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Righting Citizenship 

The question of birthright citizenship is far from settled. Despite lawyers' hesitancy, the issue is as relevant as ever today.

The United States in Crisis: Citizenship, Immigration, and the Nation State, by Edward J. Erler, (Encounter Books), 184 pages.

Few policy issues are more central to a nation’s sovereignty than determining who gets to be a citizen and how; every other problem or question flows, one way or another, from that crucial, binary determination. The way America bestows citizenship, argues Claremont Institute Senior Fellow Edward J. Erler in The United States in Crisis (2022), has progressively lost its grounding in popular consent, which remains, at least in principle, the only legitimate source of American sovereignty. As one generation of Americans has given way to the next, this process of de-anchoring has gradually undermined the nation’s ability to shape who gets to belong to it and how.

Erler’s entire book could be read as an attempt to sketch out a legal rationale for abolishing birthright citizenship, something the Trump administration rhetorically gestured toward but ultimately failed to accomplish. The notion more generally referred to by legal theorists as jus soli, that one becomes a U.S. citizen by merely being born on U.S. soil, is traceable to the 14th Amendment’s (1868) Citizenship Clause—“all persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S. and of the State wherein they reside”—but even more so to that clause’s interpretation, three decades later, by the Supreme Court in the landmark case United States vs. Wong Kim Ark (1898). The namesake dual national, born in San Francisco to Chinese parents, had been denied re-entry upon returning from a trip abroad. She sued the U.S. government over its refusal to recognize her as U.S.-born, and thus a citizen, and won. No other half-alien has ever found himself in that same predicament, for if the U.S. government were to (wrongfully) consider him fully alien, the courts would simply assert his U.S. citizenship by turning to Wong Kim Ark’s precedent. The children of accredited foreign diplomats, not being “subject to the jurisdiction thereof,” are the only exception to American jus soli.

Looking ahead, Erler contends that Justice Horace Gray’s decision on behalf of the Supreme Court in the Wong Kim Ark case ought to be swiftly overruled, for it wrongly supplied a common law understanding of a legal provision that had been built on a wholly different basis. Gray’s decision misinterpreted, per Erler’s argument, the intentions of the framers of the 14th Amendment, who had deliberately used the phrase “subject to the jurisdiction” instead of the common law equivalent, “owing allegiance to.” Perhaps more crucially, Justice Gray had dismissed the opinion of the “overwhelming majority of Congress,” which in debating the Civil Rights Act of 1866 had shown itself to be, in Erler’s words, “committed to the view that foreigners (and aliens) were not subject to birthright citizenship.” That Act read as follows: “All persons born in the U.S. and not subject to any foreign power, excluding Indians not taxed, are hereby declared citizens.” In summary, the drafters of the 14th Amendment’s Citizenship Clause and the Congress at around that time would have flatly and unequivocally denied U.S. citizenship to children born to those owing only temporary allegiance to the country. On account of Justice Gray’s ruling, however, the entire body of U.S. law has been re-jiggered to secure the opposite outcome.

This wrongfully set precedent has grandfathered in an inscrutably high number of sons and daughters of aliens born in the U.S. since 1898, but the legal argument behind Erler’s wager that they shouldn’t have been made citizens is relevant for theoretical reasons, too. The author opposes two distinct understandings of national belonging, one amenable to birthright citizenship, and the other not. The former is built around the notion of “subjectship” theorized by such English visionaries of common law as William Blackstone and Sir Edward Coke. The other is built around the notion of citizenship based on John Locke’s idea of the social compact. The 13 colonies and later the U.S., Erler contends, automatically transitioned from the former to the latter by breaking free from imperial rule. Contrary to the “common law of birthright ligeance,” the founders had envisioned a citizenship based on consent, not the accident of birth. Only the people’s representatives, by laying down rules for naturalization, could determine who gets to be a citizen, as opposed to the mere accident of being born on U.S. soil. Only Massachusetts, of all states, had adopted the common law rule of citizenship; every other state “relied on social compact principles in deciding the issue of citizenship,” per the landmark Supreme Court ruling in Inglis v. Trustees of Sailor’s Snug Harbour (1830).

Erler’s preferred theoretical framework of citizenship based on a consenting social compact has problematic ramifications, however, when it comes to the issue of slavery. Had the country granted citizenship to former slaves not upon emancipation at the Civil War’s end, as was historically the case, but upon independence from Britain over half a century earlier, such act of granting would have required a referendum to be consistent with Erler’s view of democratic citizenship, one where the pro-emancipation side, had a version of the 14th Amendment’s Citizenship Clause been put to them, may not have won the day. “If the framers had abolished slavery all at once at the time of the Founding” instead of abiding by the notion of a democratic social compact, writes Erler, “it would have purchased the freedom of the slaves at the expense of enslaving the free by acting without their consent.” Only victory in a referendum, unlikely given the era’s social mores in the American south, would have justified the emancipation that otherwise came about at the cost of a bloody Civil War.

But beyond the legal wrangling over who among the U.S.-born population should be left out of the Citizenship Clause and through what means, Erler’s book is timely for practical reasons, too. The ongoing realignment of the American right seems to be pushing Republicans toward decidedly more restrictionist positions, including on birthright citizenship. In his last year in office, President Trump labeled the policy “frankly ridiculous” and a “magnet for illegal immigration,” a reference to birth tourism, which the Center for Immigration Studies (CIS) estimated at between 20,000 and 26,000 births in 2020 alone. At one point, Trump even stated that his administration was “looking very, very seriously” at ending the policy. Yet scholars like Erler were ultimately left with nothing to show for it, admittedly because the overwhelming consensus among legal experts remains that depriving of citizenship even a minute portion of the U.S.-born population would constitute a violation of the 14th Amendment and would thus be swiftly overturned in court. Such a policy, however, would only take an executive order explicitly construing the “subject to the jurisdiction” language in that amendment as excluding the children of undocumented aliens. And a substantial part of the right seems willing to attempt just that kind of executive order the next time the White House is occupied by a Republican, which makes Erler’s book a timely one.

Jorge González-Gallarza (@JorgeGGallarza) is the co-host of the Uncommon Decency podcast on Europe (@UnDecencyPod) and an associate researcher at Fundación Civismo.