On September 26, the Trump administration asked the Supreme Court to weigh the President’s executive order on birthright citizenship against the Fourteenth Amendment’s grant of citizenship to “persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Opponents of the order, including scholar Akhil Amar, call citizenship “the birthright” of all children born on American soil, “even if his or her parents are here illegally.” As the Court considers the legal question, Americans must also consider what citizenship truly means in America’s constitutional republic.
Citizenship emerged conceptually long before the adoption of the Fourteenth Amendment in 1868. In Victor Davis Hanson’s book, The Dying Citizen, the historian identifies the “property-owning citizens, or politai, [who] enjoyed voting rights in the consensual governments of some fifteen hundred Greek city-states” as the earliest examples of citizens.
Originally, citizens earned their status through military service or civic participation in assemblies. In Athens, only residents who completed military training and whose parents were both Athenians could claim citizenship. Sparta granted citizenship only to men who endured the rigors of its intense military program, the agoge, and proved themselves in war, regardless of their parents’ citizenship. As Aristotle observes in his Politics, “a citizen is not a citizen because he lives in a certain place,” but rather becomes one by earning the exercise of the “supreme power” of self-governance. Through this individualized, service-based approach, citizenship was a system of self-government for those capable of the challenge, not a right inherent in the accident of a birthplace.
Greece, however, was a democracy, a form of government America passed over in favor of constitutional republicanism. Greece’s neighbor, Rome, has more greatly influenced America’s citizenship.
Romans understood duties as the core tenet of their citizenship rather than looking to rights owed to them by a higher body. Roman citizenship included many of the privileges of Grecian citizenship while similarly requiring decades of military service. Participation in the republic was the primary duty of citizens, and it was of such importance that Rome divided the exercise into tiered levels. Full citizens, cives Romani, enjoyed a vast range of political rights, including full suffrage. Other citizens forfeited voting for taxation exemption (civitas sine suffragio), but contributed militarily to the common defense. Through this tiered system, citizenship was tailored proportionately to a citizen’s investment in the republic.
Unlike Greece, Roman citizenship allowed the children of free citizens to receive citizenship, but denied this birthright to children born to non-citizens. Instead of automatically receiving citizenship, residents earned the privilege through military service. After sacrificing for the country, they equally shouldered the burden of republican government. Ultimately, Rome abandoned this system with the Edict of Caracalla, which extended citizenship to most inhabitants and their future children, transitioning to universalized citizenship. The decision gradually led to the collapse of Rome’s empire.
As Europe entered the dark centuries following the fall of Rome, many countries adopted a subject-based citizenship system, where children were born into loyalty to a monarch. Few retained the democratic or republican approaches, and the balance of rights and responsibilities began to shift under the British monarchy. This approach to a subject’s allegiance was upheld in England in 1608, when the English court decided the child of a Scottish subject owed perpetual allegiance to the English monarch by birth alone in Calvin’s Case. By the time of the American founding, England’s common law had fully adopted the doctrine of jus soli, or citizenship by soil. English scholar Sir William Blackstone defended jus soli as a logical consequence of subjectship, saying of children, “upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves.”
At the same time, British philosophers began to question the wisdom of jus soli. In his Second Treatise of Government, John Locke wrote that, “Every man being . . . naturally free,” and unbounded to any tribe or nation, there is “nothing . . . able to put him into subjection to any earthly power but only his own consent.” Such language ignited the flames of the American Revolution.
As Jefferson clarified in his Summary View of the Rights of British America, the colonists “possessed a right which nature has given to all men, of departing from the country in which chance, not choice, has placed them.” Hamilton, who was born in Britain and greatly admired the country, agreed with his political rival, writing in Federalist 22 that “[t]he fabric of American empire ought to rest on the solid basis of the consent of the people.”
In writing state constitutions, the Founders leaned into forms of consent-based citizenship in place of a birthright loyalty. Massachusetts described its state as a “voluntary association,” and Pennsylvania established its government by “common consent.” When forming political bonds based upon the consent of the governed, the Founders discarded jus soli as incompatible with their ideals.
Nearly a century after the Revolution, when extending citizenship to newly freed slaves with the Fourteenth Amendment, the Reconstruction Congress did not redefine citizenship itself. In their view, the Supreme Court’s egregious decision in Dred Scott v. Sanford had done exactly that, rejecting an entire race from the normal process of citizenship. In its infamous 1872 Slaughter House cases, the Court would affirm an understanding that the “main purpose” of the amendment was “overturn[ing] the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States.”
Citizenship, they assured America, would retain the American definition. Senator Jacob Howard called the measure “simply declaratory of what I regard as the law of the land already.” Today, the Founding model remains, but few citizens understand or adhere to it.
Regardless of the Supreme Court’s decision on how citizenship is conferred, little in America will improve until we reclaim the original meaning of citizenship itself. America’s Founders established a nation bound together by self-governing state citizens who had chosen and sacrificed to exercise the responsibility.
Abandoning this heritage has hollowed out our republic, and the responsibility is ours to reclaim it. When dissolving the political bonds of their British citizenship, the first Americans consented to only their new citizenship, even prosecuting British sympathizers for treason. Today, American citizens must honor the tradition of American citizenship by renouncing all foreign allegiances and embracing the duties of consent-based citizenship.
