The Citizenship Clause Debate

Introduction

Thanks in large part to the ongoing debates in the Republican Presidential primary, the concept of “birthright citizenship,” specifically that any person born on U.S. soil is a U.S. citizen from birth, has become a subject of much public debate. For my part, I think that the way the Fourteenth Amendment to the U.S. Constitution has been interpreted for the past 150 years is correct, and furthermore, I am unequivocally opposed to any attempts to change the way that birthright citizenship functions. That being said, I think that the debates over the issue, both from the perspective of the Constitutional text and in terms of public policy, are fascinating. For these reasons, I would like to explain the debate, go over the history of the concept of birthright citizenship, share my position on the issue, and then explain why regardless of where you stand; the current practice of granting citizenship to any person born on U.S. soil is unlikely to change for the foreseeable future.

Understanding the Debate

There are two prongs to this debate.

The first prong is whether the Constitution itself actually requires that any person born in the United States be granted citizenship from birth. In order to understand where the two sides disagree on this issue, let us examine the Citizenship Clause found in section 1 of the Fourteenth Amendment to the United States Constitution:

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.

Opponents to the idea that the Citizenship Clause guarantees citizenship to all persons born in the United States focus on the phrase “subject to the jurisdiction thereof.” I will later explain why this clause does not, in fact, restrict citizenship for practical purposes for anyone born in the United States except those born to diplomats and other representatives of foreign governments.

The second prong is the matter of public policy. One's view of the true meaning of the Citizenship Clause does not necessarily control whether or not he or she thinks that granting citizenship at birth is a good policy or not. For example, a person could conceivably agree with me that the Citizenship Clause is being interpreted correctly, but then argue that it is not the best policy. Many opponents will cite, for example, that the United States is actually unusual in the practice of granting birthright citizenship to any person born in the United States, being one of only 30 countries in the world to do so as of the writing of this post [link] (of note, no country in Europe currently has the same policy as the United States with regard to birthright citizenship).

For those of us who think that the Citizenship Clause is being interpreted correctly, and that as a matter of policy, the current practice is the best policy, we would obviously prefer that, regardless of how interesting the debate is, that the current practices for birthright citizenship be left alone. But what of those who want to, at least to some degree, restrict the bestowal of citizenship upon birth? The opponents of the current practice generally seek change in one of the two following ways:

1. Some support amending the Constitution to change the current birthright citizenship practices. They may support this path because they think that the Citizenship Clause is being correctly interpreted, in which case the only way to change the law would be by amending the Constitution. Some may believe that the Citizenship Clause is not being interpreted correctly, but nevertheless think that amending the Constitution is necessary due to the challenges of convincing Courts to interpret the Citizenship Clause differently.
2. Those who believe the Citizenship Clause is not being interpreted correctly often advocate changing birthright citizenship via legislation. They may, for example, put restrictions on what type of parentage (for example, restricting birthright citizenship to children of parents with lawful permanent residency or U.S. citizenship) may confer citizenship to a child. Proponents of the legislative solution invite the litigation that would follow such a bill coming into law, and hope that federal courts will ultimately accept their view of the “subject to the jurisdiction thereof” language in the Citizenship Clause.

Now that we have examined the what the debate is about, let us explore the history of birthright citizenship and the important cases that address the concept.

Understanding the History and Case Law

Birthright citizenship, or jus soli [right of the soil], is a concept that came to the United States via British common law.^{1 2} We can see this at play in the 1830 Supreme Court decision, Inglis v. Trustees of Sailor's Snug Harbour in City of New York,³ in which the Court stated, “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.”⁴

In order to understand the Fourteenth Amendment, in light of that it seemed generally agreed upon that persons born in the United States were citizens, it is important to be familiar with the now infamous decision rendered by the Supreme Court in Dred Scott v. Sandford.⁵ By an eight to two majority, the Supreme Court held in Dred Scott that slaves and their descendants were, pursuant to the understanding of Citizenship at the framing of the Constitution, barred from U.S. Citizenship. In doing so, the majority held, among other things, that:

“The words 'people of the United States' and 'citizens' are not synonymous terms… They both describe the political body, who, according to our republican institutions, form the sovereignty, and who hold the power and conduct of the Government through their representatives.”
[In explaining why slaves and their descendants were not considered members of the political body] “They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect…”
But if [a U.S. citizen] ranks as a citizen in the state to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another state, the Constitution clothes him, as to the rights of person, with all the privileges and immunities to which belong to citizens of the state And if persons of the African race are citizens of a State, and of the United States, they would be entitles to all of these privileges and immunities in every state…”

The majority in Dred Scott made a distinction between “people in the United States” and citizens of the United States. It ultimately held that since, in the opinion of the Court, slaves and their descendants were not considered to be part of the political body when the Constitution was framed [that is, they lacked the universal power to hold office, vote, and generally lacked rights “which the white man was bound to respect”], that they could never be citizens, whether from birth or after manumission. The Court also discussed the Privileges and Immunities Clause found in Article IV, Section 2, Clause 1, of the U.S. Constitution, in arguing that the special privilege of U.S. citizenship was that a U.S. citizen would be treated, with the rights of a person and with all of the privileges and immunities of whichever state he was in and of all states.

After Dred Scott was superseded by the Fourteenth Amendment, the Supreme Court rendered a few decisions that are illumination as to how the Citizenship Clause should be interpreted.

Decided in 1872, the Slaughter-House Cases,⁶ stated with regard to the phrase “subject to its jurisdiction” in the Citizenship Clause that it “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Decided in 1884, the Supreme Court held in Elk v. Wilkins⁷ that a man born to an Indian tribe was not a U.S. citizen, even after renouncing tribal membership, because Indian tribes were not “subject to the jurisdiction” of the United States government. Although this decision was superseded by the Indian Citizenship Act of 1924, which explicitly granted citizenship to persons born in Indian territory, it provides the most clear example of the Supreme Court holding that a person born in the United States was not a U.S. citizen from birth on account of not being subject to the jurisdiction of the U.S. government.

The most important case for understanding the Citizenship Clause was United States v. Wong Kim Ark,⁸ decided in by the Supreme Court in 1898. In this case, the Court held that a child born in California to Chinese parents, who were citizens of China who were “domiciled” in the United States and were not officials of the Government in China, was a citizen by birth by virtue of the Citizenship Clause despite statutory limits on Chinese immigration. While Wong Kim Ark decision has prevailed since it was decided, the dissent in the case, while never having had the force of law, argued that “subject to the jurisdiction thereof” excluded persons who were citizens of a foreign power, in this case China, regardless of whether they were domiciled in the United States. The dissenters cited the Congressional debate surrounding the meaning of the Citizenship Clause in 1866, and its views are today accepted by some of those who argue that the Citizenship Clause has not been correctly interpreted.

The Debate

What, ultimately, does “subject to the jurisdiction thereof” mean? In the National Review, legal scholar John C. Eastman argues [link] that the phrase “domiciled” in Wong Kim Ark was crucial, and thus that restricting citizenship from birth from those born to persons who are not in the United States lawfully would neither require amending the Constitution nor reversing Wong Kim Ark. Furthermore, Eastman makes a distinction between “complete, political jurisdiction,” and “partial, territorial jurisdiction.” In illustrating the difference, Eastman explains that “partial, territorial jurisdiction” means that a person, so long as he or she is within our borders, he is subject to many of the criminal laws of the United States. However, in order to be subject to “complete, political jurisdiction,” one would need to have the right to vote, serve on a jury, be able to be drafted into our armed forces, and be able to be prosecuted for treason.

On the surface, agree or not, one can see the appeal of the argument. Certainly, the law makes distinctions between those who are here legally and those who are here illegally in many areas. Furthermore, there is no question that the lure of citizenship from birth incentivizes foreign nationals to either come into the United States illegally, or to remain in the United States without documentation. However, legal scholar Ilya Somin argues the key point in the Washington Post [PDF version] for why Eastman's argument, for whatever its merits, is ultimately incorrect in its interpretation of the original meaning of the Citizenship Clause: it does not clearly overturn the majority's logic in Dred Scott.

Note that the qualifications that Eastman uses for “complete, political jurisdiction,” are similar to the arguments employed by the Supreme Court in Dred Scott to deny citizenship to slaves and their descendants who were born in the United States. Slaves and their descendants could not vote, serve on juries, or serve in militias, for example. Recall the Court's emphasis that citizenship was restricted to those who constituted the “political body” of the United States, which entails many of the points that Eastman makes in his definition of “complete, political jurisdiction.” When we put the Fourteenth Amendment in its proper context, that it was explicitly enacted to provide Citizenship to those who were denied citizenship by the Dred Scott decision, it seems nonsensical to interpret the Citizenship Clause in such a way that may have left ambiguity as to whether former slaves and their descendants would be considered to not be citizens of the United States on account of status at birth. Rather, using Eastman's own definitions, I am quite comfortable with continuing to afford citizenship from birth to the children of those persons under, “partial, territorial jurisdiction.”

Seeing that the Citizenship Clause has been correctly interpreted, that leaves amending the Constitution as the only way to restrict birthright citizenship. As I mentioned above, even ardent supporters of the current practice of jus soli, me included, fully recognize that it does create perverse incentives for people to both enter the United States and remain in the United States unlawfully. However, the solution to this problem is not, so to speak, to throw the baby out with the bath water. The Citizenship Clause in the United States Constitution is one of the crowning achievements of our Republic, the affirmation after the evils of slavery that all persons born in the United States, and subject to the laws of the United States, would acquire citizenship from birth. While acknowledging that it does encourage certain undesirable behavior, one would certainly be loath to argue that because certain people use reprehensible speech, that the First Amendment ought to be curtailed. Furthermore, not granting citizenship to children of those who are not in the United States lawfully would potentially create a subclass of people in the United States with no nationality. As is the case with many challenges relating to unlawful immigration, there is not necessarily an easy solution to the incentives to break our immigration laws created by the Citizenship Clause. However, rather than seek to overturn an understanding of citizenship that has existed in America since its founding, we should instead focus on immigration reform and more efficient enforcement of our already-existing immigration laws.

What are the Chances for Change?

If you have found my arguments persuasive, you should be very glad to know that it is nearly impossible to see any scenario in which the current practice of granting citizenship upon birth to persons born in the United States will change in the foreseeable future. For reasons that I will explain, you may expect that today, tomorrow, and indefinitely, any person born in the United States, except to foreign diplomats, will be a citizen from birth.

The Constitutional Amendment approach is, quite frankly, not going to happen. Article V of the U.S. Constitution requires that, in order to amend the Constitution, two-thirds of both Houses of Congress must agree to submit an Amendment to the states, and then the legislatures of three-fourths, now 38 states, must approve of the Amendment. Barring a seismic change in public opinion and U.S. politics, there is no realistic scenario under which an Amendment will even be put to the states, much less be approved by 38 states.

That leaves us with the scenario in which a bill changing birthright citizenship is signed into law, and then subsequently adjudicated by federal courts. Compared to passing a Constitutional Amendment, this approach is far more plausible, but nevertheless, still very unlikely in my estimation. For one, while Republicans currently have sizable majorities in both Houses of Congress, and may plausibly control both Houses of Congress and the Presidency after the 2016 election, it is hard to envision a bill changing birthright citizenship being signed into law under the best of circumstances for its supporters.

While some elected Democrats have been open to the idea in the past,⁹ the current crop of Congressional Democrats appears to be unanimously opposed to any such legislation. Furthermore, the Republicans, while currently in the majority, are two houses divided into four on this issue. In addition to being unable to count on any Democratic support, supporters cannot count on drawing enough Republican votes to pass a bill on the birthright citizenship issue. What is more, even if everything went perfectly for supporters of the measure, and such a bill was signed into law, I do not think, for reasons I explained in the previous section, that it would be at all likely that Courts would ultimately find the legislation to be consistent with Citizenship Clause of the Fourteenth Amendment.

It seems quite clear to me that any impartial view of the political landscape leads to the inescapable conclusion that there is no path to changing birthright citizenship in the near future. While it has been and will continue to be an interesting debate, it is likely that even if our next President disagrees with the current birthright citizenship practices, he or she will likely focus instead on immigration enforcement and reform to manage problems with our immigration system, acceding to the reality that any change to birthright citizenship is not in the cards.

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1. Calvin's Case 7 Coke Report 1a, 77 Eng. Rep. 377. [decided in 1608: “yet it was resolved, that all those who were born under one natural obedience while the realms were united under one sovereign should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such a matter ex post facto.”] available at http://www.constitution.org/coke/Calvins_Case-7_Coke_Report_1a_77_ER_377.html [link]
2. Legal scholar John Yoo adopts this as an important point as to why jus soli correctly applies to all persons born on U.S. soil, except for diplomats in his article for the National Review [link].
3. Inglis v. Trustees of Sailor's Snug Harbour in City of New York, 28 U.S. 99, 7 L. Ed. 617 (1830) [PDF version].
4. In so holding that persons born in New York during the British occupation during the Revolutionary War were not citizens from birth, but that people born in New York between the Declaration of Independence and the British occupation were citizens from birth.
5. Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691, 15 L. Ed. 2d 691 (1857) [PDF version].
6. Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394, 1872 U.S. L.E.X.I.S. 1139 (1873) [PDF version]
7. Elk v. Wilkins, 112 U.S. 94, 5 S. Ct. 41, 28 L. Ed. 643 (1884) [PDF version].
8. United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890 (1898) [PDF version].
9. For example, see this article citing that the current leader of the Senate Democratic Caucus, Harry Reid of Nevada, in 1993 supported restricting birthright citizenship to the children of mothers who are U.S. citizens or lawful permanent residents, although he now holds the opposite position: http://www.washingtontimes.com/blog/watercooler/2010/aug/12/1993-flip-flop-senreid-introduced-bill-clarifying-/ [link]