The Volokh Conspiracy
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This post considers the original public meaning of the citizenship clause's phrase "born … in the United States" (a more detailed discussion is in Part II.A. of my forthcoming article). As mentioned in my opening post, the question has particular importance to people born in American Samoa, a U.S. territory not currently considered "in the United States" for citizenship purposes. And it may have broader implications for an insidious group of Supreme Court cases.
I'll begin with a word about methodology. I use an "original meaning" approach, a common (though not universal) method among originalists that traces its modern lineage to Justice Scalia. The idea is to ask what the words of the relevant constitutional phrase meant in legal communication around the time of the enactment. It's not primarily concerned with the intent of the drafters or ratifiers, although what the drafters and ratifiers said or assumed about their language may be evidence of its common meaning. In particular, pre-enactment uses of the language may be especially important to show a phrase's linguistic context. (There's more on my approach here).
What can we discover about the nineteenth-century view of what was "in the United States"? One might suppose that the phrase could refer only to states admitted to the union (literally the states that are united). But that's not how writers of the time, and particularly courts, understood it. Chief Justice Marshall considered the matter directly in Loughborough v. Blake (1820), concluding: "[The United States] is the name given to our great republic, which is composed of States and territories. The district of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania." And in Cross v. Harrison (1853), the Court observed that "[b]y the ratifications of the treaty [of Guadalupe Hidalgo ending the Mexican War], California became a part of the United States."
What, then, was not in the United States? The Court considered this question in another post-Mexican War case, Fleming v. Page (1850). The question was whether the Mexican city of Tampico, while under U.S. military occupation during the war, was part of the United States. The Court held it was not. Although the occupation placed Tampico under U.S. "sovereignty and dominion," that status was only temporary and not accompanied by any annexation or cession; thus (the Court said) the "boundaries of the United States … were not extended by the conquest." Fleming strongly implied, however, that if annexation or cession occurred, that would place the territory within the United States (a point confirmed a few years later in Cross). And for what it's worth, the Court reaffirmed Fleming's analysis in Neely v. Henkel (1901) with respect to Cuba, which it found not to be part of the United States, although then under U.S. occupation, because there had been no formal acquisition and the occupation was understood to be temporary.
In an original meaning analysis, these cases are not important as precedent; they are important in showing the linguistic background of what it meant to be "born … in the United States." None of these cases was a citizenship case, but together they indicate a general understanding of what "the United States" encompassed around the time the Fourteenth Amendment was adopted.
Other nineteenth-century practices and assumptions confirm that understanding. Specifically as to citizenship law, the 1789 Constitution did not define citizenship, leaving its definition to common law. U.S. common law generally followed the British rule of "jus soli," as explained by Blackstone: birth within sovereign territory established citizenship (or subjectship in Britain). And in the nineteenth century, persons born in U.S. territories were treated as U.S. citizens by the common law of jus soli (indicating that they were considered born in the United States).
Turning to the drafting of the Fourteenth Amendment, it seems very likely that its drafters understood "born … in the United States" to confirm citizenship upon persons born in territories under permanent U.S. sovereignty. That was the common law rule, and many people at the time described the clause as codifying the common law; it would have been odd if the drafters meant to reject it. Further, the clause's main point was to overturn Dred Scott v. Sandford and confirm citizenship for people of African descent. It would be very odd for the drafters to deny this protection to people of African descent in the territories (especially since Dred Scott was itself about a slave who had lived in the territories). Finally, in discussing the clause, the drafters wanted to exclude from citizenship members of Native American tribes with which the U.S. had treaties guaranteeing partial sovereignty. As I'll discuss later, the drafters saw the clause's "subject to the jurisdiction" phrase as essential to accomplish that result. Thus a central premise of their discussion was that tribal Native Americans in the territories were not excluded by the "born … in the United States" language.
The drafters' assumptions and purposes therefore confirm the meaning indicated by the pre-drafting materials: "in the United States" meant under U.S. permanent sovereignty, whether a state or a territory.
So why is this a hard question today? The trouble began after the Spanish-American War, when the U.S. acquired distant, culturally distinct and (importantly at the time) non-White territories. These acquisitions posed the question whether they would have the full protection of the Constitution. In a series of early twentieth century decisions known as the Insular Cases, the Supreme Court said no.
The Insular Cases were avowedly nonoriginalist and policy-driven. (For a great account of the litigation and the struggle for Puerto Rican citizenship, I recommend Sam Erman's magnificent book Almost Citizens). Justice Henry Brown, providing the decisive vote in the key case Downes v. Bidwell (1901), noted the "serious" "consequences" of extending constitutional protections to places inhabited by "alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought." Concurring, Justice Edward White similarly objected to "bestowal of citizenship on those absolutely unfit to receive it," being members of "an uncivilized race." The Court adopted White's suggestion that "unincorporated" territories (meaning the island territories) should enjoy only limited constitutional protections. And the incorporated/unincorporated distinction became the basis for the denying constitutional citizenship to natives of those territories.
The Insular Cases are also important for what they did not say. The Justices in the majority did not point to any originalist materials supporting their idea of "unincorporated" territory that received lesser constitutional protection. That indicates they were simply inventing it. As Justice Harlan wrote, dissenting in Downes: "I am constrained to say that this idea of 'incorporation' has some occult meaning which my mind does not apprehend." Or as modern originalists Gary Lawson and Guy Seidman conclude (in their outstanding book The Constitution of Empire): "The doctrine of 'territorial incorporation' that emerged from The Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history."
Unfortunately the Court's racist policymaking in the Insular Cases remains the law of the land, and the Insular Cases were the basis for the D.C. Circuit's rejection of U.S. citizenship for American Samoans described in my prior post. But the Constitution's original meaning is to the contrary. In the nineteenth century, "in the United States" meant what Marshall said it meant: in the states and territories (without differentiation as to types of territories). Consequently, under the citizenship clause's original meaning, American Samoans are constitutional citizens. And more fundamentally, the Insular Cases, which continue to limit constitutional rights more broadly in the insular territories, are an affront to the Constitution's original meaning.