Straight to the point

President Trump’s second term thrusts the question of birthright citizenship to the forefront of American politics: should the United States automatically grant citizenship to any child who happens to be born on US soil? Neither the Declaration of Independence nor the Constitution requires doing such a thing. Yet defenders of birthright shut down any debate by framing opposition as cruel and racist — and obviously wrong as a legal matter.

But there is a strong constitutional and moral case for limiting birthright citizenship. It’s the argument that led the Trump administration to issue an executive order that defines a new status quo: going forward, children of illegal aliens won’t receive recognition of their citizenship by the US Department of State or any other executive agency.

Start with the Constitution. The question of birthright citizenship goes back to the 14th Amendment, one of the three ratified in the immediate wake of the Civil War. The relevant portion 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 phrase at issue is “and subject to the jurisdiction thereof” (known as the jurisdiction clause). Proponents of birthright maintain that the phrase merely means subject to the laws and courts of the United States.

Yet the debates over the 1866 Civil Rights Act, the legislation that led to the 14th Amendment, as well as the principles of the American founding, suggest a different interpretation.

The 1866 act was meant to secure the full benefits of citizenship for recently freed slaves and their descendants — and all black citizens, for that matter. The law’s proponents were determined to convert it from legislation to constitutional text, thus insulating its protections from change by a future Congress. Hence, the 14th Amendment. This means that the legislative history of the 1866 act can help illuminate what the 14th Amendment was supposed to be all about.

The 1866 legislation’s citizenship clause read: “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.” A few months later, when the 14th Amendment was debated, the floor manager, Sen. Jacob Howard, described it as “simply declaratory of what I regard as the law of the land already”, namely, that “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.”

By the “law of the land already”, Howard meant the recently passed 1866 Civil Rights Act. The then-chairman of the Senate Judiciary Committee, Lyman Trumbull, addressing an objection over the absence of the Civil Rights Act’s phrase “Indians not taxed” from the 14th Amendment, stated that it was obvious that Indians were not “subject to the jurisdiction” of the United States “in the sense of owing allegiance solely to the United States”.

In such language from some of the 14th Amendment’s chief proponents, we can discern the outlines of an argument that the jurisdiction clause meant more than merely being subject to the law and courts on US soil. It had to do with a fundamental tenet of citizenship: loyalty or allegiance.

So how did we end up with the children of even illegal aliens receiving automatic citizenship? The US Supreme Court first addressed the meaning of the citizenship clause of the 14th Amendment in an 1898 case. It concerned the fate of Wong Kim Ark, a child of Chinese nationals who were permanent US residents. In a 6-2 decision drafted by Justice Horace Gray, the high court held that the common law was the proper interpretive guide to the US Constitution’s text. Since the common law mandated birthright citizenship — jus soli as opposed jus sanguine, “right of soil” instead of “right of blood” — the child was a citizen under the 14^th Amendment.

To this day, the case remains the controlling precedent for the maximalist position on birthright citizenship, cited by sympathetic judges and law professors on both sides of the aisle. Yet the dissenting opinion, written by Chief Justice Melville Fuller, offers an interpretation of the 14^th Amendment’s citizenship clause that is more consonant with American principles of just government than Justice Gray’s opinion.

Fuller argued that the common law couldn’t be the controlling authority, because in separating from the British Crown in 1776, the American colonists had elevated the principles of the Declaration of Independence over the common law. The common law of England contemplated subjects owing perpetual allegiance, rather than citizens of a government based on consent.

Fuller was right. The common law didn’t come up at all during the debate over the 14th Amendment. There were no references to Sir Edward Coke or to Blackstone, the eminent English authorities on common law, and the lawmakers were much more comfortable speaking of the interaction between the principles of America and her institutions than they were citing English precedents on jus soli.

They believed that the principles of the Declaration would control — and, where necessary, overrule — the common law of England. If human equality is a fact of nature, then nobody may rule another without their consent. All ought to enjoy their liberties and the pursuit of happiness alike. The existence of slavery, the ensuing crisis brought on by the conflicts between these principles and American practice, and the subsequent Civil War are the historical context for the 13th, 14th, and 15th Amendments. American citizenship, defined constitutionally for the first time in the 1860s, was never based in blood. But crucially, it was never based in soil, either.

American citizenship was based on consent. Wong Kim Ark, then, should be overturned, and we should have a robust national debate about citizenship, immigration, and national allegiance. Congress is well within its enforcement powers under section 5 of the 14^th Amendment to restrict birthright citizenship much more than it does currently.

Let’s start with two issues on which we might reach a broad national consensus: illegal immigration and birth tourism. It seems to go against common sense to allow a million or two immigrants to cross our southern border illegally and then to confer citizenship upon the children they may have here.

Suggested reading

The progressive case against immigration

By Lee Fang

Children of foreign soldiers born on US soil have always been excluded from birthright citizenship, in the same way as the children of ambassadors and diplomats. It’s controversial to call the flood of economic migrants of recent years a slow-moving invasion — but what of the subset of that group that constitute criminals, foreign spies, and terrorists? Does it redound to American national interest or civic health to confer citizenship on any children they may produce on US soil?

Is it prudent, let alone just, to allow wealthy foreigners from China or Russia to purchase birth-tourism packages costing as much as $100,000 and including a final-trimester hospital stay in Florida or California as well as a fresh US passport for the new babies? Should we be in the business of exporting tens of thousands of newly minted Americans every year, with all the attendant privileges and benefits, to the homelands of our foreign adversaries?

To be sure, the meaning of the 14th Amendment’s citizenship clause is contested. The prospects for overturning Wong Kim Ark any time soon are remote. But even under the Wong Kim Ark precedent, controlling emphasis was placed on the importance of Ark’s parents being “permanently domiciled” in the United States. Let’s update and apply that precedent to a world transformed by transportation technology in the ensuing 127 years. If you are not a lawful permanent resident, any children you may have in the United States are permanent residents with you, not automatic citizens.

The next step after Trump’s executive order will be to get the American people more involved, which means Congress should debate, openly and with great fanfare, the meaning of the 14th Amendment on the relationship between birth, citizenship, and government by consent. None of these issues is as settled or obvious as defenders of birthright citizenship insist.

view 10 comments

Source: UnHerd Read the original article here: https://unherd.com/