By Birthright, Natural Born
If a high school class uses Google to look up the definition of the word “birthright”, the result features 2 definitions:
a) a particular right of possession or privilege one has from birth, especially as an eldest child; and
b) a natural or moral right, possessed by everyone.
In a recent article about Donald Trump’s plan to deal with immigration, I read the following statement attributed to Stephen Miller, “a senior policy adviser for the Trump campaign.”
Birthright citizenship really is the ultimate magnet for illegal immigration…You can come here under our current policies on a 6-day trip, give birth to a child at a motel, and then your child will be an automatic, lifetime U.S. citizen and in turn will be able to chain migrate you and others into the country on green cards.
Mr. Miller is, of course, referring to the notion, first fully articulated by the U.S. Supreme Court in the United States v Wong Kim Ark, that a person born on the soil of the United States and subject to its jurisdiction is, from birth, a citizen of the United States, even if that person’s parents are themselves the subjects of a foreign power. Mr. Miller refers to this as “birthright” citizenship. But if the same high school students consult the Wikipedia article on birthright citizenship, its first line correctly informs them that “birthright citizenship may be conferred by jus soli or jus sanguinis…”, two Latin terms that mean, respectively, “right of the soil” and “right of the blood”.
There are, therefore, three categories of U.S. citizens:
- Those who are citizens because of their bloodline, which is to say, on account of their biological tie parentage;
- Those who are citizens on account of the fortuitous circumstance that they were personally subject to the jurisdiction of the United States at the time of their birth and their birth took place on U.S. soil and subject to its jurisdiction; and
- Persons naturalized by some provision of the Constitution of the United States; or of the laws made in pursuance thereof.
In light of these considerations, we realize that Mr. Miller’s use of the term “birthright ” in the statement quoted above is, perhaps unintentionally, misleading. He is referring to citizenship from birth by jus soli, a legal right connected with one’s place of birth. But the birthright citizenship that applies to most Americans is by right of blood, jus sanguinis. This latter birthright is, quite simply, the consequence of a natural fact of life. It follows the logic of natural law. As cats produce cats, and humans produce humans, people who are already citizens of the United States produce offspring who are also citizens.
Thus, most American citizens are born that way. It is not a status they have to earn by satisfying some requirement of man-made law. If this were not the case, it would be possible to conceive of a situation in which only inhabitants of the United States who have, for instance, served in the military, would be entitled ‘citizens.’ Fans of science fiction will recognize this possibility as one of the features of Robert Heinlein’s vision of the future in the book Starship Troopers, and the film based on it.
How would you feel about living in the United States as a disenfranchised person simply because you had never served in the armed forces; or being barred, on that account, from serving in any elective or appointed office in the government?
If the requirement of military service doesn’t bother you, what about some other requirement such as, say, service to the Democrat or Republican Party? Aside from what enforced political views that might involve, what about the enforced practice of citizenship itself? That’s not so far-fetched, given that countries like Australia (not to mention totalitarian States like the former Soviet Union) have already, by law, forced people to participate in the political process, or face punishment.
The French philosopher, Rousseau, is famous for proposing that people should be forced to be free. But we Americans hear that as a contradiction in terms. Thomas Hobbes may have considered it freedom when water runs downhill, or fire burns, but there is something in our human nature that balks at the notion that we are simply subject to natural law, like bees, ants or other such creatures. We have the sense that, at least in some vital respects, we are capable of making real choices, choices that conform to our will. And we take that sense seriously, especially when it comes to holding others responsible for actions we regard as a consequence of such deliberate choosing.
Thus, our moral sensibility, including our sense of justice, is profoundly related to this sense that we are capable of choice, at least under certain circumstances. Indeed, to live under conditions that offer little or no scope for such choice is the very definition of imprisonment or abject slavery. Taken to the extreme, it seems tantamount to being deprived of humanity itself.
Is this why liberty is counted among the unalienable rights that are inseparable from our nature as human beings? If indeed, as Rousseau also claimed, we are “born free,” what chains can be more onerous than to be degraded to the point where that birthright is extinguished?
I have often thought, however, that Rousseau’s resounding phrase rang every which way but true. Given the helpless state in which we humans come into the world, wouldn’t it be more accurate to say that we are born for freedom, yet in a condition that requires that we come into our own before we can be truly capable of exercising it? For without their parents, what would become of most helpless human infants? Thus, without the belongings that constitute and preserve our existence per se, what exactly is it that stands, or is set, free by this or that choice of our will?
Except that we are from the beginning bound to be something in particular, our freedom would be an empty set, a potential voided precisely on account of its boundlessness. We are only born free because the capacity for deliberate choice is a function of our particular nature. But in order to realize that capacity, we must respect the definitive bonds that make it possible; we must respect the terms that provide for it, terms movingly enunciated by the prior determination of being itself (which is to say, God) to make our existence possible.
Humanity’s first use of freedom is in the choice to accept or reject those terms. We must choose for or against the way of being, the ways of living, that constitute our humanity. Hence, the first natural law involves the preservation of humanity. From our decision to do right by that law we embark upon the path that leads to all the other exercises of right that set and keep us truly free. This is why it is important that we never lose sight of the truth that our citizenship is not just a matter of human law. It is also a natural fact, dependent on the transcendent will of our Creator.
It is true, therefore, that citizenship must be earned. But in a republic of God-endowed rights the earning must be measured by the rule of “nature and of nature’s God”, not simply human law and imposition. For we must be free in order to claim ownership of the effort required, otherwise it is not we who earn it but whatever moves, albeit against our will, to force us into action. To own the effort, we must take the initiative. We must be the authors of the will it represents, drawing for our determination on the inward being in light of which we know that will to be our own.
In our present discussion, the right of blood represents the inner mind or spirit that gives rise to that free determination. It is a spirit empowered directly by our nature itself, prior to any man-made law or compact, including constitutions or decisions of high tribunals like the Supreme Court. This spiritual heritage is the pedigree that the blood that we bear from our parents represents. By that pedigree we are citizens, born with and for the responsibilities of free men and women. We are in this just like our parents, the men and women of good will who freely consented to be the instruments of God’s will for us.
For it was His will that they should do right by the life that He entrusted to their care. Insofar as they chose to do right, as God determines it, their choice represents to us our heritage as natural born citizens of the United States, the heritage of rightful liberty. It is by birthright antecedent to the highest laws or judgments of merely human making, as befits the natural endowment that comes to us from our Creator.
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