Citizenship and America’s Unfinished Revolution

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

 The University of Kansas Press has long published an outstanding series of books on major decisions of the U.S. Supreme Court.  American by Birth: Wong Kim Ark and the Battle for Citizenship by Carol Nackenoff and Julie Novkov is one of the very best. Like others in the series, it brings to life Wong Kim Ark and his family, and the protagonists in a number of related judicial decisions, in ways that make vivid the human issues at stake in often recondite debates over legal doctrines. In this case, it is sobering but revealing to read how, even though the highest court in the land unequivocally affirmed Wong Kim Ark’s citizenship by birth, he and his children nonetheless continued to face obstacles stemming from doubts about whether they were really Americans.

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 20^th and 21^st 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 14^th 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 18^th and 19^th 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 14^th 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 14^th 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 14^th 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 14^th Amendment birthright citizenship. Since Nackenoff and Novkov wrote, the U.S. Court of Appeals for the 10^th 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 14^th 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 14^th 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 14^th 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.