Blood, Soil, and Birthright
“The cannon and feudal systems tho’ greatly mutilated in England, are not yet destroy’d. Like the temples and palaces, in which the great contrivers of them, once worship’d and inhabited, they exist in ruins; and much of the domineering spirit of them still remains.”
-John Adams, A Dissertation on the Canon and the Feudal Law, No. 4 (October 21, 1765)
Birthright citizenship was back in the spotlight in 2025. Last February, the New York Times published a lengthy essay on Wong Kim Ark and the precedent his court case set at the close of the nineteenth century. The Times does not discuss the dissenting opinions in Ark’s case, nor consider the rationale of any contrary understanding of citizenship. An op-ed in The Hill facetiously challenged the Roberts Court to look for history and tradition arguments in this case. We might hope that they simply find good arguments, but for history and tradition, the dissent in Wong Kim Ark is a good place to start. Does history and tradition begin with the Progressive era? The Times essay treats as fringe the minority of legal scholars and judges (like Judge Ho of the Fifth Circuit) who think that illegal entry invalidates birthright citizenship. Even this limitation is too far.
Wong Kim Ark was born in San Francisco but was denied reentry after traveling abroad. The Chinese Exclusion Act, which prevented both Chinese entry and naturalization, had been passed in the interim. Ark challenged his exclusion and won at the Supreme Court, setting precedent for the meaning of the Citizenship Clause of the Fourteenth Amendment. As the Times notes, Wong Kim Ark eventually moved back to China, American citizenship in hand.
The story and case have reentered the media consciousness only recently, of course, because of President Trump’s efforts to limit immigration. Suddenly, Times columnists are passionate about “every child” being “born equal under the law,” a sympathy not discovered in the midst of the Dobbs decision, to be sure.
In January of last year, the President signed Executive Order 14160 (“Protecting the Meaning and Value of American Citizenship”), attempting to end automatic birthright citizenship for the children of illegal immigrants and those on temporary visas (tourist, work, H-1B’s, etc.). Anyone born before February 19, 2025, was grandfathered in. To be clear, all the Trump administration is trying to do is roll back the extension of birthright citizenship to illegal or temporary immigrants.
In short order, as is their custom, multiple district courts preliminary injunctioned the order to death. In late June or early July of this year, the Supreme Court will rule on the issue (Trump v. Barbara). For a statistical perspective, over 250,000 children are born to illegal immigrants every year, and another 4 million are born to temporary visa holders. Under current policy, when a baby is born in America, he becomes a citizen. No applications or proof of parental immigration status are required.
In U.S. v. Wong Kim Ark (1898), the Court determined that
“a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China.”
The Citizenship Clause, said the Court, received its meaning from English common law. Therefore, domicile at birth was enough, as Blackstone describes in his Commentaries. Indeed, no treaty, however worded, could supersede this more fundamental standard. Parental status was irrelevant to the citizenship of their children. Geography, not familial ties, determined political jurisdiction and status. Implicitly established in this precedent, at least in America, is the legal separation of children from parents. No longer are their allegiances naturally intertwined. Perhaps dueling allegiances within families—father against son, brother against brother—was not so unimaginable in the aftermath of the Civil War. Still, the thought is remarkable.
As even the Times is forced to admit, this is a unique policy, that of jus soli over jus sanguinis, the right of the soil over the right of blood. Of the 20 most developed countries in the world, only America and Canada maintain this principle of citizenship. France, Germany, Australia, and New Zealand all require at least one parent to be a citizen or permanent resident. Countries that do entertain any jus soli principle generally require that no competing claims of citizenship are possible for the child in question. In other words, no other country entertains as pure a birthright (soil) principle as America and Canada do.
For Americans, and I suppose Canadians, this quirk should prompt reconsideration. Even the United Kingdom, from which both America and Canada allegedly inherited the common law (feudal) principle, abandoned jus soli basis in 1983. As the dissent argued in Wong Kim Ark, this feudal model was rejected by the American Constitution and not entertained by the Fourteenth Amendment, as we shall see.
Lineage and place: both matter politically, but our conception of citizenship and naturalization for the past 150 years has increasingly weighted the latter far more heavily than the former. The priority of place over lineage is confused.
A more natural understanding of citizenship mirrors more closely the fundamental human relationship, the first society, that of the family. Patrial or familial citizenship is also more congruent with scriptural precedent. Patrimony and covenant marked the citizenship of Israel long before they returned to Canaan, even as their residence was in Egypt or Arabia or Babylon. Sojourners were to be granted certain privileges, but their residence did not automatically attract citizenship.
Citizenship
For support, Chief Justice Fuller and Justice Harlan, the dissenters in Wong Kim Ark, appealed to Emer de Vattel, a favorite jurist of the founding generation. Vattel presents a jus sanguinis basis for citizenship. But the dissenters pulled only two, admittedly sizeable, quotes from Vattel. They did not trace his full reasoning. We will rectify this below. (Discover, if you can, where Vattel’s reason and sense fail.) Here are the two quotes of Vattel from the Wong Kim Ark dissent.
“The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”
And again,
“The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent… in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he his born there of a foreigner, it will be only the place of his birth, and not his country.”
In this sense, says Vattel, “our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove.” Freedom of movement does not yield freedom of membership. Why should it?
Vattel introduces tiered citizenship. There are foreigners, i.e., not born of a citizen father, who are permitted to live in a country. This permission affords certain duties and privileges commensurate with the status of the resident foreigner. He is protected by the laws and, therefore, obligated to defend the country, and yet, he is not a full citizen and therefore does not participate in the life of the country as full citizens do. The resident foreigner is subject to the laws but not privileged to make them. There may even be perpetual inhabitants, individuals or groups granted indefinite residency.
The point is that resident foreigners, whether temporary or permanent, “are a kind of citizens of inferior order.” They are part of society in certain regards, but not fully participatory. Namely, they do not get privileges related to directing or governing the life of the country, like holding office or electing officers. And the children of resident foreigners inherit the same status. It is a dictate of the natural law that “children follow the condition of their fathers.” This cuts both ways. Children of citizens born abroad do not lose their status by accident of foreign soil, but neither do children of resident foreigners gain citizenship by the same accident. “[N]aturally,” instructs Vattel, “it is our extraction, not the place of our birth, that gives us rights.”
Naturalization
At the discretion of the government, according to the fundamental law of the nation, foreigners may be granted “the quality of citizen.” This is “naturalization.” Vattel notes that in some countries, princes or governors cannot grant full naturalization to foreigners insofar as they cannot allow them to hold office. He labels this imperfect naturalization. But in principle, foreigners can be fully naturalized and granted full political participation, full citizenship. Naturalization is a legal fiction; it pretends and then declares that your lineage is attached to the country in question. It is like adoption.
Patriotism
Underlying the question of citizenship is a question of love, devotion, and fealty. What connections, what relations, what objects will inspire love of, and loyalty to, country, the kind of love that will inspire defense, investment, and perpetuation of the same. These things are not arbitrary but integral to strong, stable social ties and tranquil political life.
Children, says Vattel, are “bound by natural ties to shew themselves grateful for the protection [their country] has afforded their fathers.” In other words, children ought to love the country of their fathers because they ought to love their fathers. This is a natural piety. Children ought to love their country, and they have a right to live in it just as they have a right to their inheritance. This right does not extend elsewhere or to the possessions of others, obviously.
A man may be heavily invested in his real property. He may be emotionally attached to the landscape of his country; he might hold dear the memories of the home he grew up in. But what is he more likely to passionately defend (even unto death)? His dirt or his family? The question is simpler if it is not his dirt. Would you die for an 800 square foot rental? Or would you soon die for your parents, spouse, and children? The degree of attachment between the two is incomparable. Material possessions do not compare to familial bonds. The former can be chosen, the latter cannot, and the former takes on significance only when it is attached to the latter. Your ancestral farmland, for example, has significance to you not because it is land but because it is ancestral.
To be sure, a collective way of life is attached to location, to land, or, in the case of the Israelites, a promise and hope of land. We are embodied creatures, and cursed is the man who has nowhere to rest his head. But even with the Israelites, it was not just any land, but the land of their forefathers, the place where Abraham, Isaac, and Jacob were buried. The patriarchs and their wives, that’s what the Israelites returned to. A homeland is a fatherland. Aeneas brought his ancestors with him to Rome. So, it is with any people. Great honor is bestowed on citizens who serve their country because by this service they have honored their fathers.
Emigration
Given this patrilineal basis of citizenship, the obvious question is whether it can be changed. We’ve already seen that full naturalization may be granted at the discretion of a country to resident foreigners. But what about the front end of the process? Can you quit your country to which you are naturally bound?
In short, yes. You are a free man. Just as you can leave your home, even forsake your own family, you may quit your ancestral country and divest yourself of obligations to it. A good citizen, like a good son, would not do this absent great necessity. Vattel saw that political society would be impossible if everyone took the liberty of leaving their country at will, at any time, and without cause, e.g., famine, corruption, or tyranny. By a familial analogy, we might say abuse or abandonment.
That you can leave your country at will, however, does entail that you can join other countries at will. The laws and customs of the country you enter as a foreigner will determine your status, as we’ve seen. You are naturally a child of your parents; you can be adopted by another family, but you have no natural right to demand adoption. An invitation must be issued, as (Vattel recalls), Frederick the Great did when he offered his protection to “emigrant Protestants of Saltzburg.” Or, when Queen Anne offered to settle Protestants from the Palatinate in her American colonies.
Custom
England is a strange case for Vattel because it permitted full naturalization by the “single circumstance of being born in the country.” In other words, children of resident foreigners were automatically full citizens. Lineage was irrelevant. Was this custom transferred to America? Chief Justice Fuller and Justice Harlan convincingly argued, dissenting in Wong Kim Ark, that it was not.
The framers were well aware, said the dissenters, of the distinction between “obligations based on territoriality and those based on the personal and invisible character of origin,” the difference between feudal and civil law conceptions of nationality. There was nothing in the Constitution to suggest that the English custom had been maintained. There was no place for the feudal practice in a regime where “liege homage” had been removed. For another thing, expatriation was an impossibility under English law, whereas it was obviously possible in American law.
Moreover, considering the citizenship stipulations for officeholders in Articles I and II, Fuller and Harlan held that it was
“unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
Children born to unnaturalized parents were not expected to be citizens because resident foreigners retain allegiance to another country; they are subject to another jurisdiction. The Civil Rights Act of 1866 explicitly precluded persons born in the United States but subject to another foreign power. As Fuller and Harlan explained, territorial jurisdiction applies to resident foreigners, but political jurisdiction does not. The first kind of jurisdiction applies to anyone on the soil, but the latter cannot comprehend dueling allegiances.
“In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens… double allegiance, in the sense of double nationality, has no place in our law, and the existence of a man without a country is not recognized.”
Indeed, the words of the Act were meant to “prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States.” The Fourteenth Amendment reinforced the notion: “subject to the jurisdiction thereof” was synonymous with “not subject to any foreign power.” As the Slaughterhouse Cases confirmed, “the 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.”
More simply, the purpose of the Fourteenth Amendment was to further or solidify what was meant by the Thirteenth, viz., determining the status of freed slaves “and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the State in which they reside.”
In other words, the Fourteenth Amendment was not opening alternative avenues of citizenship determined solely by the geography of birth. The “peculiar” purpose of the Amendment was to end the peculiar institution. Slaves born in America to slaves had never been subject to any foreign power. They had no political status at all. In any case, the Fourteenth Amendment should be thought of as “a collective naturalization” in a special case, naturalization being the prerogative of national lawmakers.
What would it mean for a person to be born in America and not subject to the jurisdiction thereof? Many commentators treat this as an impossibility, as if the language of the Amendment is needlessly repetitive.
It means simply this: if a child is born to resident foreigners, then, by birth, he is necessarily subject to the jurisdiction of another country. He has, by birth and on account of his parents, allegiance elsewhere. He is, therefore, not politically but only territorially subject to the United States. Naturalization is his only path to citizenship, and babies cannot do this. Ark’s parents never naturalized, so the proper ruling would, in fact, have been the dissent’s.
Children born to unnaturalized resident foreigners must still be naturalized; children born to naturalized citizens need not be. “[T]he naturalization of the father carries with it that of his minor children.” The resident foreigner retains allegiance elsewhere and the Constitution and statute in view “do not contemplate double allegiance,” or rather, birthright citizenship by domicile. Children born on American soil do not possess allegiances contrary to their parents and cannot yet form contrary intent. Their allegiance and, therefore, status follows that of their parents.
But even if the English custom was transferred, we can interrogate whether said custom makes sense, whether it is useful. In other words, we can apply the historic American standard to the adoption of English custom. Indeed, England itself, hardly a paragon of aggressive immigration policy, abandoned its own common law principle more than thirty years ago. Why should America maintain it? Citizenship, the distinction between native and foreigner, is maybe the most fundamental political question. And it is a political question. The legal arguments against Fourteenth Amendment jus soli are well trod but, at bottom, not the final means of determination here. As Michael Anton put it back in 2018,
“The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.”
Image Credit: Wikimedia Commons.
