Interestingly enough, dirt citizenship in America did not begin with the Fourteenth Amendment, even though it did expand there.
The British settlement of America began in 1607, at Jamestown, Virginia. The very year after that, the question of dirt citizenship versus birthright citizenship was settled generally in favor of the former with Calvinâ€™s Case.1
Ah, but what is dirt citizenship? What is birthright, or blood, citizenship?
Dirt citizenship, jus soli, or right of the soil, was â€“ my own restatement â€“ a form of citizenship acquired at birth by virtue of owing allegiance to the sovereign, precisely because one was born in territory under his rule. It was a two-way street, the citizen so born owing the sovereign allegiance and the sovereign being bound to protect the citizen through his laws and his arms. Though there was a kind of precedent in the Athenian statesman, Cleisthenesâ€™, abolition of tribes and assignment of the Athenians people to geographically based demes, in the sixth century, BC, and also in the Edict of Caracalla, in 212 AD, the core of our form of dirt citizenship begins with those mutual feudal obligations.
Dirt citizenship now runs not from mutual obligations to the sovereign, as a person, but to the nation as a political entity. (I suppose the Brits might argue the point, today; I speak of America.)
Dirt citizenship had and has some limitations, both political and practical. For example, in portions of a country under hostile foreign occupation, no child born to enemies could be said to have acquired citizenship. Moreover, generally dirt citizenship did not run to children born where sovereignty was not effective.2 Further, although not enemies, the children born to diplomats having diplomatic immunity do not become citizens because their parentsâ€™ duty is owed not to the sovereign or to our own nation but to a foreign sovereign. Practically, this is necessary lest the children, if deemed to be citizens, be used as hostages against the cooperation of someone who should, in the main, be looking out for the welfare of his own state and sovereign. Maybe better said, we all do it that way so that our own diplomats wonâ€™t be held hostage by the exercise of jurisdiction over their children.
Though Calvinâ€™s case settled the question of dirt citizenship, for Britain, at least until partially overturned in 1983, and for us thereafter, it was by no means new law. Indeed, the precedent of the mutual obligations between sovereign and subject that give rise to dirt citizenship go back at least to the thirteenth century, and quite possibly past it.
We, of course, lived under English law until the Revolution and carried over the Common Law, which was already the law of the states, except where expressly refuted by legislation. Among the aspects of the law we continued to respect and follow was dirt citizenship, to include the exclusion for those born in a part of the country where our own sovereignty did not run due to enemy occupation.3
Blood citizenship is acquired from one or both of oneâ€™s parents. It may apply to children of citizens born overseas, for states with dirt citizenship, or it may apply within a nationâ€™s borders, for those without dirt citizenship. As mentioned last week, it is the norm for most of the globe.
I am not, personally, aware of any government that requires both parents be citizens, though this sort of rule has been common in the distant past. There is, though, an interesting and amusing theological aspect to the question. People often act by an unstated consensus, thus I would never even attempt to prove that legislators and judges of days long past had this in mind. Still, one notes that it would have been unconscionable for the state of older days to have denied free white men the right to marry whom they willed, except for reasons of state for certain privileged persons bearing unusually serious obligations (royalty, aristocracy), or in the case of enemy populations, or slaves (who, by the way, are enemy populations). Moreover, per Saint Paul, 1 Corinthians 7: 12-144, and the divinely ordained, â€śAnd the two shall become one flesh,5â€ť it would have been equally unconscionable, from the theological perspective, to deny the, let us say, foreign-born wife the rights of any other wife, since she is one flesh with her husband, who was legally indistinguishable from any other free white man. I mean, if the Christian wife or husband is enough to sanctify, which is to say, get into Heaven, the pagan husband or wife, who are mere mortals to say that a free woman marrying a citizen does not herself become a citizen as nuch as any other woman?
If that sounds silly, look up the fertile octogenarian rule to see how the Bible can dictate secular law. If you want to sound silly, on the other hand, try to claim that there were any legal bars to white men, settling in this hemisphere, marrying white women of any original society, or from marrying Indian women (feather, not dot), at least until the supply of white women was assured.6 â€śBy 1612, the Spanish ambassador to England reported to Madrid that â€śbetween 40 to 50 Englishman were living in Pohawatenâ€™s [Pocahontasâ€™s father] villages and had married Indian women.â€ť7
I mention these things to illustrate that purity of British blood, except in the case of African indentured servants and slaves8 was not a paramount consideration in early American history. It wasnâ€™t really a consideration at all.
One can certainly argue, therefore, that dirt citizenship was or is unwise, bad policy, or culturally and politically â€“ even genetically â€“ suicidal. I think a straight-faced, though not necessarily prevailing, argument can be made that it ought not be allowed it to the children of illegal immigrants. But what cannot in good faith be claimed is that it is either un-British or un-American.
1 77 ER 37 (1608)., or, for those disinclined to follow regular legal citations, who want to read the actual reported case, http://www.commonlii.org/int/cases/EngR/1572/64.pdf. I am indebted to my former law partner, Matt Pethybridge, for bringing this case to my attention, several years ago, as well as extrapolating on its precedents and precedential value.
2 A small and evil part of me wonders if this was in part due to a presumption that all the women in the occupied area would have been gang raped by foreign soldiery, thus putting paternity in doubt.
3 Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99 (1830).
4 New International Version: â€śTo the rest I say this (I, not the Lord): If any brother has a wife who is not a believer and she is willing to live with him, he must not divorce her. 13 And if a woman has a husband who is not a believer and he is willing to live with her, she must not divorce him. 14 For the unbelieving husband has been sanctified through his wife, and the unbelieving wife has been sanctified through her believing husband. Otherwise your children would be unclean, but as it is, they are holy.â€ť
5 Pick your cite, starting with Genesis 2:22-24.
6 Virginia, at least, began complaining about white men marrying Indian girls about five years after the founding of Jamestown, but curiously chose not to act until some three generations later, in 1691. They dumped the proscription on whites marrying Indians fourteen years later, even as Massachusetts enacted a statute which barred Black-White marriages but was silent on the question of Indian-White marriage.
7 No, the authorities were not happy about it. To paraphrase Jerry Lee Lewis, there was a â€śwhole lotta [fuckinâ€™] goinâ€™ on.â€ť http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1236&context=djglp
8 The first legally registered slave owner in Virginia was one Anthony Johnson, who started as a captive sold to Arab slavers, then as an indentured servant. He was black. He was â€śregisteredâ€ť because he took one of his own black indentured servants to court to prove he was a slave. Yeah, he was screwed over by whitey, eventually.
Tom Kratman is a retired infantry lieutenant colonel, recovering attorney, and science fiction and military fiction writer. His latest novel, The Rods and the Axe, is available from Amazon.com for $9.99 for the Kindle version, or $25 for the hardback. A political refugee and defector from the Peopleâ€™s Republic of Massachusetts, he makes his home in Blacksburg, Virginia. He holds the non-exclusive military and foreign affairs portfolio for EveryJoe. Tom’s books can be ordered through baen.com.
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