A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part II: The Original Meaning

Having stated my political view that the United States should allow a large amount of legal immigration, I now turn to birthright citizenship: the idea that any person born in the United States should automatically be a United States citizen. While I will develop this point later, it should be noted at the beginning that these two issues do not necessarily coincide. One can favor immigration, even illegal immigration, and still be against birthright citizenship. As I will explain later, I hold a version of this position. Similarly, one could favor birthright citizenship and be against much immigration.

The first sentence of the Fourteenth Amendment appears to adopt birthright citizenship. It provides that “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.” This seems like birthright citizenship – the only question is what “subject to the jurisdiction thereof” means.

Here, though, there is a simple explanation that fits the language and a great deal of the historical record. Mike Ramsey has developed this argument, as have some others, and I find it convincing. At the time of the Fourteenth Amendment, there were well-accepted rules of international law regarding the jurisdiction of different nations. Countries had jurisdiction over those in their territory. Thus, persons born in a country would typically be subject to its (territorial) jurisdiction.

But there were exceptions. Ambassadors were deemed not to be subject to the jurisdiction of the country where they were located. It was also thought that some Indian tribes were not subject to the jurisdiction of the United States, either because there were treaties that granted them sovereignty or because they were not thought to be conquered yet. These examples were sometimes given to explain what “not subject to the jurisdiction of the United States” meant.

But the power of this interpretation does not mainly derive from these explanations, since there are some statements with a different view. Rather, this interpretation is compelling because it accounts for the language of the Constitution in a straightforward way, and does so in a way that furthers the dominant purpose of the provision (which was to ensure that the former slaves were citizens). No alternative interpretation of the language comes close to doing both of those things. It is true that the Civil Rights Act of 1866 did have language that could be interpreted to exclude a significant number of people from birthright citizenship (“all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States”). But that is not the language that was placed in the Fourteenth Amendment.

It might be argued that the framers of the Fourteenth Amendment did not address the children of illegal aliens, because there were essentially no such aliens at that time. But under an original public meaning analysis, the question is what the words meant, not what the framers were thinking about.

While originalism thus supports birthright citizenship, nonoriginalism may not – as I will argue in my next post.

Reader Discussion

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on October 03, 2015 at 01:57:27 am

As I explained in the last post, I support an almost open border (but for criminals/terrorists/ communicable disease carriers). But birthright citizenship is a different issue that deals a lot with the history of the 14th amendment and not a policy question. I think the key question is what is meant by the word “jurisdiction.” There are two possibilities, 1) anyone subject to the laws of the United States, or 2) political jurisdiction meaning the person has allegiance to the United States (we can rule out anyone in territory in which the United States is sovereign as the clause starts by requiring they be ”in the United States” so a territorial interpretation of jurisdiction would be duplicative).

To start this, we need to place it in the context in which the 14th amendment was written. That means understanding the common law rules of birthright citizenship and how Dred Scott changed that and then the Civil Rights Act of 1866.
Let’s start with the common law rules birthright citizenship (at least as applied to white people as Dred Scott disputed that it ever applied to blacks). The common law rules were most elegantly explained by Sir Edward Coke in Calvin’s Case as to how a person became a common law English subject (citizen being the replacement for the word subject now that we don’t have a King). He explained that there are three kinds of allegiance to the king that are relevant today (the 4th I guess could be done by statute but isn’t). The first is called natural allegiance which is “due by nature and birth-right.” The second is what we would today call naturalization, or what he called acquisition. The third is local allegiance, which an alien “in amity” (or friendship) enters the country “under the Kings protection” and therefore owes the king a kind of temporary allegiance as long as they are in the country. To have natural allegiance (or be a “birth-right” subject) one must be born while your parents had at least local allegiance to the King, as Coke said, “for if enemies should come into the realm, and possess a town or fort, and have [children] there, that [children] is no subject to the King of England, though he be born upon his soil, and under his [sky], for that he was not born under [a]ligeance of a subject, nor under the protection of the King.” In other words, people who come into the kingdom with the permission of the king and have a child, then that child is a subject (or in US language a citizen) at common law.

Next, to understand the 14th, it must be understood that the point was to overturn Dred Scott which had reversed the common law rules of birthright citizenship as applied to blacks. As such, I would argue the point of this clause wasn’t to lay new ground, but just to reverse Dred Scott and return us back to that common law understanding that existed before for both white and black people. You mentioned the clause in the Civil Rights Act of 1866, but failed to say why that language is important. Clearly it isn’t because that language was enacted in the 14th (it wasn’t), but the point of the 14th amendment was to constitutionalize the Civil Rights Act of 1866. That legislation had been vetoed by President Andrew Johnson on constitutional grounds, and while the veto was overcome by 2/3 in both houses, many still feared that the courts would strike it down for the reasons it was vetoed. The point of the 14th amendment was to constitutionalize the Civil Rights Act of 1866 so that it could not be overturned by the Courts or future legislators. While it is possible they decided to completely upend what they had already agreed to in the Civil Rights Act of 1866, that seems at least unlikely without significant evidence to the contrary.

Now lets go to the floor debate on the amendment. To me the key is that Senator Jacob Howard, who introduced the clause, said it “is simply declaratory of what I regard as the law of the land already,” explaining that “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” He clearly states that he is just trying to establish what he felt was already the law (prior to Dred Scott which they felt was wrongly decided), and that it would not include foreigners and aliens (in addition to ambassadors or foreign ministers), as foreigners and aliens are not “subject to the jurisdiction” of the United States.

The other key person is Senator Lyman Trumbull, Chairman of the Judiciary Committee who helped draft the 14th amendment. She stated that the clause “means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof’? Not owing allegiance to anyone else. That is what it means.” As Senator Trumbull described it doesn’t mean completely subject to all our laws, it mean owing allegiance to the United States completely and no allegiance to any foreign power. This would clearly apply to slaves, but not to Indians, ambassadors or foreign ministers. As to aliens, and foreigners it is possible (but not certain) that it would apply to legal aliens or foreigners as they owe a kind of temporary allegiance as explained by Coke (but it would also be possible to say they still owe allegiance to their home country they are citizen of and as such cannot owe complete allegiance to the United States), but would defiantly not apply to illegal aliens (who never gave allegiance of any kind as they never entered with permission).

Now we get to precedent, have the courts upheld this meaning of the clause? I would argue they have upheld the clause as reversing Dred Scott and returning to birthright citizenship as defined by Sir Edward Coke in Calvin’s Case. Starting with Elk v. Wilkins, 112 U.S. 94 (1884), which held that Indians due to their divided allegiance to their tribes, are not subject to the jurisdiction of the United States. Notice that Indians are subject to federal law, but they are not subject to the political jurisdiction of the United States due to their allegiance to their sovereign tribes.

We will start with United States v. Wong Kim Ark, 169 U.S. 649 (1898). In this case the Court stated that the clause applied to the children of lawful alien permanent residents. The Court explicitly invoked Calvin's Case to justify this. It also cited Inglis v. Sailors' Snug Harbor, 28 U.S. 99 (1830) (which stated among other things that “to constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government.”) And the Wong Kim Ark Court also cites from Inglis that “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” The natural conclusion of the Court then is that: “Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States.” But notice the qualification of the Court, “so long as they are permitted by the United States to reside here.” By the logic of the Court, aliens not “permitted by the United States to reside here” do not have the same allegiance and their children are not therefor citizens at birth by the 14th amendment.

The only contrary precedent is in Justice Brennan’s opinion in 1984 Plyler v. Doe in footnote 10. However, this one sentence was completely unsupported by any text or history and was dicta to the opinion in a footnote. Not very strong precedent (especially for an originalist).

So overall, I think the birthright citizenship under the 14th amendment of legal aliens is fairly strong (although an arguments could be made that it does not apply to them). But as applied to aliens who enter the country illegally, I would say that it has never been supported that they fall within the terms of the clause (but for a single dicta footnote in 1984 by Justice Brennan). This is different from the policy question as to if we should have birthright citizenship (which congress can clearly do, they just are not forced to allow it by the 14th amendment).

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Devin Watkins
on October 03, 2015 at 11:43:14 am

To argue that an illegal alien and his offspring are entitled to citizenship and thus all the *privileges and immunities* of such citizenship simply by virtue of their physical presence in the country seems to me to be comparable to arguing that a bank robber, by virtue of his presence in a bank vault is entitled to the privileges and immunities of a bank depositor and that his children are entitled to the banks assets as well. He ought not to be there in the first place. And no, I am not comparing illegals to bank robbers; rather I am suggesting that physical presence alone is insufficient cause for the granting of the protection and benefits (P&I) of citizenship.

I rather prefer Devin's take on this issue. I would add, or ask: was there not another class of alien - the denizen of the realm under the British system. These folks were neither citizens nor aliens. They were afforded basic civil protections, however, a) they were subject to certain legal / commercial limitations and b) they could be forcibly removed (or remanded) to other parts of the realm as the Crown deemed appropriate.

Thus, it seems a little misleading to argue that the choice is only "citizenship (birthright or otherwise) or expulsion (which simply is not on the horizon today).

"But under an original public meaning analysis, the question is what the words meant, not what the framers were thinking about." ----Yet, if we accept that much of American law / jurisprudence is traceable to English common Law, given that the English tradition DID NOT provide for "birthright" citizenship, how can it be argued that "originalism" supports birthright citizenship? How can one argue that the *words* mean something other than was the traditional practice at the time the "words" were crafted?
To my mind, this is an odd form of originalism which refuses to recognize the historical / traditional practices that define the text. It is this type of analysis that permits us to conjure up all of the modern "rights" and privileges that we so much enjoy today!

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on October 03, 2015 at 14:30:18 pm

Well our tax treaties, for starters, suggest that jurisdiction is imperfect for many non citizens who happen to be on US soil.
And even Justice Story recognized that the common law allowed common sense exceptions for the children of visitors or others merely passing through.
Finally the classic legal hermeneutic is not dumb positivism--the text means what a quick simple reading suggests, but instead reads it within the larger framework, as in Coke's decision in Dr. Bonham's case--surely Parliament did not mean that.
As Story's reasoning on allegiance and other cases show, an the legal culture of the US at the time also show, the quick, simple read is often wrong.
Jurisdiction here implies pure jurisdiction, and our tax treaties show it's not that. Partial jurisdiction would have to be specified. To read it otherwise is to remove the words from their proper legal context and change the most fitting mode of legal reasoning. It is to reduce law to sovereign will--a contrad of the 14th Amendment's purpose.

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Richard S
on October 03, 2015 at 14:44:50 pm

A denizen is somewhat like a permanent resident today. They had more legal rights then temporary aliens, but not the full protection of a subject. Likewise, today, a permanent resident has a variety of additional legal privileges that those on a visa do not have. But they still cannot vote for instance like a citizen could. Permanent residents have a lot more rights then denizens had back in the day (for instance permanent residents cannot be ordered to move by the executive unlike denizens could have been). But as far as citizenship goes, I don't see that it matters at common law or under any interpretation of the clause. At common law, the children of mere aliens while in the realm were birthright subjects, so clearly denizen which had additional rights above a mere alien also had that. Also denizens actually swore an actual an oath of allegiance to he crown before they became a denizen (rather then the more transitory allegiance of those that merely enter with the consent of the king). So under common law restoration interpretation of the clause, denizens dont matter any more then aliens. Under the "no aliens/foreigners" interpretation the idea being that they dont have allegiance ONLY to the United States (as they also have not given it up to their home countries), denizens may qualify (I am not sure if they are also required to give up their old oaths) but it is unlikely to apply today given permanent residents today certainly don't give up their old allegiances. And the "subject to the laws" interpretation wouldn't care about denizens because they like aliens are all subject to the laws, and so the clause would apply to both. So constitutionally none of the interpretations really cares about denizens.

If you mean from a policy perspective of if we changed the constitution or congress allowed citizenship even if it wasnt required under the constitution, in the question of what might be the ideal birthright citizenship, then yes I could see something like no birthright citizenship for the children of mere visa holders, but still allow it for permanent residents.

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Devin Watkins
on October 06, 2015 at 12:44:55 pm

From the Originalism Blog:

What it Means to be "Subject to" American Power
Andrew Hyman

"In an otherwise informative post, Chris Green recently remarked that the Citizenship Clause of the Fourteenth Amendment “applied to anyone subject to the jurisdiction of the United States, going beyond the citizenship declaration of the Civil Rights Act of 1866, which merely applied to those not subject to foreign power….” But I disagree that the Citizenship Clause abandoned this distinction embodied in the 1866 Act.

As I mentioned previously, Congress re-enacted its 1866 citizenship declaration verbatim in 1870, after the Fourteenth Amendment had been adopted in 1868. That’s hardly what Congress would have done if they thought the Fourteenth Amendment went beyond the 1866 Act’s citizenship declaration.

Moreover, the citizenship declaration in the 1866 Act was consistent with U.S. citizenship for children of foreign subjects. The bill’s lead author, Senator Lyman Trumbull, was asked in 1866 whether the 1866 Act would “have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. ... [T]he child of an Asiatic is just as much a citizen as the child of a European.” Thus, merely being a foreign subject did not preclude birthright citizenship under the Civil Rights Act of 1866, but being “subject to any foreign power” did.

During debate and discussion of the proposed Fourteenth Amendment, Senator Jacob Howard stated that the Citizenship Clause was “simply declaratory of what I regard as the law of the land already,” i.e. the law laid out in the Civil Rights Act of 1866. Other Senators, such as Reverdy Johnson of Maryland, confirmed this connection even more explicitly: “Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign power…shall be considered as citizens of the United States.” Evidently, the intent behind the Citizenship Clause was not to abandon birthright citizenship ineligibility for people who are subject to a foreign power.

It is true that the pertinent language of the Civil Rights Act is different (and wordier) than that of the Fourteenth Amendment, but that is precisely why the Civil Rights Act can help us, by indicating the sense in which words are used in the Fourteenth Amendment. One critical word they have in common is "subject." According to one sense of this adjective, being “subject to” something means to owe it allegiance, and it is no coincidence that the topic of allegiance came up repeatedly during congressional discussion of citizenship in 1866. I do not believe that either foreign diplomats or illegal/undocumented immigrants can owe allegiance to American power, especially as the concept of allegiance was understood in 1868 when the Fourteenth Amendment was adopted. In any event, allegiance is baked into the Citizenship Clause, and is indispensable to a proper interpretation of that clause.

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on October 06, 2015 at 17:52:39 pm

The harder question is the applicability of the clause for the children of legal immigrants. This was resolved by the court in Wong Kim Ark favor of the children of legal immigrants. I think this is likely wrong in terms of original intent (as they still had allegiance to a foreign power and would not fall within the civil rights act definition). But it seems most likely right from an original meaning perspective (because it said jurisdiction not "complete jurisdiction" and given the prior common law understandings). And clearly today precedent supports the children of legal immigrants, so stare decisis may suggest just leaving that as being allowed.

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Devin Watkins
on October 06, 2015 at 21:34:08 pm


Yep, I can buy that re: children of legal immigrants (heck, I have to as that is how my own father attained citizenship).

As a prescriptive matter, I would, of course, prefer that there be a requirement for a clear oath of allegiance to one's new homeland. In the past, at least in the case of my own lineage, that was the unstated requirement and practice.

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