Many perspectives, 1 simple etiquette

Looking to the Founders: Determining Citizenship

Author: David Yee
Created: 13 January, 2015
Updated: 15 October, 2022
6 min read

This is the 20th article of the Looking to the Founders series. Looking back at this series, I've discussed a wide variety of topics, from daylight saving time to water boarding; from religion to pork-barreling. This has generated a great amount of interaction between readers, with ideas, arguments, and ideologies being debated.

Picking topics is always difficult, but for this particular milestone I'd like to address an issue that is likely to define this Congress and the nation as a whole for many years to come: Immigration.

It is a hot-button topic for debate since the very founding of the Republic -- just what is a citizen?

The Constitution

This is where it gets tricky because the Founders chose not to define citizenship in the Constitution. Why not? Because they were still operating within the framework of English common law.

In those days, the principle of jus soli (right of the soil) was absolute; if you were born there, you were a citizen there.

This principle of law came with a double-edge. People born in the colonies were not de facto British citizens, but still were British subjects. For instance, only those born within the British Isles could serve in Parliament -- those born in the colonies could not.

Of course, this very exclusion from the political process is part of what prompted the creation of the United States, but the principle of law remained after the war had concluded.

From a point of common law, if you were born here or resided here at the time the Constitution was ratified, you were a citizen of the United States.

Jus soli has remained in law as almost exclusively a New World phenomenon, with only four nations outside the Western Hemisphere practicing the unrestricted right of soil (ironically, Great Britain is not one of them). In contrast, only a very small handful of South American and Caribbean nations exclude the unrestricted right of soil -- but otherwise it is absolute throughout the Western Hemisphere.

The Naturalization Act of 1790

The first Congress spent most of its time figuring out the nation's finances, through both taxation and public debt. It did, however, take a moment to define citizenship for those entering after the ratification of the Constitution. It also gave citizen status to those born overseas -- to a father who was a citizen

The action of the first Congress would become the future gold standard for immigration and citizenship. There were no immigration laws at this time, no waiting lists or quotas -- you just showed up.

Once here, residents had to live here for at least one year, have good moral character, and take an oath before a court supporting the Constitution in order to become a citizen. Any children under the age of 21 in the same household were also deemed citizens.

The worries of Jacobins from the French Revolution coming to America expanded the time requirement to 5 years, which is even the standard today. This was the significant point to make: it was time of residence that gave you the right of citizenship.

This law also codified the principle of jus sanguinis (right of the blood) -- if you were born of an American father abroad, you were a citizen of the United States (as long as the father had actually lived in the United States).

This principle is a bit murky, since law of this time saw a married couple as one legal unit, not two separate individuals. This entire law also assumed that the persons were all of white-descent.

An important point to notice is that the right of citizenship to those born abroad is a privilege of law, not a right of the Constitution or court interpretation.

MCILVAINE v. COXE'S LESSEE  6 U.S. 280 (1805)

This case serves as an anchor in our laws -- that current moral conduct is the essence of citizenship.

The Supreme Court, led by Chief Justice John Marshall -- a veteran of the Revolutionary War -- took up this case to resolve issues leftover from the Revolution.

At issue was the inheritance of Daniel Coxe. Coxe, during the Revolution, served as a Loyalist and eventually fled the country. After the Revolution, but prior to the ratification of the Constitution, he returned and continued a moral life, in spite of some substantial persecution.

Upon the death of his father, he stood to inherit a large sum of property, which was in turn challenged by other potential heirs because of his actions during the Revolution. They argued that because he took up arms against the Republic, he could not be a citizen (which meant he could also not own/inherit property).

The Supreme Court recognized the sensitive nature of the case in its opening statement, but also clearly stated that the law reigned supreme:

"Family disputes are always unpleasant; yet as laws regulating descent, are merely of municipal creation, no one has a right to complain if, by a change of the law, he now receives a less portion than formerly, or even if he receives no portion at all."

The court ruled that it was Coxe's current moral character, displayed for years after the Revolution, that granted him citizenship -- and awarded him the full inheritance.

Jumping ahead another 63 years, the Fourteenth Amendment and subsequent laws and court decisions further codified that all people, regardless of race or sex, were eligible for citizenship under the law.

The Resulting Formula for Citizenship

As always, we jump ahead to 2015 and examine what the Founders laid out for us, and indeed, it was a formula for citizenship: Residence + Time + Moral Conduct = Citizen.

In January 2013, President Obama issued a four-part plan for resolving the nation's immigration problems:

  1. Strengthen borders;
  2. Punish companies hiring illegal workers;
  3. Hold undocumented immigrants accountable; and
  4. Streamline the immigration system.

Point 3 included placing undocumented immigrants at the back of the line for citizenship, mandatory English proficiency, paying taxes, paying a fine, and criminal background checks.

In November 2014, President Obama issued an executive order that would:

  1. Offer a reprieve from deportation for undocumented parents of U.S. citizens who had resided in the United States for at least 5 years without committing a crime; and
  2. Expanded a current law to allow older legal residents to apply for DACA benefits.

Are President Obama's actions consistent with the framework the Founders left us? (And we're not debating the merits of executive orders; all presidents except one since Washington have issued them.)

The problem is we can't answer that question. The immigration debate has become something the Founders never envisioned, one of protectionism, quotas, and waiting lines.

Instead, we have a new formula: Immigration Rules and Quotas + Residence + Time + Moral Conduct + Job Availability = Citizen.

While President Obama's plan was in keeping with the Founder's framework, it wasn't in keeping with the modern framework that has developed over the past 100 years.

Therein lies the problem, and I really don't have a good answer for it.

Are we a nation that is going to welcome all immigrants with open arms, or are we the "Land of the Free," but only if we have a job for you?

Image: John Marshall