More on Birthright Citizenship: Nonoriginalism Allows the Denial of Birthright Citizenship but Originalism Does Not  

The debate on birthright citizenship continues. But I find it frustrating in two ways. First, nonoriginalists continue to ignore that there is a very reasonable case to be made that nonoriginalism denies birthright citizenship. Second, some critics of birthright citizenship, who purport to write from an originalist perspective, continue to argue that the original meaning does not protect birthright citizenship.

Let’s start with the nonoriginalists. Sometimes I think that nonoriginalism actually is what it is caricatured to be: a method of reaching decisions according to the moral values of the interpreter. Some nonoriginalists are simply asserting that birthright citizenship is the meaning of the Constitution and that anyone who claims otherwise is simply ignorant and morally depraved. But such vehemence does not prove that these nonoriginalists are right or consistent.

Nonoriginalism does not do what many nonoriginalists think it does. Nonoriginalism is a methodology that often leads to significant uncertainty. While that means that you can often argue for the result that you like, it also means that you do not have a strong argument against people who interpret the Constitution to mean something you don’t like. The uncertainty of nonoriginalism means that lots of results become permissible. Simply ignoring this aspect of nonoriginalism does not make it go away. If you are a nonoriginalist, you don’t have a strong principled argument against people who interpret the Constitution to deny birthright citizenship.

Now on to those marching under the banner of originalism. Andrew McCarthy, following Lino Graglia, claims that the Fourteenth Amendment Citizenship Clause does not confer birthright citizenship. Instead, the Constitution only confers citizenship on the children of American citizens (and some legal resident aliens). But this argument is not the best reading of the evidence and turns on some problematic originalist methodology.

Graglia, upon whom McCarthy relies, argues that the meaning of “subject to the jurisdiction” of the United States in the Fourteenth Amendment gets its meaning from the Civil Rights Act, which was passed two years before Congress passed the Amendment. Graglia notes that the Civil Rights Act had different language, which provided that “[A]ll persons born in the United States, and not subject to any foreign power,” were citizens. I agree there is a strong argument that this language of the Civil Rights Act does not confer birthright citizenship, but that does not support Graglia or McCarthy’s argument. The Amendment changed the Civil Rights Act’s language. The natural inference is that it did so for a reason. One cannot simply claim, as Graglia does, that it does not appear that this change in the language changed the meaning of the provision. If the better reading of the Fourteenth Amendment’s actual language is to confer birthright citizenship, then that is what one goes with.

I don’t mean to suggest that that the history here is a slam dunk. I myself have argued that there is some uncertainty as to the full meaning of “subject to the jurisdiction” of the United States. But the argument for birthright citizenship is still much stronger than the alternative.

In the end, advocates and opponents of birthright citizenship are stuck in a dilemma. The advocates tend to be nonoriginalists, but that methodology does not provide them with a strong case against those who deny birthright citizenship. The opponents tend to be originalists, but originalism is more determinate than nonoriginalism and provides strong support for birthright citizenship.

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on November 05, 2018 at 13:31:12 pm

Hmmm, must be true if Rappaport says so.

Whether emanations of Pythian prophecy or Zarathustran will, the conclusory conclusions on originalism of either of L&L's two resident originalists are the final word on that matter and warrant neither explanation nor doubt.

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Pukka Luftmensch
on November 05, 2018 at 13:50:58 pm

I actually think that Michael Anton and Prof. Erler are wrong. They believe that the 14th amendment rejected the common law and doesn't include the children of lawful permanent residents. But they do actually have relatively contemporary originalist sources that should not be dismissed out of hand. According to the Slaughterhouse Cases (1873), the clause "subject to the jurisdiction" meant to exclude "ministers, consuls, and citizens or subjects of foreign states born within the United States." In Elk v. Wilkins (1884) the Supreme Court adopted the phrase in the Civil Rights Act of 1866 that "subject to the jurisdiction of [the United States]" meant "not subject to any foreign power." As Native Americans were subject to their tribes sovereignty, they did not fall within the meaning of that clause. And the Attorney General at the time determined that: "The word ‘jurisdiction’ must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of the amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction only to a limited extent" 14 U.S. Attorney General Opinions 300.

And then you had all of the legislative history such as Senator Jacob Howard saying that sentence if “simply declaratory of … the law of the land already" (referring to the Civil Rights Act of 1866 which limited it to "not subject to any foreign power.") You have Senator Lyman Trumbull saying it meant “subject to the complete jurisdiction thereof,” meaning, as he put it, “not owing allegiance to anyone else.”

All of those are some good originalist basis for believing that Wong Kim Ark was wrongly decided and shouldn't just be dismissed out of hand. But I actually think that Wong Kim Ark was rightly decided and yet it still doesn't mean all children of undocumented immigrants have birthright citizenship. Examine Wong Kim Ark closely and you will see that it adopted the common law understanding of birthright citizenship prior to Dred Scott and then the amendment just applied that understanding to everyone. Section 1 goes through the background of what is being disputed. Section 2 goes through the English common law (of which the most well known case is Calvin's Case by Sir Edward Coke). Section 3 goes through how that English common law was accepted by the United States and formed the basis for understanding the first sentence of the Fourteenth Amendment (including the "subject to the jurisdiction" exception). The Court when it begins the 4th section, it summarizes the conclusion of the 3rd section as follows:

"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 that part of the sentence "so long as they are permitted by the United States to reside here." That certainly isn't true for undocumented immigrants (unlike the lawful permanent resident parents in Wong Kim Ark). So we know that the explicit holding of Wong Kim Ark was limited to not include undocumented immigrants, but that doesn't mean that undocumented immigrants are not included, only that the Court didn't consider this set of facts.

So to properly apply Wong Kim Ark to undocumented immigrants, we need to look at the reasoning of the Court and apply that. If you look at English common law (either in Calvin's Case directly or how the Court in Wong Kim Ark described it in Part II), to have natural born subjectship (or citizenship in the US), the child must be born on U.S. soil and the parents must have at least temporary allegiance to the government and the government mus agree to provide them protection. This means the child of parents who are subjects of foreign nations but are lawful permanent residents (as in Wong Kim Ark) are natural born citizens. When entering the US, they agreed to at least temporary allegiance to the US during the time they are in the US. And by letting them enter the country the US agreed to provide them protection. The same logic I believe would apply to temporary visitors admitted under a visa. Even if they overstay their visa, at least they agreed to temporary allegiance to the US when they entered and the US agreed to provide them protection when it admitted them.

But the same isn't true for those undocumented immigrants that sneak across the border. They never agreed to allegiance to the US, and the US didn't agree to provide them protection (it didn't even know they had entered the country!). So, under the logic of Wong Kim Ark, such individuals would not be subject to the jurisdiction of the US.

Sir Edward Coke in Calvin's case poses a series of hypotheticals to determine if someone is under the allegiance to the country (and as such their children would be natural born subjects). He asks, if such an individual acted against the state (for instance by committing an act of sabotage), would they be guilty of treason? Treason requires that the individual break their allegiance to the sovereign, and as such it reflects of that person was under such allegiance which is required for their children to be natural born subjects. He gives examples of foreigners who enter the country legally and then attempts to overthrow the government, and these foreigners were tried for treason. But a hostile enemy force who enters the country could not be tried for treason as they never had such allegiance. I ask, would a person who sneaks across the border and then commits an act of sabotage be guilty of treason? The answer, I think is clearly no. In fact this is exactly the fact pattern of Ex parte Quirin, and the Court explicitly distinguished what they were charged under as not being treason.

As such, under the logic of Wong Kim Ark, undocumented immigrants who sneak across the border (not visa overstays), their children would not be subject to the jurisdiction of the United States and would not fall within the birthright citizenship clause of the Fourteenth Amendment. I think that argument at least deserves at lot more respect than it has been getting (even if you think it is wrong).

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Devin Watkins
on November 05, 2018 at 15:01:51 pm


Thank you for that moment of clarity.

I think Rappaport is allowing his preference for a libertarian conception of "borders" (to be read: OPEN borders) to dictate his conception of "jurisdiction". I, as did many in both 17th / 18th / 19th century England and America, read jurisdiction to imply, indeed MANDATE *fealty.* How is that one who disregards our laws may be said to have demonstrated fealty to the US?

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on November 05, 2018 at 15:37:53 pm

[…] More on Birthright Citizenship: Nonoriginalism Allows the Denial of Birthright Citizenship but Origi… […]

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More on Birthright Citizenship: Nonoriginalism Allows the Denial of Birthright Citizenship but Ori… – Attorney Thomas Gutierrez Blog
on November 05, 2018 at 16:20:38 pm

Michael Rappaport appears to be studiously ignoring my post on his previous article, with the tell-tale clue that, this time around, he avoids using the all-important term "United States." So, to repeat myself:

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 05, 2018 at 22:08:15 pm

The English common law supposedly binding in Kim (1898) on citizenship wasn't binding in 1870 on navigation. True, in 1825, it was followed; see The Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825), where the English head of navigation - - the ebb and flow of the tide - - was copied in the U.S. But the Penna Spm Ct rejected that common law rule in 1863. See Monongahela Bridge Co. v. Kirk, 46 Pa.St. 112 (1863), at 120-121, where it says "We are aware that by the common law of England, such streams as the Mississippi, the Missouri, the Rivers Amazon and Plate, the Rhine, the Danube, the Po, the Nile, the Euphrates, the [page 121] Ganges, and the Indus, were not navigable rivers, but were the subject of private property, whilst an insignificant creek in a small island was elevated to the dignity of a public river, because it was so near the ocean that the tide ebbed and flowed up the whole of its petty course. The Roman law, which has pervaded Continental Europe, and which took its rise in a country where there was a tideless sea, recognized all rivers as navigable which were really so, and this common-sense view was adopted by the early founders of Pennsylvannia, whose province was intersected by large and valuable streams, some of which are a mile in breadth." The US followed suit in The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L. Ed. 999 (1870) . [I'm leaving out The Propeller Genesee Chief, 53 U.S. (12 How.) 443 (1851), for space.] Moreover, in 1845, English common law was expressly recognized as modified in America in Pollard’s Lessee v. Hagan, 44 (3 How.) U. S. 212 (1845), at 228: "But [Alabama's] rights of sovereignty and jurisdiction are not governed by the common law of England as it prevailed in the colonies before the Revolution, but as modified by our own institutions." So, since the idea the common law had both a fixed meaning as well as binding effect on the US doesn't hold for navigation, why should it hold for citizenship by birth? Even granting that Prof. Rappaport's interpretation of the text is the better than Graglia's, I agree this is hardly a slam dunk. Nonetheless, overall, sign me up for McCarthy being correct here.

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Kelly Haggar
on November 06, 2018 at 12:46:23 pm


And thank you for your "clarity" re: the limitations of, and limited applicability of common law for Constitutional issues.
Some time back, I had commented that with the current rash of creative judicial decision making, we were in danger of reducing our *constituent* law (COTUS) to the status of common law whereby the Justices were now free to do *justice* as they themselves perceived it to be. Appropriate, perhaps, to the Court of Common Pleas BUT NOT to SCOTUS.

What you rightly point out is that is that following, and in consequence of, the American Revolution, American courts were free to disregard, amend or otherwise CHANGE British Common Law to suit the particulars of the new American Regime. If not, then why the Revolution?
All too often, we observe commentators, of all persuasions, claiming justification for their own policy preference OR constitutional interpretation in the common Law; forgetting always that a) US common law may differ from antecedent bodies of common / case law and b) that while common law is amenable to the Jurist's attempt / duty to *do justice*, constituent, i.e., constitutional, law is not and ought not be so amenable - so malleable.

Review of common law precedents is appropriate only insofar as it may provide some perspective on historical and legal practice - BUT a) it is NOT CONTROLLING as the very nature of constituent law is to place certain objects / practices, etc off limits to the vagaries of common law and b) British common law, as you argue IS NOT American common law.

On a constitutional scale, if "Justice" is to be done, it may very well require that the constitution be changed per Art V - not by the divinations of some "common" jurists apprehending the "mystery" meanings of justice to be found in the common law.

anyway, thanks for the clarity.

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on November 06, 2018 at 16:21:29 pm

Gabe: I do not favor Birthright Citizenship as a policy matter. I wrote that in an earlier post.

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Mike Rappaport
on November 06, 2018 at 18:56:12 pm

Hope I helped the discussion get more light than heat.

The 14th Ad is a curious thing. Not a comma of it has changed in 150 years, and in 1972 by 9-0 gay marriage wasn't even a federal question under it (Butler). However, in 2015, by a 5-4 swing vote, gay marriage had become required under it. "With 5 votes anything is possible." I guess it just depends on which 5 is sitting at any given time. That turns on who wins tonight, and in 2020, and how the health holds up of the oldest justices until Jan of 2021.

“It’s very pretty, but you mustn’t call it Homer.” Maybe the US of A would be better off if we stopped pretending judges/justices are like the Clue game, where there’s some envelope somewhere up on the bench with the “correct” answer. “We’re not final because we’re perfect; we’re perfect because we’re final.”

P. S. I didn't go to law school until my 50s, so I didn't come in the door a blank slate. I wasn't difficult to teach; just hard to snow.

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Kelly Haggar
on November 06, 2018 at 20:00:46 pm

"...just hard to snow."

Absotively luvv'd it!
And Bully for you!

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on November 06, 2018 at 20:02:10 pm


My apologies. Then I guess we simply differ on whether "originalism" permits another interpretation of birthright citizenship.

take care

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on November 13, 2018 at 05:57:28 am

[…] 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 […]

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Jurisdiction, Old Style and New
on November 16, 2018 at 22:01:54 pm

This is not a very useful analysis. In fact, I detect very little analysis here at all.

All you really say about non originalism here is that you think adherents massage Constitutional meaning to achieve policy goals. Nothing at all about their case for birthright citizenship and how it relies on subjective reading of the Constitution.

You do a bit better with originalists by at least pointing out the key "subject to the jurisdiction" argument. But handwaving away the "uncertainty" about the meaning of this clause adds nothing to your analysis. You need more detail on this to support your contrarian "both sides of the originalism debate get birthright citizenship wrong" post.

In the end this makes me think of an undergrad constitutional law student given a "give me two pages on originalism, non originalism, and birthright citizenship" assignment who waited until midnight before the due date to bang something out.

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R. Stanton Scott
on November 17, 2018 at 09:52:38 am

True dat!
It's sheer conclusory assertion with no reasoning.

Even judges who make up the law on the fly purport to offer "reasoned analysis." Read any of Breyer's, most of RBG's, and many of Douglas' opinions, for example.

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Pukka Luftmensch

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