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, 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. 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 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 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 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 birthright, that is, soil-based, 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 an executive order ending birthright citizenship in the United States. The order essentially implements the first recommendation of this plank and appears to be based on the same 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 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 is necessarily based on consent, the mutual and reciprocal consent of the individual and of the government.
The policy of birthright citizenship, that is, of automatically conferring citizenship on everyone born on our soil except foreign diplomats, which for the past half century or so has been asserted as required by our Constitution, is ultimately rooted, not in equality and consent, but rather in feudal concepts of subjection and perpetual allegiance (to the king). It is incompatible with our founding principles.
Birthright citizenship is based on English common law. Consent-based citizenship is based on natural law. Common law assumes obligation and renouncing your citizenship without permission is treason. Natural law assumes freedom: you are free to change your citizenship, regardless of what the government thinks, so long as your are a competent adult. There is is no penalty for expatriation because, in a free republic, voluntary expatriation is not a crime, it is a right, an inalienable right.
The actual practice of most nations today involves some mixture of natural and common law principles, but one or the other principle invariably predominates. Most nations rely primarily on natural law, favoring the citizenship of the parents in determining the citizenship of the child. A minority, including the United States, rely on a version of common law. I am referring here to our current practice, not to our actual law, properly understood. Our current, common-law based approach, is an outlier, besides. It confers birthright citizenship not only on the children of citizens but also on the children of parents who are in the country only temporarily and even illegally. That really is feudal.
While our practice has long resembled the common law approach, which lawyers call jus soli, meaning ‘right of soil,’ it has never really been based on it. The true underlying principle has always been, natural law or jus sanguinis, ‘right of blood.’
With the American Revolution, the nature of citizenship changed because the principles of our constitution changed. We threw off monarchy and became a republic. In a republic, citizens are equal. If we are equal, common law notions of subjectship and perpetual allegiance based on royal protection and feudal obligation are obviously out of place. Being a republic, our practice must be based on the republican principle of equality. It must be free and consensual.
Prior to the Fourteenth Amendment, which was ratified in 1868, and indeed prior to the Revolution, the children of slaves were not citizens. In some states (and before that, in all colonies), the children of free blacks were not citizens. And Native Americans were also never citizens, as a rule.
The Fourteenth Amendment defined citizenship in the Constitution for the first time. Up till then, states had determined citizenship. Now Congress did. To be sure, the Amendment did establish a form of birthright citizenship, but it limited that right. The first sentence of the Amendment, the Citizenship Clause, 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 sentence ensures citizenship to black Americans and everyone else born on U.S. soil to American parents, including, as its authors acknowledged at the time, permanent resident aliens.
But it does not include, and was never intended to include, 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 (Wong Kim Ark), coupled with an untenable reading of a single sentence in an 1866 congressional speech transcript, uttered during the debates over the proposed Amendment. Read properly, both the ruling and the transcript leave the default policy of consent-based citizenship undisturbed.
Congress has always had, and continues to have, freedom to adopt a policy resembling jus soli for pretty much anyone it pleases. It could, if it wished, make foreign tourists’ and illegal aliens’ children automatic citizens. But it has never done so. And it should not do so.
For nearly a century after 1868, it was understood 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, rather, ‘subject to the laws thereof.’ (Emphasis added.)
Obviously everyone, while on our soil, is subject to our laws — Englishmen must drive on the right — but it would be absurd to claim that everyone born on our soil owes us his political allegiance.
If the phrase, ‘subject to the jurisdiction’ of the United States meant merely ‘subject to the laws’ of the United States, it is redundant of the phrase, ‘born or naturalized in the United States.’ And legal draftsmen do not intentionally waste words in that way. The drafters of the Citizenship Clause intended to exclude everyone who does not owe his political allegiance to the United States. And they said so in debate.
Since 1776, Americans have been free to renounce their citizenship without incurring the charge of treason. If English common law remained in force in this area of the law, then that liberal practice would make no sense. But it does make sense, because the Revolution repealed the common law.
In 1924, Congress offered citizenship to American Indians. Now here is a real head-scratcher. Aren’t Native Americans made automatic citizens by the Fourteenth Amendment? After all, they’re born on American soil and they’re clearly subject to American laws. No. Congress had to pass a law to make them citizens because the Fourteenth Amendment did not do so. Why did it not? Because Indians are not ‘subject to the jurisdiction of the United States.’ They are subject to their tribe, which in a legal sense, is a foreign power.
The Amendment ties birthright citizenship to political allegiance rather to physical presence. As a result, it grants birthright citizenship to the children of American citizens and permanent resident aliens, but not to the children of American Indians, temporary visitors, and illegal aliens.
Despite appearances, and contrary to erroneous assertions, in America citizenship is based not on soil but on consent, which in practice means on descent.
Since our law has become confused in this area, Congress should straigten it out by restoring and reaffirming the Constitution’s default policy.
If necessary, as a transitional measure, the president should do this by executive action. It is something he can do, because the Immigration Act, as currently written, simply quotes the Fourteenth Amendment‘s citizenship clause verbatim. Congress has left the implementational details of citizenship policy to the executive. The judiciary has a role, of course, in its capacity as a policeman overseeing executive action.
As a last resort, of course, we, the People, can restore and reaffirm our historical default policy by amending our 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, or soil-based citizenship, but more as a convenience. The default policy was jus sanguinis or descent-based citizenship, because we are a republic. In the area of citizenship law, we broke with monarchical principles and thus with English common law we became a republic.
The ratification of the Fourteenth Amendment in 1868 shifted control of citizenship policy to Congress, subject, of course, to the limitations contained within the Amendment. But it did not adopt jus soli as a default policy. It did not adopt common law.
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, except when Congress directly offered them citizenship.
In 1865, Congress proposed, and the states ratified, the Thirteenth Amendment abolishing slavery and involuntary servitude throughout the United States. Former slave states notoriously tried to get around the Amendment and keep slavery and involuntary servitude going under other guises. So, the following year, Congress enacted the Civil Rights Act, the first sentence of which declared:
‘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 as a matter of federal law. Likewise, this policy would apply to the children of American Indians who were already U.S. citizens. (The term ‘Indians not taxed’ means Indians who are not citizens.)
But almost as soon as the ink had dried, questions were raised about whether Congress had authority to enact the Civil Rights Act. So, the same men who had penned the Act proposed to settle the question by proposing a constitutional amendment. The first sentence of that amendment, which eventually became the Fourteenth 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.’
While the wording of the Act and the Amendment differ, the meaning is the same. The debate over whether to ratify the Amendment was the main issue of the 1866 congressional elections, and the American people decided in favor of the Amendment, and ratified it in 1868.
What are we to make of the different wordings? Does ‘and subject to the jurisdiction thereof,’ really mean the same thing as ‘and not subject to any power, excluding Indians not taxed’? It does.
So why make a change? Presumably, for more than poetic reasons. Now, it’s possible they merely wanted a more elegant way to refer to the exclusion of ‘Indians not taxed.’ But a more likely reason, I think, is they wanted to drop the word ‘allegiance,’ because it has monarchical undertones and a prominent place in English common law. While they did intend to make political allegiance the basis of the limited birthright citizenship privilege they were establishing, they also wanted to escape the baggage that comes with the word ‘allegiance.’ I think they didn’t want anyone to 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 wanted it to be clearly consent-based rather than soil-based.
Or to put it differently, they wanted to distinguish between a partial and a complete allegiance. And while they could have said, ‘owing complete allegiance’ to the United States, they chose instead to say, ‘subject to the jurisdiction’ of the United States. And the latter phrase did not mean merely ‘subject to the laws’ of the United States.
Persons who are ‘subject to a foreign power’ are by definition not ‘subject’ to the United States. Are they subject to our laws while on our soil? Yes, of course. But are they subject to our ‘jurisdiction’ in the sense of owing us complete political allegiance? No. That’s silly. This has always been understood with regard to diplomats.
Why, then, are permanent resident aliens granted birthright citizenship? Because, although they are foreign nationals, subject to a foreign power, they also reside among us permanently, a sign that they have freely given their allegiance to our country in a real sense. They have consented to be ‘one of us’ for the rest of their lives. And that puts them under our jurisdiction, our complete jurisdiction.
Should we read ‘subject to the jurisdiction’ as implicitly including American Indians? After all, they’re born on our soil and subject to our laws. The answer is no. As we’ve seen, the same men who penned the Fourteenth Amendment penned the Civil Rights Act, working at the same time and for the same purpose. They clearly wanted to exclude the children of non-citizen Indians from birthright citizenship. And they clearly wanted to grant birthright citizenship to black Americans. The distinction is necessary because members of an Indian tribe are subject to a foreign power, legally speaking, while blacks are not.
Congress has the freedom to adopt a policy resembling jus soli, but it is not required to do so. And contrary to legal 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 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 man is his own sovereign, as it were. 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.
Opposite of mutual consent, as we’ve seen, is perpetual allegiance. 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.)
The fact that Congress has never tried to treat the renunciation of one’s citizenship as treason is a giveaway. Congress could not make expatriation punishable as treason, even if it wanted to, for two reasons. First, the Constitution’s treason clause is very narrow and expatriation is not a part of it. Second, the right of expatriation is a natural right, just as the right of revolution is a natural right. Both rights follow from the principle that all men are created equal. Since natural rights are inalienable, no one can take them away from us without our consent. Absent a constitutional amendment, Congress may not make expatriation a punishable offense.
Unfortunately, much confusion about the nature of U.S. citizenship has arisen in our law because the original, unamended Constitution does not speak to the issue of citizenship in plain terms. And where it does speak to it, indirectly, it used terms carried over from the common law (e.g., ‘naturalized,’ ‘natural born citizen’). (A ‘natural born’ citizens is one whose citizenship came to him through parentage rather than through naturalization.)
The Fourteenth Amendment resolves the ambiguity in the original Constitution. It defines citizenship in way that is consistent with natural law principles, and also shifts power over citizenship policy from the states to Congress. 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 I should say misconstrued, as meaning that any person born on U.S. soil is automatically a U.S. citizen except the child of a foreign diplomat. 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 also 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 withdraw it, for example, for treason (but not for expatriation).
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 goes 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.
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 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. The reasoning of the majority opinion is problematic. It asserts that American citizenship has always been based on jus soli and English common law.
The decision was not unanimous, and the dissenters argued that we broke with English common law when we established our republic.
Even if the majority opinion has had the effect of foisting jus soli on us as a practical matter, it does not do what its most vocal advocates often claim it does, namely, address the question of birthright citizenship with respect to the children of illegal immigrants. The case only addresses the status of children whose parents are non-naturalized legal immigrants, permanent resident aliens. The legal question regarding illegal aliens is still open, the Court may rule on it 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 by treaty and the Chinese Exclusion Act from ever becoming U.S. citizens. They were non-temporary migrant workers, permanent resident aliens. They had a son, who was born on U.S. soil. They traveled to their home country and came back, but the son was barred readmission under the Chinese Exclusion Act because he was, in the government’s view, a foreigner who lacked permission to enter. The family sued. He was, they said, a U.S. citizen by virtue of his birthplace, the United States.
The Court agreed. In doing so, as we’ve seen, they cited English common law and jus soli. For a 6-to-2 majority, Justice Horace Gray adopted an argument that seems at odds with his own earlier opinion in Elk. He asserted that the words ‘subject to the jurisdiction thereof’ mean ‘subject to the laws thereof’ only. In doing so, he rendered ‘subject to the jurisdiction thereof’ superfluous. Then, he went further and declared that they can be read ‘in no other way’ because of jus soli and English common law have always governed American citizenship law.
The dissenting justices disagreed. They said the words ‘subject to the jurisdiction’ mean ‘owing to the United States their political allegiance.’ They were right.
I can think of three good reasons by the reasoning in the majority opinion is wrong: (1) republican principles, (2) textual logic, (3) legislative history.
Textual logic. If the Wong majority’s reasoning is correct, the phrase ‘and subject to the jurisdiction thereof’ is superfluous.
Republican principles. Citizenship in a republic cannot be based on feudal subjection. It can only be based on mutual consent. We may renounce our citizenship, and Congress may offer people citizenship, but expatriation is not treason. Jus soli was repealed by the American Revolution.
Legislative history. Senator Lyman Trumbull explained that the goal of the committee that drafted the proposed Fourteenth Amendment 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.’
(Source: Congressional Globe, 39th Cong., 1st Sess., Feb. 1, 1866, 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 is referring to foreign visitors, people on our soil temporarily who do not owe us political loyalty. Tourists and sojourners, for example. We can have no right to make citizens of them. They must obey our laws while residing among us, to be sure, but none can be expected to give us his full, political allegiance. Only the ones who are here permanently with our consent can be said to owe us that kind of allegiance.
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 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.’
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 jus soli.
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 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.
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 here temporarily.
Unauthorized entrants and visa overstayers (illegal aliens) are here temporarily, and may wish to be here 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? He doesn’t. It strains credulity to think he does. He wants to exclude all foreigners, and all aliens who are here temporarily, which latter category includes all diplomats, whom he mentions though he need not, since they are included among aliens.
That he does this a bit unclearly is perhaps the fault of the transcriber. Or perhaps it is own fault. 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, as it were). 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 of the ratifiers that counts. 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 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 Amendment, 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 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? 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. Wong’s reasoning is mistaken. Wong is wrong.
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 Wong is right, and Eastman thinks it is wrong. 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 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 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, and other fascists. 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. 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.
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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