E Pluribus What? Birthright Citizenship and the American Union

If you’re familiar with any Romance languages and German, you might recall an apparent grammatical oddity in them. Take a simple sentence: the United States is in North America. The “is” here indicates the singular character of “the United States.” It’s the third-person singular.

By contrast, the verb in Spanish, French, Italian, and German, in boldface here, is third-person plural:

Spanish: los Estados Unidos están en américa del norte

French: les États-Unis sont en Amérique du nord

Italian: gli Stati Uniti sono in Nord America

German : die Vereinigten Staaten liegen in Nordamerika

English speakers of course would translate each sentence in the third-person singular, but for these speakers the verb is third-person plural: literally, “the United States are in North America.”

We must recognize that in the familiar phrase, “E pluribus unum”—out of many, one— there has always been a tension between the “pluribus” and the “unum.” Does the pluribus swallow up the unum, or does the unum swallow up the pluribus? Is “United States” a plural term? After all, we hear at least rhetorical reference to both “the United States” and to “these United States.”

This tension has a 250-year history, and the current, highly charged issue of birthright citizenship is its latest manifestation. U.S. citizenship is centrally important, but in the broader context I examine here it has been contested so hotly because of its roots in the question, what became independent of Great Britain in 1776—one nation or thirteen?

The Declaration of Independence itself is ambiguous. The first paragraph refers to “one people,” but the last paragraph uses the plural phrase “Free and Independent States” twice in reference to the colonies. The Articles of Confederation employs the phrase “we the undersigned Delegates of the States,” whereas the Constitution famously reads “We the People of the United States.”

A result of this ambiguity was two conceptions of citizenship—U.S. or national citizenship, and state citizenship. Prior to the 14^th Amendment, there were several views as to the relationship between national citizenship and state citizenship, but we can say roughly that national citizenship was dependent upon state citizenship.

This led to the Supreme Court’s infamous answer in the Dred Scott case to the question whether African-Americans were entitled to be citizens of the United State: “We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

Okay, so why is this important? In a nutshell, denying people national citizenship leaves them at the mercy of the state governments. The reason stems from the difference in federal and state powers. The federal government is one of limited, enumerated powers, which means that it may exercise only those powers that the Constitution explicitly or implicitly grants it. Default: can the federal government exercise power X? No, unless there’s a grant for it.

State governmental powers, by contrast, are plenary, which means that states may exercise all powers not prohibited to them by the U.S. Constitution and their own state constitutions—e.g., slavery, to take the worst case. Default: can the state governments exercise power X? Yes, unless there’s a prohibition on it.

What the 14^th Amendment did, in effect, was to overrule Dred Scott via its citizenship clause in Section 1—“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 phrase, “subject to the jurisdiction thereof,” was always taken to refer not to immigrants but to any American-born children of foreign diplomats posted to the U.S.) This established a floor of federal rights below which states cannot go—hence, the “No state shall . . .” prohibitions in the second sentence of Section 1.

To cite a more recent, familiar example, that’s what Roe v. Wade did for abortion rights in 1972, until the Dobbs decision in 2022 dismantled that floor, stating: “ We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives” (emphasis added).

Citizenship, therefore, has always been a contested issue because of the difference between rights pertaining to a particular state’s citizenship and those pertaining to American citizenship, a difference stemming in the last analysis from the attempt to combine the pluribus and the unum.

The 14^th Amendment overruled Dred Scott by establishing a fundamental, national-citizenship status based upon birth or naturalization, thereby reinforcing the unum as against the pluribus. To deny the clear text of the 14^th Amendment in the case of immigrants is in effect to return to Dred Scott, not in the sense of allowing the states to reinstitute slavery, but in the sense of creating different classes of people.

That flies in the face of the 14^th Amendment, which moved the needle from “these United States” to “the United States.” We are a country rather than simply an alliance (hence, no secession allowed).

For the time being, at least.

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