To Americans, the rules of citizenship can seem simple: You are a member of that nation either by birth or naturalisation. But centuries of debate over how citizenship can be acquired and lost show that the concept is not simple at all. This is especially true of birthright citizenship, the rule that confers membership on children born in America regardless of whether their parents are documented.
Until the Civil War — and the Dred Scott decision that helped precipitate it by denying citizenship even to former slaves in free territory — the US managed to finesse a definition of national citizenship. The founders and their descendants avoided the hard political, moral and legal questions about membership posed by Indians, slaves and black freemen. The Constitution used the term “citizen” but did not define it. State citizenship law sufficed.
The idea of birthright citizenship emerged from English common law. In 1608, 12 years before the Mayflower landed, the eminent British jurist Edward Coke set forth the first comprehensive theory of English subjectship. Coke ruled that a person born under the English king’s protection was an English subject and owed him full allegiance as a matter of “natural”, or divinely ordained, law. Neither parliament nor the person had any choice in the matter.
This legal arrangement — ascribing one’s membership in a group at birth and by location — known as jus soli, or the law of territory, has the virtue of certainty; knowing where someone was born (with a few narrow exceptions like diplomats’ and enemy soldiers’ children), fixes the person’s membership perpetually. It is a birthright — and a birth duty.
Even before the Declaration of Independence, philosophers of democracy rejected this rule. Democracies consisted of citizens, not subjects, so their membership should be grounded in rules derived from their elected officials and their own choices about their loyalties. Notably, John Locke and the “public law” theorists advanced liberal, consensualist ideas about national membership: Parents could transmit their own consensually derived membership to their children no matter where the child was born — known as jus sanguinis, or the law of blood. In certain situations, states could de-nationalise disloyal citizens and citizens could renounce their ascribed membership. These theories gained ground in the US with the War of 1812 when the British navy forced American sailors to serve on its warships, insisting that the sailors, having once been British subjects (or their descendants), remained British forever, like it or not.
The US had to directly face the citizenship question after Emancipation. The 14th Amendment’s citizenship clause combined both ascriptive and consensual ideas. It ascribes citizenship to all persons born or naturalised in the US, but only if Congress makes them “subject to the jurisdiction thereof”, a consensual idea. An 1868 statute enacted a day after the amendment’s ratification (and still in force) reinforced this consensualism by letting Americans renounce their citizenship if they comply with certain formalities.
So what does “subject to the jurisdiction” mean? The US Supreme Court long ago decided this phrase confers birthright citizenship only on those who are “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” at birth. In that case, the court denied citizenship to Indians born on reservations, but living off them, because they were subject to tribal jurisdiction even though Congress held power over their tribes. (Indians became citizens only in 1924, by statute.) Later, the court granted birthright citizenship to the US-born child of Chinese parents because her parents were in America legally.
In another bow to consensualism, Congress legislated jus sanguinis citizenship, traditional in Europe, for most children born abroad of one or both citizen parents who have lived in the US for certain periods. (Not having been “born in the United States”, these children would otherwise have been excluded.)
What about the US-born children of the 11.2 million undocumented immigrants in the US? The 14th Amendment does not directly address their status (there was no illegal immigration in 1868). Nor has the court ever squarely held that such children are birthright citizens, although this is common practice that the court acknowledged in a footnote in 1982. (France and Germany have moved their rules in this direction.)
Many Americans believe that granting these children citizenship defies consensualism because the parents are in America in violation of laws passed by their representatives. Nonetheless, legislation to change the situation never gets very far, probably because doing so would raise complications in a nation of immigrants with so many mixed-status families.
Which means the uneasy compromise between citizenship ascribed at birth and consensual citizenship conferred under democratically chosen rules continues today, 400 years after Coke based birthright citizenship on monarchical power. Most Americans, however, seem untroubled by the conflicting principles, tolerating an awkward status quo. As history shows us, finessing hard choices is as American as Thanksgiving dinner.
— Los Angeles Times
Peter Schuck is a professor of law at Yale University and co-author, with Rogers Smith, of Citizenship Without Consent: Illegal Aliens in the American Polity.
