Prof. Michael Ramsey Blogging on Originalism and Birthright Citizenship

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I'm delighted to report that Prof. Michael Ramsey (Univ. of San Diego School of Law) will be guest-blogging this coming week about his forthcoming Georgetown Law Journal article on Originalism and Birthright Citizenship; here is the Abstract:

The first sentence of the Fourteenth Amendment provides: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

This language raises two substantial questions of scope. First, what does it mean to be born "in" the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born "subject to the jurisdiction" of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause's text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered "in" the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were "subject to [its] jurisdiction" unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment's enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century.

Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text's resolution of key questions of its scope appears to be largely accidental.

The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors' policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

I much look forward to Prof. Ramsey's posts!

NEXT: Today in Supreme Court History: October 24, 1894

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  1. Thanks for this post. Very interesting. I downloaded the paper but haven’t finished reading it.

    That said, I think it’s wrong that persons born here to a mother not here legally are considered citizens. This has created a “game” where people can sneak in and have a child here, and start a chain of lifetime personal and family benefits as a result. It’s like a child being able to inherit and keep the ill-gotten gains of criminal parents in other contexts, which is clearly wrong.

    1. You’re expressing disapproval of a result of following the written text, the kind of motivated reasoning that gets labeled ‘activism’ in other contexts.

      1. Based on phrasing I took him to mean what he would like the law to be, rather than what the law is. YMMV.

    2. They knew what they were doing at the time and that “undedireables” would become citizens. I know that the California legislature recognized that the children of Chinese workers would become citizens and, at least some of them decided that a sweeping rule was necessary in order to preserve the rights of the freed slaves. It was meant to be radical.

      1. Yeah. I think the fairest expression of original understanding was “they saw the mischief of what happened in the era of slavery when we had all these people who were born here without citizenship, so they wanted to impose a per se rule”. “Subject to jurisdiction” was just an attempt to deal with some special cases (principally involving the children of diplomats) where international or some foreign body of law might prevent the US from recognizing citizenship rights.

    3. A crime, illegal immigration, should not be rewarded with massive benefits of being a US citizen for the offspring. That offspring will be a tax sucking parasite. It will lower the wages of all US workers, from laborer to profession. It will be a voter for the Democrat Party, turning the USA into a one party Marxist country.

      1. Gee, I can’t imagine why people described by you like that might not vote for your preferred candidates.

        1. Illegals aren’t supposed to be voting.

          1. Americans are voting now.

            See you guys next week. I offer to send a personalized crying towel to any Conspirator who requests one.

            I’d send some beer to cry in, but that is more difficult to ship lawfully.

            Are you prepared for the reckoning, clingers?

      2. Why should the child be punished for crimes committed by it’s parents?

        Can we send you to prison if one of your parents commits a crime?

        1. If somebody flies in from Asia to drop by one of the maternity hotels in LA then flies home with baby how is baby “punished” by lack of US citizenship?

          1. If two undocumented immigrants are living in the US, have a child, the child attends US schools and has only ever known the US, and then, if your apparent desire to reject birthright citizenship becomes the law of the land, that child is now not a US citizen, but is a citizen of a country to which it has never been, never set foot in, but your ICE agents will deport them….how is that child not being punished for the sins of the parents? That’s the question.

            Birthright citizenship is clearly, unequivocally spelled out in the Constitution and there are incredibly compelling humanitarian reasons for it.

            But even if there weren’t, it’s in the text of the Constitution. You think you have a compelling reason to change it, convince enough people that you can amend the Constitution. Until then, birthright citizenship is the law of the land.

            1. Citizenship in general cannot be revoked, and I wouldn’t be in favor of that regardless. Persons born on US soil under current practice are generally automatically citizens, even if on vacation.

              Current practice isn’t necessarily mandated by the citizenship clause, however.

              As to anyone meeting the description you gave, such persons have arguably “domiciled” in the states, regardless of a nominal “illegal” status (which did exist as a thing back then), and therefore are “subject to its jurisdiction.”

              Certainly some gray areas

              1. ..(cont’d) from what I’ve seen but I look forward to reading the Ramsey paper when I have time.

                1. ML,

                  As to anyone meeting the description you gave, such persons have arguably “domiciled” in the states, regardless of a nominal “illegal” status (which did exist as a thing back then), and therefore are “subject to its jurisdiction.”

                  This is pretty much game, set, match. And I think you are exactly right. This is required by the citizenship clause which does confer birthright citizenship.

                  I have to imagine that the number of children born to visiting tourists is quite small, so I would be surprised if that is the limit of others’ concern about birthright citizenship.

                  As to the tourist problem, as you say, if you try to exclude the “tourist” baby but recognize the citizenship of the child I described, there are lots of gray areas.

                  Even if the citizenship clause were debatable, though I don’t think it really is, I would be in favor of the bright-line rule currently practiced because the “harm” done by granting (dual) citizenship to a few hundred/thousand? babies per year who maybe shouldn’t get automatic citizenship is much less than the harm done to a child deprived of US citizenship due to an over-inclusive or poorly administered exclusionary rule. (Essentially, better 10 citizenships improvidently granted than one unjustly withheld.)

                  The other problem I have with the push to undermine the citizenship clause and its mandate of birthright citizenship, is that the whole purpose of the citizenship clause was to prevent the politically powerful from excluding people who were politically vulnerable, historically marginalized, and considered (by those in power) culturally undesirable. I see the same attitudes and process at work presently and I have no doubt, regardless of present-day motives, leaving gray areas to be eroded will be used for the same exclusionary purposes in the future.

                  Birthright citizenship may be subject to some gamesmanship, but it protects “undesirables” from being systematically excluded from full participation in American society. The good of birthright citizenship far outweighs the harm of ending it. And, happily, the text requires it.

        2. As I said previously in this thread I believe the Constitution requires birthright citizenship even for children of illegal aliens. But if it didn’t how is not granting automatic citizenship a punishment?

    4. “mother not here legally” …
      That’s a modern legal construct that didn’t exist when the framers of the 14th Am wrote it.
      The way things worked in 1868 is, if you were born in the US – even if your mother just swam ashore, you were an American citizen.
      Why isn’t that the text’s “original” meaning?

    5. I always thought it an excellent example of America as Shining City on the Hill, when people from dictatorships came here to give birth, so their kids could choose to be citizens at age 18.

      You can guarantee a better life for your child. We should be proud of this.

      1. Thank you.

        I too view that as a positive, not a concession.

        1. Absolutely. Well said, Krayt.

  2. Just do what the Obama judges do. Work backwards from your policy preference and come up with a legal argument.

    Get rid of birthright citizenship. Consistent principles don’t matter in the age of the Living Constitution.

    1. “Work backwards from your policy preference and come up with a legal argument.”

      Every accusation is a confession.

      1. I confess I observed a bunch of Obama judges rewrite election laws over the past month or so.

        hbu?

        1. There’s a concerted effort to re-write or interpret the Birthright Citizenship clause that I see. hbu?

          1. Boys, boys. Both efforts are terrible and calculated power grabs designed to benefit one party or the other.

  3. Funny how many people are extreme strict originalists when it comes to birthright citizenship, yet when it comes to gay marriage, they want to creatively interpret the 14th in light of current norms.

    1. No need for extremely strict originalism, any more than there is such a need in order to say a 34-year-old can’t be President.

  4. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental . . . .

    The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices.

    1. Oops. Here’s my comment.

      The quote above promises, if it becomes the proper focus of this discussion, to be interesting indeed, for its potential to challenge textualist originalism with the original meaning alternative.

      1. Ooops: Original “intent,” not, “meaning.”

        1. (we need an edit function)

  5. Why shouldn’t the text of something and the original intent of that somethings authors rule the day when it comes to interpretation?

    1. Because the text is what the people voting to enact/ratify the thing understand it to mean at the time, while the intent of the drafters may be secret or disputed, and they lack the authority to enact it in the first place.
      If you write a statute that has “loopholes” in it that you don’t recognize, while I, your political opponent vote to enact the statute BECAUSE I see the loopholes, and it is in fact enacted, your intent is irrelevant.

      1. “Because the text is what the people voting to enact/ratify the thing understand it to mean at the time, while the intent of the drafters may be secret or disputed, and they lack the authority to enact it in the first place.”

        You’re saying because the people who voted on the law may have held one belief that differs from the author’s we should ignore the text and intent?

        “If you write a statute that has “loopholes” in it that you don’t recognize, while I, your political opponent vote to enact the statute BECAUSE I see the loopholes, and it is in fact enacted, your intent is irrelevant.”

        But that’s why I said text and intent. If there’s some loophole in the text, then there’s some loophole and it was a poorly written and passed law.

        I appreciate the input, I just don’t get it. What does your point lead to?

        1. Whose intent? The author of the bill or the legislators who pass it? What if the legislators have contradictory intents?

          1. jjrzw72, what if a public meaning enacted centuries ago differed at that time from a purported public meaning attributed to that era today—perhaps by a present-minded reader with no inkling of historical context?

            You can not get rid of the problem of antique historical context simply by saying, “I understand what it says. My command of modern textual context delivers the answer.” The two kinds of context, historical and textual, are neither alike nor interchangeable, no matter how often would-be textualists insist they are.

            To discern meaning, both kinds of context—historical and textual— must be applied simultaneously. In assessing textual context, the lapse of centuries cannot be treated as irrelevant without inviting errors.

            While discerning meanings of antique texts, there is little or no use for present-minded textual interpretations. People untrained in history are almost always incapable of any but present-minded textual interpretations. What else do they have to go on?

            Even the most-apparently obvious historical meanings ought not be trusted until examination of historical context validates supposition they are obvious. For instance, to say it is obvious that the Constitution meant originally what it means today, when it says a President must be at least 35 years old, is to assume the calendar in the pre-founding era was read and interpreted the way it is today. Even that was not always true, nor alike everywhere.

            In parts of the future U.S., transition from the Julian to the Gregorian calendar occurred on different dates. In the U.S. region generally, it happened mostly ~ 1752; 170-years after Roman Catholic Europe led the transition. But in many nations—and even localities in the U.S region—religious resistance engendered lengthy delays.

            Those date differences among calendar transitions can complicate assessment of time intervals. Ages are time intervals, and the lives of notable founders encompassed the calendar transition era.

            Because of the happenstance that 1752 was more than 35 years prior to the first presidential election, and because of the further happenstance that all the candidates who might have been affected came from regions where calendar transitions probably occurred in 1752 instead of later, we can be sure that no extra historical work is necessary to determine early presidents’ actual ages when inaugurated were sufficient to get over the Constitutional bar. But it might be harder without careful study to say to the day what those ages might have been, especially for the first 4 presidents.

            So for the sake of convenience, we treat that Constitutional provision as obvious. But the historical record did not have to work out that way, and it did take historical insight to validate reliance on that convenience.

            To press the point a bit farther, you might want to be particularly careful with any fine-grained assessment of the age of an American born in the Appalachian regions, including the part of Virginia which became West Virginia. Some West Virginia localities are said to have resisted the calendar transition for a long time. Even today, some West Virginians take note of what they call, “Old Christmas,” and celebrate it, in January. Who knows what that might mean for the recorded birth date of an American born in those parts during any time when local calendar-change resistance was ongoing? Who knows, from place to place, what dates that interval might encompass?

            To see how perplexing, “obvious” historical interpretation can get, take a look at Wikipedia’s article about Sweden’s prolonged period of calendar transition, between 1700 and 1753. God help anyone trying to lay out timelines for events mutually involving Sweden and any other nation on earth between those dates. And don’t be tripped up by forgetting that what applied in Sweden applied also in Norway and Finland, because Sweden controlled them—which probably means some dates recorded in the records of Russian foreign policy also need careful handling.

            The only useful textual readings are those inflected by historical context, which cannot be accomplished without historical expertise. Try as they will, would-be legal methodologists will not be able to construct any kind of valid originalism, or textualism, which dispenses with a need to understand history in historical context.

          2. We lost a game of Nomic once, when a guy wrote down a proposed law and we voted for it, then he showed the paper read “I win!”.

            Much lively discussion was had on whether we voted on the words out of his mouth, or on what he wrote down, with respect to the rules of the game (which is the game*, in case you are not familiar with it.)

            * Pro Observation: At least at the start of the game.

            1. Sounds similar in spirit to the game Slaviash, which has only one rule: We tell you when you win.

        2. Legislative intent is useless.

          My locality passes a law. $30 fine for parking illegally. 2 years later, a cop walks past a car parked illegally. The cop, frustrated that he sees illegally parked cars every single day, writes a ticket, but scratches out the $30 fine and replaces it with a $300 dollar fine. The parking case goes to court. The Judge decides to uphold the $300 fine, because the legislative INTENT was obviously to end illegal parking, but quite clearly, a $30 fine didn’t do the trick. So the $300 ticket is fine, because it’s consistent with legislative intent?

          1. So in this case, it’s obvious that either “original public meaning” originalism would work quite well. The original public meaning of the illegal parking bill is quite simple: park illegally and you might get a ticket for $30. The original public meaning would NOT be “if a pissed off cop sees his 200th illegally parked car, the cop should issue an arbitrarily large fine to cull the issue of illegal parking.”

            Textualism, or discerning the plain meaning of the words on the paper, works fine here, too.

      2. JohnSteed, you make good points, but I don’t think those qualify as originalist arguments. The notion that their intent meant little or nothing is not one a wise person in 1789 would have tried to sell to figures such as Washington, Adams, Hamilton, Jefferson, Madison, or James Wilson. Maybe you could have got an interested hearing from Franklin, who despite being the oldest among them, was also probably the most modern thinker in that group.

        Of course the anti-Federalists—many of them champions of one of the most class-bound authoritarian regimes in the world—were also bad candidates for belief that principles they carefully enunciated ought to be given whatever meanings less-educated people might come up with.

        The practical purpose of textualism in modern originalist doctrine has been mostly to escape strictures logically required by original intent analyses—practical problems like lawyers and judges uneducated in history, and thus dependent on historians who they found could not be counted on to deliver conclusions the lawyers and judges wanted. Despite selling originalism as a means objectively to constrain legal analysis, while they were in a hurry to overturn precedents, lawyers and judges chaffed under a good deal more constraint than they wanted from the original intent method. They had to get rid of it.

        Those lawyers and judges hope now that textualism will suit their need better. It offers the advantage of taking historical context out of the picture, which had been most of the problem with original intent. It took a historian to opine on historical context without making a fool of himself. A lawyer or judge could not do that by himself.

        With textualism, all the context you get, naturally, is textual context. And because the text is usually written in English, anyone with mastery of present-minded English idiom is empowered to paste modern notions into the historical record, to create whatever historical-looking pseudo-context suits present-day needs. By that method, founders fiercely and narrowly focused on popular sovereignty become instead gauzy-minded Lockians with libertarian ambitions.

        Textualism is by far the most flexible method yet invented for delivering judicial constraint.

        1. It’s amazing how so many readers here don’t have the first clue about what “originalism,” as practiced by Scalia, or in other words, the most popular flavor of originalism, actually means.

          Originalism, with regard to Scalia and the usual way it’s used, has nothing to do with legislative intent. It does not mean “original intent.” It does, however, mean “original public meaning.”

          1. The meaning of the text combined with the original public meaning makes sense to me as an interpretative standard.

          2. Deontologist, please explain how, “original public meaning,” in the founding era, could be analyzed without expert testimony to inform the court about historical context.

            1. My reply to you has nothing to do with the merits of “original public meaning” originalism. It was to simply point out your massive strawman and conflation of original intent with the form of originalism popularized and embodied by the most famous originalist.

              That being said, if you’ve ever read a Scalia opinion, it’s obvious that he relies on founding era documents to discern original public meaning. Maybe there’s a particular turn of phrase such as “keep and bear arms” in the Constitution and the Original Public Meaning isn’t clear. In that case, it’s a great idea to consult how state constitutions used that particular phrase to get a grasp on the common, original, and public meaning. Maybe also consult British enlightenment era documents because the educated of America’s founding era were undoubtedly familiar with the scholarly works of their motherland. Duh.

              1. Deontologist, your view is that Scalia acted as his own historical expert? Heller reads like a grab-bag of D-minus historical reasoning, which would never be tolerated in an academic history seminar. So Scalia turned out to be an embarrassing witness in his own cause.

                What Heller shows about Scalia’s historical reasoning is that he did not even know there is such a thing. Nor was he apparently mindful that an entire historical profession is based on a body of methods, called historiography, which govern standards for the practice of historical reasoning.

                By the way, you are repeating Scalia’s lapses yourself. You write:

                Maybe also consult British enlightenment era documents because the educated of America’s founding era were undoubtedly familiar with the scholarly works of their motherland.

                You have set yourself two historical bars, without even attempting to get over them.

                1. British documents. So what? We are talking about American constitutionalism. Reference to British documents, without specific and detailed explanation to say how they connect historically to the American subject in question, amounts to making up history, but doing it badly.

                2. “Undoubted” familiarity. That one has three problems. First, historians don’t get to just say “familiarity,” they have to show familiarity, written down in the historical record. If they do that, they don’t have to add, “undoubted.” Second, if familiarity can be documented in the historical record, once again, so what. Familiarity is not endorsement, and might as easily attend rejection—or acceptance for one purpose, and rejection for some other purpose. You also have to show endorsement, not assume it. Third, you can’t just show that someone, somewhere, at some time, was familiar and used or approved the contents of the documents in some context—and then insist by nothing better than implication that everyone, everywhere, for every purpose thought alike. Instead, you have to connect those documents specifically to specific people who wrote the specific texts you are analyzing, and show in those peoples’ own words they relied on those documents, for a particular purpose, a purpose which they undertook at a specific time and specific place, and that all that happens to be the purpose you say the documents support.

                That standard of relevance, by the way, is similar to what any lawyer in court would have to show to get evidence admitted. Vaporous imaginings about history should be no more admissible in court than any other evidence offered without supporting context. Relevance, your Honor!

                Your method, like Scalia’s, amounts to nothing more than atmospheric arm waving, which never connects with the subject being asserted. That is not history. The historical record is of course replete with all kinds of notions, documents, objects, occurrences, prejudices, partialities, and excitements. The job of the historian is to show which of those have explanatory power in relation to this person, these events, at this place, and at that time. You do none of that, and neither did Scalia.

                To help you see for yourself how useless Scalia’s historical blundering was, and how poorly it supported his argument, consider. Suppose there was even one citation available in the historical record, in which one founder said specifically in connection to the Federal Constitution’s Bill of Rights that the 2A was written with an eye to personal self-defense. Don’t you suppose Scalia would have made that the centerpiece of Heller, and trumpeted it to the skies?

                Try to find it. It is not in Heller, and it is not in the historical record. It doesn’t exist. Gun advocates have ransacked the nation’s archives looking for that quote, and no one has turned it up yet. You know what that means? It means it probably did not happen. It means that at least on originalist grounds, Heller was wrongly decided.

                To put the cap on it, the historical record of the drafting of the Constitution and the Bill of Rights is full of applicable citations which fully meet the historical standards I mentioned, and which unambiguously support a militia purpose for the 2A.

                Heller gave gun advocates what they wanted, and they bought it. That doesn’t mean they have to permanently make themselves foolish by insistent support for bad historical methods. Still less does that mean those bad methods ought to be expanded and made standard for deciding court cases of every kind.

                1. What Heller shows about Scalia’s historical reasoning is that he did not even know there is such a thing. Nor was he apparently mindful that an entire historical profession is based on a body of methods, called historiography, which govern standards for the practice of historical reasoning.

                  Wait–you’ve actually read Heller, but you still didn’t know what originalism actually meant?

                  This is a bad joke, right?

      3. Because the intent with respect to modern controversies is unknowable.

        1. If you don’t rely upon the text and the intent, what alternative standard do you use?

          1. Addendum: text and original public meaning makes sense, from Deontologist’s comment.

            1. Glad that my explanation helped!

    2. Why shouldn’t the text of something and the original intent of that somethings authors rule the day when it comes to interpretation?

      First, the authors’ “intent” doesn’t meaningfully exist. You’re talking about many people, who may or may not have a common intent. Two people can support the same proposal with different intentions. Second, even if we could discern their “intent,” it wasn’t enacted; a text was. Third, in the case of a constitutional provision, the above two points are even more strongly true, because the people who ratify it are not even remotely the same as the people who proposed or drafted it. Fourth, in many of these discussions their “intent” is purely hypothetical. There was no such thing as an illegal alien in 1865. So discussing the “intent” of the authors (or ratifiers) of the 14th amendment with respect to something that they never considered makes no sense.

      1. Okay, go on. How do you discover the meaning of antique language without use of expertise regarding historical context?

  6. Birthright citizenship requires both of two things. Born in the USA AND subject to the jurisdiction of the USA. If you believe mere presence in the country equals citizenship then the second condition would be redundant. That is a clear non-starter. Illegal aliens are not subject to the jurisdiction of the US, as that term was understood in the 1860s. They could not vote, serve on juries, be drafted, or work in the civil service. They were outside the law, in the Medieval sense.

    1. According to your logic isn’t the ‘Indians not taxed’ part redundant?

      1. Queen:

        The “Indians not taxed” part would be redundant, if it was there. It’s not in there. Read the 14th amendment again.

        The drafters of the citizenship clause themselves concluded that “Indians not taxed” was redundant and left it out for that reason. In fact, the ratification debates focused on this more than any other issue.

        The explicitly stated purpose and intended effect of the citizenship clause was to mirror language from the 1866 Civil Rights Act which read: “That 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..”

        According to the ratification debates, the drafters of the 14th amendment considered “subject to its jurisdiction” to be an improvement that encompassed both of the elements of the CRA language “[1]not subject to any foreign power, [2]excluding Indians not taxed”.

        Much of the debate that one Senator wanted to add “excluding Indians not taxed” and it was explained clearly why this was not needed, because “subject to its jurisdiction” is a maximal sense of jurisdiction that excludes all who are “subject to a foreign power” as well as those subject to a quasi-foreign power such as Indians not taxed.

    2. The article itself lists two groups of people who are in the country but not subject it’s jurisdiction. Those with international immunities (e.g. Ambassadors) and invading armies. There can be debate about illegal immigrants, but redundancy/superflousness is not an argument that works.

      As to your definition of “subject to the jurisdiction thereof” minors wouldn’t be included either. So you are going to need to refine that.

    3. That is a clear non-starter. Illegal aliens are not subject to the jurisdiction of the US, as that term was understood in the 1860s. They could not vote, serve on juries, be drafted, or work in the civil service. They were outside the law, in the Medieval sense.

      The problem here isn’t your logic; the problem here is that every word you just wrote is false.

  7. Has anyone addressed the following inconsistency:
    A child born in the US to a parent who is a citizen of the UK or Mexico, (for example) temporarily in the US,
    1) is “subject to the jurisdiction of the US” and becomes a US citizen;
    2) by British or Mexican law and parent’s citizenship, is a British or Mexican citizen apparently permanently subject to the jurisdiction of the UK or Mexico;
    3) if the child leaves the US permanently, does US citizenship (jurisdiction) attach for life?

    Also, does any foreign law govern when a child of a citizen born in the US and acquiring automatic US citizenship, loses parent’s birthright citizenship?

    1. Dual citizenship isn’t an inconsistency

      1. but it does raise the question of where does their loyalty lie?

      2. Agreed, some are by law citizens of three countries. My question, has anyone thought this through? Voting, taxes, likely more issues.
        Can the US send a tax bill to a British or Mexican citizen who has lived outside the US for 20 years, born in the US, never renounced US citizenship? The US taxes worldwide income. If not, why not?
        Can you renounce US citizenship after the IRS notice? And, grandchildren? Why are they not US citizens?

        1. 1) Can the US send a tax bill to a British or Mexican citizen who has lived outside the US for 20 years, born in the US, never renounced US citizenship?
          -Yes.
          2) Can you renounce US citizenship after the IRS notice?
          Yes. You’re still on the hook for the tax bill though. And the Exit tax.
          3) And, grandchildren? Why are they not US citizens?
          Section 301(c) of the Immigration and Nationality Act (INA) determines citizenship for US Citizens born abroad. Rules are somewhat more complicated. But since they are not born in the US, the 14th Amendment doesn’t really apply

        2. There is no thinking it through. Dual/multi-citizenship is a fact of life. The US can do nothing about it without making US law hostage to the law of foreign nations.

          Dual citizenship is not just children of other nations born in the US. Many US citizens born to US citizen parents born abroad have dual citizenship.

          Then you have children born to parents of mixed citizenship. For example, the Father is a UK citizen and the mother is a US citizen.

          But at the end of the day, even most legal immigrants who become naturalized US citizens hold dual citizenship.

          Yes, the naturalization ceremony includes an oath renouncing foreign citizenship, but that doesn’t actually have any legal effect on their citizenship in their home countries.

    2. 1) Yes
      2) Yes-ish. (They’re citizens according to the law)
      3) Yes
      4) I’m sure you could find an example somewhere of it applying.

  8. One possible resolution, trace every child ever born in US who moved to foreign country and demand US income tax filing for all years since leaving US, then await complaints from foreign countries about US automatic citizenship rules.

    1. While you’re at it, send Warren Buffett a letter demanding that he turn over his assets to you.

  9. The desire to exclude brown children from the definition of “Americans” results in intense blowing of smoke as clear language is pretended to be unclear.

    “Person” means any human being, of whatever age.

    “United States” includes its territories. In 1868 much of the West was territory, but everyone knew statehood was coming. They certainly did not intend that when Washington (1889) or Arizona (1912) became states nobody who was born there would be citizens.

    “Subject to United States jurisdiction” certainly includes people here illegally — unless you want to say that our Border Patrol and our courts can’t touch them. It would not include extraterritories such as embassies.

    Now let’s talk about something else.

    1. Born or naturalized AND subject to the jurisdiction. So no it does not mean illegal immigrants. It does mean their children and the courts have held as such. Whether it should is another question. Your snarky “brown children” comment was pure ignorance.

      1. So we agree then.

        The reason this is an issue at all is due to the (racist) desire of the current President to exclude children of undocumented immigrants from the definition of “citizen”.

        1. Racist desire? I was heretofore unaware that the administration’s policy has been to include children from Norway or Denmark but exclude children from Mexico and Guatemala. Got a cite for that?

    2. OK, lets talk about what “and subject to the jurisdiction thereof really means. This from the Senate debate in consideration of passing the 14th Amendment:

      “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 ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”

      1. Yes, that is what one Senator said. And that’s exactly how “originalist” historical analysis works. Cherry pick what supports the conclusion you want.

        1. Alpheus, now let’s see your cherry picked contemporaneous sources that support the conclusion you want, and see how it all stacks up. Surely you have something.

          1. Contemporaneous sources? FFS, study something about non-originalist analysis, just a bit. Otherwise you look pretty foolish.

      2. That was Lyman Trumbull, who also said:

        I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.

        It appears Lyman believes a child of German parents have any other allegiances. But, who knows? Determining intent can get tricky.

        1. Germans, or anyone else, who moved to US and settled here permanently were exercising the right to dissolve former political allegiances and to become, with the consent of the US, subject to the jurisdiction of the US.

          1. Did they dissolve their former political allegiance?

            1. It appears that all you have to do is settle or “domicile” here to become a sufficiently free agent. But modern immigration statutes control more of this “allegiance” question today, from what I gather.

              1. It appears that all you have to do is settle or “domicile” here to become a sufficiently free agent.

                How does settling suffice to dissolve a foreign allegiance when you still hold citizenship in your native country?

                1. It doesn’t really, formally. Yet “domicile” or being a “resident alien” is apparently enough to make one subject to the jurisdiction of the US, at least if you follow Wong Kim Ark. The ratification debates likewise suggest a distinction between “sojourners” and those settled here from foreign nations.

    3. I don’t like birthright citizenship. But I don’t see any other way to read the Constitution so I’m stuck with it.

      “Now let’s talk about something else.”

      Great idea! Why is it that the left in general is only in favor of textulism when it gives their preferred policy result?

      1. Nobody seems to be disagreeing here. So why are we still discussing it?

        1. I wasn’t discussing “it”. I was (as you asked) talking about something else. Why are so many on the left (not Stephen Lathrop) only in favor of textualism when it suits their preferred outcome?

          1. Everyone is in favor of their own version of “textualism.”

      2. I’m sort of on the left, and I am never in favor of textualism.

  10. Query: was Bruce Lee and “natural born citizen”? Could he have run for president because he was born in America and then only spent his first 3 months before being taken to Hong Kong and then returning to America at 18?

    1. Bruce Lee met the “natural born citizen” test but could not have been president because he died before reaching the age of 35. Saoirse Ronan is also too young, but Mel Gibson is plenty old enough if you want to give him a whirl.

      1. I would like to know the steps Bruce Lee took to get his American passport. So did he simply bring his California birth certificate and another ID to the passport office and get an American passport. Btw, he was definitely a British subject and a Chinese citizen when he was 18. So being born in 1940 did he have a SS#?? Are children of foreign diplomats given American birth certificates?? Because if they are then having an American birth certificate is not necessarily proof of American citizenship.

        1. Beats me.

          Boris Johnson is a much more interesting case. He was born in New York, but renounced his US citizenship in 2016. If being British Prime Minister doesn’t work out for him, would he be eligible for the presidency if he regained citizenship through naturalization?

          1. Thanks to Obama and Cruz we know that no one has standing to challenge a candidate’s eligibility to be president…so the voters are tasked with enforcing the NBC clause. I personally don’t think Rubio and Haley are NBC but I don’t care and I voted for Rubio even though he isn’t a NBC.

  11. Query: was Bruce Lee a “natural born citizen”? Could he have run for president as he was born in America and then only spent his first 3 months here before being taken to Hong Kong and then returning to America at 18?

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  13. Whew. It is a long and tedious article, but very thorough. It touched on every crazy scenario I could think of except one. That one is children born on US military bases or embassies abroad. The article mentions Guantanamo, but it says that the question is unsettled.

    I once lived abroad as an expat, and I was taxed by the US and I may have been subject to other US laws if I served in a foreign army, or if I hacked into US computers. I vaguely remember something about children born to expats had a right to citizenship, but only if they returned to the US by age 18. It sounded like a weird kind of provisional citizenship. That too was not in the parts of the article I read.

    1. anorlunda,
      How old are you? I think that provisional citizenship was the law on the books when I was born in 1959. Complicated rules that applied in certain periods are discussed here:
      http://www.americanlaw.com/citabrd.html
      I was born in El Salvador to two US citizens but we knew people my age who were affected by these rules (which kept changing.)

  14. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices.

    When it comes to the Fourteenth Amendment, the “enactors” were hundreds of people, across dozens of legislative bodies (the House, the Senate, and the bicameral legislatures of 28 states), many of whom voted to ratify the amendment purely because they were refused representation in Congress until such time as their state ratified it.

    Accordingly, if you insist on the intent of the enactors, the only possible conclusion is that the meaning of the Fourteenth Amendment is unknown and unknowable, since we don’t have any record of the intent of the vast majority of the enactors, and we know many of the enactors didn’t support the language enacted.

  15. Why should the child be punished for crimes committed by it’s parents?

    Can we send you to prison if one of your parents commits a crime?

    1. It’s not punishment, it’s a matter of entitlement. Let me ask you, should children of criminals be able to keep their parents’ ill gotten gains? Can one inherit and keep the proceeds of criminal activity?

  16. “Let me ask you, should children of criminals be able to keep their parents’ ill gotten gains?”

    Wrong three ways.

    1. The parents of natural born children don’t gain citizenship, so there is no ill-gotten gain in the first place.

    2. Citizenship isn’t a transferable piece of property. Under the birthright system, the citizenship (if any) is the “property” of the child, and never was or will be the property of anyone else. The “property” is created with the birth and ends with the death.

    3. Parents don’t have anything to do with it anyway. They aren’t mentioned at all in the 14th Amendment.

    1. That’s a very thin and illogical argument. First, I was making an analogy, not equating citizenship to property literally. Second, by being here illegally, the mother is imparting citizenship upon her child, according current interpretation. That’s wrong.

      1. “That’s wrong.”

        An assertion only, and a very dubious one at that.

        according [to] current interpretation

        You must have meant: According to the text of the Constitution.

        by being here illegally

        Nope. By being here illegally, the mother didn’t do anything.

        the mother is imparting citizenship upon her child

        Nope, again. The mother doesn’t impart citizenship “upon” her child. The law determines who is a citizen. The law imparts it, not the mother. By being born on US soil (other than to a diplomat, army, etc.), a child is a citizen. The only thing doing any imparting is the Constitution. And the text is clear and unambiguous. There isn’t even a scintilla of a “spirit” or “public meaning” at the time that would counsel against interpreting the text as it is written.

        That you hate the idea of the “wrong” people being citizens is your own problem to manage until you can muster the support for a Constitutional amendment. Good luck with that.

  17. What does it mean if temporary visitors who happen to give birth while here give birth to U.S. citizens? Presumably, the parents bring the kid home when they return, whatever the kid’s preference might be, making US citizenship largely irrelevant. (Though could the kid return later, live in the US as an adult, and, eventually run for President?) And what about the citizenship of children born to US citizens temporarily abroad? Are the kids citizens automatically upon their parents’ return? Are the kids eligible to run for President when they reach 35? (If Bill and Hillary Clinton, in the eighth month of her pregnancy, make a weekend trip to Canada and Hillary unexpectedly gives birth prematurely in a Montreal hospital, would Chelsea be eligible to run for President?)

  18. While the United States may not have had “overseas” territories at the time the 14th Amendment was ratified, it had plenty of territories. The idea that the framers of the 14th amendemtn didn’t think about what woild happen in US teritories seems a little disingenuous. The constitution makes no distinction among federal territories, except for special provisions dealing with the capital. Otherwise, so far as the constitution is concerned, territory is territory, overseas or not.

    There can be doubts whether hybrid or ambiguous sovereignty arrangements with a foreign government result in a particular place being US territory under the provisions of particular treaties. This rather local and specialized question turned out to be the central issue in the Guantanamo Bay cases, which did not turn out to result in any sweeping general decisions (as had been mistakenly thought at the time). The ambiguous boundary cases gain lots of attention but don’t have much affect on the overall doctrines. If a place is US territory, then the Citizenship Clause applies.

  19. Missing the obvious, for generations:

    Why would the Citizens of the 1780s consider themselves to be subject to the jurisdiction of this new government of their federated States? Point me to any clause or provision in the Constitution that directly concerned the ordinary man, while not engaged in the activities delegated.

    No, the 14th Amendment was written for a purpose: To give the denizen freed slave a system of laws and a voice in their governance that was not being provided by the individual States.

    You will notice that the prohibitions on the federal government in the original document are now positive “rights” given to “subjects” of the 14th, minus a few such as that pesky right to keep and bear arms.

    1. They would have said only slaves if they meant only slaves.

      1. And as the article and countless discussions have noted, they talked about the children of Chinese citizens born in California, which also cuts against any idea that the clause was only about granting citizenship to former slaves and their progeny. The text is clear, if you are born in the US, you are a citizen, with the sole exception if you are not (as a diplomat, ambassador, etc.) subject to the jurisdiction of the United States.

        That so-called originalists give even a second thought to whether birthright citizenship is a thing says everything you need to know about whether originalists are serious about their interpretive method or are just trying to import their policy preferences through consultation with long-dead people opining on matters they never considered while alive.

        Originalists who acknowledge the text says what it says (few though there are) even if they don’t like it have some integrity. Be like them, please.

      2. No. The independent State of Article 1, Section 8, Clause 17 is pleased to welcome all who request their contractual protections: Slaves, aliens, and previously-sovereign State Citizens alike.

        But you didn’t answer how a State Citizen can be made “subject” to this limited jurisdiction, absent their informed agreement. I’d love to hear the arguments of the professors and the lawyers who think they can.

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