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The Originalist Case Against Birthright Citizenship Premium Content

By: Daniel Horowitz | August 25th, 2015

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The American people are being told by the political class that there is nothing they can do to prevent future waves of illegal immigrants from coming here, unilaterally declaring political and legal jurisdiction, and securing citizenship for their children.  We are told that there is no recourse through our elected representatives to prevent illegal immigrants from gaining a legal foothold in this country all because of a footnote from the most radical anti-originalist justice of this century, William Brennan Jr.   

Justice William Brennan Jr

If you are scratching your head wondering how our own Constitution can be used as a suicide pact against us by foreign countries, you are not missing anything.  This irrational sentiment expressed by a number of conservative and liberal pundits alike, in fact, undermines the very fabric of the social contract, popular sovereignty, and the republican form of government established by the preamble of the Declaration of Independence and the Constitution.

Mandated Birthright Citizenship Even for Legal Immigrants is a Big Stretch 

Let’s put aside everything we believe as conservatives for a moment and take the activist ruling of Wong Kim Ark [169 U.S. 649 (1898)] as impregnable constitutional law.  As such, the 14th Amendment would compel Congress and the Executive agencies to grant citizenship to all children of legal immigrants.  Although we all agree as a matter of policy that it is a good idea to grant children born to legal permanent residents citizenship, by accepting the 1898 court decision as settled law, thereby enshrining birthright citizenship into our Constitution, we’d have to swallow the following ridiculous notions:

We’d be ignoring the intent of the drafters of this amendment who clearly had no intention to mandate birthright citizenship for all immigrants.

  • We’d be adopting one-directional stare decisis of an activist court that overturned two previous court decisions: the 1873 Slaughterhouse Cases and Elk v. Wilkins (1884).  In those cases, the Supreme Court made it clear that the original intent of the 14th Amendment was primarily to grant equal rights to freed black slaves and that the phrase “subject to the jurisdiction thereof” required that the petitioner for citizenship be “completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”  These cases excluded children born to foreign diplomats and Native American Indians and were quite clear that the meaning of the 14th Amendment would not include all children of immigrants – most of whom would have been covered by less political jurisdiction than even those born on Indian reservations, which were partially under U.S. jurisdiction. [See more from Prof. John Eastman at NRO on defining jurisdiction]
  • We’d be overturning the most logical meaning of the text of the Citizenship Clause, rendering the second phrase all but superfluous.
  • We’d be ignoring the intent of the drafters of this amendment who clearly had no intention to mandate birthright citizenship for all immigrants [see more in the Eastman article]. While originalists like to focus on text, in this case the text fits in exactly with the intent of the drafters, as demonstrated by the Senate floor debate.
  • We’d be adopting the revolutionary-era feudal system of English Common law rooted in the fact that men are subjects of the state by virtue of being born on the soil.  This is antithetical to the consent-based notion of citizenship expressed by our Founders.  Although many of our laws are built upon common law, this certainly was not one of them, and this segregation-era court was incorporating it into American law, ironically, at a time when England was abandoning feudalism.  As Thomas Jefferson wrote precisely in a discussion on immigration in Notes on the State of Virginia [Query 8, 211], our Constitution is a composition of the “freest principles of the English constitution.”
  • By adopting jus soli as a constitutional mandate (not just policy) for automatic citizenship based on soil, and not jus sanguinis – right of blood – all children born to American citizens abroad would not automatically be citizens, as noted by then-Chief Justice Fuller in his dissent in Wong Kim Ark.
  • Fuller further noted in his masterful dissent that by mandating automatic citizenship for all children of immigrants – no matter the circumstances – the Fourteenth Amendment would have the power “to cut off the legislative power from dealing with the subject.”  Article 1 Section 8 of the Constitution grants Congress plenary power over naturalizations.  Fuller observes that, “the right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.”  Unless there would be no other way to read the plain language of the 14th Amendment other than a mandate granting territorial jurisdiction instead of political jurisdiction (before 1898 nobody read it this way), it is simply imprudent to interpret it in the most stringent way – having the effect of almost completely voiding out an enumerated power of the people’s representatives governing the most vital aspect of a society.

Extrapolating Birthright to Illegals Countermands the Social Contract and all Semblance of Sovereignty      

Freeze frame at this point. 

Accepting the notion of automatic birthright citizenship for legal immigrants as a constitutional mandate is hard enough to swallow.  Yet, the conservative pundits in the political class want to extrapolate this terrible decision to children of illegal immigrants.  As if it wasn’t enough to accept the activist 1898 court case from the segregationist justices, proponents of anchor citizenship for illegal immigrants rely on footnote 10 in William Brennan’s Plylor v. Doe (1982) opinion – a decision that absurdly forced taxpayers to fund K-12 education for illegal immigrants. 

In that footnote, which is nothing more than dicta (non-binding comments not relevant to the case), Brennan quotes “one early commentator” noting that given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”    

There you have it, until the end of time, American citizens – through their elected representatives – have no recourse to prevent future illegal immigrants from obtaining citizenship against the will of the people – because of the non-binding footnote of the most radical justice of the 20th century, which in itself, relied on a decision reversing precedent and relying on the English feudal system. 

In reality, there is a huge difference between the legal permanent resident who was the subject of the 1898 court case and the illegal immigrants of today, even if we were to fully accept the concept of birthright citizenship based on nothing more than geographical jurisdiction.  The justices in Wong awarded the child citizenship because his Chinese immigrant parents were “domiciled” in America (legally, before the ban on Chinese immigration).  As Prof. Eastman notes, “Domicile” is a legal term of art; it means “a person’s legal home,” according to Black’s law dictionary, and is often used synonymously with “citizenship.”  Undoubtedly, those here in contravention to our laws, unlike Wong Kim Ark’s parents, cannot unilaterally declare domicile in our country.

The notion that illegal immigrants can unilaterally declare citizenship for their kids against the will of people and the laws duly passed by the people’s representatives, and that those representatives would lack a single recourse to stop it even prospectively, violates the very essence of consent-based citizenship.

And this all leads to a much more fundamental and vital discussion about sovereignty.  There is simply no way our Constitution can prohibit our elected representatives from preventing illegal immigrants from driving their pregnant wives to the border, and assuming the border patrol fails to catch the speeding vehicle in time – poof! – that baby is a citizen.

First, as noted before, Article 1 Section 8 grants Congress plenary power over naturalization.  By mandating automatic citizenship to babies born in the aforementioned case, that would completely strip the ability of Congress to exercise the most basic regulation over naturalization – keeping out those they affirmatively do not want in the country.  Certainly, we can say that Section 5 of the 14th Amendment, which grants Congress the power to enforce the other sections of the amendment, would allow them to clarify the Citizenship Clause to the extent that it would not completely countermand their Article 1 power as it relates to illegal aliens who force their will on their constituents – for goodness sakes!

But more fundamentally, the notion that illegal immigrants can unilaterally declare citizenship for their kids against the will of people and the laws duly passed by the people’s representatives, and that those representatives would lack a single recourse to stop it even prospectively, violates the very essence of consent-based citizenship. The notion of consent-based citizenship serves as the bedrock of popular sovereignty, territorial sovereignty, and Republicanism – all built on the social contract.  The preamble of the Declaration of Independence was built upon the principle that in order to protect natural rights people are entitled to popular sovereignty – to form a government that derives its powers “from the consent of the governed.”

Professor Edward Erler has been the leading voice observing how birthright citizenship for illegal immigrants, and indeed the entire phenomenon of illegal immigration and their securing of rights and benefits, violates the social contract in the most foundational way.  In his book, The Founders on Citizenship and Immigration, Erler writes the following with regards to citizenship and the social contract:

“[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."  

Drawing on the writings of our Founders, Erler notes that they clearly envisioned that “new members can be added only with the consent of those who already constitute civil society.”  He cites Madison who wrote that,  “in the case of naturalization a new member is added to the social compact, not only without a unanimous consent of the members, but by a majority of the governing body, deriving its powers from a majority of the individual parties to the social compact.”[1]

Birthright Citizenship Special Report

Even Wong Kim Ark Court Would Never Mandate Citizenship for Illegal Aliens

Clearly, even the authors of the Wong decision, unlike William Brennan, understood the basic concept of consent-based citizenship, at least as it relates to those who came here illegally.  While some intellectuals contend that because there was no real concept of illegal immigration in those days the decision would apply to all aliens, the writings of that very court prove otherwise. 

In fact, by that point, pursuant to the immigration laws passed in 1882 and 1891, Congress had already denied admission to the following categories of aliens: “idiots,” the insane, paupers, and polygamists; persons liable to become a public charge; those convicted of a felony or other crime or misdemeanor involving moral depravity; and sufferers “from a loathsome or dangerous” contagious disease.  They also passed the Chinese Exclusion Act banning all new immigration from China.  The Immigration Act of 1891 created a new office, the Commissioner of Immigration within the Treasury Department, vested with the power to inspect new immigrants and potentially deny them entry if they were deemed inadmissible under one of the criteria. 

While some intellectuals contend that because there was no real concept of illegal immigration in those days the decision would apply to all aliens, the writings of that very court prove otherwise.

In Nishimura Ekiu v. United States (1892), a Japanese woman sued immigration officials for denying her entry on account of her being a supposed public charge.  She claimed that her due process was violated because she was not afforded the opportunity to present her case.  And no, she was not even asserting the dubious modern substantive due process violation in pursuit of new fundamental rights; she was merely alleging a procedural due process violation.  Yet, Justice Gray – the same author of the Wong decision – not only rejected her claim, he noted that the courts shouldn’t even have the jurisdiction to second guess legislative and executive decisions on immigration. Here are the relevant quotes with my emphasis added:

“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vat. Law Nat. lib. 2, §§ 94, 100; 1 Phillim. Int. Law, (3d Ed.) c. 10, § 220. In the United States this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the president and senate, or through statutes enacted by congress, upon whom the constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization; to declare war, and to provide and maintain armies and navies; and to make all laws which may be necessary and proper for carrying into effect these powers and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof. […]

“It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law.

Here we have the very activist author of the decision used as the foundation for the birthright argument clearly expressing the basic concept that Congress has the ability to control the nation’s sovereignty.  It would require preposterous mental gymnastics to assume that, had this Japanese woman given birth at the port the day she was interviewed by the immigration officer, Justice Gray would have conferred citizenship on that baby – against the will of the people’s representatives. 

Where is the Voice of the people on immigration?

The reason the birthright discussion is so important is because it sheds so much light on the transmogrification of the judicial system as it relates to popular sovereignty and the social contract.  Not only do we have judges like Brennan bestowing citizenship and education rights on illegal immigrants from the high perches of the bench, they have invalidated almost every attempt by the states and federal government to keep out illegal immigrants.  A California judge recently invalidated detention for all illegal immigrants with children, essentially mandating their irrevocable disappearance into the American population.

Immigration transformation pursued outside of the democratic process is even worse than having courts decide societal issues, such as abortion and gay marriage.

In addition to the courts, we have unelected bureaucrats and the U.N. transforming entire communities through refugee resettlements without the consent of the people.  And although our current immigration system was formed by the Hart-Cellar Act (“Kennedy bill”) in 1965, the supporters of the bill lied to the American people and publicly ruled out the transformational outcome that indeed took place.  For decades, illegal aliens have been counted in the census and have now permanently distorted the very representation the civil society needs to fight on behalf of their sovereignty.

What ever happened to the voice of the people? 

Immigration transformation pursued outside of the democratic process is even worse than having courts decide societal issues, such as abortion and gay marriage, in what Justice Scalia calls “societal transformation without representation.”  The courts have now empowered themselves to unilaterally and immutably change civil society itself – without any recourse from those the Constitution vested with making such decisions.  How far we have deviated from the Founders’ vision that even so-called conservatives support the idea of changing the civil society without the consent of its citizens.

Indeed, the issue of birthright citizenship for illegal immigrants is not just a tangential topic within immigration.  It cuts to the very core of how illegal immigrants are able to coerce their will on the American citizenry and the broader issue of sovereignty.  This runs much deeper than the 14th Amendment.  The question for policy-makers has moved beyond whether we will survive as a nation as our Founder’s envisioned.  We have already deviated so far from that vision.  It’s a question of whether we are a nation at all.       

Daniel Horowitz is the Senior Editor of Conservative Review. Follow him on Twitter @RMConservative.


[1] Erler, Edward J.; Erler, Edward J.; Marini, John; Marini, John; West, Thomas G.; West, Thomas G. (2007-02-23). The Founders on Citizenship and Immigration: Principles and Challenges in America (Claremont Institute Series on Statesmanship and Political Philosophy) (p. 38). Rowman & Littlefield Publishers. Kindle Edition.

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