Originalism and Birthright Citizenship

The original meaning of the citizenship clause answers some questions and raises some others.

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Thanks to Eugene and the Volokh Conspiracy for inviting me to guest blog about my article Originalism and Birthright Citizenship (forthcoming in the Georgetown Law Journal).  The article investigates the original meaning of the Fourteenth Amendment's citizenship clause and considers the implication of that meaning for modern debates.

The citizenship clause establishes two requirements for obtaining constitutional citizenship at birth:

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.

The clause thus raises two distinct questions: what does it mean to be "born … in the United States," and what does it mean to be born "subject to the jurisdiction" of the United States?  Both questions have become matters of important debate in modern law.

The debate over the latter question is the best known of the two. Conventional assumptions and longstanding executive branch practice treat as U.S. citizens the U.S.-born children of non-citizen parents who are temporary visitors or undocumented migrants.  But recently some legal commentators, including Chapman University law professor John Eastman and Claremont Institute scholar (and former presidential advisor) Michael Anton, have argued that such children are not born "subject to the jurisdiction" of the United States, and thus aren't included by the citizenship clause.  A number of political leaders have embraced this view, most notably President Trump, who has claimed (unofficially, so far) the power to change existing executive branch practice by executive order.

The first part of the citizenship clause, though less prominent, is disputed as well, including in active litigation and in academic debates that may have broader implications.  Here, longstanding executive and congressional practice has treated people born in overseas U.S. territories as not being "born … in the United States," and thus excluded from constitutional citizenship.  For most overseas territories (Puerto Rico, the U.S. Virgin Islands, Guam), there's a statute granting U.S. citizenship.  But oddly, no statute grants U.S. citizenship to people born in the U.S. territory of American Samoa.  So they are not U.S. citizens (unless naturalized); instead they have (by statute) the unusual status of non-citizen "U.S. nationals."

Some American Samoans have recently challenged this interpretation of the citizenship clause.  In 2015, the D.C. Circuit rejected their claim, but last year a District Court in Utah accepted it, and litigation is now pending at the Tenth Circuit (oral arguments were held last month).

My project is to see whether the citizenship clause's original meaning can resolve these modern questions.  As I'll explain, I think it can.  Contrary to some critics of originalism who contend that original meaning is indeterminate or incapable of answering modern questions, I find the analysis here is relatively decisive.

But that prompts a broader question about originalism.  To say that the clause's original meaning can resolve these modern issues of citizenship is not to say it should.  For originalists in particular, there is this puzzle: the modern issues of citizenship are for the most part ones that the clause's drafters and ratifiers didn't contemplate.  There were no undocumented migrants or culturally distinct overseas U.S. territories in 1868.  Any resolution the clause may provide as to the citizenship of people in these categories is in a sense merely fortuitous; it's not the result of any conscious design or policy preference of the clause's enactors.

Should we then (if we are originalists) nonetheless apply the original meaning of the enactors' text to resolve issues the enactors couldn't envision, and as to which we have no idea what outcome the enactors would have preferred?  The answer may depend on why one chooses originalism as a rule of constitutional interpretation.  Thus it may divide originalists, and it may illuminate originalism's foundations.

I'll present these ideas in four subsequent posts.  The first will consider the original meaning of "born … in the United States," with some thoughts on the American Samoa litigation.  The second and third posts will turn to the original meaning of the phrase "subject to the jurisdiction" of the United States. Finally, I'll consider some broader implications for originalism. I look forward to comments and criticisms.