The Volokh Conspiracy
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Birthright Citizenship is Our Law
New piece on birthright citizenship in English and American law
Over at The Dispatch, I have a new piece on the originalist case for birthright citizenship. President Donald Trump's executive order attempting to strip natural-born citizenship status from children born of undocumented aliens and temporary aliens is facing an uphill climb before the Supreme Court on April 1. The uncertainly about its fate is not whether the Court will strike down the executive order as unlawful but how many votes the White House might get from the justices. Will the loss be unanimous, or merely overwhelming? We'll know this summer.
Meanwhile, some scholars and activists have emerged to lend support to the administration's efforts. A small handful of scholars (including Trump favorite, John Eastman, and my own dissertation advisor, Rogers Smith) had developed a revisionist case on the history and constitutional theory of birthright citizenship many years ago. Since the executive order was issued, a small band of new advocates have joined that revisionist camp in defense of the administration's actions.
Because someone is wrong on the internet, I have been drawn back into debates that once occupied me in seminars in graduate school. The revisionist case is still wrong, and the conventional wisdom is still right. If one wants to defend the Trump executive order, one would be best served by arguing that the original meaning of the Fourteenth Amendment is not dispositive.
The original meaning of the "subject to the jurisdiction" clause of the Fourteenth Amendment is consistent with the principles of the centuries-old English and American common law that predated the adoption of that text. Children born of aliens within the borders of the United States and under American governing authority are natural-born American citizens. I have developed out the principle and logic of the ancient common-law rule in a recently published article, an amicus brief filed at the Supreme Court, and now in The Dispatch. I rather suspect that I'll be presenting additional evidence and arguments on this issue down the road.
From the new article:
The modern legal argument surrounding Trump's executive order turns on the meaning of the phrase "subject to the jurisdiction thereof" in the text of the 14th Amendment. The court last spoke on this issue at the end of the 19th century, declaring "the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms." The court then concluded that "subject to the jurisdiction thereof" was to be construed in light of the common law and American practice. It recognized three standard exceptions to the nativity rule: children born of foreign ambassadors, children born of alien enemies in hostile occupation, and children born as members of an Indian tribe that held itself apart as "an alien, though dependent, power."
. . . .
Historical revisionism is sometimes useful, but in this case it is simply wrong. [Lincoln's attorney general] Edward Bates pointed to the traditional rule and the traditional sources familiar to 19th century American lawyers in his opinion on citizenship early during the Civil War. James Kent, a New York jurist and one of the leading legal treatise writers of the early republic, had summarized the law simply as "all persons born within the jurisdiction of the United States" are native citizens. William Blackstone, the author of the treatise upon which Americans from the Revolution onward relied for their understanding of the English common law, likewise summarized, "Natural-born subjects are such as are born within the dominions of the crown of England." Blackstone restated this in more technical terms, explaining that "within the dominions" was synonymous with "within the ligeance" of the king. Being born within those circumstances created a mutual bond between king and subject, in which the subject owes the king allegiance and the king owes the subject protection. Once established, that bond was extraterritorial; a subject leaving the king's dominion still owed him allegiance and was still owed protection.
. . . . As Blackstone noted, "the children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such." Those children could not themselves be aliens, despite the status of their parents, because they were not "borne in a strange country under the obedience of a strange prince." Conversely, a statute was required in the United States, as it had been in England, to extend citizenship to children of Americans born abroad "in a strange country." By the operation of the common law and the Constitution alone, such children had been born outside the dominion, or the jurisdiction, and were thus aliens by birth regardless of the status of the parents.
