Born American? A Look At 'Birthright Citizenship’

Authored by Richard Samuelson via RealClearPolitics,

Our political class is aflame, and our lawyer-ocracy is up in arms over President Trump’s executive order limiting the scope of “birthright” (or “soil-based”) citizenship to children of permanent legal residents. Children born to tourists, students from other countries, and others here on a short-term basis, plus people here illegally, are no longer to be regarded as citizens of the United States merely because their mothers happened to be on American soil when they were born.

Is that constitutional? Does the U.S. Constitution demand that virtually everyone born on our soil (basically everyone except for the children of diplomats who, by convention, are under their home country’s laws) be considered a citizen by birth?

Most lawyers and law professors think that the answer is yes. But is it quite so clear? The 14th Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Most of the discussion of this question thus far has focused on the meaning of the phrase “subject to the jurisdiction thereof,” and the prevailing view is that it was meant to include everyone who was, generally speaking, subject to American law. Although the Supreme Court has never ruled on the case of a child born to foreigners who are only here briefly, it has suggested that it would include them in the set of people who are citizens at birth.

Critics of this position hold that the amendment applies to cases in which the U.S. has complete jurisdiction over the person and note that there are ways that the scope of American jurisdiction over citizens and permanent residents is different than for people who are merely passing through – in being subject to the draft (and there had been a draft shortly before the amendment was ratified), to jury duty, and to many taxes (particularly since the people increased American jurisdiction by adding an income tax to the constitution in 1913), among other ways.

These discussions often turn to the debates in the Senate when they were drafting the amendment before sending it to the states so that the people, via their state legislatures, could decide if they wanted to add it to the Constitution. That’s a useful exercise, and it also would be helpful to see more discussion of what the people understood the amendment to mean when they had their state legislatures ratify it. Constitutional law is not legislation. The Constitution, including the amendments to it are the supreme law of the land because we, the people, made them so; so what we understood ourselves to be doing when we approved a text carries more weight than what senators understood themselves to be recommending to the people for approval. Our lawyers tend to think that’s too complicated. But it is not our job to make life easy for lawyers.

As a logical and grammatical matter, the full sentence “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” only applies to people who already reside in a state. “And” in a sentence, per basic rules of grammar and logical construction, means both parts must be true for the full statement to be true. A person who does not reside in a state is not included among the set of people described by the language of the sentence. That is the strict reading of the text. If we are to take the sentence as one having a coherent meaning as a sentence in the English language, it implies that “the jurisdiction thereof” is limited to the kind of jurisdiction that only applies to people who “reside” in a state. Thus far, our discussion has barely considered this aspect of the text. (As I was finishing up the essay, I finally happened upon one article by Andrew Hyman, hot off the press in late January, that takes this into account, but that’s a rare exception.) Can that be a logical reading? It’s actually a fairly clear line. Tourists and others here on a temporary basis are not subject to U.S. jurisdiction in many ways. They don’t have several of the responsibilities of citizens – being subject to the draft, jury duty, paying income taxes, etc. Full-time residents who live and work here are a much closer call. The Civil War era draft included aliens who intended to become citizens. They are subject to more jurisdiction than tourists. And those here in violation of our laws are yet another category.

What is the implication of this? Can it be correct, given the lawyerly majority on the other side? Does it even make sense? Such a reading means that the text would not include people who resided in the Colorado territory before it became a state in 1876. The article Could they have meant that? Hyman finds that the issue was raised in debates over the text of the Amendment in Congress, and a change to include territories was rejected. It would not be unusual for judges, faced with the case of a person born in a federal territory, to decide that the text is imperfect and, therefore, to decide that those who reside in federal territory would also be included. (Implicitly, they would be adding “or territory” to the phrase “state wherein they reside.” Judges often do that sort of thing.) But when they do that, they are adding to the text, bringing what they take to be the spirit of the law, and using it to add to or modify the actual text. Adding those merely passing through the U.S. would be a much larger judicial edit to the text.

As noted above, the key precedent on this subject is an 1898 case, U.S. v. Wong Kim Ark (decided 7-2 by almost exactly the same majority that gave us the execrable “separate but equal” doctrine of Plessy v. Ferguson in 1896), brought by the child of full-time residents of the U.S. who were Chinese nationals. They resided in California when Wong Kim Ark was born; hence the question of how far the line went and whether it included people who don’t reside in a state at birth was not under the court’s consideration in the decision.

Since at least the middle of the 20th century, or perhaps the Civil Rights era of the 1960s, the 14th Amendment has been read to mean that everyone born in the U.S., except those born to diplomats, is a citizen by birth, and as noted, there is a strong consensus among our lawyers that that is the most natural, and therefore correct, reading of the citizenship clause of the 14th Amendment. Interestingly, a Google search finds that the term “birthright citizenship” was almost completely absent from public discussion until roughly 1980. The term may very well have been brought into common use to rebrand the 14th Amendment, and did its work so well that it’s now taken as the common constitutional term. Before that, the law might not have been understood to apply to quite so many cases, and perhaps our language has followed.

According to John Eastman – a leader of the move to limit the cases in which soil makes a U.S. citizen – when we ended a massive guest worker program in the 1920s at the beginning of the Depression, we sent children born to the temporary workers out of the country with their parents, and, apparently, no one said it raised a constitutional problem, implying that people in that era read the 14th Amendment as not including the children of temporary workers among the people who are citizens at birth due to the location of their mother when she gave birth to them.

Lawyers also like to say that our law follows British common law in making all people born on our soil U.S. citizens. We, like the British, follow the Roman jus soli – the law of soil. Yet that term is entirely absent in Blackstone’s “Commentaries,” the leading British legal treatise of the 18th century. It’s also absent in the basic edition of writings of Edward Coke, the leading English jurist of the 17th century, even in Calvin’s Case (1608), a central precedent in this area of English law. To call it jus soli is likely a category error, imposing Roman law logic on Britain’s common law. British law is about allegiance, not citizenship. A Briton by birth has obligations to the king and has no right to choose to cease to be the king’s subject without the king’s consent. As all land in England belonged, per a legal fiction, to the king, being on the king’s soil was a sign that one was under the king’s protection. But location at birth was not the only such sign. Coke’s language in Calvin’s Case seems to deride the notion that soil is fundamental. It’s about being under the king’s protection, and therefore owing him personal allegiance, in a quasi-feudal sense. America, by contrast, began by rejecting that very concept. Recall that that case was about a person born in Scotland after King James VI of Scotland became King James I of England, making him king of two kingdoms at the same time. The court held that because allegiance was to the person of the king, not to England per se, a Scot born after James became King of England can inherit land in England. In America we don’t begin with the premise that lands belong to the government first, and to individual owners second. Moreover, from the start, as a matter of principle, we have embraced citizenship instead of subjecthood, a change that includes the right to choose one’s nationality, the very right the king denied us. It was an act of treason to sign the Declaration of Independence. Someone born on the king’s soil did not have the right to do that without the king’s consent. America has always rejected the law of allegiance. Every American, unlike every Briton then, has had the right to choose not to be an American citizen anymore.

Presumably, changes in the metes and bounds of who is a national by birth follow from that change from subject to citizen, meaning it’s wrong to assume we presumptively follow the common law of allegiance in all other regards. If the principle at the heart of our regime is republican, not monarchical, it follows that the law of citizenship will have a connection to free republican principles in a way that the king’s law allegiance did not. No one disputes that being born on U.S. soil is, generally speaking, an indication that someone is an American citizen by birth, and no one denies that being born on the king’s soil made one a British subject. Similarly no one denies that the child of an American citizen is generally a U.S. citizen. The question is how far the rules extend.

Our first Naturalization Act, passed by the First Congress in 1790, declared that “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” That’s very interesting language. It rejects allegiance and the false binary law of soil or law of blood (jus sanguinis) when constrained by republican principles that are equally “natural.” (In other words, when people tried to claim that Sens. John McCain, Ted Cruz, or Barack Obama were not eligible to be president due to the circumstances of their birth, real or imagined, they forget that the laws of the founding era suggest otherwise.) The child of any American citizen is, per the First Congress, a natural-born citizen, and eligible to be elected president. Note that it says citizenship only follows blood for one generation. It only applies to the children of active citizens, not those who have implicitly repudiated their nationality by living permanently abroad. It is a law for citizens in that sense, not a law based upon blood. That’s where “fidelity” comes in. A law of blood makes that irrelevant. The same logic would likely apply to the nature and extent of the case of soil – hence those who have chosen to “reside” in the United States.

After drafting the Declaration of Independence, Jefferson returned to Virginia and worked on a comprehensive revision of the laws to make them accord with the change from monarchy to republic. His new law of citizenship, approved by Virginia’s legislature, ensured that all children born to current citizens are citizens, and he added, “and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth.” Note the language: Those who make it clear that they intend to reside in and who renounce their fidelity to other lands (not an explicit requirement of the king’s law, according to which the king made you an offer of subjecthood you could not refuse) are citizens, and their children are citizens at birth. That’s the very distinction the Civil War era draft law made, interestingly.

In other words, ascertaining the limit of the law is not a question that can be addressed by the simplistic question of whether we follow a law of soil or a law of blood. The logic of the rule is itself part of the rule. Under the king’s law of allegiance, one set of metes and bounds follows to describe the set of people who are born his subject, and under a law of citizenship, it’s likely that there might be a different set of metes and bounds regarding who is a citizens at birth. It might be, however, that we never really worked through the full implications of that until we were working on the 14th Amendment.

All of that might, on the other hand, have only a limited amount of relevance to the question of children of tourists and of others who don’t “reside” in a state or on U.S. territory (if we expand it to that). Why not? Because we are talking about an amendment, not a full statement of principles or of law. The 14th Amendment was designed to ensure that black Americans were U.S. citizens. In the Dred Scott decision of 1857, the Supreme Court ruled that black Americans, slave or free, were not and could not be U.S. citizens. The first sentence of the 14th Amendment overturned that decision. No one disputes that.

Legal language is general. Did the language securing citizenship to black Americans also secure citizenship for a child born to people who are merely passing through the United States on a short trip? Or when working here on a short-term basis? How far does language guaranteeing citizenship to all who are “subject to the jurisdiction” of the U.S., even if only in the manner of those who “reside,” extend? And beyond that, nothing in the text says that’s a limit. If U.S. law in 1868, when we ratified the 14th Amendment, already held that children born to people in the U.S. as tourists or on a brief business trip were citizens at birth, the 14th Amendment would, obviously, not change that. If some states followed a broader rule and other states followed a narrower rule before then, it presents a complicated question. There is one case from New York state that declares that a child born to parents who were briefly in New York on a trip is a citizen by birth.

But given how federal our republic then was, it’s likely there was no one single federal common law at the time on this subject, so one precedent from one state, or even a couple of states, would not be definitive. One or two precedents in one or two states in the decades between the founding and the Civil War is not enough to definitively prove much of anything. That is why the actual language that we the people approved when we ratified the 14th Amendment matters. It is not the last word on the subject, but the full first sentence of the 14th Amendment, read as a coherent sentence, is certainly worthy of more consideration than it has been given thus far.

Richard Samuelson is an American historian and associate professor of government at Hillsdale College, Washington, D.C., campus.