Chief Justice John Roberts declared Tuesday that all foreigners have a claim to American citizenship, so long as they happen to be born here. In doing so, as Justice Samuel Alito pointed out, he reimposed the British system of subjecthood totally rejected by the American founders “only days before” the country is set to celebrate its 250th anniversary of independence from that very system.
“According to the Court, the Fourteenth Amendment’s Citizenship Clause codified the British rule of birthright subjecthood with only one new exception, which was needed to accommodate the unique status of American Indians,” Alito wrote, dissenting from Roberts’ attempt to reimpose medieval feudalism. “That is a curious claim, and it is ironic that the Court should embrace it only days before we celebrate the 250th anniversary of our Declaration of Independence, which emphatically renounced the foundation on which the British rule rested.”
Alito explained further that the concept of “citizenship” was not part of the British understanding of a person’s association with government. “That rule did not concern ‘citizenship.’ There was no such thing as a ‘citizen’ of England, Scotland, or Ireland. The inhabitants of the British Isles were the King’s ‘subjects,’” he wrote.
Alito went on to explain that “in this system of soil and servitude, the Court sees ‘emancipation.’ But our Founders disagreed. The Declaration of Independence emphatically rejected the British theory of government. It proclaimed that governments ‘deriv[e] their just powers from the consent of the governed,’ not divine right. And it ‘[a]bsolved’ the people of the United States ‘from all Allegiance to the British Crown.’ With its foundation blown away, the British rule of birthright subjecthood was not suited for easy incorporation into American law.”
‘Too Much Is at Stake’
Alito also took the opportunity to not-so-subtly criticize Roberts’ fecklessness on the court.
Roberts is infamous for working overtime to find a meek, middle-ground result that exacerbates or does little to solve the issues at hand. Despite the dire consequences of this decision, such as allowing foreigners who have zero allegiance to the United States to become presidents, this decision must be no different in Roberts’ mind: It maintains the status quo, even if that status quo is an existential threat to the republic.
“The original meaning of the Fourteenth Amendment does not require inhumane results, and we should not adopt an erroneous interpretation of the Fourteenth Amendment simply out of fear of the consequences of ‘rocking the boat’ or as a reaction to current immigration policy,” Alito wrote. “Nor should we take the position that our hands are tied by dicta in a sprawling 19th-century opinion that is, to put the point gently, very far from a model of careful judicial craftsmanship. Too much is at stake.”
United States citizenship is precious. Anyone who has attended a ceremony where citizens are naturalized can see that message on the faces of those who take the citizenship oath. Before saddling the Nation with a medieval rule, we had better be certain the Constitution requires it.
Alito then went on to summarize the majority’s reasoning before dismissing it entirely:
The Court’s account of the birthright-citizenship rule in American law is roughly as follows. After American independence, the British rule of birthright subjecthood was modified in just one way (to take account of Indians who lived under tribal governance), but otherwise the rule was transplanted intact to American soil. As modified, the rule was that a child born in this country is automatically an American citizen unless the child is born to tribal Indians or to a diplomat with immunity from legal process. During the period before the Civil War, the rule’s status was firm. After the war, Congress codified the rule in §1 of the Fourteenth Amendment. And in United States v. Wong Kim Ark, 169 U. S. 649 (1898), this Court issued a binding precedent confirming what Congress had done.
“Every step of this story is incorrect,” Alito wrote. “The Declaration of Independence repudiated the foundation on which the British rule was based.”
