Only A Godless, Fascist Would Reject Birthright Citizenship

The 14th Amendment is a callback to the "self-evident" natural rights that define the Declaration of Independence.

BY MARK WHITNEY

Abstract: Birthright citizenship is a self-evident, inalienable right tacitly referenced in the founding creed of the United States. This article dismantles the legally bankrupt and Godless claim that the Fourteenth Amendment does not confer birthright citizenship to all persons born on U.S. soil. Rooted in both British common law and the moral philosophy of the Declaration of Independence, the principle of jus soli (right of the soil) was not invented by the Founders. It was inherited from their legal predecessors and elevated by their revolutionary ideals. The Fourteenth Amendment, ratified after the Founders’ deaths, was not a misreading of the Declaration of Independence as President Trump implicitly argues when he vomits that the 14th is limited to 19th century children of the enslaved. The amendment enumerates, ratifies and codifies natural rights for all persons. There is no consequence of nature greater than the intersection of birth and place. To say otherwise is to deny the most basic of self-evident truths, rendering the concept of inalienable rights meaningless, the Declaration obsolete, and the Constitution toothless.

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I. Introduction: Founders, Fiction, and the Fourteenth

A recurring fallacy in contemporary constitutional discourse is the belief that birthright citizenship—far from being fundamental—is a modern legislative accident or a misreading of the Fourteenth Amendment. This claim is often advanced by self-styled "originalists" who selectively invoke the Founders while ignoring their philosophical and legal inheritance. This article challenges that revisionism.

II. British Common Law and the Inheritance of Jus Soli

Long before July 4, 1776, the British Empire recognized the doctrine of jus soli, enshrined in Calvin's Case, 77 Eng. Rep. 377 (1608), which held that anyone born within the sovereign's dominion was a natural-born subject. The Founders, educated in this tradition, understood that the right to belong—to be recognized by the state upon birth—was not a bureaucratic concession, but a principle of natural allegiance.

III. The Declaration of Independence: Birth as the Basis of Rights

The Declaration asserts that all persons are "created equal," "endowed by their Creator" with "inalienable rights." These are not contingent upon status, race, or parentage. They are not granted; they are secured. See The Declaration of Independence (1776). The idea that government exists to protect pre-existing rights is the moral engine of American constitutionalism. Citizenship by birth is the political implementation of that moral architecture. See Akhil Reed Amar, America’s Constitution: A Biography 381–83 (2005).

IV. The Fourteenth Amendment as Constitutional Codification

Ratified in 1868, the Fourteenth Amendment states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States..." U.S. Const. amend. XIV, § 1. This was not a novel invention, but a reassertion of birthright principles long recognized under common law and declared in 1776. See United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898). The Amendment was drafted by jurists steeped in that heritage and aimed explicitly at universalizing citizenship to prevent caste systems. See Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 55–72 (2019).

V. The Theological Hypocrisy of the Revisionist Right

Those who cry "religious liberty" while denying the self-evident natural rights flowing from birth are not originalists—they are fascists. If citizenship is not bestowed at birth, there are no inalienable rights, there is no God, and the American experiment is for naught. See Noah Feldman, The Three Lives of James Madison: Genius, Partisan, President 257–59 (2017).

VI. Conclusion: No King, No Caste, No Exceptions

The 14th Amendment is a callback to the principle of self-evident, natural rights upon which the Declaration of Independence is constructed. To say otherwise, is to suggest Ken Burns should take his talents to Sesame Street.