (1803) and the Mexican Cession (1848). After 1870, citizenship was offered to members of select American Indian tribes, and since 1924 has been offered by statute to all Indians.

The fact that Congress did not offer all Native Americans U.S. citizenship until 1924 is telling. It tells decidedly against the claim that the Fourteenth Amendment requires an unfettered and indiscriminate policy of birthright citizenship. From 1868 to 1924, Congress did not assume that American Indians born on U.S. soil were automatic citizens. In multiple laws enacted after 1868, it clearly took the opposite view, that American Indians did not owe their political allegiance to the United States and could not be compelled to do so. The law consistently regarded non-citizen Native Americans as owing their allegiance to their tribe, a separate nation and sovereignty. Tribes were subject to U.S. laws, to be sure — they were dependent nations — but that did not extinguish the political nature of tribal membership. The tribes were foreign powers.

Congress has always been free, if it wants, to extend an offer of citizenship to any foreign child who happens to be born on our soil. It has never done so. And while, as I have said, I think it should not do so, I would make two exceptions. I would explicitly guarantee birthright citizenship to the children of lawful permanent residents and to the children of foreigners serving honorably in our armed forces — people who have signaled by their actions that they want to be ‘one of us’ in the sense of sacrificing their liberty and even their lives for the American people.

The current policy of automatically extending American citizenship to the U.S.-born children of foreign tourists, 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.

U.S. Citizenship before 1868

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 English common law in its pure form. It was not English common law at all. It was a rule of convenience that bore some resemblance to that tradition. Some states could and did deny citizenship to some who were born on their soil: free blacks, for instance.

Following the Revolution, the actual practice did not appear to change very much, but below the surface the Revolution had of necessity effected a fundamental shift, a shift from obligatory allegiance to mutual consent.

So, as I say, prior to the Fourteenth Amendment, to be a citizen of the United States, you 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 with respect to persons born on their soil. Some of them, as I say, excluded free blacks from citizenship, or from some of the rights and privileges of citizenship. It would seem states had a legal right to discriminate in that way, even in cases, as with free blacks, when it was morally 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 quite intentionally to overturn that part of Dred. As we’ve seen, 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 clear: 1) all freed slaves and their descendants born in this country are U.S. citizens, 2) the descendants of U.S. citizens born abroad may be extended citizenship as a general policy, and 3) citizenship policy is governed primarily by national rather than state law.

For the first three decades under the Fourteenth Amendment, the Court interpreted the Citizenship Clause correctly. It did so, in non-binding dicta, in the Slaughter-House Cases (1873). And it did so, in a binding way, in Elk v. Wilkins (1884). In the latter 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, and could not unilaterally claim, 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 at that time extend an offer of citizenship to some American Indian tribes, but not to his.) 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 (and as a strictly legal matter, Indian tribes are foreign powers), even when born on our soil. The Court was confirming that our default policy is jus sanguinis. (The questions arising from simultaneously holding U.S. and tribal citizenship are worth delving into, but are beyond the scope of this discussion.)

The Wong Case

In 1898, in United States v. Wong Kim Ark, the Court was asked to decide whether the children of permanent resident aliens are entitled to birthright citizenship under the Citizenship Clause. The Court answered yes, they are. I think that result was right. But the reasoning for it is wrong. The result rests on the incorrect and unhistorical claim that American citizenship has always been based on English common law.

The decision was not unanimous. The dissenters argued that we broke with English common law when we established our republic.

Importantly, and this is something many people miss, the Wong case did not address the question of birthright citizenship with respect to the children of illegal immigrants. It only addressed the status of children whose parents are non-naturalized legal immigrants, permanent resident aliens. That means the legal status of the children of illegal aliens is still open. The Court may rule on it without losing face, that is, without having to explicitly overrule Wong.

The parents of Wong Kim Ark were subjects of the Chinese emperor who emigrated to the United States to work. They lived here on a permanent basis, but were barred under several U.S. laws from ever becoming U.S. citizens. And Chinese law made it difficult for subjects to renounce their Chinese nationality, on the perpetual allegiance principle. The Wongs had a son, who was born on U.S. soil in 1873. In 1882, Congress enacted the Chinese Exclusion Act, placing severe limits on the admission of Chinese nationals into the U.S. The family moved permanently back to China in 1889. A year later, the son returned to the United States and was admitted as a natural born U.S. citizen. In 1894, he returned briefly to China and the following year returned to the United States. But this time, he was barred readmission. He was detained at the Port of San Francisco by the Collector of Customs, who denied him permission to enter on grounds that he was not a U.S. citizen, despite his having been born in the U.S., but rather a Chinese subject because his parents were Chinese. Wong was confined for five months on steamships off the coast while his case was tried.

He won. For a 6-to-2 majority, Justice Horace Gray wrote that the words ‘subject to the jurisdiction thereof’ mean ‘subject to the laws thereof’ and that the Citizenship Clause can be read ‘in no other way’ than as a continuation of English common law. Therefore, Wong was a citizen under the Fourteenth Amendment. This, incidentally, was not quite square with his own earlier opinion in Elk. But be that as it may.

The dissenting justices took a different view. They argued the phrase ‘subject to the jurisdiction’ in the Clause means owing one’s political allegiance. If it meant merely ‘subject to the laws of,’ it was redundant of ‘born or naturalized in.’ And since Wong’s parents were Chinese subjects, so was their son, despite his place of birth. Therefore, he was not a U.S. citizen and could be barred from entering.

I would differ with the dissenters over the question of whether Wong owed his political allegiance to the Emperor of China. The dissenters thought so, on the notion that his parents, being barred by treaty and statute from ever becoming naturalized citizens, were in effect temporary foreign sojourners as opposed to permanent resident aliens. But I think they were permanent resident aliens, despite that disability. There was no time limit on their residence. I assume they could have been drafted and owed taxes and could sued and be sued in our courts. So, doubts about their son’s entitlement to birthright citizenship should be resolved in his favor. In other words, I think the majority was wrong on the law and the dissenters were wrong on the facts, but the case still came out right!

I can think of three good reasons why the dissenter’s reasoning on the basic legal question is right and the majority’s is wrong: (1) republican principles, (2) textual logic, (3) legislative history.

Textual logic. If Gray’s reasoning is correct, the phrase ‘and subject to the jurisdiction thereof’ is superfluous. And including it simply to exclude foreign diplomats is also superfluous, because, under English common law, foreign diplomats were always understood to be excluded from birthright citizenship.

Republican principles. Gray overlooks the Revolution. English common law, in this area of the law, was repealed by the Revolution because it had to be. Citizenship in a republic cannot be based on the notion that you owe your allegiance to the sovereign because the sovereign is protecting you, and that this duty of allegiance is perpetual and unilateral. Rather, it can only be based on consent, mutual consent. Congress may offer people citizenship, and we may renounce our citizenship, but the fact that renouncing our citizenship is not treason tells us that we have left feudal principles behind.

Legislative history. Gray cites the Fourteenth Amendment debates but misreads them. Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, explained that the goal of the committee was:

‘To make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the [clause] so as to make citizens of all the people born in the United States and who owe allegiance to it. I thought that might be the best form in which to put the amendment at one time, “That all persons born in the United Sates and owing allegiance thereto are hereby declared to be citizens;” but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we could have no right to make citizens, and that that form would not answer.’ (Congressional Globe, 39th Congress, 1st Session, p. 572.)

To whom does Trumbull refer when he says, ‘persons temporarily resident in it whom we could have no right to make citizens’? He means foreign visitors. We can have no right to make citizens of them without their consent, although, as he suggests, they do owe us a sort of allegiance, a limited sort. They must obey our laws while residing among us. They may not jaywalk. But we have no right to demand their full, political allegiance. We have no right to put them on the draft, tax, or jury rolls.

Supporters of the bill were asked in debate whether the citizenship clause conferred citizenship on American Indians? No, the supporters replied, it does not, because Indians are subjects of an alien (if dependent) power, namely, their tribe. This same principle, of course, would rule out foreigners who are subjects of an independent 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.’ (Congressional Globe, 39th Congress, 1st Session, p. 2893.)

Ah. What, exactly, does Johnson mean by ‘subject to the authority of the United States’? He means what he said a moment before: ‘not subject to some foreign power.’ Which, as we’ve seen, is the formulation used in the Civil Rights Act of 1866.

Senator Trumbull 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.’ 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.’ Note that word, ‘complete.’

Senator Jacob Howard, who incidentally was the actual draftsman of the Citizenship Clause, declared:

What does Howard mean by ‘natural law’? He means the natural law principles of the Declaration of Independence, the principles that arise from the natural equality of all human beings.

What does he mean by ‘national law’? He means the Civil Rights Act of 1866, the language of which could not be clearer: ‘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.’

What does Howard mean when he rattles off the classes of persons excluded: ‘foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States’? Does he mean only foreign diplomats? Or is he listing three distinct groups, namely, foreigners, aliens, and foreign diplomats? The latter is a more intelligible reading because each of those terms has its own meaning:

A foreigner is someone who is subject to a foreign power.
An alien is a foreigner who is present in our midst, either temporarily or permanently. (All aliens are foreigners but not all foreigners are aliens.)
A diplomat (‘ambassador’ or ‘minister’) is a both a foreigner and an alien, whom we have admitted into our midst temporarily as a representative of his government.
Foreign tourists and sojourners are aliens. They are physically present on our soil, temporarily.
Unauthorized entrants and visa overstayers (illegal aliens) are present on our soil temporarily. They may wish to stay here permanently, but we have not admitted them. They have admitted themselves, in violation of our laws.

Why does Howard want to exclude diplomats but include lawbreakers? He doesn’t. It strains credulity to think he does. He wants to exclude foreigners. He wants to exclude aliens who are here temporarily. And we wants to exclude foreign diplomats because they are visiting aliens. He need not have mentioned diplomats, because they are already included among aliens, but then again, they have always been recognized as having a special status in the law of nations and indeed in English common law.

What does Howard intend with respect to permanent resident aliens? He is not clear in this quotation, but we can deduce from the comments of Trumbull and others that such aliens are not considered ‘foreigners’ for purposes of the Amendment, or more accurately, that, despite being aliens, their children will have birthright citizenship.

That Howard’s list is a bit unclear is perhaps the fault of the transcriber. Supplying the word ‘or’ after ‘aliens’ makes the sentence more sensible, and consistent with Trumbull and others. Or perhaps Howard was speaking in a loose, casual way. As Michael Anton points 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 to distinguish the three groups, he would, again, be saying that only the tiny class of foreigners who are here as diplomats are exempt from owing us their full political allegiance and that every other kind of foreigner — tourist, sojourner, illegal alien, invader, occupier! — does.

If that was his meaning, why did no one in the debate object? Why did no one even raise a question?

Instead, what we find in the transcripts are discussions about Indians and permanent resident aliens. Bill supporters were asked whether Indians are included. No, came the answer, unless they are U.S. citizens (‘taxed’ Indians, as it were). Tribal membership does not confer the privilege of birthright citizenship.

What about resident aliens, such as, for example, the Chinese of California and the Gypsies of Pennsylvania? The answer: They are included.

Now, up to this point, we have been looking at the intentions of the drafters. But a good lawyer will tell you it’s the understanding of the ratifiers that counts. And what did the ratifiers, meaning the elected representatives in the state legislatures that voted on ratification, understand the citizenship clause to mean? The records of their debates are sparse, but what we have of them suggests no difference of understanding from that of the drafters. The ratifiers knew the provision included the children of freed slaves and free blacks, which was, of course, the main purpose of the Citizenship Clause, and that it excluded ‘Indians not taxed,’ despite that particular phrase not appearing in the text of the Amendment (as it did in the Civil Rights Act), and that it controversially included permanent resident aliens, including such foreigners as the Chinese of California and the Gypsies of Pennsylvania. If the ratifiers assumed ‘subject to the jurisdiction’ of the United States meant ‘subject to the laws’ of the United States only, they left no trace of it. If they assumed that ‘subject to the jurisdiction thereof’ meant the same thing as ‘born or naturalized in the United States,’ they left no trace of it.

The congressional and ratification debates are the most reliable guide we have to the meaning of the citizenship clause of the Fourteenth Amendment. And they all confirm the consent-based understanding.

The Citizenship Clause of the Fourteenth Amendment

What does it mean to be ‘subject to the jurisdiction’ of the United States? It has to mean something like ‘owing us political allegiance.’

How can we determine whether a person owes his 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 or granted this person permanent resident alien status? (2) Has this person accepted that offer or grant? If the answer to both questions is yes, the person owes the United States his political allegiance, which, again, is what the Fourteenth Amendment means when it says he is subject to our jurisdiction.

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, and here is where the citizenship clause of the Fourteenth Amendment directly applies: (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 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 him an offer of citizenship (taking us back to question 1). If the child is not a citizen, then he does not owe his political allegiance to the United States and therefore cannot enjoy the rights and privileges of American citizenship.

Who’s Right?

For those who want to learn more, I would recommend comparing the reasoning of two legal scholars who have debated this 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? Because they differ on one thing: Ho thinks the Fourteenth Amendment enshrines English common law and Eastman thinks it does not. I side with Eastman for the reasons given. But decide for yourself.

Some Practical Questions

Would ending birthright citizenship create a class of ‘stateless persons,’ people who have no citizenship in any country? No, unless both the child’s parents are stateless. If either parent is a citizen of a foreign country, and if that country follows a rule based on the citizenship of a parent (as most nations of the world do), then the child is almost certainly going to be a citizen of that foreign country as a matter of right. If both parents are citizens of a country that follows a primarily soil-based rule (as some African and many South American nations do), then the child could be stateless if the parents’ home country does not recognize the citizenship of children born to its own nationals outside its own borders. I don’t know whether any country takes a soil-based policy that far. But if one does, well, that’s not America’s problem.

Could the president end birthright citizenship by executive action? And if so, should he? Yes and yes. Congress has failed to do its job in this area. And that failure 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 has 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 end birthright citizenship for tourists, sojourners, and unauthorized entrants through executive action. Can he do so, legally? Yes, because Congress allows him to, under the Immigration Act. 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. Politically speaking, the last word must go to the American people.

What if the Supreme Court double downs on the modern interpretation? In that scenario, we should confront the Court legislatively. People may decry it as a constitutional crisis, but it would only be a dispute among the branches. That’s not a crisis. And I believe the elected branches would ultimately win the contest. If all else fails, the people’s representatives may have recourse to the ultimate remedy: a constitutional amendment.

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 Americans culturally. To be more specific, 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. I’d include absolute monarchists on that list, too. If it were within my power, I would never let 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. Until we get illegal immigration under control, we should also reconsider our liberal policy of allowing chain migration, that is, prioritizing family members of green card holders in the legal immigration queue. One last thing. I’d end federal welfare programs because, in their current form, they are a magnet. Instead, we should 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 race or religion, 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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