The United States in Crisis: Citizenship, Immigration, and the Nation State by Edward J. Erler

Author:Edward J. Erler [Erler, Edward J.]
Language: eng
Format: epub
Tags: Political Science, Civics & Citizenship, American Government, General, Judicial Branch
ISBN: 9781641772358
Google: gKR-zgEACAAJ
Publisher: Encounter Books
Published: 2022-01-15T02:17:50+00:00

Thus, the general sense of the Congress in the wake of the passage of the Citizenship Clause of the Fourteenth Amendment was that the English common law was incompatible with the principles of the Founding. It was clear to these men that citizenship was not based on the “accident of birth,” but on “consent”; citizenship did not entail “perpetual allegiance,” but held out expatriation as a natural right guaranteed to all citizens.

We have already seen in our discussion of Lynch v. Clarke that Vice-Chancellor Sandford considered it something of an innovation on the American version of the common law when some states adopted expatriation. He, of course, knew that expatriation was disallowed by the common law’s requirement of “perpetual allegiance.” Most importantly – a fact that the Vice-Chancellor refused to acknowledge – the common law of “perpetual allegiance” was incompatible with the first principles of the American regime itself. That was fully acknowledged by the passage of the Expatriation Act, which should be read as companion legislation to the Fourteenth Amendment. The “old feudal doctrine” of Blackstone that grounds citizenship on the “accident of birth” rather than “consent” has been expelled from the United States because it is “at war with the theory of our institutions.” Congress understood that, and the framers of the Fourteenth Amendment understood that. Vice-Chancellor Sandford did not. Unfortunately, neither did Justice Gray in Wong Kim Ark.

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