What constitutes citizenship?

Is someone born on American soil an American citizen? Inquiring minds want to know, so I’ll opine. Many legal maxims have a Latin foundation, and here I will contrast “jus soli” (meaning right of the soil) versus “jus sanguinis” (meaning right of blood), either of which are the primary basis of citizenship the world over.

When the country was first founded, there was no real discussion of what made one a citizen in our Constitution. Instead, the law looked to “constituent” members of society, that is, free people. Slaves were not citizens, despite being born on American soil, because they were not free. In 1775, George Mason said that only “those constituent members from whom authority originated” mattered, because they were the ones who had to give “their approbation (approval) or dissent” to an issue. Thus, as a country, we didn’t ask slaves for their opinion. Imagine that.

The first attempt at a definition of citizen came in 1868 when the Fourteenth Amendment provided, among other things, “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.” This was specifically inserted because of the pre-Civil War Dred Scott decision denying slaves citizenship and the right to seek redress in federal courts. I am glossing over this only for the sake of sticking to the citizenship issue, but the 14th Amendment aimed to correct an incredible travesty that had been foisted on black Americans.

Does the 14th Amendment confer automatic citizenship to anyone born on American soil? I submit that it does, thus I differ with President Trump on this issue. There is an argument that one can make about “subject to the jurisdiction thereof”, but that was to deal with people with differing allegiances to other countries, such as diplomats. I can’t believe that any rational reader would stretch that hard to claim that America’s birthright citizenship has exceptions for poor Hispanics. Yet, for those looking to deny “birthright citizenship” just for being born on American soil, they can look to Europe, Asia, Africa and Oceania as validity for their argument. Almost all nations on those continents require the “jus sanguinis” (right of blood) basis for citizenship. That is, a child gains citizenship from one’s father, just as a child (typically) gains their surname from their father. Or another example, one becomes King because his daddy was King.

Would we really seek to follow a “blood right” citizenship? I sure hope not. Liberty is for all persons, and where one’s ancestors comes from is irrelevant when one is seeking liberty.

The United States of America is different. We had an incredible birth based on liberty, with an inauspicious flaw with the continuation of the slave trade, but we fought a war within our ranks to rid our nation of that oppression. We then adopted the 14th Amendment which, in clear language, grants citizenship to one based on birth on American soil, not based on who was one’s daddy. We fought the Big Daddy King for a reason. While Alexander Hamilton thought only the children of the powerful should ever rule this country (curious, given his illegitimate and less than royal birth), he was drowned out by liberty seeking people seeking a new home for freedom. For that reason, I believe that the child of anyone who is born on American soil is a citizen of this great land until by action or deed they lose that privilege.

Tell me why I’m wrong and why you believe that one’s citizenship depends on who your daddy is. I really want to know.

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock’n’roll and politics or anything that strikes him. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see and visit his website www.kellyrburke.com to view prior columns.