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E Pluribus Unum: Well Maybe Not Everybody
Towards A Re-Examination Of Birthright Citizenship

by Gary Endelman

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. [2]  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.[3]  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. [4]  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.[5]  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.[6]  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.[7]

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. [8]  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.[9]

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.” [10]  We know why Congress felt it necessary to have such a definition; it was intended to overrule for all time the Dred Scott decision, [11] 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. [12]  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. [13]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. [14]  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,” [15] with “so many different uses that confusion ensues. [16]  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. [17]  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. [18]  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.” [19]  All of the standard legal treatises of the nineteenth century included Calvin’s Case, a principal reason for its pervasive influence. [20]  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. [21]

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. [22]  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. [23]  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.[24]  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.” [25]  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.[26]

It would be a mistake to think that the Fourteenth Amendment introduced the concept of birthright citizenship. [27]  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.” [28]  What the Fourteenth Amendment did was to give it constitutional form, thus placing it beyond future challenge. [29]  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.” [30] 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. [31]  Scholars believe that the 1844 New York case of Lynch v. Clarke [32] “was the first case to decide the issue of whether the U.S.-born child of an alien was a U.S. citizen.” [33]  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. [34] 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.[35] Even though both of Julia Clarke’s parents never intended to live in the United States on a permanent basis, [36] 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.” [37]

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. [38]

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.” [39]  Following the ratification of the Constitution, additional state laws were passed along these same lines. [40]  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. [41]  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. [42]  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. [43]

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. [44]  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. [45]  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.[46]  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.[47]  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,[48] 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.[49]  As early as 1796, Congress authorized federal customs officials to cooperate in the enforcement of state quarantine and health laws. [50]  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.” [51]  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. [52]  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. [53]  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.[54]

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.[55]  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. [56]  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.[57] 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.[58]  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.” [59] 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 [60] that the Supreme Court invalidated state immigration controls as an undue constraint on interstate commerce. [61]

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. [62]  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. [63]  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,” [64] and maintain that “subject to the jurisdiction” means nothing more nor less than “actual subjection to the lawmaking power of the United States,” [65] 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.” [66]  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.” [67]  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. [68]  If one regards consent as “marking an outer limit to the scope of the birthright citizenship principle,” [69] 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.” [70]  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.” [71]  While this would have reversed Dred Scott, which was, after all, the point, it would “have done so on the narrowest possible ground.” [72]  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” [73] so long as they were “not subject to any foreign power.” [74]  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.[75]  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. [76]  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.” [77]  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.” [78]  The “jurisdiction” of which Senator Howard spoke was to be “coextensive in all respects with the constitutional power of the United States.” [79]  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.” [80]  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.[81]  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.[82]

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[83].  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. [84]  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 [85] 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. [86]  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. [87]  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? [88]

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 ….” [89]  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.” [90]  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.[91]

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.[92]

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?[93]  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,” [94] 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.” [95]  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.[96]  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.” [97]  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,” [98] 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 ... ” [99]  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 ...” [100]

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.” [101]  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. [102]

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, [103] and (b) Elk v. Wilkins. [104]  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.” [105] (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.” [106]  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 [107], 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.” [108] (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.” [109]  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.” [110]  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.” [111]  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.[112]  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? [113]  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.” [114]  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? [115]  In the aftermath of the Fourteenth Amendment, Justice Gray had created a formidable ideological platform from which assaults against birthright citizenship could be launched.[116]  The fact that this was the first time that the Court had sought to decode the Citizenship Clause gave this interpretation enhanced luster.[117]

Elk v. Wilkins has the distinct virtue of actually being about what the critics of birthright citizenship use it for, namely how far the jurisdictional limits of the Citizenship Clause can be stretched.  This is not always, if ever, the case as the prior discussion of Minor v. Happersett and United States v. Cruikshank reveals all too clearly.[118]  A classic contemporary example of how a case not about really about birthright citizenship can be used as a platform for judicial jeremiads on this subject is the Seventh Circuit ruling of Oforji v. Ashcroft.[119]  On its face, this dealt with an asylum claim brought by a Nigerian woman charged with attempting to enter the United States by fraud or willful misrepresentation in the absence of a valid visa.  The Seventh Circuit affirmed the denial of asylum by the Board of Immigration Appeals.  That should have been the end of it, but, in his concurrence, Judge Richard Posner reached out to swat down the argument by appellant’s lawyers that her daughters, ages six and four, had been born here and were consequently United States citizens.  Armed with a short fuse and an agile pen, Judge Posner left little doubt as to where he stood on the controversy of birthright citizenship for illegal aliens whose resolution was wholly tangential to the case before him.  Judge Posner urged Congress to “rethink” the common law rule when applied to “the children of illegal immigrants whose sole motive in immigrating was to confer citizenship on their as yet unborn children.” [120]  Judge Posner opined that this rule “makes no sense” and cited as fact a charge by the Federation for Immigration Reform (FAIR) that 165,000 children are born annually to mothers here illegally.[121]  After citing the Hamdi case in passing, Judge Posner went on to unburden himself of his true feelings on the matter:

We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.  But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship . . . . A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it ... Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense ... [122]

The reason to comment on Judge Posner’s editorial is not to support or critique it, but to suggest that a serious discussion of birthright citizenship and illegal aliens is too important to be relegated to the margins of judicial commentary.  Doing so not only is objectionable to those who disagree but even more so to those who are in alignment.  This method of casual analysis deprives the argument of the intellectual gravitas that it both needs and deserves.  There is a larger point which sorely needs to be made, namely that, every time a case not really about birthright citizenship is mischaracterized to condemn or champion the common law rule, lawyers assume, not unnaturally, that birthright citizenship lies outside the boundaries of legal scholarship and is solely a policy issue for the political arena.  This only serves to detract from the need to examine it from a legal perspective, thereby making an open and honest examination that much more difficult.

B.  The Majority Judicial View

Any and all attempts to exclude the U.S.-born children of immigrants, whether temporary or permanent, from the sheltering arms of the Fourteenth Amendment must contend with the Supreme Court’s landmark ruling in United States v. Wong Kim Ark. [123]

Writing for the Court, Mr. Justice Horace Gray, the author of Elk v. Wilkins, held that the U.S.-born son of Chinese immigrants, who themselves were ineligible to naturalize under the Chinese Exclusion Act,[124] was a citizen of the United States by birth in San Francisco. [125]  In a comprehensive, even exhausting, review of the common law rule on birthright citizenship, Justice Gray concluded that “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.” [126]  An expansive reading of the Citizenship Clause must include all persons born in the United States, regardless of their parents’ immigration status. [127]  Justice Gray determined that, even though the parents of Wong Kim Ark remained subjects of the Emperor of China, they were “entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof’ in the same sense as all other aliens residing in the United States.” [128]  What is most notable, however, is the fact that Justice Gray rejected his own reasoning in Elk v. Wilkins without really explaining why or how he had arrived at a different understanding of the Citizenship Clause.  After quoting at length from Elk v. Wilkins, he simply announces that Elk “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.” [129]

What is striking here is the lack of any distinction in the quality or character of allegiance that a citizen must manifest.  There is no discussion of “temporary” versus “permanent” allegiance, just as no distinction is drawn between different types of jurisdiction that the nation has or may exercise.  Previously, there had been much discussion over “complete or partial” jurisdiction and between “territorial or political” jurisdiction; not so here.  Now, in Wong Kim Ark, geography is king and jurisdiction follows the map:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the  protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of Indian tribes owing direct allegiance to their several tribes.  The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color domiciled in the United States.  Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.  His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory.[130]

Critics of birthright citizenship have noted, and been highly critical of, this change in direction, viewing it as a highly-unfortunate byproduct of results-oriented jurisprudence. [131]  A particular comment by Justice Gray does reveal deep concerns about the practical and societal implications of reaching at different result: “To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” [132]  While Wong Kim Ark may simply reflect a more mature understanding by Mr. Justice Gray of the Citizenship Clause, as indeed seems to be the case, it would have been helpful to all disputants in the controversy to know a bit more as to why he had changed his mind.

What is not open to doubt is Justice Gray’s conclusion that the Fourteenth Amendment could not be interpreted in a fashion resulting in fewer, not more, citizens: the “Fourteenth Amendment . . . has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.” [133]  The Citizenship Clause is “intended to allay doubts and to settle controversies which had arisen and not to impose any new restrictions upon citizenship.” [134]  While critics of birthright citizenship may argue, as they do, that the purpose of the Fourteenth Amendment was to reject the common law and fashion a new citizenship paradigm built on allegiance and consent, Justice Gray took a more conservative view: “As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption.  It is declaratory in form, and enabling and extending in effect.” [135]

Critics of birthright citizenship rightly point out that the parents of Wong Kim Ark, though they could never become citizens under the law then in effect, were resident aliens of the United States and their presence here was completely lawful.  This is not a case dealing with the children of illegal aliens.  Nonetheless, the importance of this case goes far beyond its specific facts.  This is the flagship for birthright citizenship whose influence has extended down through many subsequent decisions until the present day.  Not since Wong Kim Ark have federal courts seriously questioned birthright citizenship or doubted the meaning of the Citizenship Clause. [136]  The reasoning of Wong Kim Ark, namely that the rights of children should not be diminished by the status or conduct of their parents, has been extended by the courts to the protection of children where citizenship is not an issue.  Children born out of wedlock, for example, can not be denied insurance for that reason. [137]  Children of the undocumented are entitled to a free public education. [138]  Newborns of illegal alien mothers must receive the same Medicaid coverage after birth in the United States as the children of citizen mothers.[139]  As the Supreme Court has made crystal clear, equal protection extends to “all persons within the territory of the United States,” [140] including those whose presence here is subject to challenge.  Precisely because the acceptance of Wong Kim Ark was, before 9/11, virtually universal, because neither the courts nor Congress seriously questioned it or sought to revisit the issue, we have never had any subsequent judicial scrutiny that really examined what the decision said and whether the Court got it right.  The Court could have done this when deciding Hamdi v. Rumsfeld, [141] where Hamdi was born in Louisiana while his father was working temporarily in the United States as an L-1 intra-company transferee before returning to Saudi Arabia while Hamdi was still a toddler.  Hamdi did not return again to the United States before American military authorities brought him back here as an enemy combatant.  However, the Court simply assumed that Hamdi was a citizen and offered no new insights into birthright citizenship.  Sadly, however much we might agree or disagree with the wisdom or folly of such an assumption, this was a chance not taken.  Had the Court not taken the easy way out, we might have learned some valuable lessons about whether, and to what extent, birthright citizenship has a place in our post-9/11 world.

V.  PROPOSALS TO CHANGE BIRTHRIGHT CITIZENSHIP

Critics of birthright citizenship see this great gift as an incentive for aliens to enter, or remain, in the United States in violation of US immigration law.  Numerous proposals have been introduced in Congress over the past decade to curb this perceived abuse. [142]  These proposals are of three types: (1) modification of the definition of citizenship as contained in the Immigration and Nationality Act without any constitutional change; (2) a statutory revision that takes effect only after a repeal of the Citizenship Clause in the Fourteenth Amendment; and (3) a constitutional amendment that narrows the scope of birthright citizenship.  For many years, until quite recently, it was felt that, precisely because the common law rule had, by universal understanding, been enshrined in the highest law of the land, only a structural revision of the Fourteenth Amendment itself would suffice.  This is still the dominant view of those who think it is time for a change.  However, there is a growing minority of critics who now contend that a constitutional amendment may be preferable, but is not mandatory.  “There’s been recent scholarship that says we can do it by statute,” notes pro-immigration Congressman Jeff Flake of Arizona, “and we ought to try.” [143]  The thinking here is that, precisely because any attempt to amend the Constitution is so difficult, especially on such a radioactive issue where public passions are at fever pitch on both sides, Congress can and should invoke its powers of implementation or enforcement under Section 5 of the Fourteenth Amendment.  That theory makes change by statute completely sufficient, thus rendering the arduous task of constitutional modification wholly unnecessary.  Needless to say, such a theory has never been tried nor tested in the federal courts who understandably may take a different view.

What unites all of these statutory proposals is the belief that Congress can act to change the meaning of “subject to the jurisdiction” as articulated by the Supreme Court in Wong Kim Ark and its progeny without doing any violence to the integrity of the Citizenship Clause itself.[144]  There is no one formula that fits all of the legislative proposals.  Each one poses stubbornly persistent problems of definition which, precisely because of the complexity of the subject, place an absolute premium on legislative draftsmanship.  It is not hard to figure out why this is so.  Rather than reflecting an intellectual, ethical and societal consensus already achieved, these statutory initiatives seek to impose a new definition of citizenship in the absence of such agreement.  Given such a vacuum, even the slightest variation, the most minor textual imperfection, can have momentous consequences, hence the need for utmost scrutiny as a pretext for action. In America,  fundamental change happens first and then the Constitution recognizes it, not the other way around. Law symbolizes values and beliefs, it rarely creates them. This is pre-eminently the story of the Citizenship Clause whose very consistency and reliability has anchored the meaning of the American experience for all those with the mind and heart to share in it. To replace that with the uncertainty of consent, never knowing who belongs and who does not, is to erode the very rationale of the Fourteenth Amendment which sought to place beyond the majority will of future generations the sum and substance of citizenship won at such a high and bloody price. This is who we are and what we stand for. Here there is no room for doubt. Beyond that, the more narrowly a statute is drawn, the less flexibility it has to respond to any change in key facts.  For this reason, to preclude the children of non-resident aliens born in the United States from acquiring citizenship at birth seems unduly narrow when one considers the fact that many of their parents will, in time, become permanent residents and may already been in the process of doing so.[145]

While there are common features to these statutes, there are interesting, and potentially troubling, differences as well.  House Bill 3938, the Enforcement First Immigration Act of 2005, provides that, if a child is born in wedlock, a matrimonial state that does not include common law marriage, [146] either parent can be a United States citizen or a lawful permanent resident.  However, if the child is born out of wedlock, then things get dicier.  If the mother has the green card or the US passport, then all is well; but, if the child is unfortunate enough to be sired by a US citizen or lawful permanent resident father, then there is no possibility for transmission of citizenship under any circumstances. [147]  Ironically, the child has a better chance at deriving United States citizenship, if born outside the United States under Section 309 of the Immigration and Nationality Act [148].

Less troublesome from a constitutional perspective is the gender-neutral approach typified by Congressman Tom Tancredo’s (R-Colo.) Reducing Immigration to a Genuinely Healthy Total (RIGHT) Act of 2005.  Section 201 of the RIGHT Act limits birthright citizenship to a child at least one of whose parents was either a United States citizen or lawful permanent resident at time of birth.[149]  Interestingly, such a formula does not measure up to the “exclusive allegiance” standard embraced by many critics of birthright citizenship for the simple reason that lawful permanent residents remain a citizen of, and subject to, the country of their birth.  They continue to travel on their non-U.S. passports, pay taxes to a foreign country, vote in foreign elections, and remain under a duty of allegiance to foreign powers.  The RIGHT Act does have the virtue of not conditioning the child’s claim to citizenship, or lack of same, on the marital status of his or her parents, something obviously beyond their control and for which they should neither be rewarded nor punished.  Statutes that deny children citizenship based on the marital status of their parents contradict the teaching of the Supreme Court in Plyler v. Doe that “innocent children” should not be characterized to their detriment “on the basis of a legal characteristic over which . . . they have little control.” [150]  While Plyler v. Doe dealt with an attempt by the State of Texas to bar undocumented children from the public schools, the notion of the Fourteenth Amendment as a guarantor of equal justice under law for all, regardless of their station in life, applies with infinitely greater clarity here when the most precious right of all is at stake.  The issue is not, as some critics of birthright citizenship would have us believe, whether illegal immigration to the United States should be curbed or made more difficult, but whether a departure from over a century of settled interpretation as to what the Citizenship Clause means is the necessary and proper, even the most logical or effective, means of doing so.  Not every disagreement over public policy should be elevated to the level of constitutional revisionism.

There have been a series of bills in the ten to twelve years that seek to narrow birthright citizenship without making the baby stateless. [151]  Each of these employ the same formula.  They define “subject to the jurisdiction” as not including a child whose mother is neither a United States citizen nor a lawful permanent resident, and who is a citizen or national of another country of which either natural parent is a citizen, or entitled to become a citizen on application.  Several points merit comment.  First, the parents do not have to be married.  It makes no difference if the child is born in or out of wedlock.  Second, you could wind up with a situation where “a person may be born in the United States to a mother who is a nonimmigrant or illegal alien and a father who is a U.S. citizen, national or lawful permanent resident . . . and not be born a US citizen because that person has a claim to citizenship in the mother’s country.” [152]  Third, the law only affects those born after its effective date.  The citizenship status of similarly situated children born before this date and time appears to be unaffected.  Fourth, it is not certain if the parent actually has to exercise this potential claim to foreign citizenship nor within what period of time such an election must be made.  Fifth, the same child under identical facts born outside the United States may retain a valid claim to citizenship.[153]  Sixth, and this is the key point, such a child is not, despite birth here, born subject to the jurisdiction of the United States but rather is now considered born subject to the jurisdiction of a foreign country.  It is not explained what happens if that country either refuses to recognize or declines to exercise such jurisdiction.  Who gets the kid then?

One of the cardinal virtues of the common law rule is that everyone knew what it meant, or thought they did.  Precisely for that reason, birthright citizenship does what law, at its best, is expected to and can do, namely to provide a set of clearly drawn rules that can be understood and followed so that those who live by them know what it expected of them and how to achieve it.  Attempts to change the meaning of birthright citizenship by statute, but delay the effective date of any such change until repeal of the Citizenship Clause is accomplished, completely removes the ability of people to order their lives according to settled expectations.  When the citizenship of so many is in doubt, who can remain secure?  An excellent illustration of this dislocating effect is House Bill 705,[154] introduced eleven years ago by Representative Elton Gallegly, a Georgia Republican who has been both active and influential on immigration issues in the House GOP Caucus.  Congressman Gallegly proposed to amend Section 301(a) of the Immigration and Nationality Act[155] so that only children born in the United States to “citizen or legal resident” mothers would automatically derive citizenship.  Precisely who or what a “legal resident” is remained a bit murky.  There is no definition.  Does “resident” here mean the same as “domicile” so that it must be one’s principal place of residence?  If so, could any non-resident alien ever establish residence in the United States, except for those, like H-1B temporary workers or L-1 intra-company transferees who do not have to maintain an unabandoned foreign residence abroad?  Presumably, a “legal resident” is a different animal than a “permanent” resident, although we do not know.  If a “legal resident” is someone who is in the United States under color of law, then it would include all non-resident aliens who were likely not exactly the kind of people that Congressman Gallegly thought he was helping.  It is unclear what would happen if the child is born to an H-1B or L-1A mother whose status had expired but had an extension of status request pending which had yet to be approved.  What about if a B-1 visitor was waiting for a decision on such an extension while her child is born.  Is this child not to be a United States citizen because United States Citizenship and Immigration Services does not allow premium processing of the I-539 while the O-1 mother’s child born in the adjoining hospital bed has a valid citizenship claim because his mother’s employer paid the $1000 expedite fee?  What if the mother’s H-1B petition is on appeal to the Administrative Appeals Office following a denial by the Texas Service Center? Is her daughter born in Dallas a citizen?  What if the mother entered legally but overstayed?  What then?  During the interregnum between modification of the Immigration and Nationality Act and repeal of the Citizenship Clause, an interval that can easily take quite a while, whose citizenship is secure and whose is not?

Even if such a far-reaching statutory change is not conditioned upon successful surgery on the Fourteenth Amendment, the utter lack of definitional precision remains profoundly troubling.  Consider, for example, the Enforcement First Immigration Reform Act of 2005.[156]  In order for the child born in wedlock to a permanent resident parent, or out of wedlock to a permanent resident mother, to derive United States citizenship at time of birth that parent has to “maintain her residence in the United States.”  What does that mean?  Is the validity of the child’s citizenship claim subject to the parent’s possible abandonment of permanent resident status and, if so, who judges such abandonment, in what forum, and by what evidentiary standard?  Is one child a citizen because his mother did not leave the United States while another child is not because his mother did?  Would such seemingly arbitrary and capricious distinctions made with reference to so weighty a matter promote respect for the rule of law?  It is a real constitutional question as to whether Congress can adopt such a measure that weakens, rather than bolsters, a right guaranteed by the Fourteenth Amendment.  In Katzenbach v. Morgan,[157] the Supreme Court ruled that Congress could not legislate in contravention of such constitutional guarantees.  Would the courts find that such action could pass constitutional muster as a necessary extension of Congress’ power to regulate immigration into the United States under Article I, Section 8 of the Constitution?  The lack of a clear and readily accessible answer to such an important question suggests, to some extent, the manifest destabilization that would ensue from such a drastic change. [158]

Those who contend that Congress can modify the Citizenship Clause by statute do not believe that Fourteenth Amendment applies to the children of illegal aliens or those whose presence here is temporary in nature or duration.  They do not reject what the Supreme Court has said in Wong Kim Ark and its progeny, but simply maintain that the teaching of such cases does not have the scope and application we always thought it did.  Whatever we may think of such an argument, its originality lies in denying that birthright citizenship can be traced back to, or justified by, a constitutional mandate.  By contrast, those who would require a change to the Fourteenth Amendment itself, either by outright repeal or material revision of the Citizenship Clause, or condition any statutory redefinition of citizenship on such constitutional action, are really saying that the common law rule was right all along.  They do not dispute it; they simply want to change it.  This is a significant intellectual concession that the advocates of statutory initiative alone do not make and do not have to make.[159]  Each approach has its own difficulties.  Those who rely on Congress and nothing else are far more likely to get their way, but also far more likely to trigger a prolonged fight in the courts that is problematic at best from their perspective.  Those who call for constitutional change have a far tougher fight on their hands, are much less likely to win a victory, but, if they do, have a significantly greater chance of keeping it.  It is certainly true that, on rare occasions, when the moral imperative of overturning precedent becomes overwhelming, the Supreme Court has reversed settled law to chart a new course.  However, this is done very seldom and only in response to enormous agitation and significant societal evolution on such an issue that has either compelled the Court to act or afforded it the opportunity to do so.  The historic dismantling of Jim Crow in the 1950’s and 1960’s is perhaps the best and most obvious example.  This is simply not the case with birthright citizenship yet, although the disconnect between the policy elites and the great mass of ordinary Americans on this issue does appear to be growing.  This is troubling because the American people are unlikely to easily understand or long support something they do not believe is either fundamentally just or manifestly in their national self-interest.

The various constitutional amendments proposed in recent years, while somewhat easier to understand than their statutory cousins, still suffer from a similar lack of definition, the cumulative effect of which is to shrink the circle of birthright citizens and guarantee citizenship largely to the children of those already members of the club.  The children of citizens will be citizens; not sure about anyone else [160].  A good example is Congressman Ron Paul’s American Citizenship Amendment of 2005.[161]  While gender neutral, the proposal would require that a parent either be a citizen or “owe permanent allegiance to the United States.” [162]  This would appear to exclude the children of permanent residents who continue to owe primary allegiance to their country of birth.  Two years earlier, Congressman Paul introduced essentially the same constitutional amendment but, this time, it would require both parents to be either citizens or those who owe permanent allegiance.[163]  This would be a retreat from the Child Citizenship Act of 2000 that modified Section 320 of the Immigration and Nationality Act which only requires one parent to be a citizen if the child is under eighteen and a lawful permanent resident.[164]  Interestingly, in both 2003 and 2005, Congressman Paul does not speak of “lawful permanent residents,” but rather “persons who owe permanent allegiance” as if he understood them to be one and the same, which they are not.  Rather curiously, in neither instance would Congressman Paul require that the parent demonstrate either physical or legal custody over the child, while the Child Citizenship Act requires both.

Congressman Mark Foley of Florida also wants to amend the Constitution so that a child born in the United States would not automatically gain citizenship unless a parent is a citizen or lawful permanent resident “at the time of the birth.” [165]  Now, this focus on the time of birth is a logical snapshot and one in keeping with the historical understanding of when citizenship comes into being.  However, it does not consider the fact that many of these permanent resident parents will become United States citizens and may already be in the process of doing so.  Moreover, if the child is not a United States citizen, what are they at time of birth?  They obviously have to have some legal status to stay here.  What is it?  Since current law does not allow a child to apply for naturalization until age eighteen,[166] how is the child to remain here until then?  If the child is not to be a citizen, should not at least permanent resident status flow from the reality of birth in the United States? [167]  If the concern of critics is that children born to non-American parents in the United States do not have sufficient ties to this country, a true understanding of our culture, a heartfelt appreciation of our most cherished traditions, how does this approach help?  If we want these children to be attached to the principles of the Constitution, is depriving them of the legal means to stay in the United States and learn what they are all about the best way to achieve our objective?

That is the true and abiding objection to the proposal by Congressman Stockman to amend the Fourteenth Amendment so that only children of citizens and those “lawfully present in and subject to the jurisdiction at the time of that parent’s entry into the United States, and all persons naturalized according to the laws of the United States” would have a recognized citizenship claim.[168]  This seems a highly circular definition that really serves to clarify very little at all.  Restating without clarifying the meaning of “subject to the jurisdiction” only gets us back to where we started.  What does “lawfully present” mean?  Does one have to be “lawfully present” for any specified period of time?  Is there a distinction between “legal residence” and “lawfully present”?  Congressman Anthony Beilenson of California  thought there was in 1993 when his constitutional trial balloon spoke of being born in the United States to “ a mother or father who is a legal resident.” [169]  Would either phraseology not include visitors, temporary workers, intra-company transferees, exchange visitors and other non-resident aliens?  Is such “lawful presence” disturbed by a violation of status or an overstay past the expiration of one’s I-94?  What happens when there is a pending request for extension of status?  Is a child born to such a person a United States citizen?  Take the case where the Vermont Service Center denies an L-1 extension but the Administrative Appeals Office has yet to decide the appeal?  Is the parent still “lawfully present”?[170]  One wonders why Congressman Stockman distinguishes between “citizens of the United States” and “all persons naturalized according to the laws of the United States.”  Is there a difference between the two?  We do not know when the parent has to naturalize since the wording of the amendment fails to stipulate that this must be at time of birth.  Presumably, therefore, this can come later although how much later, and what the child is until then, is left to the realm of pure speculation.

To a very real extent, the motives behind all of these proposals are entirely laudable; indeed, who can question the wisdom of promoting allegiance or cementing ties between a government and its citizens? Yet, much as we understand and applaud their spirit, such initiatives inevitably clash with the way we live and work in the digital age. Constant personal movement, frequent job relocation, fundamental realignments of business needs and strategic imperatives, all of these reflect a world where the only constant is the absence of permanence, the inevitability of change. Any attempt to modify birthright citizenship will most certainly fail if it does not acknowledge and adjust to these realities. In a flat world, citizenship must be able to bend- or it will break.

VI.  WHERE WE COME OUT

Law can, and often does, become a symbol for many social developments that passionately upset some people while arousing the most fervent support among others.  The global economy has flattened national barriers, triggering in the process mass migration from the less to the more developed world, a reallocation of human capital made possible by advances in technology and communication.  The resulting sense of cultural dislocation has caused a reassessment of immigration policy not just in the United States, but in Europe and the Pacific Rim as well.  Add to that the seismic waves unleashed by 9/11, which even now have yet to be fully felt, and the stage is set for a second look at birthright citizenship.

Who can do this?  If we view birthright citizenship as primarily a matter of constitutional interpretation, then surely it is the Supreme Court, now up to full strength, who must step forward and rule directly on whether the Citizenship Clause extends far enough to cover the children of the undocumented, something it has never done.  It is not enough to analogize from what the Court has said before.  However persuasive such judicial marginalia is, however insightful our inferences may be, they are not the clear and direct judicial voice on this essential issue that the nation needs to hear.  Hamdi could have been the occasion for such clarity, but the Court chose to let the moment pass by.  It must not do so again.  Such chances do not soon or easily come around.  If, however, the Court will not lead, then the Congress must decide whether any revision of birthright citizenship is, at bottom, an issue of constitutional jurisprudence or public policy.  If the former, then the Congress has no choice but go down the path of amending the Fourteenth Amendment.  This is not a choice made lightly for down that road lie many disappointments and frustrations.  There is much pain there.  If, however, Congress believes the controversy is inherently political, one governed by ideals not law, then it will seek to change the meaning of citizenship through the exercise of its enforcement powers granted to it by Section 5 of the Fourteenth Amendment itself.  As we have seen, in any such exercise, clarity of thought and precision of expression are of the utmost necessity.[171]

It is not altogether a bad thing that this should now be happening in our land.  Americans must re-examine what they care most about when the storms of the present demand a second look at the past.  At a time when the cause of liberty is under attack throughout the world, when the nation and its values are beset on all sides by critics, both foreign and domestic, the importance of birthright citizenship needs to be challenged and learned once again by a new generation of Americans.  This is our obligation and our opportunity, to understand why the Citizenship Clause came into being, what it has meant to the American people and how it can guide us in the long twilight struggle that now occupies our nation against those who seek to reverse history.  Such an informed appreciation of this ancient and honorable doctrine is not the province of the few; it does not belong to the elites, to those who sit high above us and far away.  It must again become part of the fabric of all our lives so that we who live by its tenets know why this is so.  The concerns that many have honestly voiced about birthright citizenship must be listened to with the respect and honesty they deserve.  Such voices must be heard.  In all of its long history, the Fourteenth Amendment has been many things to many people: to some, a rallying cry against injustice; to others, a sword to limit government or a mantra for the preservation of prejudice and the protection of privilege.  Yet, there is one thing that it has never been, and that is amended.  Do we really want to change that at this critical moment in our national story?  The Citizenship Clause sounded the confident note of a nation on the march, emerging from the Civil War and ready to become a world power.  To repeal it now would sound retreat to both friend and foe alike, signifying an America uncertain of the future and unsure of its identity.  Moreover, a constitutional change to birthright citizenship in absence of consensus would not settle the controversy but only ignite more protracted and intensely bitter agitation for its repeal, much as happened with the Eighteenth Amendment.  The Constitution works best when it operates to ratify what society has already accepted, not when a politically potent faction is able to impose its view upon the rest of us. While the hopes and dreams of those who wrote the Citizenship Clause have long since vanished and faded away, what they did and gave to us remains as it first was.  It is ours to visit anew.  Birthright citizenship is more than a legal doctrine, more even than a constitutional concept.  It is, at bottom, a manifestation of the American spirit, an expression of the American promise that all those who make our cause their own can become and are part of us.  This is what birthright citizenship has meant before and what it can mean again to us and to others.  As Lucius Cary Falkland, the Second Viscount, told the House of Commons in November 1641, “when it is not necessary to change, it is necessary not to change.” [172]  Now is such a time.


Endnotes

[1] Citizenship is the most precious gift that any nation has within its power to give.  Since the rise of the nation state, it is the most central definition of who belongs and who doesn’t.  That is why Chief Justice Warren characterized citizenship as “man’s basic right for it is nothing less than the right to have rights.” Perez v. Brownell, 356 U.S. 44, 64–65 (1957) (Warren, C.J., dissenting).  Even earlier , the Supreme Court noted that the removal of one who asserts citizenship deprives the claimant of “ all that makes life worth living.”  Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

[2] A well-known exposition of natural law theory with which the Founders were undoubtedly familiar is  Samuel Pufendorf, The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003) (1691).  The following excerpt is squarely on point to our story:

A State or Government being thus constituted, the Party on whom the Supreme Power is conferr’d, either as it is a single Person, or a Council consisting of select Persons, or of All in General, is called a MONARCHY, an ARISTOCRACY, or a FREE STATE; the rest are looked upon as Subjects or Citizens, the Word being taken in the most comprehensive Sense: Although, in Strictness of Speech, some call only those Citizens, who first met and agreed together in the forming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families.

 

Moreover, Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts.Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place: nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.”

Id. at 197.  Note that Pufendorf’s distinctions as to who is a citizen at natural law and who is not can be used to support an abridgement of birthright citizenship precisely along the lines suggested by contemporary critics. It should also be remembered that, in 17th century terms, this natural law definition of citizenship is, by no means, restricted to a “national” government, to the extent that such existed, but rather to any organized political society, be it town, locality or state.  There is a consensual social contract assumption operating on all of these levels that the “stakeholder” has an interest in his status as a citizen.  There was a recognition in the 17th Century, one proven out throughout American history, and reflected in the modern interest in promoting naturalization, that those who become citizens and whose claim to such status is universally recognized have a strong and continuing interest in the success and prosperity of the society of which they are an integral part.  The Founding Fathers were familiar with the distinction between those who came to reside permanently and those just passing through.  They assumed that “sojourners” were subject to local law but, as they had no intention of staying, they were not citizens.  Folks who stayed, and were not warned out, were citizens. England did not even have a naturalization law for the nation until 1757.  Immigrants who were able to stay just melted into the society, unless some authority at some level made them move on.  The nature of migration in the 17th century was obviously far different than it is today, both in sheer numbers and in character.  The need for a law defining citizenship did not seem nearly so evident in a society where rights evolved as a matter of social development and did not need government imprimateur to guarantee respect and recognition.  Email exchange between the Author and Dr. Richard P. Gildrie, Professor of History, Austin Peay State University (Jan. 19–20, 2006).

[3] U.S. Const. art. I, § 2, cl. 2 (Representatives), U.S. Const. art. I, § 3, cl. 3 (Senators).

[4] 4 Annals of Congress 47–55, 57–62 (1849).

[5] U.S. Const. art. II, § 1,cl. 5.

[6] Polly Price, Natural Law and Birthright Citizenship in Calvin’s Case, 9 Yale J.L. & Human. 73, 141 (1997).  The long-lasting significance of Calvin’s Case as a touch-stone for American ideas on citizenship in the pre-Fourteenth Amendment era cannot be overestimated.  As Professor Price notes, it was the starting point from which all analysis began: “The importance of Calvin’s Case in the early history of the United States is accounted for in part by the fact that it permitted courts to resolve questions of citizenship status in the absence of any statutory or constitutional authority on the subject.”  Id. at 142.  Ironically, precisely because Calvin’s Case was so authoritative, or deemed to be so, the need for positive action by the states or Congress to define the limits of citizenship was deferred until the Supreme Court forced the issue by rejecting it in the Dred Scott case.  See Scott v. Sanford, 50 U.S. (19 How.) 393 (1857).  Dred Scott was a slave born in Missouri, taken by his owner to Illinois, a free state, and then returned to Missouri. Chief Justice Taney, appointed by President Andrew Jackson, departed from the common law in order to avoid admitting what he regarded as an inferior race into the national family.  Perhaps the boldest expression of a consent-based theory of citizenship, Dred Scott was nothing short of revolutionary in scope.  The Fourteenth Amendment, when viewed from this vantage point, was a profoundly conservative act because its basic purpose and intent was to reverse what Chief Justice Taney had attempted in Dred Scott, to restore the common law rule on citizenship, give it constitutional form and thereby place it beyond future legislative challenge.  It was precisely because the common law rule was so universally accepted that Dred Scott seemed so shocking: “It is beyond doubt 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.”  Frederick Van Dyne, Citizenship of the United States 6–7 (1904).

[7] Note, Citizenship as A Weapon in Controlling the Flow of Undocumented Aliens: Evaluation of Proposed Denials of Citizenship to Children of Undocumented Aliens Born in the United States, 63 Geo. Wash. L. Rev. 551 n.39 (1995).

[8] Stephen Dines, Half Oppose Citizenship Rule, Washington Times, Nov. 8, 2005, http://washingtontimes.com/functions/print.php?StoryID=20051107-113120-5860r.

[9] See Joseph H. Carens, Who Belongs? Theoretical and Legal Questions about Birthright Citizenship in the United States, 37 U. Toronto L.J. 413 (1987).  The same political cross-currents led the British to abandon the common law rule in 1981 in favor of a nuanced approach that gave more consideration to the parents’ legal status.  See Ayelet Shachar, Children of a Lesser State: Sustaining Global Inequality Through Citizenship Laws 9 n.13 (Jean Monnet Working Paper No. 2, 2003).  In 2004, the Irish people by referendum did away with automatic citizenship by birth when both parents were not Irish citizens.  Greta Gilbertson, Citizenship in a Globalized World, Migration Information Source 2 (Jan. 1, 2006), at http://www.migrationinformationsource.org/Feature/print.cfm?ID=369.

[10] U.S. Const. amend. XIV, § 1.

[11] Dred Scott, 50 U.S. at 393.

[12] David Schwartz, Book Review, 74 Calif. L. Rev. 2143, 2169 (1986) (reviewing Peter Schuck & Rogers Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (1985) [hereinafter Schuck & Smith]).  Professors Schuck and Smith have the intellectual honesty to admit that Dred Scott reminds us” that consent contains within it “racist, exclusionary possibilities.”  Schuck & Smith, supra, at 73.  Even freedmen born in a non-slave state could not hope to get society to recognize their claim to citizenship because “it is not a power to raise to the rank of citizen any one born in the United States who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Dred Scott, 50 U.S. at 417.  The stigma of race precluded the granting of consent and raised up a perpetual ban against admission: “In fact, the Court created a new racially exclusive interpretation of birthright citizenship; only the descendants of the nation’s Anglo-Saxon original citizens would be bound in society’s mutual compact, and recognized as community members from birth.”  Jonathan C. Drimmer, The Nephews of Uncle Sam: The History, Evolution and Application of Birthright Citizenship in the United States, 9 Geo. Immigr. L.J. 667, 694 (1995).  The consensual construct built by Chief Justice Taney would be demolished by “a definition of citizenship in which race played no part.”  Bickel, Citizenship In The American Constitution, 15 Ariz. L. Rev. 369, 374 (1973).  That is why President Lincoln’s Attorney General wrote an opinion for the Secretary of Treasury in 1862 asserting that “as far as I know … you and I have no better title to the citizenship we enjoy than the ‘accident of birth’—the fact that we happened to be born in the United States.”  10 Op. Att’y Gen. 328 (1862) (child born in America of alien parents who never naturalized is, by virtue of birth alone, a United States citizen).  This was not the last time that Attorney General Edward Bates reaffirmed his commitment to, and belief in, birthright citizenship.  See 10 Op. Att’y Gen. 382 (1862) (supported general principle of citizenship according to birth, rejecting, in the process, the existence of an intermediate class of persons above aliens but below the rank of citizens ).  It is precisely because of birthright citizenship that we have no second-generation immigration problems in the United States—we have no second generation immigrants.  See also Note, The Birthright Citizenship Amendment: A Threat To Equality, 107 Harv. L. Rev. 1026 (1994); D. Martin, Comment, The Civic Republican Ideal for Citizenship and for Our Common Life, 35 Va. J. Int’l L. 301 (1994).

[13] “The consensual strand realized its dangerous potential in the Dred Scott decision in which Chief Justice Taney expounded American citizenship as a club open only to whites.”  Gerald L. Neuman, Back to Dred Scott?, 24 San Diego L. Rev. 485, 488 (1985) [herinafter Neuman, Back to Dred Scott?] (reviewing Schuck & Smith, supra note 12).

[14] See The Legality as a Matter of Domestic Law of Extraterritorial Law Enforcement Activities that Depart from International Law: Hearings before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 101st Cong. 3 (1989) (statement of William Barr, U.S. Assistant Attorney General).

[15] Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996).

[16] Hugi v. United States, 164 F.3d 378, 381 (7th Cir. 1999) (citing Kanar v. United States, 118 F.3d 527, 529–530 (7th Cir. 1997).  A late 19th Century commentator on the birthright citizenship controversy remarked as follows:

It was Chancellor Ridgely, in Douglass v. Douglass, as early as 1821 that stated there was a want of a constitutional definition of the word “citizens” and Mr. Justice Miller in the Slaughter-House Cases, says that no definition of “citizenship” was found in the constitution.

John A. Hayward, Who Are Citizens, 2 Am. L.J. 315, 316 (1885).

[17] Margaret Mikyung Lee, U.S. Citizenship of Persons Born in the United States to Alien Parents, 2 (Congressional Research Service, Library of Congress, updated Nov. 4, 2005).

[18] Price, Natural Law and Birthright Citizenship in Calvin’s Case, 73 Yale J.L. & Human. 73, 141 (1997). See also Calvin v. Smith, 77 Eng. Rep. 277 (K.B. 1608).  Much as the common law rule is identified with feudalism, jus sanguinis suggests a rejection of the past and is linked with political change as a historical trend in human affairs: “The modern inception of jus sanguinis came with the post-French Revolution Civil Code of 1804, which broke away from the territoriality principle. The French Civil Code held that as citizens, parents (specifically fathers) had the right to transfer their status of political membership to their offspring at birth, regardless of whether the child was born in France or abroad. During the Napoleonic period, the concept of attributing membership on the basis of descent was considered fresh and radically egalitarian.”  Shachar, supra note 9, at 12–13.  See also Patrick Weil, “Access to Citizenship: A Comparison of Twenty-Five Nationality Laws,” in Citizenship Today: Global Perspectives and Practices 12 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., Brookings Institution Press, 2001).  Since the United States was born in revolution, perhaps that is one reason why critics of birthright citizenship feel that jus sanguinis is more naturally suited to our republican character.

[19] Price, supra note 18, at 140.

[20] Id. at 139.

[21] Id. at 115.  Had the force and effect of the common law rule been less pervasive, it is possible that federal officials, unable to rely instinctively upon it, might have been compelled against their will to examine it with greater rigor, even before the Fourteenth Amendment came on the scene.  Such was not the case.  Precisely because the common law was believed to have decided the question, such officials did not have to. See, e.g., Letter from Mr. Marcy, Secretary of State to Mr. Mason, United States Minister to France (1854), in 2, Digest of the International Law of the United States 394 (Francis Wharton, 2d ed. 1887) (“In reply to the inquiry which is made by you … whether the ‘children of foreign parents born in the United States, but brought to their father’s country in which the father is a subject, and continuing to resided within the jurisdiction of their father’s country,—are entitled to protection as citizens of the United States,’ I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship.”) (emphasis added).

The State Department view did not change after the Fourteenth Amendment.  In 1871, Secretary of State Fish opined to the American Ambassador to Italy: “This (the Fourteenth Amendment to the constitution) is simply an affirmation of the common law of England and of this country so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage.”  Henry C. Ide, Citizenship By Birth—Another View, 30 Am. L. Rev. 241, 242 (1896).  The next year, Secretary Fish told the American Ambassador to Austria the same thing: “As a general rule, a person born in this country, though of alien parents who have never been naturalized, is under the laws of the United States deemed a citizen of the United States.” Id.  The principle of birthright citizenship was clearly stated by Attorney General Edwards Pierrepont in an advisory opinion to Secretary of State Fish in Steinkauler’s Case , 15 Op. Atty. Gen’l 15 (1875).  Born in St. Louis to a naturalized German, Steinkauler only lived the first four years of his life here before his father took him back to Germany.  When he turned 20, the German Government required him to report for military service, at which point his father asked for help from American consular authorities on the ground that his son was an American citizen.  Attorney General Pierrepont agreed.  In 1877, Secretary Fish advised the United States Minister to Spain that the minor child of a Spanish subject born in America was a US citizen and repeated such guidance the following year to the American consul in France. Id at 243.  So far as the official position of the American government is concerned, the Fourteenth Amendment made no change: birthright citizenship was always the rule, both at common law and as a matter of constitutional interpretation. Secretary of State William Evarts reached the same conclusion two years later in the case of the Boisseliers Brothers who were born here but returned to Germany while still very young and again in 1880 when very similar facts involved a Danish child born in the United States who sought to reaffirm his American citizenship upon attaining his majority.  Perkins v. Elg, 307 U.S. 325, 330–331 (1939).  In a 1906 State Department memorandum sent by Acting Secretary of State Robert Bacon to the German Ambassador, the Department openly proclaimed its adherence to birthright citizenship as a cornerstone of American diplomacy: “According to the Constitution and laws of the United States as interpreted by the courts, a child born to alien parents in the United States is an American citizen, although such child may also be a citizen of the country of his parents according to the laws of that country.” Perkins, 307 U.S. at 333.  In his classic exegesis of the Fourteenth Amendment, Mr. Justice Gray in Wong Kim Ark gives us all a history lesson:

It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher’s case in 1851, and since repeated by this court: “Independently of a residence with intention to continue such residence independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance-it is well known that, by the public law an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to that government, and may be punished for treason or other crimes as a native-born subject might be unless his case is varied by some treaty stipulations.”

United States v. Wong Kim Ark, 169 U.S. 649, 694 (1898).

[22] George Collins, Citizenship By Birth, 29 Am. L. Rev. 385, 387 (1895) (George Collins was later to write the amicus curiae brief against birthright citizenship in the landmark United States v. Wong Kim Ark, 169 U.S. 649 (1898).  Perhaps foremost among contemporary commentators, Mr. Collins did not feel himself or the Supreme Court bound by the common law rule on birthright citizenship:

There is no principle of the common law in force in the United States as such; whatever principle it may be it derives its full force and efficacy from the constitution or acts of Congress passed in pursuance thereof.  There is nothing in the constitution to indicate that the term “citizen” was used in reference to the common-law definition of ‘subject’, nor is there any act of Congress declaratory of the common-law doctrine, and the subject of citizenship being national, questions relating to it are to be determined by the general principles of the law of nations.

George Collins, Are Persons Born Within the United States Ipso Facto Citizens Thereof?, 18 Am. L. Rev. 831, 832 (1884).

[23] Dan Stein & John Bauer, Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants?,7 Stan. L. & Pol’y Rev. 2 (Summer 1996), reprinted in Citizenship and the Babies of Non-Citizens, The Social Contract 11, 12 (Fall 1996).

[24]  Schuck & Smith, supra note 12, 42–72.  In Wheaton v. Peters, 114 U.S. 591, 658 (1834 ), Mr. Justice McLean, while dismissing a common law copyright claim, implicitly, though not intentionally, struck a blow against birthright citizenship when he said that “[i]t is clear there can be no common law of the United States ....  The common law could be made a part of our Federal system only by legislative adoption.”  While the absence of a federal common law would not preclude state courts from creating one, it does undermine the conceptual underpinning of Calvin’s Case upon which all birthright citizenship rests.  Perhaps, this is one reason why, as late as 1844, Assistant Chancellor Sandford in Lynch v Clarke, 1 Sandford 583, 663 (N.Y. 1844), still felt that the choice between the common-law and consent-based understandings of citizenship remained very much an open question.  To some extent, perhaps to a very real extent, the debate over whether 19th century America formally adopted the common law misses the point.  Assuming, arguendo, that it did not, this does not mean that the influence of the common law conception of citizenship was any less pervasive given the fact that the cultural and intellectual climate nurtured it and continued to feed it.  It was this climate that gave birth to the Fourteenth Amendment:

When our government was formed, it was organized from British colonies, by people accustomed to British law, and saturated with the principles of the common law.  Without insisting that there is a common law of the United States, it is sufficient for the present purpose to say that our new ship of state was launched in an ocean of common law, and that the legal principles which all its inhabitants had been accustomed to regard as fundamental would continue to control their national action until new principles were found necessary by new exigencies and added experiences.  Hence, it would not be unreasonable to say that, at least in the earlier years of our Republic, the generally accepted doctrine would have been the inconsistent British one, that all persons (generally speaking not including children of foreign ministers, etc.) born within the United States, and all persons born abroad of citizens of the United States, including the second generation, were citizens of this country.

Henry C. Ide, Citizenship By Birth—Another View, 30 Am. L. Rev. 241, 241–242 (1896).

[25] Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 248 (1830).  This case held that a woman who had been born in South Carolina before the Declaration of Independence and lived there afterwards was a South Carolina citizen following independence, despite her marriage to a British soldier during the occupation of her home town.  Quotes are what we make of them so it bears noting that, only three years later, in his treatise on the Conflict of Laws, Mr. Justice Story also endorsed birthright citizenship: “Persons who are born in a country are generally deemed citizens and subjects of that country.”  Story, Conflict of Laws, 48 (1834).

[26] Marshall B. Woodworth, Citizenship of the United States Under The Fourteenth Amendment  30 Am. L. Rev. 535, 536 (1896).  Webster, Law of Citizenship (1891), argues that the United States never formally embraced jus soli, that international law mandated jus sanguinis and that only the freedmen could claim citizenship under the Fourteenth Amendment.

[27] INS Interpretations 301.1 (2004) (“Prior to 1866, absent any statutory of constitutional provision, it was generally held, under the common-law principle of jus soli ( the law of the place) , that a person born in the United States acquired citizenship at birth; this principle was incorporated in the Civil Rights Act of April 9, 1866, and, two years later, found expression in the Fourteenth Amendment to the United States Constitution….”  The very force and solidity of the Fourteenth Amendment citizenship clause came from the fact that it codified what had long existed and been universally understood to be the norm.

[28]Wong Kim Ark, 169 U.S. at 675 (Gray, J.).

[29] Id. at 676. (“The same congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent changes, framed the fourteenth amendment of the constitution….”).

[30] Inglis v. Trustees of the Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830).  This case considered whether a citizen could expatriate himself in a question of land ownership brought by a child born in New York before 1783 of Irish parents.  Throughout the early 19th Century, the impact of the American Revolution upon citizenship was a frequent topic for litigation.  See, e.g., McIlvaine v. Cox, 8 U.S. (4 Cranch) 208 (1808), where the Supreme Court upheld the New Jersey inheritance rights of a solider who had remained in New Jersey after July 4, 1776, but thereafter joined the British Army and left for England.  This was not the only time that the Supreme Court considered whether those born in the American Colonies who had sided with the British during the War for Independence could inherit property in the new nation as natural-born citizens.  In two cases, McIlvaine v. Cox, supra, and Lambert’s Lessee v. Paine, 7 U.S. ( 3 Cranch) 97 (1805), the Supreme Court debated but did not decide the issue.  In a third case, Dawson’s Lessee v. Godfrey, 8 U.S. (4 Cranch) 321 (1807), the Court ruled that plaintiff could not rely on Calvin’s Case but did uphold its continued efficacy as applied to American citizens who continued to own land in England.  Bernadette Meyler, The Gestation of Birthright Citizenship, 1868-1898: States’ Rights, the Law of Nations and Mutual Consent, 15 Geo. Immigr. L.J. 519, 528 (2001).  While the Supreme Court never explicitly upheld birthright citizenship before the Fourteenth Amendment, it was largely because it did not have to do so.  The Court does appear to have assumed that the common law rule held sway when deciding related questions.  See, e.g., Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 120 (1804) (presumed that all born in the United States were citizens for this reason) (“whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself of that character…is not necessary at present to decide.”); M’Creery v. Somerville, 22 U.S. (9 Wheat) 354 (1824) (in settling land title to Maryland property, Court assumed that children born there were American citizens).  Looking back at The Schooner Charming Betsy, when speaking for the Court in Wong Kim Ark, 169 U.S. at 658-59, Mr. Justice Grey concluded that Chief Justice Marshall assumed without deciding that all those born in the United States had a valid claim to citizenship.  Though not a federal case, Gardner v. Ward, reported in Kilham v. Ward, 2 Mass. 236, 244n.a (1806), reaffirmed the common law rule of Calvin’s Case upholding the voting rights of a Salem, Massachusetts native who had spent several years in Newfoundland, Canada, before returning to his home town.  Ruling that the plaintiff was a citizen, Judge Sewell summarized the continuing impact of Calvin’s Case in a forthright manner that left little room for doubt:

A man born within the jurisdiction of the common law is a citizen of the country wherein he was born. By this circumstance of his birth, he is subjected to the duty of allegiance... and becomes reciprocally entitled to the protection of that sovereign and to the other rights and advantages which are included in the term citizenship.

Meyler, supra, at 528 n.70.

[31] See Inglis, 28 U.S. at 156.  It is interesting to note in passing a comment in the 1928 Harvard Law Review on the contemporary validity of birthright citizenship: “It seems safe to say that the same rule would be applied to children born to aliens temporarily within the country, no matter how short their stay.”  Comment, Citizenship by Birth, 41 Harv. L. Rev. 643, 644 (1928).  This same comment goes on to remind us that the same rule should apply a fortiori to “children born in the United States to domiciled aliens.” Id. at n.9.

[32] 1 Sandford Ch. 583, 663 (N.Y. 1844).  Vice-Chancellor Lewis Sandford held that the “U.S.-born child of an Irish resident of the United States who returned to Ireland after the child’s birth and died without ever declaring even an intent to be naturalized was a U.S. citizen.”  Margaret Mikyung Lee, U.S. Citizenship of Persons Born in the United States to Alien Parents, 4–5 (Congressional Research Service, Library of Congress, updated Sep. 13, 2005).

[33] Lee, supra note 32, at 4 (updated Sep. 13, 2005).

[34] 1 Sandford Ch. at 656–663.

[35] Lee, supra note 32, at 5 (updated Sep. 13, 2005).

[36]  Patrick Lynch, father of Julia, lived only 5 years (1814–1819) on an upstate New York farm owned by his brother, often spoke of his desire to return to Ireland, and did not officially declare an intent to acquire American citizenship as required by contemporary naturalization laws.  Schuck & Smith, supra note 12, at 58.  Professors Schuck and Smith contend that Chancellor Sanford’s “choice of the common-law view was based essentially on the feared practical consequences of purely volitional citizenship—particularly a right of expatriation—for the stability of government.” Id. at 61.  Question: Is such legal realism any less persuasive or compelling because it considers the pragmatic impact of a theory when put in action?  Can law develop separate and apart from the society whose activities and social systems are to be governed by such decisions?

[37] Meyler, supra note 30, at 530.

[38] Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833 (1993) [hereinafter Neuman, Lost Century].

[39] Id. at 1842 n.43. “Resolved that it be, and it is hereby recommended to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States.”  13 J. of Cong. 10506 (Sep. 1788).

[40] .Neuman, Lost Century, supra note 38, at 1843.

[41] Id. at 1844.

[42] Id. at 1845.

[43] Id. at 1846.

[44] Id. at 1849-1850.  The Supreme Court struck down a Massachusetts law requiring ship captains to pay $2 for each high-risk passenger in The Passenger Cases, 48 U.S. (7 How.) 283 (1849).  Almost all of the Justices sanctioned the use of state police power to bar admission of sick or impoverished aliens.  Neuman, Back to Dred Scott?, supra note 13, at 497 n.50.  See also Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 142 (1837).

[45] Neuman, Lost Century, supra note 38, at 1851.  This is not all that dissimilar from current law that fines common carriers who transmit those without valid visas to come here or forces them to return any passenger summarily excluded to their point of origin.

[46] Id. at 1852.  There is a striking parallel to contemporary poverty guidelines as an immigration filter.

[47] Id. at 1854.

[48] 48 U.S. (7 How.) 283 (1849).

[49] Henderson v. Mayor of New York, 92 U.S. 259 (1875).  In Chy Lung v. Freeman, 92 U.S. 275 (1875), the Supreme Court invalidated a California statute that required non-citizen passengers from abroad whom the California Commissioner of Immigration had branded as infirm, mentally disabled, physically handicapped or simply immoral to post a $500 bond on the ground that only Congress could regulate commerce with other nations.

[50] Neuman, Lost Century, supra note 38, at 1864.

[51] Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 203 (1824).

[52] Neuman, Lost Century, supra note 38, at 1865.

[53] Id. at 1869.

[54] Id. at 1874.  There are echoes of current mandatory detention practices in these antebellum procedures practices.  We do not readily recognize them because our modern minds do not think of immigration regulation as a state issue.  Yet, before the Civil War, in the world that gave birth to the Fourteenth Amendment, that is precisely what it was.  The transfer of power over immigration from the states to Washington D.C. would come later.

[55] See U.S. Const. art. I, § 9, cl. 1.

[56] Neuman, Lost Century, supra note 38, at 1878.

[57] Moore v. Illinois, 55 U.S. (14 How.) 13 (1853) (Grier, J).  But see, Prigg. v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (Mr. Justice Story, speaking for the Court, invalidated a slavecatcher’s conviction under Pennsylvania law for returning an alleged fugitive slave on the grounds that only the federal government could enforce the Fugitive Slave clause of the Constitution)..

[58] Neuman, Lost Century, supra note 38, at 1884.

[59] Id. at 1896.

[60] Neuman, Back to Dred Scott?, supra note 13, at 497; Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 (1875).

[61] Henderson v. New York, 92 U.S. 259 (1876); Chy Lung v. Freeman, 92 U.S. 275 (1876).  Despite such rulings, state immigration was not entirely a relic of the past: “Even in those cases, the Court purported to leave open the existence of core police power authority in the states … and subsequently upheld state quarantine laws against foreign commerce challenges.  Morgan’s S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455 (1886); Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380 (1902).”  Neuman, Back To Dred Scott?, supra note 13, at 497 n.52.

[62] It is well-settled that the Constitution should not be read to create a redundancy.  See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 562 (1995) (“this Court will avoid a reading which renders some words altogether redundant.”).

[63] John C. Eastman, Editorial, Constitution’s Citizenship Clause Misread, Wall St. J, Dec. 7, 2005, at A19.  Professor Eastman, Chapman University School of Law, distinguishes the jurisdiction of the nation from the jurisdiction of its laws: “To treat the last clause as describing merely territorial jurisdiction…is to render the clause superfluous.  Even temporary visitors are subject to U.S. jurisdiction in that sense; everyone here has to obey our traffic laws, for example.  The clause must therefore mean something much more—an allegiance-owing jurisdiction.”  For a more complete exposition of his views in their full intellectual elegance, see Born in the USA? Rethinking Birthright Citizenship in the Wake of 9/11: Oversight Hearing on Dual Citizenship, Birthright Citizenship and the Meaning of Sovereignty Before the Subcomm. on Immigration, Border Security  and Claims of the House Comm. on the Judiciary, 109th Cong. 33 (Sep. 29, 2005). (statement of John C. Eastman, Professor, Chapman University Law School).  The more consent plays a role in linking the citizen to the nation, the more intricate, indeed intensely personal, such a relationship becomes on several levels; from the consensual perspective, the citizen and the nation can never be strangers since the exercise, perhaps the very existence, of jurisdiction in Fourteenth Amendment terms demands a “more or less complete, direct power by government over the individual, and a reciprocal relationship between them at the time of birth, in which the government consented to the individual’s presence and status and offered him complete protection.”  Children Born in the United States. to Illegal Alien Parents: Hearing on H.J. Res. 93 before the Subcommitte on Immigration and Claims and the Subcommittee on the Constitution of the House Comm. on the Judiciary, 104th Cong. 2 (1995) (testimony of Gerald L. Neuman, Professor, Columbia University School of Law) [hereinafter Neuman on H.J. Res. 93] (quoting and criticizing Schuck & Smith, supra note 12), http://judiciary.house.gov/legacy/618.htm.  In the modern era, when the influence of government makes itself profoundly felt in the most intimate areas of our personal and private lives, it is not clear if the consensual notion of citizenship is more culturally congenial than the common law rule of birthright citizenship or, to the contrary, is less suitable precisely because one is never sure when, and under what conditions, consent once extended might not suddenly be withdrawn.

[64] Neuman on H.J. Res. 93, supra note 53, at 2.

[65] Id. at 3.

[66] Id.

[67] Id.  See also Schuck & Smith, supra note 12, at 65–66: “In Worcester v. Georgia, John Marshall adopted the position advanced by the dissenters in Cherokee Nation the tribes were tributary states … under the protection of the United States, but not in a way that involved the ‘destruction’ of their independence.  Georgia therefore could not regulate members of the tribe as it would its own citizens.”  See also Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 552, 561 (1832).  Not just the rule of birthright citizenship, but the exceptions to it, were well known and firmly established long before the Fourteenth Amendment.

[68] Schuck & Smith, supra note 12, at 76.  For more on the repressive potential of consensual citizenship, see supra notes 11–12 and accompanying text.

[69] Id. at 79.

[70] Id. at 74.  The text of the Civil Rights Bill of 1866 can be found at Chapter 31, 14 Stat. 27 (April 9, 1866).  While critics of birthright citizenship are not sure what Congress meant to do, President Andrew Johnson’s veto message leaves little doubt that the President knew: “By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.  This provision comprehends the Chinese of the Pacific states, Indians subject to taxation, the people called ‘Gypsies’, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and person of African blood.  Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.”  Elk v. Wilkins, 112 U.S. 94, 114 (1884).  There were minor textual differences between the Fourteenth Amendment and the Civil Rights Bill of 1866, such as the constitutional version using the words “subject to the jurisidiction” while the legislative version spoke of “not subject to a foreign power” but the blood lines of the Fourteenth Amendment are clear and unmistakable.  One scholar notes that the “primary distinction between the language of the Act and that of the Amendment was in the latter’s mandate that states use the common law doctrine of birthright citizenship, divesting them of power to deny local community membership to any individual born within its borders.”  Drimmer, supra note 12, at 696.  President Johnson’s veto message is reprinted at Cong. Globe, 39th Cong., 1st Sess., 1857–1860 (1866) [hereinafter Cong. Globe].

[71] Schuck & Smith, supra note 12, at 77.  Senator Trumbull’s remarks can be found in full at Cong. Globe, supra note 70, at 474.

[72] Schuck & Smith, supra note 12, at 77.

[73] Id.

[74] Id.

[75] Calvin v. Smith, 77 Eng. Rep. 277 (K.B. 1608).  The creation of a new national allegiance to James I was a political necessity, resulting from his accession as the Scottish king to the British throne: “The central issue was whether a child born in Scotland could inherit lands in England as a native or whether he was an alien and therefore ineligible to inherit under English law.  While Coke opposed unlimited royal power, he nonetheless thought it vital to assert that the political union created by the accession overrode all preexisting national allegiances.”  Adam C. Abrahms, Note, Closing the Immigration Loophole: The 14th Amendment’s Jurisdiction Requirement, 12 Geo. Immigr. L.J. 469, 480 n.66 (1998).

[76] Schuck & Smith posit that “Trumbull understood allegiance not merely in Coke’s terms, as stemming from the fact of protection at birth, but in a more consensualist fashion, as dependent upon the wills of the community and the individual.”  Schuck & Smith, supra note 12, at 80.

[77] Cong. Globe, supra note 70, at 2893 (remarks of Senator Lyman Trumbull).  Critics of birthright citizenship argue that this requirement “would clearly exclude the then non-existent and thus unmentioned category of illegal aliens , who owe full allegiance to their own countries but none to ours.” Hearing on H.J. Res. 56 Before the House Comm. on the Judiciary, 104th Cong. 100 (1995) (written statement of Peter H. Schuck, Professor, Yale Law School).  In his classic treatise on constitutional jurisprudence, Thomas Cooley echoed Senator Trumbull by defining “subject to the jurisdiction” to mean “full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction such as may exist with allegiance to some other government.” Thomas Cooley, The General Principles of Constitutional Law in America 243 (Lawbook Exchange 2001) (1880). See Section V: Proposals, infra.

[78] Cong. Globe, supra note 70, at 2895.  Schuck & Smith rely heavily upon these excerpted expressions: “Their view of the matter – that the existence of full and reciprocal obligations of individual allegiance and governmental power and protection in this strong sense was the crucial element needed to satisfy the jurisdiction requirement and qualify one for birthright citizenship.”  Schuck & Smith, supra note 12, at 83.

[79] The Reconstruction Amendments’ Debates: The Legislative History and Contemporary Debates in Congress on the 13th, 14th and 15th Amendments 227 (Alfred Avins ed. 1967) (remarks of Senator Jacob Howard, May 30, 1866).

[80] Cong. Globe, supra note 70, at 2897 (remarks of Senator Williams).  For critics of birthright citizenship, an illegal alien cannot be fully and completely subject to the jurisdiction of the United States when his or her very presence here depends upon being able to stay in the shadows and avoid detection.  If this is so, then the concomitant duty of the sovereign, here the people through their elected representatives is also less then complete.  Under such circumstances, critics contend, being physically subject to the power of American law is a necessary but hardly sufficient condition for the attachment of jurisdiction and the citizenship that comes with it.  See, e.g., Charles Wood, Losing Control of America’s Future—The Census, Birthright Citizenship and Illegal Aliens, 22 Harv. J.L. & Pol’y 455, 510 (1999).

[81] Schuck & Smith, supra note 12, at 85.  Using Senator Howard’s measuring stick of exclusive allegiance, one wonders if the children of lawful permanent residents, who, after all, still retain their original citizenship, and are not yet American citizens, would acquire citizenship at birth.  Clearly, a permanent resident remains indissolubly yoked to his or her country of birth and continues to owe all proper fealty to such nation.  Taken to its logical extreme, only the children of citizens could be sure of birthright citizenship, a conclusion that would invalidate most proposed schemes to alter birthright citizenship, be they statutory or constitutional.  See Section V: Proposals, infra.  Senator Howard introduced the Citizenship Clause with this explanation: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.  This has long been a great desideratum in the jurisprudence and legislation of this country.” Cong. Globe, supra note 70, at 2890.  Should birthright citizenship be ended or materially altered, one wonders if the question of who is a citizen would remain “settled.”  Would the Fourteenth Amendment still guarantee that we all know who is a citizen at birth?  One critic of the consent-based theory of citizenship as articulated most famously by Professors Schuck and Smith does not think so: “In other words, a person is not ‘subject to the jurisdiction’ of the United States unless the United States consents to the person’s status as a citizen. This is completely circular and so would really guarantee no one citizenship at birth.” Neuman on H.J. Res. 93, supra note 53, at 9.  Inherent in the notion of consent is the possibility that it will be withheld.

Analogizing between the illegal aliens of today and the illegally imported African slaves brought to this country after 1808, when a ban against their presence went into effect, Professor Neuman reminds us that a consent-based interpretation of the Fourteenth Amendment might have the most unexpected of consequences: “ Under the revisionist theory, children born in the United States to illegally imported slaves would not have been guaranteed citizenship by the Fourteenth Amendment, because the United States government did not consent to their parents’ presence in the country. This would contradict  the clear purpose of the Civil Rights Act of 1866 and the Fourteenth Amendment …” Neuman on H.J. Res. 93, supra note 53, at 10.  Even by conservative estimates, there were tens of thousands of such illegally imported African slaves.  See C. Vann Woodward, American Counterpoint 82 (1971); see also 1 R.Fogel & S. Engerman, Time On the Cross 23-25 (1974).  The fact that the ban against slave importation was more theoretical than actual only reinforces comparisons with contemporary crusades to turn back illegal migrants: “If the statutes for the suppression of the slave trade were under-enforced, if enforcement efforts were under-funded, if a segment of the population encouraged the illegal migration in order to benefit from the slaves’ labor, the parallel with undocumented aliens today is merely all the stronger.”  Neuman, Back To Dred Scott?, supra note 12, 485, 498 n. 58.  Moreover, if birthright citizenship were to be changed, whether by constitutional amendment or by Congress, what status would those who were to be citizens no more have?  By what right would they lay claim to remain part of the American polity?

[82] Earl M. Maltz, The Fourteenth Amendment and Native American Citizenship, 17 Const. Commentary 555, 567-568 (2000).  Ultimately, on a strict party line vote, with Democrats (including the nominal Republican Doolittle) supporting the change with Republicans in stout opposition, Sen. Doolittle’s amendment was rejected and the definition of citizenship remained unchanged.  Cong. Globe, supra note 70, at 2897.

[83] 15 Stat. 223; Rev. St. 1999.  The Expatriation Act of July 27,1868, affirmed expatriation as an inherent right that citizens of all nations could and most exercise in a free and independent manner. However, the right to give up citizenship in one country does not necessarily mean a concomitant and equal right to acquire citizenship in another. The contradiction between a consent based theory of expatriation and the common law rule on birthright citizenship assumes that losing and gaining citizenship are one and the same, two parts of the same process, simply at opposite ends of a continuum. There is no reason in law or logic why this must or should be so.

[84] Abrahms, supra note 75, at 483.  Critics of birthright citizenship point to the Expatriation Act of 1868 as proof that consent was king: “In 1868, Congress passed what is known as the Expatriation Act.  This was a companion piece to the 14th Amendment.  It was debated by virtually the same Congress that passed the 14th amendment.  This bill, the Expatriation Act of 1868, rejected the notion of birthright citizenship.”  Hearing on H.R. 7 Before the House Comm. on the Judiciary, 105th Cong. 30 (1997) (remarks of Edward Ehrler, Professor of Political Science, California State University at San Bernardino).

[85] Afroyim v. Rusk, 387 U.S. 253 (1967).  Even before the Civil War made the Fourteenth Amendment restoration possible, Americans had turned their backs on the feudal notion of perpetual allegiance inherited from the English common law tradition.  See, e.g., 8 Ops. Atty. Gen. 139 (1856).

[86] For a view that the Fourteenth Amendment was a profoundly conservative act, see supra note 5.  The purpose of the birthright citizenship clause was to remove this most basic question from the political arena since the Radical Republicans who had so recently enacted the Civil Rights Bill of 1866 were quite well aware that their political dominance would not last forever; what one Congress had done, a future Congress could undo.  “We desired,” Senator Howard candidly admitted, “to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentlemen … who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.”  Reconstruction Amendments’ Debates, supra note 79, at 228 (remarks of Senator Jacob Howard, May 30, 1866).  In speaking of the need for a constitutional definition of citizenship, Bluff Ben Wade, the Radical Republican from Ohio, noted the impermanence of what had been done thus far:

The courts have stumbled on the subject … and it is still regarded by some as doubtful.  I regard it as settled by the civil rights bill … but by the decisions of the courts there has been a doubt thrown over that subject; and if the Government should fall into the hands of those who are opposed to the views that some of us maintain, those who have been accustomed to take a different view of it , they may construe the provision in such a way as we do not think it liable to construction at this time, unless we fortify and make it very strong and clear.

Id. at 222.

[87] No nation, the argument runs, would so reward illegal conduct.  One critical scholar puts it this way: “If mutual consent is the requirement for membership in a political community and the parents of such children are individuals whose very presence within the territorial borders of the United States is a violation of the nation’s laws and sovereignty, then they are plainly individuals to whom the society has explicitly and consciously denied membership.  Having refused to consent to their membership, it can hardly be claimed that the nation consented to the membership of their children—children who are born while their parents are in clear violation of the law.”  Abrahms, supra note 75, at 474.

[88] Professor Gerald L. Neuman of Columbia University does not think so:

The legislative history of the Fourteenth Amendment makes it very clear that the framers of 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 infamous 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 a racially neutral basis the same principles that had always governed American citizenship for persons of European descent.

Neuman on H.J. 93, supra note 53, at 10.

[89] Reconstruction Amendments’ Debates, supra note ,79 at 223 (remarks of Senator Jacob Howard).  During congressional consideration of the Civil Rights Bill of 1866, in which the definition of citizenship was substantially the same as would later appear in the Fourteenth Amendment, Congressman Wilson, the Chair of the House Judiciary Committee, voiced the same caution.  To him, such language was “merely declarative of what the law now is,” and he cited with approval the antebellum constitutional scholar Willam Rawle who wrote: “Every person born within the United States, its Territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”  Cong. Globe, supra note 70, at 1115, 1117 (quoting William Rawle, A View of the Constitution of the United States of America  80 (1829)).  The Civil Rights Bill of 1866 and the Fourteenth Amendment made explicit what the common law had implicitly always assumed to be so, namely that “every person born within the limits of the United States…is, by virtue of natural law and national law a citizen of the United States.”  Cong. Globe, supra note 70, at 2890 (statement of Sen. Howard); Id. at 2893 (statement of Sen. Johnson) ( citizenship is established by “birth within the territory of the United States.”).  Even critics of birthright citizenship acknowledge as they must that “the English common law principles governing birthright citizenship provide important insight into how the framers of the Fourteenth Amendment understood its citizenship provision.”  Charles Wood, supra note 80, at 504.

[90] Cong. Globe, supra note 70, at 2890 (remarks of Senator Howard).  While most scholars read this to be nothing more than a reaffirmation of traditional common law exceptions, critics of birthright citizenship read into it something much different.  They say that Senator Howard used this phraseology to announce his view that the “Clause did not include people born on American soil to foreigners.” Brief of Amicus Curiae Eagle Forum Education & Legal Defense Fund at 6, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696).  While construing Senator Howard’s remarks in this manner does serve to make the desired point, a fair reading of them in the context of the entire debate, including all of his other statements, makes it difficult to accommodate the spin that critics of birthright citizenship seek to place upon it. Professor Gerald L. Neuman, perhaps the foremost critic of the consensualist theory, points out that, while the traditional reading of Senator Howard’s remarks would simply exclude the children of diplomats, something that had always been the case, the revisionist interpretation would have distinctly unsettling and profoundly unanticipated results:

The second meaning does not support the revisionist interpretation at all, but would mean that no children of foreigners, not even children of permanent residents, would be U.S. citizens.  Only citizens’ children would be citizens.  This would mean that the Fourteenth Amendment had suddenly shifted U.S. citizenship law from the common law jus soli rule to the Continental jus sanguinis rule and that Wong Kim Ark was wrongly decided. This extreme change would not only have escaped the notice of the Supreme Court; it would also have escaped the notice of the other Senators who debated Senator Howard’s proposal on the understanding that it would confirm the citizenship of children born to Chinese immigrants and Gypsies…Senator Howard was articulating the traditional interpretation of the Citizenship Clause.

Societal and Legal Issues Surrounding Children Born in the United States to Illegal Parents: Joint Hearing on H.R. 705, H.R. 1363, H.J. Res. 56, H. J. Res. 87, H. J. Res. 88, and H.J. Res. 93 Before the House Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 4 (1995) (remarks of Gerald L. Neuman, Professor, Columbia University School of Law).

[91] Reconstruction Amendments’ Debates, supra note 79, at 133; Cong. Globe, supra note 70, at 570 (remarks of Senator Morrill).

[92] Commenting on the Citizenship Clause in 1871, Representative Kerr argued that the Fourteenth Amendment endowed Congress with no new authority to define citizenship: “Now, does this provision confer upon Congress of the United States any new or original power?  I say no.  It is no grant of power; it gives no new power to Congress; it takes no preexisting power from the State.  It simply declares who shall be citizens of the United States.”  Reconstruction Amendments’ Debates, supra note 79, at 496; Cong. Globe, 42d Cong., 1st Sess. 46 (1871) (remarks of Congressman Kerr on the Klu Klux Klan Act of 1871).  More recent commentators have also felt that the jurisdictional qualifier embedded within the citizenship clause of the Fourteenth Amendment contained nothing remarkable:

The 14th amendment’s use of “subject to the jurisdiction thereof” does nothing more than incorporate four well-defined exceptions to the rule of American birthright citizenship.  Three of those exceptions are as old as the common law rule itself.  By common law, children born to foreign diplomats, on foreign ships, and to any occupying forces were consistently deemed not fully subject to the sovereign and, therefore, not citizens by birth. The final exception captured by this phrase, in some sense, related to the others, was that of children born to American Indians who were recognized as owing direct allegiance to the tribes of which they were members.

Hearing on H.R. 7 Before the House Comm. on the Judiciary,105th Cong. 19 (1997) (remarks of Dawn E. Johnsen, Acting Asst. Attorney General, Office of Legal Counsel).  Justice Gray writing for the Supreme Court in the seminal Wong Kim Ark case provides the most authoritative answer:

The real object of the Fourteenth Amendment of the Constitution in qualifying the words “All persons born in the United States,” by the addition, “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words, (besides children of members of Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State—both of which, as has already been shown , by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

United States v. Wong Kim Ark, 169 U.S. 649, 683 (1898) (Gray, J.)

[93] There is disagreement and debate as to whether an illegal alien can commit treason against the United States.  In Carlisle v. United States, 83 U.S. 147 (1872), the issue arose as to whether aliens living here who assisted the Confederacy during the Civil War could take advantage of a presidential pardon for such crimes.  Carlisle held that they could for the reason that even “strangers … whose residence is transitory” owed a temporary allegiance and were capable of violating it through the commission of a treasonous act.  Id. at 154.  Much later, the State Department arrived at essentially the same place when it found that a child born on Ellis Island to a woman who had not yet cleared customs was a citizen of the United States under the theory that the mother was on US soil and thereby subject to US law.  For this reason, she was expected to display “the same ‘temporary allegiance’ which is required of aliens generally while they are in this country.”  See Memorandum of the Office of the Solicitor for the Department of State on Ona Laszas (Feb. 6, 1930), reprinted in 3 G. Hackworth, Digest of International Law 10 (1942).

[94] Reconstruction Amendments’ Debates, supra note 79, at 131 (remarks of Senator Lyman Trumbull).

[95] Id.

[96] Act of Jan. 29, 1795, 1 Stat. 414, c. 20.

[97] Reconstruction Amendments’ Debates, supra note 79, at 134.  Senator Trumbull declared his purpose to be “to make citizens of everybody born in the United States who owe allegiance to the United States.”  Id.

[98] Id.

[99] Id.  Senator Reverdy Johnson, a Maryland Democrat, and virtually the only member of his party to speak with any frequency on these issues, opined that Indians not taxed should be excluded from the Civil Rights Bill of 1866 because they were “considered virtually as foreigners” and therefore not to be counted as part of the citizenry, a description that Senator Trumbull did not contest when applied to “those tribes with whom we make treaties.”  Id.

[100] Reconstruction Amendments’ Debates, supra note 79, at 222.  However, as with all such remarks, they must be taken in context to retain their original meaning.  Right after saying this, Senator Wade went on to say as well that such a situation could “hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case ….  It would make no difference in the result.”  Id.  Senator Wade was not abandoning his commitment to birthright citizenship as expressed in the Fourteenth Amendment so much as having the intellectual honesty to admit that there might be that rare case where it would not apply.  It should also be noted that Senator Fessenden, who raised the rhetorical question to which Senator Wade responded, was not an opponent of birthright citizenship and, in fact, introduced an amendment to the citizenship clause that allowed persons who were naturalized in the United States to also be considered citizens for both federal and state purposes. Id. at 237.

[101] Societal and Legal Issues Surrounding Children Born in the United States to Illegal Parents: Joint Hearing on H.R. 705, H.R. 1363, H.J. Res. 56, H. J. Res. 87, H. J. Res. 88, and H.J. Res. 93 Before the House Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 4 (1995) (remarks of Walter Dellinger, Asst. Attorney General, Office of Legal Counsel, United States Department of Justice).  Mr. Dellinger points to a spirited exchange between Senators Trumbull and Conness, both of whom were staunch supporters of the Civil Rights Bill and the Fourteenth Amendment, and Senator Edgar Cowan, a bitter foe of both.  When the latter asked if the “child of the Chinese immigrant in California” or the “child of a gypsy born in Pennsylvania” would be a citizen, Senator Conness, with approbation from Senator Trumbull, answered unhesitatingly in the affirmative: “The proposition before us … relates … to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens.  We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation.  I am in favor of doing so.” Cong. Globe, supra note 70, at 2890–91 (remarks of Senator Conness).

[102] Societal and Legal Issues Surrounding Children Born in the United States to Illegal Parents: Joint Hearing on H.R. 705, H.R. 1363, H.J. Res. 56, H. J. Res. 87, H. J. Res. 88, and H.J. Res. 93 Before the House Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 4 (1995) (remarks of Gerald L. Neuman, Professor, Columbia University School of Law).  See also supra note 12 and accompanying text.

[103] Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1873).  While even dicta from the Supreme Court is highly persuasive as an interpretive gloss on the Citizenship Clause, we would do well to remember that this was not an immigration case in any sense.  The controversy before the Court arose when New Orleans butchers contended that a Louisiana statute passed as a public health measure violated the Thirteenth and Fourteenth Amendments by prohibiting the slaughter of any animals within city limits, thereby allegedly giving a particular company a monopoly on this trade.  The Court upheld the law as a valid exercise of the state police power.

[104] Elk v. Wilkins, 112 U.S. 94 (1884).

[105] Slaughter-House Cases, 83 U.S. (16 Wall.) at 73.  Not surprisingly, critics of birthright citizenship leap upon these remarks in dicta by Justice Miller with unrestrained zeal:

The Slaughter-House Cases thus excluded not only foreign diplomats from those subject to U.S. jurisdiction, but also aliens generally.  The Court restated this view in the 1874 case Minor v. Happersett….  The Court also specifically noted a distinction between the children of citizens and the children of aliens “or foreigners.”…  Following Minor, the Court elaborated on the definition of the term “citizen” in United States v. Cruikshank.  The Court described citizens as persons who “have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights.” Unlike other persons, a citizen is one who has actively submitted to the jurisdiction of the United States.  Under this definition, temporary submission by an alien lacks the permanence and promise of allegiance inherent in a complete surrender to jurisdiction.  Read together, Cruikshank  and Minor illustrate the Court’s willingness to allow the exclusion of children born to alien parents on U.S. soil from the operation of the Fourteenth Amendment’s citizenship clause.  Those who submitted only temporarily to the jurisdiction and protection of the U.S. government were not included within the parameters of this conception of citizenship, and the Citizenship Clause did not cover their children.

Stein & Bauer, supra note 23, at 14.

Much as with The Slaughter-House Cases, neither Minor v. Happersett, 88 U.S. 162( 1875) nor United States v. Cruikshank, 92 U.S. 542 (1976) really were on point.  In Minor v. Happersett,  a woman born in Missouri sued when a state registrar refused to register her as a voter.  The Supreme Court held that the Fourteenth Amendment had not conferred citizenship upon her since she has been a citizen from birth.  The case had nothing to do with illegal aliens.  The Court found that suffrage was not coextensive with state citizenship at the time the Constitution was adopted.  Neither the Constitution nor the Fourteenth Amendment made all citizens voters.  At this time, the Missouri constitution only extended the suffrage to men and this was held not to be violative of the Fourteenth Amendment.  It is true that dicta in Minor v. Happersett does lend itself to a critique of the common law rule on birthright citizenship:

At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became citizens themselves upon their birth certificates also. These were natives or natural-born citizens as distinguished from foreigners…Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first.

Minor v. Happersett, 88 U.S. at 167–168 (Waite, C.J.).  However, the Court went on to say, though critics of birthright citizenship frequently leave this out, that “[f]or the purposes of this case, it is not necessary to solve these doubts.  It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”  Id.  United States v. Cruikshank also had nothing to do with illegal aliens and citizenship.  This case concerned a conspiracy indictment for violation of the 1870 Enforcement Act that sought to protect African-Americans in their attempted exercise of First and Fifteenth Amendment rights against white intimidation in Reconstruction Louisiana.  The Supreme Court invalidated the indictments as too vague to suffice as criminal pleading.  The discussion of citizenship here does have a consensual quality to it which critics of birthright citizenship would likely find congenial if not directly relevant: “Citizens are the members of the political community to which they belong.  They are also the people who compose the community and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights.”  Cruikshank, 92 U.S. at 549.

[106] Howard Sutherland, Citizen Hamdi: The Case Against Birthright Citizenship, The American Conservative, Sep. 27, 2004, at 3.

[107] See Immigration and Nationality Act § 301(b), 8 U.S.C. § 1401(b) (conferring citizenship on all native born Americans in the United States.)

[108] Elk v. Wilkins, 112 U.S. at 101 (Gray, J).

[109] Id. at 102.

[110] Id. at 99.  Ironically, it would not be until 40 years after Elk v. Wilkins that the Indian Citizenship Act of 1924 would provide that “all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”  Act of June 2, 1924, c. 233, Pub. L. No. 68-175, 43 Stat. 253; Documents of United States Indian Policy 218, (Frances Paul Prucha ed., 2d ed., rev. 1990).  Even if Congress had not subsequently overridden Elk v. Wilkins, an argument can, and indeed has been, made that neither the law nor the logic of this case should apply “to undocumented populations in the United States who have never been attributed independent sovereign characteristics.”  Analysis of Proposed Constitutional Amendment That Would Deny Citizenship to U.S.-born Children of Undocumented Residents, Memorandum prepared by Wilmer, Cutler & Pickering, to the National Council of La Raza and the Washington Lawyers Committee for Civil Rights 24–25 (August 24, 1933) (on file with author).  This, after all, goes to the very heart of the Court’s rationale in Elk v. Wilkins, namely that the Indian tribes were separate nations whose members owed allegiance to them rather than to the United States:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to one of the Indian tribes ( an alien, though dependent, power), although in a geographic 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.

112 U.S. at 102.  Elk. v. Wilkins was not alone in viewing Native Americans as a separate and distinct class for citizenship purposes.  McKay v. Campbell, 16 F. Cas. 161, 2 Sawyer 118 (D.C. Or. 1871), was “another case in which an opinion was given on the clause in question, where it was held that an Indian, although born within the United States is not a citizen because not subject to its jurisdiction.”  Hayward, supra note 17, at 318.

[111] Elk v. Wilkins, 112 U.S. at 109.  In dissent, Mr. Justice Harlan wondered what reasons would there be not to recognize the citizenship of John Elk who was so obviously and so willingly and so totally under the jurisdiction of the nation whose Constitution had no place for him; Justice Harland quoted Senator Lyman Trumbull on this very point: “It is only those who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.”  Id. at 118; Cong. Globe, supra note 70, at 2890–93.  Interestingly, but perhaps not surprisingly, Mr.Justice Harlan also dissented in Plessy v. Ferguson, 163 U.S. 537 (1896), the famous “separate but equal” decision that would provide the intellectual underpinnings of Jim Crow for the next sixty years.  Both Elk and Plessy served to define and narrow the boundaries of civic society; both, like Dred Scott, have been repudiated by the judgment of history, and both suggest the wisdom of a more expansive national vision.

[112] Elk v. Wilkins, 112 U.S. at 102:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographic 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 or the children born within the United States of ambassadors, or other public ministers of foreign nations.

[113] It is worth noting that Elk v. Wilkins spoke of “children of subjects of any foreign government born within the domain of that government…” (emphasis added), rather than children born to foreign parents temporarily residing in the United States.  112 U.S. at 102.  Beyond that, we can look to the plain language of Justice Gray in Wong Kim Ark, 169 U.S. 649, 682 (1898), where the author of Elk v. Wilkins reminds us that his earlier progeny “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.”

[114] John C. Eastman, Born in the USA? Rethinking Birthright Citizenship in the Wake of 9/11 (The Federalist Soc’y for L. and Pub. Policy Studies, Wash., D.C.) Mar. 22, 2003, at 10, available at http://www.fed-soc.org/pdf/birthright.pdf.  Elk v. Wilkins advanced what Wong Kim Ark later rejected, though both were authored by the same Justice Gray, namely that “there is a difference between territorial jurisdiction on the one hand, and the more complete, allegiance-obliging jurisdiction codified by the Fourteenth Amendment on the other.”  Brief of Amicus Curiae Claremont Institute Center for Constitutional Jurisprudence at 10, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696) (Former Attorney General Edwin Meese and Professor John Eastman were the authors).

[115] Societal and Legal Issues Surrounding Children Born in the United States to Illegal Parents: Joint Hearing on H.R. 705, H.R. 1363, H. J. Res. 56, H. J. Res. 87, H.J. Res. 88, and H. J. Res. 93 Before the Subcomm. on Immigration and Claims and the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 74–91 (1995) (testimony of Walter Dellinger, Assistant Att’y Gen., Office of Legal Counsel).  In pertinent part, Dellinger cautioned against an overly broad interpretation of Elk v. Wilkins: “Wilkins cannot be interpreted to mean that children born in the United States of aliens are not ‘subject to the jurisdiction’ of the United States because their parents may owe some allegiance to their own country of birth.  Otherwise, dual nationality would be prohibited.” Id. at 85.

[116] The platform was a bit smaller after Justice Gray changed his mind in Wong Kim Ark and narrowed the holding in Elk v. Wilkins: “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, 169 U.S. at 682.

[117] When Justice Noah Swayne, riding circuit as was common for Supreme Court Justices to do in the 19th century, pondered the meaning of the Civil Rights Bill of 1866, he came up with a far different result, one that endorsed the common law rule: “‘Citizens’ under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress.  We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States.”  United States v. Rhodes, 27 F. Cas. 785, 789 (C.C.D. Ky. 1866) (No. 16,151) (Swayne, J., on circuit).

[118] See supra note 103.

[119] 354 F.3d 609 (7th Cir. 2003).

[120] Id. at 620.  There was no evidence in the record that appellant came to the United States for such a reason.

[121] Id. at 621.

[122] Id.

[123] United States v. Wong Kim Ark, 160 U.S. 649 (1898).

[124] Id. at 701–702.  See also Chinese Exclusion Acts, 22 Stat. 58 (1882).  Another case involving the American-born son of Chinese immigrants who had taken up permanent residence in the United States was In re Look Tin Sing, 21 F. 905, 907 (C.C. Cal. 1884) (Field, Cir. J.).  Here again, the court upheld the citizenship claim because of the fact that, at the time of his birth, Look Tin Sing was subject to the exclusive jurisdiction of the United States.

[125] Wong Kim Ark, 160 U.S. at 704–705.

[126] Id. at 660.

[127] Id. at 694–695.

[128] Id. at 694.  Justice Gray took pains to note that language to the contrary in The Slaughter-House Cases was  merely dicta without precedential value or binding effect.  Id. at 678.

[129] Id. at 681–682.

[130] Id. at 693.

[131] Eastman, Born in the USA, supra note 114, at 11–14.  In dissent, Justice Fuller drew a distinction between two very different forms of allegiance, “the one, natural and perpetual; the other, local and temporary.”  Wong Kim Art, 169 U.S. at 710 (Fuller, J., dissenting).  He argued that the Citizenship Clause of the Fourteenth Amendment applied only to the former, not the latter.  Justice Fuller denounced the majority rule as “the outcome of the connection in feudalism between the individual and the soil on which he lived, and the allegiance due was that of liege men to their liege lord.”  Id. at 707.  See also Edward J. Erler, Immigration and Citizenship: Illegal Immigrants, Social Justice and the Welfare State, in Loyalty Misplaced: Misdirected Virtue and Social Disintegration 71, 77 (Gerald Frost ed., 1997) (“The social contract requires reciprocal consent.  Not only must the individual consent to be governed, but he must also be accepted by the community as a whole.  If all persons born within the geographical limits of the United States are to be counted against citizens—even those whose parents are in the United States illegally—then this would be tantamount to the conferral of citizenship without the consent of the whole people.”).

[132] Wong Kim Ark, 160 U.S. at 694.  See also supra note 79.

[133] Id. at 703.  See also Afroyim v. Rusk, 387 U.S. 253, 266–67 n.22 (1967), where the Court noted that “some have referred to this statement as a holding and others have referred to it as obiter dictum, but which deemed it entitled to great weight regardless of whether it was dictum or a holding.”  Lee, supra note 32, at 9 n.54 (updated Sep. 13, 2005).

[134] Wong Kim Ark, 160 U.S. at 688.

[135] Id. at 676.  Elsewhere in the opinion, Justice Gray said the same thing: “This sentence of the Fourteenth Amendment is declaratory of existing rights and affirmative of existing law ….”  Id. at 688.  Indeed, this was the same interpretation of the Citizenship Clause advanced by Mr. Justice Field, joined in dissent by Chief Justice Chase and Justices Swayne and Bradley, in The Slaughter-House Cases: “It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth … not upon the constitution or laws of any state or the condition of their ancestry.”  The Slaughter-House Cases, 83 U.S. (16. Wall.) 36, 95 (1873) (Field, J., dissenting).  See also supra note 88.

[136] See Rogers v. Bellei, 401 U.S. 815, 829 (1971) (citizenship clause is “declaratory of existing rights, and affirmative of existing law, so far as the qualifications of being born in the United States, being naturalized in the United States and being subject to its jurisdiction are concerned.”); Kennedy v. Mendoza- Martinez, 372 U.S. 144, 159 n.10 (1963) (confirming that the citizenship clause “is to be interpreted in light of pre-existing common-law principles governing citizenship.”); Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982) (adopting Wong Kim Ark’s geographic interpretation of jurisdiction for purposes of the Citizenship Clause); INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (in a habeas petition brought by deportable aliens, the Supreme Court took note of the fact that respondent had given birth to a child, “who, born in the United States, was a citizen of this country.”); Morrison v. California, 291 U.S. 83, 85 (1933) (noting that, while persons of Japanese ancestry were racially precluded from naturalization, a person of Japanese heritage remains a US citizen if born within the United States, citing Wong Kim Ark for authority); Perkins v. Elg, 307 U.S. 325, 329 (1939) (child born in Brooklyn, New York, but taken by her parents to Sweden while in her infancy was not an illegal alien and could not be deported); Matter of Cantu, 17 I. & N. Dec. 190 (BIA 1978) (child born in Texas along the international boundary with Mexico before the United States transferred the territory back to Mexico became an American citizen at birth).

[137] Weber v. Aetna Casualty & Surety, 406 U.S. 164, 175 (1972) (“imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.”).

[138] Plyler v. Doe, 457 U.S. 202 (1982) (invalidated Texas law excluding children of undocumented aliens from public schools).

[139] Lewis v. Thompson, 252 F.3d. 567 (2d Cir. 2001).  Interestingly, the Second Circuit panel found that denial of prenatal care did not violate the equal protection clause.  The court accepted the citizenship claim of the children as a given, without challenging or questioning it in any way.

[140] Plyler v. Doe, 457 U.S. 202, 310–16 (1982) (quoting Yick Wo v. Hopkins,188 U.S. 356, 369 (1886)).

[141] 542 U.S. 507 (2004).

[142] Lee,  supra note 17, at 10–15 (updated Nov. 4, 2005).  See also Schuck & Smith, supra note 12, at 116–140.  There is even a name or label derisively attached to such children.  Critics dismiss them as “anchor babies”.

[143] Stephen Dinan, GOP Mulls Ending Birthright Citizenship, Washington Times, Nov. 4, 2005, http://washingtontimes.com/functions/print.php?StoryID=20051103-115741-1048r.

[144] Lee, supra note 32, at 13 (updated Sep. 13, 2005).

[145] In 1995, Raul Yzaguirre, the President of the National Council of La Raza, made this very point when testifying before the House Immigration Subcommittee in opposition to H.R. 1363, the Citizenship Reform Act of 1995.  Introduced by Congressman Brian Bilbray of California, this would have redefined “subject to the jurisdiction of the United States” to preclude children other than those born to lawful permanent residents.  Mr. Yzaguirre did not think this was such a good idea: “H.R. 1363 is so narrowly drawn that children of many persons who are lawfully present in the United States would be denied citizenship.  There are hundreds of thousands of persons legally here, including refugees and asylees, those in temporary protected status, temporary workers, and parolees who are not now permanent residents … [I]t fails to recognize the fact that many, and perhaps most, of these people will eventually obtain permanent resident, and even citizenship status.”  Proposals to Deny Birthright Citizenship to Children of Undocumented Parents Before the Subcomm. on Immigration and Claims and on the Constitution, House Comm. on the Judiciary, 104th Cong. 10 (1995) (statement of Raul Yzaguirre, President, National Council of La Raza).

[146] Citizenship Reform Act of 2005, H.R. 698, 109th Cong. § 3 (introduced by Rep. Nathan Deal of Georgia), http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.698:.  Since marriage is a matter of state not federal law, and since there are 8 states which do recognize common law marriage, is it not a concern on equal protection grounds for Congress to condition the validity or infirmity of a citizenship claim on the kind of marriage that the concerned parents have elected to govern their own relationship?  One wonders.  Under Congressman Deal’s definition, in a state, like Texas, whose family code recognizes common law marriage, you would have the rather incongruous situation of a child being born out of wedlock for citizenship purposes but in wedlock for virtually everything else.  Does this raise any 10th Amendment concerns?  Not one to be discouraged, Congressman Deal introduced his bill on more than one occasion.  See also Citizenship Reform Act of 2003, H.R. 1567, 108th Cong., § 3, http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.1567:.

[147] H.R. 3938, 109th Cong. § 701 (2005), http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.3938:.

[148] 8 U.S.C. § 1409 (2005).  How a child can be a citizen if born in London but not in Seattle requires a bit of an explanation: “Without conforming amendments to Section 309 of the INA, this proposal would mean that persons born abroad out of wedlock to a US citizen father and an alien mother would have a process by which they could be deemed US citizens at birth and, paradoxically, persons born in the U.S. of similar parentage would not.  These proposals are all therefore arguably unconstitutional on due process/equal protection grounds as well as Citizenship Clause grounds.”  Lee, supra note 32, at 14 (updated Sep. 13, 2005).

[149] H.R. 3700, 109th Cong. § 301 (2005), http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.3700:.

[150] Plyer v. Doe, 457 U.S. 220, 224 (1982).

[151] See, e.g., H.R. 190, 107th Cong. § 1 (2001); H.R. 319, 106th Cong. § 1 (1999); H.R. 346, 105th Cong. § 1(1997); H.R. 2162, 104th Cong. § 701 (2001); H.R. 4934, 103d Cong. § 701 (1994); H.R. 3862, 103d Cong. § 401 (1994); S. 1351, 103d Cong. § 1001 (1993).  This last proposal, the only one coming out of the Senate, is the brainchild of current Senate Minority Leader Harry Reid of Nevada, a fact noteworthy only because of its author’s general reputation as a liberal on most other domestic issues.  Criticism of birthright citizenship is hardly an accurate predictor of where someone stands on other major national controversies.  Moreover, the stated purpose of S. 1351, the Immigration Stabilization Act of 1993, was to “curb criminal activity by aliens, defend against acts of international terrorism, protect American workers from unfair labor competition, and relieve pressure on public services by strengthening border security and stabilizing immigration into the United States.”  What does a restriction on birthright citizenship have to do with any of these laudable objectives?

[152] Lee, supra note 32, at 13 (updated Sep. 13, 2005).

[153] See supra note 146 for discussion of potential equal protection violation.

[155] 8 U.S.C. § 1401(a) (2005).

[156] H.R. 3938, 109th Cong. § 701 (2005), http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.3938:

[157] Katzenbach v. Morgan, 384 U.S. 641, 654–656 (1966).

[158] See Lee, supra note 32, at 15–16 (updated Sep. 13, 2005) (“One could argue that Congress has no power to define ‘subject to the jurisdiction’ and the terms of citizenship in a manner contrary to the Court’s understanding of the Fourteenth Amendment as expressed in Wong Kim Ark and Elk, particularly since that understanding includes a holding that the Fourteenth Amendment did not confer on Congress a right to restrict the effect of birth on citizenship as declared by the Constitution.”).

[159] Some folks want to have it both ways.  Congressman Elton Gallegly believes that Congress alone can rewrite the definition of citizenship (see supra note 153 and accompanying text) and also that the Fourteenth Amendment must be fundamentally altered.  See H.R.J. Res. 64, 104th Cong. (1995).  Now, that is a prudent legislator who takes no chances.  Interestingly, Congressman Gallegly both in 1995 and, prior to that, in 1991, see H.R.J. Res. 357, 102d Cong. (1991), explicitly called for repeal of the Citizenship Clause, something that many constitutional amendments did not require.

[160] H.R.J. Res. 60, 105th Cong. (1997) (Rep. Sonny Callaghan).  See also H.R.J. Res. 88, 104th Cong. (1995).

[161] H.R.J.Res. 46, 109th Cong. (2005).

[162] Id.  Interestingly, Congressman Paul says that the child would not derive citizenship “solely” by reason of birth.  Why is this adjective there?  If the child does not get citizenship, is there some other weight attached to the fact of birth in the United States?  Will some significance short of citizenship, such as permanent resident status, attach?  Probably not, but the same effect could easily be achieved without the inclusion of “solely” in the formula.  Its presence may either be a drafting or stylistic matter, which is probably the case, or an indication that, while Congressman Paul was unwilling to go as far as citizenship, he had something else in mind.  Interestingly, Congressman Paul does not require the parents to be married.  There is no distinction between children born in and out of wedlock.

[163] H.R.J. Res. 42, 108th Cong. (2003).  See also H.R.J. Res. 4, 105th Cong. (1997).

[164] 8 U.S.C. § 1433 (2005).

[165] H.R.J. Res. 44, 108th Cong. (2003).  Congressman Foley re-introduced this in 2005.  See H.R.J. Res. 41, 109th Cong. (2005).  Earlier, in 2001, 1999, 1997 and even 1995, he had put forward the same proposal.  See H.R.J. Res. 59, 107th Cong. (2001); H.R.J. Res. 10, 106th Cong. (1999); H.R.J. Res. 26, 105th Cong. (1997); H.R.J. Res. 93, 104th Cong. (1995).  In 1995, Congressman Anthony Beilenson of California introduced House Joint Resolution 56 to amend the Constitution precisely along the same lines.  See H.R.J. Res. 56, 104th Cong. (1995).  One wonders why most, though not all, of these proposals were introduced during the first, rather than the second, session of their respective congresses.

[166] 8 U.S.C. § 1445 (2005).

[167] Christine J. Hsieh, American Born Legal Permanent Residents? A Constitutional Amendment Proposal, 12 Geo. Immigr. L.J. 511, 514 (1998).

[168] H.R.J. Res. 87, 104th Cong. (1995).

[169] H.R.J. Res. 117, 103d Cong. (1993).

[170] See supra notes 153–54 and accompanying text.

[171] Engaging the Nation to Fight for Our Right to Control Entry Act (“ENFORCE Act”), S. 2117, 109th Cong. (introduced Dec. 15, 2005, by Sen. James Inhofe-R-OK).  Title V of the ENFORCE Act is the Citizenship Reform Act of 2005.  Sen.Inhofe would amend section 301 of the Immigration and Nationality Act, 8 U.S.C. § 1401, to provide that a child born in the United States would only be subject to the jurisdiction of the United States if he or she was born to parents one of whom was either a “national” of the United States or a lawful permanent resident who “maintains his or her residence in the United States.”  Id. § 503.  Several things are of interest here.  First, clearly Sen. Inhofe believes that birthright citizenship is an inducement to illegal migration.  Second, it is rather odd that he uses the term “national” of the United States rather than “citizen”.  “National of the United States” is a term of art defined at section 101(a)(22) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(22), to mean either a citizen or “a person who, though not a citizen of the United States still owes permanent allegiance to the United States.”  Since there are very few nationals left anymore, now that we have shed the trappings of our imperial past, it would seem that “citizen” would have done the job just as well.  Finally, what if the permanent resident “abandons” such status?  Does their child find themselves on the outside of the charmed circle looking in?  See supra notes 155–56 and accompanying text.

[172] The Columbia World of Quotations No. 21835 (Robert Andrews et al. eds. 1996), http://www.bartleby.com/66/35/21835.html.  This speech is believed to have been delivered on November 22, 1641, but some historians question the exact date.  It was a defense of the Episcopal system of nominating bishops in the Church of England against the Root and Branch petition that sought to abolish such practice.  Lucius Cary Falkland, the Second Viscount, was born in 1610 and died in 1643.


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