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.