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Politics & Religion / The Founder’s Understanding of Citizenship
« Last post by Body-by-Guinness on March 29, 2025, 08:51:44 AM »The Founders based citizenship on choices made rather than birth geography, and viewed the issue through a moral lens:
The moral background of American citizenship.
Jeremiah Gridley, leader of the Massachusetts bar when John Adams joined it, said that “a Lawyer ought never to be without a Book of Moral Philosophy on his Table.” In the founding era, moral philosophy was itself part of common law reasoning, as was political philosophy.
This sets the Founders apart not only from the modern academy, with its separate departments for government, philosophy, and law, but even from their British contemporaries of the late 18th century such as the jurist William Blackstone. As James Wilson noted of Blackstone, “He should be read and studied. He deserves to be much admired; but he ought not to be implicitly followed.”
Contra Blackstone, the Founders maintained that if one does not think about common law precedents in particular, and legal reasoning in general, in light of the moral/legal reasoning behind them, one will misread them. The reasoning that justified them was inseparable from the law itself, and informed the scope and limitations of any precedent that followed.
Recall Alexander Hamilton’s comment in his discussion of the constitutionality of the Bank of the United States: he claimed “a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.” A Hamiltonian reading of the Constitution considers both morality and the essential ends of political society. Hamilton was no outlier in that regard.
This, I believe, is where the estimable Professor John Yoo goes wrong in claiming that “the practice and understanding of citizenship in the antebellum era was one of jus soli”—that is, “the law of the soil.” Professor Yoo argues that the Founders inherited a principle which conferred citizenship on all those born within a given geographical territory, and that we should assume this principle remained in place since the Founders never expressly rejected it. Reading according to the moral logic of the law, however, we find that jus soli was in fact not the prevailing logic of citizenship law, and that the true prevailing logic—allegiance to the king—was explicitly rejected.
Indeed, the term jus soli is completely absent from Blackstone’s Commentaries, from “Calvin’s Case” (the landmark ruling that made English subjects of children born in Scotland after the King of Scotland assumed the title of the King of England, even though the two nations remained separate kingdoms), and from all the writings of Edward Coke I have been able to search thus far. “Calvin’s Case” was not about jus soli, or the obligations and rights conferred by the physical location of one’s birth. That physical location was only important insofar as it established the real core principle: an obligation of personal allegiance to the King. Calvin’s allegiance was to James Stuart, the man who was simultaneously King of England and King of Scotland.
The Founders rejected that conception of allegiance and understood citizenship instead as arising from the new principle of consent. New members of the body politic are made by consent. Hence it is simply incorrect to say that the American Revolution did not change this area of law. It was in essence a transformation of the law’s underlying logic. The Revolution put consent and the rights of men in the place that fealty to the King and the common law occupied in English law. That’s what it means to say that consent is central to understanding the Citizenship Clause. It’s the principle at the heart of the matter and, therefore, essential to understanding the limitations of the general rule that children born on U.S. soil and children born to current citizens are citizens of the U.S. Attending to such principles is essential if one is to consider the essential ends of political society as Americans qua Americans understand them.
The question at hand is whether we also make changes to other areas of the law of allegiance, notably who is a U.S. national by birth. What does it mean to say that consent is the central principle of citizenship, and what does it mean to say the American Revolution changed the way we understand who is a member of the community at birth? By Professor Yoo’s own admission, these sorts of questions constitute an understudied area of legal history. Hence it is not fitting to assert that it is perfectly clear that jus soli remained in place between 1776 and the creation of the 14th Amendment, or that “If the Claremont view is right, we should see historical evidence of the states rejecting the common law rule in the years after the Constitution’s ratification.” By Professor Yoo’s own admission, we do not have sufficient evidence yet to claim certainty. Many questions remain unanswered.
For instance: on the principle of consent, is it reasonable to say that giving a woman a tourist visa should be understood as an implicit offer of citizenship to any child born to that woman while visiting the U.S.? That sort of deliberation is itself part of legal reasoning, or, at least, it was in the Founding era, and in the era in which the 14th Amendment to the Constitution was ratified. How far should that reasoning extend? Would it extend to student visas and other temporary visas short of permanent residence?
In a law review article that just was released, Kurt Lash finds mixed evidence: “Granting citizenship to children born to temporarily present non-citizen parents seems to be the best application of the Citizenship Clause, even if not clearly required by the original understanding. In the end, both constructions are textually and historically plausible.”
In other words, it’s debatable how far the line demarcating citizens from non-citizens extends. That’s one of the questions that Trump’s executive order on the subject raises. Perhaps in typical Trumpian manner, the EO goes too far and will, perversely, get in the way of the Supreme Court allowing any limitation. A little more prudence by President Trump might produce better results.
But in the case of tourists, and perhaps others who are here on a short term basis and who are, per tax treaties, not subject to our jurisdiction with regard to taxation of income, the issue becomes very different. The first sentence of the 14th Amendment states that “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.” Implicitly, this assumes that the amendment applies only to those who “reside” in a state—not those who are merely visiting. (Legal theorist Andrew Hyman’s article on this suggest that the language was quite intentional.)
As it is the normal and natural way of humans to pair up and have children, and as those children tend to have the same nationality as their parents, the legal assumption is that their nationality follows. That’s what the Founders established quite clearly in the law of the states after the Revolution and in the Naturalization Act of 1790. The latter specifically called those children born to American citizens, in whatever locale, “natural born” citizens—reasoning not from the location of birth or from their obligation to a monarch but from the chain of consent embodied in their parents. Hence they were changing the underlying principle which was itself part of the law, as they themselves understood the law.
On the other hand, it is also standard for the children of those who are living full time in a community to be citizens of that community. That’s why the simplistic “soil or blood” formulation is a distraction. Professor Yoo asserted that the standard principle was that of soil, and the Founders were merely adding the principle of blood by adding the children born to current citizens. But as far as I can tell, this is nothing more than a conjecture, without proof texts to support it.
Principles in Action
The law of press freedom in the Founding era may serve as a useful analogue for how the states might have treated citizenship law. The Federalist Party read the First Amendment as continuing the colonial common law understanding of freedom of the press, according to which the government was only withheld from exerting restraint on the press prior to publication, not from censoring illicit or seditious materials already in circulation. Freedom of the press in common law was perfectly compatible with prosecution for seditious libel, and in English common law a statement could be judged seditious libel even if it were true.
However, in the common law of the colony of New York (but not in the common laws of the other colonies) true material could not be censored as seditious libel. Only when the matter became a contested issue at the national level did the courts draw out the implications of the Revolution for the common law standard. After the Sedition Act expired in early 1801, we have had a very strong taboo against charges of seditious libel in general, and we have generally rejected the common law understanding of press freedom meaning no prior restraint.
One could easily see an analogy here with marginal questions of citizenship, such as the nationality of someone born to a mother who is temporarily in the U.S. when she gives birth. It is only when the people are forced to think through the underlying principle that we finally “liquidate” (to use Madison’s term) the meaning of our constitutional text.
For this reason, I am curious why Professor Yoo believes that if we read the first sentence of the 14th Amendment as excluding tourists and others not here on a permanent basis, we would be narrowing the existing rule in the U.S. For the most part this seems like an issue that has yet to be adjudicated. The few cases mentioned on the subject, are insufficient to establish a general rule.
Professor Yoo also does not cite evidence for his assertion that it would be strange to expand citizenship at birth to the children of freemen, but to narrow it in other ways at the same time. “Why would the 14th Amendment’s Framers narrow the definition of citizenship for everyone else?” he asks. Even on Yoo’s theory, the definition would not be narrowed for “everyone else,” but only for those few to whom the edge cases apply. And unless we assume a Whiggish idea of history as progressing always from less citizenship to more, we can make no assumption that the 14th Amendment must move exclusively in that direction. Instead we should assume that the framers of the Amendment were teasing out the implications of the new principle—consent, not kingship—established at the Founding.
That the principled basis of citizenship is under threat is clear. In a dispute known as the “Bitcoin Jesus” case, the U.S. is arguing against the claim “that expatriation is a fundamental constitutional right,” because it is not enumerated in the Constitution. But that’s because it’s a fundamental right beyond the Constitution. It’s connected to the principles upon which our regime rests, inseparable from the principles that justified legitimizing our Constitution via ratification by the people. When lawyers are trained not to recognize the connection between the principles upon which the Constitution rests and constitutional reasoning, such anti-American (and ante-American) conclusions follow.
A better way of reading the 14th Amendment is to note that it represented a nationalization of what had been local practices. Consider that in Massachusetts, local residence, and the obligation that came with it for a locality to ensure the well-being of a resident, was an important part of citizenship. The laws were clear about who was a resident: “neither legitimate nor illegitimate children shall gain a settlement by birth in the place where they may be born, if neither of their parents then has a settlement therein.” Why would it be unreasonable for senators, Congressmen, and state legislators proposing and ratifying the Amendment to have that element of the rights of citizenship in mind? Otherwise they might have inadvertently changed local law when they intended to codify it. What formerly had been local matters were being made national ones through the amendment process.
If our Courts still followed common law reasoning in the old sense, that element of New England law might have interesting implications. It might imply that after a certain number of years one can argue that people here illegally have a residence by a kind of adverse possession. That was the law in Massachusetts. It was a form of implicit consent to residence rights: the locals have implicitly allowed the new arrival to join their community. That form of consent, based on longstanding practice, was commonly described by the colonists in their accounts of the scope and limitations of Parliament’s authority over the empire. It’s perfectly intelligible, provided one understands law the way Adams and the other Founders were trained to understand law.
One final point, which few others have raised: why is there no analogy between Indians not taxed and illegal immigrants? There was no category of illegal immigration when the 14th Amendment was passed. There was no limitation on how many people could join the U.S. each year. Native Americans were a separate category. When they moved off Indian lands, they were in a situation more like today’s illegal immigrants than any other group I can think of. And, like the Indians, they are “not taxed,” unless they pay income taxes illegally, via a fake Social Security number or other like fraud. I wonder if that same logic would apply to counting illegal residents for apportionment. But that’s another essay.
In sum, I suspect Professor Yoo is thinking like a law professor more than a Founding or Civil War era lawyer in his reading of the first sentence of the 14th Amendment. The Court that gave us Plessy v. Ferguson might not be the most reliable guide on questions of citizenship. It would be better to reason about our laws the way the Founders did, before law began to take a more modern turn.
Richard Samuelson is Associate Professor of Government in Hillsdale College’s Van Andel Graduate School of Statesmanship.
https://americanmind.org/features/the-case-against-birthright-citizenship-2/citizens-not-serfs/
The moral background of American citizenship.
Jeremiah Gridley, leader of the Massachusetts bar when John Adams joined it, said that “a Lawyer ought never to be without a Book of Moral Philosophy on his Table.” In the founding era, moral philosophy was itself part of common law reasoning, as was political philosophy.
This sets the Founders apart not only from the modern academy, with its separate departments for government, philosophy, and law, but even from their British contemporaries of the late 18th century such as the jurist William Blackstone. As James Wilson noted of Blackstone, “He should be read and studied. He deserves to be much admired; but he ought not to be implicitly followed.”
Contra Blackstone, the Founders maintained that if one does not think about common law precedents in particular, and legal reasoning in general, in light of the moral/legal reasoning behind them, one will misread them. The reasoning that justified them was inseparable from the law itself, and informed the scope and limitations of any precedent that followed.
Recall Alexander Hamilton’s comment in his discussion of the constitutionality of the Bank of the United States: he claimed “a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.” A Hamiltonian reading of the Constitution considers both morality and the essential ends of political society. Hamilton was no outlier in that regard.
This, I believe, is where the estimable Professor John Yoo goes wrong in claiming that “the practice and understanding of citizenship in the antebellum era was one of jus soli”—that is, “the law of the soil.” Professor Yoo argues that the Founders inherited a principle which conferred citizenship on all those born within a given geographical territory, and that we should assume this principle remained in place since the Founders never expressly rejected it. Reading according to the moral logic of the law, however, we find that jus soli was in fact not the prevailing logic of citizenship law, and that the true prevailing logic—allegiance to the king—was explicitly rejected.
Indeed, the term jus soli is completely absent from Blackstone’s Commentaries, from “Calvin’s Case” (the landmark ruling that made English subjects of children born in Scotland after the King of Scotland assumed the title of the King of England, even though the two nations remained separate kingdoms), and from all the writings of Edward Coke I have been able to search thus far. “Calvin’s Case” was not about jus soli, or the obligations and rights conferred by the physical location of one’s birth. That physical location was only important insofar as it established the real core principle: an obligation of personal allegiance to the King. Calvin’s allegiance was to James Stuart, the man who was simultaneously King of England and King of Scotland.
The Founders rejected that conception of allegiance and understood citizenship instead as arising from the new principle of consent. New members of the body politic are made by consent. Hence it is simply incorrect to say that the American Revolution did not change this area of law. It was in essence a transformation of the law’s underlying logic. The Revolution put consent and the rights of men in the place that fealty to the King and the common law occupied in English law. That’s what it means to say that consent is central to understanding the Citizenship Clause. It’s the principle at the heart of the matter and, therefore, essential to understanding the limitations of the general rule that children born on U.S. soil and children born to current citizens are citizens of the U.S. Attending to such principles is essential if one is to consider the essential ends of political society as Americans qua Americans understand them.
The question at hand is whether we also make changes to other areas of the law of allegiance, notably who is a U.S. national by birth. What does it mean to say that consent is the central principle of citizenship, and what does it mean to say the American Revolution changed the way we understand who is a member of the community at birth? By Professor Yoo’s own admission, these sorts of questions constitute an understudied area of legal history. Hence it is not fitting to assert that it is perfectly clear that jus soli remained in place between 1776 and the creation of the 14th Amendment, or that “If the Claremont view is right, we should see historical evidence of the states rejecting the common law rule in the years after the Constitution’s ratification.” By Professor Yoo’s own admission, we do not have sufficient evidence yet to claim certainty. Many questions remain unanswered.
For instance: on the principle of consent, is it reasonable to say that giving a woman a tourist visa should be understood as an implicit offer of citizenship to any child born to that woman while visiting the U.S.? That sort of deliberation is itself part of legal reasoning, or, at least, it was in the Founding era, and in the era in which the 14th Amendment to the Constitution was ratified. How far should that reasoning extend? Would it extend to student visas and other temporary visas short of permanent residence?
In a law review article that just was released, Kurt Lash finds mixed evidence: “Granting citizenship to children born to temporarily present non-citizen parents seems to be the best application of the Citizenship Clause, even if not clearly required by the original understanding. In the end, both constructions are textually and historically plausible.”
In other words, it’s debatable how far the line demarcating citizens from non-citizens extends. That’s one of the questions that Trump’s executive order on the subject raises. Perhaps in typical Trumpian manner, the EO goes too far and will, perversely, get in the way of the Supreme Court allowing any limitation. A little more prudence by President Trump might produce better results.
But in the case of tourists, and perhaps others who are here on a short term basis and who are, per tax treaties, not subject to our jurisdiction with regard to taxation of income, the issue becomes very different. The first sentence of the 14th Amendment states that “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.” Implicitly, this assumes that the amendment applies only to those who “reside” in a state—not those who are merely visiting. (Legal theorist Andrew Hyman’s article on this suggest that the language was quite intentional.)
As it is the normal and natural way of humans to pair up and have children, and as those children tend to have the same nationality as their parents, the legal assumption is that their nationality follows. That’s what the Founders established quite clearly in the law of the states after the Revolution and in the Naturalization Act of 1790. The latter specifically called those children born to American citizens, in whatever locale, “natural born” citizens—reasoning not from the location of birth or from their obligation to a monarch but from the chain of consent embodied in their parents. Hence they were changing the underlying principle which was itself part of the law, as they themselves understood the law.
On the other hand, it is also standard for the children of those who are living full time in a community to be citizens of that community. That’s why the simplistic “soil or blood” formulation is a distraction. Professor Yoo asserted that the standard principle was that of soil, and the Founders were merely adding the principle of blood by adding the children born to current citizens. But as far as I can tell, this is nothing more than a conjecture, without proof texts to support it.
Principles in Action
The law of press freedom in the Founding era may serve as a useful analogue for how the states might have treated citizenship law. The Federalist Party read the First Amendment as continuing the colonial common law understanding of freedom of the press, according to which the government was only withheld from exerting restraint on the press prior to publication, not from censoring illicit or seditious materials already in circulation. Freedom of the press in common law was perfectly compatible with prosecution for seditious libel, and in English common law a statement could be judged seditious libel even if it were true.
However, in the common law of the colony of New York (but not in the common laws of the other colonies) true material could not be censored as seditious libel. Only when the matter became a contested issue at the national level did the courts draw out the implications of the Revolution for the common law standard. After the Sedition Act expired in early 1801, we have had a very strong taboo against charges of seditious libel in general, and we have generally rejected the common law understanding of press freedom meaning no prior restraint.
One could easily see an analogy here with marginal questions of citizenship, such as the nationality of someone born to a mother who is temporarily in the U.S. when she gives birth. It is only when the people are forced to think through the underlying principle that we finally “liquidate” (to use Madison’s term) the meaning of our constitutional text.
For this reason, I am curious why Professor Yoo believes that if we read the first sentence of the 14th Amendment as excluding tourists and others not here on a permanent basis, we would be narrowing the existing rule in the U.S. For the most part this seems like an issue that has yet to be adjudicated. The few cases mentioned on the subject, are insufficient to establish a general rule.
Professor Yoo also does not cite evidence for his assertion that it would be strange to expand citizenship at birth to the children of freemen, but to narrow it in other ways at the same time. “Why would the 14th Amendment’s Framers narrow the definition of citizenship for everyone else?” he asks. Even on Yoo’s theory, the definition would not be narrowed for “everyone else,” but only for those few to whom the edge cases apply. And unless we assume a Whiggish idea of history as progressing always from less citizenship to more, we can make no assumption that the 14th Amendment must move exclusively in that direction. Instead we should assume that the framers of the Amendment were teasing out the implications of the new principle—consent, not kingship—established at the Founding.
That the principled basis of citizenship is under threat is clear. In a dispute known as the “Bitcoin Jesus” case, the U.S. is arguing against the claim “that expatriation is a fundamental constitutional right,” because it is not enumerated in the Constitution. But that’s because it’s a fundamental right beyond the Constitution. It’s connected to the principles upon which our regime rests, inseparable from the principles that justified legitimizing our Constitution via ratification by the people. When lawyers are trained not to recognize the connection between the principles upon which the Constitution rests and constitutional reasoning, such anti-American (and ante-American) conclusions follow.
A better way of reading the 14th Amendment is to note that it represented a nationalization of what had been local practices. Consider that in Massachusetts, local residence, and the obligation that came with it for a locality to ensure the well-being of a resident, was an important part of citizenship. The laws were clear about who was a resident: “neither legitimate nor illegitimate children shall gain a settlement by birth in the place where they may be born, if neither of their parents then has a settlement therein.” Why would it be unreasonable for senators, Congressmen, and state legislators proposing and ratifying the Amendment to have that element of the rights of citizenship in mind? Otherwise they might have inadvertently changed local law when they intended to codify it. What formerly had been local matters were being made national ones through the amendment process.
If our Courts still followed common law reasoning in the old sense, that element of New England law might have interesting implications. It might imply that after a certain number of years one can argue that people here illegally have a residence by a kind of adverse possession. That was the law in Massachusetts. It was a form of implicit consent to residence rights: the locals have implicitly allowed the new arrival to join their community. That form of consent, based on longstanding practice, was commonly described by the colonists in their accounts of the scope and limitations of Parliament’s authority over the empire. It’s perfectly intelligible, provided one understands law the way Adams and the other Founders were trained to understand law.
One final point, which few others have raised: why is there no analogy between Indians not taxed and illegal immigrants? There was no category of illegal immigration when the 14th Amendment was passed. There was no limitation on how many people could join the U.S. each year. Native Americans were a separate category. When they moved off Indian lands, they were in a situation more like today’s illegal immigrants than any other group I can think of. And, like the Indians, they are “not taxed,” unless they pay income taxes illegally, via a fake Social Security number or other like fraud. I wonder if that same logic would apply to counting illegal residents for apportionment. But that’s another essay.
In sum, I suspect Professor Yoo is thinking like a law professor more than a Founding or Civil War era lawyer in his reading of the first sentence of the 14th Amendment. The Court that gave us Plessy v. Ferguson might not be the most reliable guide on questions of citizenship. It would be better to reason about our laws the way the Founders did, before law began to take a more modern turn.
Richard Samuelson is Associate Professor of Government in Hillsdale College’s Van Andel Graduate School of Statesmanship.
https://americanmind.org/features/the-case-against-birthright-citizenship-2/citizens-not-serfs/