Birthright Citizenship Isn't Real
Authored by Ryan McMaken via The Mises Institute,
Donald Trump yesterday issued a new executive order declaring that so-called “birthright citizenship” does not apply to the children of foreign nationals residing illegally within the United States.
The order reads, in part:
(a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
There is a common misconception in the United States that the Fourteenth Amendment to the US Constitution mandates that the US government grant citizenship to anyone and everyone born within the borders of the United States.
This misconception is largely due to the fact that, for several decades, US courts and technocrats have conspired to redefine the original meaning of the amendment, and thus apply it to every child of every tourist and foreign national who happens to be born on this side of the US border.
Some have even attempted to define access to birthright citizenship as some sort of natural right. This is a common tactic among some libertarians who have twisted the idea of property rights to extend the idea of a “right” to the governmental administrative act known as “naturalization.”
Even when looking at the issue strictly in terms of procedural legal rights, however, it is clear that the current definition of birthright citizenship is in conflict with the law as originally intended and interpreted.
To understand the central point of contention, let’s note the text of the Fourteenth Amendment itself, which states that citizenship shall be extended to: “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof…”
Note that there are two qualifying phrases here.
The persons in question must be both born or naturalized in the United States and subject to the jurisdiction thereof.
It is this second qualification that remains a matter of debate.
What does it mean to be subject to the jurisdiction of the United States? This issue is explained by legal scholar Hans Spakovsky who notes that advocates of granting birthright citizenship to anyone born in the United States
erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.
But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.
The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.
This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.
Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.
The courts themselves have historically recognized this distinction, noting that the whole purpose of the Fourteenth Amendment was to grant citizenship to former slaves who obviously were not connected to any other country or sovereign. In the Slaughter-House Cases, 83 U.S. 36 (1872), the court ruled:
That [the Fourteenth Amendment’s] main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
This was further confirmed by the Court in 1884 (in Elk v. Wilkins, 112 U.S. 94) when the Court stated that the idea of birthright citizenship did not apply to Native American tribes which were nonetheless within the borders of the United States:
“[The Fourteenth Amendment] contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is, not 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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power,) although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”
In short, the court recognized that the tribal lands were within the legal jurisdiction of the United States, but this did not mean that everyone born within those borders was automatically granted citizenship. Those tribal members believed to be subjects of “foreign” tribal governments were therefore not “subject to the jurisdiction” of the United States in a way that conferred automatic citizenship.
Congress further reinforced the court’s interpretation by adopting new legislation granting citizenship to all tribal members in 1924. Had the Fourteenth Amendment really granted automatic citizenship to everyone born within the borders of the United States, no such legislation would have been necessary.
In the year 2024, however, advocates of the new and novel interpretation of “birthright citizenship” insist that the child of foreign nationals automatically becomes a citizen of the United States based entirely on the location of birth.
This is a rather odd way of doing things. In historical practice nearly everywhere, citizenship depends largely on the citizenship of parents, or on the parents’ place of birth, and not on the place where parents happen to temporarily reside when the child is born. Thus, historically and globally, the child of foreign nationals is himself a foreign national. This is true, for instance, of children born to American nationals overseas.
Only in the United States does there appear to be widespread confusion about this.
Of course, some libertarian or “classical liberal” readers might argue that such legal precedents are meaningless, and that everyone “deserves” the legal “right” of citizenship. How citizenship is any sort of natural right or property right, however, remains a mystery. Has the child somehow “homesteaded” his citizenship? Obviously not. Has the child entered into a contract with a legitimate property owner to acquire the “property” of citizenship? To ask these questions is to see the absurdity of them.
On the other hand, it is important to note that a lack of citizenship in any particular place does not negate anyone’s property rights. Real property rights—what Rothbard called “universal rights”—exist regardless of one’s citizenship, where he lives, or where he happens to have been born.
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