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 accident.

"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.

--Elaine Justice

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