David Barulich writes on current political events and Constitutional Reform at TheUSRecon. His work has appeared in the LA Times, The Federalist, Education Week, LA Daily News, and other publications covering politics, fiscal policy, immigration, and education.  He resides in Pasadena, CA.

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Introduction

The US Constitution should be the locus for defining US Citizenship, not Congress.  Citizenship is a foundational concept that should be outside the boundary of political manipulation for partisan advantage.  Indeed, a direct line could be drawn between the rise and persistent popularity of Donald Trump and the immigration policies followed by his predecessors and successor. 

With several examples, I will demonstrate that we desperately need a Citizenship Amendment that could end all the ambiguities in our laws surrounding Citizenship, and thereby remove all the oxygen supplying this ugly conflagration in our political discourse. 

Exploitation of Rules for Naturalization of Citizenship

Suppose that a President refused to enforce immigration laws, and he allowed tens of thousands of migrants to stream across the border.  Then his allies in Congress passed legislation to grant the illegal migrants US citizenship.  Then they offered generous welfare programs to these new citizens to induce their political support in elections.  Would that be a glaring flaw in our Constitutional structure?

This hypothetical course of events is cited by the proponents of the Replacement Theory.  And then there are others who don’t subscribe to Replacement Theory who, nevertheless, resent the idea that persons who “jump the line” into the queue for Citizenship didn’t abide by the same rules followed by those “poor suckers” who patiently waited their turn.  Both groups are fueled with the resentment that acts as a powerful accelerant for political arsonists.

This Sword of Damocles hangs above the body politic because of an anachronism. The Framers gave Congress the power to define the rules of Citizenship in an era when the United States was eager to recruit immigrants to support the young nation’s expansion.  They never anticipated that the nation would ever need to turn applicants away.  Also, they never anticipated the expansion in federal welfare programs that Congress could pair with permissive naturalization as a partisan weapon to purchase political support.  

To understand how we arrived at this point in our political evolution, let’s start with some fundamental concepts about Citizenship.

Theories of Citizenship

Citizenship in the United States comes in two flavors.  You can be a US-born (birthright) citizen, or you could be naturalized as a citizen who was formerly a citizen of another country.  Only birthright citizens are qualified to serve as President or Vice-President.

The two sources for defining birthright citizenship are the 14^th amendment, and the laws enacted by Congress.  Precedents in court cases interpreting these two sources are also applied.

The two legal principles governing how nations define birthright citizenship are:  right of blood (Jus Sanguinis) and right of soil (Jus Soli).  

The United States incorporates both principles, but it adds a qualifier to limit the right of soil based upon the allegiance or connection to the United States.

US Law has combined these two principles and rendered qualifications for birthright citizens ambiguous in many cases.

Birthright Citizenship In The Constitution

Section 1 of the 14^th Amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States….”  The first half of this sentence adopts the legal principle of Jus Soli (Right of the Soil) to qualify for Birthright Citizenship.  However, the second italicized clause acknowledges that right of the soil is not sufficient.  Allegiance and connection to the country is an important consideration that can override the right of the soil.

Paragraph 5, Section 1 of Article 2 of the Constitution states “No Person, except a natural born Citizen….” is qualified to be President.  The 12^th Amendment required that the Vice-President have the same qualifications as the President.

If you believe that these two parts of our Constitution provide clear guidance about who qualifies as a “natural born Citizen” eligible to serve as President or Vice-President, then let’s review two different controversies.  (Hereinafter, I will use the term birthright citizen in place of natural born citizen.)

Kamala Harris and John McCain Citizenship Controversies

During the 2020 election, Trump claimed that Kamala Harris was ineligible to serve as Vice-President because her parents were on a student visa, and not permanent residents, when she was born.  Trump cited Professor Eastman’s argument why she was not qualified as a birthright citizen because her parents, and her, were not “subject to the jurisdiction” of the United States.

Eastman’s most important claim is that “Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.”

John McCain was the Republican nominee for President in 2012.  He was born on a US Army base in the Panama Canal Zone, and both his parents were US Citizens.  He was born on property owned by the US Government, but it was still sovereign territory of Panama being leased by the United States.  He was still classified as a US-born citizen.  

Role of Congress to Define Birthright Citizenship Per Jus Sanguinis

Before the 14^th Amendment was ratified, a 1790 Act of Congress specified that, “The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”  In this circumstance, Congress adopted the doctrine of Jus Sanguinis.  This “right of blood” is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of their parents have citizenship of that state.

After ratification of the 14^th Amendment, in U.S. v. Wong Kim Ark (1898), the Court reaffirmed that persons born in the U.S. are indeed American citizens, even if their parents were not US citizens.  Nevertheless, the Court noted exceptions for “children of members of the Indian tribes,” who were at the time not citizens, and “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State.”

Eastman cites U.S. v. Wong Kim Ark to make his case that the parents of Wong Kim Ark were legal permanent residents of the US, and therefore, “subject to the jurisdiction thereof.”  In contrast, Kamala Harris’ parents were citizens of Jamaica and India visiting the US on student visas on a temporary basis, essentially an enhanced version of a tourist visa.  He asserts that the status of Harris’ parents is analogous to that of foreign embassy personnel who are not “subject to the jurisdiction thereof.”

Eastman cites more recent examples of children born on U.S. soil to guest workers from Mexico during the 1920s.  These children were not viewed as citizens, for example, when, in the wake of the Great Depression, their families were repatriated to Mexico. The children born on U.S. soil to guest workers in the bracero program of the 1950s and early 1960s were not classified as citizens when that program ended, and their families emigrated back to their home countries.  In these cases, the right of blood overrode the right of soil.

The historical record is that Congress exercised power to expand the qualification of birthright citizenship beyond the 14^th Amendment for some categories of persons not born on US soil using the right of blood principle.  In other situations, Congress has also exercised power to refuse birthright citizenship to persons who were born on US soil based upon the “not subject to the jurisdiction” clause.

Why Did We Adopt the Right of the Soil Principle for Citizenship?

When the 14^th Amendment was drafted in 1868, Republicans wanted to ensure that former slaves were classified as Citizens and able to enjoy the “privileges and immunities” of citizenship.  Assigning citizenship by location of birth on US soil was an easy rule for accomplishing this end.  They wanted to set a rule that could not be manipulated by racist Southerners intent upon denying these former slaves their equal rights. They enacted this rule into the Constitution so that the hard-fought gains of the Civil War could not be easily reversed in the future.

This was in an era before there were passports, birth certificates, and formal documentation and record keeping that are prevalent today.  This was before artificial insemination and surrogate motherhood.  This occurred prior to widespread travel between nations and different notions of Citizenship.

Even before the 14th amendment, Article 1, Section 2 of the original Constitution instructs that “Indians not taxed” are excluded from the census in the determination of representation in the House.  Of course, that clause is moot today, but despite being born on US soil, it wasn’t until 1924 that Congress enacted legislation making all Indigenous Americans US citizens.

A Monarchy’s Subjects v. A Republic’s Citizens

In Eugene Volokh’s response to Eastman’s essay, Volokh references William Blackstone’s treatise on English Law:

“Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king…. The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, … if a child be born of foreign parents, it is an alien.”

Volokh concludes that Framers of the Constitution, familiar with Blackstone, intended that the test of birthright citizenship was place of birth, not the citizenship of parents.

However, a Monarchy is different than a Republic, and Blackstone’s commentaries are referring to subjects under the English Crown.  A monarch has subjects.  A republic has citizens.  The subjects owe allegiance to the crown.  When Blackstone was writing, most of the subjects of the crown, generally, didn’t have the right of suffrage so there wasn’t an issue about extending all of the “privileges and such.”  The crown was happy to have these subjects support the monarchy with their taxes.

In contrast, the members of government in a republic owe their allegiance to the Constitution, and indirectly to the citizens who elect them to office.  In a Republic, the citizens are sovereign, and therefore Blackstone’s concepts don’t translate perfectly to the US.  The Citizens of the US vote, and these Citizens have an interest in the qualifications about who gets to join their club of voters.  This is why “club membership requirements” should be rigorously defined in the Constitution.

While Volokh is technically correct that the Framers of the Constitution likely intended to base citizenship upon the right of soil, Congress’ 1790 Act proves that they realized that they had to incorporate the right of blood and consider the hostility of the parents toward the Nation.  Therefore, Citizenship by right of soil was not absolute.

The following two thought experiments will demonstrate why current US Law about Birthright Citizenship is ambiguous, and why we need a Citizenship Amendment to eliminate the ambiguities:

The Moscow Candidate

Suppose a woman who is a Russian Citizen working in the Russian embassy delivers her child at a US hospital.  Under the 1790 Act, this child is not considered a birthright citizen.  Under the 14^th Amendment, the child could be disqualified based upon the “subject to the jurisdiction thereof” clause and therefore, ineligible to be classified as a US-born citizen?

Further suppose that this child returned to Moscow with his parents, and he was raised as a Russian nationalist.  At age 20 he returned to the US and lived for the minimum 14 years to qualify to run for President.  He applies for recognition as a Birthright US Citizen, and he is initially declined.

Suppose that he files a lawsuit to claim the right to run for the Presidency as a Birthright citizen.  He cites the case of Kamala Harris who was born in the United States to parents who were not legal, permanent residents, and yet she was accorded birthright citizenship.  Why should the child of Indian and Jamaican nationals be treated differently than the child of Russians?

On what rational basis could the court deny his claim that he is suffering from unequal treatment under the law compared to Vice-President Harris?

The Surrogate Mother From The Philippines

Then there is the case of a Filipino woman who carries the egg of a woman, who is a US Citizen, that was inseminated by a man, who is a US Citizen, and the child is delivered in Manila?  Would that child be classified as US-born and eligible to run for President?  

What if the man who inseminated the woman’s egg was a Filipino citizen?  Would that make a difference?  Could Congress require a DNA test to confirm the hereditary linkage?

Apparently, we delegate these weighty matters to unelected bureaucrats working in the US Citizenship and Immigration Services:  

“A non-genetic, non-gestational legal parent of a child born through assisted reproductive technology (ART) outside of the United States may transmit U.S. citizenship to the child under certain circumstances, U.S. Citizenship and Immigration Services (USCIS) Director Ur Mendoza Jaddou has announced.

Director Jaddou, the first woman to be appointed to that position, made the announcement in one of her first official acts following Senate confirmation on July 30, 2021.

Citizenship may be transmitted if:

• The parent is married to the child’s genetic or gestational parent at the time of the child’s birth; and
• The relevant jurisdiction recognizes both parents as the child’s legal parents.”

Who knows if requiring that the child’s genetic or gestational parents are married would withstand a Court challenge?  And if the requirement for marriage was struck down by a Court, then could a male US Citizen use his sperm bank deposits to inseminate thousands of foreign females to generate thousands of new Birthright Citizens?

Conclusion

The laws about Citizenship are unclear, and they are subject to partisan manipulation.  While the 14^th Amendment’s definition of citizenship solved the immediate problem of securing many civil rights for the ex-slaves, its “subject to the jurisdiction thereof” clause, opened the door to arbitrary and confusing applications in other cases.  These confusions have left us with a boiling and bubbling cauldron of political controversies that need to be cooled down.

We need a Citizenship Amendment to lower the temperature.  It should remove the foundational concept of citizenship from political manipulation.  This amendment must precisely define who is, and who is not, a Birthright Citizen eligible to be President or Vice-President.  Citizenship is far too important to be treated as a political football in Congress, or subject to the whims of a bureaucrat, or a Supreme Court majority.