Birthright Citizenship Is A Feudal Relic. It Has No Place In America

With the Supreme Court’s announcement last week that it will hear a case challenging President Trump’s executive order ending birthright citizenship for children of illegal immigrants, the internet has been awash in debate over the meaning of Section One of the 14th Amendment.

That’s the part that says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” At issue is what the phrase, “subject to the jurisdiction thereof,” really means. Does it mean anyone physically present inside U.S. territory, even foreign nationals who illegally crossed the border? Are the children of those people American citizens simply because they were born on U.S. soil?

That’s the view of those who support birthright citizenship today. According to them, citizenship is simply the product of one’s birth. They think the 14th Amendment is quite clear on this point, and that the men who drafted it in 1866 and ratified it two years later had nothing more in mind than to tie citizenship to the accident of birth.

There are however two major problems with this view, one jurisprudential and one practical. Because the first problem leads to the second, let’s take them in order.

Proponents of birthright citizenship will point — as they’ve been doing incessantly over the past week — to an 1898 Supreme Court case, United States v. Wong Kim Ark, as proof positive that the 14th Amendment automatically confers citizenship based on birth. Proponents of birthright citizenship, most of them on the left, want to stick to the letter of the Constitution as a way to thwart Trump’s executive order.

Without going into all the details of Wong Kim Ark — my colleague Brianna Lyman does that here, arguing persuasively that the Supreme Court should overturn the decision — it isn’t the silver bullet the left thinks it is. Specifically, Wong Kim Ark introduced a theory of citizenship to American jurisprudence that was alien to both the 14th Amendment and the Founding. Wong Kim Ark’s parents were subjects of the Emperor of China, but at the time of his birth in San Francisco in 1873 they were “domiciled residents.” The Supreme Court, ignoring how citizenship had been understood in America up until that time, declared that because Ark was born in the United States, the 14th Amendment meant he was a U.S. citizen.

Writing for the 6-2 majority, Justice Horace Gray argued that the 14th Amendment must be understood in light of English common law. By doing this, the Supreme Court enshrined the idea of citizenship based on feudal obligation found in English common law. Feudal obligation meant that, “one is bound from birth to the place where he is born,” as Hillsdale College’s Kevin Portteus has written. “He owes perpetual allegiance to the ruler of that place in gratitude for the protection he has been given. He is a subject, in the sense that he is involuntarily and perpetually subjected to a lord, and has no choice in the matter.”

According to feudal obligation, expatriation is impossible without the consent of the lord to which one owed fealty by birth. This is of course totally incompatible with the American Founding, to say nothing of the American Revolution, both of which rely on a theory of citizenship based on consent, not birth.

The Founders themselves were of course born in lands controlled by the British crown, but by breaking with the crown and declaring (and then winning) independence, they put forward a radically different understanding of citizenship and political community — one based on the mutual consent of free men. In framing the 14th Amendment, writes Portteus,

the amendment’s authors and sponsors believed that they were expunging a relic of European feudalism. The nature of political obligation under American chattel slavery very closely resembles European feudal obligation. Slaves were bound from birth to a master, and could only be released from their obligation with the master’s assent. They sought to transform subjects, slaves in this case, into citizens. The author of the citizenship clause and its supporters consciously and vocally rejected the doctrine of feudal obligation.

Indeed, Congress passed a companion to the 14th Amendment, the Expatriation Act of 1868, which declared expatriation to be “a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” This was an explicit rejection of the medieval English doctrine of feudal obligation. As Rep. George Woodward of Pennsylvania said on the floor of the House of Representatives, “It is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it.”

With Wong Kim Ark, the Supreme Court reintroduced to American law the concept of feudal obligation that the framers of the 14th Amendment only thirty years earlier had thought they were stamping out! And as they so often do, Democrats today are apt to defend the political arrangements of the antebellum south; they would impose a conception of citizenship and political obligation that, in the American context, applied to slaves, not free men.

So much for the jurisprudential problem with birthright citizenship. Based on a fair and accurate reading of the relevant history and legal philosophy, the Supreme Court should overturn Wong Kim Ark and reject the feudal idea of citizenship based solely on birth — just as the framers of the 14th Amendment had sought to do.

But there’s another, more immediate reason to reject birthright citizenship. As a practical matter, under conditions of mass immigration birthright citizenship is simply national suicide. Consider that during the four years of the Biden administration, some 10 million people (probably more) entered the country illegally. Most of them were released or paroled by federal authorities pending the outcome of immigration and asylum cases that will take years to be adjudicated because of the backlog in our immigration courts.

The fact is, mass uncontrolled immigration has fundamentally changed the debate over birthright citizenship. Do proponents of birthright citizenship really believe that the children born in America to these 10 million illegal immigrants are and should be U.S. citizens simply because they were born on American soil? Maybe they do, but it’s an insane position to hold. It would mean millions of new citizens whose only connection to this country is that their parents snuck over the border in violation of our laws. Accepting this, and codifying it, amounts to a total rejection of national sovereignty and a repudiation of the American idea of citizenship by mutual consent — consent of the members of the political community and consent of those who wish to join it.

Whatever the Supreme Court said in Wong Kim Ark, and whatever our understanding of the 14th Amendment has been in the 127 years since that decision, the situation created by mass immigration has changed the terms of the debate. Biden’s four years of industrial-scale illegal immigration and retroactive “documentation” conferring dubious legal status on millions of illegal aliens represents a total break with the past.

Perhaps in the 1890s and early 1900s we could presume to confer citizenship on the children of foreign nationals born on U.S. soil. Maybe we had enough social and cultural cohesion to afford the luxury of pretending that the framers of the 14th Amendment really meant to return to the medieval idea of citizenship based on feudal obligation.

But we cannot afford that luxury today. We need a complete overhaul of our posture toward immigration and citizenship — namely, a return to how we thought of these things for the first 150 years of our republic, when citizenship was based on the consent of free men, not the obligations of fealty imposed by the accident of birth.

John Daniel Davidson is a senior editor at The Federalist. His writing has appeared in the Wall Street Journal, the Claremont Review of Books, The New York Post, and elsewhere. He is the author of Pagan America: the Decline of Christianity and the Dark Age to Come. Follow him on Twitter, @johnddavidson.