Welcome to the Birthright Citizenship Roundtable

Thanks to Matt and Dan, Prawfs will be the home to a discussion of the merits of two new proposals to change birthright citizenship law in the United States.  These proposals are designed to deny citizenship to some or all children of undocumented non-citizens born in the United States who otherwise would be U.S. citizens by birth.  We have an all-star group of panelists, with people on various sides of the issue.

The background legal principles are these.  Although American law has had Section 1 of the 14th Amendment only since 1868, we had citizens before that, under common law.   The traditional principle of Anglo-American citizenship comes from Calvin's Case,  77 ER 377 (1608),  which held held that birth in the lands of a sovereign made a person a natural born subject of that sovereign.  In 1868,  Congress and the States essentially codified Calvin's Case through Section 1, which Provides: "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."   

The critical language for our purposes is "subject to the jurisdiction thereof."  In United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898), the Court said that the language included racial Chinese born in the United States notwithstanding that racial Chinese were prohibited from immigrating and becoming naturalized citizens.  The Court--no great friend of Chinese immigrants--held that the language excluded only "the two classes of cases,--children of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,--both of which . . . by the law of England and by our own law, . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country."  That is, "subject to the jurisdiction thereof" means nothing more than "subject to the laws of the United States," which all non-citizens, including the undocumented, emphatically are. 

But not all agree.  A number of people think that the Fuller/Harlan dissent in Wong Kim Ark had the better of the argument; if a child owes political allegiance to another country, he or she is not completely subject to the jurisdiction of the United States.  Put another way, these theorists believe that the citizenship principle of jus sanguinis--law of blood--is better than the citizenship principle of jus soli--law of soil.  Citizenship, they say, should follow the parent rather than the place of birth. 

Below are the proposals to change the current rules on citizenship, and four reasons why they are legally problematic.

The first proposal is designed to generate a case testing the validity of Wong Kim Ark.  The vehicle is an interstate compact which would create two types of birth certificates, one for people born in a state "subject to the jurisdiction of the United States" and one for others.  Since this would immediately generate a lawsuit, proponents hope this will lead the Supreme Court to reconsider Wong Kim Ark.

The Arizona version, SB 1308 (full text here) offers a critical definition in Article II: AS USED IN THIS COMPACT, "SUBJECT TO THE JURISDICTION OF THE UNITED STATES" HAS THE MEANING THAT IT BEARS IN SECTION 1 OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, NAMELY THAT THE PERSON IS A CHILD OF AT LEAST ONE PARENT WHO OWES NO ALLEGIANCE TO ANY FOREIGN SOVEREIGNTY, OR A CHILD WITHOUT CITIZENSHIP OR NATIONALITY IN ANY FOREIGN COUNTRY. FOR THE PURPOSES OF THIS COMPACT A PERSON WHO OWES NO ALLEGIANCE TO ANY FOREIGN SOVEREIGNTY IS A UNITED STATES CITIZEN OR NATIONAL, OR AN IMMIGRANT ACCORDED THE PRIVILEGE OF RESIDING PERMANENTLY IN THE UNITED STATES, OR A PERSON WITHOUT NATIONALITY IN ANY FOREIGN COUNTRY.

The second proposal is a constitutional amendment.  Senators David Vitter and Rand Paul have introduced S.J. Res. 2 (112th Cong., 1st Sess.), which would repeal Section 1 of the 14th Amendment by implication by adding the following to the Constitution:

A person born in the United States shall not be a citizen of the United States unless-(1) one parent of the person is a citizen of the United States; (2) one parent of the person is an alien lawfully admitted for permanent residence in the United States who resides in the United States; (3) one parent of the person is an alien performing active service in the Armed Forces of the United States; or (4) the person is naturalized in accordance with the laws of the United States.

The other participants in the roundtable, surely, will have much to say about the  proposed constitutional amendment, but I will focus on the proposed state compact. The problems with this statute are too many to offer a systematic critique, but I offer four thoughts.

1. There's a Statute.  The holding of Wong Kim Ark was made statute law as part of the Nationality Act of 1940.  This Act, the fruit of a decade of study by the Departments of State, Justice and Labor, was the first comprehensive U.S. citizenship law.  (The earlier patchy efforts left gaps resulting in,  for example, John McCain not being a citizen by birth.)  8 U.S.C. 1401(a) makes a citizen "a person born in the United States, and subject to the jurisdiction thereof".  The drafting history (e.g., here at 7) makes clear that the statute embraces the holding of Wong Kim Ark.  Accordingly, the Court's interpretation seems to be part of the U.S. Code.  E.g., Cottage Sav. Ass'n v. C.I.R., 499 U.S. 554, 561-62 (1991).  No one has argued that Congress lacks the power under the Naturalization Clause to  grant citizenship to all born in the United States other than a child of a diplomat or soldier in hostile occupation.  Therefore, there is a strong argument that even if a plausible challenge to the logic of Wong Kim Ark could be mounted, a necessary first step would be to persuade Congress to repeal Section 1401(a)

2. Citizenship Is Not  a State Matter.  One of the most interesting things about the Citizenship Clause is that it regulates state as well as national citizenship.  This is a stark reminder of the judgment of Congress and the majority of the States that citizenship, state and federal, should be protected from the prejudices of particular States--States cannot be trusted to make citizenship determinations even about state citizenship. The historical reason, of course, is that former Confederate States denied citizenship to formerly enslaved persons after the Civil War.  (And even earlier, state-by-state standards proved unworkable under the Articles of Confederation; this is why the Constitution provides for "an uniform Rule of Naturalization.")  The clear language of the Amendment (in addition to the fact that Congress has occupied the field through the Nationality Act of 1940 as codified and amended in the Immigration and Nationality Act) mean that state citizenship legislation is preempted--to the extent that it is covered by the 14th Amendment, citizenship is now an exclusively federal matter as much as making treaties or declaring war. 

 3. The 14th Amendment is a Jus Soli Provision.  Reasonable people could argue that citizenship should be transmitted to children based on the citizenship of the parents (jus sanguinis) rather than based on the place of birth (jus soli).  But there is no serious argument that the 14th Amendment has done so.  The critical factor, according to the text, is birth or naturalization in the U.S., a territorial, jus soli, concept.  The status of the parents is irrelevant; the Citizenship Clause does not ask whether the parents are subject to the jurisdictionof the United States, it asks whether the person born in the United States is subject to U.S. jurisdiction.

4. Why the Eagerness to Let Other Countries Set U.S. Citizenship Policy?  Another oddity of the dissent in Wong Kim Ark and of the Compact is the controlling effect they give to foreign law.  The theory is that children whose parents have citizenship in other countries are not fully subject to U.S. jurisdiction. Preliminarily, if this is right, it raises a host of problems for dual citizen parents; if a parent's foreign tie makes a U.S.-born infant not completely subject to U.S. jurisdiction, then the child of two U.S. citizens born in the United States, logically, is not a citizen if one parent is a dual citizen.  Under the Compact, it appears that if two U.S. citizen parents happened to be Israeli or Canadian dual citizens, their child born in the United States would not be a U.S. citizen, because they do not have "at least one parent who owes no allegeance to a foreign sovereignty." As the Court noted in Wong Kim Ark, if U.S. the law made citizenship of the parents the critical issue for children born in the United States, the outcome "would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States." 169 U.S. at 694.  

More fundamentally, it is not clear why the United States should give effect to the citizenship law of foreign countries as part of U.S. citizenship policy. If North Korean law provided that foreign-born descendants of North Koreans are citizens unto the 1,000th generation, but South Korean law provided that descendants of South Koreans born abroad may only gain citizenship by naturalization (or vice-versa), why should those foreign laws dictate the result under U.S. citizenship law? We make citizens (or not) for reasons of our own, not to please or accomodate other nations.  Foriegn law is not now relevant to U.S. citizenship law; I do not understand why it should be made relevant. 

There is much more to be said on this subject, and I look forward to reading what my fellow bloggers think.