Birthright Citizenship and Natural Rights

Republics have been much more fastidious than empires about who could join them.

September 30, 2018
By Paul Gottfried

Michael Anton, who was a speechwriter for George W. Bush's administration and later a pro-Trump blogger for the Journal of American Greatness, has acquired additional fame as a critic of granting citizenship to the offspring of illegal aliens. Anton's work has not gone unnoticed. Advocates of giving instant citizenship to "anchor babies" have predictably attacked him as a racist for questioning their generous gesture. Supposedly, the Fourteenth Amendment provides for a right to citizenship for anyone born on American soil. And though the same amendment requires that those who are granted this right are "subject to the jurisdiction" of the American government, those groups who were thought to be outside this jurisdiction, we are told, are Indian tribes and the children of foreign diplomats. Presumably, in both these cases, those who were born on American soil were subject to another jurisdiction, whether a foreign government or a tribal council with specific rights granted by Congress.

In a long article in Claremont Review, Anton shows that the framers of the Fourteenth Amendment did not mean to grant citizenship to the babies of whoever came here illegally or in order to have babies on American soil. His arguments warrant our attention. It is highly unlikely, as Anton's opponents concede, that the authors of the Fourteenth Amendment had in mind "anchor babies" when they discussed birthright citizenship. They were thinking specifically about negro freemen, who had recently been slaves. The authors were undoing the effects of the Dred Scott decision issued by the Supreme Court in 1857 that denied that blacks were eligible for citizenship under the Constitution.
Although in 1898 the court had acknowledged the citizenship right of a child born to Chinese parents in the U.S., Anton points out that in this case, U.S. v. Wong Kim Ark, the justices were acknowledging the citizenship of the child of legal residents. Significantly, Anton argues, those who held the minority position in this case probably understood the Fourteenth Amendment better. One of its authors, Senator Jacob M. Howard of Michigan, expressed concern that the amendment not be worded in such a way as to result in the excessive awarding of citizenship. Although advocates of citizenship rights for the children of illegals concede that the Fourteenth Amendment's authors may not have been thinking about their case when they granted citizenship to those who were subject to American "jurisdiction," they might have taken this step if they were living now. But there is no reason, according to Anton, to ascribe views to people in the past because someone at this moment holds certain convictions.
Anton shows the marks of his West Coast Straussian education in how he frames his political theoretical arguments. As a point of information, he took a graduate degree at Claremont under Harry Jaffa, and the article being discussed was published in the West Coast Straussian flagship publication Claremont Review. According to this persuasion, the United States was founded on natural rights principles, from whence derive our moral right to exist and our guide for interpreting the Constitution. Citizenship must therefore be understood in relation to this natural rights doctrine, which finds its most oft-quoted expression in the passage of the Declaration of Independence about God-given rights to life, liberty, and the pursuit of happiness. This for Jaffaites is the bedrock of the regime set up by America's Founders, and it was vindicated in Lincoln's struggle against the slaveholding South in the Civil War.
Without evaluating these beliefs (which are not mine), it is clear that they inform Anton's view about birthright citizenship. Although a law of the soil (jus soli) was enough to establish citizenship under the English monarchy, once Americans formed a new "social compact" with the Declaration, according to Anton, this ceased to be the case. By affirming the principles contained in the Declaration, we became citizens of a republic bottomed on natural right. Membership in the social compact depended on "consent of the governed" and therefore could be repudiated if someone left the compact and joined a foreign political entity.
There may be another factor that explains the divide in question. Significantly, the Roman, British, and other empires invoked jus soli to establish who was subject to the sovereign. This pertained to those who were expected to serve the monarch, rather than who would exercise the rights of democratic citizenship. Presumably jus soli would not apply in a republic in which citizens would be governing themselves. It is one thing by virtue of one's subjection to be obliged to serve in the king's army; it's another to enjoy the right to co-govern with other authorized citizens.
Normally republics have been much more fastidious than empires about who could join them. That's because political rights among citizens, everything being equal, are more important than being under a sovereign. In the case of the Swiss Republic, one traditionally claimed citizenship by right of inheritance from parents (jus sanguinis). Foreigners who wished to become citizens had to wait many years and to be approved for this privilege by a municipality and canton as well as the federal republic. These requirements went back centuries and had nothing to do with the idea that all men are created equal and are born with certain inalienable rights.
Almost all European and most African countries continue the practice of jus sanguinis, as Anton duly notes, and that may result at least partly from the fact that these regimes view themselves as constitutional republics (whatever they may be in practice). In 1990, the Germans converted to the jus solis, in order to accommodate the influx of refugees and their growing third-world immigration. Germans may still be paying the price for their virtue-signaling, as their country now has the largest Muslim population in Western or Central Europe, with all the attendant social problems.
In fine, the distinction between birthright citizenship and the acquisition of citizenship through parents tells us more about the difference between imperial and republican rule than it does about who believes in natural rights.