Since 1967, the UK parliament has abolished or curtailed a number of ancient privileges available to criminal defendants in England and Wales. Double jeopardy is no longer prohibited; unanimous verdicts are not required; the right to remain silent has been circumscribed; hearsay is in principle admissible – and, by implication, the right to confront and cross-examine adverse witnesses.
Parliament is sovereign: it acts as it pleases. When the ruling party has a clear majority, its leaders hold sway over the rank and file, and its backbenchers toe the party line, Parliament is reduced to rubber-stamping bills drawn by the Cabinet. The Cabinet is a “committee which unites the law-making power to the law-executing power – which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the state – ” as Walter Bagehot put it in 1894, “a committee wholly secret.”
It’s not surprising that an all-powerful committee should seek to dispense with irritating old customs. It’s a wonder that not all of these quaint privileges have been legislated away. Whatever helps protect the innocent also makes it harder to punish the guilty, so there.
Yes, there’s also the Strasbourg court – the ECHR, created under the 1950 European Convention – but its approach is somewhat Procrustean: it insists that glaring defects be fixed but is indifferent to extra protections. “If rule A (generally favorable to defendants) is relaxed, can you still have a fair trial? We believe yes, if conditions X, Y, Z are met, and maybe U and W as well, although we don’t really know.” Down this road, the court could eventually validate the outcome of a trial without any procedural safeguards whatever, as long as the judge and the prosecution acted and reasoned in a “fair” manner.
Before succumbing to XX/XXI century bureaucrats, the common law tradition had survived bitter onslaughts by English sovereigns. Over and again, the old customs emerged alive – sometimes injured and even maimed, yet always with a reasonable expectation of full recovery in the future. The US Bill of Rights and later amendments to the American constitution affirmed and restored, to a degree, some of these common-law protections, putting them out of reach of slim popular and congressional majorities although not quite out of reach of sophistical judges.
When President Trump suggested that he could end “birthright citizenship” by executive order, he probably encroached on Congress’s powers, and from another angle, he threatened to follow the disturbing British pattern. It’s hardly a sound idea to destroy a centuries-old tradition by executive fiat. As the New York state judge Lewis Sanford put it in his 1844 opinion in Lynch v. Clarke:
By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents. So if a Frenchman and his wife, came into England, and had a son during their stay, he was a liege man. This was settled law in the time of Littleton, who died in 1482… [Its] uniformity through the intervening centuries, may be seen by reference to the authorities…
It was no different in the colonies:
The common law by which all persons born within the king’s allegiance, became subjects, whatever were the situation of their parents, became the law of the colonies, and so continued, while they were connected with the crown of Great Britain…
It was thus the law of each and all of the states at the Declaration or Independence, and so remained until the National Constitution went into effect, that a child born within their territory and liegeance respectively, though of alien parents, who were abiding temporarily, thereby became a citizen of the state of which he was a native…
But the Constitution, having gone into effect in 1789 and with twelve amendments made by 1844, was then silent on the issue of natural citizenship:
The Constitution of the United States contains no clause declaring who shall be deemed citizens, nor is there any act of Congress which applies to the case of Julia Lynch. …[T]he question whether Julia Lynch was or was not a citizen, must be determined by the national unwritten law…
Which is to say, the same old common law, of English origin:
Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land.
The judge supplied an example from his own experience:
…I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country does of itself constitute citizenship. Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as concluslve that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents.
Set against this background, the infamous Dred Scott decision (1857) was a bizarre departure from a well-established legal and popular tradition. It rested, it seems, on two claims. First, it denied that state citizenship was an automatic guarantee of federal citizenship. Second, it declared black Americans literally inferior to whites – not quite human when measured against the European-American standard. Justice Taney’s ruling was an outrage even for its time, and more of an angry political (and antropological) rant than a precedent-based argument.
The citizenship clause, part of the 14th Amendment adopted in 1868, can be seen as an effort to rectify that perversity and codify what had been taken for granted until the Taney court took a hammer to it. Between 1868 and 1898, when the Supreme Court ruled in US v. Wong Kim Ark, some lawyers (including lawyers representing the US government) and even some judges argued that the 14th Amendment did not fully restore the English jus soli. To that end, they insisted that the term “jurisdiction” in the text of the amendment implied a connection stronger than the traditional “local allegiance” – an arbitrary distortion of its customary meaning. Whenever these arguments were advanced, the goal was to deny US citizenship to US-born non-whites, mostly of Chinese descent. However, federal courts in California and Oregon found this reasoning inadequate in the 1880s, and the Supreme Court followed in 1898.