THE PROBLEM WITH BIRTHRIGHT CITIZENSHIP: ED ERLER ON THE AMERICAN MIND

THE PROBLEM WITH BIRTHRIGHT CITIZENSHIP: ED ERLER ON THE AMERICAN MIND

With permission from The Claremont Institute.

This is part 1 of a 4 part series.

The Claremont Institute is a nonpartisan organization, recognized as tax-exempt under Section 501(c)(3) of the Internal Revenue Code. The Claremont Institute does not endorse any candidate for political office. The opinions of speakers at our events and on our videos are their own and shall not be construed as necessarily reflecting the views of the Claremont Institute. None of the Claremont Institute's writings, events, or videos should be construed as an attempt to aid or hinder the passage of any proposition or any bill before the state legislature or the United States Congress or as an attempt to aid the election of any public official.

Edward J. Erler

Edward J. Erler is a senior fellow of the Claremont Institute and Professor of Political Science at California State University, San Bernardino. He is the author of The American Polity (Crane Russak, 1993), and articles on the fourteenth amendment, affirmative action, the death penalty and other topics.

From 1983-84, Dr. Erler served as director of bicentennial programs at the National Endowment for the Humanities, and serves currently as a member of the California Civil Rights Commission.

 

Selected Writings by Edward J. Erler:

From Subjects to Citizens: The Social Compact Origins of American Citizenship Marbury v. Madison and the Progressive Transformation of Judicial Power Bush, la Justicia y las Politicas Raciales The Political Philosophy of the Constitution The First Amendment and the Theology of Republican Government, review of David Lowenthal's No Liberty for License Reply to Lowenthal Is Big Brother Moving In? the State of Property Rights in a "Takings" Society Californians and Their Constitution: Progressivism, Direct Democracy, and the Administrative State The Constitution and the Separation of Powers The Great Fence to Liberty: The Right to Property in the American Founding The Ninth Amendment and Contemporary Jurisprudence Articles by Edward Erler appearing in The Encyclopedia of the American Constitution James Madison and the Framing of the Bill of Rights Crime, Punishment, and Romero: An Analysis of the Case Against California's Three Strikes Law, with Brian Janiskee California's Three Strikes Law: Symbol and Substance, with Brian Janiskee Natural Right in the American Founding, review of Harry V. Jaffa's Original Intent and the Framers of the American Constitution: A Disputed Question The California Supreme Court in the Culture Wars: A Case Study in Judicial Failure "Harry V. Jaffa," entry in American Conservatism: An Encyclopedia, edited by Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson "Solzhenitsyn," in Statesmanship: Essays in Honor of Winston Churchill (1981)

- See more at: http://www.claremont.org/contributor-list/157/#sthash.9nuVFy7r.dpuf

Machine Transcript, expect errors. Please listen to the podcast, you will be glad you did.   0:00 it seems to me to be impossible that have been absolved our allegiance to the 0:05 King 0:05 which is something that is impossible under the British lawyer under the Kings 0:11 law 0:12 that we would at the same time adopted birthright citizenship 0:15 as the basis for citizenship in a 0:19 in america 0:37 at you for what you've written a lot about immigration 0:40 I and not simply from with the point 0:44 with to to make a point about the contemporary 0:47 disputes but also to throw it into kinda philosophical and historical 0:52 context arm any particular YouTube you 0:56 make an argument which not very many people make 0:59 these days and I think very you make it very a very well 1:03 I that the way we think about the problem with immigration is all mixed up 1:07 and it's mixed up largely because we assume 1:11 what what is I guess usually 1:14 referred to as birthright citizenship that 1:17 anyone who is born virtually at least I N you 1:20 virtually anyone born in the United States of America is automatically a 1:23 citizen 1:24 have the United States America and I think for many people that it would be 1:29 very hard to 1:30 think the contrary why do you think the contrary into 1:35 to what extent to you so think the Citizenship Clause of the Fourteenth 1:39 Amendment 1:40 a is the first time that citizenship was the finding the American Constitution 1:45 citizens and citizenship are referred to in the constitution 1:50 but no where to find a where you have to be a citizen to be a member the house 1:55 you have to be a citizen to be a senate you have to be a natural born citizen 1:58 to be President of the United States of course the 2:03 at the time the Constitution was written there were no natural born citizens in 2:06 the United States 2:07 so there was an exemption you have to be a citizen at the time 2:10 a the constitution was adopted 2:14 were citizen for 17 years and so on and so forth 2:17 as I calculated I think Martin Van Buren was the first natural born citizen of 2:21 the United States 2:22 I and he will become president United States yeah 2:25 yes and I think if you calculate a 2:29 that the exemption means that you 2:32 a have to have been a a 2:35 a citizen at the time that the Declaration of Independence was 2:40 adopted so that's the breakpoint but any case 2:43 prior to the 14th amendment %uh the rule was 2:48 a that a citizen the the state was automatically considered to be a citizen 2:53 of the United States 2:54 so state your so citizenship in a state 2:57 yes like Massachusetts or New York you have precedence 3:01 as it were averse national yes this was a quite the constitutional rule 3:06 better had not been challenged this was just the ruled 3:09 practice as it a worked its way out 3:13 a over the years so to become to become a citizen 3:17 at the united states just to clarify you have to become a citizen in New York 3:21 or apps wanna gathers exactly writer the problem in the beginning of course was 3:26 a the problem love love 3:29 free blacks a and the questions that were surrounding 3:33 slavery and the and the the comedy clause of the constitution and so-and-so 3:40 these questions were delicate the whenever per 3:43 provoke directly but a of course by the way I see so what you mean is that 3:47 if if a free black became a citizen in Massachusetts which was possible 3:53 I would he also automatically become a citizen 3:57 up but I say Georgia if he moved to Georgia he had all the rights and 4:00 privileges ob 4:01 other citizen Georgia and so on and so forth so these were very 4:05 of course very delicate questions Georgia would not accord him all the 4:09 privileges and immunities a 4:11 a citizen of Georgian so on and so forth so 4:14 a these questions were avoided 4:17 they came to a head after the Civil War of course now what happened was that 4:22 a a if 4:25 the basis of citizenship had not been changed have course 4:29 the the States a formally been in rebellion 4:33 could have withheld federal citizenship from the newly freed slaves 4:37 by withholding States Citizenship that would have meant 4:41 withholding not only federal Citizenship the a 4:45 the benefits of the new leaf a enacted federal 4:48 civil rights lawyer legislation enacted to 4:52 for a newly freed slaves so they could so for 4:56 slaves newly freed slaves could be free but state laws 5:00 yeah message that we were in a way right Los yup mississippi could have said the 5:05 no a descendant of a former slave could ever be a citizen of mississippi 5:09 therefore they would have been a citizen of the United States would not have been 5:12 a subject to the Civil Rights Act of 1866 or the other civil rights act that 5:18 came later as well so was imperative 5:22 the that the basis for citizenship be changed 5:25 to the Fourteenth Amendment says that also to all persons born or naturalized 5:31 a and subject to the jurisdiction 5:34 our citizens I'll United States first 5:37 and secondly %uh the State wherein they happened to reside 5:40 right now a the Citizenship Clause was the last 5:44 clause added to the 14th amendment it 5:48 it was almost as if it were an afterthought 5:52 benjamin Wade who is otherwise the author 5:55 above the language of the Fourteenth Amendment suggested 5:59 that a the Citizenship Clause read 6:02 all persons born in the United States are citizens of the United States 6:07 and that suggestion went to the Committee on reconstruction the Joint 6:10 Committee on re 6:11 reconstruction which was the primary committee 6:14 that was a responsible for drafting the 14th amendment 6:19 when it came back from the committee the jurisdiction clause was added to all 6:24 persons born 6:25 or naturalized and subject to the jurisdiction 6:30 we're citizens are the United States end up the State wherein they reside 6:35 and a lot hangs in your interpretation of you know that phrase 6:38 so I I begin to wonder why did the jurisdiction clause why did the 6:43 committee are really 6:44 reconstruction insist upon adding the jurisdiction clause 6:48 why didn't they simply say all persons born in the United States 6:52 our citizens I and so I 6:55 read the debates a on the Citizenship Clause 6:59 and it was presented in the Senate by senator Jacob powered 7:04 a who was a senator from Michigan 7:07 and I suspect although I haven't been able to 7:11 get the evidence but I suspect he was 7:14 the actual author %uh the Citizenship Clause 7:18 the senator Wade skew the covers and Wade 7:22 several years later said that he had been the author have 7:25 every single word of the Fourteenth Amendment except the citizenship classes 7:30 and I think that senator howard had actually authorized Citizenship Clause 7:35 now or when it came to the floor the Senate 7:38 he he was asked several questions as what does it mean to be subject to the 7:42 jurisdiction 7:44 I any cell it means all we know allegiance to any other government 7:49 Alwan exclusive allegiance to the United States 7:52 today we r prone to say get out blocks 7:55 Law Dictionary and look up jurisdiction i mean subject to the Court of the 8:00 United States 8:01 but this is not what Jacob howard said it means all we know allegiance to any 8:04 other country 8:06 exclusivity legions why did they say that now is very good question that 8:10 and it's one that I am happy to answer the 8:13 civil rights activated 66 had also 8:17 specified a citizenship 8:21 because they wanted to make it clear that the newly freed slaves were going 8:25 to be citizens of the United States 8:28 and there was a debate which senator howard also took place 8:32 and they were asked to why don't we put a allegiance in 8:36 now he said allegiance was a term a blog art 8:40 under the common law if you look at Blackstone I'll mention black stunning 8:44 in a moment 8:45 if you look at Blackstone allegiance is the the basis for 8:50 British birthright citizenship and there are several 8:54 a types the legions 8:57 there's temporary allegiance those soared sojourner 9:01 allegiance and so on and so forth and what Jacob power said is we didn't want 9:06 to 9:07 put anything in the constitution 9:10 they gave any idea that citizenship was based upon 9:14 the British common law in so they used 9:17 a jurisdiction has a republican 9:21 substitute small arms and big are yes 9:25 small are as well as big are but substitute for 9:28 collegiate and that's what he said and it makes perfect sense 9:32 now another objection the came from the floor of the senate were 9:35 when Howard to introduce the the citizenship laws was 9:40 will this make indians but citizens of the United States 9:44 and howard said not meaning Indians in the system nadine area American yes a 9:49 person's will this make 9:50 that the phrase that use but will this Nate make needy person citizen he said 9:54 no 9:55 they were born in the United States of course but they do not 9:59 0 allegiance to the United States a all these to the tribe's 10:03 and not to the United States they will not become citizens as a result 10:07 so for the same reason that American that 10:10 member American Indians were members at their tribes or let's say 10:14 foreign diplomats who travel through the country 10:18 I am I on diplomatic passports are not 10:21 made citizens by virtue of being in the united states and even if a foreign 10:25 diplomat had a child 10:27 that child would not ordinarily be understood to become that's arisen 10:31 the United States and it just so yet so that's the 10:35 thats what he met by at yes but he went further he said 10:39 turn eighty percent well %uh become citizens it will not apply to 10:43 I'll the diplomats a and their families 10:46 nor will it be applied to foreigners 10:50 who happened to be a you know soldier soldiers in the in the country who are 10:53 foreigners 10:54 I and so on and so forth so was it was very comprehensive here 10:58 that a birthright citizenship as understand posted by the British common 11:03 law 11:03 would not be up part of american citizenship now 11:06 one other interesting thing you go to a look at the 11:12 Blackstone for example what it what is the LOV 11:15 birthright citizenship in Blackstone the common law 11:19 birthright citizenship is really quite shocking 11:22 it says birthright citizenship is a duty that you owe to the king 11:27 if you're born within the protection of the King you owe 11:30 allegiance forever to the king this is 11:33 primitive and a sensual and that is a duty that can never be put off 11:39 so once a breeze subject always a British subject 11:43 and Blackstone even admits that this is a feudal 11:46 doctrine that's brought over in to the common law 11:50 a feudal doctrine now at the end of the Declaration of Independence say we 11:54 absolved ourselves from 11:58 allegiance to the King great britain right now 12:01 it seems to me to be impossible that have been absolved our allegiance to the 12:06 King 12:07 which is something that is impossible under 12:11 the British know all the under the claims law that we would at the same 12:14 time 12:15 adopted birthright citizenship as the basis for citizenship 12:19 in a in america me so 12:23 citizenship in america is based upon concert 12:26 and not upon the accident of birth one other element here 12:31 in eighteen a sixty a 8 12:35 this is two years after the a for Team 12:38 amendment has been debated the congress takes up a bill called 12:43 the expatriation act many of the same people who debated the 12:48 42 Mehmet are still in congress debating the expatriation Act including Jacob 12:54 powered 12:54 in and what they realize was that if we're going to have 12:58 a an amendment defining american citizenship 13:03 in american citizenship is going to be based upon considered 13:06 then of course we have to have some provisions for expatriation 13:10 which getting upset chip giving up citizenship so that you can give up your 13:14 citizenship 13:15 and we must allow you to leave the country as long as it's not to escape 13:19 some obligation that you've already incurred or its not to escape 13:24 because I've crime you've committed resold at us yet 13:28 in so a in the debate 13:31 I remember I was walking into the library to look up to and the 13:34 congressional love looking up the debate and I remember walking up the steps the 13:37 library thinking 13:39 wouldn't it be great if they mentioned the declaration of independence and how 13:43 birthright citizenship would be incompatible with 13:47 the idea of consent and so on and so forth and I said that would be too much 13:50 to ask for it when I got the debate 13:52 that's exactly what happened they said the the idea birthright citizenship 13:57 is a fuel doctrine that should be banished from the shores America 14:02 once and for all it isn't in 14:05 in this shows you the the greater literacy the car congress a 14:09 ahead and and those days it is a 14:12 in the feasible doctrine his 14:16 a in the feasible allegiance 14:19 which should be banished from our shores for ever 14:22 it is a fuel doctrine that is incompatible with the principles of the 14:25 Declaration of Independence 14:27 which since Ryans consent is the basis and american cheeses 14:30 citizenship and so I think that that's the final word 14:34 on what the the Citizenship Clause of the Fourteenth Amendment means 14:40 now but the problem the problem is thirty years later 14:43 yes 1898 this there's a supreme court decision 14:47 I which says the opposite you're right and the birthright citizenship is the 14:50 nature American citizenship yes I and a 14:54 child born to a foreigner in the United States 14:57 is a United States citizens by but says it by virtue of being born 15:01 yes here yes now up given that it that this colossal 15:06 mistake from your point of view at least occurs only a generation later 15:10 and that it is it doesn't seem to have been resisted 15:14 subsequently why is it that 15:18 you think birthright citizenship 15:21 remains un-american well it 15:24 I think it remains on american because it's for some all 15:28 inconsistent with the principles of the Declaration of Independence 15:31 but if you could if you acquire citizenship by birth taking but can you 15:35 can give it up 15:36 yes voluntarily thats different from 15:40 ya the old British yeah so where are you you the Kings 15:44 your the Kings the subject and yes nothing you can do can change 15:48 that's at relations that's correct well first ball in 1883 15:52 the there was a another case that confirm the idea 15:56 it used to be a a doctrine of constitutional law 16:00 that whatever in the British common law 16:04 was inconsistent with the principles of the Declaration of Independence 16:08 was repealed by the revolution and the 16:11 case in 1883 stood by those principles 16:15 in that case a a nadie person her 16:19 had presented himself to an elections officer 16:23 asking the boat in the elections officer said no 16:26 you're not a citizen of the United States believes that I renounce my 16:29 allegiance two my tribe 16:31 and I declare my allegiance to the United States and the decision was 16:35 that a self-proclaimed allegiance was not enough 16:38 since the the idea I've concert was based upon a social contract 16:44 there had to be an offer on the part of the government and the acceptance on the 16:47 par 16:48 the individual person and the government had not made an offer 16:51 so self-proclaimed allegiance was not enough 16:54 and so the court said a social compact origins the declaration of independence 16:58 and that was a good decision 17:01 in 1898 as you mention the in the 17:04 $1 K mart case a it's a little bit more complicated because one can marks 17:08 parents 17:09 were legal immigrants in the United States the 17:13 they were incapable unbecoming American citizens 17:16 because there was a treaty between the United States and the emperor of China 17:20 improve China did not want or allow people 17:23 his people to come to America a in a 17:27 become citizens of america and so the stipulation was 17:31 he will allow emigration to you know her to United States is 17:34 with the proviso that they not be allowed to become citizens 17:38 and they declared their allegiance to the Emperor of China that was stipulated 17:43 we retain our allegiance now a 17:46 one can mark was born in the United States legal residents 17:50 he left to visit China when he came back 17:53 immigration officer said no we we're not gonna let you will be construed it says 17:58 so the case went to the Supreme Court and and I think the the Supreme Court 18:02 Maida 18:02 a tremendous mistake by saying that the 14th amendment 18:06 adopted the British common law a birthright citizenship 18:10 there was the biggest vigorous descent the Chief Justice said no 18:15 the Declaration of Independence a as our guidance here the 14th amendment 18:19 adopts the the idea of consent is the basis for citizenship 18:24 and I think the Senate had it right my idea he really was the lone dissenter 18:28 no no no is a five to four decision so it was a very close call 18:32 and I and I think that the the majority opinion there 18:36 simply got it wrong and 10 the ways that I 18:40 10 the very suspicious lines of argument in the majority's decision 18:45 was that the the core tried to cover over the idea that in the British common 18:49 law 18:50 there is no mention up citizen 18:53 there are no citizens under the British common law by sane 18:56 that for our purposes citizen 18:59 and subjects are simply convertible terms 19:02 and and I remembered in all cases a 19:05 by um justice Wilson from an early case 19:10 where he said in the United States there are citizens 19:13 but no subject and I think it was a that declaration of independence 19:18 that a where a the idea of citizenship 19:22 there are no subject in the United States ComEd consent of the governed 19:26 translates subject in the citizens 19:29 when you're expected to be an active participant in the government 19:33 and an active participant in the Garrett in 19:36 the enforcement of rights in in obligations and so on and we like to 19:40 think that still true 19:41 of course here that is that when we have to 19:45 exert all over efforts to to ensure that that 19:49 remains to be true if it's not true to restore it 19:54 as much as we can but a after the 14th amendment 19:59 the what the congress did 20:02 the there was an interesting the Senate Report in 1870 20:08 with the Senate Judiciary Committee was asked to 20:11 do an investigation what was the meaning of the 20:15 Citizenship Clause of the Fourteenth Amendment and 20:18 the report said the the ritz principal thrust 20:22 was to ensure the citizenship with the newly freed slaves 20:26 it was not intended to make citizens uva needy persons 20:30 a and there after congress begin to pass legislation 20:36 a inviting members %uh various tribes 20:39 a offering members a very strives to become citizens if they consented 20:44 become citizens of the United States a 20:47 hand I believe that they were using section five powers 20:51 under the Fourteenth Amendment section 5 says Congress has the power 20:55 to enforce the various provisions a the provision in the 14th amendment 20:59 a now this would mean that congress 21:02 willapa was taking people who were outside the jurisdiction of the United 21:07 States 21:07 and defining them to be within the jurisdiction of the United States 21:11 if they can said and they did this on a try by try basis until 1923 21:17 in which the extended an offer to all needy persons in the United States 21:21 so I believe today congress still has that power 21:26 under Section 5 and they could say that 21:29 her children %uh illegal immigrants born in the United States 21:33 are not within the jurisdiction the United States 21:37 because their allegiance would follow that have their parents 21:41 and I think that the the right decision in the $1 K mart case 21:45 would have been that the allegiance of Wong Kim Ark been born in the United 21:50 States 21:51 have legal immigrants what are followed 21:54 that if his parents their allegiance was a 21:57 to that of the emperor of China now I think 22:00 United States could have said that 22:04 there was an implicit a agreement because they were lead legal citizens 22:09 that one can mark when he became a page 22:12 could a begin the process of becoming a naturalized citizen and so on 22:18 a I think that that would be expected but he would not have been a natural 22:21 born citizen 22:22 I think that the idea of birthright citizenship 22:26 was expelled by the declaration 22:29 and the declaration certainly adopt I skinny the 14th amendment 22:33 certainly adopts that point of view