The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Cassandra Burke Robertson and I have a new article up entitled "Integral Citizenship," which analyzes birthright citizenship in the U.S. Territories and is forthcoming in the Texas Law Review. This piece joins our previous articles on citizenship "(Un)Civil Denaturalization," "Litigating Citizenship," and "Inalienable Citizenship." The abstract is here:
Does the Constitution's promise of birthright citizenship to all born "in the United States" cover the United States Territories? Residents of the Territories have regularly sought judicial recognition of their equal birthright citizenship under the Fourteenth Amendment, most recently in some prominent cases reaching federal appellate courts. When rejecting these claims, the courts have been unable or unwilling to articulate a unified theory of citizenship. Most problematically, judicial decisions have continued relying on the Insular Cases, whose reasoning over a century ago was explicitly based on a policy of racial exclusion.
We argue that the time has come for unambiguous judicial recognition that individuals born in the U.S. Territories form an integral part of the United States citizenry. This outcome is the only one that comports with both constitutional structure and historical practice. In analyzing why courts still deny claims for constitutional citizenship in the Territories, we explore the covert norms of belonging that shed light on the otherwise inexplicable logic of the courts' opinions. For example, there is no legal reason to treat the citizenship of those born in the U.S. Territories differently from that of those born in Washington, D.C. Nevertheless, an asymmetrical perception of belonging has flowed into the courts' construction of legal status, influencing whose citizenship is questioned and whose is assumed.
Although some judges and government officials have recently put forth new arguments that citizenship recognition would risk interfering with indigenous rights and endangering cultural practices, we argue that the opposite is more likely to be true. Attempting to retrofit a doctrine built on the political and social exclusion of racial minorities cannot offer durable cultural protection. By contrast, a unified national civic identity that recognizes the Territories as a fundamental part of the American fabric is more likely to foster the political will to protect indigenous rights. Recognizing the Fourteenth Amendment's promise of integral citizenship ensures that anyone whose birth location entails allegiance to the United States—be it the U.S. Territories or Washington, D.C.—is equally American.