From Open Society to Walled Garden

Birthright Citizenship and the American Ideal

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Author's Note: This analysis examines the historical foundations of American citizenship principles and their contemporary challenges, with particular focus on the tension between founding ideals and modern restrictionist proposals.

Abstract

This paper examines the evolution of American citizenship principles from the founding era through contemporary debates, focusing on the significance of birthright citizenship as established by the 14th Amendment. It analyzes how recent proposals to restrict citizenship rights represent a departure from foundational American ideals, introducing concepts of "Wall Garden" exclusivity and "Pay to Play" access to civic participation. The analysis considers historical context, legal precedent, and the philosophical underpinnings of American citizenship policy.

I. Introduction

In the tapestry of American constitutional history, few threads are as significant as birthright citizenship. Established by the 14th Amendment in 1868, this principle represented a revolutionary departure from European traditions, embracing jus soli (right of the soil) over jus sanguinis (citizenship by descent). This choice wasn't merely a legal technicality—it was a profound statement about the nature of American society and its aspirations for the future.

II. The Revolutionary Origins of American Citizenship

The 14th Amendment's citizenship clause emerged from the crucible of the Civil War and the shameful legacy of the Dred Scott decision (1857). Chief Justice Roger B. Taney's ruling had explicitly denied citizenship rights to African Americans, claiming they could "never be citizens of the United States." The 14th Amendment's authors, led by Senator Jacob Howard and Representative John Bingham, sought to permanently repudiate this racist doctrine.

Jus Soli vs. Jus Sanguinis

Jus soli (right of the soil) grants citizenship to anyone born within a nation's territory, regardless of their parents' status.

In contrast, jus sanguinis (right of blood) bases citizenship on parental heritage. The U.S. choice of jus soli reflected a revolutionary break from European models of inherited privilege.

III. The Founding Vision: Beyond European Aristocracy

The Founding Fathers explicitly rejected the European model of society, where birth and bloodline determined one's station. John Adams, in his seminal work Thoughts on Government (1776), emphasized that legitimate government must serve the common good rather than elite interests. The Massachusetts Constitution of 1780, largely drafted by Adams, declared that government existed "for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men."

Thomas Jefferson articulated this vision in his correspondence with John Adams, arguing that "natural aristocracy" based on "virtue and talents" should replace the "artificial aristocracy" of European nobility. This philosophical stance found practical expression in various state constitutions and early American legal frameworks.

IV. The Modern Erosion: From Open Society to "Wall Garden"

Recent decades have witnessed a troubling deviation from these founding principles. The concept of a "Wall Garden"—a space where access is controlled and restricted—has begun to infiltrate American civic life. This manifests in various ways:

1. Physical Barriers: Literal walls and fortifications that symbolize exclusion
2. Economic Hurdles: The growing "Pay to Play" mentality in education, politics, and social mobility
3. Legal Restrictions: Attempts to limit or redefine birthright citizenship
4. Social Stratification: Increasing segregation by wealth and social class

V. The "Pay to Play" Society

The emergence of a "Pay to Play" culture represents a particularly insidious threat to American democratic ideals. This system creates tiered access to opportunities based on wealth:

• Elite Education: Astronomical college costs and private school tuition
• Political Access: The growing influence of money in politics
• Healthcare: Quality care increasingly tied to wealth
• Housing: Exclusive communities and gentrification

VI. Contemporary Challenges: The Attack on Birthright Citizenship

Donald Trump's proposal to end birthright citizenship represents perhaps the most direct challenge to the 14th Amendment's citizenship clause since its ratification. This policy proposal would fundamentally alter the American conception of citizenship that has prevailed for over 150 years, replacing it with a restricted model more akin to the European systems our founders explicitly rejected.

Original Intent and Modern Interpretation

The phrase "subject to the jurisdiction thereof" in the 14th Amendment was intended to exclude only children of foreign diplomats and hostile occupying forces—not children of immigrants, regardless of their parents' status. This understanding has been consistently upheld by the Supreme Court, most notably in United States v. Wong Kim Ark (1898).

The proposal's core argument—that the 14th Amendment's protections should not apply to children of non-citizens—directly contradicts both the amendment's text and the explicit intentions of its framers. Senator Jacob Howard, who introduced the citizenship clause, stated clearly that it would grant citizenship to "every person born within the limits of the United States, and subject to their jurisdiction, whether the parents are citizens or aliens."

VII. The "Wall Garden" Mentality in Immigration Policy

The push to end birthright citizenship exemplifies the "Wall Garden" approach to American society. It seeks to:

1. Create a multi-tiered system of rights and privileges based on ancestry
2. Establish new barriers to civic inclusion
3. Resurrect the pre-14th Amendment concept of inherited subordinate status
4. Transform citizenship from a birthright into a restricted privilege

This approach would effectively create classes of Americans—those with full citizenship rights and those born into a legally subordinate status despite their birth on American soil. Such a system would mirror the very hierarchies of privilege that the American Revolution sought to abolish.

VIII. The "Pay to Play" Immigration System

The attack on birthright citizenship often accompanies proposals for a merit-based immigration system that would effectively create a "Pay to Play" framework for American inclusion. This approach would:

• Prioritize wealthy immigrants over working-class families
• Create a de facto market for citizenship rights
• Establish wealth as a primary determinant of American belonging
• Undermine the principle of equal opportunity

These proposals represent a fundamental departure from the American ideal of providing refuge and opportunity to all who seek it, regardless of their economic status or social position.

IX. Reclaiming the American Promise

The challenge facing contemporary America is to reconcile its founding principles with modern realities. The nation was never intended to function as a private homeowners' association writ large, where membership depends on wealth or heredity. Instead, it was envisioned as a dynamic republic where merit and effort—not birth or wealth—determined one's prospects.

To honor America's founding principles, we must actively resist the transformation of our society into a "Wall Garden." This means:

• Defending birthright citizenship against efforts to restrict it
• Creating genuine economic mobility through education and opportunity
• Reducing the role of money in political participation
• Fostering inclusive communities rather than gated enclaves

X. Conclusion

The attempt to end birthright citizenship represents more than a policy dispute—it challenges the very essence of American exceptionalism. Our nation's unique embrace of jus soli citizenship reflected a conscious choice to build a different kind of society, one where ancestry and accident of birth would not determine destiny.

The true strength of American society has always derived from its ability to integrate newcomers and create Americans out of immigrants. Abandoning birthright citizenship would not only betray our constitutional principles but would fundamentally alter the character of American society, transforming it from a land of opportunity into a gated community of inherited privilege.

The American experiment has always been about creating something new—a society based on principles rather than prejudices, on potential rather than pedigree. As we face contemporary challenges, we would do well to remember that the walls we build to keep others out may ultimately become the barriers that limit our own society's growth and vitality.

References

1. U.S. Constitution, Amendment XIV
2. Dred Scott v. Sandford, 60 U.S. 393 (1857)
3. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
4. Adams, John. "Thoughts on Government" (1776)
5. Jefferson-Adams Letters (1813-1826)
6. Howard, Jacob M. Congressional Globe, 39th Congress, 1st Session (1866)
7. Massachusetts Constitution of 1780, Article VII