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.

NEXT: Today in Supreme Court History: October 26, 1774

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  1. “culturally distinct”… That’s a nice euphemism…

      1. He’s just showing a little leg to ease the fears of some clingers who might not yet apprehend where he is going with this.

    1. What’s the euphemism? Seems pretty clear exactly which places Prof. Ramsey is talking about, the different cultures of those places was one of the key reasons cited by the Supreme Court in concluding that the constitution applied differently there, and from skimming the article it appears that Prof. Ramsey believes that the Supreme Court was wrong on that score.

      1. “Culturally distinct” is a polite way of saying “where non-white people live”…

        1. Quebec has white people living there.

    2. That is a defining quality of Quebec!

  2. Looking forward to the posts and the discussion! Very timely.

  3. I am not a lawyer ( just a chemist) but could someone explain why Congress couldn’t just pass a law defining ‘jurisdiction?’

    1. For the same reason Congress can’t just pass a law saying being tortured to death shall not constitute “cruel and unusual punishment.”

      1. Isn’t ‘murder’ defined somewhere? How about ‘extortion’ or ‘parent?’

        1. Yes, but since those words aren’t in the Constitution we don’t have to worry about whether the Congressional definition is consistent with the Constitutional one.

        2. The problem is that you idea would let Congress completely negate the Constitution by just redefining terms.

          Suppose Congress passed a law making Roman Catholicism the official religion of the United States, and included a provision that said,
          “This is not an establishment of religion.”

          Should that fly?

          1. Absolutely! It’s like when you say “no offense.” That means no one can take offense at what you say after that.

    2. Ordinary statute cannot define constitutional terms. For example, Congress can’t pass a law which says independent campaign expenditures are not an exercise of freedom of speech. Likewise, Congress cannot pass a law which says a child born of non-citizen parents isn’t subject to the jurisdiction of the United States.

      1. Yeah, obviously unelected tyrants like Ruth Bader Ginsburg (may her memory not be a blessing) should decide those terms.

        1. Yes. Since that’s what it says in Art. III of the Constitution. (Republic not a democracy, etc., yada yada yada)

          1. No, actually, it doesn’t say that.

      2. “Congress can’t pass a law which says independent campaign expenditures are not an exercise of freedom of speech. ”

        14A, unlike 1A, has a grant of power to Congress in Section 5 authorizing legislation.

        1. Tis true, but City of Boerne v. Flores likely precludes Congress from doing so because Congress “has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”

      3. To be a little more pedantic, it might actually be possible for Congress to broaden the class of persons who were not subject to US jurisdiction, but to do so, Congress would actually have to make them not subject to US jurisdiction, i.e., give them immunities similar to what diplomats enjoy.

        And obviously that’s not happening.

        1. Perhaps Congress could say that the children of legal-resident non-citizen parents aren’t subject to the jurisdiction of the United States (which of course as you note, they will never do), but as I understand the argument, people opposed to birthright citizenship want Congress to define what “subject to the jurisdiction” means. I’m pretty certain Congress can’t do that.

          1. Correct. Congress can’t simply declare them to be not subject to the jurisdiction. That would be changing the definition. They would actually have to make them fit within the definition, by granting them diplomatic immunity or something.

    3. “why Congress couldn’t just pass a law defining ‘jurisdiction?”

      Good question, the amendment itself seems to invite that.

      “Section 5.

      The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

      1. It doesn’t though. Congress can only pass legislation that is 1) appropriate and with the purpose of 2) enforc[ing] the Amendment.

        Enforcing a law does not mean changing it’s definition, unless you think the Executive has the power to change the meaning of a statute when it enforces it. And redefining the law is not appropriate legislation.

        1. Congressional enforcement just means passing a law, executive means taking action. So, not exactly the same thing.

          “redefining the law is not appropriate legislation.”

          Its not redefining, its interpreting a provision that is ambiguous in Congress’s opinion so as to enforce it better.

  4. 1. “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.”

    They shouldn’t be. The answers are obvious.

    2. Why should overseas territories be treated any differently than the continental territories that existed in 1868 when the amendment was passed?

    1. Much of this is disputed in the “opinions vary on the shape of the earth” sense…

    2. You know the US Controlled the Philippines from 1898 until 1941, when the Japanese took over. The US was committed to eventual grant of Philippine Independence almost from the beginning and committed to that in 1916, but the future date was uncertain. IN 1933 the US Congress voted for Philippine Independence in 1943, but the Philippine legislature rejected it. In 1934 another act was passed granting the Philippines independence the date was eventually set to 1946. Should Filipinos have been US Citizens?

      1. Yes. And then they could have lost that citizenship when they became Phillipino citizens in 1946. Why do you act like that’s a crazy idea?

        1. Because while the constitution grants Congress the power to grant people citizenship (naturalization) it does not grant congress the power to revoke anyone’s citizenship.

          The few cases of de-naturalization out there are all cases where the government has claimed the person committed individualized fraud in their application for citizenship and there fore the grant of citizenship was never valid in the first place.

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  6. Professor, you’re going to want to actually define “originalism” in the sense that you’re using it, because it seems that from Eugene’s post, half the people here don’t understand what “originalism” actually means, instead conflating “originalism” with “original intent.”

    The conflation almost certainly arises from their faint memories of high school US history, in which there’s often a glossed over discussion of “living constitutionalism” versus “what the Founders wanted.”

    Certainly, “original intent” is a form of “originalism,” but it’s probably the least-respected form of originalism and not the strain of originalism actually practiced by legal scholars such as Barrett and Scalia.

  7. One might take a different route through the problems.
    * The Constitution says nothing about controlling immigration, only naturalization (except the slave importation question, but since slaves were property, and imported, that was not immigration).
    * This is why the 14th Amendment ignores “illegal aliens”; such a thing does not exist under originalism.
    * The framers and founders had no expectations of empire and voluntary offensive wars to grab overseas territories. Their imagination was limited to the “natural” manifest destiny limits.
    * This is why the 14th Amendment ignores questions of imperial territory. The concept of being born in US territory yet not subject to US jurisdiction was as bizarre and unconstitutional as controlling immigration.

    1. “The Constitution says nothing about controlling immigration, only naturalization (except the slave importation question, but since slaves were property, and imported, that was not immigration)”

      The “slave importation clause says “Migration” too.

      Migration is what immigrants do.

      {kinda a clue in the words]

  8. “The keys to understanding Birthright Citizenship:

    The plain meaning of the 14th Amendment means that one must BOTH be born in United States AND be subject to the jurisdiction thereof. Since there are two explicit requirements, they both cannot be met by simply being born on U.S. soil.
    The history of the drafting of the 14th Amendment makes clear that the language “subject to the jurisdiction thereof” meant a citizen could not owe allegiance to any other foreign power. This excludes illegal immigrants who are in defiance of U.S. jurisdiction and are citizens of a foreign power.
    The Supreme Court has never held that the children of illegal immigrants born in the United States are automatically citizens.
    Because the Supreme Court has not interpreted the Constitution to mandate automatic birthright citizenship, the Congress can pass a law to correct the current misguided and incorrect policy of automatically granting citizenship to children of illegal immigrants.”

    The above excerpted from Congressman Steve King’s web page:

    Ending Birthright Citizenship Does Not Require A Constitutional Amendment

    1. It would seem that King’s argument would also preclude the children of non-citizen legal US residents from gaining citizenship through the 14th Amendment, something that is foreclosed by Wong Kim Ark

      1. A very interesting point, Josh. The Wong Kim Ark precedent is longstanding, as you know. in the abstract I might disagree with it, and if it were up to me I might require a legal statement from the parents as to their intent to become citizens. I guess Wong Kim Ark just assumed he was a citizen, having apparently failed to petition for naturalization once he turned 18. Be that as it may, his parents remained Chinese citizens, moved back to China, and remained subject to China’s jurisdiction; and Wong Kim Ark, one might argue, inherited Chinese citizenship from his parents.

        1. Whether he inherited Chinese citizenship is irrelevant. He ahd no control over Chinese citizenship laws.

          That a foreign country considers you a citizen under its laws doesn’t mean you can’t be a US citizen.

    2. So we’re looking to Steve King, the high school graduate construction company owner who was stripped of all House committee assignments for racist comments, for nuanced and sophisticated constitutional originalist legal analysis now?

      1. argumentum ad hominem

        1. It never hurts to mention that clingers tend to be half-educated, superstitious bigots from can’t-keep-up backwaters.

          1. Your area of expertise and all seeing as that’s where you are from and that’s what you are.

          2. Ad hominems hurt the likelihood that one will be taken seriously. I don’t think there’s any risk of that in your case, so knock yourself out.

            1. So what you’re saying is that, given Steve King’s long, well-documented history of ad hominems, it’s permissable to dismiss him?

              There’s a few other notable Republicans I think that allows us to dismiss…

    3. The history of the drafting of the 14th Amendment makes clear that the language “subject to the jurisdiction thereof” meant a citizen could not owe allegiance to any other foreign power.

      The reason why courts haven’t adopted this is THIS CAN’T BE RIGHT.

      Children can “owe allegiance to another foreign power” through no action of their own and even if they are born here. All it takes is for some foreign country to have a broad notion of citizenship with respect to the offspring of their citizens (like many do). (I might add this doesn’t make sense in the other direction too- if a foreign country considered offspring born to its citizens in the US to be NOT citizens who DIDN’T owe allegiance, then this would mean they would be citizens even if their parents are here illegally. I doubt Steve King thinks that is correct.)

      The purpose of the “subject to the jurisdiction” clause was not to make US citizenship turn on whatever some foreign country’s citizenship and allegiance rules were. That makes zero sense. Wong Kim Ark, in contrast, makes a lot of sense.

    4. The purpose of “subject to the jurisdiction thereof”.

      Is to exclude the children of foreign diplomats (diplomatic immunity of their parents makes them not subject to the jurisdiction of the US) and an invading army (regular uniformed armies only) as they also by international law would not be subject to US Jurisdiction.

    5. Even broken clocks can be right for one minute every twelve hours.

      This is not Steve King’s minute.

  9. The two primary framers of the citizenship clause explicitly stated “subject to the jurisdiction” means the same jurisdiction as the United States has over its own citizens, meaning politically and militarily.

    D.C. like most states had a law denying citizenship to children born to temporary sojourners. And then, many States requirements to be a Natural Born citizen to vote defined that to mean born to fathers who themselves were a US citizen themselves. So it isn’t very deficult to figure out what it means.

    1. “D.C. like most states had a law denying citizenship to children born to temporary sojourners. And then, many States requirements to be a Natural Born citizen to vote defined that to mean born to fathers who themselves were a US citizen themselves. So it isn’t very deficult to figure out what it means.”

      If the authors of the 14th Amendment had meant to say that, they could have written it that way. The fact that there were state laws that defined citizenship this way actually strengthens the case that the 14th Amendment means something different.

      1. Yep. And also, since when is an illegal immigrant a “temporary sojourner”? I don’t think the “temporary sojourner” rules are relevant, but if they were relevant, it would be in cases of what is called “birth tourism” (people crossing the borders to give birth and then returning), not the issue of undocumented immigrants.

  10. The very fact that’s this is debate shows that some who might style themselves “originalists” do little more than twist words to support whichever legal argument they find desirable.

    There’s little doubt that original meaning of the clause was to include children born in the U.S. to non-citizen parents, given that the *whole point* of the amendment was to prevent the denial of citizenship to former slaves. I’m sure some southerner may have also developed the clever argument that former slaves weren’t subject to the jurisdiction of the U.S., but the fact of the matter is that if a kid can be deported, taken away by CPS, jailed by CBP, have civil judgements enter against his parents, etc. etc. than it is clear he/she is subject to U.S. jurisdiction.

    1. Why do you think that the drafters of the 14A would have ratified a meaning that would give citizenship to every mestizo squatter from south of the border?

    2. The reason the question is interesting is interpreting who “Indians not taxed” includes.

      1. I would be interested in views of that issue — many years ago I was taught that “Indians not taxed” were those who lived on reservations, which were separate nations, and therefore not subject to taxation, etc. I have no idea if that is nonsense or reasonable.

        1. It’s entirely possible that the United States could, as part of recognizing a tribe as a sovereign entity, permit it to have a different citizenship rule than that set forth in the 14th Amendment, and that such a rule would be held to be constitutional as a result of the “subject to jurisdiction” clause. Congress hasn’t done that, but it is possible it could.

          Of course, that has nothing to do with the issue of undocumented immigrants.

          1. Actually that isn’t how it works exactly. The default was that all the Indian-Americans borne on reservations or borne to parents domiciled on reservations did not get citizenship. That was changed by an act of Congress in the 1920s.

            1. That’s what I am saying, though. I am saying if Congress wanted to change the rules as to Indian citizenship, as they did in the 1920’s, that’s a different question from undocumented immigrants because it’s possible that “subject to jurisdiction” excludes people who are subject to Tribal jurisdiction and born on tribal lands.

              1. Mostly true, but it also means that there may be a faithful interpretation available where Congress can exclude, via statute, birth tourists from conveying birthright citizenship whether they crossed illegally or legally, just as we do with diplomats.

                1. What interpretation of “subject to the jurisdiction” would give Congress the power to either include or exclude “birth tourists” (whatever that phrase means)?

                  1. It means its a question open to interpretation whether someone from Canada who is 9 months pregnant and crosses from Quebec into Vermont for a few days is more like an Indian wandering off the reservation for a few days (in the same condition) or is more like a person “subject to the jurisdiction thereof”. Because mere presence in the US doesn’t mean you are subject to the jurisdiction thereof, because Indians, not taxed, could be convicted of crimes they committed while off the reservation.

                    I suspect that, upon inspection, it is more like the concept of personal jurisdiction. Where, a person, “subject to the jurisdiction” of the a state means that a party can properly bring a suit against them in that state even for conduct they committed in another state.

                    Whether this has any bearing on this Steve King fellow is of no moment to me.

                2. Pretty sure that if folks like Steve King were just worried about “birth tourism”, and not the children of illegal immigrants, then this would be a far less dicey debate.

                  1. Yeah, domicile is a different and interesting issue (though in the end, “subject to the jurisdiction” seems not really to be about domicile- after all, the diplomats it was aimed at lived here). But the undocumented immigrants that Steve King et al. want to hit with this are domiciled here.

                    1. The only line of argument against permanently domiciled illegal immigrant’s children getting birthright citizenship would have to be adjudicated along the lines of the traditional “outlaw” status, of which I have no expertise or real interest, but I consider it highly unlikely to apply based on my cursory knowledge.

  11. If Republicans, conservatives, and faux libertarians want to continue to ride xenophobia, racism, white nationalism, and authoritarian, bigoted, cruel immigration policies toward political and cultural irrelevance in modern America, I’m for buying their tickets.

    1. Leave it to Kirkland to make the case that the Democrat party “white supremacy” and “bigotry” and “racism” claims are just a fantasy ride at Disneyworld.

      Unlike Hunter Biden’s laptop and Joe’s criminality, your version of Republicans is more “Russian” disinformation.

      1. re “Joe’s criminality” : what crime?

      2. ” Democrat party ”

        It is the Democratic Party, you illiterate bigot.

        Speaking of parties . . . do you have your menus set for your Election Day and Inauguration Day parties? There should be plenty to celebrate!

      3. “Unlike Hunter Biden’s laptop and Joe’s criminality, your version of Republicans is more “Russian” disinformation.”

        On the other hand, the white supremacists in my neck of the woods are pretty ardent Trump supporters.

        1. In my state, the Trump supporters tend to be poorly educated, economically inadequate rural residents and enthusiastic consumers of organized superstition.

  12. I’ll keep an open mind, but I’m not sure I’m convinced that the question of territorial citizenship couldn’t have been in anyone’s mind in 1868. The US took possession of Alaska in late 1867 (and it was pretty “culturally distinct” at the time), and there were discussions of American expansion into the Caribbean and Central America that predate the Civil War—there was an effort to purchase the Virgin Islands around the same time, and the acquisition of land for naval facilities in Hawaii began in the 1870s. That doesn’t necessarily show that any given supporter of the fourteenth amendment actually considered the question, much less that they reached a conclusion on one side or another, but it’s not obvious that it’s a question they didn’t consider at all.

    1. I think President Grant wanted to purchase the Dominican Republic as well.

    2. Before the Civil War there was strong support for annexing Cuba. The South particularly was in favor, as they thought it would add a slave state to the Union.

  13. Originalism . . . still younger, less popular, less important, and less persuasive than Kim Kardashian!

    1. Yet older, more popular, and more persuasive than Arthur Kirkland.

  14. If you’re going to talk about “originalism”, remember that when the Fourteenth Amendment was written, the social services that we have today did not exist. This can drastically affect “what the enactors would have preferred”, since they would be making different assumptions about the cost to the country of the new citizens.

    1. You also have to think about not just what they thought in 1780-whatever, but what the folks in 1860-whatever thought of what the 1780-whatever folk thought. And then you filter that with a seance and tarot reading, maybe do some prognostication with a random textbook, and you have your originalist argument, which coincidentally supports the conclusion you already had.

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