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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Citizenship and America’s Unfinished Revolution
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Thursday, November 11, 2021
Citizenship and America’s Unfinished Revolution
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Rogers Smith American by
Birth’s
contributions extend, however, well beyond providing the rich background story
of the Wong Kim Ark decision. Its
broad scope encompasses the common law origins of the doctrine of birthright
citizenship and the early American disputes over its significance in American
law; the political and legal battles over Chinese exclusion; the debates,
taking off just as Wong Kim Ark was
decided, over citizenship for residents of America’s newly acquired overseas
territories; and subsequent immigration and citizenship struggles in the 20th
and 21st centuries, culminating in tense skirmishes over birthright
citizenship and executive power and congressional power during the Trump years.
As this writer knows all too well, these topics generate often vitriolic
discussion, even in academic circles, especially because they are undeniably
deeply bound up with the forms of white nationalism that are resurgent today.
Nackenoff and Novkov, joined in their last chapter by Marit Vike, do not shy
away from those dimensions of current debates, but they provide a commendably
well-grounded, temperate overview that includes placing American policies in the
context of global trends. The book’s prose is unfailingly clear and engaging,
and it will be of enduring value. It
has in my judgment only one major limitation. It would have benefited from more
attention to how the American Revolution posed fundamental challenges to the
English common law doctrine of birthright citizenship and its doctrine of
perpetual allegiance, in ways that shaped many of the subsequent developments
the book examines. American by Birth
begins its examination of birthright citizenship with Calvin’s Case in 1608, as do two older works on citizenship that it
does not cite, but with which its case discussions are largely consistent:
historian James H. Kettner’s classic The
Development of American Citizenship, 1608-1870 (1978), and my own Civic Ideals: Conflicting Visions of
Citizenship in U.S. History (1997). Unlike American by Birth, however, both Kettner and I stressed that Sir
Edward Coke’s opinion in Calvin’s Case
contended that subjects owed an unbreakable, perpetual allegiance to the
sovereign who protected them at birth, and that the American Revolution rested
on a fundamental rejection of this doctrine. The revolutionaries claimed a
right to expatriate themselves from allegiance to a sovereign who had become
tyrannical, and they sought to create systems of republican self-governance in
which the newly independent American “people” would be sovereign instead. Yet
just as the American revolutionaries were far from willing to let most of “the
people” have an actual share in self-governance, many were uncomfortable with
wholly abandoning the common law doctrine of birthright citizenship with
perpetual allegiance in favor of broad rights of expatriation that might breed
anarchy, and certainly might endanger the fragile new republics they were
creating. This tension between the claims on allegiance, as well as the sheer
administrative convenience, provided by the common law view of birthright
citizenship and the right of expatriation that many saw as essential to the
legitimacy of the American revolution haunted many of the early cases on citizenship
that Nackenoff and Novkov review. American
by Birth never mentions expatriation, however, and its only mention of the
doctrine of perpetual allegiance comes when it notes that some conservatives opposed
birthright citizenship for children of Chinese immigrants because the Chinese
government claimed all Chinese owed it perpetual allegiance. While its
discussions are excellent as far as they go, American by Birth neglects this important element in the birthright
citizenship debates. In
my admittedly far from disinterested judgment, this neglect contributes to a
broader failure to lay out very fully the arguments through which Americans
sought to combine a predominant policy of jus soli citizenship with the
commitments to consensually based citizenship that many presented as
requirements of their revolutionary republicanism. For example, although
Nackenoff and Novkov discuss the citizenship provisions in the 1866 Civil
Rights Act, in Section 1 of the Fourteenth Amendment, and in the 1870
Naturalization Act, they do not mention the 1868 Expatriation Act. It called
the right of expatriation “a natural and inherent right of all people”—to my
knowledge, the only right declared to be natural right in the U.S. Code.
Enacted by the same Congress that wrote the 14th Amendment, it is
relevant for considering how far that Congress embraced common law
understandings of birthright citizenship. It also provided a good answer to
those conservatives concerned about China’s doctrine of perpetual allegiance.
The chief aim of the 1868 Expatriation Act was to assert that those doctrines
by foreign governments had no standing in American law. Americans
in the late 18th and 19th centuries were, moreover, not
the first to wrestle with tensions between the undeniable advantages of the
common law’s doctrine of territorial birthright citizenship and the logical
implications of republican doctrines of governance by the consent of the
governed. Republican-leaning
international law writers including Emmerich de Vattel and Jean-Jacques
Burlamaqui did so as well, and Vattel’s views, in particular, played a
significant role in John Marshall’s reasoning about the indigenous tribes as
“domestic dependent nations,” which Nackenoff and Novkov discuss. They played a smaller but non-trivial role in
the debates over the 14th Amendment’s birthright citizenship clause.
Nackenoff and Novkov do not mention these influences. I understand that choice:
they are probably wise not to get too far down into the weeds of these complex
debates. The accessibility and breadth of their book are virtues worth preserving,
even at some cost to scholarly comprehensiveness. Their
book’s limited treatment of doctrines of citizenship by consent does have some
further costs, however. Those doctrines help explain why some of us who have
questioned whether the 14th Amendment resolves the birthright
citizenship status of children of unauthorized immigrants still endorse the
result in Wong Kim Ark. The United States
had consented to having Ark’s parents as permanent members of the American
political community, and in a republic more strongly committed to egalitarian
citizenship via the 14th Amendment, it made sense for this consent
to include guarantees of citizenship for children of permanent resident aliens,
even if the parents were still unconscionably denied opportunities for naturalization.
In comparison to the Ark family, the absent of governmental consent to the presence
in the U.S. of unauthorized immigrant parents renders their children less
clearly born subject to the jurisdiction, the “obedience and allegiance,” of the
United States. Nackenoff and Novkov touch on this argument, but they do not
provide as full an historical context for it as they do for common law versions
of jus soli. In
my view, however, the more important consequence of their limited attention to
consensual understandings of American citizenship is that readers may not come
away with a clear sense of how strong the case is for recognizing that those
born in the nation’s “unincorporated territories” should have 14th
Amendment birthright citizenship. Since Nackenoff and Novkov wrote, the U.S.
Court of Appeals for the 10th Circuit has overturned the District
Court ruling in the Fitisemanu case to
which they commendably call attention. The Circuit Court held that time has
purged the doctrine of “unincorporated territories” of its racist origins and
that it is far from clear that American Samoans want to be U.S. citizens
instead of U.S. nationals, so that it would not be right to impose 14th
Amendment birthright citizenship on them. This ruling not only dismisses the
fact that some American Samoans, including the Fitisemanu plaintiffs, clearly do desire that status. The reality
is that, unlike unauthorized immigrants who are on U.S. territory in violation
of American law (though often with American prompting), the inhabitants of
American Samoa and the other insular territories are on U.S. territory due to
the direct military and diplomatic actions of the U.S. that have made them
so. They are undeniably “subject to the
jurisdiction” of the United States, even more clearly than the “domestic
dependent nations” of America’s indigenous peoples, and more than those present
against the consent of the United States as expressed in its immigration
policies. For the nation’s overseas territories, as is in fact generally the
case, the implications of common law doctrines and consensual doctrines of
citizenship converge—and yet 14th Amendment citizenship remains
denied. In this regard as in many others, the U.S. revolution in favor of
egalitarian republican citizenship remains sadly unfinished. Nackenoff
and Novkov are probably right, however, to conclude that not even the more
conservative current Supreme Court is likely to abridge the inclusive
birthright citizenship holding of Wong
Kim Ark. I also continue to believe that, even if the courts recognized a
congressional power to legislate over the status of the children of
unauthorized immigrants comparable to the powers the courts uphold in regards
to indigenous peoples and the unincorporated territories, Congress would and
should maintain the current inclusive birthright citizenship policy. Still, I
agree with Nackenoff and Novkov that the potency of current anti-immigrant
tides calls this optimism into doubt. What at this writing seems even more
certain is that the courts will not overturn the denial of 14th
Amendment birthright citizenship to the insular territories any time soon—a
denial deeply contrary to the spirit of Wong
Kim Ark. As long as they do not, the citizenship by birth of those
Americans will remain less legally secure than that of most others, and the
American republic will continue to be just what it professed to rise up against
in 1776. The United States will remain an imperial power with overseas
possessions whose residents lack the full rights of the republican
self-governance that are supposed to be central to American citizenship. Rogers M. Smith is Christopher H. Browne Distinguished Professor of Political Science. You can reach him by e-mail at rogerss@sas.upenn.edu.
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