Birthright and Consent
In case you had not heard, the fate of birthright citizenship and the meaning of the Fourteenth Amendment is pending before the Supreme Court. Reading the tea leaves of oral arguments is dark magic, but most proponents of ending birthright citizenship for children of unlawful or temporary residents and returning to a more reasonable, historic approach to the issue were not encouraged.
As I’ve mentioned before, America is singular in its adherence to pure jus soli citizenship policy. No other developed nation, save our 51st state, Canada, practices it. As certain amicus curiae in Trump v. Barbara demonstrated, neither does the historic Anglo-American common law tradition support pure right of the soil. Familial relations matter; generational connections matter. What is at issue is not birthright (singular), but two notions of birthright and which notion should control. Which matters: to whom you were born or where you were born?
Predictably, the left favors maintenance of current birthright citizenship doctrine, for obvious ideological reasons but especially for reason of political expedience. The right is for a more sensible policy. Per usual, however, there are plenty in the “classical liberal” cadre that defend birthright citizenship as a matter of precedent preservation. That is, as a “conservative” act of retaining the markers of our open, nation of immigrants, liberal democracy. Closed, restrictive, nationalist societies are demoted in our postwar order of the supranational rights (and courts) of international “community.” Birthright citizenship is most congruent with the liberal international order of multi-national, multi-cultural states of porous borders and fluid membership. What is curious is that the father of liberalism and, allegedly, the father of America would have found the notion of birthright citizenship (of either kind) incomprehensible.
Locke’s Citizen
For John Locke, the genesis of society in consent precludes any notion of birthright. To believe otherwise is to negate natural equality and natural rights. Every man must have and make the same choices as his father as a matter of inborn right. Citizenship, membership in and allegiance to a particular society, is determined by consent rather than descent, but neither does physical presence (by choice or birth) within national boundaries afford citizenship. Consent is all, all the way down. It is obvious to Locke, as he writes in the Second Treatise, that governments
“claim no Power over the Son, because of that they had over the Father; nor look on Children as being their Subjects, by their Fathers being so. If a Subject of England have a Child by an English Woman in France, whose subject is he? Not the King of England’s; for he must have leave to be admitted to the Privildge of it. Nor the King of France’s; For how then has his Father a liberty to bring him away, and breed him as he pleases?”
A father cannot involuntarily bind his children by compact, nor can the father give away the liberty of his children. The children, when they come of age, must decide their own allegiances for themselves. “[A] Child is born a Subject of no country or Government.”
Until then, a son is merely a subject of his father, not any commonwealth, “til he come to Age of Discretion; and then he is a Free-man, at liberty what Government he will put himself under; what Body Politick he will unite himself to.” The English boy born in France is a citizen of neither. Neither his lineage nor the accident of his birthplace tell us anything. Otherwise, the son is denied a liberty that his father had; in which case, the liberty of consent cannot be natural and universal.
Nor could consent possess the finality necessary to bind men to a political society for life. The power of the father over their children is the same everywhere, but the “positive Limits of Kingdoms and Commonwealths” is not the same everywhere. For the familial relationship is natural (i.e., not consent based), but the political relationship is artificial.
Real property is under the legal authority (“direct jurisdiction over the land”) of the commonwealth in which it resides. The rules of the physical location apply. But this does not determine the citizenship of the owner who has tacitly submitted to these property rules but not expressly consented to the political society.
“[S]ubmitting to the Laws of any Country, living quietly, and enjoying Priviledges of Protection under them, makes not a Man a Member of that Society… [no more] than it would make a Man a Subject to another in whose Family he found it convenient to abide for some time; though, whilst he continued in it, he were obliged to comply with the Laws.”
That Locke cannot escape familial analogies is ironic. What distinguishes the house guest from the child except lineage? Locke’s solution to this, of course, is to distinguish between the type of association: the family is natural and society is artificial. The means of membership in either must control all the way through. Political sovereignty is not a patrial claim so neither can citizenship be.
Lockean citizenship, then, would require that every child, when they come of age, take an oath to the nation before they gain the privileges and immunities of citizenship. Simply put, children are not citizens. We might say that Locke had very Baptist ecclesiology. Any benefit of privilege enjoyed by children prior to the age of discretion is really benefit or privilege to their citizen parents, not the children. There is no direct relationship between the children and the nation. Properly speaking, there are parental rights but no child rights as such.
There is no political birthright at all. As with any person present on the soil of a nation, children are subject to the legal jurisdiction of the land, but they do not become citizens by this subjection whether they are born to native or foreign parents. Again, the accidents of lineage and birthplace are irrelevant to Locke. All that matters is individual, affirmative consent.
Locke’s Nation
Consent serving as the basis of both society and government, Locke’s nationalism is peculiar. As Jeremy Rabkin pointed out, Locke’s nationalism is not purely ethnic but nor does it deny the requirement of “prepolitical affinity,” as earlier discussed. It is not mere civic nationalism, because the nation precedes and exists apart from the civic apparatus. The latter serves the former. The political regime springs from the nation.
True citizenship depends neither on familial lineage nor physical presence. So, while Locke affirms the necessity of basic affinities, he does not seem to absolutely require religious or ethnic commonality. All the better if you have both as a basis of pre-political affinity, but these are insufficient for the Lockean even if they make naturalization more likely or easier. Affinity is not sufficient, but neither is proximity.
Consent can never be forced, nor can it be constructed. Every applicant wherever and to whomever born must be naturalized. And consent is a two-way street. The applicant must consent but so too must the society which has something of a property interest in the nation itself, and interest that, apparently unlike real property, cannot be inherited. It is the malleability, the generational flux of political bonds that cuts against the claim of birthright citizenship in a Lockean liberal order.
In other words, to coherently defeat a jus sanguinis basis for citizenship, as Locke does, the Lockean liberal must also negate a jus soli account of citizenship. Why should the free-willed individual be bound by (or benefit from) the accident of birth in either case? Why should the act of parents ever constrain or commit children at all? Both notions of birthright citizenship (whether by family or soil) can be beaten by Lockean contractarianism, but they cannot coexist with one another.
This is the real question that proponents of birthright citizenship have to answer. If everyone is born free and equal and at liberty to independently actualize themselves, then circumstances of birth (for good or ill) must be ignored. Anything else risks prejudice.
But of course, this question is not really posed because citizenship has been reduced to a (monetary) benefits package unaccompanied by corresponding duties and impositions. It is illuminating, to say the least, to watch immigration to the United States decline as the difficulty of entry and application for asylum and naturalization has increased and the benefits of foreign residents decreased, and the potential that longstanding immigration law will actually be enforced has arisen. Perhaps the global desire to actually join in, assimilate to, and serve the American body politic (whatever the cost or difficulty) is not so high as we were made to believe.
Moreover, it is evident that the supposedly Lockean American founding did not follow Locke’s directives for citizenship. Lineage was obviously still relevant to naturalization; else we would not be having the debates we are now. At bottom, it is obtuse, ahistorical rendering of our reconstruction amendments that has prevented a more intuitive, natural handling of citizenship.
Locke’s Assimilation
Locke denies the sufficiency of affinity or proximity for citizenship. And yet, for all of Locke’s emphasis on generational reenactment of the state of nature, “it is remarkable,” says Rabkin, “how much Locke takes for granted that a political society does rest on social affinities, which are prior to, and deeper in some ways, than political consent to a particular government. Again and again, Locke refers to these social groundings of nationality.” For all his equivocations, Locke still understood the need for the adhesive of affinity, but just as importantly, the necessity of assimilation. More simply, Locke understood that whatever innate right to migration (to use modern parlance) a man might have, not all nations are the same. Further, there is a right–call it a property right–in national preservation.
Consent is a two-way street. The society has discretion in what membership applications are approved. Once approved, the real work begins. It is education, specifically education into custom, that binds people, not laws, relations, or jurisdiction. We would now call this assimilation. It is here that Locke’s influence on the founding is more recognizable. It was the Essay Concerning Human Understanding, not the treatises on government, that was popular in colonial America.
Indispensable to political society is not simply shared language (communication) but shared moral language (custom). Because Locke denies the existence of innate ideas, he recognizes that “men of different countries, educations and tempers” have different notions of “unquestionable principles.” Only people thoroughly educated in the customs of a particular society, in turn, universalize and absolutize those customs. For custom is a “greater power than nature” and “fashion” is a more powerful restriction than law.
Generally speaking, custom and fashion are non-transferable. The moral language of societies is distinct. “[T]he several fashions, customs, and manners of one nation making several combinations of ideas familiar and necessary in one [nation], which another people have had never any occasion to make.” In other nations, there exist no language (“names”) to express the same ideas. Even if formal language is shared, the meaning of words (e.g., virtue and vice) is not. Moral language or custom–call it national character– is what distinguishes nations, and membership in a nation entails education in and consent to that language.
We see this reinforced in Locke’s account of societal formation. Even if society is founded in consent and contract, there are preexisting social affinities (“acquaintance and friendship”) that induce the mutual bond and that, in turn, induce later applicants to join. Locke has no conception of global citizenship, multiculturalism, or borderless societies, and he does maintain a distinction between citizen and foreigner.
Indeed, a principal cause of this social formation is defense against foreigners. The nation is still a “family [that] by degrees grew up into a commonwealth.” Proximity and affinity are necessary preconditions of the social contract if not strictly sufficient for later adoptions. Certain similarities and conventions are needed to spawn solidarity. So, the compound moral person (the nation), to borrow from Samuel Pufendorf, is not simply referent to the general will or national unity, but the distinct moral sense of that person.
The point of government for Locke is protection of life and property. But he treats the nation itself as the property of the whole (even if it cannot be inherited like real property). Hence, foreign conquest can be resisted both because subjection to it is involuntary and because it violates the right of property and further violates the “supreme power” of the people to freely select their representatives. Moreover, foreign conquest violates the inviolable boundaries of nations that have been set by consent. Just like consent to enter society is final, so too is national consent to boundaries final.
Preservation of the independence and sovereignty of a people is an inherent right, and this includes the distinguishing marks of nationhood, namely, moral language and custom. All consenting adults must submit to–be educated in–this moral custom and threats to it can justly be repelled. The independence of a nation is tied to the maintenance of its moral sense or rather, its national character.
As quixotic as Locke’s theory of citizenship might have been, surprising to some is how illiberal the same theory now appears. “Classical liberal” defenders of prevailing notions of citizenship, nationhood, and immigration will have to find another patron saint.
