Price questions whether birthright citizenship will continue
Should everyone who is born in the United States be considered a U.S. citizen,
even children of illegal aliens? Most scholars said that, under the 14th
Amendment to the U.S. Constitution, the answer is yes, but the long-standing
practice of "birthright citizenship" has come under increasingly
heated debate as immigration reform measures wend their way through Congress
during this election year. Polly Price, an Emory alumna and assistant professor
of law, has taken a fresh look at the concept of "birthright citizenship"
and says that its rootedness in American law is really something of a historical
"The United States stands nearly alone in extending citizenship status
to everyone born within its borders," said Price, who will publish
an article on the origins of birthright citizenship in a forthcoming issues
of the Yale Journal of Law and the Humanities. In most of Europe,
Asia and Africa, she added, citizenship is not automatically extended to
infants born within the countries' borders; usually, at least one parent
must be a citizen in order for a child to have citizenship status.
The American tradition of birthright citizenship, or citizenship based on
where you are born, not who your parents are, has its roots in English common
law. But the way in which birthright citizenship managed to take hold in
English and American law is so complex that its acceptance seems more fluke
than intentional. In fact, if it hadn't been for the descent of the English
throne to a Scot, James VI, in the early 17th century, the notion of being
a citizen of a country by birth within the territory might never have been
adopted by U.S. courts, said Price.
She cites a 1608 case, called Calvin's Case, named for one of James'
Scottish-born subjects, as "the earliest, most influential theoretical
articulation by an English court of what came to be the common-law `rule'
that a person's status was vested at birth, and based upon place of birth--a
person born within the king's dominion owed allegiance to the sovereign,
and in turn, was entitled to the king's protection."
But the outcome of Calvin's Case was anything but a foregone conclusion,
according to Price. "The most remarkable aspect of Calvin's Case
is how a politically charged legal question perplexed many of the most
important English lawyers of the early 17th century," wrote Price in
the article. "When one considers Calvin's Case in the detail
it deserves, it is plain that the importance placed upon territory of birth
was not logically, politically or historically inevitable."
Much of the controversy turned on whether those born in the King's territories
owed allegiance to their sovereign's "natural body," as opposed
to his "political body" (his authority as sovereign). According
to Price, the judges' decision that subjects owed allegiance to the king's
"natural body," or actual person, "equated the relationship
to a king with other personal relationships, such as lord-master and parent-child.
"The most important constitutional aspect of the case is its support
for the idea that a king rules by the law of nature, requiring `natural'
allegiance of all subjects wherever they may be located, not allegiance
solely to the laws of England," said Price. This interpretation of
allegiance from birth being part of a "natural" relationship and
hence, "natural law" (a concept similar to "divine law"),
was to have far-reaching implications for both the English and American
legal systems, Price explained.
The lack of any statutory or constitutional provision governing birthright
citizenship in America prior to the Civil War meant that courts were free
to interpret citizenship questions as they chose, said Price. What they
chose to cite was Calvin's Case. U.S. courts began citing birthright citizenship
as a matter of common law, until the 14th Amendment was passed in 1868.
In America's early years, then, important aspects of citizenship were defined
by the judiciary. Price cites an 1830 Supreme Court opinion on state citizenship
law asserting that, "Nothing is better settled at the common law than
the doctrine that the children even of aliens born in a country, while the
parents are resident there . . . are subjects by birth." Just 27 years
after its 1830 opinion, however, the Supreme Court in the Dred Scott
case would decide "in favor of a rule for federal citizenship which
derived from pedigree and ancestry," Price said. The Dred Scott
decision held that black inhabitants of the U.S. were not "citizens"
within the meaning of the federal constitution.
Price notes that although today we speak of birthright citizenship in terms
of its "automatic" qualities and entitlements, citizenship throughout
American history has been anything but straightforward. Native Americans
and freed slaves were totally excluded from the rule of birthright citizenship
in most states during the first century of the Republic. Even among those
who were considered citizens, "classes" of citizenship carried
the day. White women, for example, were considered citizens but were without
many basic political rights associated with citizenship today.
The surprise, then, is that American courts ever adopted birthright citizenship
at all, given the fact that until well after passage of the 14th Amendment,
"politically no one intended to accord equal citizenship rights solely
on the basis of birth within the territory," Price said. Great Britain,
the nation that gave birth to Calvin's Case, abandoned birthright
citizenship in 1981, after four centuries. "The remaining question
is whether, as a legal practice and a political idea, the United States
rule of birthright citizenship will survive, without the sanction it once
enjoyed as a product of natural law."
In addition to her training at Harvard Law School, Price brings her background
in history to the investigation of legal questions. She received a simultaneous
B.A. with highest honors and M.A. in history from Emory in 1986 and served
as a teaching fellow in history at Harvard. "Historians sometimes criticize
lawyers for studying only the legal rule and not the broader societal and
political circumstances that played a role in forming the rule," said
Price. "I want to bridge the gap between the two disciplines."
Price is as good as her word; she also participates in an informal reading
group with members of the history department.
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