Citizenship Amendment

It is time We The People clarify via a Constitutional Amendment precisely what is required and who is invited by the citizens of the United States to become a fellow citizen.

The United States has a citizenship problem: National confusion over who is—or should be—a U.S. citizen, and on what terms, stretches from the Founding era to today.

While the Constitution and Amendments mention “citizen,” “natural born citizen,” and “naturalization,” they leave critical questions unanswered: How do those born within U.S. jurisdiction become citizens? What defines a “natural born” citizen? What about the consent of the governed?

This essay reviews relevant constitutional provisions, explores historical practice and jurisprudence, and proposes a consent-based framework for a constitutional amendment that realigns U.S. citizenship with the social-compact theory of political legitimacy.

Constitution

There are three references to citizenship in the original Constitution of 1787:

Article I, Section 8: The Congress shall have power…to establish an uniform rule of naturalization… throughout the United States.

The Framers entrusted Congress with exclusive authority to define how immigrants become citizens. The Naturalization Act of 1790 formalized the process: two years’ residency in the United States, proof of good moral character, and an oath to support the Constitution.

While Congress’s power to regulate naturalization is clear, the Constitution does not define natural born or any other kind of citizenship. Are all persons born on U.S. soil (jus soli) citizens? Does descent from citizen-parents travelling abroad (jus sanguinis) confer citizenship? What of mixed-status births or foreign-born children adopted by citizens?

Article II, Section 1: No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.

None of the Founders were “natural born citizens” for the obvious reason none were born in the United States they created as revolutionary adults. The Founders were born in British colonies. They were natural born British subjects (which included lifetime allegiance to the British Crown, about which we’ll say more below).

The Founders were “citizen(s) of the United States at the time of the adoption of this Constitution,” which is why George Washington, John Adams, Thomas Jefferson, James Madison, and James Monroe were qualified to be President.

Martin Van Buren was the first “natural born citizen” to be elected President. He was born December 5, 1782 in Kinderhook, New York—six years after the Declaration of Independence.

Following the founding generation of Presidents, the Constitution limits future Presidents to “natural born citizens.” Yet, the Constitution does not define that term.

Article IV, Section 2: The Citizens of each state shall be entitled to the privileges and immunities of citizens in the several states.

The laws, police power, and judicial processes of one state cannot discriminate against citizens of other states because “the citizens of each state shall be entitled to the privileges and immunities of citizens in the several states.”

Still, Article IV of the Constitution does not explain what the relationship is between being a citizen of a particular state versus being a United States citizen. Supreme Court Chief Justice Roger Taney, in his majority opinion in the 1857 Dred Scott case, argued that state citizenship and U.S. national citizenship are two distinct subjects unrelated to each other.

Chief Justice Taney—a lifelong Democrat who had been nominated for the Court by the founder of the Democratic Party, Andrew Jackson—insisted it did not matter whether Mr. Scott was a citizen of Missouri or not: He could not be a United States citizen because he was a black man “of African descent.”

According to Taney, the principles of the American Founding—especially the ideas of human equality and equal natural rights enshrined in the Declaration of Independence—did not apply to “negroes of the African race” because they were “beings of an inferior order” who were “altogether unfit to associate with the white race” and “doomed to slavery.”

Overturning Taney’s morally shameful and historically inaccurate opinion in the Dred Scott case was precisely why Republicans wrote and ratified the 14^th Amendment.

Yet, the 14^th Amendment, with its two U.S. citizenship clauses—all persons born or naturalized in the United States and subject to the jurisdiction thereof—has generated more political heat than light, more disagreement than illumination.

Compact is the Essence of Free Society

James Madison repeated the maxim above many times, using different rhetorical formulations in different situations, all meaning the same thing: A compact is an agreement. An agreement, to be mutual, voluntary, and morally legitimate, requires consent.

We could, therefore, restate Madison’s dictum without violating its spirit: Consent is the essence of free society.

We find the same idea in the Declaration of Independence. After reminding readers that the most important rights of individuals are endowments from the Creator that remain unalienable, the Declaration announces: That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The legitimacy of any regime rests upon two fundamental premises: Using government power to secure the unalienable, natural rights of individual citizens, and authorizing the creation and on-going actions of government with the consent of the governed.

“The consent of the governed” is precisely what Madison meant by a “social compact,” according to which each individual agrees with the whole people—and the whole people agree with each individual—to use the powers of the people’s government for the purpose of protecting the equal individual rights of each and every citizen.

Choice?

Imagine the following scenario: You have important upcoming plans, maybe personal, maybe professional. You then receive a letter from a nearby (or not-so-nearby) court announcing that you have been selected for jury duty and the dates conflict with your plans.

Often, accompanying the jury duty notification is a brief reminder that serving on a jury is your civic duty as a United States citizen. It’s your civic responsibility, which is why all 50 states provide legal punishments of one form or another for prospective jurors who fail to show up jury duty.

Some thoughtful Americans whose parents are citizens might pause and ask some obvious questions:

• When did I agree to accept the duties and responsibilities of being a U.S. citizen?

• When did anyone invite me to be a citizen?

• When was I offered a choice, and when did I respond in the affirmative?

And then you are struck by a flashing revelation: There are no obvious answers to these obvious questions! You’ve never actually, positively, affirmatively consented to be a United States citizen. So how and why and when did you become a citizen?

Even if the answer is that you automatically, instantly, legally became a citizen when you were born because your parents are citizens, that fact is embarrassingly inconsistent in a nation founded upon the principle that political legitimacy requires consent.

How can you or I be part of the sovereign We The People—how can we share and exercise the rightful sovereign authority to vote, to hold office, to amend the Constitution, even replace the Constitution—if you and I have never consented to be citizens?

What does it mean that we’ve never been asked if we are willing to accept the great responsibilities that come with being a self-governing, self-reliant citizen willing to fight and protect fellow citizens who are willing to fight and protect us?

Current Controversy

There is a dispute currently being considered by the Supreme Court that revolves around two subjects:

1. Whether a single federal district judge has power to block (via an injunction) a Presidential order directing Executive Branch government agencies.

2. The content of a particular executive order issued by President Trump ending birthright citizenship, or the granting of automatic citizenship to all babies born in the United States regardless of the legal status of the parents.

In this Zetetic Questions essay, I’m not going to explore the first subject. I will simply remind readers that the United States Constitution established three co-equal branches of government, each with distinct powers separated from the other two branches.

The President is not a puppet. Members of Congress and federal judges are not puppeteers.

It is ridiculous to assume that Congress can create myriad unconstitutional Executive Branch agencies and myriad federal courts, and then a single unelected federal judge has power to prohibit the elected head of the Executive Branch—the President of the United States—from managing sprawling Executive Branch bureaucracies.

[NOTE: For those concerned about the reach of Presidential power, the solution is not to have a district judge control the President of the United States; it’s repealing and abolishing the bureaucratic leviathan Congress has created within the Executive Branch.]

Let us focus instead on the idea of birthright citizenship, that the soil upon which one is born and nothing else determines a person’s membership within a political community—what lawyers refer to a jus soli (right of the soil).

Birthright

Birthright was the principle underlying the King's Law, British Law, at the time of the American Revolution. Birthright subjectship was based on a principle shared by many medieval theocratic divine-right monarchies.

Birthright subjectship reflected the connection in medieval feudal Europe between an individual, the soil upon which he was born, and the indissoluble lifetime allegiance owed to the liege lord—the sovereign crown—that was enshrined in English common law.

When, in the Declaration of Independence, the Americans said “of the good people of these colonies” that “they are absolved from all allegiance to the British Crown,” the Americans were rejecting the principle of birthright subjectship and its political corollary, lifetime allegiance.

The modern idea of birthright citizenship is rooted in the medieval, monarchical concept of birthright subjectship.

Recall Madison’s maxim (discussed above) that “compact is the essence of free society,” and it becomes clear that any legal principle equating accident of birthplace with citizenship or national political allegiance is incompatible with the "social compact" theory of the American Founding because there is no consent by either party: the individual becoming a citizen, or current sovereign citizens.

Again, a compact is a mutual, voluntary agreement. If political legitimacy requires agreement among and between citizens, then citizenship itself requires agreement. And agreement requires consent. Not implied or tacit or assumed consent, but clear, articulate consent.

When a witness responds to an ordinary question in court, neither defense lawyers nor prosecutors will accept a nod, or wink, a mumbled “uh-huh,” or any other kind of subtle gesture as an answer. They will demand the witness speaks clearly: “Yes” or “no.” If that kind of clarity is required in a mundane court case, why would we accept anything less regarding the much bigger questions of who should be offered and who is willing to accept the duties of United States citizenship?

I propose, therefore, that We The People of the United States should adopt an Amendment that clarifies these supreme civic questions of citizenship.

Citizenship Amendment

FIRST, those born within the United States to parents who are United States citizens should enjoy basic protections of the law as children. Then, upon becoming legally emancipated adults (18 or 21), they should be asked if they’d like to take an oath of citizenship—an oath that includes a clear statement of the civic rights and the many duties inseparable from being a self-governing, responsible, productive, self-reliant citizen of the United States—or choose not to become a U.S. citizen.

No shrugs or nods should be accepted: Only a clearly spoken “yes” or “no.”

The same can hold true for those born on foreign soil to parents who are U.S. citizens travelling abroad. Let us discontinue the principle of jus sanguinis (right of blood), according to which children of U.S. citizens born on foreign soil automatically become U.S. citizens based on the citizenship of one’s parents. That is no substitute for consent.

Rather, let us clarify in our constitutional amendment that children of U.S. citizens born while parents are traveling abroad will enjoy equal protection of U.S. laws as children, and then upon adulthood they too shall choose whether to become citizens or not.

To be clear: choosing not to become a citizen doesn’t mean a person must leave the United States. Perhaps we offer the equivalent of being a lawful permanent resident? The important thing is that an individual who chooses not to become a U.S. citizen will not vote, will not serve on juries, will not hold any office in government, and certainly will not qualify for any benefits or subsidies funded by U.S. taxpayers.

SECOND, those born within the United States to parents who are not United States citizens should be instructed, as early as possible, that they are not entitled to citizenship simply because of the accident of birthplace.

Of children born to foreign nationals on U.S. soil, the sovereign citizens of the United States should agree, through their representatives in Congress, to whom (if any) they choose to offer citizenship. To avoid ambiguity: The sovereign people of the United States have full moral authority to invite no foreign-born individuals to become fellow U.S. citizens, if We The People think such a policy is wise, just, and in the interest of the United States.

This is a subject about which Americans might change their mind from time to time. It is imaginable that Americans might welcome as potential fellow citizens people from certain nations, tribes, or religions who were once enemies of the United States, or vice versa—people with whom we were once friends but are friends no longer. It is imaginable that Americans might welcome more foreigners to become U.S. citizens in some circumstances, fewer in others.

For whomever Americans invite to become fellow citizens, those individuals will then be given the same choice as above: They may freely consent to become U.S. citizens, or they can decline the offer, in which case their political allegiance and citizenship simply follows their parents.

A Citizenship Amendment solves the problem of divided loyalties or “dual citizenship” by requiring formal allegiance through an oath, reinforcing exclusive loyalty to the United States Constitution.

Consent Trumps Jus Soli & Jus Sanguinis

In all three cases—children born on U.S. soil whose parents are U.S. citizens; children born on foreign soil whose parents are U.S. citizens; and children born on U.S. soil whose parents are not U.S. citizens—no one should be granted automatic birthright citizenship because birthright citizenship is incompatible with the voluntary agreement and consent required for the moral-political legitimacy of a political regime.

Madison was right. Compact is the essence of free society.

The unborn infant within the womb of a foreign national woman who was impregnated by a foreign national man is not entitled to U.S. citizenship—against the wishes of the people of the United States—especially if the foreign national parents enter the United States by violating U.S. laws—just as I am not entitled to citizenship in any foreign nation on Earth.

It is time We The People act upon our Article V powers and clarify via a Constitutional Amendment precisely what is required and who is invited by the citizens of the United States to become a fellow citizen.

Once we adopt a Citizenship Amendment, future United States citizens will share something important in common, whether born to citizens or non-citizens, whether born on U.S. or foreign soil: All Americans will have been invited by We The people of the United States to become a citizen, and all those who accepted the offer will have clearly and affirmatively consented to become a citizen.

It is time We The People conduct a national conversation and clarify what citizenship in the United States means, the connection between citizenship and the "social compact" to which James Madison rightly referred, and what civic rights and duties attend U.S. citizenship. A well-written Constitutional Amendment (which the Fourteenth Amendment was not) can accomplish these goals.