THE RIGHT BOOKS

In the ten years since the chief of the U.S. Immigration and Naturalization Service announced that “illegal immigration is out of control,” writing on the subject has steadily increased to the point where it now amounts to something of a growth industry, despite the obvious desire on the part of what Mark Twain described as “America’s only native criminal class” to see discussion of the problem fade away like other embarrassments, such as old soldiers or the Constitution of the United States. The fact is that the longer observers outside of Congress and the Wall Street Journal examine the problem of illegal immigration, the more deeply aware of its gravity they become, and the less disposed either to shrug it off as an aspect of historical inevitability or to accept it as a windfall boost to the economy and the Weltanschauung of George Gilder. One of the most recent as well as most interesting volumes on the subject is Citizenship without Consent: Illegal Aliens in the American Polity (Yale University Press, New Haven, Conn.; $22.50), by Peter H. Schuck and Rogers M. Smith, which considers the nature of American citizenship and the damage done by modern misreadings of its origin, assumed to lie in uncontested notions of birthright citizenship.

Since the ratification, in 1868, of the Fourteenth Amendment with its Citizenship Clause (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”), the legitimacy of birthright citizenship has never been seriously challenged; yet, as Schuck and Smith show, the idea has really been something of a “bastard concept” throughout American history. Although it has, in the past as today, frequently been invested with a liberal significance, it is actually a product of the feudal mind, which conceived it from associated ideas of sovereignty, legal personality, and allegiance. Incorporated (with modifications) into English common law and the elucidations of Blackstone, it was inevitably confronted by the consensualism of John Locke and the burgeoning continental tradition of public law as represented by Burlamaqui and Vattel, according to which “mere birth within a nation’s border seem[ed] to be an anomalous, inadequate measure or expression of an individual’s consent to its rule and a decidedly crude indicator of the nation’s consent to the individual’s admission to political membership.” Although as one might expect the consensual view of political membership was “extremely prominent” in early American political thought and appears “full-blown” in the Declaration of Independence, the concept of citizenship was never defined by the Framers of the Constitution, who clearly presumed nevertheless that citizenship was a prerogative of birth.

CW

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Chilton Williamson Jr.

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In the ten years since the chief of the U.S. Immigration and Naturalization Service announced that “illegal immigration is out of control,” writing on the subject has steadily increased to the point where it now amounts to something of a growth industry, despite the obvious desire on the part of what Mark Twain described as “America’s only native criminal class” to see discussion of the problem fade away like other embarrassments, such as old soldiers or the Constitution of the United States. The fact is that the longer observers outside of Congress and the Wall Street Journal examine the problem of illegal immigration, the more deeply aware of its gravity they become, and the less disposed either to shrug it off as an aspect of historical inevitability or to accept it as a windfall boost to the economy and the Weltanschauung of George Gilder. One of the most recent as well as most interesting volumes on the subject is Citizenship without Consent: Illegal Aliens in the American Polity (Yale University Press, New Haven, Conn.; $22.50), by Peter H. Schuck and Rogers M. Smith, which considers the nature of American citizenship and the damage done by modern misreadings of its origin, assumed to lie in uncontested notions of birthright citizenship.

Since the ratification, in 1868, of the Fourteenth Amendment with its Citizenship Clause (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”), the legitimacy of birthright citizenship has never been seriously challenged; yet, as Schuck and Smith show, the idea has really been something of a “bastard concept” throughout American history. Although it has, in the past as today, frequently been invested with a liberal significance, it is actually a product of the feudal mind, which conceived it from associated ideas of sovereignty, legal personality, and allegiance. Incorporated (with modifications) into English common law and the elucidations of Blackstone, it was inevitably confronted by the consensualism of John Locke and the burgeoning continental tradition of public law as represented by Burlamaqui and Vattel, according to which “mere birth within a nation’s border seem[ed] to be an anomalous, inadequate measure or expression of an individual’s consent to its rule and a decidedly crude indicator of the nation’s consent to the individual’s admission to political membership.” Although as one might expect the consensual view of political membership was “extremely prominent” in early American political thought and appears “full-blown” in the Declaration of Independence, the concept of citizenship was never defined by the Framers of the Constitution, who clearly presumed nevertheless that citizenship was a prerogative of birth.