The Original Meaning of "Born … in the United States"

It encompassed all territory under U.S. permanent sovereignty.

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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.

NEXT: Today in Supreme Court History: October 27, 1787

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  1. There can be situations, such as hybrid sovereignty, a quasi-permanent lease, or other arrangements, where the question of whether territory is in fact fully US territory is an open and difficult question that has to be parsed from the text of treaties, history, and similar.

    Also, a potentially relevant consideration is that the American Samoan islanders opposed an attempt at incorporation in 1949, which led to its defeat in Congress.

    1. A particularly obvious case here is that of Guantanamo Bay Naval Base, which is under a quasi-permanent lease from Cuba. Guantanamo is carefully operated to prevent anyone who isn’t an American citizen from giving birth there to avoid having to resolve the question as to whether jus soli citizenship applies.

      1. Let’s hope a Biden administration, working with a modern Congress, can address the tawdry stain on America that Guantanamo has become.

        1. Obama campaigned HEAVILY on closing Guantanamo. Yet after he assumed office and was briefed by the military leaders on its importance, he quietly changed his mind and never discussed it again. Kind of tells you something about how important it really is, no?

          1. He campaigned on closing closing the detention camp, not ending the lease for the base.

            And he didn’t “quietly change his mind.” Congress passed multiple appropriations riders blocking the transfer of detainees to mainland facilities.

            1. He didn’t need appropriations for DACA. Or for Risk Corridors.

            2. Appropriations riders? Will those trouble President Biden? Not if Ds get the Senate. But even if they don’t, Biden will have learned from Trump that you do what you want, and ignore the subpoenas. Control the House? You’re not going to get impeached.

              Good times for Ds, all thanks to generous non-foresight by Rs.

          2. Uninformed clingers may have missed that bigoted Republicans in Congress blocked Pres. Obama on that one.

            The likelihood a Pres. Biden would confront a similar relevant Republican influence in Congress, however, is roughly one-in-four.

            Let’s hope the reckoning reaches Guantanamo.

          3. “Obama campaigned HEAVILY on closing Guantanamo.”

            turns out, he didn’t control Congress, and they wouldn’t let him bring any of the prisoners to the US to be put on trial. So, between the choice of just open all the jail cells and get out of the way, or keeping the prisoners confined, he did the second one.

            1. Obama had a Democratic Congress and Senate for the first two years of his first term.

              1. That depends on how you define Lieberman.

                1. No, regardless of Lieberman (who caucused with the Dems.) The Republicans never had more than 42 Senate votes for the 111th Congress.

  2. Have you consulted Bruce Springsteen?

    1. Sorry about this – I flagged the wrong post by mistake!

    2. I came here to say exactly that. Great minds think alike…

      1. Remember when Reagan figured “Born in the USA” indicated he should Springsteen in his stump speeches?

        I attended the show at which Bruce responded: ““Well, the president was mentioning my name in his speech the other day, and I kind of got to wondering what his favorite album of mine must’ve been, you know? I don’t think it was the Nebraska album. I don’t think he’s been listening to this one.”

        1. This was Springsteen’s own fault. He originally conceived the song as a slow dirge, and he has sometimes played it that way in concerts.

          But to make some money during the Reagan zeitgeist, he decided to turn the marketing of the song and album into an upbeat, anthemic, guy in blue jeans with the American flag type of thing. And then, the poor little thing with all of his millions got upset that people (not just Reagan) minsinterpreted his song. What an a-hole.

          1. You’re assuming that Springsteen was in charge of marketing his records, but record companies have people for that. “Born in the USA” isn’t the only Springsteen song that people commonly misinterpret. The record company didn’t feel any need to correct anybody who bought and paid for the record.

            1. He literally changed the song from a dirge into an anthem. Considering that was consistent with the record company’s marketing, and that he posed for all the pictures (including the one on the album cover), I would say it is highly improbable that he wasn’t fully aware of what was being done.

              Bruce Springsteen acted like a complete douchebag on this issue. He wanted that money. He was greedy. He saw an opportunity to cash in on Reaganism. And then he whined about people doing exactly what he encouraged them to do.

              1. Check the lyrics sometime.

  3. What was the originally understood citizenship status of a child born abroad to US citizen parents:
    (a) while temporarily abroad on government business or
    (b) while temporarily abroad on private business or for pleasure?

    1. The original (and current) understanding was that it was/is up to Congress.

      1. …and not addressed by the 14th Amendment at all.

        1. But are they “natural born citizens” eligible for the Presidency?

    2. Recall that at the time Maury hadn’t yet invented DNA paternity tests, so motherhood was an observed fact, and fatherhood was a stongly-held opinion.
      the laws are still broken, in that being descended from a US citizen mother generally confers citizenship, while being descended from a US citizen father generally does not.

  4. Minor counterpoint, there was a shift in language use from referring to “the United States” as plural originally to later singular. In plural usage, it’s clear that the relevant entities are states (who together are united), and that therefore to be born in the United States, you have to be born in a state. Of course, such a reading would exclude even permanent territories, so it’s pretty extreme.

  5. If the drafters of 1787 or 1868 were faced with large territories filled with brown, Spanish-speaking people, which no one thought of as possible future states, would they be as colorblind and tolerant as you seem to assume?

    It would be interesting to see how former Mexicans were treated after they found themselves in United States territory after the Mexican War.

    1. As the second paragraph lays out, Professor Ramsey isn’t trying to figure out what the drafters of the 14th Amendment intended to accomplish, just what the meaning of the words they wrote was at the time.

      As is clear from innumerable contract disputes, what people intend to accomplish with their words and what they actually write down are often very different.

      1. Would they have considered such places part of the “United States”? I doubt it.

        1. Professor Ramsey makes the case that they would have. I imagine there might be some evidence in the other direction, but I’d tend to defer to his research rather than your supposition.

      2. These would be the meaning of the words where “people” very often meant “people we like, you know the ones”?

        This is the central conceit of originalism. Y’all blatantly ignore what their words meant at the time when it’s inconvenient. Even as modified by the 14th amendment, “people” didn’t mean “people”.

    2. It would be interesting to see how former Mexicans were treated after they found themselves in United States territory after the Mexican War.

      The Treaty of Guadalupe Hidalgo addressed that question:

      ARTICLE VIII

      Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property which they possess in the said territories, or disposing thereof, and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax, or charge whatever.

      Those who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.

      In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.

      ARTICLE IX

      The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding article, shall be incorporated into the Union of the United States. and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the mean time, shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.

    3. Well, that’s kind of the premise of the article, isn’t it?

    4. “If the drafters of 1787 or 1868 were faced with large territories filled with brown, Spanish-speaking people, which no one thought of as possible future states, would they be as colorblind and tolerant as you seem to assume?”

      the drafters of 1868 were faced with a problem. The absolutely intended to provide citizenship to a substantial number of brown people, who didn’t/couldn’t derive citizenship from their parentage. There was concern that the various states where these brown people resided might be resistant to extending citizenship to them, so they wanted the Constitution to unambiguously do so. So they wrote inclusive language. They didn’t want to leave any wiggle-room for the former Confederate states to claim the freed slaves were noncitizens.

  6. Justice Henry Brown, providing the decisive vote

    No.
    No single vote was decisive. I am really tired of this nonsense. Henry Brown may have written the majority opinion (I do not know), or he may have been last to vote (I doubt vote orders were recorded), but even so, his vote was just one of many, and not decisive by itself.

  7. So…..how does this play out in the case of the Philippines?

    As I recall, they were a US trust territory for over 50 years. Does that mean anyone born in the Philippines from 1899-1946 is a US citizen?

    1. Then there’s the Panama Canal Zone. Was it actually originally considered a permanent transfer to US territory? Did Jimmy Carter’s treaty actually transfer US territory to Panama?

      I would guess that the Philippines was closer to being real US territory than the Canal Zone, seeing as how it was won in the same war that absorbed Guam. But I don’t know the legal niceties of either.

      1. If I remember correctly the actual treaty allowed the United States to control the Zone “as if it were sovereign” or something like that.

    2. “So…..how does this play out in the case of the Philippines? ”

      By statute. If a baby comes out of a US citizen mother, then the baby is a citizen. But if the baby first came out of a US citizen father before finding an egg and implanting in some foreign uterus, a different rule applies.

      1. This of course gets to another bad policy of the US in not addressing children fathered by our soldiers. A disgrace in how we treated AmerAsian children born in Vietnam.

      2. In either case, if the child lives abroad, never comes to the US, the parent’s done file at a consulate, and the child doesn’t make claim to their citizenship as an adult…

        Then their kids aren’t citizens.

        Citizenship is something that can be lost across generations due to negligence.

    3. For most of that time the Filipinos argued lobbied and some fought for Independence. Many in Congress agreed with them. Pretty early on Congress agreed to the eventual Independence of the Philippines and in the 30s actually set a date, which was rejected by the Philippine Legislature. A short while later another bill passed Congress and Filipinos accepted. The date was set for 1946, which was in fact honored, in spite of WWII and the Japanese occupation of the Philippines intervening.

      1. Hence my question….What is the status of the people born in that time period? Are they citizens, or not? Professor Ramsey’s post doesn’t really address that (or maybe I missed it).

        1. They were not citizens. But one could consider their status 7n resolved.

  8. I propose that any arguments over the original meaning of “Born in the USA” be directed to Mr. Springsteen for clarification. Maybe get him to explain “Blinded by the Light” while he’s at it.

    1. One prong of the test is if one was born with the purpose of “killing the yellow man.”

      1. You skipped a step. or possibly more than one.

  9. Wasn’t this question answered a years ago in Re: In the Matter of “Born in the USA,” Bruce Springsteen?

  10. The United State was formed by the rebellion of British colonies. Our founders would not accept second class status and yet we impose that on our territories. We should make people in territories full citizens, including voting for representatives and the President or we should liberate the territories. Anything else is hypocritical.

  11. In this context the situation in Puerto Rico has some analogies. The party currently in power favors statehood, then next biggest party favors keeping things the way they are and sere is a small Independence party. If I recall correctly there have been 5 plebiscites asking whether Puerto Rico should become a state, remain as it is or become independent. Also as I remember statehood only won a majority when the question was put as if not a commonwealth what? I’m not exactly sure what that vote meant.

    1. I suspect part of the problem is that the plebiscites, never had the effect of changing the status. If the Democrats win the Senate the first thing they should do is to grant Puerto Rico statehood should they request it. Then hold the local vote that has meaning.

      1. That is not the traditional route to statehood. Usually the prospective state has requested admission via plebiscite or convention, before Congressmvoted for statehood. It’s not clear Puerto Rico would vote for statehood.

    2. All the previous plebiscites and their complications don’t really matter, because there’s a question on this year’s November ballot that provides a concise and clear question:

      “Should Puerto Rico be admitted immediately into the Union as a State?”

      Either they’ll vote yes or no, and we should know which within a week.
      ———————————————————————-
      If, however, you’re interested in the details of the previous results:

      The first time, the commonwealth (status quo) won an outright majority of the three presented options (commonwealth, statehood, independence).

      The second time, the commonwealth (status quo) won a plurality of the same three presented options.

      The third time, “none of the above”, which was the option explicitly favored during the campaign by the advocates of the status quo, won a clear majority of the five presented options (“limited self-government”; “free association”; “statehood”; “sovereignty”; and “none of the above.”)

      The fourth time, there was a two-part question (whether one wanted to change Puerto Rico’s status or not, and what option one would prefer). There was a majority on the first part. Advocates of the status quo advocated casting blank ballots on the second part; including those blank ballots (which under Puerto Rico judicial precedents in 1993 and 2009 should be counted as indicating a desire for “none of the above” when that option was not presented explicitly), there was a plurality but not majority for statehood on the second part, that plurality for statehood being smaller than the statehood vote percentage in the previous plebecite.

      The fifth time, the referendum only offered the statuses of statehood or independence, and so was deliberately and heavily boycotted by supporters of the status quo. Of those two options, statehood received a huge majority.

      In short, statehood has never beaten the status quo when the two have been presented directly against each other. Statehood only has won when the pro-statehood party wrote ballot questions that avoided the direct comparison.

  12. Independence was wanted before Puerto Rico’s financial problems. Now a bail out, oops, Statehood is wanted.

    1. And how much of that financial problem is due to second class status it is given?

    2. The indepandanistas have never commanded more the 20% of the vote and that was a long time ago.

  13. I hope I’m wrong about where this one is headed, but the prop line still favors ‘originalism — if properly understood — rejects birthright citizenship, much like the contention that ‘libertarianism — if properly understood — actually favors statist womb management, bigoted anti-immigrant policies, and gay-bashing.’

    1. “… bigoted anti-immigrant policies, and gay-bashing”

      Those be some tired, old tropes you trotted out….

      1. Those are important elements of movement conservatism. Bigots don’t like to be known as bigots these days, because better Americans have imposed progress, but I reject political correctness and call a bigot a bigot. This riles plenty of Republicans, who prefer to hide behind and use euphemisms.

  14. 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)

    So, was every person born in Britain prior to the revolution still a citizen of the U.S. after the revolution? If not, what of the founder James Wilson, born in Scotland, but resident in the U.S. prior to the revolution. He would not have been a non-citizen before the Revolution, because in a British colony he was alike with the other Brits, including the ones born in the colonies. If after the revolution other Scottish-born Brits were excluded from U.S citizenship, why not Wilson?

    But what about after the Constitution—the first draft of which was written in Wilson’s hand? Still a British citizen then? If not, when did his citizenship change? Was Wilson for sure a U.S. citizen when he sat on the first Supreme Court?

    I ask because I want to find out if it’s okay if originalists tailor doctrines in ways which contradict the founders’ actual practices. Textualism ought to provide plenty of room to do that, right?

    For instance, textually I suppose it would be okay for President Biden to nominate a Muslim, non-citizen law professor to become Chief Justice, if that seat opened. The Constitution names no requirements whatever for Court appointees. Nothing about age, citizenship, birthplace, legal qualifications—nothing at all, really.

    Presumably, Amy Coney Barrett—whose policy preferences play no role, as we know—would back against any challenge—legal challenge or policy challenge—Professor Abdul Omar, Distinguished Professor of Sharia, at Taliban Law School. Why not? Politics are off the table, there is no text against it, and it isn’t a sitting Justice’s place to vet nominees anyway. It would be fun to watch Professor Omar deflect questions during the Senate hearings.

  15. A naturally born citizen, does that automatically exclude all those born by caesarean section? If not, why not? Based on Originalist understanding of the term, naturally born, and as defined in dictionaries of the time, why would not those individuals be barred from the Presidency?

  16. The indepandanistas have never commanded more the 20% of the vote and that was a long time ago.

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