The Volokh Conspiracy
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This is my fourth guest-post (of five) about my forthcoming article Originalism and Birthright Citizenship. My previous post concluded that the original meaning of the Fourteenth Amendment's citizenship clause, which requires birth "subject to the jurisdiction" of the United States, included people born in U.S. territory other than children of diplomats, foreign armies and (at the time) tribal Native Americans. This has implications for two modern controversies.
First, U.S-born children of aliens lawfully in the U.S. are birthright citizens under the original meaning. The Supreme Court so held in United States v. Wong Kim Ark (1898) as to children of lawful permanent residents, using an original meaning analysis similar to mine. Wong Kim Ark, limited to its facts, doesn't decide the status of children of lawful temporary visitors. But alien permanent residents and temporary visitors stand in the same position as to the relevant language: they are "subject to the jurisdiction" of the United States (that is, governed by U.S. law) to the same extent. As noted, Chief Justice Marshall specifically described U.S. jurisdiction over temporary visitors in the Schooner Exchange case, and the citizenship of the children of temporary visitors was confirmed in the 1844 New York state case Lynch v. Clarke. If the drafters had sought to exclude children of temporary visitors, they would have used different and more explicit language.
Children of aliens not lawfully present in the U.S. may seem a more difficult issue. There were essentially no such people in 1866-1868 (because there were no federal immigration laws), and there's no evidence the enactors considered the matter. How can we say the clause covers them if the enactors didn't know about them?
This objection misunderstands original meaning analysis. The inquiry isn't what the enactors thought (or would have thought) about a particular modern issue. The inquiry is (a) what rule does the enactment's original meaning establish, and (b) how does that rule resolve modern questions.
I've argued that the original meaning establishes a rule of citizenship by birth in U.S. territory, excluding people not governed by U.S. law. Applied to the question of U.S.-born children of undocumented migrants, that rule is clear. They are governed by U.S. law while in the U.S., in the same manner as other non-diplomat aliens; put another way, unlike people in diplomatic households, they have no immunity from U.S. territorial jurisdiction. That's all we need to know to apply the original meaning.
Now I'll turn to some counterarguments, starting with Peter Schuck and Rogers Smith's well-argued book Citizenship without Consent. Invoking natural law writers such as John Locke and Jean-Jacques Burlamaqui, Schuck and Smith argued that citizenship, constituting membership in a national community, arises from mutual consent of the individual and the sovereign (representing the community). And if citizenship depends on consent, only those whom the sovereign admitted to the political polity could be citizens.
While this argument may or may not be attractive as a policy matter (or as a matter of living constitutionalism), it is not an original meaning argument. It posits that children of undocumented migrants are different in their relationship to the national polity in various ways, but not that they are born outside U.S. jurisdiction, in the original meaning of that word.
A better original meaning counterargument is that the Supreme Court, four years after ratification, disagreed with me. In the Slaughter House Cases, Justice Miller wrote for the Court that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from [the clause's] operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." Ordinarily a near-contemporaneous post-ratification interpretation would carry considerable weight.
But I don't find it persuasive here. The case had nothing to do with the citizenship clause. Miller didn't explain how he reached his conclusion, and in particular he didn't explain how the clause's text allowed it. Nor did he consider the drafting history, which as discussed seems to show the contrary. When the issue actually reached the Court in Wong Kim Ark, the Justices dismissed Miller's comment as dicta that hadn't been adequately supported. Miller wasn't the only person in the post-ratification era to take a narrow view of the clause, but other commentaries had a similar defect of not explaining how the text compelled their preferred outcome. Post-ratification commentary can be persuasive in original meaning analysis, but only when it provides an explanation of the meaning, not when it simply claims a result.
Modern scholars such as John Eastman and Michael Anton have attempted an explanation of the original meaning based on an idea of partial versus complete or exclusive jurisdiction. In a recent essay, Eastman argues that the clause "meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily in the United States." His earlier writing connects this distinction to the idea of allegiance: jurisdiction arose from allegiance, and aliens owe their principal allegiance to their home countries, not the U.S. Similarly, Anton argues that the clause requires a person to be subject to exclusive U.S. jurisdiction (which U.S.-born children of aliens typically are not).
I think these arguments fail on at least two grounds. First, they add words to the clause or invent distinctions that aren't supported in pre-enactment usage. Anton is right that aliens aren't subject to exclusive U.S. jurisdiction, but the clause doesn't require exclusive jurisdiction. Aliens in the U.S. (other than diplomats and armies) are subject to concurrent jurisdiction of the U.S. and their home countries. Eastman is right that jurisdiction could arise either permanently from membership in a nation or temporarily from presence in sovereign territory. But the clause doesn't distinguish between the two sources of jurisdiction. Eastman and Anton want to rewrite the clause to capture a distinction it doesn't contain.
The Eastman/Anton argument is problematic for another reason. Though focused on temporary visitors and undocumented migrants, it would (as I think they concede) also exclude U.S.-born children of alien permanent residents. But before the Fourteenth Amendment, these children were U.S. citizens under common law. The clause's drafters repeatedly claimed their proposal constitutionalized existing law, and it's hard to understand why they would have endorsed such a sharp departure. Moreover, as I've discussed, this issue came up in the drafting debates in the exchange between Senators Conness and Cowan, who both declared that the clause covered U.S.-born children of Chinese immigrants (see here, pp. 2890-91). No Senator disputed that reading.
Anton and Eastman offer some general statements from the drafting history in support. (I discuss them in detail in Part II.B of the article). At best, they are subject to varying interpretations, and in any event don't overcome the central propositions that (a) the clause's text says "jurisdiction" without limits to type of jurisdiction and (b) the drafters understood the language to include U.S.-born children of immigrants. These points confirm the original meaning I've outlined: that everyone born in U.S. territory is "subject to the jurisdiction" of the U.S. in the clause's meaning, except those who had immunity from U.S. law.
All this does, though, is to establish the original meaning. It does not say we should follow the original meaning. In my next post, I'll take up that question in the context of the citizenship clause. Specifically, if the clause's enactors didn't realize that the clause would guarantee citizenship to children of undocumented migrants (or to children born in overseas territories), why should we (even if we are originalists) feel bound to that result today?