THE SOCIAL CONTRACT Fall 1996 Two Yale professors argue against the concept of... Citizenship Without Consent by Peter Schuck and Rogers Smith Introduction by Wayne Lutton To many Americans, it has long seemed irrational to award auto-matic citizenship to children born of parents who are in the United States in direct and knowing violation of laws intended to keep them out. In a book first published in 1985, Yale professors Peter Schuck and Rogers Smith argue that the offspring of illegal aliens are not entitled to birthright citizenship. Schuck and Smith trace the history of the United States concept of citizenship back to its E n gl i s h Common L a w Peter H. Schuck is Simeon E. Baldwin Professor of Law at Yale Law School. Rogers M. Smith is a professor of political science at Yale University. A longer version of this article, based on the authors’ 1986 book Citizenship Without Consent: Illegal Aliens in the American Polity (Yale University Press), appeared in the July 1992 issue of Chronicles and is abridged and reprinted by permission. antecedents. They identify two strands of thought and practice on citizenship: one based on ascriptive principles that support a birthright standard, and another based on the consent of both the potential citizen and the community into which s/he hopes to become a member. The authors conclude that while the two strands have coexisted in the past, the time has come to move toward a more consistent legal standard based on the consensualist viewpoint. Now that the “citizen-child” loophole has emerged as a public policy issue, the arguments raised by Professors Schuck and Smith deserve a serious hearing. In this article adapted from their book, following a description of citizenship as subjectship under a monarchy, the authors point to the work of John Locke in his Two Treatises on Government and indicate that “historian James Kettner views Locke as the theorist who best exemplified the transition from ascriptive subjectship to consensual citizenship.” ocke’s familiar doctrine of government by consent, with its attendant right of revolution, was based on his radically new view of the relationship of children to their parents and to the polity — a L 19 view that stemmed in turn from a thoroughgoing rejection of the medieval portrait of society as a natural, organic hierarchy. To Locke, the most fundamental fact about children was that they were creatures of God, intended to occupy that equal and independent status that is the natural condition of mature, rational beings. This fact, for Locke, defined the limited nature of parental and political authority. Locke agreed that the family was a natural social unit and that parents properly possessed some dominion over their offspring during minority. He maintained, however, that this authority rightfully belonged to both parents, not simply to the patriarchal father. And he insisted, even more vehemently, that parents possessed only limited, tutelary authority over their children, and possessed this authority only while the latter remained incapable of rational self-governance. The state also possessed a limited jurisdiction over children, for its duties stemmed not only from the consensual will of its citizens. It also had to conform to the obligations imposed by the natural human rights that Locke held to be the inviolable and inalienable endowment of all persons. As an authorized executor of the law of nature, THE SOCIAL CONTRACT Fall 1996 the state thus had to protect the moreover, the consent principle that a society could deny child’s right to life, property, and recognizes the aspi-rations and outsiders opportunities for education should the parents dignity of all humanity, for it membership in ways that are arbitrarily violate their duties to urges a world in which all will be h a r s h l y r e s t r i c t i v e o r the child. A child, however, linked politically only by bonds discriminatory. It might also could not be a government’s of mutual agreement. Because mean that a society could freely subject because subjectship these values of personal denationalize citizens against must be based on the tacit or autonomy and communal self- their will, reducing their security explicit consent of an individual definition are so widely shared and status, perhaps even who had reached the age of in American society today, a leaving them stateless. In both rational discretion. Locke morally credible doctrine of civic these instances, adherence to insisted: “A Child is born a membership must give central consent may well violate subject of no Country and importance to membership l i b e r al i s m ' s other d e e p Government. He is under his based on actual, mutual commitment to insuring that the basic human rights of all be Father's Tuition and Authority, consent. secured as fully as possible. As till he come to Age of Discretion; noted above, the and then he is a Free-man, at tension between liberty what Government he will “… permitting a democratic government by put himself under; what body community the power to shape its consent and full politick he will unite himself to.” protection of Locke reveals most of the own destiny by granting or refusing inalienable rights, attractions and limits of the its consent to new members is visible in liberal consent principle. Its attractions theory almost from are considerable: indeed, essential…” its inception, is leading contemporary writers on dramatically citizenship and international law evident if a insist even more strongly than But like ascription, consent democratic government denies Lockean Enlightenment and public law writers did that only also poses serious problems. all obligation to those who are consent is an appropriate basis Although some of these compelled to turn to it but who for political membership. problems can be resolved or are not admitted to be its Consensualism encourages minimized without great citizens. The difficulty points in turn to gen-uine personal commitment difficulty, others are more and development, permitting troubling. First, of course, there a third, related problem. The affir-mation of one's values is a problem of proof. Especially notion of consent is far from through voluntary affiliation with after the fact, it will often be being a self-defining concept. It requires others. At the same time, as the hard to determine who has and n e c e s s a r i l y political philosopher Michael h a s n o t c o n s ent e d t o assumptions about several Walzer has argued, permitting a membership in a particular highly contro-versial questions, democratic community the regime, expressly or tacitly. such as the scope of free will, power to shape its own destiny Second, there is a problem of the nature of informed choice, by granting or refusing its unjust exclusion. As most a n d t h e a v a i l a b i l i ty o f consent to new members is liberals have accepted, consent alternatives. By relying upon essential if the community is to to membership must be mutual, notions such as tacit agreement, be able to protect its interests, expressed by the existing it may even smuggle in maintain harmony, and achieve community as well as by the elements of ascription. In the a unifying sense of shared individual. Otherwise, existing c o n t e x t o f c o n s e n s u a l values. When it is combined members will be coerced and citizenship, more-over, the with liberalism's stress on their free choices nullified. But requirement of mutuality may universally held natural rights, this requirement might imply seem to render individual 20 THE SOCIAL CONTRACT Fall 1996 consent hollow in practice because those to whom a state refuses consent may have no practical option to go elsewhere. Persons faced with a choice of only limited, exceedingly harsh alternatives may be more aptly described as compelled than free to choose. More generally, no clear, unproblematic boundary exists between the realms of consent and coercion. Fourth, there is a problem of unlimited expatriation. The consensual principle in its purest form is literally anarchical, jeopardizing all memberships and allegiances. Although some liberals insist that rational individuals can recognize the imprudence of promoting social instability, political societies probably could not survive if their citizens felt free to renounce their memberships unilaterally whenever it seemed convenient to do so. A fifth and related problem of pure consensualism is its narrow, desiccated rationalism. By limiting moral obligations only to those incurred by rational choice, it denies the validity of widespread bel i efs that individuals owe something to their family, community, state, and other social groups, and that these groups owe something to their members. The reality of these affective attachments calls into question the adequacy of basing obligation on rational consent alone. Both the ascriptive and consent principles are thus attractive and problematic in their pure forms. It is tempting, then, to think that the best features of each can be integrated into a coherent law of A m endment's Citizenship citizenship without sacrificing C l a u s e a d o p t e d ( i n a some values that we cherish. significantly compromised form) Doubtless, that hope explains the common-law rule of why American law has b i r t h r i g h t c i t i z e n s h i p , combined the two and has immigration to the United States varied the mix of ascriptive and was entirely unregulated. In consensual elements especially 1980, the number of illegal of birthright citizenship and the aliens in the United States was right of expatriation — over conservatively estimated at time. But American law has between three and a half to six never adequately reconciled million, with the number these elements; no combination increasing by two hundred annually. of consent or ascription that is t h o u s a n d either theoretically satisfying or Approximately two million of practically efficacious, especially these people will eventually in light of current conditions, has receive legal status under the yet been achieved. For 1986 amnesty law, but many example, two recent and others did not qualify or have somewhat related developments arrived in the years since 1982, have begun to place far greater the amnesty cutoff date. strain on the ideological compromises between ascription and consent in “The massive increase in illegal America's citizenship law. The migration to the United States massive increase in illegal migration to the United States and the equally dramatic rise of and the equally dramatic rise of the welfare state have the welfare state have transformed perhaps the transformed… automatic greatest advantage of birthright citizenship from a modern liberal inclusiveness into something of viewpoint — its automatic a disadvantage.” inclusiveness — into something of a di s adv antage. By underscoring the growing If mutual consent is the practical importance of consent as the chief constitutive political i rreduc i bl e c ondi ti on of principle of a liberal society, membership in the American these developments invite us to polity, questions arise about a reconsider birthright citizenship practice that extends birthright on legal and policy as well as citizenship to the native-born philosophical grounds. They children of such illegal aliens. lead us to reject the traditional The parents of such children rule and to propose a more are, by definition, individuals consensualist law of citizenship whose presence within the in which ascribed status at birth jurisdiction of the United States plays a correspondingly reduced is prohibited by law and to whom the society has explicitly role. When the framers of the 14th and self-consciously decided to 21 THE SOCIAL CONTRACT Fall 1996 urban areas. Congress has the power to respond to this infringement of consensualism if it so desires. Although the Citizenship Clause of the 14th Amendment has been assumed to guarantee birthright citizenship to such children ex proprio vigore, the question of the citizenship status of the “The number of births in the U.S. to native-born children of illegal alien parents is not trivial…” illegal aliens never arose during its adoption for the simple reason that no The present guarantee under illegal aliens existed at that time, American law of automatic or indeed for some time birthright citizenship to the thereafter. The debates also establish children of illegal aliens can operate, at the margin, as one that the framers of the more incentive to illegal Citizenship Clause had no immigration and violation by intention of establishing a non-immigrant (temporary universal rule of birthright visitor) aliens already here of citizenship. To be sure, they t h e i r t i m e - l i m i t e d v i s a intended to do more than simply restrictions. When this attraction extend citizenship to native-born is combined with the powerful blacks by overruling the l u r e o f t h e e x p a n d e d reasoning and result in Dred entitlements conferred upon Scott. But they also intended, citizen children and their families through the clause's jurisdiction by the modern welfare state, the requirement, to limit the scope total incentive effect of birthright of birthright citizenship. The citizenship may well become essential limiting principle, significant. In addition to discernible from the debates anecdotal evidence that many (especially those concerned with aliens do cross the border the citizenship status of Native illegally to assure United States Americans) was consensualist citizenship for their soon-to-be- in nature. Citizenship, as born children, a recent study qualified by this principle, was illuminates two features of this not satisfied by mere birth on phenomenon. First, the number the s oi l o r by nak ed of births in the United States to governmental power or legal illegal alien parents is not trivial jurisdiction over the individual. — a conservative estimate Citizenship required in addition places the number as in excess the existence of conditions of seventy-five thousand each indicating mutual consent to year. Second, these births — political membership. Our interpretation certainly and the public costs that they entail — are disproportionately does not imply that children of con-centrated in a relatively few illegal aliens are not entitled to deny membership. And if the society has refused to consent to their membership, it can hardly be said to have consented to that of their children who happen to be born while their parents are here in violation of American law. 22 any constitutional protection. Indeed, those children (and perhaps their parents as well) may have legitimate moral or humanitarian claims upon American society. We may be said to have incurred moral obligations to illegal aliens by encouraging them to migrate here, by enriching ourselves through their labor, by absorbing them into our communities, by inviting legitimate expectations of humane treatment, and by other behavior. But even if moral obligations to illegal aliens exist and are compelling, they by no means imply birthright entitlement to American citizenship. Again, that does not mean that policy toward illegal aliens is morally unconstrained. For children who have already been born here of illegal alien parents, for example, a retroactive change in the law depriving them of their citizenship status would violate important expectation and reliance interests and create great confusion and uncertainty. But these concessions to prudence, fairness, and humanitarianism should not be taken to d e n y t o the A m er i c a n community the essence of a consensual political identity — the power and obligation to seek to define its own boundaries and enforce them. If Congress should conclude that the prospective denial of birthright citizenship to the children of illegal aliens would be a valuable adjunct of such national self-definition, the Constitution should not be interpreted in a way that impedes that effort. Citizenship status is not necessary to afford THE SOCIAL CONTRACT Fall 1996 illegal aliens and their children at least minimal legal protection and public benefits. They do and should possess certain rights by reason of their presence within the United States. Protection against any risk of statelessness can be assured by statute. Thus, the Constitution need not and should not be woodenly interpreted either to guarantee their children citizenship or to cast them into outer darkness. In the end, the question of birthright citizenship for the c hi l dren of illegal and nonimmigrant aliens should be resolved in the light of broader ideals of constitutional meaning, social morality, and political community. These ideas militate against constitutionally ascribed birthright citizenship in these circumstances. Beyond the issue of the Citizenship Clause’s intent, it is morally questionable to reward lawbreaking by conferring the valued status of citizenship, and it is even more questionable to plant that guarantee in the Constitution. This is true even though some of the lawbreakers are individuals whose ambition, resourcefulness, and family values most Americans would admire. Those characteristics might lead Congress to confer citizenship broadly and easily, but as a matter of informed choice, not constitutional inadvertence. Three basic steps are required to achieve a law of citizenship at birth that is theoretically consistent, practical for addressing current policy problems, and consonant with the nation’s fundamental claim would not be guaranteed to the native-born children of those persons — illegal aliens and “nonimmigrant” aliens — who have never received the nation's consent to their permanent residence. Even the citizenship law of the United Kingdom, for whos e antec edents our common-law citizenship was originally derived, and which continues to adhere to the birthright citizenship principle, does not extend it to the nativeborn children of either illegal aliens or temporary resident aliens. The same is true of other Western European countries. S i nc e the proposed doctrine “Even the citizenship law of the would require a United Kingdom [on which ours is reinterpretation of the Citizenship based] does not extend it to the Clause, the children of either illegal aliens or change should be m a d e temporary resident aliens. The prospectively, same is true of other Western a s s u r i n g citizenship to European countries.” those born in the U n i t e d S t ates while the current On our consensualist understanding has been in reading, those born “subject to effect. Congress, which bears the the jurisdiction” of the United States would be citizens at birth ultimate responsibility for provisionally, in the sense that fashioning the structure of our they would have the opportunity immigration policy, would also upon attaining majority to decide the role of the birthright renounce that citizenship if they citizenship for the children of so desired. At no time, however, illegal and nonimmigrant aliens. would they be vulnerable to any That decision is obviously only a denial of consent to their small piece of immigration membership on the part of the policy. Congress must carefully state. Native-born children of weigh the moral claims of these legal resident aliens would also children to membership relative be provisional citizens at birth to the claims of other groups, and during their minority and assessing the likely effects on would enjoy the same right to illegal immigration of elimiexpatriation. Citizenship at birth nating their present guarantee that its government rests on the consent of the governed. The first step requires a reinterpretation of the Citizenship Clause of the 14th Amendment. Its guarantee of citizenship to those born “subject to the jurisdiction” of the United States should be read to embody the principle of consensual membership, and therefore to refer only to children of those legally a d m i t t e d to p e r m a n e n t residence in the American community — that is, citizens and legal resident aliens. 23 THE SOCIAL CONTRACT Fall 1996 they wished it. Our proposal wou l d t h u s r e t a i n the asymmetry, created by Supreme Court rulings, between affirming the individual's right to selfexpatriation, while denying the nation’s power to denationalize those who are already members. Although a thoroughgoing commitment to pure consensual membership might seem to imply a national power to denationalize citizens at will, the “Nondiscrimination does not existence of such a necessarily imply the same rights power might threaten the vigorous exercise of and benefits that citizenship or basic constitutional legal residence status confers.” freedoms, such as First Amendment political rights, or might create a The second step necessary c ondi ti on of involuntary to realize a consistent, statelessness and thus of acute consensual law of citizenship at human vulnerability. In our book, we consider a birth is to render the right of expatriation more meaningful. number of objections to our We propose that a formal proposal to reinterpret the procedure be established and constitutional guarantee of publicized under which any birthright citizenship. The most citizen, at the age of majority, troubling objective is that our m a y e x p a t r i a te hi m s e l f position does little to address (preserving citizens’ rights to do the problem of the influx and so subsequently as well). status of illegal aliens. Indeed, Despite recurring calls for by eliminating constitutionally legislation fully prescribing mandated birthright citizenship formal expatriation procedures, for their native-born children, the there is no legislated procedure proposal could (depending upon for expatriating oneself within t h e m a g n i t u d e o f i t s the United States under normal countervailing disincentives to circumstances. As a result, few illegal migration) actually know that an expatriation right increase the number of exists, and it is procedurally individuals in illegal status. In difficult to exercise. In that this view, the current birthright sense, citizenship is more citizenship rule has at least one virtue that our proposal lacks. It ascribed than consensual. We would not only permit recognizes that in fact (due native-born citizens to seek largely to ineffective immigration another nationality, but would enforcement) many native-born also guarantee them permanent children of illegal aliens, along residence in the United States if with their parents, will manage of citizenship, and considering how such a change should relate to the more comprehensive, systematic measures for reducing illegal immigration. We are genuinely uncertain about how such an evaluation would or should come out. It is an issue on which reasonable people can differ. 24 to remain here indefinitely. Denying birthright citizenship to those children would add one more obstacle and disadvantage, one more source of stigma and discrimination, to those they must endure as they continue living in American society, as many will be able to do. This dilemma is compounded by the fact that these children's life prospects would be clouded by the action of others over whom they have no control! — in this case, the illegal entry of their parents. Better (defenders of the current rule might argue) to eliminate their cruel disability at the moment of birth than to maintain it thereafter. Although appealing, this argument from life prospects is ultimately unpersuasive. Our proposal to make one's national status turn, at least provisionally, on the national status of one's parents seems more morally acceptable and less determinative of one's life prospects than many other contingent factors — such as inherited wealth, upbringing, or genetic endowment — that are far more likely to shape those prospects in fundamental ways. Indeed, our proposal seems less arbitrary in terms of life prospects than the fundamental concept of birthright citizenship itself, which bases national status wholly upon the accident of geographical location at birth. And even if the innocence of the child and allied concern for his life prospects are accepted as morally or legally relevant, it does not follow that citizenship, as distinguished from mere nondiscrimination, should be the THE SOCIAL CONTRACT Fall 1996 prize for that innocence. [Editor’s note: A communication that question.”] Nondiscrimination does not from Rogers Smith dated necessarily imply the same August 22, 1996 states: “Schuck rights and benefits that and I have never endorsed Still available in print: Citizenship Without Consent: Illegal citizenship or legal residence actually denying birthright Aliens in the American Polity status confers. These children citizenship to children of illegal by Peter H. Schuck and their parents, by being aliens. We have simply and Rogers M. Smith denied birthright citizenship, suggested that the Constitution New Haven: Yale University Press 173 pp., $13.50 pb. would not be treated as the is most coherently read as Dred Scott decision treated permitting Congress to decide blacks; they would not be denied the law’s protection. They would instead be required to Water may cause wars as growth hits cities choose among continuing BEIJING — Water shortages created by the world’s rocketing population to live in illegal status, and extravagant use could spark wars in the 21st century, the United with more limited equal Nations warned at a conference. protection and due rights; “Increasing concern [is] being voiced that the next century may be scarred by wars over water, even as this century has been devastated by seeking to obtain legal wars over oil,” Wally N’Dow, secretary-general of Habitat II, the UN Center status; or returning to for Human Settlements, said in a statement. their home countries. He called for water conventions to prevent future conflicts, warning that Our proposed there was real cause for anxiety because many of the world’s largest rivers interpretation would, flow across international borders. moreover, produce at “In the scramble for water, some of the drier countries of the world have least one benefit. The already threatened water-rich nations,” he said in a speech to the government of a more International Conference on Managing Water Resources for Large Cities truly consensual polity and Towns. But the high cost of implementing reforms often conflicts with the could more truthfully immediate interests of economic development, leaving governments and proclaim to citizens, business reluctant to adopt water preservation measures, officials said. resident aliens, and illegal Water already is scarce in many parts of the world, a problem aliens alike that American exacerbated by the flow of population to urban centers, often in areas with citizenship stands on a scant water supplies, N’Dow said. firm foundation of freely In the developing world, more than one billion people lack clean willed membership. It drinking water and 1.7 billion lack access to adequate sanitation facilities, could more credibly claim UN statistics show. the contemporaneous Dirty water causes 80 percent of diseases in the developing world and kills ten million people a year. a l l e g i an c e a n d , i f Shortages are exacerbated by carelessness, with up to 60 percent of necessary, the personal potable water in developing countries lost through leakage, UN statistics sacrifice of its citizens show. That figure is 12 percent in countries such as Britain and the U.S. than it was able to do The earth’s limited supply of fresh, clean water is further depleted by during the Vietnam War the pollution that industry spews out, N’Dow said. and other corrosive About 95 percent of waste in developing countries — including most of national conflicts. It could the two million tons of human excrement produced daily and all toxic and more persuasively invoke hazardous by-products of industrial production — is discarded untreated, polluting soil, rivers, and aquifers, UN figures show. what it now can only The conference passed on its conclusions to the Habitat II City Summit baldly assert — a held in Istanbul in June addressing the issue of urbanization and its legitimacy grounded in a enviromental and social impacts. fresh, vital, and always — Reuters News Service, via the Pittsburgh Post-Gazette, March 20, 1996 revocable consent. ~ 25