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Authored by Ryan McMaken via The Mises Institute,
Donald Trump yesterday issued a new executive order declaring that so-called “birthright citizenship” does not apply to the children of foreign nationals residing illegally within the United States.
The order reads, in part:
This misconception is largely due to the fact that, for several decades, US courts and technocrats have conspired to redefine the original meaning of the amendment, and thus apply it to every child of every tourist and foreign national who happens to be born on this side of the US border.
Some have even attempted to define access to birthright citizenship as some sort of natural right. This is a common tactic among some libertarians who have twisted the idea of property rights to extend the idea of a “right” to the governmental administrative act known as “naturalization.”
Even when looking at the issue strictly in terms of procedural legal rights, however, it is clear that the current definition of birthright citizenship is in conflict with the law as originally intended and interpreted.
To understand the central point of contention, let’s note the text of the Fourteenth Amendment itself, which states that citizenship shall be extended to: “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof…”
Note that there are two qualifying phrases here.
The persons in question must be both born or naturalized in the United States and subject to the jurisdiction thereof.
It is this second qualification that remains a matter of debate.
What does it mean to be subject to the jurisdiction of the United States? This issue is explained by legal scholar Hans Spakovsky who notes that advocates of granting birthright citizenship to anyone born in the United States
Congress further reinforced the court’s interpretation by adopting new legislation granting citizenship to all tribal members in 1924. Had the Fourteenth Amendment really granted automatic citizenship to everyone born within the borders of the United States, no such legislation would have been necessary.
In the year 2024, however, advocates of the new and novel interpretation of “birthright citizenship” insist that the child of foreign nationals automatically becomes a citizen of the United States based entirely on the location of birth.
This is a rather odd way of doing things. In historical practice nearly everywhere, citizenship depends largely on the citizenship of parents, or on the parents’ place of birth, and not on the place where parents happen to temporarily reside when the child is born. Thus, historically and globally, the child of foreign nationals is himself a foreign national. This is true, for instance, of children born to American nationals overseas.
Only in the United States does there appear to be widespread confusion about this.
Of course, some libertarian or “classical liberal” readers might argue that such legal precedents are meaningless, and that everyone “deserves” the legal “right” of citizenship. How citizenship is any sort of natural right or property right, however, remains a mystery. Has the child somehow “homesteaded” his citizenship? Obviously not. Has the child entered into a contract with a legitimate property owner to acquire the “property” of citizenship? To ask these questions is to see the absurdity of them.
On the other hand, it is important to note that a lack of citizenship in any particular place does not negate anyone’s property rights. Real property rights—what Rothbard called “universal rights”—exist regardless of one’s citizenship, where he lives, or where he happens to have been born.
Birthright Citizenship Isn't Real | ZeroHedge
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www.zerohedge.com
Donald Trump yesterday issued a new executive order declaring that so-called “birthright citizenship” does not apply to the children of foreign nationals residing illegally within the United States.
The order reads, in part:
There is a common misconception in the United States that the Fourteenth Amendment to the US Constitution mandates that the US government grant citizenship to anyone and everyone born within the borders of the United States.
This misconception is largely due to the fact that, for several decades, US courts and technocrats have conspired to redefine the original meaning of the amendment, and thus apply it to every child of every tourist and foreign national who happens to be born on this side of the US border.
Some have even attempted to define access to birthright citizenship as some sort of natural right. This is a common tactic among some libertarians who have twisted the idea of property rights to extend the idea of a “right” to the governmental administrative act known as “naturalization.”
Even when looking at the issue strictly in terms of procedural legal rights, however, it is clear that the current definition of birthright citizenship is in conflict with the law as originally intended and interpreted.
To understand the central point of contention, let’s note the text of the Fourteenth Amendment itself, which states that citizenship shall be extended to: “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof…”
Note that there are two qualifying phrases here.
The persons in question must be both born or naturalized in the United States and subject to the jurisdiction thereof.
It is this second qualification that remains a matter of debate.
What does it mean to be subject to the jurisdiction of the United States? This issue is explained by legal scholar Hans Spakovsky who notes that advocates of granting birthright citizenship to anyone born in the United States
The courts themselves have historically recognized this distinction, noting that the whole purpose of the Fourteenth Amendment was to grant citizenship to former slaves who obviously were not connected to any other country or sovereign. In the Slaughter-House Cases, 83 U.S. 36 (1872), the court ruled:
This was further confirmed by the Court in 1884 (in Elk v. Wilkins, 112 U.S. 94) when the Court stated that the idea of birthright citizenship did not apply to Native American tribes which were nonetheless within the borders of the United States:
In short, the court recognized that the tribal lands were within the legal jurisdiction of the United States, but this did not mean that everyone born within those borders was automatically granted citizenship. Those tribal members believed to be subjects of “foreign” tribal governments were therefore not “subject to the jurisdiction” of the United States in a way that conferred automatic citizenship.
Congress further reinforced the court’s interpretation by adopting new legislation granting citizenship to all tribal members in 1924. Had the Fourteenth Amendment really granted automatic citizenship to everyone born within the borders of the United States, no such legislation would have been necessary.
In the year 2024, however, advocates of the new and novel interpretation of “birthright citizenship” insist that the child of foreign nationals automatically becomes a citizen of the United States based entirely on the location of birth.
This is a rather odd way of doing things. In historical practice nearly everywhere, citizenship depends largely on the citizenship of parents, or on the parents’ place of birth, and not on the place where parents happen to temporarily reside when the child is born. Thus, historically and globally, the child of foreign nationals is himself a foreign national. This is true, for instance, of children born to American nationals overseas.
Only in the United States does there appear to be widespread confusion about this.
Of course, some libertarian or “classical liberal” readers might argue that such legal precedents are meaningless, and that everyone “deserves” the legal “right” of citizenship. How citizenship is any sort of natural right or property right, however, remains a mystery. Has the child somehow “homesteaded” his citizenship? Obviously not. Has the child entered into a contract with a legitimate property owner to acquire the “property” of citizenship? To ask these questions is to see the absurdity of them.
On the other hand, it is important to note that a lack of citizenship in any particular place does not negate anyone’s property rights. Real property rights—what Rothbard called “universal rights”—exist regardless of one’s citizenship, where he lives, or where he happens to have been born.
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