The Volokh Conspiracy
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The Dred Scott Challenge or: Why Constitutional Law is Not a Game
Evan Bernick's fourth in a series of guest-blogging posts on birthright citizenship.
I'm a very competitive person by nature, and I like a good challenge. That's a big reason why I play video games, and why I particularly enjoy games by FromSoftware, the powerhouse developer behind Dark Souls, Bloodborne, and Elden Ring. (Especially Bloodborne.) These games are hard—brutally hard, intentionally hard, hard to the point of creating a semiannual debate about whether This Boss Is Too Hard.
I'm not good at FromSoftware games. (This is good.) I can and do beat them, but it's incredibly messy. Who cares, though? For me, it's fun and it's rewarding to finally FINALLY kill the Orphan of Kos or Malenia. It doesn't matter how it gets done, because it doesn't affect anyone else. All that matters is that I overcame the challenge.
Law isn't like this. If it's possible to say what the law is without taking a normative stance concerning whether it is good or bad, law itself is not normatively neutral. It tells people what to do. It confers power upon people to do things that they would not otherwise be able to do—and those things affect other people. It cannot be reduced to force or threats of sanctions, but as the late, great Fred Schauer emphasized, force is rarely entirely out of the picture. If you do law messily, you can harm people.
I bring this up because the harshest critique of anti-birthright arguments that is ever likely to appear in print contends that its targets—Peter Schuck and Rogers Smith (both opponents of the EO, for the record)—adhere to a theory of the Citizenship Clause that would take us back to Dred Scott. Gerald Neuman charges that Schuck and Smith's consent-based account of the parental allegiance necessary for a child's citizenship following birth faces two insurmountable obstacles. First, it cannot nullify the effects of Dred Scott's denial of citizenship to Black Americans. Second, its premises about citizenship closely track those of Chief Justice Taney's infamous opinion.
I'll conclude this series by taking inspiration from Neuman's arguments. I'll show that his charges—grave though they are—stick to consent theories of citizenship. And I'll contend that even if, somehow, someway, you can conjure up a consent theory that can avoid them, you shouldn't do it. The Dred Scott challenge isn't a difficult but rewarding game that ingenious scholars should have an interest in overcoming. It's an invitation to rewrite constitutional text and history in harmful ways.
Antebellum Consent
I've made two claims about the connection between the concept of allegiance and the language of the Citizenship Clause. First, the connection is generally accepted within Citizenship Clause literature. Second, to the extent that the conventional wisdom is accurate, the concept of allegiance which informs the original meaning of "subject to the jurisdiction thereof" is not consensual and the allegiance of parents does not control the allegiance—and thus birthright citizenship—of children. I have not claimed, however, that one cannot find any evidence supporting consent theories of citizenship in the antebellum United States. The trouble for consent theorists is that this evidence comes from the South.
Consider again Lincoln Attorney General Edward Bates's 1862 opinion on citizenship. In affirming that free Black sailors were citizens of the United States, Bates reversed a prior opinion by James Madison's AG William Wirt. Wirt had reasoned that free people of color in Virginia were not natural born citizens because they had not taken an oath of allegiance. For Bates, this was bizarre: "If it be true that the oath of allegiance must either create or precede citizenship, then it follows, of necessity, that there can be no natural-born citizens, as the Constitution affirms, because the child must be born before it can take the oath." Notions of consensual allegiance were not unheard of, even if Bates found Wirt's unusual. But one tends to find them among enslavers.
Antebellum common law concerning citizenship was not copy-pasted from Coke's Institutes. To draw any sharp distinction between jus soli territory-based citizenship and jus sanguinis lineage-based citizenship and claim that antebellum courts rejected the latter and uniformly embraced the former would be misleading. Antebellum jus soli had distinctive contours, and some southern state courts took a consent-based approach to citizenship instead.
What was distinctive about antebellum jus soli? It wasn't just that British subjects became American citizens. Not even was it that Americans rejected as a feudal relic the notion of perpetual allegiance to a sovereign that could never be cast off. The abolitionist movement for birthright freedom emphasized the significance of territory and denigrated the importance of lineage. We can't look past this to the original intentions of (say) Coke in Calvin's Case, for the same reason that we can't look past the Revolutionary-era reception of Coke's report of Dr. Bonham's Case to what Coke really meant to say. For public-meaning purposes, what matters is how Constitution-makers understood the common law, not whether they were in some abstract sense "right" about its glassy essence.
We also can't look past the exceptions to the rule. Mark Shawhan details how courts in the South found ways to deny citizenship to free Black residents, lest they be found to be "entitled to a range of civil rights." Time and again, southern courts pointed to state denial of civil and (especially) political rights as indicative of a lack of consent on the part of the sovereign to their participation in the social compact. They refused to treat territorial birth plus unmediated exposure to sovereign power as sufficient for a child's citizenship—thus, allegiance was demanded but protection not offered. That is an important part of why enslaved people fled for free states and abolitionists worked to turn states into safe havens for birthright citizens.
Consent in Dred Scott
Written by a slaveholder and joined by five other slaveholders, Dred Scott v. Sandford's reasoning is continuous with the consent theory that surfaced in enslaving states. It treats the denial of civil and (especially) political rights to Black people as dispositive of their exclusion from citizenship. It does this because it infers from the denial of rights a lack of consent on the part of the (White) political community to Black citizenship. Territorial birth plus exposure to unmediated sovereign power is considered insufficient absent consent. Here's the key passage:
The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
This has to be wrong. Anyone who said otherwise would immediately discredit their claim to be on the side of Reconstruction Republicans, who roundly rejected Dred Scott and viewed the Citizenship Clause in part as a means of nullifying it. And there are many nonexclusive options to choose from in denouncing it. Here are three:
- Dred Scott is wrong because Black people were included and intended to be citizens of the United States, on the basis of Taney's own evidence
- Dred Scott is wrong because Black people were included and intended to be citizens of the United States, owing to evidence that Taney either didn't or failed to adequately consider
- Dred Scott is wrong because U.S. citizenship, properly understood, does not turn upon the consent of the polity to citizenship at all but on birth in U.S. territory and obligation to follow U.S. sovereign power
Does it matter which route one takes, so long as one gets to the right destination? It does. The text of the Citizenship Clause does not only proclaim Black citizenship, and leading Republicans made uncontradicted representations that it did not only proclaim Black citizenship. So, interpreting the meaning of the Citizenship Clause requires ascertaining which kinds of accounts of what was wrong with Dred Scott Republicans most likely held. Only then can we position ourselves to figure out who other than Black Americans born in the United States are birthright citizens. If Taney misapplied an otherwise-agreeable approach to citizenship, consent-based theories might be unproblematic.
But this just isn't what Republicans said, nor is that surprising given the history canvassed above. Again, just read Bates's opinion, which refuses to treat the denial of a parent's rights as dispositive of whether one's child is entitled to citizenship. Read the legislative debates about the Civil Rights Act of 1866, upon which consent theorists tend to rely because so little in the debate over the Citizenship Clause is helpful to them. Go, do it. You tell me who thought consent was important. I'll wait.
Yeah, it's the Democrats. Men like Hendricks, Rogers, Davis. Again and again, they're the ones complaining about territory-based citizenship and the common law because no one consented to any of that and because the political community just had to be able to deny its consent to the membership of people of "barbarian races." And they're the ones citing Dred Scott favorably.
Is it possible to critique Dred Scott on consensualist grounds? Sure. Options (1) and (2) are available. They are not, however, options that Republicans exercised, making any effort to rehabilitate consensualism by this means ahistorical.
Nullifying Dred Scott
There's another profound challenge facing consent theorists. Even if one could explain Dred Scott's wrongness by deploying a consent theory without doing violence to the relevant history, can one actually use that consent theory to nullify Dred Scott's effects?
Any account of the Citizenship Clause which depended upon the actual consent of either enslaved people or the polity to be bound by U.S. sovereign power would be ludicrous. At the risk of trying readers' patience, I'll make it short: They were enslaved. Actual consent can't be rescued by positing that all Black Americans consented to be citizens of the United States in 1865, just as the United States (via constitutional amendment) consented to make them members of it. It's a theory, sure, but this kind of actual consent just didn't happen in a confirmable way on the scale that would be required to make the theory fit the history. Even if it did, we'd still have the problem that the text of the Citizenship Clause refers to people who are subject at birth to the jurisdiction of the United States. We'd have to establish that the enslaved parents of newly freed, now-consenting people somehow offered the requisite consent, which is so incoherent that it doesn't deserve any further consideration.
Hypothetical consent seems to be the only viable option for consent theorists. One could posit that because the United States demanded that enslaved people comply with its sovereign power, it incurred an obligation to protect enslaved people. Enslaved people didn't actually consent to allegiance-without-protection, but the U.S. demand for allegiance created a protective obligation. Once the U.S. actually honored that obligation, no-longer-enslaved people would be justified in thinking the arrangement a net-beneficial one. Or so one might argue.
Again, I'm not ruling out the possibility that one could come up with a consent theory of citizenship that would (1) explain why Dred Scott is wrong; (2) nullify Dred Scott; and (3) be coherent. I am saying that it isn't worth the trouble. There is a much, much easier way to explain why an outcome that any credible theory of the Citizenship Clause must produce is correct. If you're born in the United States and subject to the unmediated sovereign power of the United States, you're a citizen of the United States.
Game Over
I think I could beat the Dred Scott challenge, if I wanted to do so. I could come up with an elegant theory that explained why, on a consent-based account of citizenship, Dred Scott was wrongly decided and the Citizenship Clause nullified it. I think I could do more. I think I could convince you that it was consistent with some legitimate strand of originalism. Perhaps I could even convince you of a theory along these lines that would exclude the children of unlawful entrants from citizenship.
I'm not going to try, and I don't think that anyone should. That's because, as Robert Cover put it, "Legal interpretation takes place in a field of pain and death." It's not a soccer field or a football field, it's not the Lands Between in Elden Ring. Play games with the Reconstruction Constitution, and people will suffer, bleed, die.
I've been a harsh, loud critic of the "originalist" arguments against birthright citizenship. It's been suggested to me that there must be something beyond disagreement, even strong disagreement, about the original meaning of the Fourteenth Amendment. It can't just be that I'm really confident that the conventional wisdom is right, and the contrarians are wrong. Right?
For me, there's no "just" about it. Ultimately, I think that any originalism worth doing—any legal interpretation worth doing—needs to be done in the belief that you're doing something you ought to be doing. I think public officials ought to follow the original public meaning of the Fourteenth Amendment, not only because they promise to do so but because it is substantively good. If you're not even in the ballpark of being right about it because of the way you went about it, you're doing something wrong.
Maybe you don't agree with any of that. In that case, I'll just summarize where I stand on the merits. Whatever one may think of it as a policy matter, the original public meaning of the Citizenship Clause guarantees citizenship to the children of unlawful entrants and temporary visitors. The anti-birthright EO is unconstitutional, and those who continue to defend any part of it are doing so in the face of overwhelming evidence that the conventional wisdom—vindicated by state-of-the-art originalism, applied by scholars across the ideological spectrum—is correct. I don't question their sincerity. I do doubt their methods and results, and doubt that any good can come of their continued advocacy on behalf of demonstrably erroneous positions.
I'm grateful for the invitation to put this series together, and for readers' patience with some very long (probably too long) posts. But honestly? I hope this is game over.
