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Birthright Citizenship: Originalism and Nonoriginalism

President Trump has put the Fourteenth Amendment’s Citizenship Clause in the news. The question is whether the language in the Amendment—“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”—provides citizenship to the children of illegal or undocumented aliens who are born in the United States.

I have a two-part position on this issue. I believe that the Constitution’s original meaning makes the children of illegal aliens, who are born in the United States, citizens. Since I am an originalist, I would follow this interpretation. But I also believe that a reasonable case can be made—based on nonoriginalism—for not interpreting the Amendment to cover the children of illegal or undocumented aliens.

A couple of years ago Mike Ramsey and I had a Constitution Day debate on this issue. It was an unusual debate. Mike took the position that the original meaning conferred citizenship on the children of illegal aliens. I agreed with him. Here is the essence of Mike’s position as to what “subject to the jurisdiction thereof” meant:

It was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory. This principle was subject to several exceptions, notably (1) territorial jurisdiction did not extend to ambassadors and other diplomatic personnel, nor to foreign rulers and their property, all of whom had immunity from the laws of the territorial sovereign; (2) territorial jurisdiction could be limited by treaty, as the U.S. did to some extent in treaties with Indian tribes; and (3) territorial jurisdiction did not exist as a practical matter over hostile armies and in areas under hostile occupation. U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial jurisdiction. Nor is there any doubt that such children are governed by U.S. law at the moment of their birth. Thus they are “subject to the jurisdiction” of the United States at birth. As a result, the text’s original meaning grants them U.S. citizenship at birth.

While agreeing that this was the original meaning, I argued that a nonoriginalist might reasonably disagree. Here let me offer three nonoriginalist arguments that I made for this interpretation—the type of arguments that are typically made by nonoriginalists.

First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants. At the time of the Fourteenth Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter.

Second, there are strong normative arguments against birthright citizenship for illegal aliens (and for many others).

Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation. One common argument is that conferring citizenship on the children of illegal aliens obviously provides an incentive for more illegal aliens. A less common argument against conferring citizenship of the children of noncitizen legal residents is that it makes it more difficult to have guest worker programs, since those workers may have children while they are in the United States.

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege. Given the benefits that U.S. citizenship conveys, the normative question is how we should allocate this privilege. It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States. There are a variety of ways one might want to allocate citizenship (and immigration)—based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States—but none of those are based on the simple accident of being born in the US.

A third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially the developed countries in Europe.

A strong trend as to these laws suggests that normatively the United States ought to follow it. Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States. None of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the Fourteenth Amendment not to confer birthright citizenship, at least to the children of illegal or undocumented aliens.

Nonoriginalists might not agree with this argument, but it is hard for them to argue that the argument is illegitimate since they accept this type of argument. In the end, one can’t have it both ways. If one favors the freedom that nonoriginalist interpretation gives to an interpreter, then one must live with the way that those who disagree with you would use that interpretive freedom.

Reader Discussion

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on November 01, 2018 at 10:25:29 am

What does the legislative history say? I seem to recall an article somewhere that suggested that some Congressmen believed it limited to freed slaves while others believed it extended to, if I remember correctly, Chinese persons born in the US to non-citizen Chinese parents (not sure if this extended to Chinese parents here illegally).

In any case, it seems that even an originalist can, on an absurdity doctrine basis, conclude that the language cannot grant citizenship to persons born of parents here in violation of our laws, without having to decide the question whether it more broadly bans citizenship to persons born here of non-citizen parents.

And I think the "subject to the jurisdiction thereof" argument doesn't help. Everyone who is physically present in this country is subject to its jurisdiction as a matter of tautology. A law or a treaty exempting certain persons from US jurisdiction can be repealed at will, so to that extent a nominally exempted person is always subject to US jurisdiction; and in any case an exempted person would have to avail himself of US jurisdiction in order to enforce his exemption from US jurisdiction. The nonsensical nature of the clause suggests it can be given any interpretation whatever.

But I agree that repeal of birthright citizenship ought to be done via amendment. The problem is that the people claiming the EO is unconstitutional are the same people who have professed their disdain for the Constitution and their intention to disregard it once they are back in power. They lack standing, as it were, to raise the constitutional issue. The progressive Left is busy re-founding the US constitutional order on principles such as Posner's "judicial interpretative updating" and Obama's "If Congress won't act, I will."

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QET
on November 01, 2018 at 11:08:06 am

Just because American citizenship is a "tremendous privilege", this has no basis for the interpretation of the constitution's 14th amendment. Does that mean if the "intrinsic value" of any of the amendments is now higher than the time of the amendment, we should have the leeway to interpret it differently? Of course not. The words stand for what they say, not how we fickle people of today want them to say.

If the amendment is controversial now,for whatever reason, then change the amendment. There is a process for this, and it's a cumbersome one at that. But it was meant to be that way, to make sure a truly national consensus was achieved before doing so.

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Frank Morgan
on November 01, 2018 at 11:48:06 am

Rappaport's "normative" reasons implicate *policy* decisions NOT constitutional ones; as such they ought not to be considered when interpreting the 14th Amendment. Rather, they could serve as a justification for an additional amendment that clarifies the question of birthright citizenship.

Also, one element appears to be missing from Ramsey and Rappaport's understanding of "jurisdiction". I take it to mean ( as did a number of the crafters of the 14th) to imply "allegiance" to the United States and not mere physical presence. As QET notes above, it is tautological to assert that one's physical presence subjects one to the jurisdiction of the laws as the contrary is absurd, i.e., an illegal alien, by virtue of his illegal status / presence is therefore not subject to criminal law (Oops, I forgot, isn't that where we are today/). Even the instance of a foreign soldier on US soil, statutes to the contrary DOES NOT remove that soldier from criminal penalties.
Thus, "jurisdiction" alone, at least as presently understood is insufficient as a justification for the granting of citizenship.

something more must be considered. If i recall, in England, up to and including the period of the American Revolution, the sovereign had the right to restrict, remove or otherwise incapacitate / limit the liberties and rights of those deemed to be mere "denizens' of the realm. These were people considered to be present in the realm only at the sufferance of the sovereign, as were there children. They were not citizens, neither natural born nor naturalized (although that possibility did exist). Underlying the classification as denizen was the presumed lack of allegiance to the sovereign.

How can it be said that one who defies the law of the Sovereign (in this case, the US Immigration Laws) has demonstrated allegiance to the US? How can it be said that one who scurries across an open border, in defiance of our laws, has demonstrated allegiance to our laws / customs? What manner of allegiance is this?

Ramsey and Rappaport contend that the 14th Amendment did not address our current immigration crisis BECAUSE there were no immigration laws at the time (not quite certain that there were NONE) and therefore we cannot interpret the "jurisdiction" clause in such a manner as to limit citizenship for those who illegally cross our borders. Their reasoning appears to be: "Well, Bingham and the other ratifiers DID NOT think it important AND we had no laws restricting immigration, so we cannot now consider it / restrict it."
NEWSFLASH:

We DO NOW have such laws AND we have had them for well over a century. Admittedly, they are somewhat more detailed than when my own grandparents arrived in this country. Let us not overlook the fact that millions of immigrants DID comply with those laws; however less onerous they were than are present laws, the fact remains that they DID COMPORT with all legal and social expectations.

In short, we DO HAVE immigration laws. We do expect that people will comply with them.
AND SOME OF US expect that those who do not comply are clearly demonstrating a lack of allegiance to the US, its laws and customs.

Ramsey and Rappaport mask their approval of the libertarian approach to immigration (Open Borders, or at least "porous") by claiming the mantle of *originalism* for their position.
How comes it that "disrepect for the law, a professed willingness to defy the law, is now considered to be part of originalism?

My Gawd, Edith, Madison and the Boys must be having a right jolly laugh at that one!

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gabe
on November 01, 2018 at 17:41:32 pm

And oh BTW, there is this:

The Congress has determined that certain persons born in US territories AND unincorporated US territories may be granted natural born citizenship status.

SO - If the congress can grant such citizenship, how is that some would argue that "jurisdiction" implies automatic citizenship.
Were not US Territories under US Jurisdiction?
Also, recall the uproar over John McCain's status. These same folks now arguing for automatic citizenship were also the ones objecting to McCain's eligibility to serve as President.

And have not some of the legal beagles on this very site noted in the past that given the power to grant IMPLIES also the power to deny - i.e., the congress may deny citizenship. If this still be so, then what do the Josh Blakman's, Somins and other libertarian open borders types have say about the meaning and reach of "jurisdiction.

Not too dissimilar from the Appointment Power which implies the power to deny!

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gabe
on November 02, 2018 at 12:05:14 pm

It seems that everybody and his brother is is having trouble with the ORIGINAL meaning of United States (federal government) versus "United States of America" (the union of the several states). This goes back to the Articles of Confederation -- go ahead, look it up.

President Trump talks about an executive order in relation to birthright citizenship, which seems plausible because the Fourteenth Amendment refers to "United States" (federal government) citizenship, as opposed to being a citizen of any of the States of the Union.

During the convoluted ratification process of the Fourteenth Amendment, the territory of the former Confederacy was under the jurisdiction of the United States government, enforced by bayonets and military discipline. These days, the District of Columbia, as well as military bases and embassies and the few remaining territories, is under United States jurisdiction, as opposed to the separate jurisdictions of the 50 states,

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John Schmeeckle
on November 02, 2018 at 14:41:28 pm

And then there is this (hat tip to R. Richard Schweitzer for the link):

https://www.nationalaffairs.com/publications/detail/the-question-of-birthright-citizenship

wherein it is asserted (and demonstrated via history and SCOTUS decisions) that "jurisdiction" implicates both "allegiance" AND mutual consent.

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gabe
on November 02, 2018 at 15:55:00 pm

And since we are talking about birthright citizenship, let's talk about the right of the Executive to *correct* a misinterpretation of the "jurisdiction" issue.
Per Hans van Spakovsky, an interesting take on it.

https://www.nationalreview.com/corner/why-trump-can-end-birthright-citizenship-by-executive-order/

Much preferred if the self castrated congress would do the job, BUT.....

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gabe
on November 13, 2018 at 05:57:10 am

[…] Mike Rappaport argues that Mike Ramsey is correct that, “it was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory.” In a follow up post he allows that “there is some uncertainty as to the full meaning of “subject to the jurisdiction” of the United States. But, [he says] the argument for birthright citizenship is still much stronger than the alternative.” […]

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Jurisdiction, Old Style and New

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