Strengthening Constitutional Self-Government

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The Founding

The 14th Amendment

Two distinguished scholars explore its original meaning. First, poitical scientist Edward Erler

Most revealing, however, was Senator Howard's contention that "every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States." Almost everyone certainly would have understood "natural law" to refer to the social compact basis of citizenship, the basis for citizenship adumbrated in the Declaration of Independence.

The argument of the Declaration grounded citizenship in consent. The natural law argument of the Declaration was a repudiation of the notion of birthright citizenship that had been the basis of British citizenship (i.e., being a British "subject") ever since it was first articulated in Calvin's Case in 1608.

Next, law professor John Eastman:

Such a claim of birthright citizenship traces its roots not to the republicanism of the American Founding, grounded as it was in the consent of the governed, but to the feudalism of medieval England, grounded in the notion that a subject owed perpetual allegiance and fealty to his sover­eign.[33] 

So is "Born in the U.S.A." an anti-American song?  No, as long as we agree through democratic republican principles.  "All men are created equal" means that Americans are free to determine their destiny through proper means--not through the aristocratic principles that underlie birthright citizenship.  In the current debate over illegal immigration, the true egalitarians here, the believers in the Declaration of Independence, are not the "birthers."  This nation long ago stopped recognizing "squatter rights." 

UPDATE:  See at least this earlier post on the 14th amendment, with Richard Adams' comments.

Categories > The Founding

Discussions - 9 Comments

I have known Ed and John for many years; have read their works on "birthright" citizenship, and I am very disappointed in the excerpts which you have posted here. They don't even begin to do justice to their scholarship on the matter.

Frankly, I'm less interested in the scholarship than in the principle. I've heard we are the only country to conduct the business of naturalization in this way. It's high time we stopped this lunacy and tightened up our rules of entry/naturalization.

And I'm so very weary of hearing about how America is a "nation of immigrants," as if we are a people who came from nowhere and created a completely new identity. What complete horsecrap. We are part of the Anglo-Saxon family of nations, our culture's bedrock is West European, and our people have been deeply informed by Judeo-Christian traditions. No people start as blank slates, and we'd better decide how much of our culture we hope to preserve. In the past we put immigrants under enormous pressure to assimilate, but that is in the past now. We cannot afford both open migration and radical multiculturalism -- one of them has to go.

And before someone jumps on me with statistics on first gen immigrants, look at what happens to their children. It's the second and subsequent generations you need to pay attention to. We are actively teaching them to hate America in our schools and in media.

Ric, please post your relevant excerpts here, then. I thought the most important thing they had to say for this audience was basing their argument on the Declaration (contra Redwald, above).

Oh, sorry, did I not sufficiently root my arguments in political theory and "original intent." Sorry to degrade the discourse!

Maybe I'm being simplistic, but I have to think the "immigration" category has to include the peoples we advanced Judeo-Christian Anglo-Saxon western European typed imported involuntarily from various non-Anglo Saxon locales, the peoples we enticed to come to our western shores to provide cheap labor, the peoples (whatever languages they spoke) we accumulated through the realization of our "Manifest Destiny," and the various island peoples who found themselves citizens of the United States by virtue of our military conquests.

And if the ultimate determination of American citizenship is a matter of choice rather than birthright, does that mean that every person born here gets the opportunity to choose --or is that reserved for Anglo-Saxon Judeo-Christians only?

If it's by consent, wouldn't that consent have to be mutual?

You are correct to assume we have an obligation to peoples we shipped here or enticed here, but that obligation doesn't extend to multiculturalism. All who are here must assimilate or the country will ultimately fail. How many history lessons do we need to figure this out? And of course, the longer our borders are left wide open, and the more diverse those migration streams, the harder it becomes to "digest" these people.

Instead of thinking with our hearts, let's try using our heads for a change. This is a very practical matter and, if done correctly, can be resolved humanely and to the benefit of all.

I call your attention to John's 3/30/06 Heritage Foundation presentation in which he cited comments by Senators Trumbull and Howard, the S.Ct.'s dicta in the Slaughterhouse cases, its ruling--particularly--in the 1884 Elk v. Wilkins case to the effect that "subject to the jurisdiction thereof" meant subject to the FULL and COMPLETE jurisdiction thereof. He went on to point out that (as per Blackstone) birthright citizenship was a relic of feudalsim that is incompatible with the political theory of the American founding. Apropos of this, he quoted both Ed's much longer 1997 essay, "Immigration and Citizenship" which developed that claim much more fully. In short, John and Ed based their cases against birthright citizenship on BOTH the Declaration and the Constitution, and I would have referenced both. Ric Williams

We're not in disagreement. The Declaration is more important as the equality of the 14th amendment seems to sweep all other arguments (such as consent of the governed) under the table. John and Ed resist such simplistic ideology.

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