307
11 Bender’s Immigration Bulletin
April 1, 2006
E Pluribus Unum: Well Maybe Not Everybody—
Towards a Re-Examination of Birthright Citizenship*
By Gary Endelman
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 citizenship1; this would
not come until the Fourteenth Amendment 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
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
11 Bender’s Immigration Bulletin
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
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
308
April 1, 2006
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. While this is still the case, more recent
interpretations of the Fourteenth Amendment have
caused some to question the legitimacy of birthright
citizenship as a 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
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.
comfunctions/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
11 Bender’s Immigration Bulletin
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
view, the applicant for admission must want to offer
complete allegiance to the United States and be
wholly capable of doing so and, 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.. 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
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.
309
April 1, 2006
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 consentintelligent 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, consent and common law become partners in
the service of a larger and more common purpose, an
American citizenship that has meaning for
individuals 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
10
U.S. CONST. amend. XIV, § 1.
11
Scott v. Sanford, 50 U.S. (19 How.) 393 (1857).
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
11 Bender’s Immigration Bulletin
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 waves 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
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) [hereinafter Neuman,
Back to Dred Scott?] (reviewing Schuck & Smith, supra
note 12).
310
April 1, 2006
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
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).
11 Bender’s Immigration Bulletin
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 soli, with the exception of
children of foreign diplomats and children of a
hostile occupying army.17 The earliest and most
influential articulation of jus soli 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
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 postFrench 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.
311
April 1, 2006
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
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
11 Bender’s Immigration Bulletin
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
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).
312
April 1, 2006
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
more closely identified with jus sanguinis.24 In
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
11 Bender’s Immigration Bulletin
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
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).
313
April 1, 2006
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 Wong Kim 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 t here under the protection of the
government, and owing a temporary allegiance
thereto, are subjects by birth.”30 Equating English
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
11 Bender’s Immigration Bulletin
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.
314
April 1, 2006
“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. Clarke32 “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
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). ViceChancellor 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
11 Bender’s Immigration Bulletin
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
315
April 1, 2006
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
40
.Neuman, Lost Century, supra note 38, at 1843.
41
Id. at 1844.
42
Id. at 1845.
43
Id. at 1846.
44
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).
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.
11 Bender’s Immigration Bulletin
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 these laws
316
April 1, 2006
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 an Illinois
criminal conviction for harboring a runaway slave
under the rationale that the state 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
54
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.
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)..
11 Bender’s Immigration Bulletin
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 migration60 that the Supreme Court
invalidated state immigration controls as an undue
constraint on interstate commerce.61
317
April 1, 2006
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
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
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.
11 Bender’s Immigration Bulletin
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
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
70
Id. at 79.
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
318
April 1, 2006
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
freedmen could 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
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
11 Bender’s Immigration Bulletin
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
319
April 1, 2006
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 as its highest and most complete
expression.81 It was almost as if the common law rule
78
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.
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,
11 Bender’s Immigration Bulletin
was too modest, too reticent, too constricting a
definition for such an exalted status in such a
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?
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April 1, 2006
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 remains 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 election83. To some, the rejection of
perpetual allegiance also necessarily meant a
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.
11 Bender’s Immigration Bulletin
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 citizenship85 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
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
Bernadino).
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,
321
April 1, 2006
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
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:
11 Bender’s Immigration Bulletin
Senator Howard, who, as the author, should have
known 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
322
April 1, 2006
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
90
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.
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).
11 Bender’s Immigration Bulletin
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
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
323
April 1, 2006
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
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
11 Bender’s Immigration Bulletin
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
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 U.S. soil and thereby subject
to U.S. 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.
324
April 1, 2006
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
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,
11 Bender’s Immigration Bulletin
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
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.
325
April 1, 2006
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
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.
11 Bender’s Immigration Bulletin
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
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
105
Elk v. Wilkins, 112 U.S. 94 (1884).
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:
326
April 1, 2006
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
11 Bender’s Immigration Bulletin
(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 Congress107, 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
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.)
327
April 1, 2006
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 allencompassing 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
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:
11 Bender’s Immigration Bulletin
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
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.
328
April 1, 2006
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.
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.fedsoc.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
11 Bender’s Immigration Bulletin
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
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
329
April 1, 2006
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
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.
11 Bender’s Immigration Bulletin
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
122
Id.
123
United States v. Wong Kim Ark, 160 U.S. 649
330
April 1, 2006
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
(1898).
124
Id. at 701–702. See also Chinese Exclusion Acts,
22 Stat. 58 (1882). Another case involving the Americanborn 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.
11 Bender’s Immigration Bulletin
(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
130
331
April 1, 2006
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
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
135
Wong Kim Ark, 160 U.S. at 688.
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 SlaughterHouse Cases: “It recognizes in express terms, if it does not
create, citizens of the United States, and it makes their
11 Bender’s Immigration Bulletin
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
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 U.S. 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
332
April 1, 2006
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 U.S. immigration law.
Numerous proposals have been introduced in
Congress over the past decade to curb this perceived
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).
11 Bender’s Immigration Bulletin
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
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=2
0051103-115741-1048r.
144
2005).
Lee, supra note 32, at 13 (updated Sep. 13,
333
April 1, 2006
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 nonresident 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
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).
11 Bender’s Immigration Bulletin
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, things get dicier. If the mother has the
green card or the U.S. passport, then all is well; but,
if the child is unfortunate enough to be sired by a
U.S. 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 Act148.
Less troublesome from a constitutional perspective is
the gender-neutral approach typified by Congressman
Tom Tancredo’s (R-Colo.) Reducing Immigration to
146
Citizenship Reform Act of 2005, H.R. 698,
109th Cong. § 3 (introduced by Rep. Nathan Deal of
Georgia),
http://thomas.loc.gov/cgibin/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/cgibin/query/z?c108:H.R.1567:.
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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
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 U.S. citizen father
and an alien mother would have a process by which they
could be deemed U.S. 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
151
Plyer v. Doe, 457 U.S. 220, 224 (1982).
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
11 Bender’s Immigration Bulletin
employ the same formula. They define “subject to the
jurisdiction” as not including a child whose mother is
neither a U.S. 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 U.S. 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
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.
335
April 1, 2006
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 Act155 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 intracompany 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
154
H.R.
705,
104th
Cong.
(1995),
http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.705:.
155
8 U.S.C. § 1401(a) (2005).
11 Bender’s Immigration Bulletin
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
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
336
April 1, 2006
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 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.
11 Bender’s Immigration Bulletin
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 else160. 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
337
April 1, 2006
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
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
167
8 U.S.C. § 1445 (2005).
Christine J. Hsieh, American Born Legal
Permanent Residents? A Constitutional Amendment
Proposal, 12 GEO. IMMIGR. L.J. 511, 514 (1998).
11 Bender’s Immigration Bulletin
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 I94? 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
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.
338
April 1, 2006
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
11 Bender’s Immigration Bulletin
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
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-ROK). 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.
339
April 1, 2006
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.
*****
* Copyright 2006 by Gary Endelman. All rights
reserved. 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.
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.
340
11 Bender’s Immigration Bulletin
April 1, 2006
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 is dedicated to Ludivina Garcia
and her parents who know full well the importance of
birthright citizenship.
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