If you had asked me back when I was just starting law school over a decade ago what portions of the 14th Amendment were considered controversial, I’d have answered “substantive due process” and “equal protection.” A few years later, I might have been willing to throw in “privileges and immunities.”
Never did I think I’d be writing about birthright citizenship.
The President has announced that he intends to end birthright citizenship  in the United States via executive order. Not only is this unconstitutional, it’s also anti-conservative.
As Republicans, we have a strong belief in the rule of law, and we also cherish our traditions. We fight for our rights and we remember that we are the posterity the framers had in mind when they established our federal Constitution to secure the blessings of liberty for us eleven score and six years ago. Whether you’re establishment, libertarian, Tea Party, moderate or somewhere else in the center right coalition, the one thing we all share is a belief in protecting our rights, especially those that have been fundamental to the American concept of ordered liberty since the founding.
That’s why it’s utterly unfathomable to me that anybody would be attacking birthright citizenship. Birthright citizenship is important because it is one of the most fundamental of our rights. It ensures the protection of other liberties by promising that those born here are given equal treatment, access to the courts and protection under the law.
Despite that fact, this isn’t the first time that birthright citizenship has been attacked by the GOP. Back in 1996, hardline anti-immigration proponents were successful in slipping this little gem into the GOP party platform at the 1996 convention : “We support a constitutional amendment or constitutionally-valid legislation declaring that children born in the United States of parents who are not legally present in the United States or who are not long-term residents are not automatically citizens.” That is the only time in the history of the GOP that such a statement was put into a presidential platform, it was removed in 2000 and has not been seen since. And, frankly, it’s almost as bad as the line in the 1920 party platform  that read “[t]he existing policy of the United States for the practical exclusion of Asiatic immigrants is sound, and should be maintained.”
While some in the party  might agree with our 1920 counterparts, most of us don’t.
Let’s be honest about this – attacks on birthright citizenship are a fundamental attack on American freedom and our liberties. Ending birthright citizenship would end one of the most fundamental and long enduring doctrines in Anglo-American jurisprudence, one that has existed almost as far back as permanent settlement in the New World.
The concept of citizenship, as opposed to mere residence, dates back even further. From the earliest days of the Roman Republic, the modern view of citizenship – ensuring equality under the law, often coming with voting rights, and demanding civic participation and activity – became something desirable, as it gave access to the ability to own property, access to courts and the like.
After the demise of Rome and Roman law, the concept of citizenship shifted, with individuals becoming subjects of a sovereign, usually a monarch and owing allegiance to the same. The question of who was a subject and to whom allegiance was owed became an issue in early English jurisprudence. The seminal case in English law on this topic was Calvin’s Case, (1608) 77 Eng. Rep. 377  (K.B), in which the King’s Bench held that “a person’s status was vested at birth, and based upon place of birth—a person born within the king’s dominion owed allegiance to the sovereign, and in turn, was entitled to the king’s protection.”
Two years prior to Calvin’s Case, King James I granted all Virginians – indeed, all colonials – the same rights and privileges as if they had been born in England, writing in Virginia’s first colonial charter :
“Alsoe wee doe, for us, our heires and successors, declare by theise presentes that all and everie the parsons being our subjects which shall dwell and inhabit within everie or anie of the saide severall Colonies and plantacions and everie of theire children which shall happen to be borne within the limitts and precincts of the said severall Colonies and plantacions shall have and enjoy all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande or anie other of our saide dominions.”
Calvin’s Case helped to solidify the doctrine of jus soli – the right of the soil – that defined citizenship as being conferred at birth to anyone on soil controlled by a sovereign. From 1606 until the colonies dissolved the political bands which connected them to Great Britain, that allegiance was owed to their sovereign – the King. From 1776 on, it was owed to the people of the United States, the sovereign power in the United States. Jus soli has remained the primary means of passing down citizenship in the New World , with almost every state in the Western Hemisphere – with exception of Cuba – still adhering to the doctrine to this day. As such, birthright citizenship remained a fundamental American right not only from the earliest days of Jamestown, but through the Revolution and beyond.
The Constitution itself accepted birthright citizenship as a fundamental tenet of American law at the time of its ratification. As you can see by the text of Article II Section 1, requiring that all potential presidential candidates be “natural born citizens” of the United States, it was clear that the framers both intended and understood that jus soli remained the primary method of creating new citizens in the United States. As with so many other provisions of the Constitution, they would otherwise not be definable without reference to English common law as it stood at the date of ratification.
Soon after the founding of the Republic, the Supreme Court reaffirmed jus soli in its holding in Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99  (1830). In that case, in which the capacity to inherit property was questioned based on when an individual had been born – in this case between July 4, 1776 and September 15, 1776 when British troops occupied Manhattan Island – the Court’s rationale was based on jus soli doctrine, and would have allowed an infant born in between those dates to elect American citizenship after coming of age. The Court there held that “[n]othing 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.” Id. at 164.
The doctrine was again confirmed, ironically, in the Dred Scott ruling in 1858, when Chief Justice Taney wrote in dicta that “[b]eing born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen.” Scott v. Sandford, 60 U.S. 393, 531  (1858).
The unfortunate holding of Dred Scott, however, was that African-Americans could not be citizens of the United States, whether by birthright or by naturalization. The Republican Congress passed the Civil Rights Act of 1866  over Democratic President Andrew Johnson’s veto, which arguably overruled Dred Scott. The text of the Civil Rights Act of 1866 declared that “[t]hat 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[.]” The phrase “not subject to any foreign power” dealt primarily with the traditional categories of individuals who were still considered subjects of a foreign power when present in the United States – diplomats, POWs, or the children of soldiers in an invading army. The doctrine of jus sanguinis – that citizenship passes by blood, meaning that parents could confer citizenship to their children – did not take hold until later that century.
The phrase was sufficiently ambiguous, though, that it soon found its way into the courts. In one of the first cases construing the Civil Rights Act of 1866, Justice Noah Haynes Swayne of the Supreme Court, sitting as a circuit justice, confirmed the traditional view of birthright citizenship, writing “[a]ll persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” United States v. Rhodes, 27 Fed. Cas. 785, 789  (1866).
Some in Congress, however, were concerned that a Constitutional amendment remained necessary so that the Act would not be either overturned by the courts or – with admirable foresight – repealed by a future Congress. That led to the citizenship clause of the 14th Amendment, which confirms the doctrine of jus soli and, confirming that citizenship is immediately granted to all those born in and subject to the jurisdiction of the United States.
The text of the 14th amendment  is clear: “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.”
Even accepting, arguendo, that this language isn’t clear, the Supreme Court has made it clear. In United States v. Wong Kim Ark, 169 U.S. 469  (1898), the Court held that any person born in the United States, even from foreign born parents, was an American citizen at birth under the 14th Amendment. The court reviewed all the relevant material I’ve reviewed above and a lot more, and went so far as to say “[s]o far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents.” Id. at 674.
That remains good law, and has been settled for over a hundred years.
A lot of attention is being paid to Elk v. Wilkins, 112 U.S. 94 (1884), a case that dealt with Indians and their status. The Court held there that, for specific reasons inherent to the longstanding relationship between the United States and the Indian tribes and the Constitution’s specific different treatment of the Indian tribes, that Native Americans didn’t have birthright citizenship. They said “[i]ndians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.” Id. at 102. That case is clearly distinguishable from Wong Kim Ark, which dealt with the citizenship of children born in the United States to the parents of Chinese nationals who were not citizens. To the extent that Wong Kim Ark differs from Elk v. Wilkins, Elk is superceded, having come over a decade later.
Wong Kim Ark also specifically points out that Elk v. Wilkins was restricted specifically to the Indian Tribes, saying “The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.” Wong Kim Ark, at 682.
Those who are relying on Elk or other prior cases need to read Wong Kim Ark.
Some other arguments have arisen to birthright citizenship. First, Judge Richard Posner, a well-respected jurist who sits on the U.S Court of Appeals for the 7th Circuit, wrote of his belief – apparently based on two law review articles – that birthright citizenship should be readdressed. Not only was the comment made dicta – it had nothing to do with the actual holding in the case at hand – his comment was a single paragraph in a concurrence that was not joined by any of his colleagues. It has no force of law, and, frankly, is unpersuasive to me. Had Posner done a more in-depth analysis of the law and its history, I doubt he’d have come to such a conclusion that flies in the face of so much settled law.
The point of all this is simple – the right to call oneself a citizen of the land they were born in has been a fundamental right for Americans for our entire national existence, and for the existence of English law on American soil. What so many of the folks arguing against the rational reading of the 14th amendment and historical precedent don’t seem to understand – or are unwilling to understand – is that citizenship conferred by birth is a right of the child, not the parent. And a parent’s misbehavior does not negate or undo a right we confer upon all children born within the boundaries of the United States, unless there is some valid reason not to. Most of the arguments I read focus on the sins of the parent, but it’s been as fundamental a tenet of American law that the sins of a parent do not taint the blood of a child as is the concept of birthright citizenship. A child’s citizenship should not be stripped away because of their parent’s wrongdoing, when we have been conferring citizenship on children at birth for over four hundred years in America.
Of course, to the legions of faux-lawyers on Facebook, this kind of pedigree isn’t good enough. Some have made specious arguments – apparently Donald Trump and some of our other candidates are listening to them – that the 14th Amendment doesn’t actually confer citizenship by birth to the children of illegal aliens, because those aliens aren’t “subject to the jurisdiction” of the United States. That argument falls flat not only because of the Supreme Court’s decision in Wong Kim Ark, but also because it ignores the basic definition of jurisdiction  – namely “the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases.”
Any person present within the boundaries of the United States falls within the authority given by law for a court to pass judgment upon them, absent some kind of formal exemption, like those given to foreign diplomats. Federal law already makes it clear that any person within the United States is subject to jurisdiction here. See 31 C.F.R § 515.329  (2014).
Those who claim that the 14th Amendment doesn’t confer birthright citizenship are wrong. Those who claim that we should end birthright citizenship because it can be abused are also wrong. We should no more throw away birthright citizenship because it can be abused than we should throw away our fourth amendment rights because they can be abused. Those who claim to fight for liberty should be fighting against ending birthright citizenship, not fighting to end it.
We should all be applauding Virginia’s own Jim Gilmore , who took a stand on this issue, castigating Walker, Trump and the rest of the field for their assaults on birthright citizenship. He said “[t]he 14th Amendment to the Constitution was written after the Civil War to make it very clear that every person born in this country has a right to citizenship.” He went on to say that “[i]t is an important principle that has stood the test of time and to attempt to repeal it now would set our nation back.”
Governor Gilmore is absolutely right. He’s also right when he notes, “[s]ending this message to young Americans of foreign heritage is the cheapest sort of political pandering and political opportunism.” The GOP should not participate in this kind of obvious race baiting and nativist pandering. Kudos to Governor Gilmore for this principled stand for American values.
Bob Dole said it best in the speech he gave in 1996 accepting the GOP nomination for President  – ironically at the same convention that adopted the first and only attack on birthright citizenship in our party’s history – when he said “[b]ut if there’s anyone who has mistakenly attached themselves to our party in the belief that we are not open to citizens of every race and religion, then let me remind you, tonight this hall belongs to the Party of Lincoln. And the exits which are clearly marked are for you to walk out of as I stand this ground without compromise.”
Birthright citizenship is as fundamental to America as apple pie, baseball and fireworks on the 4th of July. There is no reason to end a fundamental tenet of half a millenium of Anglo-American jurisprudence just because our immigration system is broken today. Claims that the President can end birthright citizenship by fiat are wrong, and claims that birthright citizenship is obsolete in the modern era are also wrong. No conservative should be arguing that we take away fundamental rights because they’re inconvenient in the modern political zeitgeist.
If the Republican Party is going to claim the mantle of fighting for freedom and liberty, we should not be advocating for throwing away fundamental rights because some may abuse them.
(Editor’s Note: This is a reprint, edited to reflect current events, from a Bearing Drift article that originally ran on August 20, 2015.)