Are We Subjects or Citizens? Birthright Citizenship and the ConstitutionEdward J. Erler
The following is an updated version of a speech published in Imprimis in July 2008.
This summer, Americans will celebrate the semiquincentennial of the Declaration of Independence—our nation’s 250th birthday. Also this summer, the U.S. Supreme Court will render a decision in the case of Trump v. Barbara, a class-action lawsuit challenging President Trump’s executive order ending the practice of birthright citizenship. The two are connected, because Trump v. Barbara involves issues fundamental to the meaning of the Declaration and the future of the American experiment in republican government. It is worth the time and effort of every citizen to understand its importance.
Birthright citizenship—the policy whereby the children of illegal aliens born within the geographical limits of the United States are entitled to American citizenship—is a great magnet for illegal immigration. Many believe that this policy is an explicit command of the Constitution, consistent with the British common law system. But this is simply not true.
The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms citizen or citizenship. The idea of birthright subjectship, as Blackstone readily admits, is derived from feudal law. It is the relation of master and servant; all who are born within the protection of the king owe perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under the common law is thus the doctrine of “perpetual allegiance.”
America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” According to Blackstone, the common law regards such an act as “high treason.” So the common law—the feudal doctrine of perpetual allegiance—could not possibly serve as the ground of American (i.e., republican) citizenship. Indeed, the idea is too preposterous to entertain!
James Wilson, a signer of the Declaration of Independence and a member of the Constitutional Convention as well as a Supreme Court Justice, captured the essence of the matter when he remarked: “Under the Constitution of the United States there are citizens, but no subjects.” The transformation of subjects into citizens was the work of the Declaration and the Constitution. Both are premised on the idea that citizenship is based on the consent of the governed—not the accident of birth............
https://imprimis.hillsdale.edu/are-we-subjects-or-citizens-birthright-citizenship-and-the-constitution/
