Donald Trump, Elizabeth I, and the English Origins of Birthright Citizenship

A good in-depth piece on the history of birthright citizenship, and how it was derived from British judicial decisions:

The Republican frontrunner’s assertion that the United States is “just about” the only country “stupid enough” to grant citizenship to all children born within its borders is easily proven false. Far from a scarlet letter of perversion, the U.S. policy is more like a badge of membership in the Western Hemisphere, where nearly all countries adhere to a version of the principle, a commonality some scholars argue is a legacy of colonial pro-immigration policies in the New World.

But the term “birthright citizenship” is also misleading. There are actually two common types of birthright citizenship in the modern world, and both are incorporated into U.S. policy. Trump and those who agree with him apparently only object to one of them.

You can be born into U.S. citizenship by being born in the United States—the principle known as jus soli, or “right of the soil.” Most countries in the Americas feature jus soli citizenship. And you can also be born into U.S. citizenship by being born to U.S. citizens, even if you’re born abroad—a concept known as jus sanguinis, or “right of blood.” “Roman law,” said University of Michigan law and classics professor Bruce Frier, “was very distinctly in the jus sanguinis category.” The policy has also frequently been incorporated into modern European states, emphasizing membership in the nation through parentage.

Yet the real irony of calling “birthright citizenship” a peculiarly American stupidity is that historically and theoretically speaking, geographical birthright citizenship is precisely as American as apple pie. That is to say: it’s English—and thoroughly monarchical in origin.

Given his “anchor baby” rhetoric, Trump may be pleased to learn one thing: The case many scholars cite as establishing the theoretical basis for geographical birthright citizenship did indeed involve a troublemaking toddler. The toddler was a Scottish aristocrat, and the case was a property battle.

In 1603, Elizabeth I, the “Virgin Queen,” died without an heir. The solution was to give her cousin Mary’s son, James VI of Scotland, a second crown, making him James I of England. The tough part about that, according to the University of Miami law professor Kunal Parker, author of a forthcoming history of immigration and citizenship law, was that “under English law, aliens—those who were born outside the allegiance to the king—were not able to hold or convey titles of real property.” Thus, in 1608, an English court found itself answering an intriguing question: If two-year-old Scottish infant Robert Colville had been given lands in England, were his claims on those lands valid? The traditional English position at the time of the case, Parker said, “was of course because he’s Scottish and hence an alien he should not have good titles to lands in England.” “Every one born within the dominions of the King of England is entitled to enjoy all the rights and liberties of an Englishman.”

In his influential report on what has, inexplicably given the actual names of those involved, become known as Calvin’s Case, the English judge Sir Edward Coke articulated a distinctly feudal-sounding jus soli principle that formed the basis of much law to come: “Every one born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of—therefore, according to our common law, owes allegiance to—the King and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman.” Furthermore, “Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away.”

In other words: People born in the king’s lands are his subjects and owe him allegiance, while he owes them protection, and there’s nothing the subject can do about it. This idea failed to delight the Lockean consent-of-the-governed junkies of later decades and centuries. As the law professor Peter Schuck and the political-science professor Rogers Smith put it in their famous 1985 critique of U.S. immigration policy, Citizenship Without Consent, “At a conceptual level, [birthright citizenship] was fundamentally opposed to the consensual assumptions that guided the political handiwork of 1776 and 1787.”

Source: Donald Trump, Elizabeth I, and the English Origins of Birthright Citizenship – The Atlantic