We used to base citizenship on consent, not birth. In an era of mass immigration, it’s time to get back to that older understanding.
With the Supreme Court’s announcement last week that it will hear a case challenging President Trump’s executive order ending birthright citizenship for children of illegal immigrants, the internet has been awash in debate over the meaning of Section One of the 14th Amendment.
That’s the part that says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” At issue is what the phrase, “subject to the jurisdiction thereof,” really means. Does it mean anyone physically present inside U.S. territory, even foreign nationals who illegally crossed the border? Are the children of those people American citizens simply because they were born on U.S. soil?
That’s the view of those who support birthright citizenship today. According to them, citizenship is simply the product of one’s birth. They think the 14th Amendment is quite clear on this point, and that the men who drafted it in 1866 and ratified it two years later had nothing more in mind than to tie citizenship to the accident of birth.
There are however two major problems with this view, one jurisprudential and one practical. Because the first problem leads to the second, let’s take them in order.
Proponents of birthright citizenship will point — as they’ve been doing incessantly over the past week — to an 1898 Supreme Court case, United States v. Wong Kim Ark, as proof positive that the 14th Amendment automatically confers citizenship based on birth. Proponents of birthright citizenship, most of them on the left, want to stick to the letter of the Constitution as a way to thwart Trump’s executive order.
Without going into all the details of Wong Kim Ark — my colleague Brianna Lyman does that here, arguing persuasively that the Supreme Court should overturn the decision — it isn’t the silver bullet the left thinks it is. Specifically, Wong Kim Ark introduced a theory of citizenship to American jurisprudence that was alien to both the 14th Amendment and the Founding. Wong Kim Ark’s parents were subjects of the Emperor of China, but at the time of his birth in San Francisco in 1873 they were “domiciled residents.” The Supreme Court, ignoring how citizenship had been understood in America up until that time, declared that because Ark was born in the United States, the 14th Amendment meant he was a U.S. citizen.
Writing for the 6-2 majority, Justice Horace Gray argued that the 14th Amendment must be understood in light of English common law. By doing this, the Supreme Court enshrined the idea of citizenship based on feudal obligation found in English common law. Feudal obligation meant that, “one is bound from birth to the place where he is born,” as Hillsdale College’s Kevin Portteus has written. “He owes perpetual allegiance to the ruler of that place in gratitude for the protection he has been given. He is a subject, in the sense that he is involuntarily and perpetually subjected to a lord, and has no choice in the matter.”
According to feudal obligation, expatriation is impossible without the consent of the lord to which one owed fealty by birth. This is of course totally incompatible with the American Founding, to say nothing of the American Revolution, both of which rely on a theory of citizenship based on consent, not birth.
The Founders themselves were of course born in lands controlled by the British crown, but by breaking with the crown and declaring (and then winning) independence, they put forward a radically different understanding of citizenship and political community — one based on the mutual consent of free men. In framing the 14th Amendment, writes Portteus, --->READ MORE HERE
 |
| Llyfrgell Genedlaethol Cymru / The National Library of Wales/Unsplash |
Contrary to what ‘experts’ and Democrats say, the 14th Amendment is anything but clear on birthright citizenship.
For the first time in decades, long standing assumptions surrounding America’s immigration system are being directly challenged.
The Trump administration has halted immigration applications from more than 30 countries after an unvetted Afghan national — brought into the U.S. during Biden’s chaotic 2021 withdrawal — allegedly ambushed two National Guard members, killing one and leaving another in serious condition. Additionally, increased ICE operations have led to a reported 2.2 million illegal aliens either self-deporting or being forcefully removed from the country.
These policies, among others, mark a dramatic shift toward restoring control over America’s borders while boldly reasserting sovereignty across all facets of America’s immigration system. But while these policy battles are significant, the constitutional battle now arriving at the Supreme Court will dwarf them all.
At the center of this contentious shift lies a question that has been avoided for generations: Who actually qualifies for American citizenship under the 14th Amendment?
Americans have been repeatedly told that the first sentence of the 14th Amendment makes it clear that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” But the phrase “subject to the jurisdiction thereof” has many interpretations.
Under “consent theory,” legal scholars who reject universal birthright citizenship argue that full jurisdiction requires mutual political consent.
According to this view, an illegal immigrant is not fully “subject to the jurisdiction” of the United States merely by being physically present. Instead, the United States, as a sovereign nation, must affirmatively consent to the person’s presence and membership within its borders and political community.
Without that consent, the argument goes, illegal aliens, and their children born on American soil lack the jurisdictional relationship the Fourteenth Amendment requires for automatic birthright citizenship.
Yet, we have also been told that in 1898, the Supreme Court affirmed that anyone born on U.S. soil is a citizen and that this argument has been settled. This is untrue.
Contrary to proponents of mass immigration, the oft-cited United States v. Wong Kim Ark did not decide the question of children born to illegal immigrants, or even temporary legal immigrants, such as guest workers, but rather only immigrants with lawful, permanent residency.
The truth is, no Supreme Court case has ever held that the children of illegal immigrants are constitutionally required to become citizens at birth. Because the legal category “lawful permanent resident” did not exist in 1898, Wong’s parents were considered “lawfully domiciled” in the U.S. under common law because there was no statute making their presence unlawful.
As such, the Supreme Court has never ruled on whether the children of illegal immigrants are covered by the Citizenship Clause, which is why the legal battle over Trump’s executive order has now made its way to the Supreme Court. --->READ MORE HERE
If you like what you see, please "Like" and/or Follow us on FACEBOOK here, GETTR here, and TWITTER here.
No comments:
Post a Comment