Birthright Citizenship

A Reply to Critics

By Randy E. Barnett and Ilan Wurman

Since the publication of our opinion piece on birthright citizenship in the New York Times ("Trump Might Have a Case on Birthright Citizenship"), we have received numerous critiques, some quite thoughtful (others less so), both in this and other venues. In this short essay we recapitulate and elaborate upon the argument of our initial piece, emphasizing especially the parts that are responsive to the criticisms. None of the objections has convinced us that we erred. 

The Common-Law Default

The aim of our NYT op-ed was principally to establish the actual common law rule of birthright subjectship and subsequently birthright citizenship. As readers will know, the questions with which we are confronted today—those involving illegal immigration or temporary sojourning, the latter represented in its most concerning form by those who temporarily visit for the specific purpose of having a child in the United States—were not prominent issues at the time the common law rule developed. Nor has the Supreme Court addressed either issue: in Wong Kim Ark, the Court held that a child born here of domiciled, permanent residents was a birthright citizen.

Thus, we make two overarching points. First, whether the common law rule would have applied to either group can only be determined by understanding the actual principle and operation of the rule and extrapolating it to these situations. Second, we presume, as the Supreme Court has, that the Fourteenth Amendment's language "subject to the jurisdiction" of the United States was intended to encapsulate the rule, whatever it was. It is of course possible that the language was intended to, or simply does as a matter of original meaning, extend or restrict the common law rule. One can therefore disagree with us on any of these points: One can disagree with our characterization of the common law; or with our application of its rule to modern-day questions; or with the presumption that the language of the amendment tracks that rule as opposed to doing something else.

What we emphatically reject is that the meaning of the word "jurisdiction" is somehow plain or obvious. The Supreme Court has famously said that jurisdiction is a word of many meanings. It appears to us that the members of the 39th Congress would have agreed. And, to reiterate, in Wong Kim Ark the Supreme Court presumed that jurisdiction referred to the common law allegiance-for-protection view that we elaborate in our initial piece and further below.

As a methodological matter, we think the original public meaning of the text is what matters. We say more about this below. And if it incorporated the common law rule, the actual content of that historical rule is what matters. But to the extent either is ambiguous as applied to the modern-day questions, the interpretation of either, as Madison once said, can also be "triable by its consequences."

We find it particularly puzzling that opponents of our position, many of whom would normally object to following original meaning, in this case insist on following a particularly feudalistic and archaic conception of subjectship. In our view, the best understanding of the common law rule does not require such feudalistic applications today. At a minimum, how the rule would apply to present circumstances is ambiguous, in which case the feudalistic and archaic conceptions should also be avoided.

We also emphatically reject, however, the claim that the framers of the amendments intended to adopt something other than birthright citizenship. We reject the claim that some scholars have made that the framers were adopting "jus sanguinis," or citizenship by blood, according to which only the parents' citizenship determined one's own status (aside from naturalization). What we do claim, however, is that the status of the parents mattered for jus soli too. That is, we aim to show that even under the birthright rule, the status of the parents mattered. The parents could, indeed, be aliens. We therefore think Wong Kim Ark was rightly decided. But it was not enough merely to be an alien physically present. The exceptions to the rule show this to be the case.

The Puzzles of the Conventional View

One central issue that justifies our exploration of the common law rule is that the standard view of "subject to the jurisdiction" creates a series of puzzles. It is known that certain groups were excluded from birthright citizenship: the children born to (1) ambassadors, (2) Native Americans subject to tribal authority, (3) members of invading armies, and (4) foreigners on foreign vessels in U.S. waters. There is also some reason to think other "nontaxed" Native Americans—those not subject to tribal authority, but who nevertheless had not assimilated—were also excluded.

The question then becomes why they were excluded.

As noted in the New York Times piece, the standard view of the phrase "subject to the jurisdiction" is that it means subject to U.S. law or sovereignty. But this creates some puzzles. For example, it cannot explain the status of children born to loyal Americans in enemy-occupied territory. They are not subject to U.S. law or sovereignty nor do they receive the protection of the United States. (We do not understand how Ilya Somin could say otherwise.) Yet as the Supreme Court said in the Inglis case, they were presumed to be citizens upon reconquest. Conversely, it is obviously true that foreigners on foreign vessels in U.S. waters are subject both to U.S. protection in at least some sense, as well as the application of U.S. law. Numerous state and federal laws are applicable. And yet children born to foreigners on those vessels are not automatic citizens.

Other puzzles abound, about which we are less confident. As noted, at least from the discussions over the Civil Rights Act of 1866, it seems to have been presumed that there was a class of Native Americans on American soil, not subject to tribal authority, but over whom the U.S. had never taken jurisdiction. If they were excluded from birthright citizenship, the traditional rule cannot explain that, either. They were on U.S. soil and neither loyal to, nor under the control of, any tribe.

One thing these exceptions also confirm is this: the status of the parents matters. Whether the child of an ambassador is subject to U.S. law, or U.S. sovereignty, or is under U.S. protection, has everything to do with the parents' status. As Sir Edward Coke wrote in the 1608 decision in Calvin's Case: "[U]nless it be in special cases," there are "regularly . . . three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth . . . ."

We are thus somewhat puzzled by the critics who have asserted that the social compact theory of allegiance-for-protection, which we advance instead of the conventional reading of jurisdiction, cannot apply to newborns whose status must depend entirely on the soil on which they were born. This objection overlooks the obvious point that all the acknowledged exceptions to the natural-born-citizens default rule are based on the status of a child's parents.

In our view—as we explained in the New York Times, and elaborate below—the relevant status is that the parents enter into the social compact and thereby receive the protection of the laws not only for themselves but also for any children they may have within the U.S. And from this allegiance of the parents to the United States, coupled with the protection their children receive, flows the status of birthright citizenship of their children.

Originalist Methodology

Before we continue on to the merits, i.e., our view of the common law rule, we first address whether our approach is even consistent with originalism. We think one of the weakest criticisms of our piece was that our approach was inconsistent with originalist methodology. Part of this stems from the need to omit this paragraph on methodology due to space and the fact that the Times editors found it too "professory" (though to be clear, we thought the editing process greatly strengthened the piece overall):

First a word about methodology. As originalists, we are gratified that, by and large, the first instinct of virtually all commentators—even nonoriginalists—has been to seek the original meaning of these words. We are public meaning originalists who maintain that this question should be answered by how the public would have understood them. If the public would have recognized them as a legal term of art, then we look to the then-established meaning of these terms within the legal community. If there was no consensus among either the public or legal authorities about the meaning of the "letter" of the text, then we must seek the meaning that would best serve its "spirit," by which we mean the functions, ends, objects, or purposes for which the provision was adopted.

(For how originalism incorporates both the letter and the spirit of the text, as one of us has written, see here.) 

In another omitted passage we explained that the term "jurisdiction" is ambiguous in the context of citizenship. It could mean persons who are subject to the power of the government or it could mean persons who are members of the social compact. We find this phrase ambiguous for a number of reasons, but particularly because the conventional reading creates the inexplicable anomalies described above. As we then explained in another omitted passage:

When deciding which of two senses is being used, context is especially important. Both of us are public meaning originalists who maintain that the meaning of the Constitution's text should be gathered from how the public would have understood the words at the time they were written. The legal concepts underlying the amendment and its purposes were well known and help to establish the most likely meaning of this phrase.

All this is, of course, perfectly "originalist." It is not unusual for nonoriginalists—especially those who scorn originalism—to be unaware of its nuances.

Yet, one of the striking things about this debate is how originalist it is. It seems that nonoriginalists love original meaning when they think it is on their side. But nonoriginalists do not always understand how the original meaning is identified. Above all, the original meaning is not the "plain" or "literal" meaning of the text, but is the communicative content of the words in context. And contrary to the familiar refrain by nonoriginalists that originalism fails to yield determinate answers, defenders of the conventional wisdom are adamant that they know the one true original meaning, and that there can be no ambiguity here.

Allegiance-for-Protection

Now to our central claim on the merits of the common law rule of birthright citizenship: it was not nearly as ascriptive as commonly claimed. There is a large degree of ascription to the rule: because one is born under the protection of the king, the king affords that child protection in his or her infancy. That child, in turn, owed a perpetual allegiance to the king as a debt of gratitude for that protection in infancy. Of course, the common law rule evolved in at least some ways by 1868. For example, Americans are not subjects, but citizens, and the obedience demanded is not to a person, but to the laws. The rule of perpetual allegiance was also widely discarded in the nineteenth century, for obvious reasons.

Our central point is that, notwithstanding the ascriptive elements of the common law rule, the rule itself could be traced back to the social compact. By this we do not mean an express contract (which is why we are using "compact" rather than "contract"), nor do we mean that the compact itself implied citizenship. By social compact, we mean only the theoretical agreement at the root of civil society as distinguished from a state of nature. The social compact is more familiar in its Lockean form: we exit the state of nature and give up our own executive power and agree to be bound by the sovereign (allegiance) in exchange for the benefit of that sovereign's laws, and the sovereign's protection against the private violence and private interference with rights endemic in the state of nature.

Contrary to some criticisms we have received, we do not claim that the common law rule as enunciated by Coke in Calvin's Case adopted social compact theory in Lockean terms. It would be anachronistic to say so. But social compact theory existed and was widely discussed before John Locke, and by others besides Locke.

Although this part of the argument did not make it into the New York Times essay, Coke traced the protection-followed-by-allegiance argument back to the initial social compact. If anything came first, allegiance did; but more probably, the two arose from the natural law together. Coke wrote that "magistracy and government" follow from the law of nature and that "ligeance, faith, and obedience of the subject to the Sovereign" existed "before any municipal or judicial laws" because it would have been "in vain to have prescribed laws to any but to such as owed obedience, faith, and ligeance before." Coke later on concluded that "ligeance and obedience" is "due by the law of nature," and that "protection and government [are] due by the law of nature." We do not think it much matters which came first, allegiance or protection; the point is rather that both are due by the law of nature because of the original social compact.

Whatever one thinks of Coke's reasoning in this regard, aliens who came to the country, and who had not received protection from the king in their infancy, more directly enter into a social compact. Aliens who came in amity, Coke said, receive a "local" protection while in the lands and must therefore give a local obedience or allegiance to the sovereign. This exchange is immediate. It hardly matters whether protection or allegiance comes first; the exchange is simultaneous.

What we argued in our New York Times essay is that it is only because of this compact between the alien and the sovereign that birthright subjectship applied to the alien's child. Part of protection owed to the alien parent is protection for any of their children born in the realm. It was that protection of the child in infancy that in turn created an obligation of perpetual allegiance to the sovereign on the part of the child (which by the nineteenth century could be disclaimed by the child when the child reached the age of majority).

Coke said as follows about the local allegiance and protection of an alien: "[this] local obedience being but momentary and uncertain, is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject; a fortiori he that is born under the natural and absolute ligeance of the King . . . ought to be a natural born subject." It is here that Coke then explains why invading armies are excepted: because "It is not cœlum nec solum"—neither the climate nor soil—that makes a subject, but rather being born "under the ligeance of a subject" and "under the protection of the King." 

[UPDATE: Note what Coke is saying. To be a natural born subject, once must be born under the ligeance of a subject. If we are reading this correctly, the child has to be born "under the ligeance of" the parent who is "a subject." Can aliens be subjects? Yes. If they give a local obedience in an exchange for local protection, they become "natural subjects," even if not natural-born subjects, at least for the duration of their stay.]

Of course, Coke was not thinking about illegal migration, so it's hard to say exactly how he would have applied this rule to the modern situation. But [to summarize], it seems to us that what Coke is saying is that the local allegiance of the alien is sufficiently strong to create the right of protection for the child, which protection will in turn demand the child's (defeasible) future allegiance.

The right of the child to protection thus hinges on the alien parent having given a local obedience—that is, on having entered into the social compact with the sovereign. Otherwise, both the child and the alien parents would have to find protection elsewhere, from some other government—namely, the government from which the parents came.

Application of the Rule

If our understanding of the theory of allegiance-for-protection, or protection-then-allegiance, is correct, then it is hardly obvious how it would have applied to persons coming into the realm in violation of the laws and against the wishes of the polity as expressed in its laws. As we noted in our New York Times essay, one cannot give allegiance and a promise to obey the laws through an act of defiance of those laws—most especially when one is consciously aware that the polity has not consented to one's admission thereto.

Even today, persons who enter illegally can often be summarily removed, especially if caught soon after entry. There is no reason such summary removal would not apply to the child, too. To the contrary, neither the parent nor child is entitled to protection from this government in the relevant sense. They must look to the government from which they came for the protection the law of nature requires for all within the social compact.

This account is far more coherent than the conventional wisdom's emphasis on power and sovereignty. The previously mentioned exceptions suggest not only that the excluded groups did not enter into the social compact, they demonstrate that allegiance matters more than protection. Consider Americans in enemy-occupied territory. Their children literally do not receive protection from the United States government. And yet it was presumed they would be natural-born citizens after reconquest. The reason is that their allegiance is what mattered (together with their presence on U.S. soil), and the fact that the government owed them protection, even if it could not deliver that protection de facto. Conversely, the children of ambassadors of course enjoy a "local" protection here. But they are not citizens because their allegiance is to their parents' nation.

Or consider children born on foreign vessels. They are subject to U.S. law and sovereignty locally and temporarily, but obviously did not enter into the social compact here. Their allegiance is to another sovereign, and the ultimate protection for the child must come from that sovereign. The excluded groups of Native Americans "not taxed" on American soil, even if outside the control of a tribe, also hadn't entered into the social compact.

More generally, the sovereignty account suffers from a more absurd defect that gets to the root of today's debate over immigration. The writers on the law of nations universally agreed that sovereignty included the right to exclude from one's territory. It included, in other words, the right to decide which foreigners shall become a member of the society, whether on a temporary or permanent basis. What a republic based on popular sovereignty has decided on the matter will be dictated by its laws.

To say that children born to persons who illegally enter in violation of the nation's sovereignty must be citizens because the nation is exercising the powers of sovereignty over them is a fatal contradiction and absurdity. Of course, the nation is exercising a kind of sovereignty in the sense it can subject them or their parents to some degree of domestic law. But the nation is not exercising sovereignty in any meaningful sense because one of the core rights of sovereignty—to control who enters the territory—is by definition being violated.

Are the Freed People Citizens?

One of the more perplexing criticisms we have received is that under our account of the common law rule, the freed people would not be citizens. Obviously, as we recognized in our New York Times essay, the central purpose of the amendment was to extend citizenship to the freed people. If our understanding of the rule fails to account for that, then that understanding cannot be right.

But our account of the rule does extend birthright citizenship to the newly freed people. To reiterate, by social compact, we do not mean the explicit consent from both parties to citizenship as would be required for a contract between private parties. We mean that allegiance of some kind has been exchanged for protection, remedying the defects of the state of nature. Any child born to someone who had entered into that kind of social compact with America would be a citizen.

The newly freed people obviously qualify. In our view, enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless. It was a failure on America's part that it did not provide the protection that it owed in return for that allegiance. Certainly the free African Americans of the period were given protection in exchange for allegiance. One way or another, at some point, they or their children would have become citizens. The same is true of the newly freed people just prior to the adoption of the Fourteenth Amendment.

It may not be unworthy of mention that we think this a sufficient response to Paul Finkelman's famous article. He argues that there was illegal immigration in the period, namely violations of the prohibition on the Atlantic slave trade. Allegiance and obedience were demanded even of the enslaved persons who were brought into this country against their will and in the violation of its laws. Nor did they knowingly violate the laws of the country when entering; any such violation was committed not by them but by their kidnappers, or what was then called "man stealers."

A nation that fails to prevent such violations of natural right surely owes such individuals protection. This is entirely, and it seems to us quite obviously, different than the situation in which someone willingly comes into the country in knowing violation of the laws governing their entry and presence.

Did We Misread Bates?

As we noted, we presume that the language of the fourteenth amendment was intended to codify the default common law rule defining birthright citizenship. To that end, we stressed the lengthy and detailed 1862 opinion of Attorney General Edward Bates. Bates' opinion reflected the mainstream view of Republicans in Congress and elsewhere. Our limited point was that the existing debate about birthright citizenship had overlooked this important underlying concept of allegiance and protection, which we tried to show was itself rooted in notions of social compact. 

One of our critics, Jed Shugerman, who considers himself to be an originalist, claimed that Bates's opinion contradicts our view:

The bottom line is that their essay backfires, because their main source for their supposed "allegiance-for-protection theory" is a single sentence from Lincoln's Attorney General Edward Bates in 1862), but just a few paragraphs later, Bates clearly endorsed birthright citizenship as "universal principle, common to all nations and as old as political society," and "a historical and political truth so old and so universally accepted that it is needless to prove it by authority."

[UPDATE: Michael Ramsey has made a similar criticism here about our use of Bates' opinion.] But [both he and] Shugerman misunderstand our intervention. We are not disputing "birthright citizenship" as the rule. Far from it, we reject those who do. Rather, we are identifying the scope of the birthright citizenship rule itself. As Bates put the matter:

I have said that, prima facie, every person in this country is born a citizen; and that he who denies it in individual cases assumes the burden of stating the exception to the general rule, and proving the fact which works the disfranchisement. . . .

(We thank Kurt Lash for bringing this facet of Bates' approach to our attention. Space constraints prevented us from mentioning the concept of "prima facie citizenship" in our op-ed. Lash will be elaborating on his understanding of this concept in future work, a preview of which is here.)

Bates, of course, does not address the specific question of whether persons unlawfully present in the U.S. fall within the exception or the rule. Our claim is that the conception of the social compact to receive protection in return for obedience to the laws invoked by Bates, which constitutes "allegiance" in a republic, (a) informed the original meaning of "jurisdiction"; (b) helps us to resolve the ambiguity of "jurisdiction"; and (c) explains, not only the exceptions, but other anomalies that are raised by the "power of the state" conception of "jurisdiction," which has dominated the discourse. 

Bates' opinion is key evidence that the allegiance-for-protection view of birthright citizenship was a core underlying principle that was held by Republicans and made known to the public. We deny, however, that this view was entirely ascriptive. Our whole argument was that the notion of social compact played more into the idea of birthright citizenship than is traditionally believed. 

What About Congress's Statutes?

Although criticism on Blue Sky has been rather unserious, some scholars have made important points. Sherrilyn Ifill, for example, as well as Marty Lederman and Steve Vladek in other forums, have quite sensibly pointed to various congressional statutes that seem to treat aliens who came here unlawfully as falling within the birthright citizenship rule. We take no position on that, and certainly agree that Congress could also extend jurisdiction in the relevant sense over additional groups, and could certainly use its naturalization power. To the extent such laws have been enacted, an executive order that violates them would be improper. We were concerned in our piece with the nature and scope of the default rule, about which the conventional wisdom is overconfident in its understanding. 

Comments

[Devin Watkins]

I think you are mostly right, but one quibble as to temporarily visas. Those people would qualify under Calvin's Case and the common law rules for birthright citizenship. They were lawfully accepted into the country by the government and exchanged a temporary allegiance to the US while they are in the country in exchange for the protection of the law. So, it would seem they are subject to the jurisdiction of the US just as much as anyone with a domicile or immigration visa would (at least under the common law rules of Calvin's Case).

[Brett Bellmore]

But temporary visas are normally denied to anyone who expresses or demonstrates an intent to give birth in the US, so arguably the temporary visa holder relinquishes that lawful acceptance by violating its terms.

[Devin Watkins]

Not having birth is not a term of the visa. But even the terms of the visa do not change the fact that an offer of protection of the laws was made and the temporary allegiance was accepted as required by Calvin's case. Every violation of the law doesn't break that agreement under the common law rules.

[David Nieporent]

But temporary visas are normally denied to anyone who expresses or demonstrates an intent to give birth in the US, so arguably the temporary visa holder relinquishes that lawful acceptance by violating its terms.

That is not in fact correct. There are no such "terms." The U.S. may decline to issue a visa to such a person if it believes they intend to do so, but if the U.S. does choose to issue such a visa, there's no promise or obligation on the part of the recipient not to get pregnant or give birth while in the U.S.

Moreover, while what you describe is a factor in deciding whether to issue a tourist visa, pregnancy — let alone intent to get pregnant at some point in the next few years — plays no role in issuing, say, h1b visas or f1 visas, if you meet the other criteria for such.

[David Nieporent]

I think you are mostly right,

I don't think he's mostly right at all. The foundation for his claim is based on the idea that "jurisdiction" is a mysterious term of art that we have to do a lot of mental gymnastics to ascertain the 14th amendment's meaning of. If that's wrong — and I think it's just a fit of contrarianism to say it — then the entire argument falls apart. Is there any actual textual evidence in the debates over the 14th amendment in support of this "compact" theory? No, there isn't. Is there any evidence that jurisdiction isn't a very simple term with a very straightforward meaning? No, there isn't.

[John Rohan]

Is there any evidence that for the theory that the 14A was intended to cover same sex marriage? No there isn't. But SCOTUS pulled that out of their ass and created that right out of whole cloth.

[Noscitur a sociis]

Do you think the Supreme Court was correct to pull that out of their ass and create that right out of whole cloth?

[Area Man]

Indeed, in no other part of the Constitution--including the 14th Amendment itself (the Equal Protection Clause)--does the word "jurisdiction" comport with this "allegiance" or "compact" theory. In fact, the other provisions would be nonsensical if that's what they meant. It's not dispositive, but when a word is used numerous times in a legal document with a clear meaning, it's a strong indication that the disputed provision is not an outlier. Instead, the natural reading of the Citizenship Clause is that jurisdiction meant authority. If that might occasionally lead to some weird outliers like the children of foreigners on foreign vessels in American ports becoming citizens, then they should take it up with the Clause's drafters and ratifiers. But they used broad language because the Clause was supposed to apply broadly. It was better to have the occasional "accidental" citizen than generation after generation of people who had no membership in the political community.

[dwb68]

"Even today, persons who enter illegally can often be summarily removed, especially if caught soon after entry. There is no reason such summary removal would not apply to the child, too. To the contrary, neither the parent nor child is entitled to protection from this government in the relevant sense. They must look to the government from which they came for the protection the law of nature requires for all within the social compact."

However, if the government declines to exercise its authority to remove people (say... after a few years), I don't think this applies. There has to be some sort of liquidation period, or statute of limitations, after which people cannot be removed, because the government knew they were here and did nothing about it.

[apedad]

Is there a statutory definition of "domiciled resident?"

I see the layman definitions but is it defined in some law?

Because that seems to be the turning point as addressed in Wong Kim Ark.

[Kords]

That is not the turning point addressed in Wong Kim Ark, and what Professors Barnett and Wurman say about Wong Kim Ark is misleading.

They say: "in Wong Kim Ark, the Court held that a child born here of domiciled, permanent residents was a birthright citizen." That is true, insofar as it goes, because Wong Kim Ark was born stateside to permanent residents. But it is wrong to imply that the holding of Wong Kim Ark was limited to children of permanent residents.

The question presented in Wong Kim Ark was if a child born in the United States to lawful permanent residents subject to the jurisdiction of the United States. To answer that question, the Court explained that anyone born on United States soil is subject to the jurisdiction of the United States unless born to (1) foreign diplomats, (2) enemies within and during a hostile occupation of part of our territory, or (3) Indian tribe members. Then the court applied that rule to Wong Kim Ark, and because he did not fall into one of the aforementioned exceptions to birthright citizenship, it ruled that Wong Kim Ark was a natural born citizen.

Both the rule set forth in the Court's reasoning and its application is part of its holding. There is no basis for limiting Wong Kim Ark to its facts. That the rule described encompasses additional categories of individuals than children of lawful permanent residents is of no matter. The Court authoritatively set forth all the exceptions to birthright citizenship, and that part of its decision is part of the holding and cannot be dismissed as dicta.

[windycityattorney]

We have had what... 3 different district court opinions all rejecting the executive order's interpretation of birthright citizenship?

Why not critique those actual decisions rather than quibbles between law professors?

Also, a question: If the 'persons' described in the birthright clause have this specific meaning [allegiance etc...] does a conclusion that their kids are therefore not citizens have any effect on any of the 14th amendments other protections for 'persons' such as equal protection, due process, etc.... and therefore would a decision on birthright citizenship then implicitly require courts to overrule other precedents which grant certain constitutional protections to such 'persons?'

Secondly, some of the decisions the district court have reached focus on the child while the arguments or many of them presented here focus on the parent(s). What is the response to these courts? Does the child inherent the 'crimes' of their parents? Is that theory consistent with due process or equal protection rights of the child as a separate person protected by the plain language of the 14th amend?

[JoeFromtheBronx]

Looks like it's four now.

https://apnews.com/article/trump-birthright-citizenship-ruling-boston-3e442a97de8398dc4faf691857ea48ea

[Dr. Ed 2]

And four impeachments...

[Mr. Bumble]

No judge is going to be impeached, let alone convicted and removed.

[SRG2]

Dr Ed doesn't understand this

[bernard11]

For any value of "this."

[Roger S]

There is no substance to those opinions. They do not even address the good arguments against birthright citizenship.

[David Nieporent]

Even if there were any good arguments, it's irrelevant, because the constitution means what it says regardless of whether there are "good arguments" that it ought to say something else.

[Please, Daivd, Seek Help]

And a district court's job isn't to determine what the constitution means anyway, it's to apply a test for restraining orders (or injunctions) handed down to them by their appellate circuit and the Supreme Court, and with regards to likelihood of success on the merits, use the prevailing constitutional interpretation handed down to them via the precedent of their appellate circuit and the Supreme Court. District judges routinely opine that they have concerns about precedent but are bound by it in the mean time. That's the entire point of the appeals process. It's very weird that we're on a law blog and there are people whose view of the law is strictly instrumental.

[not guilty]

"And a district court's job isn't to determine what the constitution means anyway[.]"

Where on earth do you get that notion??

[David Nieporent]

It's awkwardly phrased, but the point is valid: Roger S is having a tantrum that district courts aren't starting over from scratch and revisiting the issue of birthright citizenship. But since the Supreme Court already settled what the 14th amendment means, it's not a district court's job to decide that for itself; it's a district court's job to apply binding precedent.

[Kords]

For those who would like to read an extremely thorough takedown of how Barnett and Wurman misread the the primary sources on which they rely, by a conservative originalist who has forgotten more about birthright citizenship that most will ever know, might I suggest the following from Mike Ramsey: https://originalismblog.typepad.com/the-originalism-blog/2025/02/birthright-citizenship-and-the-bates-opinionmichael-ramsey.html

[JoeFromtheBronx]

Can someone tell him to correct the "Secretary of State" Salmon Chase part?

[Kords]

Yeah that should be "Secretary of the Treasury." Hopefully that gets corrected at some point.

[JoeFromtheBronx]

Or he could mean Secretary of State William Seward.

[Kords]

For those who don't want to click on the link, here is a summary of how Barnett and Wurman misread the Bates opinion:

"The English law, on which Bates relied, did rest on the idea of protection in return for allegiance. But this relationship did not arise from a compact made by the parents, and Bates nowhere says or implies that it did. Rather, the jus soli principle he was describing arose from a natural law relationship between the sovereign and the child. The sovereign owed protection and the child owed allegiance as a result of birth in sovereign territory, entirely apart from consent on either side. There may well have been people in nineteenth-century America who tried to restate the English natural law rule as one derived from social compact, but that isn't what Bates was doing."

Barnett and Wurman mistakenly focus on whether the parents entered into a social compact. But the relevant compact is with the child, and it is imposed by the circumstances of their birth rather than agreed to.

[Rubbish!]

I support the jus soli principle as a matter of practicality, of precedent, and of the best reading of the 14th amendment. Ramsey's argument is undermined by referring to the natural law argument as a "compact with the child." A compact is an agreement, and an infant is incapable of entering into an agreement. Parents, on the other hand, are capable of doing so, on behalf of themselves and their children. This is a weak attack on Barrett's assertions.

[Kords]

Your objection would make sense if we were debating how to best design a system of birthright citizenship from scratch, but that you disagree with imposition of "allegiance" on infants born in the United States as a matter of political theory does not undermine Ramsey's position. That is because Ramsey is not arguing that is the best way to design a system of birthright citizenship. He is accurately summarizing the theory of birthright citizenship espoused by Bates to point out that, to the extent one thinks the Bates opinion is important to finding the original public meaning of the Citizenship Clause, it does not support the Barnett and Wurman argument.

[SRG2]

Thanks for that! He wins.

[cannpro]

Barnett and Wurman’s argument is basically that birthright citizenship doesn’t exist because they don’t understand English.

[myself]

In other words Barnett is trying to pull a Blackman and create the basis of a legal opinion to let Trump violate the law.

[David Nieporent]

From the Ramsey post:

This is simply a restatement of the common law rule derived from England, as his citations above to Blackstone and Calvin's Case illustrate. (Bates was wrong that this rule existed in "every civilized country" but he was right about England.) As Bates said, "nativity furnishes the rule" subject to narrow exceptions.

Or maybe Bates thought that England was the only civilized country!

[TwelveInchPianist]

“ Second, we presume, as the Supreme Court has, that the Fourteenth Amendment's language "subject to the jurisdiction" of the United States was intended to encapsulate the rule, whatever it was.”

The language was intended to ensure that slaves and their children were birthright citizens.

So to the extent that the original rule was constrained by concepts like social compacts, protection for allegiance, or coming in amity, the 14A was intended to expand birthright citizenship beyond those constraints.

[Roger S]

No one thought that the 14A forces the birthright citizenship that is accepted today. No one even thought that was a good idea. Those arguing for birthright citizenship do not even seem to recognize how radical it is.

[ducksalad]

Radical? It's been normal everyday practice for well over 100 years.

[David Nieporent]

Radical? It's been normal everyday practice for well over 100 years.

Much much much longer than that! As the Wong Kim Ark court traced in great detail, it long predates the existence of the United States.

[Bob from Ohio]

"The language was intended to ensure that slaves and their children were birthright citizens. "

Good news. It worked!

Now let's not let people here for a few days get to plunk out US citizens

[D J]

Indeed, and what we are permitting is a reward to the law-breaking mother who gives birth here to be anchored in our nation by the birth of a newly minted "Citizen".

We surely aren't deporting the mother afterward, and putting the child into some sort of care. Then, the now anchored mother gets to bring in other children which she may have had outside the USA, bring in the father of the child born here, and eventually other relatives as well.

[Noscitur a sociis]

Then, the now anchored mother gets to bring in other children which she may have had outside the USA, bring in the father of the child born here, and eventually other relatives as well.

How exactly does that work?

[D J]

It is the way it has worked for years. The mother is anchored here by the alleged newborn Citizen (thus 'anchor baby'). It is the mother who is anchored because we won't deport the mother of an infant Citizen.

Over time, she (and the baby) gets all sort of benefits, SNAP, medical, housing, and the right to bring in other relatives. It is called 'chain migration'.

[David Nieporent]

There is no such "right to bring in other relatives" that applies to the mother. "Chain migration" only applies to legal immigrants, not illegal ones.

[D J]

Sorry, they get relatives here, happens all the time.

[David Nieporent]

Indeed, and what we are permitting is a reward to the law-breaking mother who gives birth here to be anchored in our nation by the birth of a newly minted "Citizen".

We surely aren't deporting the mother afterward, and putting the child into some sort of care. Then, the now anchored mother gets to bring in other children which she may have had outside the USA, bring in the father of the child born here, and eventually other relatives as well.

Literally none of that is true. Part of the problem with the outrage about birthright citizenships is that it is held by people who don't have any idea what the law actually is.

[D J]

Yeah, it is quite true.

[David Nieporent]

It isn't. You don't understand how immigration law works. Illegal aliens whose children are citizens get deported all the time, and if they don't, they can't bring in anyone else anyway.

[D J]

When are they deporting an illegal alien woman who is the mother of an alleged Citizen? Who cares for that child then? Notice that I have always referenced the mother, not an illegal alien father.

[Stupid Government Tricks]

Not that I have much respect for Ilya and his immigration fixation, but he does explain this:

They are not subject to U.S. law or sovereignty nor do they receive the protection of the United States. (We do not understand how Ilya Somin could say otherwise.)

Ilya:

Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).

It may not be protection, but I don't think many people would say "Oh well, let bygones be bygones", and the Tokyo Rose convictions bear that out, however just or unjust they were.

[Roger S]

This is just a crazy Somin opinion. Foreign troops can definitely be forced to obey USA law, and that does not mean that their kids become American citizens.

[Magister]

"Citizens ... remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops"
Somin very clearly states that foreign troops are not subject to enforcement of US laws in the same way citizens are.

[John 4]

Why do you folks who can barely read feel the need to interject yourselves at every possible moment?

[David Nieporent]

Foreign troops can definitely be forced to obey USA law

So if China invades and occupies California, you think the U.S. government can collect taxes from the Chinese soldiers? Can ticket them if they run red lights? Force them to get construction permits before they can erect fortifications?

[questioner7]

Somin also says that only jurisdiction at the moment of birth matters. 14th Amendment talks about jurisdiction over the _kids_. Can kids born under long-term occupation be prosecuted for breaking U.S. law upon reconquest?

Kids born under occupation to loyal citizens seem much more like kids born to citizens abroad: the 14th Amendment does not give them citizenship, but Congress can.

[David Nieporent]

Kids born under occupation to loyal citizens seem much more like kids born to citizens abroad: the 14th Amendment does not give them citizenship, but Congress can.

If Trump and his enablers want to argue that the children to U.S. citizens in portions of the country under foreign occupation do not get birthright citizenship under the 14th amendment, I am open to hearing that argument. It is of course utterly irrelevant to the debate actually occurring in the U.S., and is unlikely to ever be relevant to that debate, as I do not predict enemy armies seizing and occupying portions of the U.S. in the foreseeable future.

[Stupid Government Tricks]

Criminy! My only point was that Somin does explain his reasoning. Regardless of whether that reasoning is correct, if the two authors here do not understand his reasoning, they aren't trying very hard.

[SRG2]

What you cannot do is insist on holding to two definitions of "jurisdiction" simultaneously.

[Roger S]

Jurisdiction, in this context, meant not subject to a foreign power.

[ducksalad]

Let's use Venezuelan parents as an example.

1. How is their baby in a US hospital subject to a foreign power? Will the Venezuelan police come into the hospital to arrest them and haul them into a Venezuelan court?

2. If the government of Venezuela declared you (Roger S) a Venezuelan citizen, without your consent, would that make your descendants illegal aliens?

3. If the government of Venezuela declared, ahead of the birth, that a baby born to Venezuelans in the US will not be a Venezuelan citizen, would that defeat your argument and give the baby birthright citizenship?

4. Do you see how breathtakingly stupid it would be to condition US citizenship on the non-consensual actions of an unfriendly foreign government?

[SRG2]

So in this definition, are illegal immigrants under the jurisdiction of the US?

[mike petrik]

The same word meaning different things in different contexts is undeniably commonplace. The word "tax" somehow comes to mind.

[Katall]

The ships part of the exclusion makes sense. I believe that, ostensibly (at least in the 19th century), ships were considered foreign lands, much as embassies are. Schooner Exchange v. McFaddon, 11 U.S. 116 (1812). (Schooner Exchange also discusses the fact that ambassadors and members of foreign armies are not automatically the subject of US jurisdiction.) Thus, what happened on ships was not subject to the jurisdiction of the United States.

From this, I get that the default is that, at least in the 19th century, people in the US are subject to US jurisdiction, with exceptions being made for ambassadors and people on foreign ships.

I think the subject of Indians is much more complicated.

[Katall]

See also Mali v. Keeper of the Common Jail, 120 U.S. 1 "it came to be generally understood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce should require. "

[Brett Bellmore]

I think the Indians exception is actually the strongest argument for Trump's position: The Indians were, in fact, recognized as citizens of their own sovereign tribes, NOT the US. Just sovereigns that incidentally happened to be inclusions within what was otherwise US territory. And their children didn't get citizenship even if born outside of tribal lands.

In fact, at the time they were by far the largest group of foreign citizens present in the US, to the point where the other were hardly worth mentioning.

This situation didn't change constitutionally with the 14th amendment, it was erased by statute, the Indian Citizenship Act of 1924, which naturalized all Indians within the US.

You could make an argument that foreign nationals within the US who haven't begun the process of naturalization, such as obtaining permanent resident status, are analogous to the Indian tribes.

I don't know that this argument would be a winner, even with the current Court, but it's not frivolous.

[Sarcastr0]

You could make an argument that foreign nationals within the US who haven't begun the process of naturalization, such as obtaining permanent resident status, are analogous to the Indian tribes.

Except that the Constitution doesn't treat these things as analogous,
either in text nor in any history either when originally drafted nor in the reframing.

Seems an odd take from an originalist. Or a textualist. Or a purposivism. Or an intentionalism.

Best I got for you is some common law constitutional theory push.

[ducksalad]

Yeah, lots of problems with the Indian analogy, starting with the fact that they aren't Indians.

Would Brett claim that if a shipload of Romanians had showed up in the 1880s, they and their children could be recognized as Indians, with both the rights and restrictions that went along with that status.

No, because the status came from a series of treaties with specific tribes.

At best the argument is "there's one exception, so we can declare others!"

[Brett Bellmore]

The Constitution doesn't call out the tribes by name, it just says "Indians not taxed", so nothing precludes deciding that other countries are, functionally, Indian tribes for 14th amendment purposes.

I thought I was clear that I doubted this argument was a winner, just that it cleared the bar of being frivolous. An argument doesn't have to be good, to be the "best" argument you have...

[ducksalad]

Oh no, not again with the argument that words not defined in the Constitution are totally arbitrary, and that somehow this magically leads to unlimited executive authority on the subject except for impeachment.

[Brett Bellmore]

Are you simply incapable of reasoning about how people might advance legal arguments you disagree with? Or do you just think it's morally prohibited to reason about such things?

[Sarcastr0]

That's not a legal argument, it's an 'if you want an excuse, here's how to ignore the words in the Constitution' argument.

I know you're mad abour Wickard or whatever, but that doesn't mean you should advocate ripping up the Constitution as fair turnabout.

[ducksalad]

Of course it's not prohibited, no matter how stretched the definition, no matter how obviously the reasoning is from the desired result to the required definition, rather than from a definition to a result.

You're doing it and no one is stopping you.

However, it's completely fair to mock the legal argument if it's become ridiculous. Declaring everyone you want to deport to be an Indian seems to me very ridiculous. It's no longer an act of defining, it's an assault on the concept of definitions and the very act of using words to mean things. Hell, it's an attack on meaning itself.

And of course you've made it clear it's not an argument you necessarily agree with. Devil's advocate, exploring a line of reasoning, etc. I'm mocking what I see as the end point of the argument, not you personally.

[Sarcastr0]

nothing precludes deciding that other countries are, functionally, Indian tribes

So patriotic you shit on the Constitution.

[David Nieporent]

The Constitution doesn't call out the tribes by name,

It calls out Indians by name. Nobody who isn't an Indian is an Indian. I would have thought that truism should be obvious. You can't change the substance of the law just by relabeling people with false labels.

[Magister]

It would seem that the "not taxed" part would limit the definition of "Indians not taxed" to include only tribes that the federal government agreed not to tax. I suppose people of some random country could attempt to negotiate the same status of non taxation within the United States; I still doubt they would actually be recognized as Indians, though, even if that succeeded. One does hear of rich people renouncing American citizenship to avoid paying taxes, thus selling their birthright for a mass of tax advantage.

[John 4]

"Everyone outside of the United States is an Indian" is pretty freaking frivolous.

[Josh R]

I believe Indians could not be tried in US courts for some crimes while in the US. That is not the case for aliens who do not hold green cards.

[questioner7]

IANAL, but: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof" -- nothing about the parents: both birth and jurisdiction refer to the same "persons" -- the kids. And it's not true that "exceptions... are based on the status of a child's parents". Kids of diplomats are excluded because they (kids) have immunity from U.S. laws. _Why_ they do doesn't matter -- matters _that_ they do. Kids born on foreign ships in U.S. waters are born on what's legally foreign territory, like kids born in embassy buildings; parents' status doesn't matter. (If their parents are citizens, they might get citizenship like citizens' kids born abroad, but that's through a law that Congress chose to pass, not through the 14th Amendment.) The anomaly with kids born to loyal citizens under enemy occupation should be fixed by changing that precedent and then passing a law to treat them like kids born abroad to U.S. citizens. If "jurisdiction" means "protection", to say that illegals aren't under U.S. jurisdiction would mean that they can be murdered with impunity -- how's that for anomaly?

[Bubba Jones]

The Constitution did not anticipate air travel, nor temporary work visas.

The correct answer would be for congress to debate and enact a law that properly accounts for the modern economy.

I'm not holding my breath. It's so much easier to fight this out in court and then raise campaign funds on the issue.

[questioner7]

The Constitution anticipated the need for amendments, which is the only proper way to change something as fundamental as birthright citizenship.

[Eponymous]

Are you suggesting that the writers of the constitution weren’t aware of scenarios in which people were temporarily visiting the country and might give birth in it? In a time when women were more frequently confined to their beds than now? When the US bordered several foreign territories? When people traveled via ship and so had extended stays?

[David Nieporent]

The Constitution did not anticipate air travel, nor temporary work visas.

"Work visas," maybe not. But certainly people coming here temporarily to do business, absolutely it did.

The correct answer would be for congress to debate and enact a law that properly accounts for the modern economy.

Laws do not get to amend the constitution.

[JoeFromtheBronx]

Ballooning was a thing in the 1780s. Franklin was around when test flights occurred. I think "air travel" was in the realm of possibility. Da Vinci considered it centuries earlier.

[Bubba Jones]

I think there are clear arguments to deny citizenship to people with temporary visas. Those are people who are expected to go home, with their families at the expiration of their visa. And these are also people who would reasonably expect assistance from their consulate if they were being treated unfairly by the US Government.

I also think it would be reasonably workable to grant citizenship to children born in the US, if and when their parents are granted residence in the US.

And then by extension, the offspring of illegal immigrants would not qualify for birthright citizenship, but I could see a strong argument for giving them a fast track to naturalization.

As a matter of process, however, I'm wary of giving the US government a role in validating the citizenship of every birth that happens in the US. I think a lot of poor people are going to find themselves disenfranchised when their parents show up to a labor and delivery hospital without proper documents.

[Roger S]

You have a reasonable opinion, but some judges are pretending that it is foreclosed by some silly Civil War text about slaves.

[MatthewSlyfield]

It's foreclosed by the fact that visas were not a thing when 14A was ratified.

[JoeFromtheBronx]

You might support it as a matter of policy, like as a matter of policy giving Texas and South Dakota two senators is bad and a violation of equal protection, but the Constitution has a different rule.

People born -- there is no exceptions cited for those with parents here temporarily or without proper papers -- here are citizens when they are within the jurisdiction of the United States.

Diplomats and hostile invaders are not. Children of immigrants otherwise are. And, it is not only the policy of the U.S.

For instance, the Mexican Constitution notes (translated):

Article 30. Mexican nationality is acquired by birth or by naturalization A) The following are Mexican by birth: I. Those born in the territory of the Republic, regardless of the nationality of their parents.

[MatthewSlyfield]

"I think there are clear arguments to deny citizenship to people with temporary visas."

The problem with these arguments is that the US did not start issuing visas of any kind until 1924, half a century after the ratification of 14A.

[John Rohan]

I think a lot of poor people are going to find themselves disenfranchised when their parents show up to a labor and delivery hospital without proper documents

That's a scare tactic, it doesn't work like that. Europe got rid of birthright citizenship and babies aren't being turned into non-persons.

Here's how it worked when I was born in Germany to US parents (at the time I didn't qualify for German citizenship, under today's laws I would). I got a birth certificate. EVERYONE gets a birth certificate, because it's a fact you are born, and there's a record of it. That record proves I was born in Germany. The only difference is, unlike the US, that record doesn't prove I am a citizen of Germany. There's a separate form that is filled out for that, and it can be done later. There is no need for anyone to grab all the family documents when the mother is in labor and they are rushing to the hospital.

[cannpro]

Under Barnett’s bizarre “reasoning” the children conceived from rape or (miscegenation when it was illegal) are not citizens since the act that created them was a violation of the law. Heck it’s not really clear anyone would be a citizen. Most people never make a promise to follow the law. I doubt Barnett’s parents ever made such a promise. Guess that means he’s not a citizen.

His arguments are nonsense.

[Mark Leen]

Under your argument, would the children of people brought here as children and the children of illegal immigrants be entitled to Birthright Citizenship?

[bratschewurst]

As a methodological matter, we think the original public meaning of the text is what matters. We say more about this below. And if it incorporated the common law rule, the actual content of that historical rule is what matters. But to the extent either is ambiguous as applied to the modern-day questions, the interpretation of either, as Madison once said, can also be "triable by its consequences."

So judges should consider the real-work consequences of their rulings? What an interesting idea. We should try it.

[questioner7]

"one cannot give allegiance and a promise to obey the laws through an act of defiance of those laws" -- so any citizen who broke some law is not a citizen anymore? Why is defiance of our immigration laws worse than, say, defiance of our laws against murder? "persons who enter illegally can often be summarily removed, especially if caught soon after entry. There is no reason such summary removal would not apply to the child, too" -- there is: the child born here didn't break any laws. There is no such thing as illegal birth. "neither the parent nor child is entitled to protection from this government" -- surely they're entitled to government protection from murder, assault etc?

[SykesFive]

The two exceptions (Americans in territory occupied by an invader and ships at sea) are not so mysterious.

The law generally tries to ignore foreign invasions as much as possible. They don't make lasting changes in legal relation ships. Paradine v. Jane: "yet he ought to pay his rent." The fact you were born during the Cuban occupation of south Florida or whatever doesn't mean you're not an American citizen.

Ships at sea, even within territorial waters, are simply not considered to be land.

[bmattock]

These are interesting points, and I offer no rebuttal. I have grown to an old age in this country living under the presumption that birthright citizenship meant children born on US soil were automatically citizens, and I've been accepting of that common understanding. It made sense to me. It comports with the notion of a nation of free citizens, a nation of fresh starts.

I recognize the differing points of view, and I understand some of the points being made here. But at least in some respects for me, it is academic. There is a deeper issue that is not legalistic, not constitutional, but human. There has been a deep-seated and long-hidden racism and xenophobia reawakened by the recent political turmoil, and it has resulted in this: my 10 year old granddaughter, born in the US to US citizens but of recent Mexican heritage, is now daily teased and assaulted on the school playground, called a "dirty Mexican," and even pushed down by other children. Adults have told her to "go back to Mexico." I feel the debate on birthright citizenship has helped to make this kind of thing acceptable in the public discourse, and I hate it.

Bring forward all the debates and legal history surrounding the intent of the framers of the Constitution and the original meaning behind it all; in the end, if it results in my granddaughter or her future children being stripped of their citizenship, I loathe it and those responsible for it, and I ascribe their motives not to scholarship but to hatred.

My family emigrated to the USA from Wales in the late 1880s. I am as entitled to citizenship as my granddaughter by virtue of my birth. If the goal is to take hers, take mine. Or leave well enough alone and avoid the response you'll have truly earned.

[Commenter_XY]

I was very sorry to read about your granddaughter.

[LoganMankins]

Funny how originalists discover the original meaning of a clause that just so happens to align with the Republican Party.

Not beating the partisan hack allegations.

[SRG2]

Always the case. Favourite example: Scalia saying that "cruel and unusual" is according to what was cruel and unusual at the time of the BoR's passing, but "arms" are what is included in arms today.,

[bernard11]

As a non-lawyer, I don't quite get this "allegiance-protection" business.

How is it determined whether someone owes allegiance to the US? Illegal immigrants are, for example, required to register for the draft so, should the occasion arise, they can be required to serve in the armed forces. And most live peacefully and lawfully, many for decades. Certainly that ought to count, for the reason dwb68 gives and because of common sense. And if the OP wants to talk about what the "polity" wants, here is some information:

Per Gallup, 70% of adults favor or strongly favor:

"Allowing immigrants living in the U.S. illegally the chance to become U.S. citizens if they meet certain requirements over a period of time."

That goes to 80% on the following:

Allowing immigrants, who were brought to the U.S. illegally as children, the chance to become U.S. citizens if they meet certain requirements over a period of time.

And what of "protection?" If the illegal immigrant is the victim of a crime does the criminal go free? If he lives in an area of the country that comes under enemy attack will US armed forces not try to repel the invaders, thereby protecting him? Indeed, don't our military protection methods and devices protect him along with Mayflower descendants?

Maybe it means that if he finds himself unjustly imprisoned in a foreign country the US will not assist him, but that seems like a rare occurrence, especially lacking a US passport.

The OP's focus on parents seems a bit odd, or maybe an effort to slip something by. Of course the newborn, the subject of the controversy, did not enter illegally.

It seems obvious that the government owes protection to children born on US soil, however their parents got here. So what are Barnett and Wurman talking about?

[Roger S]

Those polls do not say that the US government owes anything to illegal aliens or their children.

[Martinned2]

Shouldn't they be working to "correct" the interpretation of the 22nd amendment instead?

[Ruqt]

What was the status of Indentured servants, some cites claim they were not citizens. Were they deemed bound by contracts executed under UK law? Or, did some retain UK "convict" status pending contract completion.
Also unexplored, migrant bands of mixed breed not belonging to tribes, some were infamous for lawlessness. They were not citizens, some may have been on wanted lists.
A few states were active in requesting Federal help to combat invasions from Spanish, Indian, Other, on the Southern borders. Too much History unexplored.

[SRG2]

Counterfactual: President Roosevelt today sat down with Adolf Hitler to discuss a peace settlement following Germany's invasion of the Sudetenland. Roosevelt offered to back a peace treaty between Germany and Czechoslovakia if the Czechs handed over mineral rights and future profits for 50% of Czechoslovakia's natural resources, and preferential access of American companies and investors to the Czech economy. Another condition of the treaty would be that the current occupation of Sudetenland would be made permanent, A State Department spokesman said that Hitler's claims to the Sudetenland had considerable merit, given the large number of Germans living there, and the current discussions merely reflected the new reality.

Most of FDR's supporters approved of the Roosevelt proposal, citing historical claims, Czechoslovakia's chaotic and corrupt government, and the US's not owing the country any defence obligations. Some supporters wondered why Roosevelt's apparent friendship with Hitler was even a matter of concern.

[SRG2]

Oops - wrong page

[Commenter_XY]

But revealing. 😉

[SRG2]

No - I intended to post this on the Monday Open forum., not on any other site.

[John Rohan]

Maybe this debate is starting in the wrong place. Maybe we should first decide whether we should still have birthright citizenship or not.

[SRG2]

Alternatively, decide what the Constitution says and then discuss whether to amend it.

[Joe Dudek]

Were you going to engage with Ramsey's extensive contrary scholarship on the topic or just parenthetically address his 6 a.m. blog post?

[ReaderY]

There are two problems with Professor Barnett’s argument:

1. Wong Kim Ark said that at common law, the only two classes of persons not subject to the jurisdiction of the realm were dillomats and invading armies. This suggests that “allegiance” does not mean what Professor Barnett thinks it means. It isn’t based on nice legal-theory concepts like a theory of social contracts.

2. As noted in a comment to a previous post, slaves could neither be citizens nor form contracts under Dred Scott, yet the 14th Amendment made them citizens all the same.

[questioner7]

No mention of Ptyler v. Doe ruling that the 14th Amendment "equal protection" applies to children in the U.S. regardless of immigration status? It said they're persons within the state's jurisdiction. Same section of the amendment.

[ReaderY]

I suspect the proponents of this position would take the view that Pyler was wrong and ought to be reversed. They might even take it for granted that it will be reversed if revisited. It was, after all, a 5-4 decision at a time when the Court was much more liberal than today.

[Easter Lemming]

In response to the very numerous criticisms of their opinion in the NYT supporting denying birthright citizenship to children born in the United States to noncitizens, the two professors thankfully elaborate.
I retract my opinion that they are hacks, not that they are wrong.
If a child is born in the United States and raised here they have the mutual protections and obligations of being under the laws of this government.
Is that removed because their parents are not citizens? Like many conservatives they seem to not consider the people affected.

[Roger S]

A child brought in as a toddler would also not be a citizen. The child could apply for naturalization, or go back to his native country.

[David Nieporent]

But a child born here by definition cannot "go back" anywhere. (And under current U.S. law there is no path to citizenship for the child you describe either.)

[Stephen Lathrop]

This OP likely shatters an important record. It uses, "would have," 10 times.

In commonplace canons of historical research, using "would have," once gets counted as a likely field mark for the kind of author who makes stuff up about the past. Seeing it used twice makes the case conclusive.

Seeing it used 10 times in an essay which concedes an especially fraught historical question under discussion? I suppose it must have happened. It is not something I ever saw or heard of previously.

[Dick King]

What is done in practice for the case where the parents came to the US for the very purpose of having some sort of pre- or peri-natal care that was uniquely available in a specific US hospital but that required the baby to be born there?

-dk

[not guilty]

A child born in the United States owes allegiance to the U. S. irrespective of the parents' nationality or immigration status. That obligation of allegiance unless and until the citizenship which attaches at birth is intentionally renounced.

Tomoya Kawakita "was born in this country in 1921 of Japanese parents who were citizens of Japan. He was thus a citizen of the United States by birth (Amendment XIV, § 1) and, by reason of Japanese law, a national of Japan." Kawakita v. United States, 343 U.S. 717, 720 (1952). From 1939 to 1946 he resided in Japan, never having renounced his American citizenship. Shortly after his return to the U. S., he was arrested, and indicted, and tried for treason. He was convicted and sentenced to death. The treasonable acts for which he was convicted involved his conduct toward American prisoners of war. Id., at 721.

Mr. Kawakita defended at his trial on the ground that he had renounced or abandoned his United States citizenship and was expatriated. The special verdicts of the jury contained, with respect to each overt act as to which he was found guilty, an affirmative answer to an interrogatory that he was at that time "an American citizen owing allegiance to the United States, as charged in the indictment." Id., at 722.

Among the issues before the Supreme Court was whether the defendant while residing in Japan was a person "owing allegiance to the United States" within the meaning of 18 U.S.C. § 2381. SCOTUS expressly "reject[ed] the suggestion that an American citizen living beyond the territorial limits of the United States may not commit treason against them. Justice Douglas wrote for the Court:

One who becomes a citizen of this country by reason of birth retains it, even though by the law of another country he is also a citizen of it. He can under certain circumstances be deprived of his American citizenship through the operation of a treaty or an act of Congress; he can also lose it by voluntary action. . . . But American citizenship, until lost, carries obligations of allegiance as well as privileges and benefits. . . .

Id., at 734. The Supreme Court affirmed the conviction and sentence of death for treason. Id., at 745.

Mr. Kawakita's obligations of allegiance did not flow from his parents' circumstances at the time of his birth, but instead from his having himself been born in the United States.

[kurtis fechtmeyer]

Where to begin ?

This is not hard. The 14th citizenship clause was NOT a catch all for immigration laws, which hardly existed at the time. It WAS a reconstruction amendment meant to overturn Dred Scott, which rested its defense of slavery on the supposition that slaves were not citizens. The drafters faced a catch 22 in that if they said all people born on US soil to US citizens, they would not have solved the issue at hand.

When you combine Senator Howard's Congressional journal comments, the 1790 Naturalization Law and the 1866 Civil Rights law in place at the time of passing the 14th, it seems clear that aliens (resident but not qualified by reason of proof of loyalty to apply for citizenship), foreigners (travelers and merchants) and diplomats were NEVER intended to be covered by the birthright language. Yes, the status of the parents mattered and "jurisdiction" was never intended to mean basic police powers that apply to anyone in the maintenance of order.

I don't even think you need to go back to English common law, which in any event concerned a state of a very different nature (liege feudel v. Contractual)

[David Nieporent]

Where to begin ?

Not wherever you did.

[Kords]

"To the extent such laws have been enacted, an executive order that violates them would be improper. We were concerned in our piece with the nature and scope of the default rule, about which the conventional wisdom is overconfident in its understanding."

This is bogus and embarrassing where you framed your opinion piece as, "Trump might have a much stronger case at the Supreme Court than everyone thinks!" That is obviously untrue if his executive order violates statutory law. Although you say you were concerned only with the "nature and scope of the default rule," you weighed in on the relative strength of a legal position in a live case without evaluating a dispositive point that would defeat the position you were defending. That's irresponsible.