{"id":107050,"date":"2025-01-28T10:19:46","date_gmt":"2025-01-28T16:19:46","guid":{"rendered":"https:\/\/milesfortis.com\/?p=107050"},"modified":"2025-01-28T10:36:50","modified_gmt":"2025-01-28T16:36:50","slug":"107050","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=107050","title":{"rendered":""},"content":{"rendered":"

The Case Against Birthright Citizenship<\/a><\/p>\n

Trump\u2019s executive order stands on a firmer footing than its vocal critics acknowledge.<\/p>\n

One of Trump\u2019s most daring executive\u00a0orders<\/a>\u00a0now declares that citizenship rights should be denied to children whose mother under current\u00a0law<\/a>\u00a0was \u201cunlawfully present in the United States\u201d or whose presence in the United States was \u201clawful but temporary,\u201d but only if that person\u2019s father \u201cwas not a United States citizen or lawful permanent resident at the time of said person\u2019s birth.\u201d\u00a0 That general command was subject to two key qualifications.\u00a0 The first is that it did not take effect until 30 days after the order, which grandfathered out of the E.O. all individuals who became birthright citizens as the children of both illegal aliens and sojourners into the U.S. The E.O. rightly did nothing to undo the current status whereby the children of lawful permanent residents were entitled to obtain the documents needed to certify their citizenship.<\/p>\n

<\/p>\n

As a matter of first principle, it is hard to think of any good reason why legal and illegal conduct should be treated identically.\u00a0 A person who kills without justification or excuse is a murderer, who is properly treated quite differently from someone who kills in self-defense. Indeed, the entire civil and criminal law is organized to suppress illegal conduct and to support legal conduct. But the opposite is true with birthright citizenship, which gives a strong spur for illegal conduct. Therefore, to the uninitiated, it should come as a surprise that the dominant view in the United States, ably expressed by\u00a0James Ho<\/a>, now a Fifth Circuit Court judge\u00a0is that the history and text of the Fourteenth Amendment require the constitutional protection of birthright citizenship, by arguments from text and history, without asking about the undesirable incentive structures created by these rules. Indeed, that position is so engrained in American legal culture that federal court Judge and Reagan appointee John Coughenour, in a short\u00a0opinion<\/a>\u00a0written in response to a\u00a0complaint<\/a>\u00a0filed by the states of Washington, Arizona, Illinois, and Oregon, held that there was a \u201cstrong likelihood\u201d that the plaintiffs would win on the merits, citing, without analysis, as his key legal authority\u00a0United States v. Wong Kim Ark<\/em><\/a>\u00a0(1898).<\/p>\n

It turns out that he should have looked closer because that decision at no point addressed, either explicitly\u2014the word \u201cillegal\u201d is not used in the opinion\u2014or implicitly, the legal status of the children born in the United States of illegal aliens.\u00a0 Rather, that case dealt explicitly with the common situation where the plaintiff was the child of lawful permanent aliens in the United States who had long engaged in a lawful business and were denied the right to become citizens under the Chinese Exclusion statute.\u00a0 The gist of Justice Horace Gray\u2019s opinion was that their son could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country.\u00a0 There has been no serious discussion in the judicial and academic literature supporting citizenship for illegal aliens that addresses the obvious perverse incentives of encouraging illegal immigration by allowing the parents to have their new-born children profit from these parental wrongs.\u00a0 The same argument applies to children whose mothers come late in pregnancy (often\u00a0called<\/a>, disparagingly, anchor babies) to the United States for the sole purpose of taking advantage of birthright citizens.<\/p>\n

On the historical front, there were no restrictions on immigration prior to the Civil War so there is no body of law that deals with it.\u00a0 But the problem of the sojourner had to come up frequently, and there is no record of any parent claiming that their children born in the United States were citizens, so on one half the problem, the historical record is clearly against the claim.\u00a0 And as illegality is, if anything, a more serious offense, it seems clear that if that problem had arisen, there is no reason to think that citizenship would have been granted.<\/p>\n

Yet given the weak historical record, the overall understanding of\u00a0Wong Kim Ark<\/em>\u00a0depends heavily on the key text of the Citizenship Clause of the Fourteenth Amendment: “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.”<\/p>\n

That language comes hard on the heels of the\u00a0Civil Rights Act<\/a>\u00a0of 1866 which opens with this declaration:<\/p>\n

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery . . .<\/strong><\/span><\/p><\/blockquote>\n

The 1866 Act thus includes foreigners on the list of persons, along with Indians not taxed.\u00a0 Diplomats are on that list. The Fourteenth Amendment contains no enumeration of excluded parties but does contain the phrase \u201csubject to the jurisdiction thereof\u201d that points to a set of unenumerated exclusions.\u00a0 It is widely agreed that this phrase includes diplomats and their families who owe loyalty to their sovereign.\u00a0 But if that were the only class of cases covered, the exception to citizenship language could have been explicit.\u00a0 And it would be odd in the extreme if there were any reversal on foreigners, especially illegal aliens and sojourners, without some explicit notice of the point.\u00a0 Yet the early case law speaks to these issues against the claim of birthright citizenship.\u00a0 Thus, from the outset, it has never been disputed that members of the Indian tribes within the United States did not obtain citizenship of this clause.\u00a0 Thus,\u00a0Elk v. Wilkins<\/em>\u00a0(1884) held that the Indian plaintiff was not an American citizen because the Citizenship Clause required that he had to be \u201cnot merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.\u201d Thereafter, it took\u00a0The Citizens Act<\/a>\u00a0of 1924 to make by statute members of Indian tribes citizens of the United States.\u00a0 Members of Indian tribes occupy a complex position under American law, which followed, according to\u00a0Elk that\u00a0<\/em>\u201can emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.\u201d And the same position had also been taken in the well-known\u00a0Slaughter-House Cases<\/em><\/a>\u00a0<\/em>(1872)<\/em>. Speaking about the Citizenship Clause in the wake of\u00a0Dred Scott v. Sandford<\/em><\/a>\u00a0(1857), they wrote: \u201cThat its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, \u2018subject to its jurisdiction,\u2019 was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.\u201d\u00a0 Both cases were cited and distinguished in\u00a0Wong Kim Ark<\/em>, which is no surprise since the same Supreme Court Justice, Horace Gray, wrote both\u00a0Elk<\/em>\u00a0and\u00a0Wong Kim Ark<\/em>.<\/p>\n

At this point, one key analysis turns on the history surrounding using the term citizenship before adopting the Fourteenth Amendment. That term is used in the original Constitution without any explicit definition, so at this, it is widely agreed that the analysis turns on the standard use of that term in the United States and elsewhere, including the English common law.\u00a0 That issue received extensive discussion in\u00a0Minor v. Happersett<\/em><\/a>\u00a0(1875), where the legal question presented was whether women could be citizens of the United States, which held that \u201cit did not need this amendment to give them that position.\u201d\u00a0 It then concluded on the specific question that citizenship was a matter for states to determine and that, historically, it was common for states to restrict voting rights to male citizenship, a point that was echoed in Section 2 of the Fourteenth Amendment, which refers to \u201cmale inhabitants\u201d in dealing with the new rules for the apportionment of representatives in the United States.<\/p>\n

Minor\u00a0<\/em>also included an extensive general discussion of how any person, male or female, natural or naturalized, acquired the attributes of citizens from the time of the initial ratification in 1787 ratification. It then allegiance and protection are, in this connection, reciprocal obligations.\u201d<\/p>\n

Neither part of this equation applies to either illegal aliens or to sojourners, so it is no surprise that neither group forms any part of the discussion in\u00a0Minor,<\/em>\u00a0which frames, as I have long\u00a0argued<\/a>, the meaning of the term \u201ccitizen\u201d as it is used in the first two clauses of Section 1 of the Fourteenth Amendment that draws an explicit distinction between citizens and persons, noting that only citizens are entitled to the greater protection of privileges and immunities, which include the right to enter any occupation and to own property, in contrast to the basic rights afforded to all persons namely, to avoid arbitrary loss of life, liberty or property, or be subject to the unequal protection of the laws.<\/p>\n

The second set of constitutional protections must be given to illegal aliens and sojourners, while the privileges and immunities clause does not. Nor should any of this come as a surprise because the international backdrop to the Constitution, which was far more\u00a0influential<\/a>\u00a0in the period just after the Civil War, contained many maxims of justice, including\u00a0ex turpi causa non oritur actio<\/em><\/a>, \u201cout of dishonorable cause, no action arises\u201d, covers the case where any person uses his or her illegal act to advance the position of his child. No one at the time or now has advanced a coherent explanation as to why birthright citizenship is desirable as a matter of principle.<\/p>\n

So why assume that it was adopted silently through the back door? Judge Coughenour and the many other judges and justices who will be asked to review this critical issue have their work cut out to confront the many textual and historical challenges to the birthright citizenship claim.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Case Against Birthright Citizenship Trump\u2019s executive order stands on a firmer footing than its vocal critics acknowledge. One of Trump\u2019s most daring executive\u00a0orders\u00a0now declares that citizenship rights should be denied to children whose mother under current\u00a0law\u00a0was \u201cunlawfully present in the United States\u201d or whose presence in the United States was \u201clawful but temporary,\u201d but … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[79,12],"tags":[],"class_list":["post-107050","post","type-post","status-publish","format-standard","hentry","category-government","category-immigration"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/107050","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=107050"}],"version-history":[{"count":3,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/107050\/revisions"}],"predecessor-version":[{"id":107053,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/107050\/revisions\/107053"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=107050"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=107050"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=107050"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}