Monday, December 12, 2005

Birthright Citizenship: The Common Law and Consent

[Since I know most people don't read long posts, I'm placing the money quote at the top, though it appears also near the bottom]

Birthright citizenship is a necessary component of a system of government based on consent and "a voluntary association of individuals." If citizenship is assigned to people based on their parentage, they are denied the ability to consent to be governed. If people owe allegiance to a power from birth, they are not individuals capable of a voluntary association. Consent and voluntary association are thus rendered meaningless, as is our system of government.

A commenter to my posted transcript of Tancredo's birthright citizenship interview brought up the issue of the 14th Amendment, and the clause, "and subject to the jurisdiction thereof."

The full citizenship clause is as follows:

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.

I had always read that to mean that, if you are born or naturalized in the United States, you are therefore subject to the jurisdiction of the United States, and you are a citizen of both the entire country and the state of residence.

However, opponents of birthright citizenship say that clause means that there are two requirements to citizenship: physical presence in the United States and having no allegiance to another country.

The argument is taken from the comments of Senator Howard, who proposed the Citizenship Clause to the 14th Amendment, as well as the concurrence of other framers:

I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

Sen. Lyman Trumbull
What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.

Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.

[emph. added]

It looks to me that they are specifically arguing against the citizenship of Native Americans who are born within the boundaries of the United States, but still have the sovereignty of their tribes. Now, however, Native Americans do have such dual citizenship, and treaties with the U.S. are still in force (if not always enforced). Howard made it clear that he excepted people "who belong to the families of" a certain group, but not persons born in the U.S. who "belong to the families of" foreigners or aliens. There then must be a difference between the two. As Trumbull made clear, Native Americans were foreigners and aliens, though they were born in the U.S. to legal residents of the U.S.

Reasonable minds may differ, though. But how reasonable is it to assume that the framers of the 14th Amendment were advocating hereditary nationality rather than arguing against dual citizenship in the unique situation with Native Americans?

In the Hamdi amicus brief (in which the court considered the rights of Yaser Hamdi, who was born in Louisiana while his parents were visiting the U.S., raised outside the U.S. and captured fighting in Afghanistan -- the Court ruled he was a U.S. citizen, BTW) the opponents of birthright citizenship use the "stated intent" of the framers to include jurisdiction to argue that children of non-citizens share their parents' allegiance to a foreign power, and thus are not subject to U.S. jurisdiction. It is a rule of law known as jus sanguinis (right of the blood) in which one's nationality is determined by one's parents' nationality.

This argument ignores a common law practice in the United States and England called jus soli (right of the soil), which means the place of one's birth determines one's nationality, or territorial birthright.

Court decisions prior to ratification of the Fourteenth Amendment point unambiguously to American acceptance of territorial birthright citizenship. As early as 1804, the Supreme Court assumed that all persons born in the United States were citizens of the United States.[73]


Because the Framers [of the 14th Amendment] were aware of the territorial common law underpinnings of the Citizenship Clause, it seems dubious to infer lack of foresight for something existing in the common law for hundreds of years.

The reason for jus soli is because

...children born in the United States of illegal immigrants are morally blameless for the illegal actions of their parents and therefore should not be punished for their parents’ actions.[157] This articulation, known as the corruption of blood principle, has been made time and again by the Supreme Court.

Going back to Sen. Howard's statement, it is clear that he understood the principle of jus soli, and agreed with it.

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.

[emph. added]

From A Comparative Analysis of the Common Law Basis for Granting Citizenship to Children Born of Illegal Immigrants

The underlying theme of the Fourteenth Amendment’s citizenship clause[80] is declarative, and it is not meant to substantively alter the already well-established common law citizenship doctrine.[81] The Court approved this understanding in the 1898 case Wong Kim Ark: “as appears upon the face of the [Fourteenth] [A]mendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship . . . It is declaratory in form, and enabling and extending in effect.”[82]
[emph. added]

It is my opinion that the reason some people do not like the courts interpreting legislation despite the stated intent of legislators is because people do not understand the principle of common law, or the legal system in general. I had planned on writing a post on the difference between Roman law and common law a couple of months ago, but didn't feel up to the task.

But "the stated intent of the legislature" is always an argument I hear when courts are interpreting statutes. Stated intent of legislators is not law. That is why legislators have such huge arguments over the wording of laws. On the floor of the Senate or House, a Congressperson may declare a benign and beneficial intent behind a law; the argument from the other side is that, regardless of stated intent, there may be a particular undesireable effect through the interpretation of the plain language of the law.

So even if one were to interpret the stated intent of the framers to mean jus sanguinis, the plain language of the 14th Amendment, in the context of common law, is jus soli.

The U.S. Supreme Court is the sole interpreter of the U.S. Constitution,[130] and the written Constitution places restrictions on the substance of legislation procured by Congress.[131] Because the terms in the Fourteenth Amendment’s Citizenship Clause are not explicitly clear,[132] the Court has turned to common law principles and history.[133] Thus, in American jurisprudence, the common law serves the function of explaining written text in the Constitution.

But opponents to birthright citizenship do not hang all their opposition on the stated intent of the framers. Another argument made in Hamdi is that birthright citizenship is a remnant of feudalism, wherein one owes allegiance, from birth, to the sovereign, an allegiance that cannot be renounced. Since we all have a right to renounce our allegiance to the United States, it therefore follows that we have shirked the feudalism of birthright citizenship, and do not owe allegiance to the sovereign, i.e. the United States.

It appears opponents of birthright citizenship not only must ignore common law, but must make contradictory arguments to justify their position. How can we both owe allegiance solely to the United States at our birth (therefore coming under its "complete jurisdiction"), and yet not owe allegiance to the United States at our birth?

Part of shirking off feudalism and of not owing automatic allegiance is the idea of consent. Again, from Hamdi

...Governments are instituted among particular peoples, comprised of naturally-equal human beings, to secure for themselves certain unalienable rights. Such governments, in order to be legitimate, must be grounded in the consent of the governed—a necessary corollary to the self-evident proposition of equality. Decl. of Ind. ¶ 2. This consent must be present, either explicitly or tacitly, not just in the formation of the government but in the ongoing decision whether to embrace others within the social compact of the particular people. As formulated in the Massachusetts Bill of Rights of 1780:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights …. The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.

Mass. Const. of 1780, Preamble (emphasis added). Thus, as Professor Edward Erler has noted:
[T]he social contract requires reciprocal consent. Not only must the individual consent to be governed, but he must also be accepted by the community as a whole. If all persons born within the geographical limits of the United States are to be counted citizens—even those whose parents are in the United States illegally—then this would be tantamount to the conferral of citizenship without the consent of ‘the whole people.'

Ignoring that the Massachusetts Bill of Rights is not U.S. law or reflective of the state of the law in the U.S. generally, I will address this.

It is true that our system of government is founded on the principle of consent. And it is this idea of consent which first made me question the argument that the 14th Amendment codifies jus sanguinis.

Babies cannot consent. They can't owe allegiance to the U.S., or to share in the allegiance of their parents. To say that a child owes automatic allegiance to the country of his parents is in opposition to the notion of "a voluntary association of individuals."

To condition citizenship on consent of the whole society as well as the individual is to defer actual citizenship until adulthood, when the whole society and the individual can look each other over and make a decision on a case-by-case basis. Rather, we give our implied consent by continuing to live in the U.S., getting drivers' licenses, voting, etc. The U.S. as a whole gives us implied consent by not allowing the government to exile anyone to a rock in the ocean. Would we want the society as a whole to judge our worthiness to citizenship?

In fact, another opponent to birthright citizenship uses a quote by Madison to make the case that citizenship is a privilege granted to individuals that can be stripped from us if we are deemed unworthy.

Citizenship is a privilege, not a right as say the right to freedom of religion is, and therefore, can be taken away just as any other privilege can be.

James Madison defined who America seeked [sic] to be citizens among us along with some words of wisdom:

When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuse. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of.[7]

Ignoring that Madison was speaking of naturalization rather than jus soli, this is the outcome of the notion of reciprocal consent, and why it, as an explicit requirement of citizenship, is and should be rejected.

Citizenship is rendered meaningless if we can be judged unworthy by our peers to have that which the fortune of our birth has granted us. We may proclaim our devotion as a society to Natural Rights to life, liberty and property; but what good are Natural Rights if that same society can strip away a claim by birth to participation? What good is a claim by birth to even a child born of U.S. citizens?

Birthright citizenship is a necessary component of a system of government based on consent and "a voluntary association of individuals." If citizenship is assigned to people based on their parentage, they are denied the ability to consent to be governed. If people owe allegiance to a power from birth, they are not individuals capable of a voluntary association. Consent and voluntary association are thus rendered meaningless, as is our system of government.

But if my impassioned, common sense argument of principle doesn't suffice, there's still the common law.

Even if one accepts the consent theory of jurisdiction,[161] it would be contrary to the corruption of blood principle[162] for absence of U.S. consent in the parent’s presence to transfer to the child.

Second, the Supreme Court has not found consent, at least in the formal sense of permission, dispositive with respect to whether one is subject to the jurisdiction under the Citizenship Clause. The consent inference, drawn from sparse wording in Wong Kim Ark,[163] and advocated by opponents of conferring birthright citizenship to children born to illegal immigrants, misconstrues the Court’s long-held position of imputing common law elements into citizenship law.[164] Thus, consent theorists lose sight of the forest but for the trees by failing to account for the distinct primacy of the territorial component inherent in the “subject to the jurisdiction” phrase’s meaning.[165] Furthermore, the U.S. rule of territorial birthright citizenship is fortified by Calvin’s Case, which expounded the territorial nature of ligeance and manifests consent broadly,[166] limited only by the common law exceptions for children born of diplomats and children born of hostile occupying forces.[167] Despite the status of the immigrant parents, jurisdiction over the child is not absent so long as he is present within the territorial definition of the United States. [168] ...
If children born in the U.S. to illegal immigrants are judged unworthy of a right of citizenship because of their parents' illegal actions, then no one is safe in their citizenship.

...More on the 14th Amendment.

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