Does it make sense to automatically grant citizenship to the children of migrants? Credit: Getty
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 14th 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 14th 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 14th 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.
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.
Ryan P. Williams is the president of the Claremont Institute and publisher of the Claremont Review of Books.
RpwWilliams 
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeI hope the South Africans bring the whole rotten covid grift crashing to the ground. At this point it cannot be believed that the “eliminate covid” brigade are acting with one scintilla of sincerity. This virus has done what every virus in history has ever done. It’s mutated into an essentially non-lethal form for reasons of pure Darwinian survival — a dead host is useless to it. People need to stop worrying about displaying their virtue, wake the hell up and start smelling what’s being shovelled by the political caste.
Very well said. Be sure that there are South Africans (many of the middle class ie these people have money) who have enthusiastically joined in creating a climate of maximum fear, calls for lockdowns, restrictions, vaccine mandates and the like. These are obviously the people who have the majority voice in the corporate media and much of social media – the poor don’t have a voice and the middle classes who speak out are responded to as nutters and conspiracy theorists who don’t care about human life.
However more and more seem to be joining the ranks of the sceptics. Omicron is way less deadly, crime is on the rise again because of lockdowns and hence people are being shaken awake.
The overriding concern all along was to prevent overwhelming hospitals, esp ICUs and that has been achieved. Eliminating the virus was never an option but may have been an aspiration or a hope. We cannot condemn anyone for all that.
In my village a small stream can become a raging torrent in 30 mins: 30 mins after that its level drops to safety again but in that time ot wreaks havoc to the village.
The solution was to construct 20 small dams along its steep course. The stream still delivers the same quantity of water in heavy downpours but it takes twice as long to flow through the village and so achieves only half the depth and half the flow rate. Success. We could never stop the flow: of course not. But we could slow it’s progress.
The efforts to cope with Covid were the same. And they did work.
You will figure out in due course that the money lost by damaging lockdowns (that actually don’t work), will negatively affect the health industry further. I can remember being in the UK 20 years ago and the NHS was overwhelmed and people were in passageways. Address the problem – which is the NHS.
Talk of superstition – what rubbish! Nobody with an iota of common sense would take these so-called vaccines given their dangers and given the tiny deathrate from a flu virus for anyone remotely healthy. Well done South Africa for resisting I say.
indeed, …. rationality in medicine often gets it very wrong, instincts tend to get it right for individual cases.
The difficulty is how to fit health policy in this which has a large political side to it…. ah politics
And your relevant qualifications are? ..or do you think the opinions of ignorant amateurs are just as valid as those of experts?
Plenty of experts are cautioning against the vaccines.
Removed
“Public distrust for government has been exacerbated by past corruption, mishandling of other crises, and cultural divides”. Boris et al – are you listening?
Indeed, I think Freddie and many are underestimating the level of distrust that the handling of covid has generated. Interestingly, yesterday I was reading the SPARS document from John Hopkins. You can clearly see that their disregard for people’s rights. They really just think of us as cattle. All they care about is maximising compliance, no matter the long term harms.
Living in SA and I am not vaccinated, I got Omincron. 44 yrs old / 22.9 BMI / 10 – 12 hours exercise per week and virus lasted all of 5 days. 18 days now and I feel great, actually worked out well as the virus gave me a chance to rest for a week and work on some other projects. Like a cold on the worst day. I know not everyone has the same experience but the way this vaccine is being pushed and forced on people is disgusting. Any company who would take away a job from a person for not having a vaccine in a country where there is 30% unemployment is just appalling. How many people work and support big households and now you give that person a “choice” to lose their job? Golf Foxtrot Yankee. I even sold my car to support families affected by the lockdown. Anyone pushing that vaccine, how many households did you support during the lockdowns?
Bless you Freddie! Great interview once again. I learned a lot. It was well balanced and ever so reasonable. Everything that legacy media no longer provides.