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07/11/2011

Originalism and Birthright Citizenship (Part 3)
Michael Ramsey

In previous posts (here and here) I argued that the Fourteenth Amendment guarantees birthright citizenship to children born in the United States of alien parents (except those having diplomatic immunity or otherwise beyond the legislative power of the United States).  This conclusion follows from the Amendment’s text, which grants citizenship to all people “born … in the United States and subject to the jurisdiction thereof,” because the nineteenth century meaning of “subject to the jurisdiction” of the United States meant within the United States’ legislative power.

When the interpretive focus is placed on the contemporaneous meaning of the text, I think this conclusion should be relatively non-controversial.  I’m not aware of any pre-drafting interpretation of “subject to the jurisdiction” that gave that phrase a narrower meaning, and advocates of a narrow meaning have (so far as I’m aware) not pointed to any.  But if the interpretive question is decoupled from the text and restated as a question about the “purpose” of the Amendment or the “intent” of its drafters, matters become, as I’ve suggested, somewhat more difficult.

This difficulty is sharply illustrated by the currently controversial case of children whose parents are in the United States illegally.  How does the purpose or intent of the Amendment’s drafters and ratifiers handle these claimants?  That is quite a hard question, because in the 1860s there were basically no illegal immigrants as we know them today; restrictive immigration laws were still a decade or so in the future at that point.  It is probable that most drafters and ratifiers had no intent at all with respect to this question.  Whether their “purpose” in adopting the Amendment encompasses birthright citizenship for the children of illegal aliens depends on debatable characterizations of their purpose.  We are left to engage in speculative counterfactuals about what the drafters and ratifiers would say on this question if they were alive today or if that question had existed then – the sort of unanswerable questions that critics of originalism like to make fun of.

Focus on the text’s meaning often avoids this sort of fruitless inquiry.  In this instance, for example, the Amendment’s text provides a rule, and we can fit the children of illegal aliens into it with little difficulty.  Children born in the United States to undocumented parents are “subject to the jurisdiction” of the United States, in that phrase’s nineteenth-century meaning, because they are within U.S. territorial sovereignty and can't claim claim diplomatic or similar immunity.  Perhaps it is true that the Amendment’s framers (or at least some of them) had in mind an idea of citizenship that wouldn’t include “citizenship without consent,” as Peter Schuck and Rogers Smith argued in a book by that title – that is, citizenship without the consent of the nation, manifested through formal acceptance of the person (or in the case of a child, the parents) into the nation.    With a textual approach we don’t have to fully resolve debate over Schuck and Smith’s suggestion.  What ultimately matters is what the words mean, not what unexpressed ideas the framers may have had in mind.  This is not to say, of course, that a text's context or statements of a text's framers or contemporaries as to its purpose aren’t relevant to the meaning of the words.  But casting the ultimate inquiry as the meaning of the words provides a better hope of a determinate conclusion, and prevents us being led too far into largely unanswerable questions of what a large group of people collectively were thinking or might have thought.

Putting it this way, however, may raise a more troubling question: why should we today follow a rule with respect to birthright citizenship (or any other constitutional rule) that leads to results the framers of that rule likely never contemplated?  For some versions of originalism (such as those that rely on the wisdom of the framers) this formulation may be especially problematic.  That question is beyond the scope of my current inquiry on birthright citizenship, which is only to ask what rule the constitutional text’s original meaning establishes.  On that point, at least, I think the answer is reasonably clear.  What to do with the answer is an entirely different question.