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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part III: A Nonoriginalist Interpretation

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.

Reader Discussion

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on October 06, 2015 at 18:29:49 pm

Mike,

You misconstrue my argument. I drew a distinction between partial and complete jurisdiction, and offered an example. But my example does not make the ability to vote a precondition for being subject to the complete jurisdiction. Children of U.S. citizens are subject to the complete jurisdiction, for example, but do not have the right to vote. At the time of the 14th Amendment, women citizens were also subject to the complete jurisdiction but did not have the right to vote (in most places in the country). Yet without that mischaracterization/error, your conclusion--namely, that under my interpretation, the 14th Amendment would not accomplish the essential purpose of the Amendment, conferring citizenship on recently-freed slaves--does not follow. The simple fact is that, after generations of slavery, the freed slaves owed no allegiance to any foreign nation. They were as completely subject to the jurisdiction of the United States as could possibly be, and hence they were citizens by virtue of the 14th Amendment (and so were any children born to them).

John

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John Eastman
on October 06, 2015 at 18:30:27 pm

Under standard grammar "the jurisdiction" would imply full jurisdiction. By contrast, one would have to write "subject to jurisdiction" for that to be the proper reading. The article "the" as in "the executive power" in Article II makes all the difference in the language read strictly.

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Richard S
on October 06, 2015 at 18:36:21 pm

I don’t have a problem with how you describe the nonoriginalist arguments about the clause. Clearly a nonoriginalist could be “loose” with the interpretation of a word and decide it means whatever the nonoriganlist wants it to mean.

But I take exception with your description of John Eastman’s position. First, you claim that his position would not “reverse Dred Scott and confer citizenship on the former slaves.” I disagree, the former slaves have no allegiance to any foreign power (if you disagree, can you explain which foreign power they had allegiance to?). So if the clause means what Senator Lyman Trumbull (Chairman of the Judiciary Committee at the time and who helped draft the 14th amendment) described the jurisdiction part of the clause as: "Not owing allegiance to anyone else." That would reverse Dred Scott (as blacks who have no allegiance to any foreign power would be within the clause), but would exclude legal and illegal immigrants that have not given up their foreign allegiance. Likewise if you take the interpretation that the 14th amendment clause reversed Dred Scott and restored the common law understanding of Calvin’s Case to both whites and blacks, this would mean that the clause would apply to legal immigrants but (arguably) not illegal immigrants. Both of these interpretations clearly reverse the Dred Scott case and are based on originalist arguments (not non-originalist arguments that you start this post about before switching to John Eastman’s originalist argument).

Just because a person cannot vote, on its own, does not show that a person does not have allegiance or citizenship. Former felons cannot vote, but they are still citizens and have allegiance, they can be tried for treason. Eastman is just using the inability to vote to show that we do not consider aliens to have political jurisdiction (or allegiance). I don’t think anyone (even John Eastman) believes that the 14th amendment only applies to those with full “political rights” including the right to vote. His example of voting, was just an example of the consequences of a person without political jurisdiction or allegiance to the united states (as we would never allow someone without allegiance to the united states be allowed to vote). It is necessary but not sufficient to demonstrate the lack of allegiance. So I think you are creating a straw man argument against Eastman’s position here.

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Devin Watkins
on October 06, 2015 at 18:48:14 pm

On the other hand, how will the Left respond when conservatives start making living constitution arguments--that will make it manifest that they are just arguing for their policy preferences.
If one believes--as many, though not all, conservatives do, that there are fixed constitutional principles that are constant, but applying them in changing circumstances is an art, then it needn't be arbitrary. But if one's foundation is "history" or if one is a Pragmatist that option is not available and, as a result, reinterpreting the constitution is simply an exercise in deploying prejudices.

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Richard S
on October 06, 2015 at 19:53:14 pm

Absotively! Rappaport appears to confuse some of the blessings of citizenship with citizenship itself when criticizing Eastman's view.

Also when doing "originalist textualism" ought not one look to the *original* context of the text and the decision made by those who framed the Amendment. If in fact the standard at the time was to recognize that foreign visitors could continue to hold allegiance to their mother country, was there truly a need to specify *exclusive* jurisdiction. Can it not be said that It was simply a given that those who did not renounce allegiance to mother country, had not professed allegiance to the US and were therefore not "subject" per the text of the amendment.

It is another possibility - and it is still originalist!

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gabe
on October 08, 2015 at 02:39:23 am

John Eastman claims that I misconstrue his position. He says he was merely giving an example of incomplete jurisdiction, not saying that all citizens must have the right to vote. John is certainly the expert on his own view and if he says that persons who do not enjoy the right to vote can still be citizens under his view, then I will accept that. But I would recommend that he use a different example. The example suggested that one needed to have full rights. At best, the example is confusing – I am not the only one to have this reaction. See Ilya Somin's post.

Putting aside this matter of political jurisdiction and interpreting John’s view as he explains it in his comment, I believe that my nonoriginalist view is similar to his originalist view. I argue that exclusive jurisdiction occurs when someone is not a citizen of another state. John seems to believe that one is not subject to the complete jurisdiction when someone is a citizen of another state.

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Mike Rappaport
on October 08, 2015 at 22:55:29 pm

But your article doesnt really explain why that view is wrong. The only thing you do say is in the article is that: "The biggest problem is that the text does not say 'exclusive jurisdiction,' only 'jurisdiction.'” But then you go on that it 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."

First I would argue that is EXACTLY what they said they were doing. Read Senator Senator Lyman Trumbull, (Chairman of the Judiciary Committee which drafted the 14th amendment) said: "The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means "subject to the complete jurisdiction thereof."... What do we mean by 'subject to the jurisdiction of the United States?' Not owing allegiance to anybody else. That is what it means." Cong. Globe 39th Cong., 1st Sess. 2893 (1866) http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 I don't know how the Senator could have been more clear. Imagine this were a contract, if the author of the contract had said, "this is what this phrase in the contract means" before the contract were entered into (this statement was before the amendment was enacted or ratified), why would that not be useful in interpreting the contract?

Second, even if you ignore entirely what they said they were doing, why do you think the word jurisdiction should apply to any partial jurisdiction rather then complete jurisdiction? Imagine if you had instead written: "The biggest problem is that the text does not say 'partial jurisdiction,' only 'jurisdiction.' That is not such a big problem for a nonoriginalist. A term like 'jurisdiction' might easily be understood to refer to 'partial jurisdiction.' The nonoriginalist would argue that sometimes people use terms loosely." There is no reason to limit the text to only one of the possible interpretations without cause, and especially so when confronted with explicit contemporaneous contrary interpretation by the writer.

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Devin Watkins
on October 13, 2015 at 08:11:52 am

I'll see Eastman debate this subject with James Ho, Friday11 am at Heritage--it will likely be televised via Internet.

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ken masugi

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.