Is It Constitutional? Rethinking Birthright Citizenship in America

Transcript:

Arthur:

Well, welcome. Thank you so much for coming tonight. My name is Arthur. I’m the associate director of the B. Kenneth Simon Center for Principles and Politics here at the Heritage Foundation.

Tonight we seek to reopen a question which, for the past decades, has been buried by polite society. Those that even hover near the question of birthright citizenship—not to mention those trying to argue for a different principle by which to understand it—immediately feel the wrath of the ruling class. Serious constitutional and historical arguments are simply dismissed. The vitriol over the topic implies that elite opinion, or the press, or international organizations should define on behalf of American citizens what constitutes citizenship in America. These authorities would silence reasonable questions regarding consent, sovereignty, and the national.

And yet, in 2011, 65% of Americans opposed automatic citizenship for children born here to illegal immigrants. This too is dismissed. Many today have forgotten the meaning of citizenship, so much so that it is given out more and more with ever greater ease. Following this, both foreign nations and foreign individuals have sought to exploit our practices.

Despite the frequent hysteria, today we will investigate this question. Our panel will proceed in the following way. Betting first is Michael Anton, who will speak about the founders’ view on the issue and on compact theory. Michael Anton is a lecturer and research fellow at Hillsdale College, a senior fellow at the Claremont Institute, and a former national security official in the Trump administration. He’s widely published, including in the Wall Street Journal, American Affairs, National Review, and the Washington Post.

Second is Professor Ed Earler, who will speak about the constitutional history of birthright citizenship. Professor Earler is professor of political science emeritus at California State University, San Bernardino, and a senior Fellow of the Claremont Institute. He is author of “The Founders on Citizenship and Immigration,” and a contributor to the Heritage Guide to the Constitution. He has published numerous articles in law reviews and professional journals on immigration, judicial power, and citizenship, and has testified before Congress on birthright citizenship.

Next will be John Fonte, who’ll speak about the effect of our recent understanding of birthright citizenship and what other nations have done in the recent past. Mr. Fonte, a senior fellow and director of the Center for American Common Culture at the Hudson Institute, has had articles and essays on citizenship, assimilation, and immigration appear in numerous publications, including Commentary, National Review, and the Claremont Review of Books. He has testified before Congress on these themes. His book “Sovereignty or Submission” won the ISI Book Award in 2012.

Finally, I’d like to introduce Ryan Williams, the President of the Claremont Institute and publisher of the Claremont Review of Books, who will serve as a moderator tonight. Thank you very much, Michael.

Michael Anton:

A little crankier than usual today, having watched some of the hearings. I knew Kavanaugh reasonably well when I was in the White House in the Bush administration. He was staff secretary and I was a speechwriter. Staff secretary reads whatever the president sees. And so every speech that I wrote or drafted, or had any hand in, Kavanaugh would go over with a fine-tooth comb, and you’d have to justify everything you said, every assertion you made, and every everything. I had many endless conversations with him on this and other questions. I’ve always found him to be just an outstanding White House aide, among other things, but a fine person. I don’t really believe a word of what’s being alleged about him, and I think he would be a great Supreme Court Justice. It has me a little bit crabby. I’m always crabby, so that’s nothing too different, I suppose.

Then one other preface: the argument that I’m going to lay out, or that I have been laying out in print since whenever—don’t know, since the summer of this year—I learned essentially from Ed Earler way back in 1994. I first heard it from him and was not convinced by it at the time. I gave him a bunch of really stupid objections to why I thought he was wrong. He, I wouldn’t say dismissive, but neither was he encouraging in the modern educational style. It wasn’t like, “You have an interesting perspective,” and no matter what you say, you end up getting an A.

Let me give a brief analogy: to amuse myself late in life, I went to culinary school. My favorite teacher at culinary school was a man named Chef X. He was not a mean man, but he was a hard man. If you put a plate of food in front of him that was incorrectly made, he would taste it, tell you why it was wrong, then dump it in the trash and tell you to remake it. He made some people cry. I didn’t cry. I appreciated him being hard on me because it’s the only way to learn. I was paying for that education, and I wanted to get the most out of it. I appreciate it when my teachers have been hard on me. I’m assuming that Ed will find something that I say tonight incorrect, inaccurate, incomplete, and I want to hear about it in private, and then I will do my best to make sure that I get it right.

So I’m going to start kind of at the beginning without getting too philosophic, but I think it’s important that we go back to first principles. If you boil political philosophy down to its essence, I would say that it posits really only two claims for just rule, for legitimate political rule. The first is wisdom or virtue, which if we recall our Plato and Aristotle, turn out to be the same thing: knowledge is virtue, virtue is knowledge. The second is consent.

Now these appear to be very distant, but they’re not on examination quite as distant as they seem. There’s no need to go into that now, although I do have an explanation if anybody wants to hear it later.

The key things for us to understand are these: prior to the American Revolution, all claims to just rule were essentially based—where people made a claim and didn’t just say “I have the power and I’m in charge”—on wisdom or virtue. The divine right of kings is basically an updated or debased version of this idea. Now Locke, John Locke, showed in his very little-read “First Treatise”—everyone reads the “Second Treatise,” nobody reads the first—that the divine right of kings is false. The claim to virtue and wisdom as the only just title to rule is false. King George is not sufficiently wise to rule us without our consent, and we therefore withdraw our consent.

That means the founders needed to make a new claim to just rule. Lincoln said they didn’t necessarily have to, but they did. They made a justification because out of a decent respect to the opinions of mankind, they explained their reasons. They also made theoretical claims for just government. Why did they do it? Lincoln said to set up a standard maxim for a free society, a permanent bulwark against tyranny, to set up, in a sense, a guarantor of American liberty for all time.

That basis is social compact theory. Government exists when people get together, form a compact, and say we are now a people. We will establish a government to protect and secure our own rights. This is clear from John Locke and from the statements of our founders. Social compact theory was explicit on July 4th, 1776.

James Madison explained that all power in just and free governments is derived from compact. The Massachusetts State Constitution states: “The body politic is formed by a voluntary association of individuals. It is a social compact.”

So what is the nature of that compact? The key pillar is consent. Consent is required from all parties. Those born after the compact consent by not emigrating, which implies a natural right to emigrate. You cannot join the compact without the explicit consent of its existing members. A compact that can be joined by anyone, regardless of the wishes of its current members, is no compact at all. James Wilson said, “The individuals who are not parties to them are not members of the society.” Gouverneur Morris said, “Every society, from a great nation down to a club, had the right of declaring the conditions on which new members should be admitted.”

I’m not going to go into the 14th Amendment—Ed will—but I’ve established that the United States is a government based on social compact theory. The idea of birthright citizenship, or any involuntary citizenship, is inconsistent with social compact theory. To reject social compact theory is to reject the bedrock principles of free government.

If you reject consent, you’re left with rule by the wise, divine right of kings, or the divine right of bureaucrats. Given the behavior of the left lately, that seems to be what they’d prefer. They think they are the wise. I disagree, but I don’t want to be ruled by them. The mystery is why many on the conservative side go along with this. I’ve restated this case several times since July 2018, and the reaction from some supposed allies has been furious. They seem to think this is the hill to die on. I see many more important hills to fight on. I hope I have made some headway with you tonight.

Ryan Williams:

Thanks, Mike.

Ed Earler:

Alright. I’ve just learned from reading some progressive liberal constitutionalists that there is no enumerated power in the Constitution to defend the border. I’ve also learned from a libertarian constitutionalist that there is no enumerated power to limit immigration. I’ve also heard from other constitutionalists that there’s no way to restrict birthright citizenship for children born to illegal border crossers within the United States.

So how did we lose our sovereignty as a nation? If you can’t defend your borders, can’t control immigration, and can’t determine who is and is not a citizen, then you’re no longer a sovereign nation. That’s simple. Also, I’ve heard from some progressive liberal constitutionalists that we’re in a post-constitutional age, that the Constitution has been replaced by the administrative state.

A friend of mine, a recent law school graduate, said the way I taught constitutional law is now outré—no good anymore—because her professor said we now need to abolish the Constitution. So I am out of fashion, but that’s no surprise.

Let me get to the point. Everyone believes the 14th Amendment adopted the English common law notion of birthright citizenship (jus soli). It’s my contention that it did not. The case of United States vs. Wong Kim Ark (1898), in which the Supreme Court decided that the 14th Amendment did adopt British common law, was mistaken, and it is easily proven so.

The English common law of subjectship is perpetual allegiance to the king if you are born under his protection. Blackstone never uses the word “citizen,” only “subject.” Under English law, you owe perpetual allegiance to the king.

Did we adopt that as our basis for citizenship in America? No. The Declaration of Independence dissolved our allegiance to the Crown. Under English law, that’s impossible. Yet we did it. We broke with the common law principle of perpetual allegiance. So is it reasonable to believe that having rejected it, we adopted it again as the basis of citizenship in the 14th Amendment? Of course not.

Madison said nothing in the common law that contradicted the principles of the Revolution survived. The 14th Amendment, which was introduced late in the debate, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…” Two requirements: born or naturalized here, and subject to the jurisdiction. If everyone born here automatically is subject to jurisdiction, the clause is superfluous. The framers meant “owing allegiance to the United States”—complete jurisdiction, not subject to any foreign nation. They substituted “jurisdiction” for “allegiance” to avoid any British common law confusion.

The Expatriation Act of 1868, debated by the same people who wrote the 14th Amendment, confirmed the right to renounce citizenship. Under British common law, you can’t do that. They denounced Blackstone and feudal doctrine. Yet today we’re told the 14th Amendment adopted the English system, which makes no sense.

Wong Kim Ark was about a child of legal residents barred by law from becoming citizens. The Court said the 14th Amendment adopted English common law. But we have no Supreme Court case on point for children of illegal immigrants. Wong Kim Ark involved legal residents still owing allegiance to China, and yet the Court cited the Expatriation Act, which contradicts the notion of perpetual allegiance.

Chief Justice Fuller in dissent said the Declaration of Independence repealed the common law. He was right. The Wong Kim Ark decision was a mistake. I’ll stop now.

John Fonte:

Let’s move from theory to practice. We’ve heard that birthright citizenship is problematic in principle. In practice, what are the consequences?

Every year, roughly 300,000 children are born to illegal immigrants in the United States. The executive branch automatically recognizes these children as U.S. citizens. The same is true for children born to tourists.

The impact includes welfare costs and chain migration. An estimated 4.5 to 5 million U.S.-born children of illegal immigrant parents cost about $50-$60 billion a year in education alone. Despite claims that illegal immigrants can’t receive welfare, they can get benefits for their U.S.-born children, such as food stamps and Medicaid, which benefits the entire family. Thus birthright citizenship leads to more U.S. citizens living in poverty.

Chain migration is also affected. Children, when they turn 21, can bring in relatives, who can bring in more relatives. About 66% of immigration is family-based. Birthright citizenship fuels this process.

Consider guest workers. If a guest worker overstays a visa, he becomes illegal. If he has a U.S.-born child, he can claim he needs to stay to avoid breaking up the family.

Then there’s birth tourism: pregnant foreign women from China, Korea, Turkey, Mexico, Central America, Russia, Nigeria come to give birth so their child gets U.S. citizenship. Even the mainstream media criticize this. NBC estimated 40,000 such births a year. The Washington Post reported on Chinese businesses offering “birth packages” in the U.S. for affluent Chinese. Similar enterprises exist for Turks and others.

The U.S. and Canada are the only developed countries with such broad birthright citizenship. Other democracies like the U.K., Australia, Ireland, and New Zealand have ended it. Ireland ended it after a referendum due to birth tourism. If we ended birthright citizenship for illegal immigrants, we’d be following this global trend, especially among Anglosphere democracies.

In Australia, for instance, a child of illegal immigrants can apply for citizenship at age 10 if continuously residing there. There’s a process with fact-finding, not automatic citizenship.

This is a crucial issue for a democratic people. Americans should have a say in who becomes a citizen. If we ended the practice, we’d be following the global trend.

A researcher once called the Virginia Department of Health asking about children of foreign diplomats, who everyone agrees should not get citizenship. They do nothing about it. The principle of jurisdiction is totally ignored in practice.

Ryan Williams:

Thank you, Arthur. Thank you, Ed, and thank you, John. I had a wonderful summing up and a wonderfully intelligent opening question, but considering we ran a little long, let’s give some time for questions.