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04/05/2022

Jeffrey Polet on Edward Erler on Birthright Citizenship
Michael Ramsey

At Law & Liberty, Jeffrey Polet (Hope College, Political Science): An American Birthright? (reviewing [unfavorably] Edward Erler, The United States in Crisis: Citizenship, Immigration, and the Nation State [Encounter Books 2022]).  From the introduction: 

... Erler predicates his argument on the idea that “the nation-state is the only form of political organization that can sustain government and the rule of law.” Arguing against the emergence of the “universal homogeneous state,” Erler asserts that Donald Trump’s presidency fundamentally sought to restore the integrity of the nation-state against such universalizers, particularly as regards citizenship and immigration. In Erler’s view, both of these need further restrictions, and the bulk of the book reviews case law concerning immigration and citizenship. Instead of viewing Trump as an assault against Constitutionalism, Erler argues, we should understand him to be making a last-ditch effort to preserve it against the globalizing technocrats who want to open the borders and allow for birthplace citizenship.

And from later on:

Erler’s reading of case law has one aim in mind: to convince scholars that “there is no such thing as common law citizenship” and that America “finds its legitimacy in the consent of the governed” that itself is clearly “the language of the Declaration of Independence, not that of the common law.” This in turn, supports [ed.: I think maybe he means "rejects"] a “debt of gratitude” approach whereby citizens become subjects who owe allegiance to the Crown. The Declaration “is a clear and authoritative rejection of the common law” by which subjects are turned into citizens, for citizens are made and not born.

What practical difference does this make? According to Erler, if we allow the common law to direct our understanding concerning citizen rights, it would extend them to anyone born on American soil, and this is precisely what Erler objects to. Citizenship, he argues, results not from accident or chance but from rational choice, by which he means that it requires free and reasoned consent from both parties, the individual, and the nation. Birthplace citizenship bypasses the consent of both parties. The common law undergirds birthplace citizenship in the same way the Declaration does free consent. “[C]onsent must be reciprocal. No one can be made a citizen against his will (as is the case with birthplace citizenship) nor can anyone become a citizen without the consent of those who already constitute the body politic.” 

...

At the theoretical level, we might ask whether Erler’s stringent and restrictive immigration policies require his reading of the Constitution as located within the Declaration’s silver frame. Conversely, one wonders whether rejecting that interpretation commits one to open borders or even a more generous immigration and naturalization policy. I’m unpersuaded by Erler’s argument: while his interpretation requires an inflexible immigration policy, the common law interpretation would allow for a more prudent and pliable policy, and I would think a more just one. 

I think the arguments of both the book and the review miss the central point that "those who already constitute[d] the body politic" made the decision to give citizenship to "all persons born ... in the United States and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment.   Professor Erler may be right about the pre-Amendment status of citizenship (I think he's wrong, but that's mostly beside the point); the Amendment seems clear and he has no good argument to the contrary.  (See my article Originalism and Birthright Citizenship for arguments and counterarguments.) He thinks birthright citizenship is a bad idea, and he may be right about that, but at least for an originalist, that shouldn't matter.  Similarly, the review thinks that "the common law interpretation would allow for a more prudent and pliable policy," and perhaps that's right, but again it shouldn't matter.  Both sides seem to have conflated what they think is good policy with what the Constitution requires.