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The 14th Amendment: Birthright For Whom?

Supreme Court

Donald Trump’s latest outrage is his call for ending “birthright citizenship.” The Left dismisses the idea as anti-immigrant, extreme (their favorite epithet), and, above all unconstitutional. Then again, the Left believes that the Constitution is a “living document.” On what grounds must it be “dead” in this regard? That a “Legal Affairs Writer” for the Huffington Post says that an amendment to end “birthright” would itself be unconstitutional tells us all we need to know about what the “living constitution” truly means to the Left—that the Constitution means whatever they think justice requires, the actual text of the constitution be damned.

That said, from an originalist perspective it is an open question. And is the question worth discussing? Not all conservatives agree. Ben Domenech, the Publisher of this website, thinks it is a mistake to revisit the question. Michael Barone is of the same opinion. There is, however more to the question than one might think, particularly regarding the status of the children of temporary visitors or people here illegally, without the consent of the American people.

The main constitutional argument for making location at birth primary is the 14th Amendment. It declares that “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.” In the case of U.S. v. Wong Kim Ark in 1898, we are told, the Court declared that the 14th Amendment means that all persons born on American soil, other than the children of diplomats are American citizens by birth—hence “birthright.” (Native Americans who were born on tribal soil were also understood to be citizens of their tribes first. But subsequent legislation has changed that.)

The second constitutional argument is that the U.S. follows the common law here, and as Justice Story noted, “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.”

Why ‘Birthright Citizenship’ Is Open For Interpretation

The reality of the situation is that the language of the Amendment is very much open to interpretation, as is even Justice Story’s opinion. Moreover, Wong Kim Ark did not necessarily decide the entire question. Wong Kim Ark had, the Court noted, “parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States.” In other words, he was the child of permanent legal residents of the U.S. The case need not apply to children of parents here temporarily or illegally.

Is it a coincidence that roughly the same Justices gave us both government mandated segregation and made soil the basis of citizenship?

It is also worth noting that the Court’s decision in Wong Kim Ark was not unanimous. Chief Justice Fuller dissented. He was joined by Justice Harlan. There is more than one way to read the phrase “subject to the jurisdiction thereof.” As some commentators have noted, Harry Reid suggested repealing “birthright” in the 1990s. Back then at least, prominent Democrats recognized that the matter was open to interpretation. (The activist Left, in good Soviet style, forced an apology out of Senator Reid in 2006.)

It is interesting that Harlan rejected “birthright” a mere two years after his famous dissent in Plessy v. Ferguson, the case that sustained government imposed segregation on private businesses. Is there any connection? Is it a coincidence that roughly the same Justices gave us both government mandated segregation and made soil the basis of citizenship? There might be. Dissenting from Plessy, Harlan argued that government imposed segregation is a violation of the equality of citizens in the eyes of the law. As such, it is contrary to American principles. What is “birthright” if not a rejection of the proposition that the American people may decide who may join us a fellow citizens?

Lawyers like “birthright” because it follows common law. Under the common law, anyone born on English soil was the King’s subject, and, therefore, obliged, by birth, to obey the King’s commands. One could only cease being the King’s subject with his explicit consent. That was why signing the Declaration of Independence was so important. The Declaration would have been the first piece of evidence in the treason trial of any of the signers should they have been captured. England, being a relatively free land, meant that being born on English soil also entitled the subject to the protection of the King and his government. English subjects enjoyed the “rights of Englishmen.” In the U.S. there is a line of reasoning suggesting that the United States follows common law in this regard.

That is why it is important to note that the lines usually quoted from Justice Story are about a child born during the American Revolution. The common law rules certainly applied to a case involving someone born under the King’s jurisdiction, as the child would be, Justice Story noted, had he been born before July 4, 1776. After that, allegiance was open for interpretation—civil wars and wars for independence make a hash of such rules. Whether, and to what degree the same rules applied in an independent United States was an interesting question. Later on in that case Justice Story noted that “Birth within the dominions of a sovereign is not always sufficient to create citizenship if the party at the time does not derive protection from its sovereign in virtue of his actual possession; and on the other hand, birth within the allegiance of a foreign sovereign does not always constitute allegiance if that allegiance be of a temporary nature within the dominions of another sovereign.” Recall, in this context, that Wong Kim Ark was the child of permanent legal residents.

The Court Has Yet To Settle The Matter

My research thus far indicates that the Court has not ruled on the citizenship of the children of people here temporarily or people here in violation of our laws. (Although there is unbinding dicta in one case.) In his book on the Conflict of the Laws, Justice Story endorsed the idea that there are limitations on making soil the prime determinant of political allegiance: “a reasonable qualification of this rule [allegiance based on location at birth] would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes.” He did note, however, that that qualification is not “universally established.”

If we follow the logic of the Declaration of Independence, “governments are instituted among men, deriving their just powers from the consent of the governed,” we find that in America, unlike in England, our nation is formed by agreement or compact, and not by heritage. The British constitution, and the common law, are an inheritance—concatenations of precedents. Our constitution is different. Ratifying the constitution by the people, in conventions appointed specially for that purpose, instead of ratifying the constitution by state governments, connects the Constitution and the Declaration in this regard.

If our nation is forged by consent, rather than by heritage, what about making new citizens?

If our nation is forged by consent, rather than by heritage, what about making new citizens? Ought they not to be created by mutual agreement between current citizens and those who wish to join us as citizens? What about children? They are citizens at birth, no? Does that violate the principle of consent? Jefferson, theorist that he was, addressed that question. As each person should have the opportunity to consent to the constitution under which he lives, Jefferson suggested that a constitution should last no longer than a generation (after consulting demographic charts, Jefferson suggested that that was roughly 19 years). Were that the case, each generation of new citizens could explicitly choose their political allegiance. But, as Madison noted, Jefferson’s proposal, however reasonable in theory, was utterly impracticable.

According to the best work of the era on such matters, Law of Nature and of Nations by Emmerich de Vattel, political allegiance, by nature, follows that of parents:

The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

Why The 14th Amendment Is Tricky

What about the children of people living abroad? “It is asked, whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers.” When the first Congress under the Constitution considered the issue, they followed Vattel, declaring that the children of American citizens who are residing outside the U.S. are “natural born”—ie: they are citizens according to the same Law of Nature and Nature’s God to which Americans appealed in 1776. (Obviating the “birther” canards aimed a President Obama, Senator McCain, and others.)

The best reading, in my view, is that the Amendment was not designed to make location at birth the primarily determinant of citizenship for Americans.

Is the textual history of the 14th Amendment any help? The best reading, in my view, is that the Amendment was not designed to make location at birth the primarily determinant of citizenship for Americans. American principles, which the 14th Amendment embodied, follow Vattel rather than common law in that regard. Recall that the purpose of that part of the 14th Amendment was to ensure that all former slaves in America were now citizens. In the Dred Scott case, Chief Justice Taney held that blacks could not be citizens of the United States, even though they were born on American soil. The former slaves, however, were not subjects to any foreign jurisdiction. The 14th Amendment was designed to ensure that they were American citizens, enjoying all the rights every other American citizen enjoyed. Two years before Wong Kim Ark, the Court said it was, despite the 14th Amendment, perfectly constitutional for governments to enforce segregation. Perhaps we should not consider the Court of the 1890s an oracle on interpreting the 14th Amendment.

Textual analysts differ. Domenech points to one scholarly article suggesting that it was designed to make soil fundamental to citizenship. Others, however, read the evidence differently. Ed Erler has made the case against soil-based citizenship for quite some time. There certainly was at least one Senator who believed that children of Chinese residents of California would be citizens. But there is more to the story than that.

Some of this comes down to the meaning of commas and the like. Consider one comment from the relevant debates: “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.” Does the phrase “foreigners, aliens, who belong to the families of ambassadors . . .” mean that it applies only to the children of ambassadors and the like? Perhaps. On the other hand, one could read it as suggesting “foreigners” are one thing and “aliens, who belong to the families . . .” as another. Perhaps we should quote Chief Justice Warren’s argument in Brown v. Board of Education—historians disagree about the original meaning of the 14th Amendment, and the Court is, therefore, free to rule on different grounds. But that would be sophistic. In such cases it is best to be grounded in constitutional principles and a close reading of the text.

Why Birthright Citizenship Undermines Self-Government

That the Court’s ruling in Wong Kim Ark had to do with the children of Chinese residents of the U.S. points to what is probably the most reasonable line for us to take. To tackle the problem of “birthright” we needn’t revisit the question of the children of permanent legal residents, however strong the case against it might be. Permanent residents are subject to American jurisdiction in a way that temporary residents are not, not to mention people here in violation of our laws, and without the consent of the American people. Moreover, permanent residents have been formally invited to live among us full time. (It is also worth noting that in formal grammar, “the jurisdiction” implies complete jurisdiction. By contrast one would have to specify “some” or “any” jurisdiction.” From the perspective of China’s emperor, of course, that would include both Wong Kim Ark and his parents. The case involved a conflict of the law, after all.)

Any time the U.S. tries to save an American citizen traveling abroad from the severities of foreign law, it is acting on precisely that principle. Similarly, when Secretary of State Kerry raises doubts about the right of the U.S. to prosecute a foreign national on U.S. soil, he is suggesting that foreign nationals in the U.S. are not entirely subject to American jurisdiction.

If in America the people are supposed to rule, then it must be the case that we the people have the right to decide who is eligible to join us as fellow-citizens.

If in America the people are supposed to rule, then it must be the case that we the people have the right to decide who is eligible to join us as fellow-citizens. That the Left says that we cannot even amend the constitution here tells us a great deal about how the Left views the principle of consent. Given modern transportation and tourism, to say that anyone born on American soil, however they got here, undermines the right of the people to self-government. After all, what are the infamous birthright tourism hotels if not a fraud perpetrated on the American people.

In other words, there are very good reasons to maintain that according to American principles citizenship is reserved to people who have chosen to be American. As a practical matter, their children are also citizens, but, as the naturalization act of 1790 notes, not their grandchildren if the family has remained outside the United States, choosing not to participate in its civic life. America has traditionally not been a nation based upon bloodlines, after all. (And what is family unification if not a policy of making bloodlines paramount?) That is why we have regularly naturalized new citizens in significant numbers. That said, doing so is a choice we the people have the right to make or we cease to be our own governors. There is nothing in the 14th Amendment, reasonably construed, that suggests otherwise. The 14th Amendment can be read to ensure that the children of anyone who we have agreed to come reside with us permanently are citizens, but not those who we have admitted only on a temporary basis or those who break our laws to enter.

What about the millions who are here already and who believe they are citizens, and who have been treated as such by many of our governments? Are we to kick them out of the U.S. as illegal residents? Justice does suggest that we consider this question very carefully. Ignorance of the law may be no excuse, but when the officers of government have themselves misunderstood the law the situation might be different. That is a question best revisited once we have control of our borders and have publicly and explicitly clarified the true meaning of the citizenship clause of the 14th Amendment. In the mean time, Americans can only maintain our birthright to be free and equal citizens by reasserting our right to live under law of our own choosing, and as part of a community of men and women based upon consent.