William L. Witham Jr. of Dover is a retired Kent County resident judge who served over 40 years in Delaware’s justice system. He is also a former leader in the Army Reserve and National Guard, with 34 years’ service.
Much ink has been spilled over the issue of birthright citizenship. On his first day in office, President Donald Trump ordered a wholesale change in the federal government’s immigration policies. He issued an executive order, titled “Protecting the Meaning and Value of American Citizenship.” This order forbids the government from recognizing the citizenship of any child born in the United States to parents who are not American citizens or lawful permanent residents. It also produced three major lawsuits, as well as four unfavorable district court decisions. The matter, as of this writing, is pending before the U.S. Supreme Court.
This order will impact millions of people born to immigrant parents who have illegally entered the United States and are not citizens. Legally, it was thought that the issue was settled from a historical and interpretation point of view. The case of United States v. Wong Kim Ark, decided in 1898, was believed to resolve the issue, though the Supreme Court did not squarely rectify it. In this case, the Supreme Court upheld the American citizenship of a child born in San Francisco to Chinese immigrant parents. Though the child’s parents were legal residents, the laws at that time had forbidden them from claiming U.S. citizenship. The court did address the impact of the 14th Amendment, which tells us in Section 1, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The court rejected the claim that Wong was not within “the jurisdiction” of the United States because he purportedly owned allegiance to the Chinese empire. At the time of Wong, the United States had not adopted any comprehensive immigration laws that defined legal and illegal residents.
Critics of Wong either claim that it was wrongly decided or that it can be distinguished by its facts and believe that, since the parents were legal residents, the case stands on its limited facts. They further argue that, when the 14th Amendment was debated in 1865, it was clearly designed to create citizenship for Black slaves and free Blacks, not to create a new class of citizens. Certainly, the legislators at the time did not anticipate the tremendous influx of immigrants illegally crossing our borders in recent years.
However, this interpretation conflicts with the common-law understanding of citizenship that has existed in the United States since 1776, when the Revolution from England began. Our Constitution required “citizenship” for federal offices but did not define the term until 1868, when the 15th Amendment was ratified. British common law is best described in the 1809 15th edition of William Blackstone’s “Commentaries on the Laws of England” as “jus soli.” This 18th-century jurist explained, “The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.” This rule applied to all subjects of the king in England. Does this apply to immigrants? The answer is probably yes.
The common-law rule of jus soli comes from a 1608 case known as Calvin’s Case, which arose when King James VI of Scotland ascended to the throne of England as King James I. This union between England and Scotland via a single monarch integrated two kingdoms, and the question was whether people born in Scotland under King James VI were subjects in England or considered immigrants in England as subjects of King James I. The case held that everyone born within the dominions of the king of England — whether in England or in his colonies or dependencies — being under the protection of common law, owes allegiance to the king and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman. This holding became part of the common law that was incorporated into the English colonies in America and thus became the common law of the United States when the colonies successfully separated from England.
The drafters of the 14th Amendment did not alter or comment on the meaning of the term “citizenship” pertaining to other ethnic groups other than Black slaves, so the common-law meaning of “citizenship” remains. I recognize that this is an originalist view. One should note that the original public meaning of the 14th Amendment affirms, rather than denies, birthright citizenship. Courts have never attempted to overturn the original understanding. I would submit that the Supreme Court, which has tended to adopt originalist views, will rule the same.
Reader reactions, pro or con, are welcomed at civiltalk@iniusa.org.
