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Originalism and Birthright Citizenship
Michael Ramsey

    Last week I promised a longer discussion of originalism and birthright citizenship.  Here's the first part.

    Do children born in the United States to non-citizen parents have an automatic right to U.S. citizenship?  That’s the current practice, but it’s becoming a matter of controversy.  Bills now pending in Congress would deny birthright citizenship unless at least one parent is a U.S. citizen or legal resident, and as I noted last week at least one Republican presidential hopeful (and likely others) may make it a campaign issue. 

    In my view, the move to scale back birthright citizenship is unconstitutional under the Constitution' s original meaning.  This post sets out the basic textual argument.  A later post will consider counterarguments.

    The Fourteenth Amendment, Section 1, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ….”  The children in question here are obviously “born in the United States,” so the issue is whether they are “subject to the jurisdiction thereof” – that is, of the United States.

    The 1865 edition of Noah Webster’s Dictionary defined jurisdiction as “the power of governing or legislating,” “the power or right of exercising authority” or “the limit within which power may be exercised.”  Another mid-nineteenth-century dictionary defined jurisdiction as “legal authority; extent of power.”  (These quotations can be found in an outstanding article on the subject by Matthew Ing,  p. 10; Ing also shows that in nineteenth-century courts the word “jurisdiction” meant “power over” or “authority over,” much as it does today).

    Whom did the Fourteenth Amendement’s drafters and ratifiers understand to be subject to the United States’ “power of governing or legislating”?  For guidance, we can look to the important nineteenth-century U.S. Supreme Court case The Schooner Exchange v. McFaddon (1812) (pp. 136-44), in which Chief Justice Marshall outlined foreign sovereign immunity.  Marshall began: “The jurisdiction of the nation within its own territory is necessarily absolute …”   As a result, he said, aliens are not “exempt from the jurisdiction of the country in which they are found.”  Rather, “when private individuals of one nation spread themselves through another as business or caprice may direct … they are amenable to the jurisdiction of that country” –  meaning, unsurprisingly, that visitors to a country ordinarily must obey that country’s laws and courts while within its territory.

    Marshall identified three exceptions to this rule: foreign rulers themselves and their property, foreign diplomats, and foreign military forces.  These, he said, even when within the sovereign’s territory are not “within the jurisdiction of the sovereign” and thus are immune from local laws and local adjudication.  Thus, for example, it has long been understood that local laws can't be enforced against foreign diplomats (which is why diplomats notoriously can park wherever they want).

    Discussing the immunity of ambassadors, Henry Wheaton’s widely-read nineteenth century treatise Elements of International Law used the phrase “subject to the jurisdiction” to describe this idea.  Ambassadors and their families and staff were, Wheaton said, in general “entitled to an entire exemption from the local jurisdiction.”  But this exemption itself had a couple of exceptions, including the following:  “If [the ambassador] is a citizen or subject of the country to which he is sent … he remains still subject to its jurisdiction” and “if [the ambassador] is at the same time in the service of the power who receives him as a minister … he continues still subject to the local jurisdiction.” (This is from the 1836 edition, pp. 176-77). 

    Thus Wheaton used “subject to the jurisdiction” of a nation to mean not having immunity from that nation’s “power of governing or legislating” (as Webster's dictionary defined “jurisdiction”) – the same way Marshall used “amenable to” jurisdiction.

    Based on widely-read authorities such as Webster’s Dictionary, Wheaton’s Elements and Marshall’s Schooner Exchange opinion, we can conclude that “Subject to the jurisdiction [of the United States]” had a clear meaning and scope in nineteenth-century language.  It meant within the United States’ power of “governing or legislating”; and it included persons in U.S. territory (because ordinarily territorial jurisdiction was “absolute”), except those with diplomatic and other immunities (most notably ambassadors and their families and staff).

    Under this reading, children of aliens, if born in the United States, would ordinarily be “subject to the jurisdiction” of the United States. First, it’s clear that legal aliens and their children were under U.S. authority and bound by U.S. laws while in U.S. territory (unless they had diplomatic or similar immunity), as Marshall expressly said in Schooner Exchange.  Second, while the United States didn’t have much experience with illegal immigration in the mid-nineteenth century (since this was before most federal immigration laws), illegal status wouldn’t have exempted someone from the United States’ “power of governing or legislating” while in U.S. territory, the way diplomatic immunity did.  Diplomatic immunity and related immunities were narrow exceptions to the otherwise (in Marshall’s words) “absolute” “jurisdiction of the nation within its own territory.”

    In sum, aliens and their children are “subject to the jurisdiction” of the United States, in that phrase’s nineteenth century meaning, if they are present in U.S. territory and don’t have diplomatic immunity (or similar immunities) from U.S. laws.  In my next post I’ll discuss some counterarguments, but this discussion should establish that an initial reading of the Amendment’s text supports birthright citizenship for the children of aliens.