The Gestation of Birthright Citizenship, 1868-1898: States\u27 Rights, The Law of Nations, and Mutual Consent

This article considers the inheritance of the seventeenth-century English common law conception of the subject in nineteenth-century America and, ultimately, in the Supreme Court’s decision in United States v. Wong Kim Ark (1898). It examines the claims for birthright citizenship derived from British common law and the three principal arguments against them. These latter included: objections to the assertion of a federal common law of citizenship from the perspective of state sovereignty; arguments that the United States should embrace citizenship by blood rather than by birth in order to conform to the practice of the law of nations and other - civil law - countries; and, finally, the social contractarian claim that citizenship should be based on the consent of both the nation and the prospective citizen, rather than derived from a feudally based ascription. The article concludes by discussing Peter Schuck and Rogers Smith’s Citizenship without Consent, which recapitulates some of the arguments against birthright citizenship, and explaining why the common law practice, despite originating in the context of monarchical sovereignty, should be retained in the United States today