The End of Birthright Citizenship

A Closer Look at the 14th Amendment

What does it mean to be an American citizen? More importantly, what makes an American citizen? In a recent article on immigration policy in America’s Early Republic, it was demonstrated that in order to become a citizen immigrants had to pass residency, character, loyalty, and ethnicity qualifications. Such qualifications meant that many could never become American citizens, and is evidence of the duty a people have to police and regulation their own community for its own good—a duty to exclude those who would threaten the vitality, unity, and well-being of the nation.

Yet a citizenship threshold does not tell us what American citizenship was, according to the founding generation, ultimately all about. To answer that question requires that we tackle the major obstacle preventing a return to sane immigration policy in America today: birthright citizenship. The topic of birthright citizenship was in the news again recently, as Republican Vice Presidential candidate J.D. Vance agreed with President Donald Trump that birthright citizenship should be ended. Democrats will undoubtedly try to hang this around the heads of Trump and Vance, while the latter will vigorously defend their stance. What should the American voter make of all this?

The End of Territorial Birthright Citizenship

Recent policy debates about birthright citizenship often fall into a predictable pattern: liberals and progressive argue in favor of it, while conservatives oppose it. This is because the phrase “birthright citizenship” is now narrowly applied to a very specific issue—the right (and practice) of mere residents (legal or illegal) having children on American soil and thereby claiming citizenship for their children. This supposed “right” stems from the first clause of the Fourteenth Amendment, which we will look at shortly. Yet, it is important to realize that there are two kinds of birthright citizenship: territorial birthright citizenship and political birthright citizenship. Conservative ought to oppose the former, but enthusiastically embrace the latter.

Territorial birthright citizenship is the practice just described: the belief that if any person residing on any U.S. territory, regardless of their foreign national status or citizenship elsewhere, gives birth to a child then that child is, by virtue of merely being born on U.S. soil, an American citizen. On this account, there is one and only one qualification for becoming a U.S. citizen—a right for those born anywhere on U.S. territory. This belief has underpinned the spiraling migration crisis, creating what are known as “anchor babies,” or children of non-citizen residents born in America who are granted citizenship and then serve as “anchors” for parents or family to either stay or come to America and seek citizenship (taking advantage of U.S. policy not to unnecessarily separate families). The belief that American citizenship can be acquired by merely giving birth on American soil has driven more and more immigrants (especially women and children) to make every effort to reach American territory and establish familial roots.

It is easy to blame this problem on the Fourteenth Amendment, and while territorial birthright citizenship does boast a constitutional grounding in that amendment, it would be wrong to trace the problem to the Amendment itself. To be clear, the Fourteenth Amendment does not grant the right of territorial birthright citizenship; instead, it is later constitutional misinterpretation of the Amendment that gave birth to territorial birthright citizenship. A brief explanation is in order.

The first sentence of Section One (i.e., the Citizenship Clause) of the Fourteenth Amendment reads as follows:

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.

All sides on the debate over this clause agree on one thing—that there are two qualifications for American citizenship: first, one must be born (or naturalized) in the United States; second, of those born or naturalized, they must be subject to the jurisdiction of the United States. The debate really centers around what “subject to the jurisdiction thereof” means. Proponents of territorial birthright citizenship argue that this merely means that those who come to America’s shores are subject to basic American civil and criminal law, and thus so are their children born here. So, for example, if a Chinese student on a student visa studying in America becomes pregnant and goes into labor, she cannot be denied medical aid because U.S. law (The Emergency Medical Treatment and Active Labor Act of 1986) requires hospitals to accept all patients seeking help, regardless of citizenship, legal status, or ability to pay. This student, though a foreign national who will supposedly return to China once their student visa expires, is nonetheless subject to the laws of the United States while a guest in this country. On this view, it is impossible to reside in the United States for any period of time and not be “subject to the jurisdiction thereof.” Residency and jurisdictional subjection are identical.

Those who oppose birthright citizenship argue that “subject to the jurisdiction” of the United States has a deeper meaning—that all ties of loyalty or citizenship to other nations have been severed and political allegiance to the United States alone declared. On this reading, the Fourteenth Amendment only extends birthright citizenship to those whose parents are already American citizens, i.e., who are not subject to the political jurisdiction of foreign states, but have submitted to the jurisdiction of the U.S. Constitution. It is only those who have renounced their nation of origin and sworn fealty to the U.S. Constitution—and so are completely subject to the jurisdiction of both fundamental and statutory U.S. law—whose children can be automatically granted citizenship as a birthright. Thus, “subject to the jurisdiction” has nothing to do with technically being under the laws of the land where you are living and everything to do with fundamental political allegiance. Conservative scholars like Edward J. Erler, Mark Pulliam, and John C. Eastman have made convincing arguments for this view, and even more liberal scholars like Peter Schuck and Rogers Smith agree.

This interpretation of the Fourteenth Amendment is far more plausible, and we can enlist the authors of the Fourteenth Amendment as witnesses. In congressional debates over the Amendment and proposed additions on May 30, 1866, Illinois Senator Lyman Trumbull explained what “subject to the jurisdiction” meant: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means, ‘subject to the complete jurisdiction thereof.’ …What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means” (p. 2893). The immediate debate in the chambers revolved around the Indian Tribes: were Native Americans subject to the jurisdiction of American law, or were they subject to and therefore owed allegiance to their separate Indian nations and tribes? The authors of the Amendment argued that Indian Tribes that had treaties with the United States were excluded from U.S. jurisdiction, and thus the children of Indians would not qualify for U.S. citizenship. Thus, the proposed edition of “Indians not taxed” by Senator James Doolittle (WI) to the Fourteenth Amendment was judged to be redundant and so was excluded.

Republican Senator Jacob Howard from Michigan was the one who had proposed the addition of the phrase “subject to the jurisdiction thereof” to the Amendment. Originally, the phrasing of the Fourteenth Amendment was drawn from the Civil Rights Act of 1866. That Act, entitled An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication, opened by declaring that “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.” Senator Howard suggested simplifying this phraseology, reducing “not subject to any foreign power, excluding Indians not taxed” to merely “subject to the jurisdiction thereof.” Yet both concepts from the 1866 Act (the exclusion of those under foreign allegiance and Indian nations) were assumed to be included in the Fourteenth Amendment.

Senator Howard himself explained what he meant by “subject to the jurisdiction thereof,” when he commented that

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. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States (italics added, p. 2890).

While the specific syntax and meaning of “foreigners, aliens, who belong to the families of ambassadors or foreign ministers” has been fiercely debated, the overall meaning of the phrase is clear, especially in the context of the 1866 Civil Rights Act. Sen. Howard went on to agree with Sen. Turnbull in describing “jurisdiction” as political allegiance to the U.S. Constitution:

I concur entirely with the honorable Senator from Illinois, in holding that the word “jurisdiction,” as here employed, ought to be construed as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States (p. 2895).

If children born to Indians belonging to an independent tribe, although born within the limits of U.S. territory, did not qualify for citizenship, then neither would the children of foreign nationals, immigrant aliens, or ambassadors or foreign ministers. The definition of “jurisdiction” as being “full and complete” and “coextensive in all respects with the constitutional power of the United States,” makes it beyond doubt that what the drafters of the Amendment had in mind was total political allegiance to fundamental U.S. constitutional law, not merely temporary submission to territorial law. This, therefore, excludes foreign nationals here on temporary visas, those who overstay their visas, and legal or illegal immigrants who have children while residing in the U.S. but who are not themselves American citizens. Among other things, this prohibits the (now common) practice of dual citizenship—a practice that would have been absurd, if not possibly treasonous, to the American founders.

That the Fourteenth Amendment was meant to apply birthright citizenship only to those born to American citizens—i.e., those already under full and complete jurisdiction of U.S. law and who owed political allegiance to the Constitution—was reinforced by the Supreme Court in its 1872 Slaughterhouse Cases opinion. There, on the question of the “citizenship of the negro,” the Court stated that the first clause of the Fourteenth Amendment 

declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States (italics added; 83 U.S. 36 [1872] at 73).

This interpretation was later formally adopted by the Court in the 1884 case of Elk v. Wilkins, which held that “the evident meaning of [the Citizenship Clause of the Fourteenth Amendment] 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,” such that “an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law” (112 U.S. 94 [1884] at 101-2).

However, as John C. Eastman deftly explains, this common understanding of the Fourteenth Amendment was turned upside-down by the Court in United States v. Won Kim Ark (169 U.S. 649 [1898]). In that peculiar decision (which focused on the son of Chinese nationals who was excluded from naturalized citizenship by the Chinese Exclusion Acts), Justice Horace Gray rejected the reasoning from Slaughterhouse and Elk v. Wilkins (even though he authored the latter’s opinion!) and declared that “subject to the jurisdiction” applied only to children of Indians and of foreign diplomats and ambassadors (thus excluding them from citizenship). Yet birthright citizenship was open to children born in the United State to foreign nationals who were not themselves citizens, yet who were still subject to the jurisdiction of the United States. In this decision, Justice Gray simply failed to make the traditional distinction between territorial and political jurisdiction. Since Won Kim Ark, territorial birthright citizenship has been the de facto law of the land (and later reinforced by Justice Brennan’s dicta in footnote 10 in Plyer v. Doe 457 U.S. 202 [1982] at 211, where he even declared that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful”).

The Télos of Political Birthright Citizenship

The preamble of the Constitution of the United States reads, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America” (italics added).

Whatever we might think the framers of the Constitution were up to or what specific clauses mean, the founders were clearly seeking to establish a political community that would outlive them. The U.S. Constitution, its political practice of representative self-government, the consent of the people through their elected representatives, and the goals of liberty, justice, and the common good was meant to create a lasting body politic and political institutionality that would survive the founding generation.

Although the Constitution does not define citizenship (it does require the President to be a “natural born Citizen”) and even though it presupposes dual citizenship of both State and Nation (Art. IV, Sec. 2), the practice of automatically conferring citizenship status, rights, and privileges upon the children of citizens was present from the beginning. This came naturally to the American colonists, even though it was both a break from the nature of British subjectship and unjustified according to the social compact political theory held by the founders.

Regarding the former, the Americans essentially invented the notion of citizenship as distinct from being a subject. As Douglas Bradburn explains, “British subjecthood depended upon feudal conceptions of perpetual natural allegiance … English practice at the end of the eighteenth century continued to assume that subjects could never relinquish their filial responsibilities, and the doctrine of ‘one a subject, always a subject’ still dominated the English common law understanding of allegiance” (pp. 104-5). One was born a subject of a Prince or Constitution and could not renounce either; even physically moving to another continent or becoming a naturalized citizen or subject of another state could not free one from obligations to the British Crown. While preeminent British lawyers like William Blackstone theoretically believed in the possibility of expatriation (renouncing one’s national loyalty or joining another political community), there was no law or practice for this in reality.

In completely severing all political bonds with the British, the Americans revoked the practice of subjectship and replaced it with citizenship. Citizenship would now belong to free men, to equal citizens capable of governing themselves individually and collectively (which, in fact, accorded with historic colonial political habit). The first post-1776 generation cemented their status as citizens of America by declaring their independence, spilling their blood in a war for independence, and writing new constitutions at the state and national levels. Yet, what about the next generation? 

According to social compact theory, such as that advocated by John Locke in this Second Treatise, a person belonged to a political community according to their own will and consent—and this alone: “Every Man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any Earthly Power, but only his own Consent” (Second Treatise §119). Political bodies, therefore, were composed of groups of individuals who all voluntarily elected to be part of that community. Since one had a natural right to join a political community, they also had a right to remove themselves from that community (expatriation) and join a people or state elsewhere.

Locke understood that this explanation of political origins could account for the first generation, but struggled to explain why or how future children should be engrafted into the political body. Thus, explicit consent by those forming a political society turned into implicit (or tacit) consent by those subsequently born into that society long before their reason develops (Second Treatise §§119-122). For Locke, however, once reason matures and the child grows into an adult, the possession of rational and moral agency gives to every man the right to renounce their allegiance to the political body they were born into.

The British historian and philosopher David Hume took Locke to task for this account of political loyalty and belonging. Hume admitted that the “original contract,” at some level, did require the consent of the people, since the people “are the source of all power and jurisdiction,” and “voluntarily, for the sake of peace and order, abandoned their native liberty, and received laws from their equal and companion.” Yet, Hume averred, consent alone cannot maintain a political community. Force is required as well, which is most clearly revealed in how children are forcibly submitted to the laws of the family and community they are born to. Calling this “tacit consent” is a devious sleight of hand, a mere theoretical or philosophical prestidigitation to buoy up a political theory that is outrunning political reality.

To tell a child who has come of age that they had tacitly consented all along, that they are now free to no longer consent to the laws and constitution they live under, and they are at liberty to leave their country of origin and join another if they do not like how things are, is like telling an unwilling stowaway on a ship aboard the high seas that they are free to abandon ship and join another: “We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.” In other words, children do not tacitly consent, nor, once they reach adulthood, are they truly “free” to jettison everything they have ever known—hearth, home, family, religion, nation, and way of life. As Hume concludes, “where [a man] thinks (as all mankind do who are born under established governments) that by his birth he owes allegiance to a certain prince or certain form of government; it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and disclaims.”

The American founders split the difference between British subjectship and social compact theory. They rejected absolute and perpetual subjection to one’s homeland and Prince, yet they adopted the notion of birthright citizenship for children born to citizens in order to provide an intergenerational bond that would ensure that their political efforts would not fizzle out after a few decades. The founders rarely spoke of tacit consent, but they all believed in and practiced birthright citizenship from the beginning. While they held that there was a right to expatriation, this was not the goal, but a release valve in extreme cases; the goal was to raise the next generation to be virtuous and free citizens under America’s republic constitutional government, ruling themselves under God for the sake of good order, peace, prosperity, and genuine human happiness. That was the ultimate télos of birthright citizenship, and that is the kind of birthright citizenship the New Right ought to enthusiastically embrace today.

Conclusion

The U.S. Congress, the Supreme Court, and the American people should seek an immediate end to territorial birthright citizenship. This practice is anti-American and anti-constitutional. It is a national dissolvent, a way to dilute American citizenship, destroy constitutional fidelity and allegiance, and upend the rule of law. It marks the antithesis of the American founding, early immigration and naturalization law, and the original intent behind the Citizenship Clause of the Fourteenth Amendment. At the same time, Americans should seek the true end—the télos or purpose—of political birthright citizenship as a way to restore an historic and patriotic understanding of American citizenship and safeguard this country from internal corruption and eventual collapse.

Whether or not those who have been granted territorial birthright citizenship over the past century or more should have their citizenship revoked is a prudential matter beyond the scope of this article. Yet lawmakers and citizens ought to consider that this is not beyond the bounds of possibility. For citizenship is a political right granted to those who have been lawfully naturalized or naturally born to U.S. citizens. While leniency and clemency will undoubtedly have to be granted, the American people and their representatives should not be afraid or ashamed to claim that which is theirs alone.

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