The Volokh Conspiracy
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Lash's Last Stand
Evan Bernick's second in a series of guest-blogging posts: Part II of a critique of an important defense of the constitutionality of Donald Trump's executive order on birthright citizenship.
Yesterday I published a critical review of a document that Kurt Lash described several weeks ago as a "completed article." Within several hours, I learned that it is not in fact complete. Shortly after my critique went live, Lash posted a revised draft. The latest revisions aren't substantial. But readers should be aware that I'm firing on a moving target and that eventually, I'll have a full-length critique of his (actually) completed article.
I'll finish up with Lash's contrarian take on birthright citizenship by doing three things. First, I'll critique his bizarre treatment of the children of enslaved people and Confederates. Then I'll put to rest a claim that Lash makes about the importance of parental allegiance to the few exceptions to birthright citizenship recognized by the time of the Fourteenth Amendment's ratification. Finally, I'll discuss Lash's treatment of Indian law—roughly, the law defining and regulating the relationships between the government of the United States and that of 575 federally recognized Native nations and their citizens. Although Lash has never written anything substantial about Indian law, Indian law is the source of a crucial analogy which he uses to argue for an exception to birthright citizenship that did not exist in 1868. I'll show that the analogy doesn't work.
Loyal Slaves? Loyal Confederates?
As Lash recognizes, the most damning defect of allegiance-based accounts of the Citizenship Clause which turn upon reciprocal consent (on the part of citizen to allegiance and the sovereign to protection) is that they cannot explain how the Clause performed the function that literally everyone (even DOJ lawyers defending the anti-birthright EO) agrees that it was designed to perform: the nullification of Dred Scott v. Sandford. Neither enslaved people nor their children consented to be kidnapped and imported as property into the United States, and the United States did not consent to the foreign slave trade either following a congressional ban in 1808. No theory of reciprocal consent can, I think, overcome the Dred Scott problem, and I think Lash agrees.
But recall that Lash does link birthright citizenship to parental allegiance and conceptualizes allegiance as loyalty to sovereign power. Just how is it that people forced into the United States and subjugated by the laws of enslaving states can be determined to be loyal to the United States? Why would they (in Lash's terms) have "fidelity towards" sovereign power of that nature?
Lash's solution to this apparent problem is an extraordinarily strong presumption in favor of loyalty. How strong? Strong enough that Lash can assert that "[n]othing about that context suggests, much less involves proof of, refused or counterallegiance."
Seriously? It seems obvious that any presumption in favor of the loyalty of enslaved people to the sovereign on whose soil they were enslaved would be unwarranted. What of the countless souls who tried to flee slavery? Were those who agreed (as Frederick Douglass initially did) with William Lloyd Garrison that the Constitution of the United States was a covenant with hell, loyal to the United States? Was Douglass loyal to the United States when he offered a qualified defense of killing slavecatchers who were empowered by federal law? Was he disloyal, then loyal? These are puzzles that Lash created for himself.
I applaud Lash for uplifting the general strike through which enslaved laborers emancipated themselves before Lincoln proclaimed their freedom. But the more straightforward explanation for the citizenship of the children of enslaved people does not depend upon this momentous act of collective liberation. It is the conventional one in Citizenship Clause scholarship: Children who are born in the United States and subject to its unmediated sovereign power are citizens.
So, too, does Lash struggle to explain the Republican consensus in favor of the citizenship of the children of Confederates. If any parents manifested their disloyalty towards the United States, it would be Confederate parents. Lash responds by labeling the Confederacy a conspiracy and thus subsuming it within a broader category of "criminality." Of course, conspiring to overthrow a government is a crime, but it is more. So, it seems odd to say (as Lash does) categorically that criminality "has no necessary relationship to refused or counter allegiance," and is not sufficient to "rebut the presumed natural allegiance of a child born in the United States." Again, why complicate things with loyalty? On the conventional account, these children are subject to the unmediated sovereign power of the United States—day in, day out, through its lawmaking, enforcement, and adjudicatory institutions—so they are subject to the jurisdiction of the United States.
I assume some originalist readers will regard what follows as an inadmissible "policy" argument. (But see Sai Prakash's intriguing recent argument for the interpretive significance of consequences in Founding-era law.) Still, I can't pass over it entirely. On Lash's account, Reconstruction Republicans chose to codify a constitutional rule that did not exclude the children of Confederates, serial killers, or mob bosses from birthright citizenship but which did exclude the children of undocumented immigrants. Parental criminality as such does not determine a child's birthright citizenship, nor does parental insurrection against the government. But voluntary parental refusal to express loyalty to the United States through the specific means of compliance with laws governing entry into its "sovereign territory" does. As Lash seems to recognize at some level, normatively, it seems problematic to effectively punish children for parental crimes. It seems perverse to punish them for parental border crossing but not for parental insurrection or mass murder.
But we don't have to rely upon our own moral intuitions to be skeptical that the Citizenship Clause was designed to yield such an outcome. Again, we have compelling reasons to think that abolitionists and Republicans attached less moral significance to border crossing than Lash does when it comes to determining whether the children of people who cross borders illegally are to be denied citizenship. Amanda Frost has shown how abolitionist birthright freedom treated a parent's illegal conduct in crossing the border from an enslaving to a free state as irrelevant to the status of the child: the child was free if born in a free state. If Lash is right, Republicans responded to this experience by turning back towards lineage-based citizenship once they held constitutional power. That seems unlikely.
More Exceptions, More Problems
Yet another problem for Lash is the absence of any widely recognized exception to birthright citizenship for the children of unlawful entrants at the point of ratification. This problem is not fatal; it is certainly possible that the Citizenship Clause communicated to the ratifying public a principle which incorporated not only extant exceptions to the birthright citizenship rule but other exceptions that were sufficiently like them. Still, it's also possible that it did not, and it is problematic for Lash to so quickly assume that it did and grasp for analogies.
Suppose, however, that there was indeed a delegation to the future. What was the scope of that delegation? Lash submits that long-recognized exceptions are best explained by his loyalty-based, parent-derived concept of allegiance. Parents who have what Lash calls "counter-allegiance" or who "refuse" allegiance to the United States bear children who lack loyalty.
Lash spends significant time with only three exceptions to birthright citizenship of any practical relevance that had any evidentiary support at all in 1868. The first exception concerned the children of diplomats and their families and staff. The second exception concerned the children of members of occupying armies. And the final exception excluded the children of American Indians from birthright citizenship. None of these exceptions turned on parental loyalty to the United States.
As Michael Ramsey has detailed, the children of diplomats and their families and staff were excepted from birthright citizenship because of the nature of international relations and the legal infrastructure that surrounded them. For most purposes, people in the active service of a foreign nation did not receive the protection of the United States and owed no allegiance to its laws. Any obligations were consensual and strictly delimited. The exception for the children of members of occupying armies was grounded in the lack of practical power that sovereigns have over people in their territory during an invasion. That it did not turn on parental allegiance is evident from the fact that the loyalty of those under occupation did not determine whether their children are birthright citizens. Chris Mirasola points out that what matters is whether the occupation is only temporary or results in the formal annexation of territory, as well as when the child is born.
Finally, the exclusion of American Indians from birthright citizenship is no great mystery and it certainly has nothing to do with parental loyalty to the United States. Republicans, like the abolitionists before them, swore by Worcester v. Georgia and affirmed the sovereignty of Native nations. Sovereignty in Worcester was linked to territory, and leading Republicans made plain their understanding that Tribal citizens on Tribal land, despite being within the boundaries of the United States, did not ordinarily experience U.S. power over their internal affairs. They could not be sued, they could not be prosecuted, they could not be bound by sovereign U.S. power—except to the extent of treaty-based consent. Once again, not parental or any other kind of loyalty but exposure to the unmediated sovereign power of the United States was decisive.
One last note: Lash mentions but devotes no significant discussion to a long-acknowledged exception to birthright citizenship that's been raised by others. This exception applied to birth on foreign public vessels within U.S. territorial waters. Once again, parental allegiance doesn't help us. The United States and other nations treated foreign public vessels as floating parts of foreign nations, even though they might have chosen to do otherwise. So, they didn't subject them to their unmediated sovereign power. That was that.
There is no urgent need for a novel unified theory of the Citizenship Clause, much less this one. The above exceptions are well known and have been long studied by scholars who have traced their common-law origins and documented their development during the antebellum period. None of them resemble the exclusion for which Lash contends in nature or scope, and none of them require Lash's ungainly allegiance framework.
Lost in Indian Country
Lash's case for the exclusion of the children of unlawful entrants turns upon an analogy to the Indian exception. He claims that unlawful entrants are like what he terms "unaligned Indians" who unlawfully left lands reserved to them by treaty, in violation of treaty terms. In both cases, the problem is that the would-be entrant has "willfully decline[d] to present themselves to any sovereign authority and intentionally and intentionally refuse to be subject to the laws regarding entry into the sovereign territory of the people of the United States." In neither case ought their children be entitled to birthright citizenship.
It is true that Republicans left open the possibility of U.S. citizenship for Tribal citizens who renounced their Tribal ties, which would put their children in a different jurisdictional situation. But that doesn't make parental loyalty to the United States determinative of a Native child's birthright citizenship, any more than it would that of a child of a foreign ambassador who had retired from service and become a naturalized U.S. citizen. What ultimately matters for birthright citizenship purposes is U.S. sovereign power over the child, in both cases. The focus on power is evident in the exchanges upon which Lash relies.
Consider these two paragraphs, which appear midway through Lash's discussion of the allegiance of "voluntary unlawful entrants":
During the debates over the Citizenship Clause of the Fourteenth Amendment, Mr. Doolittle reminded his colleagues about the need to exclude the "wild Indians of the plains." Joint Committee Chair William Pitt Fessenden echoed this concern wondered whether the amendment might include unaligned Indians since they fell at least arguably within the "jurisdiction" of the United States. Trumbull could not deny that, as a technical matter, the United States exercised a degree of jurisdiction over all such Native Americans. Antebellum treaties were express on this matter. However, the language of the Citizenship Clause demanded persons born in the United States be "subject to the complete jurisdiction thereof." To be "completely subject" to the jurisdiction of the United States involved "complete allegiance" to the same. As Trumbull summarized, "[i]t is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens."
The reason citizenship for unaligned Indians was inappropriate had little if anything to do with their allegiance to a different sovereign. The problem was a failure of these groups to be positively place themselves subject to the United States. This is why Indians who had left their tribe but refused to present themselves for formal assimilation were not appropriate candidates for citizenship. In terms of the Citizenship Clause, proof that a child was born into such a familial context of "refused allegiance" rebuts the prima facie presumption of natural loyalty to the country of birth.
By "unaligned Indians" Lash means Indians who were "living outside of tribal authority." Lash says that they did not have sufficient allegiance to be subject to the jurisdiction of the United States because they failed to "positively place themselves subject to the United States" through "formal assimilation." But Indians who were Tribal citizens also were not subject to the jurisdiction of the United States—Trumbull said so repeatedly. He insisted that Tribes with which the U.S. treated and members of Tribes with which the U.S. did not have treaties "are not" subject to U.S. jurisdiction and that "[w]e do not exercise jurisdiction over them."
Why, then, did Trumbull speak of "complete allegiance" and "complete jurisdiction"? In fact, he did not speak of "complete allegiance"—this is one of many occasions in which Lash creates confusion by putting quotation marks around phrases that he coined himself, right next to phrases that do appear in the sources. And Trumbull illustrated (in a passage that Lash does not discuss) what he meant by "complete jurisdiction" with specific examples of lawmaking, enforcement, and adjudicatory power to which Native people were not subject in Indian country without treaty-based consent:
Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes, [sic] or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty?
Once again, the conventional wisdom works just fine: Indians were subject to the jurisdiction of the United States to the extent that they were subject to the unmediated lawmaking, enforcement, and adjudicatory authority of the United States.
Nothing that Trumbull or any other credible source says about the extent of U.S. power over Tribal citizens in Indian country describes a reality that remotely resembles that which undocumented people and their children experience. Regardless of the reality on the ground, according to Trumbull, Tribal citizens on Tribal land could not be sued, prosecuted, or bound without treaty-based consent. Denying the children of undocumented people citizenship subjects them to all that power without affording them any protection, contrary to the basic allegiance-protection framework that undergirds Lash's theory. It's what Trumbull said, it was widely covered, and it was common—the stuff of public meaning.
In a since-deleted tweet, Lash came close to recognizing the fatal shortcomings of his own analogy. Here it is:
Although the framers of the Citizenship Clause expressly drafted the provision to address situations involving Native Americans leaving their quasi-foreign reservations and living in the United States without authorization (in "the wild") some scholars insist we cannot reasonably view this history as informing the original meaning or contemporary application. Originalists do not have the option to engage in such anti-historical squeamishness.
I'm not sure which scholars Lash had in mind. But I am certain that within the borders of the United States, neither undocumented immigrants nor their children live on territory that can reasonably be described as "quasi-foreign" and beyond the unmediated sovereign power of the United States. I am certain that the Reconstruction Framers repeatedly, publicly proclaimed that members of Native nations, whether bound to the U.S. by treaty or not, were beyond that power in Indian country. I am certain that they remembered the Trail of Tears and the birthright freedom movement. And I am certain that Lash does not mention any of this.
In the deleted tweet, as in the underlying article, Lash presents himself as a resolute realist, challenging a squeamish scholarly consensus. There is, however, nothing realistic about the picture that he paints of the Citizenship Clause. He ought to have taken more time—to read, to talk to people who have studied the subjects under discussion for years, to circulate more widely.
What was the rush?
