Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
In my prior two posts, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on the children of illegal immigrants.
Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment’s Citizenship Clause – one that would deny birthright citizenship to the children of illegal aliens. My principal aim in this exercise is to make a point about nonoriginalism: while many advocates of nonoriginalism seem to believe that nonoriginalism only leads to more rights of the type that they like, this is not true. While most advocates of nonoriginalism probably favor birthright citizenship, nonoriginalists should see that the original meaning here supports a result they like, whereas nonoriginalism allows a strong argument for a result they dislike. (It is also worth noting to originalists that nonoriginalism may sometimes support results they like.)
While the language “subject to the jurisdiction thereof” might have the original meaning as I mentioned in my previous post, it could also be understood as meaning “subject to the exclusive jurisdiction of the United States.” Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world, but of noncitizens mainly in their own territories. Thus, the children of solely American citizens born in the United States are exclusively subject to the jurisdiction of the United States. No other country has jurisdiction over them. By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country. This interpretation, then, has the consequence that the children of foreign citizens, both legal and illegal, would not be citizens at birth under the Fourteenth Amendment.
This reading of the text is by no means perfect. The biggest problem is that the text does not say “exclusive jurisdiction,” only “jurisdiction.” But that is not such a big problem for a nonoriginalist. A term like “jurisdiction” might easily be understood to refer to “exclusive jurisdiction.” The nonoriginalist would argue that sometimes people use terms loosely. For example, we sometimes use the term “property” even though we mean “real property.” While an originalist (especially a textualist originalist) would regard this loose construction as seriously problematic, a nonoriginalist would often not.
The interpretation I offer here is similar to the (originalist) view of John Eastman, but this interpretation is superior. Eastman argues that “subject to the jurisdiction” refers to the “complete, political jurisdiction.” He writes:
When a British tourist visits the United States, he subjects himself to our laws as long as he remains within our borders. He must drive on the right side of the road, for example. He is subject to our partial, territorial jurisdiction, but he does not thereby subject himself to our complete, political jurisdiction. He does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance. He is merely a “temporary sojourner,” to use the language employed by those who wrote the 14th Amendment, and not “subject to the jurisdiction” of the United States in the full and complete sense intended by that language in the 14th Amendment.
There are, however, serious problems with this argument. The main one is that it would not secure the essential purpose of the Fourteenth Amendment, which was to reverse Dred Scott and confer citizenship on the former slaves. Since the former slaves did not uniformly have the right to vote (and would not have it until at least the Fifteenth Amendment), many of the freedman would not be citizens under this view. Moreover, at the time of the Fourteenth Amendment, there was an important distinction between civil rights and political rights, with the latter restricted to a subset of the citizenry. It is extremely unlikely that citizenship would have been restricted only to those who had political rights. (For a similar criticism, see Ilya Somin’s post.)
By contrast, my exclusive-jurisdiction point does confer citizenship on the freedmen. Since these former slaves were not citizens of any other country, they were subject to the exclusive jurisdiction of the United States.
In my next post, I will present some of the nonoriginalist arguments that can be made in favor of this interpretation.
Update: John Eastman responded in the comments. My reply to him is also in the comments.