The controversy over birthright citizenship is usually framed as a dispute over a single sentence in the 14th Amendment. Does its Citizenship Clause constitutionalize the English common-law rule that virtually everyone born within a sovereign’s territory is a citizen? Or does “subject to the jurisdiction” require something more—complete political jurisdiction and allegiance to the United States?
Important as that question is, it is not the most fundamental one. Before asking what the 14th Amendment means, we should ask what kind of political community the Constitution presupposes.
The Declaration of Independence announced two propositions that have shaped American constitutionalism ever since. The first is celebrated everywhere: all men are created equal, and governments derive “their just powers from the consent of the governed.” The second receives much less attention: one people may “dissolve the political bands” connecting them with another and assume a “separate and equal station” among the nations of the earth. Those principles are complementary. Human equality explains why legitimate government requires consent, and the right of a people to dissolve its political bonds identifies the political community capable of giving that consent. That distinction goes to the heart of the current citizenship debate.
The Revolution Against Subjectship