The US Supreme Court now has before it the case of Trump vs. Barbara. The Trump administration is arguing that birthright citizenship is not guaranteed by the Fourteenth Amendment. Since the Amendment’s adoption in the 1860s, advocates of immigration and widespread naturalization have argued that the amendment applies to anyone born on US soil, even if his or her parents are only temporarily traveling within the US. Others have argued that the amendment was intended as a measure designed only to avoid statelessness for former slaves and their children in the United States. That is, the amendment was a post-Civil War measure designed to address a problem of the time.
I have covered this controversy in some detail in an article titled “Birthright Citizenship Isn’t Real.” That article, however, was centered on legal arguments. Whatever one makes of claims surrounding the constitutionality of birthright citizenship, legal arguments alone can’t establish a moral case for birthright citizenship, or establish citizenship as a natural right. A government-created legal “right” is not the same thing as a natural right. History has shown that government judges and their allies argue for all sorts of special legal “rights” that are not derived from natural rights at all. The Supreme Court has ruled, for example, that residents of the US effectively have a “right” to public schooling—paid for by taxpayers, of course—under the so-called equal protection clause. Government judges have also decided that US residents have a “right” to kill human babies in utero, and a “right” to vote. None of these “rights,” however, are based on any property rights derived from the natural rights of life, liberty, and property. The legitimate natural rights—as explained by early classical liberals such as Thomas Jefferson and John Locke—are founded in legitimately held property, such as that acquired through homesteading, peaceful exchange, or the natural ownership of one’s own physical body.
Birthright citizenship, on the other hand—i.e., automatic naturalization based on the political jurisdiction in which one is born—is one of these invented legal “rights.”
This helps explain why, among those who claim to be the protectors of property rights—i.e., many self-described “libertarians”—we virtually never encounter an argument for naturalization based on property rights. For example, in a new press release from the CATO institute, emailed out this morning in response to oral arguments at the Supreme Court (see below), all of the CATO scholars quoted rely entirely on legal arguments about constitutional law and on consequentialist claims about alleged benefits of federally-mandated mass naturalization. Private property is never mentioned. David J. Bier does mention “rights of every…citizen” but, tellingly, no actual property rights are mentioned.
Yet, even if we are talking about protecting the property rights of non-citizens, that is an entirely separate question that does not depend on naturalization or citizenship. If the question is “do non-citizens have property rights in the United States?” the answer is an emphatic “yes.” The Bill of Rights, after all, clearly doesn’t limit itself to citizens. Moreover, the Bill of Rights does not guarantee a right to naturalization or, by extension, a right to vote. In other words, the authors of the Bill of Rights clearly did not view “rights” as reliant on the government-issued status we call “citizenship.” This is because classical liberals in the eighteenth and nineteenth centuries did not believe that voting and citizenship were akin to property rights like “life, liberty, and property.” (I explain in more details in this article.)
So, let’s look more closely at why naturalization is not a property right and why there is no property-based argument—and thus no libertarian case—for mass naturalization or birthright citizenship.
Property Rights vs. Naturalization/Citizenship “Rights”
The first important distinction that must be made is between immigration and naturalization. The two are not at all the same thing.
Immigration is the process of human beings moving from one place to another. In the current context, this nearly always means migration across an international boundary. Immigration policy, therefore, is the process of restricting—or not restricting—the movement of these persons. In practice, the question of immigration policy necessarily raises the question of whether or not government authorities ought to restrict migration by various regulations. Immigration regulation necessarily involves the regulation of property, whether we’re talking about the property of the migrant—in his physical person—or the property of landlords and employers (and other market participants) who seek to contract with migrants.
Naturalization is something different altogether. Naturalization is the process by which persons gain access to political institutions. This requires an administrative act of a government agency. Citizenship can bring with it greater access to taxpayer-funded amenities like the welfare state, but the most crucial aspect of citizenship, in democratic states, is that citizenship provides access to the ballot box and to public office. Unlike immigration policy, naturalization policy does not involve the regulation or property.
Indeed, citizenship is not any type of property and there is, therefore, no natural right to citizenship. In the libertarian view of property, one can acquire property either through homesteading or through contract. Citizenship, in contrast, cannot be obtained through the same means of obtaining property. One cannot “homestead” citizenship or purchase it from the “owner” of citizenship in the private sector.
Moreover, property exists in nature regardless of the existence of civil governments or states. Citizenship, however, does not exist independent of government institutions at all. Citizenship is fundamentally a creature of the state.
This important distinction between bona fide property and citizenship is clear in the real world, as demonstrated by the fact that, worldwide, many millions of immigrants are free to live and work in places where they are not citizens. In the United States, for example, countless non-citizens are free to own property, hold a job, and travel freely. It is not necessary to become a citizen to enjoy natural property rights or even to enjoy procedural rights such as due process rights for criminal trials. In other words, non-citizens can enjoy the same property rights that citizens enjoy.
Do Libertarians who Favor Expanded Naturalization Have an Argument other than “The Constitution Says So”?
It is difficult to find articles by libertarian writers that even acknowledge these distinctions. Even fewer attempt to address it in any detail. The Mises Institute is a rare exception to this. Murray Rothbard provides some brief comments on the artificial nature of citizenship as a product of state power. I have an article covering it here.
With the exception of a handful of Rothbardians, libertarians have been virtually silent when it comes to making a specifically libertarian case for or against naturalization. This has apparently been the case for quite a while since, back in 2012, Mark Krikorian of the Center for Immigration Studies publicly asked—not snarkily, but earnestly—if there is a libertarian position on citizenship at all.
At the same time, Krikorian did note that in exactly one case he had personally encountered a libertarian who acknowledged the difference between naturalization and immigration. According to Krikorian:
[T]he only time I recall a libertarian addressing the citizenship issue … was Jacob Hornberger of the Future of Freedom Foundation. During a panel we were both on Hornberger was challenged that immigrants would vote for socialism; he responded that immigration and citizenship are separate issues, and that immigrants shouldn’t necessarily be allowed to naturalize and vote …
Assuming this anecdote is true, Hornberger is correct on the matter. Like Rothbard, he also gets to the core and key issue of naturalization and citizenship: voting.
This voting issue was also acknowledged, very briefly, in an article by Sheldon Richman, in one of the rare cases where a libertarian has attempted to argue for expanded citizenship on libertarian grounds. Unfortunately, like most articles by libertarians ostensibly about citizenship, it’s mostly an article about immigration mixed in with a bit of legal positivism. However, near the end of the article, Richman admits that the article is really just advocating for immigration and he says “The case presented here might seem to justify no more than legal residency.” To remedy this, Richman provides exactly three sentences on the matter of naturalization. He writes:
What about citizenship? To take that step, one need only consider that a legal resident is subject to the government’s power to tax and regulate. Since his bid for exemption from U.S. government impositions would not be recognized, we are forced to the second-best disposition, namely, that the legal resident ought to have a say—as small as it is—over government policy, that is, the privileges and immunities of citizens.
This seems to be all we’re going to get from immigration expansionists on the topic of citizenship, and it is only a minor afterthought following 800 words of appeals to Constitutional authority. But, at least Richman has bothered to say something about the topic based on an appeal to some sort of presumably libertarian principle.
Every single other “libertarian” article on citizenship I have seen relies solely on legal arguments or, in some rare cases, appeals to the practical benefits of expanded citizenship. (Here’s one that says expanded naturalization is good because it helps “assimilate” immigrants, as if assimilation has something to do with libertarian goals.)
There are a couple of problems with Richman’s very short argument, though. First of all, Richman does not in any way establish that citizenship is a property right of any kind. As such, “protecting” this non-right of citizenship is not mandated by any libertarian principle. This is not necessarily a fatal problem. A libertarian argument could still reasonably advocate for more naturalization on the prudential and pragmatic grounds that expanded naturalization limits state power. That may be Richman’s tactic here.
Yet, it is not at all apparent that the extension of citizenship and naturalization have served to limit the size or scope of the state anywhere. Certainly, the example of expanded citizenship during the French Revolution points in exactly the opposite direction. Indeed, citizenship has historically been an important tool in building the modern centralized state.
Moreover, if expanded citizenship means an extended franchise—which it does in the modern West—then an argument in favor of expanded citizenship would rest on evidence that an expanded franchise has limited state power. It seems that exactly the opposite has happened. Indeed, it is probably not a coincidence that the total war and totalitarianism of the twentieth century closely followed the rise of the modern democratic state.
Richman tells us that citizenship and the vote is a means of residents protecting themselves from the excesses of government taxation and regulation. Yet, in the United States, an ever-expanding franchise has caused—or at least failed to prevent—a multi-fold increase in the burden of taxes and regulations.
It is likely that the early libertarians like the Levellers and John Locke—who opposed the idea of an unlimited franchise—were right all along.
The reasons for this were put into a modern context by Ludwig von Mises who showed in 1944 that that once a sizable portion of the population becomes accustomed to demanding material benefits from the state, then the size of the state will only grow.
So, it appears that the expansion of naturalization and citizenship are not justified by any libertarian claim, whether rights-based or pragmatic. This may be part of why most libertarian pundits so often avoid the issue altogether.
Appendix: The CATO press release on the Supreme Court’s consideration of birthright citizenship does not appear to be available online. Here is the text:
Following today’s oral arguments before the Supreme Court, Tommy Berry, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, was present for the arguments and released the following statement:
“Chief Justice Roberts had the line of the morning when he said, “It’s a new world, but it’s the same Constitution.” That really does sum up why the government’s policy-based arguments had no bearing on the constitutional question.
“Today’s oral argument focused on the original public meaning of the Fourteenth Amendment’s text, which is the correct approach. And a clear majority of the Justices were unconvinced by the government’s argument that this meaning has been misunderstood for over 150 years. As multiple Justices noted, the government’s argument is very difficult to square with the reasoning of the Supreme Court’s Wong Kim Ark decision from more than a century ago. Yet the government did not even ask the Court to overrule that decision if the Court interpreted it to protect traditional birthright citizenship.
“Based on today’s argument, it seems that the most likely outcome is a simple opinion reaffirming that the Court meant what it said in Wong Kim Ark: those born on U.S. soil are U.S. citizens, with very rare exceptions for those who are to some extent exempt from following U.S. law. I expect the challengers to the President’s order will receive somewhere between 6 and 8 votes in their favor.”
Alex Nowrasteh, the senior vice president for policy at the Cato Institute, released the following statement:
“The United States is an immigrant-assimilation machine partly because birthright citizenship makes all their US-born children equal under the law. The legal arguments in favor of continuing birth-right citizenship are solid; the social case is overwhelming.”
David J. Bier, the Director of Immigration Studies at the Cato Institute and occupies The Selz Foundation Chair in Immigration Policy, released the following statement:
“The implications of ending birthright citizenship for the rights of Americans are stark. Not only would it expose some native-born Americans to deportation, but it would also deny all Americans the use of their birth certificates as the only foolproof defense against immigration arrest, detention, and removal. Especially with the administration carrying out papers-please profiling throughout the country, ending or curtailing birthright citizenship would imperil the rights of every natural-born American citizen, regardless of ancestry.”
Ilya Somin, the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, also released a statement:
“As Justice Barrett suggested in today’s oral argument, the Trump Administration’s rationales for denying birthright citizenship to children of undocumented migrants would also have denied it to numerous freed slaves and their children. That goes against the main purpose and original meaning of the Citizenship Clause. It is, by itself, sufficient reason to reject the administration’s position, even aside from all the many other reasons why that position is wrong.”
