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, 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, and (ii) the natural child, born on U.S. soil, of a non-citizen who is a permanent resident alien in the United States or who is serving on active duty 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, sojourner, or unauthorized entrant. Effectuate this policy prospectively, without depriving any existing citizen of his or her citizenship, and do it by statute, and to the extent legally permissible, by executive action, 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. Formally withdraw U.S. citizenship from any adult found to voluntarily hold both American and foreign citizenship, if that person, after a reasonable grace period, and with due process, has not relinquished the foreign 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 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 so 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. Second, to reinvigorate the value of American citizenship by reviving the traditional but seemingly lapsed policy of discouraging dual citizenship. And third, to restore our national tranquillity through sensible immigration reforms. At the intersection of these goals is the contentious issue of birthright citizenship, the automatic of granting citizenship to everyone born on U.S. soil other than the children of foreign diplomats. This plank recommends amending the Immigration Act to end automatic, soil-based birthright citizenship for the children of tourists, sojourners, and unauthorized entrants. And it makes the case for why we do not need a constitutional amendment to do so.
[Update January 20, 2025: Today, President Trump issued a proclamation ending birthright citizenship in the United States. The proclamation essentially implements the first recommendation of this plank, and appears to be based on the same legal argument that I offer below. This is a great day for our country. Doubtless the proclamation will be legally challenged. But if the Supreme Court is intellectually honest, it will uphold the policy and restore consent-based citizenship.]
The Short Version
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 amend our citizenship rules to ensure domestic tranquillity and to protect the public’s health and safety. This is common sense. No sane nation would do otherwise.
In a republic founded on the principle that all men are created equal, citizenship must of necessity be based on consent, the bilateral consent of both the individual and of the government.
The policy of birthright citizenship, as currently practiced in the United States, that is, the policy of automatically conferring citizenship on everyone born on our soil except foreign diplomats, is ultimately rooted in a different principle, the feudal principle of subjection, and is incompatible with our founding principles.
To put it simply, birthright citizenship is based on English common law, while consent-based citizenship is based on natural law, the natural law principles recognized and proclaimed in the Declaration of Independence.
Among lawyers, the common law principle goes by the name of jus soli, the natural law principle, by jus sanguinis. Under jus soli, citizenship is determined primarily based on the place where one is born. Under jus sanguinis it is primarily based on the citizenship of one’s parents. If one of the parents is a citizen, the child is a citizen, regardless of the place of birth. Just soli is based on geography, jus sanguinis on parentage. The citizenship of the parent serves as a proxy for the child’s consent until the child reaches the age of majority. Jus soli implies perpetual allegiance: the citizen may not change his citizenship without the government’s consent. Jus sanguinis assumes freedom to choose. You are free to change your citizenship, regardless of what the government thinks, so long as your are a competent adult. Under jus soli, the penalty for expatriation, renouncing your citizenship without permission, is treason. It jus sanguinis, at least as practiced in the United States, there is no penalty because voluntary expatriation is not a crime. It is a right.
The actual practice of most nations involves modifications of these two principles, or elements of both. But one or the other is invariably predominant. Most nations today rely primarily on jus sanguinis. A minority, including the United States, rely on a version of jus soli. The American version is an outlier because it confers birthright citizenship not only to the children of citizens but also to the children of parents who are in the country only temporarily and even illegally. I am referring, to be clear, to our current practice, not to our constitutional law, which is actually based on jus sanguinis.
From the Founding to the mid-twentieth century, while our practice resembled jus soli in some respects, it was never based on it. The true underlying principle was, and always has been, jus sanguinis.
With the American Revolution, we threw off monarchy and established ourselves as an independent republic. And with that change, the nature of American citizenship changed, because it had to. If we are equal, notions of subjectship and feudal obligation, which underlie English common law, are obviously out of place. The basis of our practice must be republican and consensual, with the government free to offer citizenship, and the person to whom it is offered free to accept or reject.
The U.S. Constitution does not, and never has, required a policy of birthright citizenship in the jus soli sense of conferring automatic citizenship on everyone born on our soil except foreign diplomats.
Historically, while our practice has in some ways resembled jus soli, this has been more in the nature of an administrative convenience. Birthright citizenship has never been a privilege enjoyed by all persons. Prior to the Fourteenth Amendment, the children of slaves were not citizens. Neither, in some states, were the children of free blacks. Neither were Native Americans.
The Fourteenth Amendment, ratified in 1868, defined citizenship in the Constitution for the first time. In doing so, it did establish, as a matter of basic law, a form of birthright citizenship. The first section of the Amendment 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.” That sentence ensures citizenship to black Americans and everyone else born on U.S. soil to American parents, with ‘American’ in this context including aliens who reside here permanently.
But it did not establish birthright citizenship for temporary visitors and illegal aliens. Why, then, has it become fashionable to assert that it did? Because of an unfortunate misreading of an 1898 Supreme Court ruling, coupled with an untenable reading of a single sentence in an 1866 congressional speech transcript. Read properly, both the ruling and the transcript leave the default policy of consent-based citizenship undisturbed.
To be sure, even under the Fourteenth Amendment, Congress remains free to adopt a policy resembling jus soli for pretty much anyone it pleases. But it has never done so. It has certainly never embraced the most sweeping form of jus soli as the default policy, either expressly or implicitly.
For nearly a century after 1868, it was generally understood and assumed that the phrase, ‘and subject to the jurisdiction thereof’ refers only to political allegiance. But over the past half-century, it has increasingly been asserted that these words mean, and moreover that they have always been understood to mean, ‘subject to the laws thereof.’
Some questions:
If the phrase, ‘subject to the jurisdiction’ of the United States means merely ‘subject to the laws’ of the United States, it is clearly redundant of the phrase, ‘born or naturalized in the United States.’ Why, then, is it there? It is there to exclude everyone who does not owe his political allegiance to the United States.
Since 1776, contrary to jus soli, Americans have been free to renounce their citizenship without incurring the charge of treason. Why do we make that exception to English common law? Because we broke with English common law in 1776, when we became an independent republic.
In 1924, Congress offered citizenship to American Indians. Why would it, if they were already citizens under the Fourteenth Amendment? Because prior to 1924, most American Indians were not U.S. citizens. The Fourteenth Amendment did not make them citizens, despite their being born on U.S. soil. To make them citizens, Congress must pass a law.
Why would the framers of the Citizenship Clause deliberately exclude Indians from birthright citizenship? Because an Indian owes his political allegiance to his tribe and not to the United States. He may be subject to the laws, but he is not subject to the jurisdiction, of the United States.
To sum up, the Fourteenth Amendment grants birthright citizenship to the children of American citizens and permanent resident aliens but not to the children of American Indians, temporary foreign visitors, or illegal aliens. It makes that distinction because it ties birthright citizenship to political allegiance rather physical presence.
It does so because we are a republic, not a monarchy. Our citizenship law is based, not on common law, but on natural law, the natural law principles recognized and proclaimed in the Declaration of Independence. Despite appearances, and contrary to erroneous assertions, in America citizenship is based not on soil but on consent.
Congress should reaffirm the Constitution’s default policy of consent-based citizenship. If necessary, as a transitional measure, the president should do so by executive action, which is something he can do, because the Immigration Act, as currently written, simply quotes the Fourteenth Amendment‘s citizenship clause verbatim, effectively delegating the implementational details of citizenship policy to the executive and judicial branches. As a last resort, we, the People, should restore and reaffirm our historical default policy by amending the Constitution.
Okay. That was the ‘short’ version of my argument. Now for the long version!
The Long Version
From the Revolution through the Civil War, states, not Congress, determined U.S. citizenship. State citizenship was the basis of U.S. citizenship. And states tended to follow a policy of jus soli, but more as a convenience. The default policy was jus sanguinis because we are a republic, not a monarchy. We broke with monarchical principles and thus with English common law in this area when we became an independent republic.
The ratification of the Fourteenth Amendment fin 1868 shifted control of citizenship policy to Congress, subject, of course, to the Amendment’s limitations. But it did not adopt jus soli.
States had found it convenient to adopt a rule resembling jus soli, but they could and did make exceptions. Notoriously, some of them denied birthright citizenship to the children of slaves and free blacks. The children of American Indians, too, were never assumed to be citizens, unless Congress directly offered them citizenship.
In 1865, Congress proposed, and the states ratified, the Thirteenth Amendment abolishing slavery throughout the United States. The following year, Congress enacted the Civil Rights Act, which declared that:
‘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.’
(The term ‘Indians not taxed’ means ‘Indians who are not citizens.’ Non-citizens cannot be taxed.)
The Act deprived the states of the ability to deny U.S. citizenship to the children of freed slaves, free blacks, and Native Americans. Freed slaves and free blacks would henceforth be U.S. citizens as a matter of constitutional right. Indians would not, although they could become citizens by act of Congress.
Questions arose over whether Congress had the authority to enact the Civil Rights Act. To resolve them, Congress proposed the Fourteenth Amendment, the citizenship clause of which 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.’
The debate over whether to ratify was the main issue of the 1866 congressional elections. The American people decided in favor, and the Amendment was ratified in 1868.
The citizenship clause in the Act and the Amendment are essentially the same, although the latter substitutes the modifier, ‘and subject to the jurisdiction thereof,’ in place of the former’s ‘and not subject to any power, excluding Indians not taxed.’
Why did they make that change? Presumably, it was not merely cosmetic. The more likely reason is that they wanted to avoid using the word ‘allegiance,’ with its monarchical undertones and prominent place in English common law. They meant ‘allegiance’ but didn’t want the baggage that comes with the word. And so I think their purpose in deleting it was to prevent anyone from misinterpreting American citizenship as somehow tied to English common law. They wanted to base it on natural law, on the natural law principles of the Declaration of Independence.
The language they came up with ensures that citizenship remains consent-based.
The result of the language (both of the Civil Rights Act and of the Amendment) is that a child born on U.S. soil to an American citizen or permanent resident alien is automatically offered U.S. citizenship. But it does not offer such automatic citizenship to persons who owe their political allegiance to a foreign power. Such persons are not ‘subject to the jurisdiction’ of the United States.
Q. Why are permanent resident aliens included while other foreigners are excluded?
A. Because permanent resident aliens, while still technically nationals of a foreign power, reside among us permanently, which implies allegiance. They have consented to be ‘one of us.’ And that puts them under our jurisdiction — our complete jurisdiction.
Does ‘subject to the jurisdiction’ apply to American Indians as well? No. The framers of the Amendment wanted to exclude them from birthright citizenship. We know they did, because of how they worded the Civil Rights Act, and because they said so clearly during the congressional debates over the proposed Fourteenth Amendment. They wanted to include black Americans but exclude Native Americans. Which makes sense. Indians belong to tribes. Blacks don’t.
The phrase, ‘not subject to any foreign power,’ in the Act, and the phrase, ‘subject to the jurisdiction,’ in the Amendment are referring to the same idea: political loyalty. Being ‘subject’ to a foreign power or ‘subject’ to our jurisdiction is not synonymous with merely being subject to our laws while physically present in our country.
Does Congress have the option of adopting a policy of pure, geography-based citizenship? Yes, it does, apart from not being able to make the renunciation of citizenship punishable as treason.
Is Congress required to adopt such a policy? No. Congress may adopt a policy of (partial) jus soli as a convenience or a preference, but it may not treat the renunciation of one’s citizenship as treason. So, it can never adopt jus soli in the full, indiscriminate sense.
To put it more succinctly, Congress may adopt (partial) jus soli but is not required to do so. And contrary to myth, it has never actually done so. And it should not do so.
The Principle Is 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 practice.
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: “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.”
For the past half-century, these words have been construed, or rather misconstrued, as meaning that any person born on U.S. soil is automatically a U.S. citizen. That reading, of course, overlooks the 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? The correct reading is that a person, in order to be regarded as a U.S. citizen at birth, must be subject to the jurisdiction of the United States at birth, meaning he must owe it his political allegiance, through at least one of his parents. 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. Any change must have the consent of both the child and the government. From which 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 naturalization by Congress. Both the child and the government are free. The underlying principle is consent.
And the consent must be mutual. 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, 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 want for the time being to have the same citizenship as one or both of his parents. And thence it follows that tourists, sojourners, and unauthorized 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. Birthright 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.)
In the consent-based model, consent is bilateral. Both parties remain free to choose. In the soil-based model, consent is unilateral. The government decides. The individual has no right to choose.
So here we have two principles as opposed to each other as slavery and freedom. Our Constitution embraces freedom. And so should we.
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. Our presumption should be freedom.
The Citizenship Clause of 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. Foreign tourists and diplomatic personnel are obviously ‘subject to our laws’ during their stay here — Englishmen must drive on the right — but we would never pretend they are ‘one of us.’ They are on our soil, but they do not owe us their political allegiance. The meaning of ‘subject to our jurisdiction’ has to be narrower than ‘subject to our laws.’ It has to mean something like ‘owing us political allegiance.’ Permanent resident aliens have freely chosen a permanent residency among us, but are not citizens. Yet they owe us their allegiance. Why? Because they have transferred their residence and their allegiance to us permanently. They have pledged to us, on a permanent basis, their loyalty as a condition of the privilege of being ‘one of us.’
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.
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 against those who claim an indiscriminate policy of birthright citizenship has been required since the Fourteenth Amendment was ratified. 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 laws all 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 in my opinion, it should not do so. But I think we should make two exceptions: (1) the children of permanent resident aliens (which the Fourteenth Amendment takes care of), 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 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.
We should not codify that current policy. We should end it, consistent, to be sure, with the Fourteenth Amendment.
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 jus soli in its pure form. 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, happily. 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 jus soli to jus sanguinis as the default policy.
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 Wrong of Wong
In 1898, in United States v. Wong Kim Ark, the Court changed position. The majority held that the Fourteenth Amendment reflects a jus soli understanding of citizenship and that indeed this is true of all our prior law on the subject, that U.S. citizenship has always been based on English common law rather than natural law.
Even if the majority opinion attempted to foist jus soli on us, it did not do what its most vocal advocates often claim it did, namely, address the question of birthright citizenship with respect to the children of illegal immigrants. The case only addressed the status of children whose parents are non-naturalized legal immigrants: permanent resident aliens. This means that, even if we were to stipulate that Wong was decided correctly, the Court would still be free to rule that the children of temporary aliens, including unauthorized entrants, are not automatic citizens when born on our soil. Since that legal question is still open, there is nothing wrong or pointless about asking the Court to rule on it.
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 and 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 answered yes, citing, as we’ve seen, English common law and jus soli. For a 6-to-2 majority, Justice Horace Gray expressed a view that does not square with his own earlier opinion in Elk. He asserted that the words ‘subject to the jurisdiction thereof’ merely mean ‘subject to the laws thereof.’ And thus, rendered them superfluous. And then he went further, to declare that that phrase was not only based in common law and jus soli but could be read in no other way.
But this was all poppycock. And the two Justices in the minority correctly called him on it. They explain why the words ‘subject to the jurisdiction’ to mean ‘owing to the United States their political allegiance.’
The authors of the Citizenship Clause deliberately avoided enshrining the common law. Otherwise, they could have employed common law language, like the word ‘allegiance.’ As we shall see in a moment, an early draft did so. But the word was changed to ‘jurisdiction’ precisely to avoid embracing jus soli with all its embarrassing, unrepublican implications.
But wait. Why would the framers go out of their way to avoid the word ‘allegiance,’ if allegiance was what they, in fact, meant? They themselves say that ‘subject to the jurisdiction’ means ‘owing allegiance to no one else.’ I think the answer is because they wanted to distinguish between a partial and a complete allegiance, and to include only the latter. They could have said, ‘owing complete allegiance’ to the United States. But they chose to phrase it differently. They chose to say, ‘subject to the jurisdiction’ of the United States.
Senator Lyman Trumbull explained the goal of the committee as being:
‘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.’
(Source: Congressional Globe, 39th Cong., 1st Sess., Feb. 1, 1866, p. 572.)
To whom is Trumbull referring when he says, ‘persons temporarily resident in it whom we could have no right to make citizens’? Surely he is referring to every kind of foreigner residing on our soil temporarily. We can have no right to make citizens of any of them. We cannot make citizens of foreign diplomats, obviously. And presumably we would not make citizens of foreign invaders and occupiers. And presumably we would not make citizens of foreign tourists, sojourners, and unauthorized entrants. All these foreigners are ‘persons temporarily resident’ in the country, and all do indeed owe it ‘a sort of allegiance,’ in the sense that they must obey our laws while resident among us. But none owe us their full, political allegiance. Only those who are here permanently with our consent can be said to owe us that kind of allegiance.
To sum up, the dissenters in Wong had it right for three different reasons: 1) republican principles, 2) textual logic, and 3) legislative history.
Republican principles. When in doubt, we should interpret the Constitution in light of the principles of the American Founding. The Constitution exists to enshrine and preserve the principles of the Revolution. The Revolution made us a republic of free and equal citizens. It would be strange to think that such a republic would deliberately preserve a rule that assumes that political allegiance is due to the sovereign as a matter of perpetual and indefeasible feudal obligation, which is the basis of jus soli. If each of us has a natural right of revolution, as the Declaration of Independence assumes, then we also have a right of expatriation. We can quit our allegiance to this country and give it to some other country without being guilty of treason. Jus soli was repealed by the principles of the American Revolution. And it was deliberately rejected by the framers of the citizenship clause of the Fourteenth Amendment, when, as we’ve seen, they took care to avoid any reference to the common law.
Textual logic. If at all possible, a constitutional provision should not be read as redundant. If the Wong majority’s reading were correct, the phrase ‘and subject to the jurisdiction thereof’ would be superfluous. All who are in our country at any given moment are of course subject to our laws — they are not free to commit murder or run a red light — but that does not mean everyone in our midst, even temporarily, is subject to the complete political jurisdiction of our government and owe it their political allegiance. It would be strange to assert that temporary foreign visitors and diplomats owe us their full and exclusive political allegiance.
Legislative history. But suppose these first two arguments are not persuasive. There is also the legislative history, which we have already touched on. Supporters of the bill were asked in debate whether the citizenship clause conferred citizenship on American Indians? No, the supporters replied, 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.
(Source: Congressional Globe, 1st Session, 39th Congress, May 30, 1866, part 4, p. 2893.)
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 precisely the formulation used in the Civil Rights Act of 1866, which incidentally was enacted just two months prior to this debate.
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.’ 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.’
But if even those explanations are not persuasive, here is the knockout. Senator Jacob Howard, who incidentally was the actual draftsman of the Citizenship Clause, declares:
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.
(Source: Ibid., p. 2890.)
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.’
He does not mean English common law. He does not mean the rule of jus soli rooted in the ideas of feudal obligation and perpetual subjection.
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 does he mean three distinct groups, namely, foreigners, aliens, and foreign diplomats?
The latter is a more intelligible reading of his statement because those different terms have different individual meanings.
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.
A diplomat (‘ambassador’ or ‘minister’) is an alien whom we have admitted into our midst temporarily as a representative of his government.
Foreign tourists and sojourners are aliens. They are here temporarily.
Unauthorized entrants and visa overstayers (illegal aliens) are here temporarily, or perhaps permanently, but we have not admitted them. They have admitted themselves, in violation of our laws.
Why would Howard want to exclude diplomats but include lawbreakers? I do not think he wants to do that. It would be straining credulity to think he does. I think, rather, he is excluding all foreigners from the definition, and all aliens who are here temporarily, which latter category includes all diplomats, whom he lists though he need not list them, since they are already included among aliens.
That he does so a bit unclearly is perhaps the fault of the transcriber. Or perhaps he just spoke a bit unclearly. 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 here as diplomats are exempt from owing us their political allegiance and that every other kind of foreigner — tourists, sojourners, illegal aliens, invaders, occupiers — enjoys the privilege of birthright citizenship!
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, if you will). Tribal membership does not confer the privilege of birthright citizenship. What about permanent resident aliens, such as, for example, the Chinese of California and the Gypsies of Pennsylvania? They are included. (As are, of course, freed slaves and free blacks.)
Now, up to this point, we have been looking at the intentions of the drafters. But a good lawyers will tell you that it is the understanding, not of the drafters, but of the ratifiers of the Amendment that determines the original public meaning of a constitutional provision. And that’s right. So, 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 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 Amendment, and that it excluded ‘Indians not taxed,’ despite that particular phrase not appearing in the text of the Amendment (as it had in the Civil Rights Act), and that it controversially included permanent resident aliens, including not just freed slaves and free blacks but also foreigners, such as the Chinese of California and the Gypsies of Pennsylvania. Did the ratifiers assume ‘subject to the jurisdiction’ of the United States meant ‘subject to the laws’ of the United States only? Did they assume that ‘subject to the jurisdiction’ means ‘born or naturalized in the United States,’ rendering it superfluous and redundant? If they did, they left no trace of it.
The congressional and ratification debates are a more reliable guide to the meaning of the citizenship clause of the Fourteenth Amendment than the majority opinion in Wong. The majority opinion’s reasoning in Wong Kim Ark is wrong because its assertions regarding American historical practice are wrong and its description of American principles is wrong.
The Clincher
But here, for me, is the clincher argument. The majority in Wong did not follow its own reasoning to its logical conclusion. They did not hold that we must regard those who voluntarily renounce their U.S. citizenship as traitors, as jus soli assumes. The Constitution deliberately gives a very narrow definition to treason, and excludes everything else from that definition, including renouncing one’s citizenship. The Wong majority simply asserts that jus soli is our default policy because, it claims, the common law has always been our policy. This, despite the same Court, and indeed the same Justice, having said the very opposite twenty-four years earlier (in Elk). But since our practice has never been fully that of pure jus soli, even in the earliest days, why should we assume the Fourteenth Amendment embraces just soli at all? As we’ve seen, the drafters went out of their way to avoid using common law language. Surely, the burden of proof here rests upon the advocates of the novel assertion that we default to jus soli but only partially. Given how strongly both the legislative history and republican principles favor defaulting to jus sanguinis, I think it’s fair to say they cannot meet this burden.
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? They differ on one thing: Ho, like the Wong court, thinks that American citizenship law and practice are rooted in English common law, whereas Eastman thinks that, since the Revolution, they have been rooted in natural law. You know where I come down. But judge 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 jus sanguinis (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 ruled based on jus soli (as some African and 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 jus soli 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 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 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 jus soli? 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, of which there have been many. And I believe the elected branches would ultimately win in such a legislative contest. If all else fails, the people’s representatives may have recourse to the ultimate remedy: a constitutional amendment. While such an amendment is not necessary, on a correct interpretation, it would resolve the question in the event of an incorrect one.
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 in any event, 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 policy would be less a rejection of other cultures than 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. To be clear, we should not exclude people based on their race or their religion. 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 — fascists, nazis, communists, radical Islamists, absolute monarchists. 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. And I’d go further. I’d make all permanent entrants sign a statement of support for the basic principles of liberty and equality recognized in the Declaration and enshrined in the Constitution. One last thing. I’d end federal welfare programs. 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 never had any business getting 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.
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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