
The Statue of Liberty
BIRTHRIGHT CITIZENSHIP—WHEN THE NOBLE INTENT OF THE RECONSTRUCTION CONGRESS WENT IN AN UNINTENDED DIRECTION
INTRODUCTION
In furtherance of a campaign promise and to tackle the concerns of many constitutional scholars and some in the political class, President Trump signed an Executive Order on January 20th purporting to direct Homeland Security to not recognize the children of undocumented persons as “natural born citizens.” This had the effect of essentially abrogating the Citizenship Clause of the Fourteenth Amendment as well as effectively repealing 8 U.S. Code Section 1401, which Congress passed in 1952 and which codified the Citizenship Clause. This provision of the Fourteenth Amendment states:
“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.”
Almost immediately, upon legal challenge, United States District Judge John C. Coughenour blocked enforcement of the Order for 14 days pending the receipt of briefs. He declared, “This is a blatantly unconstitutional order.” He is most probably right; however, the issue is in play, and perhaps we will finally get a clarification of the meaning of “subject to the jurisdiction thereof” from the United States Supreme Court. Repeated attempts to introduce legislation in Congress rolling back the abuses of this Clause by citizenship tourists and those seeking an anchor here have all failed. President Trump is no more empowered to abrogate the Constitution by pen than any of his predecessors; however, the matter must be determined given the unintended consequences of the Clause, when, subsequent to its passage and ratification as an integral part of the Fourteenth Amendment, a flood of immigrants came to our shores.
THE BACKGROUND
The post-Civil War Reconstruction Amendments sought to provide the protection of privileges and immunities and due process enjoyed by citizens to newly freed slaves. The purpose was twofold: to prevent the States in the South from using their police powers to frustrate the purposes of freedom for those previously held in bondage and to overrule the Supreme Court’s Dred Scott decision, which, in part, sparked the Civil War and had declared that freed slaves enjoyed none of these protections.
Congress repudiated this holding with the Civil Rights Act of 1866 and then in Section 1 of the Fourteenth Amendment—the Citizenship Clause. It became a law that would quickly be enshrined in the Constitution out of fear that another Congress might repeal the Civil Rights Act. This was a very real fear given the resistance of the southern states to acceptance of the newly freed, having passed many local laws that targeted the ability of these people as citizens to prosper in the post-war years. The noble intentions of the drafters to ensure the dignity and citizenship of freed men has, however, created controversy given the meaning of “and subject to the jurisdiction thereof.” Does this mean the casual reality that mere presence, though unauthorized, in this country will subject you to the enforcement of our laws, or does it mean, as many have urged, the full political presence of one who has renounced all loyalty and allegiance to his home jurisdiction, which can only occur through naturalization and the oath? The jurisdictional connection hinges on both allegiance and permanence and would for example, also exist in the permanent status of a green card holder and the vetting that attaches thereto. In the Wong Kim Ark case discussed below the Chinese parents of the plaintiff Ark were permanent residents or domiciliaries of San Francisco not “illegal aliens” as known today. Without submission and allegiance coupled with permanence one cannot be “subject to the jurisdiction thereof.” This is the outstanding issue for resolution.
It is the history of the Clause and its origins in English common law that has created the most controversy regarding what was intended. In this context, both our Revolution and rejection of the key principle of “allegiance to the King” suggest that the basis for “natural born citizenship” as recognized in the English common law had no place in the new United States, especially in its Second Founding. Let’s read on.
DISCUSSION
Supporters of “Birthright Citizenship” cite both the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), and the United States Code at 8 U.S.C. Section 1401 as dispositive—but are they?
In the Wong Kim Ark case, the Supreme Court examined the issue of a Chinese man born in San Francisco to parents of Chinese descent and “subjects of the Emperor of China” but were domiciled in San Francisco. Wong Kim Ark, having lived for years as a laborer in the United States, travelled with his parents back to China, and upon his return was refused admission to the country solely on the basis that he was not a citizen of the United States. The matter worked its way to the Supreme Court, which for the first time engaged in a lengthy analysis of the Citizenship Clause. In reaching the conclusion that the Fourteenth Amendment was clearly and plainly written and did not have exclusions for race or other classifications other than “subject to the jurisdiction thereof,” the Court held that he, indeed, was a citizen of the United States. The Court looked to the English common law of “natural born” citizenship, and it is here that critics of the decision believe that despite the undeniable reliance on the history and tradition of such laws in our constitutional framework in other areas, this is one area where such history had been rejected outright in OUR “new” history as a nation. The Court stated:
“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”
However, in England allegiance to the King by the natural born was a critical component of the doctrine of citizenship by place of birth—jus soli and the Court further examined its roots in English history and tradition:
“And if, at common law, all human beings born within the ligeance of the King and under the King’s obedience were natural-born subjects and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary… Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”
Here is the controversy: “allegiance and subjection to the government and law” are two different things. The undocumented do not necessarily belong to both classes. Renunciation of allegiance to one’s country of origin and the common and required oath of a naturalized citizen is, to critics of this holding (and the application of the Clause to the illegal aliens and their children born here), the distinction that has never been clarified.
The Court continued its analysis:
“The first section of the Fourteenth Amendment of the Constitution begins with the words,
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.
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. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, but the opening words, “All persons born,” are general, not to say universal, restricted only by place and jurisdiction, and not by color or race…
We do not say that no one else but the negro can share in this protection. Both the language and spirit of these Articles are to have their fair and just weight in any question of construction. Undoubtedly, while negro slavery alone was in the mind of the Congress which proposed the Thirteenth Article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this Amendment may safely be trusted to make it void. And so if other rights are assailed by the States, which properly and necessarily fall within the protection of these Articles, that protection will apply, though the party interested may not be of African descent.
The question is now settled by the Fourteenth Amendment itself, that citizenship of the United States is the primary citizenship in this country, and that state citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen’s place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons.
The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language ‘citizens of the United States’ was meant all such citizens, and by ‘any person’ was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes and conditions of men.”
The Court therefore looked to the plain meaning of the words, the history of the concepts, and perhaps decided the issue for the ages. Congress in 1952 apparently agreed, and any attempts to further divine the true intent of the Clause or to legislate further have failed.
Justices Fuller and Harlan dissented, however, and here is Justice Fuller’s reasoning, which fuels the “subject to the jurisdiction thereof” issue:
“I am of the opinion that the President and Senate by treaty, and the Congress by naturalization, have the power, notwithstanding the Fourteenth Amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens, and that it results that the consent to allow such persons to come into and reside within our geographical limits does not carry with it the imposition of citizenship upon children born to them while in this country under such consent, in spite of treaty and statute.
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.
From the Declaration of Independence to this day, the United States have rejected the doctrine of indissoluble allegiance and maintained the general right of expatriation, to be exercised in subordination to the public interests and subject to regulation.
As early as the act of January 29, 1795, applicants for naturalization were required to take not simply an oath to support the Constitution of the United States, but of absolute renunciation and abjuration of all allegiance and fidelity to every foreign prince or State, and particularly to the prince or State of which they were before the citizens or subjects.”
CONCLUSION
Justice Fuller’s analysis would be as cogent today as it was in 1898. Although in the modern era neither the Executive nor Congress can simply exclude a distinct race from admission absent a security concern, the general observation that Congress and the Executive have significant authority over immigration and naturalization still rings true. The history of “born allegiance to the King” did not come forward in the Revolutionary and post-Revolutionary period in the new United States. Notwithstanding the fact that the words in the Clause are plain, if the Court in considering Wong Kim Ark’s citizenship got it wrong, perhaps the Supreme Court will resolve the question. I think it is etched in our Constitution, however, and that only a constitutional amendment will fully resolve the question. In the perfect intention to bring the newly freed into citizenship, Congress and the ratifying states considering the Citizenship Clause never anticipated “citizenship tourism” or the massive influx of immigrants, legal and illegal, that would forever take us in the direction of having to finally determine this very important issue. We are only one of two nations that recognizes this, and we are “gamed” on a daily basis. It is time.
Mike Imprevento
January 26th 2025