Updated: Apr 16, 2019
This summer marked the 150th anniversary of the 14th Amendment to the US Constitution, which was ratified on 9 July 2018 and secured birthright citizenship for all persons born on US territory by providing that ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside’. Since the conclusive interpretation of this provision by the US Supreme Court in United States v. Wong Kim Ark (1898) this principle has only occasionally been challenged, for example by Peter Schuck and Rogers Smith in their 1986 book Citizenship Without Consent. There they argued that the ‘jurisdiction requirement’ as laid down in the 14th Amendment should be understood as imposing a consensual qualification to the birthright citizenship principle. They claim it ‘expresses a constitutional commitment to citizenship based on mutual consent – the consent of the national community as well as that of the putative individual member’. Citizenship, therefore, should in their view be granted under the principle of consent rather than under the principle of ascription:
In a polity whose chief organizing principle was and is the liberal, individualistic idea of consent, mere birth within a nation’s border seems to be an anomalous, inadequate measure or expression of an individual’s consent to its rule and a decidedly crude indicator of the nation’s consent to the individual’s admission to political membership …
In its purest form, the principle of ascription holds that one’s political membership is entirely and irrevocably determined by some objective circumstance – in this case, birth within a particular sovereign’s allegiance or jurisdiction. According to this conception, human preferences do not affect political membership; only the natural, immutable circumstances of one’s birth are considered relevant.
The principle of consent advances radically different premises. It holds that political membership can result only from free individual choices. In the consensualist view, the circumstances of one’s origins may of course influence one’s preferences for political affiliation, but they need not do so and in any event are not determinative.
As bills have been unsuccessfully proposed in the US Congress since the early 1990s to amend the rules concerning birthright citizenship, there will be no lack of commentators urging both Congress and President Trump to take a new interest in the issue. The first of such commentaries have begun to appear, going so far as to call on President Trump to issue an executive order: ‘Congress could clarify legislatively that the children of noncitizens are not subject to the jurisdiction of the United States, and thus not citizens under the 14th Amendment. But given the open-borders enthusiasm of congressional leaders of both parties, that’s unlikely. It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens’. The issue now appears to have reached Canada, too.
Author: Dr. Olivier Vonk