Birthright Citizenship and the Fourteenth Amendment


April 19, 2011 Bookmark and Share
Does the Fourteenth Amendment grant citizenship to all those born on American soil? Two legal experts debate the issue.
Edward J. Erler Garrett Epps
Claremont Institute University of Baltimore
Edward J. Erler is professor of political science at California State University, San Bernardino, and a senior fellow of the Claremont Institute. He is the co-author of The Founders on Citizenship and Immigration. Garrett Epps is professor of law at the University of Baltimore and author of Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006), a finalist for the American Bar Association’s Silver Gavel Award.
Part 1: Edward J. Erler:Citizenship and the Fourteenth Amendment
Part 2: Garrett Epps: Birthright Citizenship: Believe Your Own Eyes
Part 3: Edward J. Erler: Subject to the Jurisdiction: The True Meaning of the Fourteenth Amendment
Part 4: Garrett Epps: Birthright Citizenship: Misquotes, Mistakes, and Misleading Evidence Riddle Erler’s Case
Discuss

Part 1

Citizenship and the Fourteenth Amendment

Edward J. Erler

A serious debate about the meaning of the Fourteenth Amendment’s citizenship clause (“All persons born or naturalized in the United States, and subject to its jurisdiction thereof, are citizens of the United States and of the State wherein they reside”) has arisen in recent years, provoked by issues surrounding the question of illegal immigration. It has been assumed as a matter of course that the citizenship clause means that all persons born within the geographical limits of the U.S. are automatically citizens of the U.S. But there are several flaws in this assumption that are easily demonstrated.

A Superfluous Clause?

The Fourteenth Amendment specifies two requirements to become a natural born citizen—an individual must be born in the territory of the U.S. and be “subject to the jurisdiction” of the U.S. If it is argued that everyone born in the U.S. is automatically subject to the jurisdiction of the U.S., then the jurisdiction clause is rendered superfluous. But, of course, no interpretation of a written Constitution can render any of its provisions without force or effect—this would be tantamount to an amendment of the Constitution by mere interpretation.

If the framers of the Fourteenth Amendment had intended that everyone born within the geographical limits of the U.S. is automatically subject to its jurisdiction, they would simply have omitted the jurisdiction requirement—precisely what liberal constitutionalists have done in their insistence on automatic birthright citizenship.

The Framers of the Fourteenth Amendment

Senator Jacob Howard of Ohio was the author of the citizenship clause. During Senate debate, he defended his handiwork against the charge that it would make Native Americans citizens of the U.S. “Indians born within the limits of the United States, and who maintain their tribal relations,” he assured the Senate, “are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.” Indians, he averred, were not “subject to the jurisdiction” of the U.S. because they owed allegiance—even if only partial allegiance—to their tribes.

Thus for the framers of the Fourteenth Amendment, birth within the geographical limits of the U.S. did not automatically make one subject to the jurisdiction of the U.S. And “jurisdiction” did not mean, as liberal constitutionalists argue, simply subject to the laws of the U.S. or subject to the jurisdiction of its courts. Rather, “jurisdiction” meant exclusive “allegiance” to the U.S. Not all who are subject to the laws owe allegiance to the U.S. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”

This view of the citizenship clause was confirmed by a Senate Judiciary Report issued in 1870. Indians, of course, were born within the geographical limits of the U.S. but were not subject to its jurisdiction because they did not have exclusive allegiance to the U.S. It is impossible to believe—despite the protestations of liberal scholars today—that the framers of the Fourteenth Amendment intended to confer the boon of citizenship on the children of illegal aliens when they explicitly denied that boon to Native persons.

Common Law and Citizenship

In 1898, the Supreme Court in U.S. v. Wong Kim Ark proclaimed that the Fourteenth Amendment adopted the common law definition of citizenship and therefore must be interpreted in terms of common law principles. The problem with this assertion is manifest: The idea of citizenship is completely unknown to the common law!

The common law recognizes “subjectship” but not citizenship. William Blackstone’s Commentaries on the Common Law of England, the authoritative source for the common law, details the common law of “subjectship.” At the core of “subjectship,” Blackstone argued, is the idea of “perpetual allegiance” or “natural allegiance.” “Natural allegiance,” Blackstone explained, is “due from all men born within the king’s dominions immediately upon their birth. … [I]t is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance.” Blackstone admitted that the common law doctrine of birthright subjectship, originally propounded by Lord Edward Coke in Calvin’s Case (1608), was an inheritance from the “feudal system,” deriving from the “mutual trust or confidence subsisting between the lord and vassal.” And, Blackstone continues, “by an easy analogy the term allegiance was soon brought to signify all other engagements, which are due from subjects to their prince.”

The idea of citizenship, of course, was impossible in the feudal regime. Neither Coke nor Blackstone ever refers to birthright citizenship, and both describe the allegiance due to a king as involuntary and perpetual. This is the relation of master and subject in which subjects can never gain the elevated status of citizens who not only freely accept obligations but also have the obligation to assert rights.

James Wilson almost certainly had Blackstone in mind when in 1793 he noted that “under the Constitution of the United States there are citizens, but no subjects.” Wilson, a member of the Constitutional Convention and later a justice of the Supreme Court, thus rendered his judgment that American citizenship did not derive from the common law.

Clearly the Declaration of Independence was a massive repudiation of the “feudal” doctrine of perpetual allegiance, which was at the heart of “birthright subjectship.” The Declaration boldly announces that “these United Colonies are … Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.”

It is utterly impossible to maintain that the Founders of the American regime were adopting the principle of birthright allegiance at the same time that they were dissolving their perpetual allegiance to the King of England. The principles of the Declaration transforms subjects into citizens by making the consent of the governed—not the accident of birth—the ground of citizenship. Chief Justice Fuller, in his dissenting opinion in Wong Kim Ark, rightly noted that “from the Declaration of Independence to this day the United States have rejected the doctrine of indissoluble allegiance.”

Even before the Declaration, Thomas Jefferson in the Summary View of the Rights of British America (1774) spoke of the natural right of expatriation as “a right, which nature has given to all men, of departing from the country in which chance and not choice has placed them.” Choice, of course, implies reason, and the exercise of the right of expatriation depends on reasoned choice—i.e., consent. Chance, however, is the ground of perpetual allegiance. If expatriation is in fact a natural right, then perpetual allegiance—birthright allegiance—is contrary to natural right. A regime based on natural right, one that posits consent as its moving principle, cannot ground its citizenship on the common law with its notion of “perpetual allegiance.”

It is difficult to avoid the conclusion that birthright allegiance and birthright subjectship were rejected by the Declaration no less than by the framers of the Fourteenth Amendment. To say nothing of other considerations no less important, “subjectship” and “citizenship” are not convertible terms.

The Expatriation Act of 1868

This conclusion is amply supported by the debate that surrounded the passage of the Expatriation Act of 1868—indeed, this act should be properly considered as a necessary companion piece to the citizenship clause of the Fourteenth Amendment. The act provided, in relevant part, that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.”

Senator Howard, the architect of the Fourteenth Amendment’s citizenship clause, was a prominent figure in support of the legislation. He noted that the principles of the Declaration of Independence—prominent in the language of the act itself—meant that “the right of expatriation … is inherent and natural in man as man.” The notion of birthright citizenship was frequently described in the debate as an “indefensible feudal doctrine of indefeasible allegiance.” One member of the House of Representatives expressed the general sense of the Congress when he concluded that “it is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.”

Representative Frederick Woodbridge of Vermont, one of the principal proponents of the legislation, argued that the doctrine of perpetual allegiance “is based upon the feudal systems under which there were no free citizens … and the individual man [had] no personal rights; and it was from this source and system that Blackstone derived his idea of indefeasible and perpetual allegiance to the English Crown.” But, Woodbridge continued, “the old feudal doctrine stated by Blackstone and adopted as part of the common law of England, that once a citizen by the accident of birth expatriation under any circumstances less than the consent of the sovereign is an impossibility. The doctrine … is not only at war with our institutions, but is equally at war with every principle of justice and of sound public law.”

This unequivocal repudiation of Blackstone makes it impossible to maintain that the common law was the basis of American citizenship. If it is true, as Jefferson maintained, that expatriation is a natural right, then perpetual allegiance and birthright citizenship are utterly alien to the principles of the Declaration, which grounds citizenship on the consent of those who are to be governed.

The Wong Kim Ark Case

Wong Kim Ark involved the question of whether someone born in the U.S. of legal immigrants was a natural born citizen in terms of the Fourteenth Amendment. Wong Kim Ark’s parents were, by treaty and statute, ineligible for American citizenship, and they retained their allegiance to the emperor of China. It is clear that the framers of the Fourteenth Amendment would not have considered their children born in the U.S. as subject to the jurisdiction of the U.S. Since the parents owed no allegiance to the U.S., their children would follow the allegiance of the parents who, while subject to the laws of the U.S., were not subject to its jurisdiction as understood by the architects of the citizenship provisions of the Fourteenth Amendment.

Ever since Wong Kim Ark’s mistaken holding that the Fourteenth Amendment adopted the common law of birthright “citizenship,” it has been assumed that all persons born within the geographical limits of the U.S. are automatically citizens of the U.S., regardless of whether the parents are within the jurisdiction of the U.S. or have legal residence in the U.S. Although some of the language of the majority opinion in Wong Kim Ark seems capacious enough to include the children of illegal aliens, there has been no Supreme Court decision explicitly holding that the children of illegal aliens are automatically accorded birthright citizenship.

The Section 5 Solution

After the passage of the Fourteenth Amendment (which all sides agreed did not extend citizenship to Native persons), Congress began to pass legislation inviting members of various Indian tribes to become citizens of the U.S. Any tribal member who consented to become a citizen would thus become “subject to the jurisdiction” of the U.S. by legislative enactment. Under section 5 of the Fourteenth Amendment, Congress has the power to implement the provisions of the amendment. In the offer of citizenship to Native persons, Congress extended “jurisdiction” to those who had been admittedly excluded at the time of the adoption of the Fourteenth Amendment.

Presumably, Congress could exercise the same legislative power to exclude as well as include. It would not require a constitutional amendment, as some claim, to exclude from “jurisdiction” the children of illegal alien parents who are born within the geographical limits of the U.S. Congress can simply exercise its section 5 powers—as it has done many times—to define by legislation those who are properly within the jurisdiction of the U.S.

Citizenship and the “Consent of the Governed”

James Madison frequently remarked that “all just and free government is derived from social compact.” This means that citizenship is grounded in the “consent of the governed.” There is no doubt that this vision of citizenship animated the framers of the Fourteenth Amendment.

NEXT: Garrett Epps responds to Edward Erler.

Birthright Citizenship and the Fourteenth Amendment (A Four-Part Series)
Part 1: Erler: Citizenship and the Fourteenth Amendment
Part 2: Epps: Birthright Citizenship: Believe Your Own Eyes
Part 3: Erler: Subject to the Jurisdiction: The True Meaning of the Fourteenth Amendment
Part 4: Epps: Birthright Citizenship: Misquotes, Mistakes, and Misleading Evidence Riddle Erler’s Case