US CITIZENSHIP - BLOOD AND/OR SOIL?
Ending the Ambiguities Surrounding Birthright Citizenship And Potential Abuses of Naturalization
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 14th 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 14th 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 12th 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 14th 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 14th 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 14th 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 14th 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 based 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 14th 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?
The laws about Citizenship are unclear, and they are subject to partisan manipulation. While the 14th 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.
Below is my draft of a Citizen Amendment that would eliminate all of the ambiguities discussed above.
The amendment is in quotes followed by comments:
Section 1. Birthright Citizenship
The following persons are Birthright Citizens of the United States:
The biological descendant of a female and a male who were both Citizens of the United States on the date of birth of the descendant.
Jus Sanguinis – right of blood doctrine of Citizenship
The biological descendant born of a female and a male who were both legal permanent residents of the United States, provided there is proof that the descendant was born within the territory of the United States.
Jus Solis – right of the soil doctrine of Citizenship, qualified with a legal connection to the United States.
The biological descendant of a female or a female, either one being a Citizen, provided there is proof that the descendant was born within the territory of the United States.
Jus Solis and Sanguinis – combining the right of the soil and right of blood doctrines of Citizenship. Section 6 covers the case where the child is born overseas. That child would qualify as a legal permanent resident under limited circumstances.
In cases where there is artificial insemination or a surrogate that carries a fertilized egg from another female, the Citizenship of the female whose egg was fertilized shall determine maternal line of Birthright Citizenship. The Citizenship of the male who inseminated the egg shall determine the paternal line of Birthright Citizenship. No more than two children may receive Birthright Citizenship or legal permanent residency from a single female or a single male applying such methods.
Jus Sanguinis – right of blood doctrine of Citizenship. Limitation at two children prevents a sperm bank from inseminating thousands of women with the sperm of a US male and then later make claims for residency or citizenship.
In cases of disputes over the maternal or paternal line, then Congress shall have the power to enforce this Section by appropriate legislation.
Section 2. Value of Citizenship and A Common Language
Citizenship at the time of ratification of this Constitution, and the amendment powers vested with a Citizen are both antecedent to this Constitution.
Clearly asserts the primacy of the Citizen beyond and above the Constitution
Membership in the Citizenry is guarded by this Constitution to preserve and support the institutions of this Nation for Our Posterity. Citizens have a reasonable expectation that their fellow Citizens are proficient using a single, common language for the conduct of conversation, commerce and government that is vital for the unity of this Nation. The language used to compose this Constitution shall be that single, common official language used in the proceedings of and in the text of the laws enforced by Government officials. No law may compel the Government to conduct its affairs in another language; but no person who does not comprehend this official language, who is in the custody of the police or on trial, may be denied the services of a translator.
States that Citizenry is guarded. Conveys sense of purpose and scarcity. Asserting the importance of English as a common language for everyday living and government emphasizes the importance of fostering unity.
Section 3. Limitations on Additional Immigration
The exclusion of persons from Citizenship and residency in the United States is necessary to protect wildlife and their wilderness habitat from damage caused by expanding human habitation. The limitation of exogenous population growth is essential for sustainable agriculture, animal husbandry, extraction of minerals and timber, use of aquifers, rivers, lakes, oceans, and energy production. Laws regulating the entry into the country by non-Citizens and rules for permanent and temporary residency cannot degrade the ecological, economic, and civic well-being of current Citizens and their Posterity.
Pursuant to these goals, the number of additional persons admitted into the United States cannot exceed the sum of additional persons admitted plus the endogenous increase in the existing population of persons living in the United States plus the number of Refugees living in the United States that is greater than one two-hundredth of the total endogenous population counted by the Census Board from the prior fiscal year. With a three-fifths vote, Congress may enact legislation to suspend this limitation for twelve months, but this limitation may not exceed one-one hundredth growth for twelve months, absent a two-thirds vote.
Provides an additional rationale for exclusion related to the health of the environment and the impact of immigrants upon the labor market. Citizenship is worthless and meaningless if there aren’t solid grounds for excluding anyone who volunteers to become a Citizen. There is the notion of Citizenship as merely a ticket permitting entry onto territory, and rights to participate in the labor force, and obligations to pay taxes and perhaps, perform military service. Are there any grounds besides racism for excluding new residents and allowing them to become Citizens? The Progressive Left answers that there are no reasons to exclude persons who wish to come in, and opponents are racists. Although, my bet is that if South African Whites were political refugees, then Progressives would fight very hard not to admit them, proving that their stance is purely for partisan power, not principle.
Libertarians would say that as long as the new entrants and their offspring aren’t a fiscal drag, then there’s no reason to exclude them. Conservatives would argue, that in addition to the fiscal drag, new entrants depress wages of existing blue collar workers, and new immigrants from nations with illiberal political and cultural traditions (e.g Muslim extremists, etc.) pose a threat to the political traditions of this nation.
I am adding the preservation of the environment and value-added for existing Citizens as additional reasons. But the biggest rationale for exclusion is that value for Citizenship relies upon its scarcity. The Progressive philosophy drives the value of Citizenship to zero so that service in the military or government becomes a mere transactional arrangement that cannot rely upon an esprit de corps. The United States is in a phase of its history where it’s ecological systems will be strained as the population grows. We cannot control endogenous growth among US Citizens, but we can control the exogenous growth from immigration. And we should be more choosey about the immigrants allowed to enter, and the skills they bring to the table.
From 2019 – 2020 the US Population grew by 0.35%. That leaves a gap of 0.15% x 330,000,000 = 495,000 new immigrants minus the number of Refugees that would be the maximum allowed. With a lower birth rate below the replacement rate of 2.1, the maximum number of new immigrants should be always near 0.5% of the population. This is a growth rate that could permit the gradual absorption of new immigrants without disrupting labor markets, and it would slow population growth. Subtracting the number of Refugees from the total closes a loophole that could be exploited, and provides incentives to promptly process Refugees and either admit them as permanent residents or deport them.
Section 4. Naturalized Citizenship
Entry, residency, or obtaining Citizenship is a privilege, not a right, and the authority of Congress to regulate this privilege may not be abridged by any Treaty. Congress shall establish a uniform Rule for Naturalization as a Citizen of the United States subject to the following requirements:
The applicant provides evidence of legal entry into the United States and a minimum of five years legal residency. Excepting minor children born to or adopted by a Citizen with legal custody, the applicant must provide evidence of a minimum of five consecutive years of payment of taxes to the Government and no tax payments in arrears.
The applicant provides evidence that they have not received cumulative financial assistance from the Government for a minimum of three consecutive years immediately prior to the date of the grant of Citizenship exceeding one-tenth of the compensation of a Member of the House of Representatives.
The applicant demonstrates proficiency in understanding the language used to compose this Constitution, and an understanding of the Civic Institutions of the United States, and an ability to fully participate in the civic and economic affairs of the nation using this language without reliance upon language translation.
Limits naturalization to law-abiding, self-supporting individuals who can speak enough English to fully participate in the civic and economic matters of the nation. 5-year mandatory residency requirement protects against sudden surges of new Citizens approved for partisan purposes. Permanent residency is always an option for person who don’t fulfill these requirements.
Section 5. Sanctions for Illegal Entry
Any person who has violated the laws governing immigration, entry, or travel may not obtain Citizenship during their lifetime. No pardons or laws enacted to grant amnesty can exempt a person from this prohibition; nor may this violation be expunged from their record.
Provides a huge disincentive for illegal immigration and prevents partisan gamesmanship for leniency on border enforcement. Although illegal immigrants cannot become Citizens, they could become legal residents.
Section 6. Queue for Entry, Residency, Naturalization
A person, not born in the United States, who has not attained twenty-five years, who is a biological descendant of one living Citizen, who applies to become a legal permanent resident of the United States, shall receive expedited review of their application. A natural person who has not attained sixteen years who is adopted by a Citizen shall acquire the rights of a legal permanent resident.
Subject to requirements of Section 2 of this Article, Congress shall establish uniform Rules of Permanent and Temporary Residency and Travel for persons who are not Citizens of the United States.
The queue for applicants for residency and naturalization shall be publicly disclosed. The President shall have the discretion to select no more than three thousand applicants for expedited processing every fiscal year with three-fifths consent of Congress. The President must provide a written explanation of the reasons for the expedited processing based solely upon the promotion of national security, or the possession of exceptional economic or scientific benefits.
Forcing the queue to be transparent prevents bribery of officials. Limit discretion for exceptions to this rule, recognizing that special skills and emergency needs may arise. Also prevents discriminating in favor of a nationality or crisis of the month and punishing those who went through the process in an orderly manner.
Section 7. Asylum for Political Refugees
A person seeking asylum as a Refugee from political persecution may be admitted only if they produce evidence that they sought and were refused asylum by other nations closer to their nation of origin during their transit to the United States. Otherwise, the presumption shall be that the person’s primary motivation is improvement of economic and security circumstances rather than an escape from political persecution, and thereby subject to prompt deportation. Refugees who are admitted shall be subject to confinement and restrictions upon travel within the United States. The President may transfer a Refugee to another country that will not subject the Refugee to persecution.
Refugees may be released from confinement if they are sponsored by a Qualified Citizen, and they are not classified as a security or safety risk. A Qualified Citizen must sign a waiver that permits the federal taxation of their income and garnishment of wages, and they waive bankruptcy protections. These charges are imposed to cover any costs incurred by the Government for this Refugee and their dependents, in addition to any medical care, education, fines, convictions, and incarceration. The Refugee and their offspring will be returned to confinement if the Citizen fails to provide sufficient support or indemnification of claims. A Qualified Citizen can be an individual Citizen, a partnership, or legal person with recourse to personal guarantees from Citizens, or the Estate of a Citizen subsequent to the death of the Qualified Citizen that cumulatively meets the financial requirements.
Refugee Treaties are the big loophole used by illegal immigration supporters. This deftly handles the problem because a Treaty cannot supersede the Constitution. Also, we provide a way for these refugee boosters to put their money where their mouth is. Refugees can go outside the refugee camp as long as they have a qualified sponsor. It also tests the concerns of many Conservatives and Libertarians who claim that immigration is OK if the immigrants can cover the costs of their public burden and those of their children.
Section 8. State Citizenship and Federal District or Territory Residency
State Citizenship is reserved for Citizens of the United States. A Citizen of the United States is either a Citizen of a single State or they are registered as a resident of a Federal District or Territory. A Citizen reports a single primary residence to the Census Board to determine their State Citizenship for purposes of eligibility to vote exclusively in elections held by their State and in Federal elections.
No State may abridge the right of Citizens, legal residents and legal entrants into the United States to enter their State, or to travel within or outside their State, unless they are charged with or convicted of a criminal offense.
Section 9. Surrendering Citizenship
If a Territory of the United States becomes an independent nation, then the residents and Citizens of this new Nation, who were Citizens of the United States on the date of independence, forfeit their Citizenship in the United States. These persons, who were Citizens of the United States prior to the date of independence, shall be eligible to receive a visa for unrestricted travel within the United States.
Any person who committed fraud in their application for naturalization as a Citizen shall have their Citizenship revoked. A person may voluntarily renounce their Citizenship by a written declaration witnessed by an official of the Federal Government and a Citizen not employed by the Government.