For “ICE Sunday”: Who Is A Citizen? Perspective from 1799

ICE raids like today occurred under prior administrations. These are targeting adjudicated immigration violators who have a criminal record.

One major difference is that these sweeps appear to target families. This means that some U.S. born children of deportees will be detained today.

That raises a serious question about birthright citizenship. It has formally been part of U.S. law since 1868, upheld in 1898 by the Supreme Court. It was part of America’s “common law” (court made law) since the 1600s!

The first Supreme Court decision on immigration appears to be from 1799 (The Williams Case). It has implications for U.S.-born children who might be swept up today.

The case involved Isaac Williams, born in the colonies and a birthright citizen by virtue of the common law. He renounced his citizenship to fight for the French navy (he was later arrested by the U.S., the concern being that his involvement would drag America into war).

The Court said two things that resonate today.

First, birthright citizenship is an American law. It is so fundamental that no one can renounce citizenship without formal permission of the government (today, there are laws to do just that). That means children who were born in America and who are detained today have American birthright citizenship, rooted in law from the 1700s:

“The common law of this country remains the same as it was before the revolution. The present question is to be decided by two great principles; one is, that all the members of a civil community are bound to each other by compact; the other is, that one of the parties to this compact cannot dissolve it by his own act. The compact between our community and its members is, that the community shall protect its members; and on the part of the members, that they will at all times be obedient to the laws of the community and faithful to its defense.” [That is exactly the idea of birthright citizenship though it was not called that at the time.]

The second part has what amounts to a labor policy justification for the ruling that people cannot unilaterally renounce citizenship:

“In countries so crowded with inhabitants that the means of subsistence are difficult to be obtained, it is reason and policy to permit emigration; but our policy is different, for our country is but scarcely settled, and we have no inhabitants to spare.”  

That idea is relevant today. Is America too full to absorb immigrants and their children? Is there not enough work for people in this nation? President Trump says that is our situation today.

Judge for yourself.