QUESTION: Is Birthright Citizenship granted to all children born on U.S. soil controlled by ‘common law,’ or ‘statutes and the constitution.’

Do you recall the advertising for CERTS, ‘Is it a Breath Mint, or a Candy Mint?’ This is the sort of question that vexes the United States after President Trump ordered no Birthright Citizenship for children of illegal aliens. The ACLU has already filed a complaint and the issue will be heard by the judiciary. The case will reopen the debate of whether the 14^th Amendment’s ‘born in the United States’ clause is all inclusive to  children born on U.S. soil, or whether it was only granting civil rights and citizenship to freed slaves.

What is at risk is whether the Supreme Court will socially engineer the law, following Justice Hugh’s hubris of, “the Constitution is what the judges say it means . . .” Or, will the court rely on the original intent of the 14^th Amendment and its legislative history, and explanation of the amendment’s actual authors during ratification hearings.

“Today, the determination of national status in most parts of the world, as for the Virginia colonists in 1606, is a matter of positive law-either statutory or constitutional. But Calvin’s Case began a three-century period in which the rule determining citizenship in the English-speaking world, a rule based on place of birth, was self-consciously the product of judicial decisions.” [1] ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’ Polly J. Price, Yale Journal of Law & the Humanities Vol.9: 73, 77

The cited law review juxtaposes the history of ‘common law’ or judicial determination of jus soli, ‘place of birth,’ against the statutory or constitutional jus sanguinis ‘right of blood,’ i.e., sanguinity from one parent, usually the father.[2]

In the United States and Britain (contrary to Price’s erroneous analysis), their models of citizenship in 1790 and 1772 statutes respectively were strictly jus sanguinis. United States nationality law only departed from this in 1866 and 1869, reverting to jus soli, but only as a resort to cure the fact that freed slaves had fathers without nationality to confer by sanguinity. Without any possible natural succession of allegiance from the father, the 1866 Civil Rights Act and the 14^th Amendment resorted to ‘born in the United States,’ on the condition that the father had no subjection to any foreign power, i.e.,’ under the jurisdiction thereof.’ These conditions were both statutory and constitutional, not determined by any common law.[3]

So, the statute and constitution relied on both principles, the primary one being through the father. In the case of freed slaves, no ‘subjection to foreign power’ nor U.S. citizenship existed, so a secondary means of determining national allegiance was necessary, ‘place of birth.’ Conversely, if the father was subject to a foreign power, the child was not conferred U.S. citizenship by ‘soil,’ or ‘place of birth.’

The ‘common law’ principle from feudal times (jus feudale) determined Calvin’s Case (1608) to resolve the conundrum of an English monarch ascending to the throne of Scotland in 1603, Calvin being born under the Scottish king. The court under Judge Coke had to apply the English king’s dominion over Scotland to confer Calvin all rights, privileges, and protections of the English crown based on his place of birth now coexisting under an English monarch, Calvin’s acquisition of English national allegiance conferred post nati, or ‘after birth.’ Calvin’s was a unique case out of unusual historic circumstances, and therefore not universally or generally applicable. See Calvin’s Case quote in Appendix.

This was the argument avoided in the U.S. Supreme Court case, Wong Kim Ark (1898), that declared in its decision that the ‘common law’ tradition from Great Britain of ‘place of birth,’ missing from U.S. legislation or its constitution, was a glaring omission of ‘a fundamental principle of citizenship’[4] and therefore within the power of the judiciary to add. Some may argue that this was outside the judiciary’s jurisdiction, in direct conflict with Article I Section 8 of the constitution, giving congress plenary power over rules of naturalization.[5] It was also in violation of stare decisis, precedent in case law the Wong Kim Ark court decided to ignore.[6]

The problem in relying on feudal era British common law, or even the 1844 New York State case Lynch vs Clark, is that under rules of jurisprudence neither case could be relied on as precedent, and following those judgments entirely at the discretion (or abuse of discretion) of that particular court. Those judgments were special circumstances and the courts in Wong Kim Ark and Lynch may have had personal motivation or prejudice to rule in favor of the plaintiff. In Wong, denying the right of citizenship had the appearance of racism or some injustice, so the court denied the superior authority in treaty, statute, and the constitution to grant children of aliens citizenship in equity, or to be fair. In Lynch, the court was given the task to grant or deny a substantial inheritance to the daughter of aliens, and granting her ‘birthright citizenship’ was the shortest path to ‘equitable’ disbursement.

In all arguments relying on ‘English Common Law,’ the decision was in denial of the constitution, i.e., the highest law of the land, and statutes created under plenary constitutional authority of the legislature. The decisions not only abrogated superior precedent, authority, and other evidence of legislative intent, but were in direct violation of both English and U.S. naturalization laws which relied on jus sanguinis, the father’s natural conferring of citizenship in the manner of succession, not the despotic declaration of a ‘monarch’ or judicial body.

Why do we have a constitution and legislated acts, when a court can just step in and reincarnate an ancient feudal judicial case from a foreign monarchy in order to sidestep the law of the land?

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[1] Assistant Professor, Emory University School of Law. B.A., M.A. Emory University; J.D. Harvard Law School. (https://openyls.law.yale.edu/bitstream/handle/20.500.13051/7701/06_9YaleJL_Human73_1997_.pdf?sequence=2

[2] 1940 INA §301(g) introduced post nati ‘citizenship at birth’ to children of U.S. citizen mothers who repatriated to the United States having children of foreign fathers.

^[3] John Eastman, Henry Salvatori Professor of Law and Community Service, at Chapman University’s Fowler School of Law: “Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.” (See in the quote from Sen. Wade where he admits the Civil Rights Act’s ‘without allegiance to any foreign power’ settled the matter of which children born on U.S. soil were not granted citizenship.) New York Times UPDATED December 22, 2015 https://tinyurl.com/ydczevzt  (shortened link to New York Times Guest Opinion Page) See also http://ashbrook.org/publications/oped-eastman-04-hamdi/

[4] [N]o act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship. Wong Kim Ark, (p704)

[5] The power, granted to Congress by the Constitution, “to establish an uniform rule of naturalization” was long ago adjudged by this court to be vested exclusively in Congress. Chirac v. Chirac (1817), 2 Wheat. 259.

[6] Ludlam v. Ludlam, 26 N.Y. 356 (1883) “Now, upon what ground can allegiances in such cases be claimed? If natural allegiance or allegiance by birth, does not depend upon boundaries or place, as Calvin’s case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obligation than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist.”

Appendix

Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608) “[A]ll those who were born under one
natural obedience while the realms were united under one sovereign should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such a matter ex post facto.” As cited in, https://www.chapmanlawreview.com/wp-content/uploads/2020/11/1-1_StockandKazemi.pdf