The Case Against Birthright Citizenship

One of Trump’s most daring executive orders now declares that citizenship rights should be denied to children whose mother under current law was “unlawfully present in the United States” or whose presence in the United States was “lawful but temporary,” but only if that person’s father “was not a United States citizen or lawful permanent resident at the time of said person’s birth.”  That general command was subject to two key qualifications.  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.

As a matter of first principle, it is hard to think of any good reason why legal and illegal conduct should be treated identically.  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 James Ho, now a Fifth Circuit Court judge is 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 opinion written in response to a complaint filed by the states of Washington, Arizona, Illinois, and Oregon, held that there was a “strong likelihood” that the plaintiffs would win on the merits, citing, without analysis, as his key legal authority United States v. Wong Kim Ark (1898).

It turns out that he should have looked closer because that decision at no point addressed, either explicitly—the word “illegal” is not used in the opinion—or implicitly, the legal status of the children born in the United States of illegal aliens.  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.  The gist of Justice Horace Gray’s 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.  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.  The same argument applies to children whose mothers come late in pregnancy (often called, disparagingly, anchor babies, to the United States for the sole purpose of taking advantage of birthright citizens.

 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.  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.  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.

Yet given the weak historical record, the overall understanding of Wong Kim Ark depends 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."

That language comes hard on the heels of the Civil Rights Act of 1866 which opens with this declaration:

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 . . .

The 1866 Act thus includes foreigners on the list of persons, along with Indians not taxed.  Diplomats are on that list. The Fourteenth Amendment contains no enumeration of excluded parties but does contain the phrase “subject to the jurisdiction thereof” that points to a set of unenumerated exclusions.  It is widely agreed that this phrase includes diplomats and their families who owe loyalty to their sovereign.  But if that were the only class of cases covered, the exception to citizenship language could have been explicit.  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.  Yet the early case law speaks to these issues against the claim of birthright citizenship.  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.  Thus, Elk v. Wilkins (1884) held that the Indian plaintiff was not an American citizen because the Citizenship Clause required that he had to be “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.” Thereafter, it took The Citizens Act of 1924 to make by statute members of Indian tribes citizens of the United States.  Members of Indian tribes occupy a complex position under American law, which followed, according to Elk that “an 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.” And the same position had also been taken in the well-known Slaughter-House Cases (1872). Speaking about the Citizenship Clause in the wake of Dred Scott v. Sandford (1857), they wrote: “That its 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.”  Both cases were cited and distinguished in Wong Kim Ark, which is no surprise since the same Supreme Court Justice, Horace Gray, wrote both Elk and Wong Kim Ark.

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.  That issue received extensive discussion in Minor v. Happersett (1875), where the legal question presented was whether women could be citizens of the United States, which held that “it did not need this amendment to give them that position.”  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 “male inhabitants” in dealing with the new rules for the apportionment of representatives in the United States.

Minor 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.” 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 Minor, which frames, as I have long argued, the meaning of the term “citizen” 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. 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 influential in the period just after the Civil War, contained many maxims of justice, including ex turpi causa non oritur actio, “out of dishonorable cause, no action arises”, 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. 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.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013.