"Litigating Citizenship" Accepted for Publication in the Vanderbilt Law Review

What procedures are constitutionally required when the government seeks to take away citizenship?

My coauthor Cassandra Burke Robertson and I have an article coming out in the Vanderbilt Law Review entitled "Litigating Citizenship", which follows in the footsteps of our article "(Un)Civil Denaturalization" that appeared in the NYU Law Review earlier this year. Here is the abstract of our new piece:

By what standard of proof—and by what procedures—can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously recognized their citizenship for years or even decades. The government has also stepped up efforts to re-evaluate the naturalization files of other citizens and has asked for funding to litigate more than a thousand denaturalization cases. Likewise, citizens have gotten swept up in immigration enforcement actions, and thousands of citizens have been erroneously detained or removed from the United States. Most scholarly treatment of citizenship rights has focused on the substantive protection of those rights. But the procedures by which citizenship cases are litigated are just as important—and sometimes more important—to ensure that citizenship rights are safe. 

This Article analyzes the due-process implications of citizenship litigation in the United States. It examines different stages at which the citizenship question is judicially resolved, including denaturalization, removal and exclusion, and restrictions on the exercise of citizenship rights such as voting, working, and traveling. The Article concludes that the structure of U.S. democracy relies on the stability of citizenship and requires heightened procedural protections when the government challenges an individual's citizenship. In the words of Justice Felix Frankfurter, "The history of liberty has largely been the history of observance of procedural safeguards." Those procedural safeguards are needed to ensure that the judicial branch can remain the stalwart protector of a key pillar of our constitutional democracy.

Comments

[James Pollock]

Without doing any of the research as to what the law is, I'm going to offer my opinion as to what the law should be, because I'm an American and we're good at that.

When naturalization is obtained via fraud, it should be revokable. The process would work very similarly to a criminal trial, with the same burden of proof as a criminal trial and the same procedural safeguards. Being denaturalized is a deprivation of liberty, so the same Constitituional safeguards against any other deprivation of liberty would apply. You need a statute of limitations, but it wouldn't be the same as the SoL for fraud... it would have a longer time limit, but a finite one.

Otherwise, denaturalization shouldn't be a thing. Use the criminal law to punish naturalized citizens who violate the law just the same as any other citizen who violates the law can be punished. If naturalized citizens can be punished differently than birthright citizens, then the two are not equal under the law.
That, at least, is what I think the law should be.

[M L]

I'd agree with this. But, without having read the full article, I assumed from the post here that this topic covers more than just denaturalization or taking away citizenship after the fact, and includes challenging whether someone ever was a citizen in the first place whether by naturalization or otherwise.

[James Pollock]

The subheading for the blog post refers to "taking away" citizenship, not "preventing" it.

There are lots of places where you might be called upon to prove citizenship... employment, registration for Social Security, in some cases enlistment in the armed forces, obtaining a security clearance (military or civilian). but these usually involve overcoming a presumption rather than active opposition.
AFAIK, denaturalization is the only one where citizenship is actually changed. If the deport a citizen because they don't believe the citizen is a citizen, they're still a citizen after they get deported... they just have a documentation problem.

[Bored Lawyer]

Couple of questions:

(1) Other than fraud in applying for a visa/citizenship, what are the other bases to revoke citizenship?
(2) Is there a concept of laches/estoppel/statute of limitations. Does it make a difference, for example, if the government is trying to revoke citizenship from someone who came here decades ago and established a life here vs. someone who came recently?

[Brett Bellmore]

The legal basis are,

1) Dishonorable discharge if you gained your citizenship through military service.

2) Joining a "subversive group" within 5 years of naturalization.

3) Refusing to testify concerning your involvement in a "subversive act" within 10 years of naturalization.

4) Fraud or concealment of relevant facts in obtaining the citizenship.

There isn't any "statute of limitation" for fraudulent acquisition of citizenship. Basis 1-3 have built in limits.

[Stephen Lathrop]

Brett, numbers 2 and 3 sound like full-on McCarthyism. Where do they come from? Some legislation or administrative policy which has nothing to do with the Constitution?

[Noscitur a sociis]

Brett Bellmore hasn't described the situation entirely accurately. 8 U.S.C. § 1424, an exercise of Congress' power article Article I, Section 8 to establish a "uniform rule of naturalization", makes members of certain anti-American groups ineligible for naturalization. 8 U.S.C. § 1451(c) creates a rebuttable presumption that if a citizen joins such a group within 5 years of naturalization, they were lying about being attached to the principles of the Constitution during the naturalization application, and can thus have the naturalization cancelled for fraud. (I'm not sure why BB put "subversive groups" in quotes as that phrase does not actually appear in the statute.) Similarly, the refusal to testify before congress creates a conclusive presumption that the naturalized person engaged in misrepresentation in procuring citizenship.

[Stephen Lathrop]

Those laws you cite, when were they passed?

[Junkie]

I don't know if it quite qualifies as "fraud in applying for a visa/citizenship", but a fraudulent birth certificate could result in birthright citizenship for someone who doesn't warrant it. Somewhat different than applying for the visa/citizenship.

[James Pollock]

A fraudulent birth certificate, by itself, doesn't do anything. You have to actually attempt to pass it off as true and correct before it even has a chance to do anything, and it has to be accepted as true and correct to have that effect. So.. when, and where, and why did you* try to pass off a fraudulent birth certificate? Applying for a driver's license? Applying for a job? (Note that using a false birth certificate doesn't necessarily imply lack of citizenship. Lots of people who are citizens have nevertheless wanted documentation that showed a different age than their actual.)

*Or somebody else. Not accusing.

[M L]

"What procedures are constitutionally required when the government seeks to take away citizenship?"

"By what standard of proof—and by what procedures—can the U.S. government challenge citizenship status?"

"Challeng[ing] citizenship status" is of course, not the same thing as "taking away citizenship." That's like conflating wrongful convictions with all criminal prosecutions. For an open borders, anti-national sovereignty ideologue to elide and mislead is unfortunately all too typical.

U.S. citizenship is a valuable thing, and it's time that our government started acting like it. The government is much like a corporation with a duty to its shareholders, and each citizenship is a share. So, citizenship should be jealously guarded and limited, though of course, for the benefit of citizens, this should be done within a procedural framework.

One of the most appalling examples of the U.S. government's dereliction of its duty to citizens is the continued policy of so-called "birthright citizenship." As Harry Reid pointed out in 1993, "no sane country" would continue such an asinine practice. But that was before the Democrat party was taken over by radical ideologues who literally want to dissolve the borders by decriminalizing illegal immigration. The 14th amendment has never required what has been called "birthright citizenship" and a careful reading leaves no doubt on this question. Of course the living constitutionalists don't want to discuss that point in too much depth, and they never cared about the original meaning of anything anyway, but they will pretend otherwise for the sake of misleading argument.

[James Pollock]

" The 14th amendment has never required what has been called “birthright citizenship” and a careful reading leaves no doubt on this question."

How did you pass a bar exam with reading comprehension skills that would allow you to write this sentence?

[Brett Bellmore]

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof".

The 14th amendment is clear on this: It IS possible to be born in the US, and yet not be a citizen. For instance, children born on US soil of diplomatic personnel.

There's an argument to be made, and it might yet prevail, that illegal immigrants are not "subject to the jurisdiction thereof" in a relevant manner. But there is no question at all that there ARE exceptions to birthright citizenship, which means the dimensions of it are up for debate.

[M L]

If you read the 39th Congressional Record, the authors of the 14A stated that "subject to the jurisdiction thereof" meant a "full political" jurisdiction, which excluded not only diplomats, but also Native Americans, "foreigners," "aliens," and anyone who was subject to a foreign power. They also stated that the phrase was "simply declaratory" of current law, albeit more concise. The current law they referred to was the 1866 Civil Rights Act, which read: "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.”

[Stephen Lathrop]

Supposing a child born to illegal immigrants, how is that child "subject to any foreign power?" Seems like your sources are arguing against you.

[M L]

Stephen,

Good question, but this is quite elementary. Please read the good article linked and excerpted below.

First, a qualification: when it comes to "illegal immigrants" I believe the question could depend on the circumstances. An "illegal immigrant" who has made their home in the U.S. for 10 or 20 years is not necessarily in the same class as someone who just jumped over the border or came as a tourist or overstayed a visa.

What ‘Subject to the Jurisdiction Thereof’ Really Means
http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/

"Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution. The reason for this is because the authority remained with each State to make rules that distinguished alien from citizen.

Madison made it clear rules of who is a citizen or alien properly belonged with each State when addressing a contested South Carolina Election of Rep. William Smith in the House of Representatives in 1794. . . .

After the Revolution, States retained only those portions of common law that were applicable to their local circumstances. In England at the time, the general rule – not a hard rule since could be suspended when required by the King – every person born within the Kings allegiance and within any of the King’s realms or dominions was considered a natural born subject under the maxim every man owes natural allegiance to the King whom may have been born in any of his realms or dominions. This natural allegiance was perpetual and difficult to severe or alter (Once a English subject, always a English subject) and was found odious in this country (America went to war against this “natural allegiance” in 1812).

In early America the common law rule of “natural allegiance” was discarded as well as the rule of automatic citizenship to children born to aliens regardless of their condition. Other differences that differed from the common law were the general rule children born to transient aliens or temporary sojourners remained alien. Early states also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled alien parents was “born within the allegiance” of the State even if the parents had not yet been naturalized would be considered a citizen of the state and a United States citizen. . . .

Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, excluding Indians not taxed, are declared to be citizens of the United States.

Sen. Trumbull stated during the drafting of the above national birthright law debates that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.”

Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”

Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this statute merely reaffirmed the old common law rule of citizenship by birth then the condition of the parents would be entirely irrelevant. . . .

Additionally, Trumbull argued Indians could not be subject to the jurisdiction for the reason the United States deals with them through treaties. This is also exactly how the United States deals with aliens from other nations as well; they enter into treaties with other countries to define legal rights of their citizens while within the limits of the United States and vice versa. Example: A treaty with China prohibited the United States from naturalizing Chinese citizens.

Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.'” Sen. Jacob Howard agreed:

[I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

This remark by Sen. Howard places this earlier comment of who is “subject to the jurisdiction thereof” into proper context: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

What Sen. Howard is saying here is citizenship by birth is established by the sovereign jurisdiction the United States already has over the parents of the child, and that required that they owe allegiance exclusively to the United States – just as is required to become a naturalized citizen. It does not require a leap of faith to understand what persons, other than citizens themselves, under the Fourteenth Amendment are citizens of the United States by birth; those aliens who have come with the intent to become U.S. citizens, who had first complied with the laws of naturalization in declaring their intent and renounce all prior allegiances.

Sen. Trumbull further restates the goal of the language: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens…” Note that Trumbull does not say temporarily within our jurisdiction, but “completely within our jurisdiction”.

He of course is talking about the laws of naturalization and consent to expatriation by the immigrant in order for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation. Without this full and complete jurisdiction, any foreign government can intervene on behalf of their own citizens while they visit or reside within the United States – just as the United States is known to do on behalf of U.S. citizens within other countries. . . ."

[David Nieporent]

Look, P.A. Madison's fabricated scholarship is back!

Just one example: "Example: A treaty with China prohibited the United States from naturalizing Chinese citizens."

This is completely false. It did no such thing, but P.A. Madison doesn't know that because (a) he never read it, and (b) isn't smart enough to understand things he reads. He's talking about the Burlingame Treaty, but it places no restrictions whatsoever on naturalization. What it actually says is that the treaty itself doesn't confer citizenship: "But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States."

[M L]

What a fascinating, yet immaterial, point.

Tell me David, did or did not Senator Trumbull say regarding the clause in question, "Not owing allegiance to anybody else. That is what it means."

[David Nieporent]

If you read the 39th Congressional Record, then you're as dishonest as ML, because the Congressional Record wasn't even in existence at the time of the debate whose language and meaning he is lying about.

[M L]

I mistakenly capitalized those words. But thanks for another fascinating immaterial comment.

[BaronGouldianFinch]

Subject to the jurisdiction thereof essentially means "can the government legally apply their laws to this person." That's what jurisdiction means. So diplomats who have diplomatic immunity aren't subject to the jurisdiction of the United States. Indian tribes used to be treated as separate political sovereigns and thus it used to be (at the time the Constitution was adopted) that the United States had no power to, say, arrest a member of a particular tribe on that tribe's land. This is no longer the case, of course.

Illegal immigrants are subject to the jurisdiction of the United States. This is why they can be detained, arrested, and jailed in addition to being deported. The fact that they committed immigration violations does not mean they are not subject to the jurisdiction of the US government. It means they are here in violation of US laws or regulations. That's all.

[Brett Bellmore]

Yes, that's a viable interpretation. It's not the only viable interpretation of the phrase.

[M L]

Baron, That is incorrect. "Subject to the jurisdiction" did not merely mean "subject to the laws."

In fact, the Indian tribes were subject to the laws and to partial jurisdiction, moreso than foreign visitors. When the 14A was being discussed for adoption, one senator objected, supposing that the language might include Indians since Indians were "most clearly subject to our jurisdiction, both civil and military." But drafter Senator Lyman Trumbull responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction; “[n]ot owing allegiance to anybody else.” Likewise, Senator Doolittle proposed that the phrase "excluding Indians not taxed" might need to be added to the amendment. But this was rejected as redundant, because as drafter Howard noted the phrase meant a “a full and complete jurisdiction,” which would exclude the two categories of exclusion that were then present in the 1866 Civil Rights Act -- “subject to any foreign power” and “Indians not taxed.”

This understanding is also reflected in legal treatises of the time and contemporary SCOTUS decisions Slaughterhouse Cases and Elk v. Wilkins. It really goes back to founding principles which repudiated the British common law concept of "birthright subjectship" in favor of a concept unknown to British common law, "citizenship", based on bilateral consent rather than birth. https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/

[Sarcastr0]

That's not very originalist of you. The original meaning understood the text to be birthright citizenship, as testified to in the Senate with no Senator objecting.

[Brett Bellmore]

I'm looking at that testimony in the Congressional Record at this moment, and ML has it right. The debate actually establishes that birthright citizenship was not meant to be extended to the children of everybody who happened to be on US soil at the time of their birth, and diplomats were NOT the only exception contemplated.

[Noscitur a sociis]

The debate actually establishes that birthright citizenship was not meant to be extended to the children of everybody who happened to be on US soil at the time of their birth, and diplomats were NOT the only exception contemplated.

Which part do you think establishes that? I see that there seems to have been agreement that the clause would not cover diplomats or "Indians, born within the limits of the United States, and who maintain their tribal relations". On the last column on the first page, a senator says that he assumes that the clause shouldn't extend to "the child of the Chinese immigrant in California", or "the child of a Gypsy born in Pennsylvania" or the children of "a traveler ... from Ethiopia, Australia, or Great Britain", out of fear that "a flood of Australians or people from Borneo, man-eaters or cannibals if you please" would be able to obtain citizenship, thus resulting in a deleterious "mingl[ing of] the various families of men, from the lowest form of the Hottentot up to the highest Caucasian". Beginning with the response of John Conness, a senator from California, the response seems to be that all of these children would in fact be citizens (and that the concern that such a policy would destroy the country was overblown).

Or is there something in there that I'm missing?

[M L]

Noscitur,

The exchange between Senator Edgar Cowan and Senator John Conness is instructive. Note that Cowan was making remarks about RACE. He was concerned about Chinese and Gypsies because they were not white Europeans. It had nothing to do with foreign subjectship.

Conness rightly responds: "I have failed to learn, from what the Senator has said, what relation what he has said has to the first section of the constitutional amendment before us."

Here is John Eastman on the exchange:

"Cowan, you see, was not asking a question about illegal immigrants or others who retained an allegiance to a foreign power; he was making a racist assertion that, effectively, only white Europeans should be allowed to be citizens. Conness rightly rejected that contention. Our citizenship rule was to apply to anyone who was lawfully and permanently in the United States, but his response does not in any way suggest—because Cowan’s question did not present the issue—that temporary sojourners, who still owed allegiance to a foreign power, could unilaterally bestow U.S. citizenship on their offspring. Indeed, the final part of Cowan’s question itself recognized the distinction I am drawing: ““Have [the children of Chinese or Gypsies] any more rights than a sojourner in the United States?” Conness’s answer was a definite “yes.” Both have “more rights than a sojourner in the United States.” Anyone completely subject to the jurisdiction of the United States, no matter what their ethnic background or nation of origin, is entitled to the benefits of the Citizenship Clause. Temporary visitors, on the other hand—sojourners who are here legally and certainly those who are here illegally—are not."

[Noscitur a sociis]

How, then, do you account for Sen. Cowan's reference to " “a traveler … from Ethiopia, Australia, or Great Britain” or his concern about California being "overrun by a flood of immigration of the Mongol race"? I agree that his concern is largely racially motivated, but it seems to be predicated on the idea of opening up citizenship not just to non-whites, but to non-Americans.

But set that aside -- where, in this transcript, do you see any support for the idea that the "subject to the jurisidiction thereof" is designed to exclude anyone physically in the United States except Indians and diplomatic personnel?

[M L]

1. Why do you think that reference needs accounting for? Cowan queried what "citizenship" would mean and drew a distinction, pointing out that such travelers are "entitled, to a certain extent, to the protection of the laws. . . It is murder to kill him, the same as it is to kill another man. . . He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word." Cowan asked what "more rights than a sojourner" the offspring of permanent immigrants of other races would have as citizens pursuant to the 14A.

2. Onto your second question -- there are countless places in the transcript, but the first and foremost is right on the first page in Howard's introductory remark: "This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." Note that the [or] which I have inserted clarifies the only possible meaning of this statement, and this is amply demonstrated in numerous ways.

2a. For example, as you acknowledge, Indians were excluded. In Howard's statement here, Indians would fall under "aliens," because they owed allegiance to their tribes, and also legal rights were addressed in treaties with those tribes, as is frequently the case with any foreigner or alien.

2b. For another example, when Howard says the amendment is "simply declaratory" of current law, the current law was the 1866 Civil Rights Act. That law was similar to the 14A citizenship clause, but had two categories that were excluded, those "subject to a foreign power" and "Indians not taxed." The 14A collapsed this language into a single phrase, "subject to the jurisdiction thereof." John Bingham likewise had said that the current law meant that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

2c. Further supporting this point, Senator Doolittle proposed that "excluding Indians not taxed" needed to be added to the 14A, because he supposed that they might otherwise be covered. Fessenden chimed in and said this was an important question, an he "had the impression that it would not cover them." Trumbull then responded, "it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. 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." Now, does the Senator from Wisconsin pretend to say that Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means."

[M L]

2d. Trumbull -- the leading sponsor of the 14th Amendment -- likewise stated "the object to be arrived at [by the Citizenship Clause] is the same" as existed under the 1866 Act. Senator Johnson said the clause would include everyone "not subject to some foreign power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States."

2e. In the immediate aftermath of the 14th Amendment, the Supreme Court itself also agreed, [t]he phrase, ‘subject to the jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”

[David Nieporent]

I see you take the Anton approach of falsifying the quote by putting an “or” in there.

[M L]

I gave five reasons why that is the correct interpretation of the quote, and you were unable to respond substantively to any of them. I'll take that as an admission that you have nothing.

[James Pollock]

Birthright citizenship was meant to be extended to black persons who were, or were descended from, slaves.
The only way to extend citizenship to them, without giving the states disinclined to black citizens a loophole to wiggle out of, was birthright citizenship. So that's what the 14th amendment extends. Now, it's been 150 years, so there's a fair argument that the birthright citizenship provision is no longer needed to extend citizenship to black people descended from American slaves. But the argument that it never did is a non-starter.

[M L]

James Pollock:

"The only way to extend citizenship to them . . . was birthright citizenship."

That is incorrect. Black persons who were, or were descended from slaves were not "subject to a foreign power" in the way that visitors and temporary sojourners are. It is abundantly clear that (a) the U.S. rejected in its founding principles and in the 14A the British rule of "birthright subjectship", and (b) the 14A clause, "subject to the jurisdiction thereof", did not simply mean subject to laws, but meant not subject to any foreign power. Those foreigners, aliens, who became lawfully and permanently domiciled in the U.S. were no longer foreigners, but had renounced foreign allegiances and become subject to the "complete jurisdiction" of the U.S. This did not include foreign nationals who were just visiting or had just strolled across the border.

[James Pollock]

The authors of the 14th amendment wanted to write a guarantee of citizenship for former slaves, and descendants of former slaves, and the former slave states couldn't subvert. So they wrote the birthright citizenship provision. They found other ways to keep them from voting besides simply claiming they weren't citizens, because the 14A worked as intended, and left no question as to whether the black folk who were born here were citizens.

[David Nieporent]

Those foreigners, aliens, who became lawfully and permanently domiciled in the U.S. were no longer foreigners, but had renounced foreign allegiances and become subject to the “complete jurisdiction” of the U.S.

This is, of course, completely wrong. A foreigner living in the U.S., temporarily or permanently, does not "renounce foreign allegiances." A foreigner living permanently in the U.S. is still a foreigner, a citizen of another country.

[M L]

According to SCOTUS in Slaughterhouse and Elk v Wilkins, you are wrong.

Even according to Wong v Kim Ark, you are wrong because the court emphasized that Kim Ark was a lawful permanent resident who had domiciled in the US. The only possible way to square that with the abundantly clear original meaning of the 14A is to suppose that by such act Kim Ark became no longer "subject to a foreign power."

[David Nieporent]

Correct. When you are in the U.S. you are fully subject to the U.S.’s jurisdiction regardless of your citizenship or residency. The only exceptions are the families of ambassadors and invading armies.

Indians are a unique case because tribes had/have quasi-sovereignty within the U.S. The rules for Indians are different than for anyone else. Elkins therefore has no application to anyone else. But WKA does, and it of course rejects the anti-birthright citizenship argument.

[M L]

No, as the drafters of the 14A stated, anyone subject to or owing allegiance to a foreign power, such as "sojourners" and Indians, are not subject to the "complete jurisdiction" of the US, even though they are subject to its laws.

[Rev. Arthur L. Kirkland]

Pushing the right-wing line is always very originalist.

That is part of the reason originalism is and is destined to remain a fringe movement.

[M L]

Sarcastro, You've got it exactly backwards. Brett Bellmore linked it; have yourself a read.

[Sarcastr0]

I had read it when I posted.
Noscitur a sociis posted the language that shows Brett and you are in the wrong.
Unless you have actual quotes to bring, it looks to me like more wishful thinking from the nativist cohort.

[M L]

See above for the quotes.

[Sarcastr0]

See above you getting handled by DMN, who seems to have the citations of your fallacious arguments, even.

[M L]

I see you're unable to formulate a substantive response, as usual.

[James Pollock]

"It IS possible to be born in the US, and yet not be a citizen."

Duh. By being an Indian not taxed, for example, or by being born to a diplomat here for work.

[LawTalkingGuy]

Would a moral country deport people who have been born here, know no other home, and have no connection to the country to which they are to be deported?

[M L]

Fair question- No I don't think a moral country would do that, especially when factions within our government have actually encouraged illegal immigration to further their destructive agendas. However, a sane country would clarify the issue going forward, so that absurd situations like maternity hotels aren't a thing any more.

https://www.washingtonpost.com/news/post-nation/wp/2015/03/05/the-shadowy-world-of-birth-tourism-at-californias-luxury-maternity-hotels/

[3ducerist]

I agree with ML's answer here, that a moral country would not.

But then are we arguing morality or legality? And if morality, are we attempting to legislate morality? If so, whose morality are we legislating? Progressive, pro choice? Convervative, anti-abortion? Or somewhere in between? What about my morality, and of course everyone else's whose morality is different than mine?

If we're going to use moral arguments for legal reasoning we run the risk of ruining a great deal many other topics unless we stick to malum in se.

[James Pollock]

We try to base our legality on morality that all of us, or at least nearly all of us, agree on. Results are sometimes mixed, but the overall theory is that the different states will try different variations, and the ones that work get kept, and the ones that don't get discarded.
So, everyone agrees that killing people is wrong, and so it's illegal in all the states. But, when you get down close to it, it turns out that we can find a few exceptions to the rule that killing people is wrong, and put exceptions into the laws to cover that.

[3ducerist]

When you stand on a moral soap box to advocate for ignoring and circumventing existing and established law, then it certainly isn't based on any morality nor something that 'at least nearly all of us' can agree on. Without digressing too far from the point, if the laws are improper or immoral then work to change them. Up to and including civil disobedience, but do remember that civil disobedience is against the government and not people who may disagree with your stance.

I've heard way too many arguments from the left about how we 'must' be morally responsible and that as such we 'must' help these people who come to our country. Which morality I find lacking in several areas. For example, the fact that we receive from countries people who are processed and let into our country awaiting a court date they may or may not show up for. When so many other countries, including those from which they came would simply throw someone in jail for doing the same. For example, the fact that encouraging these massive migrations has the unintended consequences of supporting human and sex trafficking.

If someone wishes to play the 'moral high ground' card, they're going to have to do a lot better than snidely looking down their nose at me or being willing to attack and denigrate me for not agreeing with them in their stance.

As for those who will invariably attack or dismiss me as some right wing troll, I feel quite the same about the right side's stance on imigration. Refusing immigration reform when all the data says that not only will allowing additional work immigrants here benefit our nation, but the other nations as well. Opening up immigration to all the work areas where we have massive (and not so massive) employee shortages would be beneficial to anyone participating. It's also easy enough to protect american workers by limiting the percentages of work visa jobs available on a yearly basis for jobs. This also has the side effect of protecting worker immigrants from abuse.

[James Pollock]

"When you stand on a moral soap box to advocate for ignoring and circumventing existing and established law, then it certainly isn’t based on any morality"

This will come as a surprise to Dr. King when you tell him.

"I’ve heard way too many arguments from the left about how we ‘must’ be morally responsible and that as such we ‘must’ help these people who come to our country. "

Here's one from a centrist: Helping people does not necessarily include letting them stay here. Sometimes it does (we have laws for that) and sometimes it doesn't (and we have laws for that, too.)

"If someone wishes to play the ‘moral high ground’ card, they’re going to have to do a lot better than snidely looking down their nose at me or being willing to attack and denigrate me for not agreeing with them in their stance."

Am I to understand that you took this message away from anything that I wrote? If so, you need the lecture on the difference between "imply" and "infer".

[RestoreWesternHegemony]

"U.S. citizenship is a valuable thing, and it’s time that our government started acting like it. The government is much like a corporation with a duty to its shareholders, and each citizenship is a share. So, citizenship should be jealously guarded and limited, though of course, for the benefit of citizens, this should be done within a procedural framework."

Wrong. Every 85 IQ illiterate mestizo from Latin America is entitled to full U.S. citizenship, and free health care, food, education, and housing.

[David Nieporent]

The 14th amendment has never required what has been called “birthright citizenship” and a careful reading leaves no doubt on this question.

ML is a liar, but I think longtime VC readers know that his post can probably just be summed up as "FRAUD!!!!!!!!!!!"

[M L]

Why are you so angry and accusatory?

Even Ilya Somin has gone as far as admitting that there are strong arguments on both sides of this issue.

One would think that you would be capable of taking a dispassionate interest in the topic, and making a materially substantive comment so that readers may benefit from your insight.

[anorlunda]

Challenging citizenship.

I'm thinking of a citizen incorrectly deported by immigration. Now he is in another country, at the US embassy or at the border, and he wants to reenter.

What proof of citizenship is he required to produce? Are those requirements uniform, or up to the discretion of the US official?

[James Pollock]

If he was dispossessed of his property in the U.S., how likely is he to be able to produce anything, without help from inside the country?
I've never tried to order a copy of my birth certificate from outside the country and without a bank account. I don't imagine it's a process that gets completed in minutes.

[anorlunda]

Indeed. I always thought a birth certificate is a particularly poor form of ID. There is nothing to tie the identity of the infant to the identity of the person ordering the certificate.

You're right about the difficulty of getting any docs. I was curious though about whether the demand for docs is purely arbitrary, or well defined.

I'm not even sure if a valid passport guarantees acceptance to enter the country.

[James Pollock]

If the deportee had had a valid passport, the deportation hearing should have been short and come out differently.

[Sanctimonica]

I'm interested in reading the full work. This is a topic I know almost nothing about and am eager to learn more.

However, I fear that citizenship as "a key pillar of our constitutional democracy" is a concept that is fading. Rapidly.

[Brett Bellmore]

"Fading" implies natural demise. It's being erased.

[RestoreWesternHegemony]

The crazy thing is that the left seems to think that the patriotic Americans they hate will still be able to be useful when needed. The reason that people have been willing, throughout American history, to die for the country is that they feel an intense sense of loyalty to it and its people, and see its people as their fellow countrymen. You get rid of that sense of loyalty, which is inevitable if you no longer have a shared people, culture, language and history, and no one will agree to die for this country anymore. Once that happens, it's just a matter of time before an illiberal superpower like Russia or China takes over.

[Stephen Lathrop]

RWH, I am perfectly happy to take my chances with Hispanics who enlist in the Marine Corps. They strike me as worthy, and preferable, replacements for insurrection-minded bigots such as yourself.*

*Feel free to ignore if you are only a Russian troll.

[3ducerist]

I think what he's trying to say is that the 'patriotic Americans' will stop enlisting or fighting for our country, reducing our military to shambles (which I agree is completely arguable at best) allowing a vacuum to be filled by another world power.

I could see an argument for taking what the left would do to this country and turning it against them, as I've seen enough of other countries to know that if we implemented everything either the left or right has on their wish list America would self implode.

[James Pollock]

He's entirely ignorant of what "patriotic Americans" means. In his formulation, it excludes everyone of centrist or left-leaning opinions on any subject. If he thinks there are no centrists in the military, it just proves he has no experience with any of them.

[3ducerist]

I agree that his formulation isn't going to add up to what he thinks. I also think that disillusionment of a significant percentage of the population that currently volunteers for military service isn't a good idea, and the remaining result of his statement would still hold water.

[James Pollock]

The biggest source of disillusionment of people inclined to volunteer for service is the horrible misapplication of resources surrounding the Iraq War, specifically including grossly underfunding the VA.

[James Pollock]

You don't win a war by dying for your country. You win a war by making the other guy die for HIS country.

[MaverickNH]

Did the Founders intend: If you can get across US borders, even if caught thereafter, you are a US citizen. Or maybe you’re a US Citizen if you claim so wherever you are on Earth? Do we have to send your rightful share to you, or do you have to come to the US to pick it up?

One foot in the end zone doth not a US Citizen make.

[Sarcastr0]

Hey now, this isn't a Somin thread, you're swinging at a strawman.

[Stephen Lathrop]

The founders? Some of them were born abroad. James Wilson, born in Scotland, signed the Declaration of Independence, signed the Constitution, and was appointed by George Washington to the first Supreme Court. But citizen? Who knows, right? Probably not any more a citizen than Alexander Hamilton.

[James Pollock]

Not ONE of the Founders was born in the United States. NOT ONE!

[3ducerist]

We should revoke their citizenship and send them home!

[ReaderY]

I agree that once citizenship is granted, government should not be able to remove it without initiating a judicial proceeding and obtaining a judgment requiring a heightened burden of proof.