New Orleans The anti-immigrant mad dogs of the Trump administration, including the president, have, from the first day of Trump’s second term, attempted to end birthright citizenship. In the last term of the Supreme Court on a closer than expected vote, the court ruled that the 14th Amendment of the Constitution was clear, and Trump’s executive order ending it was null and void. This all seemed so open and shut, it was hard for me to understand why conservatives were foaming at the mouth and thinking that they had one chance in hell of winning this case, or how were they able to pretzel together such a close vote on such a clear-cut issue.
Blame it on the English, and thanks to the English for clarifying this mystery and continued controversy for me, specifically author and English legal history expert Kathleen Commons in the London Review of Books. The heart of the common law precedent for birthright citizenship comes from Calvin’s Case in 1608 and the affirmation by the English courts of the common law principle of jus soli – birth in the country, rather than jus sanguinis – through parental descent. Robert Calvin was a Scottish child who stood to inherit property in London. The question was whether someone born in Scotland was able to enjoy the same rights and privileges as someone born in England. At the time, both were ruled by King James VI of Scotland who had added the English crown five years earlier. The concept of “subjecthood” combined in this decision to also apply to England’s colonies, including America, and became the basis of American citizenship at the time.
As Commons reports,
Jus soli still holds in the US, incorporated into the constitution in 1868 by means of the Fourteenth Amendment, whose “citizenship clause” states that any child born on American soil and “subject to the jurisdiction” of the US automatically becomes an American citizen. The amendment reaffirmed the older common law rule and swept away the Dred Scott ruling of 1857, with which the Supreme Court had denied citizenship to Black Americans free and enslaved.
Pretty open and shut, right? What anti-immigrant conservatives are trying to use to pry open the door is a revised interpretation of “subject to the jurisdiction”. Sir Edward Coke, the judge who wrote the opinion in Calvin’s Case had put a lock on that door by saying the rights were not simply because of allegiance to the protection of the king, but also the “legal” protection of English laws. This was strengthened by additional arguments that these rights were imbedded in the Magna Carta, superseding guaranteeing rights separate from any royal edict. Commons argues that the efforts to use this clause by claiming that it excludes those present “illegally” or on temporary visas, ignores the fact that there were “no border controls in early modern England…and so there was no “illegal entry” at the time….”
She notes that Justice Clarence Thomas tried to argue that “birthright citizenship was contingent on the status of migrant parents: that they should hold ‘primary allegiance’ to England, testified by their domicile.” She goes further to say,
In practice…the status of migrant parents – whether from countries in amity or enmity—had no bearing on the rights of their English-born children in the 17th century. England was at war with France in the 1690s, but the Aliens Act of 1698 allowed the children of migrants, including French migrants, to inherit property. Indeed, it made no mention of parental affiliation or local allegiance: the child of a migrant borne in England was a “natural born subject.” The question of whether the children of “infidels” could access the same rights was settled in a 1722 legal opinion by several judges on whether Jews could hold property…[which] stated that when infidels ‘are Aliens, they are subject to the incapacities of Aliens…if born in England, they are intilted {sic}to the same Civil Rights with Persons of other Persuasions…born in England.”
Trump, Stephen Miller, and the hater gang are trying again. This time saying children born to foreign diplomats are not entitled to American citizenship, if born here. Trump added children born to mothers who expressly moved her to have children, but lord knows how they would prove that? This door is locked tight, and it has been for centuries, but the assault continues as the radicals try to pry open a crack where they can, hoping that judicial politics gets them something that the law and Constitution won’t allow.