There are lots of historical precedents for large numbers of multigenerational non-citizens in a country. None of them are attractive examples to follow. There were the Jews in ancient Egypt, the Huns and the Vandals in the Roman Empire, Irish Catholics under penal laws of English occupation from the seventeenth to twentieth centuries, and more recently black tribes in apartheid South Africa. Sure, most of those empires continued on the maps for centuries afterwards, but they all endured massive civil discord and violent revolts as a result of the arrangement.
And yet, among the Republican right, there’s a crusade against birthright citizenship enshrined in the Constitution’s Fourteenth Amendment, especially now as the Supreme Court deliberates on the constitutionality of President Donald Trump’s unilateral and putative suspension of the birthright citizenship provision via executive order. Jettisoning birthright citizenship would create the same kind of large permanent underclass that caused the violent chaos in the aforementioned empires above.
Aside from practical considerations, birthright citizenship is also the most principled route. There’s no textual, originalist, or historical case to be made for denying birthright citizenship.
Some people have even come out recently and claimed that birthright citizenship—which was federal statutory practice beginning in 1804—was not intended by the authors and ratifiers of the Fourteenth Amendment. It’s a strange claim.
While the Naturalization Act of 1790 limited birthright citizenship to children of whites, even that distinction also faded from the statutes over the decades of the nineteenth century. Congress explicitly admitted to citizenship several native American tribes in the early nineteenth century, and by common law practice children of freed slaves were admitted to citizenship in northern states before the Civil War, as were the offspring of Filipino immigrants to Louisiana in the early 1800s and Chinese born on the Pacific coast after 1849.
None of those people saying the authors of the Fourteenth Amendment opposed birthright citizenship for immigrants’ children could ever point to any U.S.-born child of non-naturalized German immigrants who was not considered a U.S. citizen at any time in American history. Not even one, as acknowledged in the Fourteenth Amendment debate.
The landmark Supreme Court case U.S. v. Kim Wong Ark (1898) that fortified birthright citizenship in the Fourteenth Amendment noted that it only ratified what had already been the long practice in the United States and under Anglo-American common law for centuries:
“So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes…have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents.”
Birthright citizenship is conferred by the plain text of the first sentence of the Fourteenth Amendment:
“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.”
“Hold on there,” the skeptic tells us, ‘the key phrase is ‘and subject to the jurisdiction thereof.’ And illegal immigrants are not subject to the jurisdiction of the United States, but to their home countries.”
The argument that immigrants are subject to the jurisdiction of their home countries is easily debunked; citizenship typically has little to do with jurisdiction. While foreign ambassadors and their children are not subject to the jurisdiction of the United States—they are exempt from taxes and cannot be prosecuted for crimes they commit on U.S. soil—this is obviously not the case with any other class of immigrants. (Interestingly, it was the case with Indian tribes at the time, who were not U.S. citizens and who were exempt from taxes and had their own criminal law system. This explains why most native tribes were not granted U.S. citizenship until Congress granted it by statute in 1924.)
Or look at it in reverse. Take for example an American couple that moves to Germany. Are they subject to the jurisdiction of Germany or the United States? Do they pay German taxes or U.S. taxes? The answer is they pay German taxes, unless there is some special treaty provision declaring otherwise for a limited time. Likewise, it’s impossible for them to break U.S. criminal laws abroad (or be prosecuted for them), but they are very much subject to German criminal law. While birthright citizenship applies to the children born of that American couple living abroad, this is a statutory exception, a special carve-out, and it doesn’t place the children under the jurisdiction of U.S. law while they are living abroad any more than their parents. The same principle applies to immigrants from Mexico in the United States; they are under U.S. jurisdiction and not the jurisdiction of their home country. Nobody’s claiming they pay income taxes to the Mexican government or are only liable to Mexican criminal law. Can you imagine the absurdity of a policeman in Montana writing a speeding ticket to a Mexican immigrant for going 77 in an 80 mile per hour speed zone because the Mexican maximum speed limit is 68 (110k/h)?
“But wait a second there,” some would counter, “you’ve confused legal immigrants with illegal immigrants.”
But I haven’t. One proof that there was no intent on the part of the Fourteenth Amendment authors to exclude children of “illegal” aliens from birthright citizenship is that there was no such thing as an illegal alien under federal statutes at the time. In 1867, the idea that there could be an “illegal alien” under federal law was inconceivable. There were no federal immigration laws, and there had never been any federal immigration laws. Immigration, by statute, by practice, and by the enumerated powers of the U.S. Constitution was the sole province of the states.
Most people would agree the states did a much better job in the nineteenth century than the federal government has been doing in the twentieth and twenty-first centuries. There’s no serious political narrative today claiming, “America really started to go wrong when it admitted lots of Irish and Italian immigrants in the nineteenth century.” It’s weird how the same people who completely justify American immigration policy as practiced by the states in the nineteenth century now say the federal government must slog on and continue to manage immigration, even though everyone on both the right and the left acknowledges the feds have managed it disastrously.
The closest the federal government ever came to enacting a federal immigration law before the Fourteenth Amendment was adopted were the Alien and Sedition Acts of 1798, which merely allowed the federal government to deport suspected terrorists. And James Madison and Thomas Jefferson were so outraged at the Alien Acts that they penned the Virginia and Kentucky Resolutions declaring, in Madison’s words, that the Alien Enemies Act “exercises a power no where delegated to the federal government; and which by uniting legislative and judicial powers to those of executive, subverts the general principles of a free government, as well as the particular organization, and positive provisions of the federal constitution.” Jefferson wrote likewise in the Kentucky Resolutions. It’s out of those documents we get the first talk of nullification and interposition, and the first sanctuary states.
You might think that Madison and Jefferson were overreacting. After all, the law just allowed the deportation of dangerous immigrants, and these two Founding Fathers would almost certainly have supported states deporting these people anyway if they were indeed guilty of plotting terrorist acts. But Madison had a habit of fighting usurpations of the Constitution, arguing, “The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.”
The irony of the current debate is that the person who pointed me most strongly to Jefferson and Madison’s nullification and interposition writings, Dr. Tom Woods, has taken the opposite side of this issue of birthright citizenship. His book Nullification is an invaluable resource on the history of nullification and interposition, and I used it in the classroom (and loaned it out to students writing research papers on the topic) when I was teaching. In fact, it’s partly Tom Woods who (perhaps unintentionally) got me to favor sanctuary cities as the original nullification and interposition—and I had started out as a border hawk!
Because I like Tom Woods’ work a lot, I’m going to pick on him a bit here. Woods recently tweeted against the Supreme Court retaining birthright citizenship, using debate over the Fourteenth Amendment as the centerpiece of his argument. For example, he notes of Michigan Republican Senator Jacob Howard:
“Senator Jacob Howard drafted the citizenship clause of the Fourteenth Amendment. Here is what he said it meant: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” (Emphasis added.)
Well, if we value honesty, that right there should settle it.”
Woods puts a lot of heavy lifting into those commas added by the Congressional Globe transcriptionists to the senator‘s spoken word, in addition to the italics emphasis he added. Keep in mind that this isn’t a prepared speech, but an off-the-cuff verbal introduction to what kind of people wouldn’t qualify as being under U.S. jurisdiction. The implication in Woods’ tweet is that Howard’s remarks were a list of two separate categories that first exempted all children of non-naturalized immigrants generally and next, separately, exempted children of ambassadors from birthright citizenship.
With the knowledge it’s the spoken word, it’s far easier to see the exemptions from birthright citizenship in the speech being “This will not, of course, include those persons born in the United States to foreigners/aliens who belong to the families of ambassadors or foreign ministers” rather than “This will not, of course, include either any children born in the United States to non-citizen foreigners as well as aliens who belong to the families of ambassadors or foreign ministers.”
In the former, he’s simply using two terms to describe the same tiny demographic (which, again, also includes some Indian tribes). In the latter, he describes all children of foreigners and then inexplicably doubles down on the children of ambassadors who would necessarily fall into the original category anyway. Only the former makes any sense verbally. The latter is as redundant as saying, “I love every one of the Los Angeles Dodgers, and I also love Shohei Ohtani.”
The important distinction lost on many is that nobody in the 1860s would have thought a child born in the United States to immigrant parents owed any allegiance to a foreign government, as already explained above. Immediately preceding the remarks quoted, Howard noted, “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.” The reference to natural law is the key. Natural law presumes citizenship in the country of one’s birth. Also key is the reference to existing national law, as the children of non-citizen immigrants had been granted citizenship in federal law since at least 1804.
Birthright citizenship is one issue where following the plain textual and originalist principle is also by far the most pragmatic position.
