Federal Observer
P.O. Box=20 579
Litchfield Park, AZ = 85340
(623)=20 = 327-1778

July 30, = 2008

Vol. 08, No.=20 211

Erler: Birthright Citizenship and Dual=20 Citizenship

Harbingers of Administrative Tyranny

By Edward J. Erler

Edward J.=20 Erler

The following is adapted = from a speech=20 delivered at a Hillsdale College National Leadership = Seminar=20 on February 12, 2008, in Phoenix,=20 Arizona.

BIRTHRIGHT CITIZENSHIP
=85the policy = whereby the=20 children of illegal aliens born within the = geographical limits=20 of the United States are entitled to American = citizenship - is=20 a great magnet for illegal immigration. Many believe = that this=20 policy is an explicit command of the Constitution, = consistent=20 with the British common law system. But this is simply = not=20 true.

The framers of the Constitution were, of course,=20 well-versed in the British common law, having learned = its=20 essential principles from William Blackstone=92s = Commentaries=20 on the Laws of England. As such, they knew that = the very=20 concept of citizenship was unknown in British common = law.=20 Blackstone speaks only of "birthright subjectship" or=20 "birthright allegiance," never using the terms citizen = or=20 citizenship. The idea of birthright subjectship = is=20 derived from feudal law. It is the relation of master = and=20 servant; all who are born within the protection of the = king=20 owe perpetual allegiance as a "debt of gratitude." = According=20 to Blackstone, this debt is "intrinsic" and "cannot be = forefeited, cancelled, or altered." Birthright = subjectship=20 under the common law is thus the doctrine of perpetual = allegiance.

America=92s Founders rejected this doctrine. The = Declaration=20 of Independence, after all, solemnly proclaims that = "the good=20 People of these Colonies. . . are Absolved from all = Allegiance=20 to the British Crown, and that all political = connection=20 between them and the State of Great Britain, is and = ought to=20 be totally dissolved." According to Blackstone, the = common law=20 regards such an act as "high treason." So the common = law - the=20 feudal doctrine of perpetual allegiance - could not = possibly=20 serve as the ground of American (i.e., republican)=20 citizenship. Indeed, the idea is too preposterous to=20 entertain!

James Wilson, a signer of the Declaration of = Independence=20 and a member of the Constitutional Convention as well = as a=20 Supreme Court Justice, captured the essence of the = matter when=20 he remarked: "Under the Constitution of the United = States=20 there are citizens, but no subjects." The = transformation of=20 subjects into citizens was the work of the Declaration = and the=20 Constitution. Both are premised on the idea that = citizenship=20 is based on the consent of the governed - not the = accident of=20 birth.

Who is a Citizen?
Citizenship, of course, = does=20 not exist by nature; it is created by law, and the=20 identification of citizens has always been considered = an=20 essential aspect of sovereignty. After all, the = founders of a=20 new nation are not born citizens of the new nation = they=20 create. Indeed, this is true of all citizens of a new = nation -=20 they are not born into it, but rather become citizens = by=20 law.

Although the Constitution of 1787 mentioned = citizens, it=20 did not define citizenship. It was in 1868 that a = definition=20 of citizenship entered the Constitution, with the = ratification=20 of the Fourteenth Amendment. Here is the familiar = language:=20 "All persons born or naturalized in the United States, = and=20 subject to the jurisdiction thereof, are citizens of = the=20 United States and of the State wherein they reside." = Thus=20 there are two components to American citizenship: = birth or=20 naturalization in the U.S. and being subject to the=20 jurisdiction of the U.S. We have somehow come today to = believe=20 that anyone born within the geographical limits of the = U.S. is=20 automatically subject to its jurisdiction. But this = renders=20 the jurisdiction clause utterly superfluous and = without force.=20 If this had been the intention of the framers of the=20 Fourteenth Amendment, presumably they would simply = have said=20 that all persons born or naturalized in the United = States are=20 thereby citizens.

Indeed, during debate over the amendment, Senator = Jacob=20 Howard of Ohio, the author of the citizenship clause,=20 attempted to assure skeptical colleagues that the new = language=20 was not intended to make Indians citizens of the U.S. = Indians,=20 Howard conceded, were born within the nation=92s = geographical=20 limits; but he steadfastly maintained that they were = not=20 subject to its jurisdiction because they owed = allegiance to=20 their tribes. Senator Lyman Trumbull, chairman of the = Senate=20 Judiciary Committee, rose to support his colleague, = arguing=20 that "subject to the jurisdiction thereof" meant "not = owing=20 allegiance to anybody else and being subject to the = complete=20 jurisdiction of the United States." Jurisdiction = understood as=20 allegiance, Senator Howard interjected, excludes not = only=20 Indians but "persons born in the United States who are = foreigners, aliens, [or] who belong to the families of = ambassadors or foreign ministers." Thus "subject to = the=20 jurisdiction" does not simply mean, as is commonly = thought=20 today, subject to American laws or American courts. It = means=20 owing exclusive political allegiance to the U.S.

Consider as well that in 1868, the year the = Fourteenth=20 Amendment was ratified, Congress passed the = Expatriation Act.=20 This act permitted American citizens to renounce their = allegiance and alienate their citizenship. This piece = of=20 legislation was supported by Senator Howard and other = leading=20 architects of the Fourteenth Amendment, and = characterized the=20 right of expatriation as "a natural and inherent right = of all=20 people, indispensable to the enjoyment of the rights = of life,=20 liberty, and the pursuit of happiness." Like the idea = of=20 citizenship, this right of expatriation is wholly = incompatible=20 with the common law understanding of perpetual = allegiance and=20 subjectship. One member of the House expressed the = general=20 sense of the Congress when he proclaimed: "The old = feudal=20 doctrine stated by Blackstone and adopted as part of = the=20 common law of England . . . is not only at war with = the theory=20 of our institutions, but is equally at war with every=20 principle of justice and of sound public policy." The = common=20 law established what was characterized as an = "indefensible=20 doctrine of indefeasible allegiance," a feudal = doctrine wholly=20 at odds with republican government.

In sum, this legacy of feudalism - which we today = call=20 birthright citizenship - was decisively rejected as = the ground=20 of American citizenship by the Fourteenth Amendment = and the=20 Expatriation Act of 1868. It is absurd, then, to = believe that=20 the Fourteenth Amendment confers the boon of American=20 citizenship on the children of illegal aliens. Nor = does the=20 denial of birthright citizenship visit the sins of the = parents=20 on the children, as is often claimed, since the = children of=20 illegal aliens born in the U.S. are not being denied = anything=20 to which they have a right. Their allegiance should = follow=20 that of their parents during their minority. = Furthermore, it=20 is difficult to fathom how those who defy American law = can=20 derive benefits for their children by their = defiance_or that=20 any sovereign nation would allow such a thing.

There is no Supreme Court decision squarely holding = that=20 children of illegal aliens are automatically citizens = of the=20 U.S. An 1898 decision, U.S. v. Wong Kim Ark, = held by a=20 vote of 5-4 that a child of legal resident = aliens is=20 entitled to birthright citizenship. The Wong Kim = Ark=20 decision, however, was based on the mistaken premise = that the=20 Fourteenth Amendment adopted the common law system of=20 birthright citizenship. The majority opinion did not = explain=20 how subjects were miraculously transformed into = citizens within the common law. Justice Gray, = writing=20 the majority decision, merely stipulated that = "citizen" and=20 "subject" were convertible terms - as if there were no = difference between feudal monarchy and republicanism. = Indeed,=20 Chief Justice Fuller wrote a powerful dissent in the = case=20 arguing that the idea of birthright subjectship had = been=20 repealed by the American Revolution and the principles = of the=20 Declaration.

The constitutional grounds for the majority opinion = in=20 Wong Kim Ark are tendentious and it could = easily be=20 overturned. This would, of course, require a proper=20 understanding of the foundations of American = citizenship, and=20 whether the current Supreme Court is capable of such = is open=20 to conjecture. But in any case, to say that children = of legal=20 aliens are entitled to citizenship is one thing; after = all,=20 their parents are in the country with the permission = of the=20 U.S. It is entirely different with illegal aliens, who = are=20 here without permission. Thus repeal of the current = policy of=20 birthright citizenship for the children of illegal = aliens=20 would not require a constitutional amendment.

We have seen that the framers of the Fourteenth = Amendment=20 unanimously agreed that Indians were not "subject to = the=20 jurisdiction" of the U.S. Beginning in 1870, however, = Congress=20 began to pass legislation offering citizenship to = Indians on a=20 tribe by tribe basis. Finally, in 1923, there was a = universal=20 offer to all tribes. Any Indian who consented could = become an=20 American citizen. This citizenship was based on = reciprocal=20 consent: an offer on the part of the U.S. and = acceptance on=20 the part of an individual. Thus Congress used its = legislative=20 powers under the Fourteenth Amendment to determine who = was=20 within the jurisdiction of the U.S. It could make a = similar=20 determination today, based on this legislative = precedent, that=20 children born in the U.S. to illegal aliens are not = subject to=20 American jurisdiction. A constitutional amendment is = no more=20 required now than it was in 1923.

Dual Citizenship and Decline
The same = kind of=20 confusion that has led us to accept birthright = citizenship for=20 the children of illegal aliens has led us to tolerate = dual=20 citizenship. We recall that the framers of the = Fourteenth=20 Amendment specified that those who are naturalized = must owe=20 exclusive allegiance to the U.S. to be included = within=20 its jurisdiction. And the citizenship oath taken today = still=20 requires a pledge of such allegiance. But in practice = dual=20 citizenship - and dual allegiance - is allowed. This = is a sign=20 of the decline of American citizenship and of America = as a=20 nation-state.

It is remarkable that 85 percent of all immigrants = arriving=20 in the U.S. come from countries that allow - and = encourage -=20 dual citizenship. Dual citizens, of course, give the = sending=20 countries a unique political presence in the U.S., and = many=20 countries use their dual citizens to promote their own = interests by exerting pressure on American policy = makers. Such=20 foreign meddling in our internal political affairs has = in fact=20 become quite routine. Thus we have created a situation = where a=20 newly naturalized citizen can swear exclusive = allegiance to=20 the U.S. while retaining allegiance to a vicious = despotism or=20 a theocratic tyranny.

Elite liberal opinion has for many years considered = the=20 sovereign nation-state as an historical anachronism in = an=20 increasingly globalized world. We are assured that = human=20 dignity adheres to the individual and does not require = the=20 mediation of the nation-state. In this new universe of = international norms, demands on the part of the = nation-state=20 to exclusive allegiance or for assimilation violate = "universal=20 personhood." In such a universe, citizenship will = become=20 superfluous or even dangerous.

Those who advocate open borders tend to share this=20 cosmopolitan view of transnational citizenship. = Illegal=20 immigrants, they say, are merely seeking to support = their=20 families and improve their lives. Borders, according = to them,=20 should not stand in the way of "family values" - those = universal "values" that refuse to recognize the = importance or=20 relevance of mere political boundaries. Somehow, for = those who=20 hold these views, political exclusivity and the = requirement of=20 exclusive allegiance are opposed to these universal = "values"=20 if not to human decency itself.

Mexican President Felipe Calderon was in California = recently pushing for more liberal immigration = policies. He=20 assured his fellow citizens who reside in the U.S. = that he is=20 "actively working to defend their human rights." "No = matter=20 their immigration status," Calderon said, "they are = human=20 beings with dignity and rights that should be = respected. We=20 are working, with the full effort of the [Mexican] = government,=20 to bring a halt to the campaigns that harass = migrants."=20 However much Calderon may be worried about the human = rights of=20 his fellow citizens, he is fully cognizant of the fact = that=20 Mexico=92s economy depends on the remittances of its = citizens=20 working abroad. These remittances have become = Mexico=92s second=20 largest source of revenue, trailing only its rapidly = declining=20 oil revenues. It is far easier - and politically safer = - for=20 Mexico to export its poverty than to reform its own = political=20 and economic system.

We must constantly remind ourselves, however, of = the=20 historical fact that constitutional democracy has = existed only=20 in the nation-state, and that the demise of the = nation-state=20 will almost certainly mean the demise of = constitutional=20 democracy. No one believes that the European Union or = similar=20 organizations will ever produce constitutional = government.=20 Indeed, the EU is well on its way to becoming an=20 administrative tyranny. Nor would the homogeneous = world-state=20 - the EU on a global scale - be a constitutional = democracy; it=20 would be the administration of "universal personhood" = without=20 the inconvenience of having to rely on the consent of = the=20 governed. The doctrine of birthright citizenship and = the=20 acceptance of dual citizenship are signs that we in = the U.S.=20 are on the verge of reinstituting feudalism and = replacing=20 citizenship with the master-servant relationship. The=20 continued vitality of the nation-state and of = constitutional=20 government depends on the continued vitality of = citizenship,=20 which carries with it exclusive allegiance to what the = Declaration calls a "separate and equal" nation. = Unless we=20 recover an understanding of the foundations of = citizenship, we=20 will find ourselves in a world where there are = subjects but no=20 citizens.

July 2008

Published on The Federal Observer, July 21, = 2008

~ The Author ~

Edward J. Erler is professor of political=20 science at California State University, San = Bernardino, and=20 a senior fellow of the Claremont Institute. He = earned his=20 B.A. from San Jose State University and his M.A. and = Ph.D.=20 in government from Claremont Graduate School. He has = published numerous articles on constitutional topics = in=20 journals such as Interpretation, the Notre = Dame=20 Journal of Law, and the Harvard Journal of = Law and=20 Public Policy. He was a member of the California = Advisory Commission on Civil Rights from 1988-2006 = and=20 served on the California Constitutional Revision = Commission=20 in 1996. He has testified before the House Judiciary = Committee on the issue of birthright citizenship and = is the=20 co-author of The Founders on Citizenship and=20 Immigration.

Source: Hillsdale=20 College.edu

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