[Ed.: the following comments are from reader Kenneth Barr, regarding Richard Epstein's essay noted here and Andrew Hyman's draft paper available here. They're generally in line with my thinking on the matter, though I don't necessarily agree with them on specifics (but I might). The comments have been lightly edited.]
(1) Professor Epstein’s claim that the gist of Justice Gray’s opinion in Wong Kim Ark is that the son of Chinese immigrants “could not be barred from a return to the United States because, as the child of lawful residents, he consistently held and asserted U.S. citizenship from birth, which was rightly awarded as an incentive for these individuals to strengthen their allegiance to this country” is curious as Justice Gray says nothing remotely along these lines. The gist of the opinion is that we adopted the English common law both under our original Constitution and in the 14th Amendment using the language of territorial jurisdiction that makes clear everyone who is included and excluded from such rule. Of course, Wong Kim Ark didn’t discuss illegal aliens. Assault rifles didn’t exist when the Constitution was written, however, we strive to understand the original public meaning of the language and apply it to modern circumstances like many other provisions of the Constitution. Justice Gray clearly defines what the language means and the bottom line is that there is no way to exclude children of undocumented or temporarily resident aliens without completely ignoring the text or making up one’s own definition of “jurisdiction”, which unfortunately we see being done by opponents of birthright citizenship.
(2) Justice Gray looked to the international law of territorial jurisdiction, the only law of jurisdiction with respect to a nation’s jurisdiction over persons in its territory that existed at such time, and looked to Justice Marshall’s opinion in The Exchange, which was the seminal case on the international law of jurisdiction and was cited or followed by the treatises on public law of the time. For example, “[e]very independent state has full and complete jurisdiction over all persons and things physically situated within its territorial limits, whether those persons and things are permanently or transitorily present.” John Norton Pomeroy, Lectures on International Law in Time of Peace, pg. 202 (1886). To name a few more of the many treatises, Henry Wheaton, Elements of International Law, (1842); Joseph Story, Conflict of Laws, pg. 23 (1841); Henry Wagner Halleck, International Law: Or, Rules Regulating the Intercourse of States in Peace, pg. 162 (1861); Sir Edward Shepherd Creasy, First Platform of International Law, pg. 175 (1876); George Breckinridge Davis, Elements of International Law, pg. 54-55 (1884); Freedman Snow, International Law, pg. 31 (1898). There was no concept of domicile relevant to territorial jurisdiction under international law. Treatment of temporary residents was a matter of comity or curtesy, not a lack of jurisdiction. In the words of publicist Traver Twiss “to be resident within the territory of a Nation is to be subject to its Jurisdiction; but Nations, from considerations of mutual Comity, do not apply the same Laws in all matters to persons who are only temporarily resident, as to persons who are permanently resident within its territory”.
(3) Andrew Hyman only cites Story anonymously stating domicile can “found or destroy jurisdiction,” where a few sentences later Story made clear he is talking about being subject to the jurisdiction of the courts (a matter of municipal legislation and not relevant to the jurisdiction of a nation over persons born on is soil), and in the next paragraph tells us children of temporarily resident aliens are generally subjects of the country they are born in.
(4) Professor Epstein stating that “there is no record of any parent claiming that their children born in the United States were citizen” is curious as is he seems to be claiming he looked at all antebellum records. He clearly missed Lynch v. Clarke, the seminal antebellum case on citizenship that was cited by everyone, that was about a child of a temporary resident alien claiming citizenship. It is simply a historical fact that prior to 1866, and for two decades afterwards, the government granted passports to anyone who could prove native birth, as the application did not even ask who the parents were, much less whether their residence was temporary or what was their domicile was. The Justice Department and State Department had said we followed birthright citizenship. See Galliard Hunt, United States Dept. of State, The American Passport, pg. 49 (1898). Such was also the case with protection certificates given to sailors to prove their U.S. citizenship. Since individuals were declared citizens by our government based on native birth alone and weren't even asked whether their parents' residence was temporary, why would there be records of children of temporary residents claiming citizenship? I would turn this around and challenge Professor Epstein to find a single instance where such a person was denied citizenship, or any actual legal authority that said such persons were excluded. Such authority does not seem to exist as all authority of note, and there is a mountain of it, appears to say we followed the common law where temporary residency was irrelevant. I don’t think Andrew Hyman’s citations are helpful. He cites a West Virginia state case where he is actually quoting the argument of counsel for the appellant and not the opinion of the court, which starts a few pages later and hence is not authority at all. Justice McLean’s dissent in Dred Scott is not relevant authority as the issue in the case was whether the federal court had jurisdiction under the Judiciary Act for a case between a citizen of one state and a citizen of another state; he opined that “any individual who has a permanent domicil” would be deemed a citizen of the state for purposes of such Act. McLean is not talking about who is a citizen at birth or stating domicile is a necessary component of citizenship. Obviously, a natural born citizen who domiciles overseas is still a citizen but may not be able to sue under the Judiciary Act if not a citizen of a state. One should note that Taney’s majority opinion in Dred Scott rejected the notion that national citizenship is based on state citizenship, as did Lynch v. Clarke, Ludlum v, Ludlum and most other authority by such time, including the framers of the Amendment. Such notion never made sense once we deemed persons in territory acquired by treaties to be citizens by treaty when such persons never stepped into a state.
(5) Professor Epstein is wrong that the Civil Rights Act excluded foreigners. The Civil Rights Act language does not say “being a subject of a foreign power”. It says “subject to a foreign power” as in subject to the jurisdiction of a foreign power which is what its author, Senator Trumbull, and others in such Congress said it meant, with Trumbull saying in a later Congress it, and the 14thAmendment, were declaratory of the common law and only excluded children of ambassadors. Read this way the clauses are just mirror images of each other, as under international law the only people on our soil who are subject to the jurisdiction of a foreign power are the people who are not subject to our jurisdiction. There was no enumeration of exceptions, as Trumbull thought the “not subject to a foreign power” language excluded Indians but added the “Indians not taxed” when some people weren’t sure. He refused to add the same language in the Amendment when one Senator insisted it meant actually paying tax rather than subjecting oneself to our tax laws by leaving one’s tribe. Regardless, it was made clear in the legislative history of the Act that they were adopting the common law as such was expressly stated, that the Act only excluded children of ambassadors and that children of aliens were citizens, a point repeatedly made without objection -- though one Senator voted against the Act because he was told it included children of Chinese aliens. No one said merely being deemed a subject under foreign law prevented U.S. citizenship, which would be absurd as members of this Congress were surely aware, as it was discussed at length in the very next Congress, that perhaps half of our citizens were dual citizens as, for example, a child of a citizen born on our soil was a British subject if his grandfather was an immigrant, whether or not he was naturalized. We should also note that, in 1868, two years after adoption of the Act, Justice Swayne riding circuit held in United States v. Rhodes that the Civil Rights act was declaratory of the English common law excluding only children of ambassadors, and no other court ever interpreted it otherwise.
(6) Elk v. Wilkens dealt solely with tribal Indians born on a reservation and didn’t say a word about children of aliens or even Indians born off the reservation, who were clearly intended to be citizens under the Civil Rights Act. It held that such tribal Indians were not “completely subject to their political jurisdiction and owing them direct and immediate allegiance,” without defining what these terms meant or why they didn’t apply to tribal Indians. Indeed, there was no concept of “political jurisdiction” under public law or other law at such time as Justice Gray seems to have made up the term out of thin air, which he only defined in Wong Kim Ark as being subject to charges of treason. Justice Gray based his argument on such tribal Indians being born in what we always considered an alien nation, which made them the same as aliens born in a foreign country born under the allegiance of an alien nation; hence they needed to be naturalized just like foreign-born aliens. Thus, if we did treat these Indian nations as akin to alien nations, his holding is perfectly consistent with the common law he lays out in Wong Kim Ark, as person born in a foreign country are not citizens under the common law. In fact, even with being deemed an alien nation, under the common law members of such tribes would be deemed to owe allegiance to the tribes and not the United States, as under the common law persons born on land occupied by a tribal chief not in homage to the king owed their allegiance to the chief and not the king. In Wong Kim Ark, Gray makes clear that children of aliens owe immediate allegiance at birth to the United States, defining allegiance at birth by the common law, and states that they are subject to its political jurisdiction as they are not born in what we consider an alien nation; hence they are subject to our absolute jurisdiction. Gray cites authority that children of aliens owe political obligations that their parents do not, which was consistent with international law, though he doesn’t say such is political jurisdiction. Elk’s claim that emigrants need to be naturalized is irrelevant as people born on the soil by definition are not emigrants and the Court has repeatedly said that naturalization does not apply to native-born persons other than Indians, who are considered foreign born.
(7) Justice Miller’s dicta in The Slaughter-House Cases that anyone with a parent who is a foreign citizen or subject, made without any support or explanation on how the Amendment language can be so construed in the English language, is not persuasive authority as Congress had pointed out a few years earlier that a majority of our citizens had parents that were foreign or dual citizens. This is probably why Miller would later admit he was wrong and stated it only excluded children of ambassadors and children of temporarily resident aliens who took the child out of the country, which means they must have been citizens until they left, and which also makes no sense textually as it seems he was quite confused on the issue. No court followed either of Justice Miller’s interpretations as he provided no support for them, and all courts that actually addressed children of aliens outside of dicta prior to Wong Kim Ark followed the common law interpretation, as well as the vast majority of post-adopting interpretation as such authorities ignored Miller’s dicta that had no textual or historical support.
(8) With respect to Minor v. Happersett, Professor Epstein is simply wrong that “the legal question presented was whether women could be citizens of the United States”. Rather Justice Waite said “[t]he question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.” Justice Waite held that such a women citizen had no right to vote as suffrage was not a privilege and immunity of citizenship, because “[t]he amendment did not add to the privileges and immunities of a citizen” and women had always been citizens and suffrage had never been considered a privilege and immunity of citizenship. He said suffrage was a matter of state law, not that citizenship was a matter of state law. The citizenship discussion was merely dicta to support his claim that women were always citizens. Like Wong Kim Ark, he said “natural born citizen” was defined by the common law but said some people had doubts about children of aliens under the common law that he didn’t need to look into. Had he looked into it he would have found no one questioned the status of children of aliens under the common law, as Wong Kim Ark did in its comprehensive review of the common law and who was a citizen under the original Constitution.
(9) The appeals court case in Ludlum v. Ludlum is in no way inconsistent with Lynch v. Clark. Such court said it agreed with Lynch v. Clark that the question of U.S. citizenship should be defined by reference to the English common law. It agreed with Lynch v. Clark that children of aliens in England were natural born subjects. It agreed with Lynch v. Clarke that children with a British father born outside of England were natural born subjects under the common law and indeed made the most elaborate defense of such proposition in the U.S. or England, a proposition that most authorities in England and the United States rejected.
(10) Andrew Hyman points out that Senator Howard said the Amendment was declaratory of the current law which he defined a few days earlier as “a person who was born within the limits of the United States and subject to their laws". In the debates the language was said to mean whether we had the power to subject people to our laws and accordingly most of the debates was on whether we could or had the power to subject Indians to our laws, with Trumbull arguing -- seemingly successfully as a majority voted with him -- that subjecting Indians to our laws would be prohibited by our treaties, though such topic would continue to be debated in future Congresses as there were skeptics that our treaties prevented our exercise of jurisdiction. Everyone knew what the language meant, they just disagreed on application to Indians. If Trumbull and the other framers where around in 1885 when Andrew Hyman said we subjected Indians to our criminal law, they would have agreed the Indians would be subject to our jurisdiction under their definition.
(11) Andrew Hyman points out that Senator Trumbull did say with respect to the Civil Rights Act that children of temporary residents were excluded. However, in a later Congress he would say both the Act and the Amendment were declaratory of the common law and only excluded children of ambassadors. House Judiciary Chair James Wilson said we adopted the common law in the Civil Rights Act and made clear it included temporary residents. In the 14th Amendment debates, it was made clear that children of temporary aliens were included by Senator Wade, without any objection, and Senator Conness said children of Chinese aliens were citizens despite that the parent were only here temporarily, a theme that will be repeated multiple times in future Congresses when no one contested repeated statements that children of Chinese aliens were citizens even if they were only here temporarily on contracts with a set period. Senator Williams as Grant’s Attorney General ruled that children of temporarily resident aliens were citizens. No member of such Congress even suggested the amendment excluded temporary residents. Such conclusion was also implicit in all the statements that only children of ambassadors were excluded and the statements we adopted the English common law which everyone knows did not include temporary residents. For example, Senator Howard:
“But I held that in the sense of the Constitution every person born free within the limits of a State, not connected with a foreign minister’s family, is born a citizen whether he be white or black.”