Birthright Citizenship and Consent-Based Citizenship in 1776

February 15th, 2011

Prawfsblawg is hosting a debate on whether Section 1 of the 14th Amendment provides birthright citizenship to children of undocumented parents. While I have nothing to contribute to that debate, a few of the posts touched on something I have written about in the past–how did a person become a citizen of the United States in 1776. My article, Original Citizenship, published a few months ago in the University of Pennsylvania Law Review PENNumbra may be of some help on this point.

Professor Jack Chin writes:

Although American law has had Section 1 of the 14th Amendment only since 1868, we had citizens before that, under common law.   The traditional principle of Anglo-American citizenship comes from Calvin’s Case,  77 ER 377 (1608),  which held held that birth in the lands of a sovereign made a person a natural born subject of that sovereign.

Professor John Eastman writes:

So, our first point of disagreement.  Prof. Chin claims that the 14th Amendment “essentially codified Calvin’s Case” and the principal ofjus soli it espoused–once born on the king’s soil, always the king’s subject. . . . Prof. Chin notes that the old common law rule was jus soli.  Indeed, it was.  And there are certainly antebellum-era cases continuing to apply the old common law rule (though none by the Supreme Court itself, to my knowledge).  In 1776, we adopted the common law to the extent not inconsistent with the principles of the Declaration of Independence.  But what is the Declaration if not a full repudiation of the jus soli doctrine?  By it, our Founders claimed a natural right to repudiate their former allegiances and create a new one, establishing a new government based on the consent of the governed.  That was not permissible under jus soli.  Hence, “consent” rather than perpetual feudal allegiance is the model for citizenship we adopted in 1776, though it took some time for the old common law courts and lawyers to come to the full appreciation of what that meant.

I think Professor Eastman has the better argument on the point of how citizenship was obtained in 1776.

It is not correct to say that the doctrine of jus sanguinis from Calvin’s Case was the common law in 1776. My research shows that the colonists expressly rejected Calvin’s Case and turned to a Lockean theory of consent-based citizenship:

During the seventeenth and eighteenth centuries, Lord Coke’s seminal opinion in Calvin’s Case provided the definitive statement of how one became a subject of the King of England. The case held that a person’s birthright subjectship was immutable, perpetual, and could not be abandoned.51 Rejecting this theory, the American colonists turned to the social compact theory of John Locke and the doctrine of volitional allegiance to provide an intellectual and philosophical sup- port for their separation with England.52

While Lockean doctrines “were at least superficially integrated,” social compact theory had only a minimal impact on the practical ap- plication of the law of subjectship in England.64 Most British courts continued to rely on Calvin’s Case.65 However, in the American colo- nies, the “consensual and contractual elements implicit in naturaliza- tion and in the new political theories of the later seventeenth century would slowly emerge to dominate ideas of subjectship and alle- giance.”66 The colonists turned to the Lockean view of the contractual basis of society in which allegiance was tied to protection.

How was citizenship assigned to loyalist dissenters? Two primary theories emerged:

Locke’s contract theory was aptly suited to explain how those who accepted the sovereignty of the Continental Congress became citizens: they willingly entered into a compact. But what happened to the citi- zenship of the loyalist dissenters? In this sense, “Locke’s theoretical scheme was thus ill equipped to deal with the difficult problems of choice raised by the American Revolution.”87 Two doctrines emerged to explain citizenship for the antenati. The first was premised on the state’s imposing citizenship—regardless of the person’s willingness— and the second was based on the granting of citizenship to those who so elected.

One theory imposed citizenship upon those who remained in the United States following Independence.

The first doctrine postulated that when the majority chose to dec- lare independence, everyone was required to submit to the newly or- dained-and-established government, because the United States was the proper successor to the Crown.88 . . .

A different strand of citizenship doctrine resembled a hybrid of Lockean and Cokean theories. People could become citizens either through consent or through conquest.96 Locke’s social contract theory accounted for those persons who voluntarily accepted the new government, while the doctrine of conquest from Calvin’s Case— whereby those conquered owed obedience to the conquerors even if they dissented from their rule—accounted for loyalist dissenters.9

The second theory evolved on the “doctrine of the right of election” whereby people obtained citizenship through individual consent.

In response to the shortcoming in both of these theories, the states developed a “doctrine of the right of election.”103 The premise was simple: “Citizenship in the new republics was to begin with indi- vidual consent.”104 Ramsay wrote that “[c]itizenship, acquired by tacit consent, is exclusively confined to the cases of persons who have re- sided within the United States since the declaration of indepen- dence.”105 The binding choice of loyalty had to be made within a certain period of time. As articulated by William Tilghman, who argued on be- half of the petitioner in M’Ilvaine v. Coxe’s Lessee “[i]n revolutions, every man has a right to take his part. He is excusable, if not bound in duty to take that part which in his conscience he approves.”106

Further, Coke’s Calvin’s Case focused on a doctrine of subjectship, rather than citizenship. The doctrine of citizenship was truly born following the Declaration:

In the wake of the Declaration, citizenship of the United States, a previously unrecognized political construct, was born. While in the past “subjectship” defined one’s allegiance to the king,114 “[t]he status of ‘American citizen’ was the creation of the Revolution.”115 In the words of Ramsay, Americans had, following the Revolution, “changed from subjects to citizens” and the “difference [was] immense.”116 Citi- zenship, in contrast with Cokean subjectship, was not based on perpe- tual allegiance, but rather flowed from individual consent. This new status was created to “govern membership in a free society: republi- can citizenship ought to rest on consent; it ought to be uniform and without invidious gradations; and it ought to confer equal rights.”117

There is a lot to discuss of those born in the United States before, during, and after the revolution. Please check out my article for more details.

Let me stress that my opinion on this topic does not inform my view on how the Fourteenth Amendment should be interpreted. In fact, I am more inclined to agree with Professor Chin’s broader view of the 14th Amendment. In Original Citizenship, I noted that the “Fourteenth Amendment constitutionalized American Citizenship in 1868” and I also lamented that “tragically the promise of citizenship for all people was not realized until the ratification of the Fourteenth Amendment.”