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05/19/2017

Benjamin Mendelson: The Geographic Scope of the Citizenship Clause
Michael Ramsey

Recently published in the Texas Law Review, Benjamin Wallace Mendelson: Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause (95 Tex. L. Rev. 873 (2017)).  From the introduction (footnotes omitted):

… In all of the debates surrounding birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been overlooked. The Clause 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.” Few courts, however, have paused to consider what the phrase “in the United States” means because it seems so obvious. At first glance, everyone knows what that phrase must mean. We all looked up at the map of America from our desks in elementary school, the teacher pointed to the states, we memorized them, we took our exams, and that was the end of it.

Recently, however, some courts have had to consider the geographical scope of the phrase “in the United States.” They have ruled that an American military base in Germany, American Samoa, and the Philippines at the time it was a U.S. territory are not “in the United States” for the purposes of the Fourteenth Amendment. Despite the fact that where the United States ends and another sovereign begins is a serious constitutional issue and has obvious implications for the American immigration system, the Supreme Court this past term denied certiorari on this question.

This Note will argue that, from an originalist, historical perspective, all of the recent federal appellate cases interpreting the phrase “in the United States” for purposes of the Fourteenth Amendment have been incorrectly decided, and that if one wishes to stay true to the framers’ intent, the correct interpretation of that phrase is “in the dominion of the United States.” In other words, the framers of the Fourteenth Amendment would have considered anywhere that the United States exercises sovereignty to be “in the United States,” not just the fifty states and the District of Columbia. This would include U.S. territories, military bases, embassies, and other similarly situated locations.

Part I of this Note will examine the English common law idea of citizenship and show how that definition of citizenship crossed the Atlantic. Part II will discuss early interpretations of the Fourteenth Amendment and argue that it codified the citizenship ideas of the common law, specifically the geographical scope of birthright citizenship. It will further assert that early Supreme Court decisions recognized this in dicta. Finally, Part III will analyze recent federal appellate decisions that have interpreted the phrase “in the United States” and argue that those cases have been incorrectly decided from an originalist, historical perspective.

An interesting student note.  As readers of this blog know, I completely agree about American Samoa (see here).  I'm less sure about U.S. military bases abroad -- but the Note makes a good case that I think has not been made before.