E Pluribus Unum: Well Maybe Not Everybody
Towards A Re-Examination Of Birthright Citizenship
These views are entirely personal and
do not, in any way, represent the views of BP America Inc. on any of the
subjects discussed in this essay.
Special thanks to Professor Lenni
Benson of New York Law
School for her
extraordinary research help and to D. Ray Mantle,
Esq. of Jenkens & Gilchrist,
P.C. for footnote style
correction and technical editing.
This article was first published in the April 1, 2006 issue of Bender's Immigration Bulletin
(Vol. 11, No. 7) at page 307.
Dedication: This article is dedicated to Ludivina Garcia
and her parents who know full well the importance of birthright citizenship.
I. A MODEST
PROPOSAL
At a dinner party soon after the American Revolution, a
society matron asked Benjamin
Franklin what kind of a government
the new nation had. The Sage of
Philadelphia is reported to have replied: “A republic Madame, if we can
keep it.” Well, keeping it is
what Americans have been about ever since. It has not been easy. More than a land or a people, America
is an idea and that idea has never stopped changing. Finding out for ourselves what kind of a
nation we are and what manner of people we have become has always been central
to the American experience.
Throughout the first century of our national life, there
was no definition of national citizenship[1];
this would not come until the Fourteenth Amendment that emerged from the
crucible of our most terrible war. The
Founding Fathers felt no need to explain a term they used quite freely. This is
hardly surprising for these were natural law theorists who instinctively
believed that the purpose of government was not to create rights but to protect
and preserve those that already existed. The reality of citizenship came not from
positive law, whether oral or written, but from nature and Nature’s God. That may be one major intellectual reason
why the meaning of citizenship was left open for so long. Precisely because the Founders had this
implicit understanding, they were less concerned with defining what a citizen
is than in enumerating what rights a citizen has that a government should
secure. The Constitution required nine
years of citizenship to serve as a United States Senator and seven to be a
member of the House of Representatives. In fact, Federalist opponents
successfully challenged the election of Albert Gallatin
to the U.S. Senate in 1793 precisely on this basis, namely lack of sufficient
citizenship. One had to be a natural-born citizen or a
citizen at the time of the Constitution’s adoption to be either President
or Vice- President. Rather curiously, the Constitution talks
about “citizens” and “natural-born” citizens, but never
tells us what either means or what the difference between the two might be. Neither the notes of the Constitutional
Convention nor the Federalist Papers tell us what the Founding Fathers thought
citizenship meant or how they believed it should be defined.
For a long time, it was commonly thought that virtually
anyone born in the United
States was a citizen, part of us. While this is still the case, more recent
interpretations of the Fourteenth Amendment have caused some to question the
legitimacy of birthright citizenship as an foundation of our identity. Recent polls found that, while most
Americans (69%) know about birthright citizenship, a majority (54%) do not feel
that the children of illegal aliens should benefit from it. There is no direct holding by the
Supreme Court on this explosive question. 9/11 has, not surprisingly, given the
entire issue new life. While
birthright citizenship is part of the highest law of the land, it has somehow
become a poster child to its critics for illegality and abuse, a symbol of how
the undocumented take advantage of the American system. Those who clamor for immigration reform
invariably also advocate a narrowing of the common law rule itself.
They argue for a theory of citizenship based not on
geography but consent, consent flowing from the individual to the nation and
back again. Under this
understanding of citizenship, the individual need not give his or her consent
and the nation is free to reject it. The applicant for admission must want to
offer complete allegiance to the United States and be wholly capable
of doing so. In turn, the nation
must agree to have the individual join it on a permanent basis no less worthy
of respect and participation than those who already belong. How such consent is to be expressed and how such acceptance
should be made manifest seem very much up in the air. The advocates of consent
tend to approach it as a one dimensional concept, yet it may be far more
complicated, and less certain, than that. It is unclear as to whether the
proffer or the acceptance can either be withdrawn or made conditional upon the
satisfaction of conditions precedent or subsequent. Using consent as
the test, can those whose very presence here is a continuing violation of our
most central immigration laws possibly join on an equal footing with those who
have come before? Who is to judge the sufficiency of consent and by what
standard? When even the most basic definitional
standards of national identity require interpretation and invite discussion or
disagreement, one senses the waters are deep with rapids ahead.
Yet, the lure of consent is
undeniable. This paradigm
has the virtue of being consistent with America’s revolutionary past
which involved a rejection of monarchy and the notion of permanent or perpetual
allegiance that went with it. It is
also aligned with the uniquely American view that citizenship may given up at
the will of the individual, that expatriation is the birthright of all free
people, the exercise of which may neither be hindered nor abridged. The issue is not whether historical
precedents exist for citizenship by consent, for they surely do, but whether
such precedents have anything to do with the reasons why Congress created the
Fourteenth Amendment and how the federal courts have interpreted it since then.
Beyond that, the exclusionary
possibilities inherent in consent must be considered and compared against the
demonstrable tendencies towards inclusion, certainty and the promotion of
social cohesion that the common rule law of citizenship based on birth within
the United States
has always exhibited. The creative tension between
consent and birthright citizenship is not only natural but actually enriches
our understanding of, and appreciation for, both. It is this combination of
individual liberty and social responsibility that has always informed American
citizenship and our understanding of it. The value of unity and cohesion, so
well symbolized and admirably achieved by the common law rule, is the perfect
counterpoint to the virtues of consent- intelligent choices voluntarily made
with full understanding of the consequences at issue and the interests at
stake. Consent and the common law need not be enemies. When seen in their true
and proper light, they become partners in the service of a larger and more
common purpose, an American citizenship that has meaning for the individual and
for the nation of which they are a part.
The Citizenship Clause of the Fourteenth Amendment is
deceptively simple: “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.” We know why Congress felt it necessary to
have such a definition; it was intended to overrule for all time the Dred Scott
decision, perhaps
the most frontal attack ever made on birthright citizenship and one which reveals
the coercive potential inherent in any notion of citizenship based on consent. However consonant with the American
liberal tradition, and with full awareness of its iconic status as Jefferson’s muse in the
Declaration, consent, when advanced as an organizing precept for civil society,
is not without serious risk. Those who assault birthright citizenship
seek to replace it with a consent-based paradigm that would require the nation
to accept an expression of individual allegiance before citizenship can be
attained. While this is, in many
ways, consistent with the American understanding of allegiance as transferable,
rather than perpetual, it may not possess the inclusive and unifying power that
birthright citizenship has demonstrated through successive ways of migration
over the long course of American history. To the extent that consent serves to
narrow, rather than expand, the American family, a serious question arises as
to whether such an effect is faithful to the Fourteenth Amendment and the reasons
for its creation. Enacted to bring
order and stability, to end confusion as to who is a citizen and who is not,
the Fourteenth Amendment has done precisely that. Will this continue?
It is the jurisdictional element of the Citizenship Clause
that has served as the focal point of debate. What did Congress mean by these words? Former Attorney
General William Barr
once argued that anyone who came to the United States subjected himself to
its jurisdiction by taking any action that had an effect here. Is that it? If so, the words seem almost superfluous
in their lack of definition. Did they modify the scope of birthright
citizenship by serving to take away what the Amendment otherwise granted? If this was what Congress meant to do,
did it have the power to do so? If
this was not what the Framers meant to do, if birthright citizenship remains
wholly intact, why have such qualifier at all? Hence, the need to look a bit
further. Let’s see what we
find. Such an inquiry should be a
cautious one, remembering that jurisdiction is “a word of many, too many
meanings,” with
“so many different uses that confusion ensues. Where we come out may surprise us or
reaffirm what we have long felt and deeply believed.
It is the purpose of this essay to take a look at this
debate in the hope that some clarity of purpose may thereby emerge. Readers will search in vain for any
discussion about illegal migration as a serious national problem. Politicians and pundits must, and
doubtless will, decide for themselves and the rest of us if the Fourteenth
Amendment requires modification. The
goal here is a much more modest one: to re-examine the legal forces behind the
adoption of birthright citizenship and try to determine if it is the authentic
expression of the American legal tradition that gave it birth.
II. HISTORICAL
BACKGROUND
There are two ways to determine birthright citizenship. Jus soli says that one derives
citizenship according to the place of birth while jus sanguinus makes citizenship of the child follow that of the
parents, regardless of geography. The
English common law which is the foundation of American jurisprudence followed jus solis, with the exception of
children of foreign diplomats, themselves immune from US law, and children of a hostile
occupying army. The earliest and most influential
articulation of jus solis dates back
to the reign of King James I in 1608 when Calvin’s
Case decreed that a subject born within the royal realm was entitled to
protection by the crown and owed allegiance to this same protector. It was the locale of such birth that Lord Coke saw as the
indissoluble link between sovereign and subject irrespective of parental
status. The common law rule announced in Calvin’s Case “became the
basis for the view that the purpose and effect of the first section of the
Fourteenth Amendment must be to constitutionalize birthright
citizenship.” All of the standard legal treatises of
the nineteenth century included Calvin’s
Case, a principal reason for its pervasive influence. In a wholly unintended way, the very
breadth and depth of this impact may have served to retard attempts at a
federal definition of citizenship since the need for such legislative action
did not seem readily apparent.
The fact of the American Revolution, whose Declaration of
Independence flowed from the animating power of consent, and whose very purpose
and most central effect was to sever all permanent loyalties for a new people
in a new nation, raised a question to some as to whether automatic citizenship arising
out of perpetual allegiance between sovereign and subject could apply in a
republic or more properly belonged to the law of nations. Critics of birthright citizenship argue
that no mutuality of allegiance or obligation can exist between the nation and
an illegal alien whose very presence here demonstrates an absence of obedience
to the laws of the land. Precisely because there is such a firm
bond between the common law tradition inherited from England and birthright citizenship,
a rejection of the latter invariably requires a similar rejection of the
former, substituting in its place the civil law tradition that was more closely
identified with jus sanguinis. In speaking of citizenship, Mr. Justice Story seemed
to place it most comfortably in the realm of international law when he observed
that
“Political rights do not stand upon the mere doctrines of municipal law applicable to ordinary
transactions but stand upon the general principles of the law of
nations.” It is hardly surprising that opponents of
birthright citizenship would prefer international to common law since the
former ignores the place of birth and makes citizenship follow that of the
father or, if born out of wedlock, of the mother.
It would be a mistake to think that the Fourteenth
Amendment introduced the concept of birthright citizenship. In fact, such as rule has long been used
by American courts. “It was
beyond doubt,” Mr. Justice Gray told us in WongKim Ark, “that,
before the enactment of the civil rights act of 1866 or the adoption of the
constitutional amendment, all white persons, at least, born within the
sovereignty of the United States, whether children of citizens or foreigners,
excepting only children of ambassadors or public ministers of a foreign
government, were native-born citizens of the United States.” What the Fourteenth Amendment did was to
give it constitutional form, thus placing it beyond future challenge. Rather than creating a right that had not
previously existed, the Amendment built on the common law tradition. In 1830, the Supreme Court put it this
way: “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.” Equating English “subjects”
with American “citizens” the Court declared forthrightly that, as a
matter of common law, acquisition of citizenship at birth by children of alien
parents was wholly dependent upon the accident of geography. Scholars believe that the 1844 New York case of Lynch
v. Clarke “was the first case to decide the
issue of whether the U.S.-born child of an alien was a U.S. citizen.” Perhaps most importantly, the Court rejected
the argument that the common law rule of birthright citizenship was an
antiquated feudal doctrine out of place in an independent republic. While the Constitution and federal
statutes, including the Naturalization Act of 1790, did not define citizenship,
Lynch v. Clarke drew from such
silence an implicit acceptance of the common law position. Even though both of Julia Clarke’s
parents never intended to live in the United States on a permanent basis,
and despite her own election to remain in England as an adult, the New York
Chancery Court had no hesitation in deciding that she remained a citizen
because she was born here: “It is an indisputable proposition, that by
the rule of the common law of England, if applied to these facts, Julia Lynch
was a natural born citizen of the United States.”
One of the main reasons why critics of birthright
citizenship contend that the children of illegal aliens born in the United
States are not American citizens is the fact that, in the late 1860’s,
when Congress debated and drafted the Fourteenth Amendment, there were no
illegal aliens in a national sense for the simple reason that Congress had not
yet placed any limits on immigration and would not do so until 1875. This assumes that, prior to the Civil
War, the states were not active in seeking to regulate those who sought
admission into their respective jurisdictions. In other words, while it is true that the
concept of illegal migration was not yet known on the federal level, this does
not necessarily mean that immigration controls were not a recognized exercise
of state authority. We are not used
to examining what Professor
Gerald Neuman
has called this “lost century of immigration law,” but any
assumptions about what the Fourteenth Amendment was meant to achieve must take
this phenomenon into account.
While the United
States may have maintained an “open
door” policy, the individual states must assuredly did not. The Senators and Congressman who created
the Fourteenth Amendment knew that. They did not regard controls on migration
as the exclusively federal responsibility it would later become. Even before adoption of the
Constitution, the Congress of the Articles of Confederation asked the states to
“pass proper laws for preventing the transportation of convicted
malefactors from foreign countries into the United States.” Following the ratification of the
Constitution, additional state laws were passed along these same lines. While modern immigration specialists
think of deportation as purely federal, there were nineteenth century
equivalent state law techniques known as banishment and conditional pardon that
states used to get rid of those they did not want. State governors used their power of
conditional pardon to forgive convicted felons on condition that they leave the
state for a designated period of time. Much as the current Immigration and
Nationality Act excludes those who are likely to become a public charge, nineteenth
century state poor laws also contained numerous immigration-related provisions.
That is why the two ports who took in the most immigrants,
New York and Boston, were the ones most on guard to screen
out passengers who were most likely to become paupers. In 1851, the Massachusetts legislature forced all
shipping companies and land carriers to support or remove any foreign passenger
who went on the dole within one year of arrival. As the Irish potato famine took hold and
Irish migration to Massachusetts
surged in the 1850’s, state laws were put in place to allow for prompt
removal of any impoverished newcomer to his native land. New
York City officials were equally vigilant. New
York law required ship captains to report the names
and occupations of all passengers within twenty-four hours of arrival. How dissimilar is this from what airlines
and cruise lines have to do now? A
bond had to be provided to indemnify municipal authorities against the risk
that a passenger would become a pauper within two years. In 1847, the New York legislature created a board of
Commissioners of Emigration who oversaw the inspection and treatment of
arriving passengers. After the
Supreme Court struck down the Massachusetts system of head taxes in The Passenger Cases,
the New York legislature altered its practice of charging each alien arrival one
dollar in lieu of bond, but the Supreme Court struck down the voluntary option
after the enactment of the Fourteenth Amendment, thus helping to usher out the
era of state immigration law. As early as 1796, Congress authorized
federal customs officials to cooperate in the enforcement of state quarantine and health laws. No less an authority than Chief Justice John Marshall recognized that quarantine and
health regulation belonged rightly to the “immense mass of legislation
which embraces everything within the territory of a State, not surrendered to
the general government.” Indeed, it was not until 1921, over fifty
years after the Fourteenth Amendment,
that New York
finally shut down all international quarantine functions, the last state to do
so. Nor was immigration control by the states
restricted to health and safety.
Several state bans on the entry of free blacks came after the victorious
slave revolt in Haiti
led by Toussaint L’Ouverture. While undeniably racial in character,
such laws can also logically be viewed as immigration controls, not that
dissimilar from current federal policies that also seek to turn back Haitian
refugees. Antebellum Southern
restrictions on the movement of black seaman which placed the cost of their
lodging and care squarely on the vessel master until the left port primarily
reflected lurid fears of slave insurrection following the Denmark Vesey
conspiracy of 1822 in Charleston,
but they were more than that. Such
laws also angered foreign nations whose ships contained black crew members who
had to remain on board and could not mix or communicate with the local black
population.
The Founding Fathers took away from Congress the power to
ban the importation of African slaves for the first twenty years of our
national existence. After 1808, however, it was illegal for
anyone to bring African slaves into this nation. Despite that, they came and in large
numbers. In a very real sense,
notwithstanding the brutal and involuntary nature of their migration, these
African slaves were the nineteenth century equivalent to the large illegal
alien population of today. By the
time that Congress could act to choke off the international slave traffic,
nearly every state that still had slavery had already moved on its own to put in
place similar prohibitions. Even
after Congress acted, the state prohibitions still remained. Since many of these state laws came from
areas that did not object to slavery per se, it is not too much of an
exaggeration to think of these as immigration restrictions although, like
similar immigration enforcement today, the commitment to their administration
was neither consistent nor continuous. There were even state restrictions in
place against interstate movement of slaves. The Supreme Court went so far as to
affirm a state criminal conviction for harboring a runaway slave under the
rationale that Illinois could prevent the entry of persons
“unacceptable” to it. The criminalizing of unlawful
immigration status is hardly a new idea.
The conventional wisdom that the phenomenon of illegal
immigration belongs wholly to the late nineteenth and early twentieth centuries
needs to be re-examined. Had such
state regulation been more effective, perhaps contemporary observers would know
more about it. Notwithstanding its limited impact, state
immigration regulations were an active presence before 1875 at a time when
immigration law has been accurately described as “a complex hybrid of
state and federal policy.” The transition to exclusive federal
regulation of immigration took a lot longer in coming than most people today
realize. It was not until Congress
took the first steps to retard European migration
that the Supreme Court invalidated state immigration controls as an undue
constraint on interstate commerce.
III. The Civil Rights Bill
of 1866 and the Fourteenth Amendment
Critics of birthright citizenship argue that the
jurisdictional clause of the Fourteenth Amendment necessarily restricts the
application of birthright citizenship if it is to have any meaning at all. Otherwise, they contend, what good is
it? If everyone in the United
States is “subject to the jurisdiction” for citizenship purposes,
then the qualifier is so broad as to serve no purpose. The purpose had to be, so the argument
runs, to exclude those who had no allegiance to the national community as a
whole, to the United States
in essence. By contrast, friends of birthright
citizenship argue that “the constitutional law is clear—Congress
has no power whatsoever to deny U.S. citizenship to children born in the United
States to nonimmigrant or illegal alien parents,”
and maintain that “subject to the jurisdiction” means nothing more
nor less than “actual subjection to the lawmaking power of the United
States,” with
the exceptions recognized at common law, those being the “children of
foreign diplomats who were legally immune from domestic law and children born
to women accompanying invading armies.” The original understanding of the
Fourteenth Amendment also excluded “children born as members of Indian
tribes which were separate self-governing societies over which Congress did not
exercise direct lawmaking authority.” Where the two sides divide is over the
critical question of whether complete allegiance and informed consent is both
necessary and proper for jurisdiction to be invoked and citizenship to attach. In the hands of critics, consent becomes the way that Congress qualified
the scope of birthright citizenship, thereby infusing the jurisdictional
language with a relevance that it otherwise would have lacked. If one regards consent as “marking
an outer limit to the scope of the birthright citizenship principle,”
how is that line of demarcation to be drawn?
The citizenship clause of the Fourteenth Amendment did not
emerge from a vacuum. Congress
wanted to elevate to constitutional stature precisely the very same definition
that President Andrew
Johnson found so objectionable
when he vetoed the Civil Rights Bill of 1866: “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.” When the Senate first considered the
Civil Rights Bill, it lacked a definition of citizenship. This came on the initiative of Senator Lyman Trumbull
of Illinois, Chair of the Judiciary Committee
and the Senate floor manager, who introduced an amendment declaring that
“all persons of African descent born in the United
States are hereby declared to be citizens of the United States.” While this would have reversed Dred Scott,
which was, after all, the point, it would “have done so on the narrowest
possible ground.” Trumbull and the Radical Republicans
wanted more and, on the very next day, before any vote could be taken on the
more modest version, he introduced what became the final text, that most
proudly provided the blessings of automatic citizenship to “all persons
born in the United States…without distinction of color”
so long as they were “not subject to any foreign power.” Critics of birthright citizenship who
contend that only the freedmen can lay claim to the protections of the Civil
Rights Bill of 1866, or its constitutional progeny, have to refute the
magnifying power of Trumbull’s
more expansive language.
Allegiance is the magic link, the nexus between
jurisdiction and consent. While
allegiance had certainly been mentioned by Lord Coke in Calvin’s Case, it was created by the fact that birth within
the realm meant that the sovereign possessed, and might therefore exercise,
power over the individual. But to those who contend that the Civil
Rights Bill of 1866 and the Fourteenth Amendment narrowed, rather than
merely restated, the common law rule on birthright citizenship, it is consent
that provides a way to see how such agreement came to life and was made
manifest, consent on the part of the community and by the citizen. When Senator Jacob Howard
of Michigan
introduced the birthright citizenship clause as a modification to Section 1 of
the Fourteenth Amendment, a similar colloquy ensued as to its meaning. Once again, most Senators discussed it
largely with respect to Indians but one can glean selected comments that hint
at a wider frame of reference. In
the course of responding to Senator James Doolittle
of Wisconsin, Senator Trumbull revealed how he defined “subject
to the jurisdiction” of the United States: It meant “not
owing allegiance to anybody else.” Senator Howard was of like mind, explaining that,
when he wrote the Citizenship Clause, it was with contemplation of a
“full and complete jurisdiction” by which he meant “the same
jurisdiction in extent and quality as applies to every citizen of the United States
now.” The “jurisdiction” of which Senator Howard spoke was
to be “coextensive in all respects with the constitutional power of the United States.” Senator George Williams
of Oregon, a member of the Joint Committee on
Reconstruction and later Attorney General of the United
States, understood the jurisdictional clause to mean
“fully and completely subject to the jurisdiction of the United States.” This then, to critics of birthright
citizenship, is what the jurisdictional gloss on the Fourteenth Amendment
really means, what it was intended to do and why Congress felt it important
enough to put there: add consent to the common law rule and thereby transform
it from a feudal appendage into a connection between the individual and the
government, an ongoing dialogue symbolized by citizenship of which it was the
highest and most complete expression. It was almost as if the common law rule
was too modest, too reticent, too constricting a definition for such an exalted
status in such a triumphal nation. The
problem with such an understanding of jurisdiction is not that it lacks merit,
for indeed there is much here that merits serious and sober consideration, but
that no one has ever used jurisdiction in this way, nor does it seem that the
framers of the Fourteenth Amendment did so. If exclusive allegiance is the price of
deriving citizenship from one’s parents, who else but the children of
citizens could have a truly secure claim? Certainly not the children of lawful
permanent residents whose primary allegiance must remain to the country of
their birth. Use of the term
“complete jurisdiction” was aimed at excluding Native Americans
from the definition of citizenship. It was for this reason, and on that
basis, that the architects of the Fourteenth Amendment, most notably Senators
Trumbull and Howard, the Floor Managers in the Senate, opposed an amendment put
forward by Senator James Doolittle of Wisconsin who sought to graft on language
from the Civil Rights Bill of 1866 for the single and specific purpose of
making sure that “Indians not taxed” did not come within the
meaning of citizenship.
The relevance of consent as a prism through which we
understand birthright citizenship depends upon what we think those who wrote
the Fourteenth Amendment were trying to achieve. It may not be entirely coincidental that
the same Congress which passed the Fourteenth Amendment, just one day before,
also passed the Expatriation Act, thus allowing Americans to give up their
citizenship if such was their election. To some, the rejection of perpetual
allegiance also necessarily meant a rejection of the birthright citizenship
that went with it. There was no
distinction in the minds of such critics between the consent required to
relinquish citizenship and the consent required to get it in the first place. The fact that a citizen must consent in a
knowing and voluntary manner, with due appreciation for all possible
consequences, to his or her loss of citizenship
does not necessarily mean, however, that consent is also a necessary
precondition for the creation of such status. If Congress meant to chart a new course,
to break with legal tradition and place the acquisition of citizenship on a
bold and entirely new theoretical basis, then consent becomes a logical,
perhaps even the inevitable, organizing principle around which all else
revolves. No longer would the
common law serve as intellectual ballast for such a system; something else must
then be found to take its place and consent must then march forward, center
stage, to perform its essential role. Consent becomes necessary if one assumes
that the Fourteenth Amendment had a revolutionary purpose. If we accept the primacy of consent as a
basis to define citizenship, then the argument against extending such
birthright to the children of illegal aliens whose birth in the United States results from their parents’
violation of United States
law is immeasurably strengthened. Under
such circumstances, it becomes difficult to contend with any logical
consistency that the nation has consented to their inheritance of such a
precious benefit. But, if such was not the case, if the
framers were not plotting a course towards a brave new world, and sought not a
radical break from the past, but a forthright reaffirmation of its most basic
tradition and fundamental assumption which held that citizenship was
territorial in nature, then the need to plumb the depths of consent fades away.
That is what the debate over the
Fourteenth Amendment is all about. Since the conflict that gave it birth was
so radically transforming, it is hard for many to believe that the pre-eminent
constitutional symbol of its results could not but be animated by a similar
purpose. Was this the case?
Senator Howard, who, as the author, should know what he
was trying to do, did not think he was marching off into uncharted territory;
to him, the citizenship clause broke no new ground: “This amendment which
I have offered is simply declaratory of what I regard as the law of the land
already, 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 ….” Senator Howard then went on to say that the
citizenship clause would not 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.” Senator Morrill also felt that birthright
citizenship was a fundamental truism beyond reasonable challenge and not in
need of special or renewed justification; speaking in support of the Civil
Rights Bill of 1866, he left little room for doubt:
As a matter of law, does anybody deny here or anywhere that the
native born is a citizen, and a citizen by virtue of his birth alone?... the
grand principle both of nature and nations, both of law and politics that birth
gives citizenship alone gives citizenship of itself... Everywhere where the principles of law
have been recognized at all, birth by its inherent energy and force gives
citizenship. Therefore, this
amendment, although it as a grand enunciation … has no force or
efficiency as an enactment. I hail
it and accept it simply as a declaration.
To the extent that the Fourteenth Amendment was
declarative, rather than creative, the power of the consent-based theory wanes
considerably. If Congress simply
constitutionalized what existed, then the integrity of the common law rule on
birthright citizenship remains wholly unaffected and entirely pristine in both
form and effect.
The symbiosis between consent and allegiance does
introduce a new dynamic into the mental model of birthright citizenship that
the more stable, if less exciting, common law rule lacked. This has particular relevance for our
current debate over the relationship between the undocumented and the Fourteenth
Amendment. Here is why. If active and open allegiance is the
essential condition precedent to birthright citizenship, how is it possible for
an illegal alien, someone who’s very physical presence in the United States
depends upon a constant and continued ability to stay in the shadows, to
display such affection and obedience in an open and obvious fashion? Can such a person fully discharge all of
the necessary obligations of citizenship or, upon failing to do so, be subject
to sanction? When Senator Lyman Trumbull
spoke of “all persons born in the United
States and under its authority, owing allegiance to the United States,
are citizens without any act of Congress,”
was he saying that the mere geographical accident of birth was no longer
enough? Had something changed? Would future citizens now be required to
display some manifestation of will, some expression of fealty, as a condition
precedent to joining the club? How
that was to be done, and under what circumstances was not clear, nor did Senator
Trumbull indicate what the nation had to do in response to such an expression
of allegiance, or even whether allegiance given could be refused, or perhaps
made conditional. Senator Trumbull had the
intellectual honesty to concede that “there is a difference of opinion
upon that subject.” Was he speaking to reaffirm the common
law rule or leave it behind? Did he
seek to convince those who clung fast to birthright citizenship or those who,
like Chief Justice Taney, felt that people of color, even if free, could not
share in the privileges of membership?
We do not know. We do know
that there was historical precedent for requiring a demonstration of loyalty
from those who wish to become American citizens. As far back at the Naturalization Act of
1795, applicants had to renounce their old allegiances and support the
Constitution. The issue is not that the Senator Trumbull harkened
back to this tradition, but, rather, whether he sought to use it for new and
different purposes.
Perhaps, the beginning of an answer may emerge by asking
who among those born in the United
States would be unable to manifest the
allegiance that Senator Trumbull
saw as necessary for automatic citizenship. “We cannot,” answers Senator Trumbull,
“make a citizen of the child of a foreign minister who is temporarily
residing here.” Now, this statement can be parsed in two
different ways. One understanding
brings it squarely within the traditional common law exception to birthright
citizenship for the children of diplomats who, by virtue of their diplomatic
immunity, are not subject to the jurisdiction of the United States. This is probably what Senator Trumbull meant,
but there is another interpretation that can be placed on it, namely one that
emphasizes the “temporariness” of the parent’s status
here. Why was this a problem? Was there a connection in Senator Trumbull’s
mind, in his understanding of what the Fourteenth Amendment was trying to
achieve, between the permanence of the parental connection and the allegiance
of the child? This seems to have
troubled Senator Trumbull who acknowledged that, after some pondering the
matter, he concluded that while “a sort of allegiance was due to the
country from persons temporarily resident in it,”
this was not enough on which to base the wording of the Fourteenth Amendment
since, with reference to those with such a transitory tie to America, “we
would have no right to make citizens ... ” Nor was Senator
Trumbull the only one to voice
such sentiments. Even strong
supporters of birthright citizenship, like Senator Ben Wade,
appear to have harbored similar doubts, to a greater or lesser degree. In responding to a question from Senator Fessenden of Maine as to whether a
child born here of parents temporarily in this country could rightly be
considered citizens, Senator Wade
did not think so: “The Senator says a person may be born here and not be
a citizen . . . . By a fiction of law, such persons are not supposed to be
residing here, and under that fiction of law, their children would not be
citizens of the United
States... I agree to that ...”
Since the context in which such remarks were made was
principally one concerned with Indians under tribal authority and whether they
should be brought under the Amendment’s umbrella, it would be exceedingly
unwise to make too much of such asides or rip them out of their proper setting
in order to support or advance a contemporary critique of birthright
citizenship. That goes far beyond Senator Trumbull’s
far more cautious posture. Still,
there is a concern here with the quality of allegiance that some born in the United States
could have and that is worth noting, if only for the historical record. While it is far too much to say that Senator Trumbull was
rejecting birthright citizenship, a conclusion that likely would have
astonished him, it is fair to suggest that he was placing an interpretative
gloss on the common law rule that earlier observers had not applied to it. On balance, it seems most faithful to
the spirit of Senator Trumbull
and his colleagues to suggest that they “intended the amendment to
resolve not only the status of African-Americans and their descendants but
members of other alien groups as well.” To suggest that the framing of the Fourteenth
Amendment was the constitutional expression of a conscious intent to reshape
the contours and context of the American understanding of citizenship, a
position that must be taken if one is to argue for the primacy of consent, is
to forget that the Radical Republicans in Congress saw their mission as one of
turning back the clock and reversing the whirlwind that Chief Justice Taney had
unleashed with Dred Scott:
The legislative history makes it very clear that the framers of
the Fourteenth Amendment were not trying to adopt a transformative new
conception of citizenship by consent. That was what the Supreme Court had done
in the famous Dred Scott decision,
excluding African-Americans from the jus soli rule on the ground that whites
did not consider them appropriate partners in the political community. The framers sought to overturn that
innovation, and to reaffirm on racially neutral ground the same principles that
had always governed American citizenship for persons of European descent.
The people who created the Fourteenth Amendment were not
trying to create a brave new world; they were, instead, attempting to put Humpty Dumpty
back together again.
IV. JUDICIAL
INTERPRETATIONS
Judicial interpretations of the Fourteenth Amendment can
be roughly divided into two distinct periods. The first lasted for thirty years until
1898 and emphasized the need for exclusive allegiance to the United States as the primary way to
define citizenship. It is this
period that critics of birthright citizenship point to as the correct
interpretation of original intent. The
second period of judicial interpretation began in 1898 and continues until the
present day. In this era, the
courts de-emphasized the need for exclusive allegiance and focused instead on
the jurisdictional effect of birth as a geographic fact. It is this second interpretation that has
clearly emerged as the dominant judicial understanding of what the Citizenship
Clause means. However, the
defenders of the earlier exegesis rightly point out that the Supreme Court has
never held, however frequently it has assumed in dicta, that the Citizenship
Clause extends so far as to shelter children whose parents are here in
violation of United States law. This
does not mean that such a reading of the Citizenship Clause may not be inferred
as a matter of law and logic, for clearly it can and has been. It does,
however, suggest that those who question such an inference are not wholly
outside the American judicial mainstream, however much they may occupy a
minority position.
A. The Minority Judicial View
Critics of birthright citizenship harken back to what they
fondly recall as a golden age of Fourteenth Amendment jurisprudence. They take heart in the fact that this
view was closest in time to the Amendment itself and therefore carries with it
the aura of authenticity. There are
two key Supreme Court cases that stand out as exemplars of this minority
judicial view: (a) The Slaughter House
cases, and (b) Elk v. Wilkins. In The
Slaughterhouse Cases, the Court noted in dicta that the disputed phrase “subject to the jurisdiction
thereof” was “intended to exclude from its operation children of
ministers, consuls and citizens or subjects of foreign states born
within the United States.” (emphasis added). In the latter decision,
far more important as an expression of this minority position, the Court
“denied citizenship to John
Elk, an Indian, because he did not
owe complete allegiance to the United
States.” While it is very much of an open question
as to whether Elk v. Wilkins remains
good law, partly because its author Justice Horace Gray subsequently changed
his mind in Wong Kim Ark and partly
because the citizenship of the American Indian has long since been granted by
Congress , Elk v. Wilkins is grounded on the notion
of exclusive allegiance as the determining factor in the acquisition of
citizenship and, as such, provides a respectable intellectual pedigree for
subsequent critics of the majority judicial view. Speaking for the Court
in Elk v. Wilkins, Justice Horace
Gray found that the jurisdictional qualifier was designed to “put it
beyond doubt that all persons, white or black, and whether slaves or not, born
or naturalized in the United States, and owing no allegiance to any alien power,
should be citizens of the United States.” (emphasis
added). Mr. Justice Gray went on to
define “subject to the jurisdiction” in a decidedly consensualist
fashion that still serves as a rallying cry against birthright citizenship:
“The evident meaning of these last words is not merely subject in some
respect or degree to the jurisdiction of the United States, but completely
subject to their political jurisdiction, and owing them direct and immediate
allegiance.” Note that Justice Gray did not speak of
subjection merely to the laws of the United States, a position he would later
appear to adopt in Wong Kim Ark, but
spoke instead of allegiance to “political jurisdiction” which,
though wholly undefined, can legitimately be read as referring to a wider and
more all-encompassing obedience.
John
Elk was an Indian who had left his
tribe, moved to Omaha
and wanted to vote. There was no
question that he felt an allegiance to the United States and was willing to
submit himself to its complete jurisdiction, however that was defined. The only question, and the reason why the
Supreme Court did not let him vote, is that there was no evidence sufficiently
persuasive to indicate that “the United States accepted his surrender, or
that he has ever been naturalized, or taxed, or in any way recognized or
treated as a citizen by the state or by the United States.” The language that Justice Gray spoke in Elk v. Wilkins was not one of automatic
citizenship conferred by the accident of geography, but, instead, a new and
different language, one filled with shared commitments and mutual obligations,
requiring both expressed fealty and unconditional acceptance, a language
pregnant with possibilities but short on absolute guarantees or settled
expectations; that John Elk wanted to be a citizen of the United States, that
he had no other home to go to, no other community to which he could now belong,
did not win the day: “To be a citizen of the United States is a political
privilege which no one, not born to, can assume without its consent in some
form.” This is a private club that occasionally
opens its doors to new members, but not to everyone, and then only on its own
terms.
Judge Gray
was able to advance a consensual theory of citizenship partly because he
rejected a notion that he later accepted in Wong
Kim Ark, namely that jurisdiction for purposes of the Citizenship Clause
meant the territorial limits of the United States; they were one and
the same. Since the Court in Elk v. Wilkins declined to honor the citizenship claim of a Native
American born in the United
States, why, critics contend, should the
Constitution recognize a similar claim of a child born here to alien parents
who, if anything, had a far more tenuous connection to this country? After all, were they not also subject to
foreign powers? The key point, from
this perspective, is that the Supreme Court in Elk v. Wilkins “necessarily rejected the claim that the
phrase ‘subject to the jurisdiction’ of the United States meant merely
territorial jurisdiction as opposed to complete, political jurisdiction.” Does Elk
v. Wilkins stand for the proposition that
exclusive allegiance to the United
States is required for automatic
citizenship? If so, how does
American law tolerate, as it most assuredly does even today, multiple
allegiances by children born in the United States to non-American parents who
are thereby able to diversify their citizenship identity by taking advantage of
both jus sanguinis and jus solis? In the aftermath of the Fourteenth
Amendment, Justice Gray
had created a formidable ideological platform from which assaults against
birthright citizenship could be launched. The fact that this was the first time
that the Court had sought to decode the Citizenship Clause gave this
interpretation enhanced luster. |
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