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12/03/2015

Replies to Mike Ramsey and Stephen Sachs on Birthright Citizenship
Andrew Hyman

Recently, I wrote a post about how the concept of “allegiance” is baked into the Citizenship Clause.  Thanks to Mike Ramsey and Stephen Sachs for their comments about that post.  The points they raise are reasonable, but perhaps not decisive. Mike is skeptical that the word “subject” in the Citizenship Clause means “owing allegiance” as I claimed.  While he does not deny that that is indeed one of the dictionary definitions of the word “subject,” and does not deny that the framers of the Fourteenth Amendment emphasized the concept of allegiance in connection with the Citizenship Clause (nor denies that the Supreme Court has done the same), still Mike thinks we should instead select a different definition of the word “subject” by giving greater consideration to the way that word is used in the phrase “subject to the jurisdiction.”  There are two reasons why that argument does not work (for me anyway).

First, it is true the phrase “subject to the jurisdiction of” commonly means “under the power of” when used in connection with the jurisdiction of a court, or (less commonly) when used in connection with the jurisdiction of a legislature.  But the Citizenship Clause does not use that phrase with reference to either a court or a legislature --- it uses those words with reference to a country.  Interpreting “subject to the jurisdiction thereof” to mean “owing allegiance to American power” fits well with the very long history of analyzing citizenship in terms of allegiance.

Second, suppose we do interpret the words “subject to the jurisdiction” to mean “under the power of,” as Mike suggests.  Then we still wind up with “allegiance” baked into the Citizenship Clause.  Here’s why.  Consider the question I previously posed: “if a foreign government waives diplomatic immunity as to parking tickets for all its diplomats in the United States, then birthright citizenship kicks in per the Citizenship Clause?”  The answer is obviously "no", because the “jurisdiction” to which the Citizenship Clause refers is a complete jurisdiction, as the Supreme Court has said (though not necessarily an exclusive jurisdiction).  Throughout American history, the courts of the United States have been powerless to convict any person for the crime of treason unless that person owes “allegiance” to the United States, and this self-imposed limitation upon national jurisdiction demonstrates that the United States lacks complete jurisdiction over people who owe no allegiance to the country.  As Chief Justice Marshall said, “Treason is a breach of allegiance, and can be committed by him only who owes allegiance, either perpetual or temporary.”    I think these two reasons do a good job of establishing that "allegiance" is baked into the Citizenship Clause, though I admit to uncertainty as to which of the two reasons is better.

Moving now to the interesting comment from Professor Stephen Sachs, he wonders what Lord Coke really meant in Calvin’s Case when Coke said that immigrants owe no local allegiance to England except “when an alien that is in amity cometh into England….”  There are reasons for concluding that Coke meant that an alien can be out of amity even if the alien's home country and England are at peace.  In the same case (i.e. Calvin’s Case), Coke said "All infidels are in law perpetui inimici,” which was certainly a nasty sentiment on Coke’s part, but which nevertheless indicated that common law did not treat international peace as dispositive --- nor treat the nonviolence of an immigrant as dispositive --- in determining whether an alien owed allegiance.  For Coke at least, the dispositive question was basically whether England regarded the arriving immigrant as friendly, and vice versa.  It is true that the technical term “alien friend” often meant any alien from a friendly country, but Coke did not use the term “alien friend” here, and Coke’s discussion of infidels proves that he did not mean to use that technical term.  (Just to be 100% clear, I am not remotely suggesting that "infidels" who come to the United States nowadays are necessarily unfriendly, nor that they need to be treated as unfriendly under the Citizenship Clause, but rather am saying that Coke's discussion of infidels shows that he meant the words "alien that is in amity" to have a non-technical rather than technical meaning.) 

For more about how Calvin’s Case may, or may not, affect the debate about birthright citizenship, and for more about what Coke meant by “an alien that is in amity,” see, e.g., this 1999 law review article by Charles Wood.  I'll close by again quoting (who else?) Chief Justice Marshall, who once wrote that people who come into the United States for "business or caprice" under an “implied license” owe a "temporary and local allegiance."  Without the license, no allegiance is owed, and jurisdiction is incomplete.