“Birthright Citizenship” an Invented Tradition?

One of the striking features of the current debates about what we call “birthright citizenship” is that the key terms of the debate are taken as well-settled when, in fact, they were not relevant to the actual debates Americans had when we ratified the Fourteenth Amendment. 

A Google N-graph of word frequency shows virtually no use of the term “birthright citizenship” in published books until 1980, after which usage took off. That does not necessarily mean the term was not used in newspapers or magazines, or in private discussions, but it does say something about the term’s history. It was not an important legal term of art when the Fourteenth Amendment was written and ratified. The term “birthright” does appear occasionally in the Fourteenth Amendment debates, but it is rare, and the occasional use of the term is usually not about the question of who is a citizen at birth. It is, rather, about what rights citizens or men have by birth. 

The other term that looms large in this discussion is “jus soli,” a Latin term meaning “law  of soil.” Nowadays, it is conventional to say that countries follow either “the law of blood” or “the law of soil.” Scholars such as Sam Erman and Nathan Perl-Rosenthal note in an article titled “The Nineteenth-Century Fabrication of Jus Soli and Jus Sanguinis” that the term was an innovation. It is an “invented tradition.” The term jus soli dates to Roman law, but in Roman law, it was a term of art in private law; it was not about citizenship. Erman and Perl-Rosenthal note that in 1860, a French academic first applied the term to the law of nationality. That usage was, as far as I can tell, not current in the Fourteenth Amendment debates. If one reads common law as part of an unfolding tradition, with common development on both sides of the Atlantic, one can read the new term as nothing more than a confirmation of that ongoing development. Yet the American Revolution gets in the way in matters of citizenship, among other problems with that view. 

In sum, the statement “Americans have birthright citizenship because we follow jus soli” is a sentence that would have sounded strange and perhaps would not have been comprehensible to the men who wrote and ratified the Fourteenth Amendment. It is true, of course, that sometimes a new term is introduced merely to describe what people have already been doing, or what the law has already declared, and yet that is usually not the case. The rise of a new term, or the re-tasking of an old term (as with jus soli), usually indicates a change in thinking; sometimes it codifies a recent change, and sometimes it itself is a change. More often, it develops to describe a newly emerging phenomenon, but the simplification that the new term entails introduces further changes.    

The term “birthright” itself had a history in English law of allegiance. In Calvin’s case, the court notes that, in the most important English precedent, a child's allegiance to his King, if born under his protection, “originally is due by nature and birthright.” The court reasoned that “ligeance, or obedience of the subject to the Sovereign, is due by the Law of nature.” Note that “the sovereign” here is the King, not the nation. In other words, birthright had to do with being the King’s subject, with obligations to his person. Hence, Calvin, a Scot born after King James VI of Scotland became James I of England, could inherit land in England. The case concerned the relationship between the two distinct kingdoms after James became King of England and after Parliament rejected a Union of England and Scotland. The logic of the case turned on a feudal remnant in English law. Importantly, such a subject had no right to reject the King. The Declaration of Independence was a radical break from the English law of citizenship, asserting that we do, in fact, have the right to reject the King and change our nationality without the King’s consent. We rejected the holding that we owe him fealty by the law of nature. That’s why signing the Declaration was a radical act, and why John Hancock’s emphatic signature was an act of bravado. 

The term “birthright” came up in the first Congress under the new U.S. Constitution in 1789. The question Congress faced concerned the nationality of William Loughten Smith of South Carolina. Smith was in England throughout the Revolution, and his rival for a seat in Congress had challenged his eligibility. Madison said he was a citizen by birth, noting that “it is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage, but, in general, place is the most certain criterion.” “Birthright” came up in his next sentence “Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony.” In other words, Madison used the term “birthright” to emphasize the Smith family’s longstanding connection with the political community of South Carolina. The Smith family of South Carolina being “among the first settlers” of South Carolina. Recall that the best known use of the term “birthright” to Americans in the founding and through the nineteenth century was likely in the story of Jacob and Esau in Genesis in which Esau sold his “birthright”—the right of the first born. Madison’s use was closer to that than to a claim of nationality. 

Interestingly, in his “Homecoming Speech” just before the Lincoln-Douglas debates began, Stephen Douglas quoted a Resolution of the Illinois legislature declaring that liberty is the “birthright of freemen. . . secured to us by the blood of our ancestors.” The question of who was and who was not a citizen, and who, therefore, had the rights and the duties of citizens, was not a matter of “birthright” in America. High immigration and easy terms of naturalization ensured that. It is likely no coincidence that the rise of the term “birthright citizenship” coincides with the rise of the idea of “entitlements” for men, rather than the rights and duties of men and citizens. Back to Madison. Note that he said that place is “in general” the criterion. He did not address the question of how far that “in general” rule of “place” determining nationality extended. It was irrelevant to this case. Similarly the question today is not if the child of a legal resident alien is an American citizen by birth, but rather if that rule extends to the child of someone here on a brief trip, or perhaps to someone here on a semester of study, or other short term situations, (and are all those situations legally the same?), or, to cite another separate case, if it extends to the child of people not legally present on American soil Madison’s words do not help. It is very important to keep this in mind here. If the question is how far “birthright citizenship” extends, when commentators say the question is if “birthright citizenship” exists at all, it is stealing a base. 

This linguistic element of the citizenship debate resembles a phenomenon I see in my primary field, the American Revolution. Part of the reason for the clash between Britain and the colonies was that Parliament was convinced that there was a “British Empire” with a distinct legal structure centered on it (formally, it was the “King in Parliament”). And the colonies were fully subordinate to it. And yet, as John Adams noted, “colonization is casus omissus at common law. There is no such title known in that law.” Moreover, he added, “the terms “British Empire” are not the language of the common law, but the language of newspapers and political pamphlets; that the dominions of the king of Great Britain have no power coextensive with them.” In his book Empire, Richard Koebner notes that the term “British Empire” was not used to describe a legal form until just before the controversies of the 1760s began.  

In his writings, Francis Bernard, the governor of Massachusetts in the early 1760s, became “the first British statesman to endow the concept of the British Empire with a constitutional significance.” In other words, there was no consensus on the constitution of the British Empire. And yet the term “British Empire” was in use. When the question of the constitutional meaning of the term “British Empire” came up, Parliament just assumed that it was sovereign over all British lands, and it had the right to make law “in all cases whatsoever” as the Declaratory Act of 1766 had it. Adams’ point sounded strange to the British leadership class by the 1770s when he raised the issue. Even though the colonies received charters from the King, almost all before the Revolution of 1688, which put Parliament in charge, the belief that Parliament oversaw all British lands was an assumption rather than a reasoned conclusion. As such, it was all but impossible even to get Parliament to discuss the matter. As in the U.S. Congress during the era of the gag rule, they would not even hear petitions questioning their legal authority to impose the Stamp Act. It is very difficult, to say the least, to get people to recognize that core beliefs rest on assumptions that need to be debated.  

I suspect the assumption that the rules of what are now called “jus soli” and “birthright citizenship” is similar, and I also suspect that although Americans likely followed the common law rules in general regarding nationality they quite possibly managed them at the margins, reflecting the difference between a community bound in allegiance to a king who is himself called a “sovereign,” and a nation bound by a Constitution to which we the people have consented.  

The American creed, justifying our break with the King, and the creation of a government “by the consent of the governed,” in the words of the Declaration, is central to American nationalism in a way soil is not. In the American Revolution, we rejected the common law’s holding that one could escape one’s allegiance to the nation only with the King’s consent, and, similarly, the first Congress under the Constitution modified English law regarding the nationality of citizens born abroad. Both reflected the difference between citizens and subjects.  

American law often follows common law, but that does not mean it is exactly the same in all cases on both sides of the water. As Madison noted in the 1790s, there were as many versions of the common law as there were states. Common law was, by definition, always being worked and reworked to suit the particular circumstances of each community to which it applied. It is, after all, a fluid tradition of interpretations, not a code of positive law. Not coincidentally, the idea that common law is “judge made law” dates from the nineteenth century. It is a category error to regard common law as a fixed code of positive law.   

America, of course, has a written constitution, ratified and amended by the people, not a common law constitution. That’s part of the reason why, as Philip Hamburger notes, if one looks at the text of the Fourteenth Amendment and the debates over it, rather than looking at English common law, it is much less clear that the “general rule” was meant to extend as far in American law as it has for the past several decades. Everyone, or just about everyone, agrees that the child of a resident alien, regardless of race, religion, etc, is a child if born in the United States. Residents are, after all, people living in our community, and not just passing through.  

The question at issue today is whether people who are here temporarily are also born as members of our community. Are they part of Madison’s “in general” rule? To what extent did it apply to people, unlike Smith, who had no historical family tie to the community? It applied to resident aliens. But what about a child born to tourists who were just visiting? Justice Story, often cited as an authority in this area, noted that the rule of “place,” to use Madison’s term, “should not apply to the children of parents, who were in itinere [passing through] in the country, or abiding there for temporary purposes.” But, he noted, that qualification is not “universally established.” Before the Civil War, states were, as a general rule, responsible for deciding who was and who was not a citizen at birth. I suspect he had competing state rules in mind, but perhaps he was speaking more generally. Hence, a case or two from one or two states do not settle the question; they do so only if one is looking for confirmation of an assumption rather than reading it from a more open-ended perspective. Yet there is no reason to begin with that assumption. 

The other thing to keep in mind is that federalism did not die with the Fourteenth Amendment, even though the relationship between the federal government and the states changed. Recall that the first sentence of the Fourteenth Amendment says people born citizens are citizens of “the state wherein they reside,” a term of art that was, apparently, noted with approval in the ratification debates in at least a few places. (Scholars are just beginning to study this question). That language, strictly speaking, suggests that the only people the first sentence of the 14^th Amendment is discussing are people who “reside” here.  

What do they mean by “jurisdiction”? Only the kind of jurisdiction that applies to residents. Interestingly, the Claremont Scholars who think the entire debate is off because we replaced the King’s law of allegiance with an American law of social compact are uncomfortable with the implication of this argument. They believe the Fourteenth Amendment defederalized citizenship. Americans are a practical people. We do pay attention to the principles of 1776, but have often used them to modify existing laws rather than to make a legal revolution. In ratifying the Fourteenth Amendment, the American people did not replace state-level citizenship with national citizenship tout court. Instead, we retained an element of state-level citizenship. That would not be a surprise. After all, we are talking about an American people who had just concluded a major civil war in which men marched into battle carrying their state colors and the Star-Spangled Banner, and they marched in regiments organized on a state-by-state basis. Anyone who walks the battlefield at Gettysburg and sees the monuments immediately sees the importance of states to the political identity of the soldiers.   

On the other side, remember that Native Americans who had not chosen to reside as regular parts of our communities remained foreigners under the Fourteenth Amendment, although born inside the United States and subject to American law in many ways. In the twentieth century Congress regularized their status. They were “not taxed,” among other things, per the Fourteenth Amendment. Are people who live in the United States illegally more like them or more like legal immigrants? Apparently, our executive branch has, in the past, granted everyone present in the United States the ability to pay taxes on income earned here via an ITIN (the number used by people who do not have a Social Security number). Those who have stepped up and paid have taken a positive step to carry the common burdens of residency. Failing that, they are, almost by definition, given the current and historical centrality of taxation in American citizenship, outsiders to the community. They live here, but do they “reside” here? Their status is a very difficult question to answer. New England towns used to give non-natives of the town residence rights (including the obligation of the town to provide food, shelter, etc) by something akin to adverse possession after a certain number of years (usually not many). The town had the right to “warn out” non-residents. Failure to do so gave the newcomers residence rights. It is likely that New England native Senator Trumbull, a leader in the creation of the Fourteenth Amendment, had that idea in mind as he worked on it.  

In sum, assuming that the terms “birthright citizenship” and “jus soli” help us reason through questions like these simplifies a complicated case. 

Until this debate began to heat up, there had been relatively little scholarship on how Americans understood the citizenship clause of the Fourteenth Amendment during its ratification. There has been more discussion, although much more can be done, about what was said in Congress. And in our system, in which governments are, as the Declaration of Independence has it, created by “the consent of the governed,” that information is extremely important to have, at least if the consent of the governed is to matter the way it is supposed to in our system. It is important not to read the text of the Constitution as if it was written by and for lawyers. One key challenge of American constitutional law is ensuring that the lawyers who interpret the text keep that reality in mind. Americans are also not political theorists. That’s why we have often approved of language that makes the lives of both law professors and theorists difficult. 

In sum, the assumption that the matter of “birthright citizenship” is settled because the United States follows “jus soli” has given a false certainty to recent practice. The “birthright citizenship” debate is so contentious not only because it involves very important questions of who is and who is not an American citizen by birth, but also because it involves questioning terms of art that are, falsely but doggedly, regarded as long settled terms in this field. Overturning deeply embedded assumptions about what law is and how to interpret it, if that is what the evidence ultimately suggests, will be a heavy lift.  

What about all the children born here who, by now, have been raised to believe they are citizens? The Fourteenth Amendment creates a floor, not a ceiling. Recall that Congress changed the status of Native tribes, as it had the right to do under law. Morally speaking, it would be wrong to kick out people who have regarded themselves as citizens and who have been treated by our governments as citizens. Fortunately, as public reaction to President Trump’s actions suggests (support for ending illegal immigration, and for kicking out illegal immigrants who have committed felonies, but anger at actions beyond that), the American people, being a generous people, are likely to support, even demand, that Congress create a legal mechanism to ensure that we do the right thing by them.  

But that does not mean the American people would not support an effort to change the rule moving forward, nor does it necessarily mean that the Fourteenth Amendment, as understood by the men who wrote and ratified it, would prohibit such a change. To that end, and to truly reopen debate on this issue, it is important to recognize that neither “birthright citizenship” nor “jus soli” was part of the legal world that gave rise to the Fourteenth Amendment. Given the strong presumption that “birthright citizenship” exists, the Trump Administration’s move to limit the scope of soil as the basis of citizenship is likely to fail. Had the administration only begun small, perhaps only raised the issue with regard to the children of tourists on a short stay, then the discussion might have been “how far does birthright citizenship extend,” rather than “does birthright citizenship exist.” In other words, the executive order is too broad in scope, and too little legal and historical legwork has been done to carry a majority on the Court against a strong consensus at the bar. 

Richard Samuelson is an Associate Professor of Government at Hillsdale College’s Washington, D.C., campus.