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07/01/2011

Originalism and Birthright Citizenship (Part Two)
Michael Ramsey

Last week I outlined an originalist argument for the citizenship of children born in the United States to alien parents.  This post considers leading arguments for the opposing view.  (These can be found, among other places, in the writings of outstanding academic commentators such as John Eastman, Edward Erler and Matthew Spalding).  I’ll address them under five headings, but they share a common flaw: none provides a plausible alternate reading of “subject to the jurisdiction” (the relevant constitutional text) nor shows why the Fourteenth Amendment cannot mean what it appears to mean. 

1. Redundancy.  My argument is that in the nineteenth century “subject to the jurisdiction” of the United States meant within the United States’ “power of governing.”  But, some writers object, all persons born within U.S. territory were subject to U.S. jurisdiction in that sense, so it would be redundant to say (as the Amendment does) “born in the United States” and “subject to the jurisdiction thereof.”  This objection is wrong on two counts.  First, as discussed in my prior post, the children of ambassadors and others with diplomatic immunity, though born in the United States, were not subject to U.S. lawmaking authority.  Second, in 1868, when the Amendment was ratified, the U.S. had treaties with Indian tribes partially exempting them from U.S. authority, and other tribes in the untamed West were beyond the United States’ practical authority and control.  As this indispensable article by Garrett Epps explains, the Fourteenth Amendment's drafters apparently understood these Indians not to be “subject to the jurisdiction” of the United States (legally or practically), and thus their children, like children of ambassadors, weren’t covered by the citizenship clause.

 2.  Background understandings of citizenship.  As several commentators point out, at the time the Amendment was drafted there was a longstanding view of citizenship incompatible with granting it on merely the accident of birth.  The great eighteenth century international law writer Emmerich de Vattel, who thought citizenship should turn mostly on the parents’ ancestry rather than where the child was born, is just one example.  (These views are summarized in Chief Justice Fuller’s dissent in United States v. Wong Kim Ark, the case that recognized broad birthright citizenship).  But these arguments only show that the Amendment’s drafters might have picked criteria other than mere birth within U.S. territory, not that they did so.  First, while Vattel and related writers represented one strand of thinking about citizenship, there was at least an equal, if not stronger, strand favoring citizenship by birth.  This was the longstanding English rule, and it was adopted by at least some prominent American courts, as a matter of common law, in the early nineteenth century – for example in the 1844 New York case Lynch v. Clarke.  (See the discussion in the Wong Kim Ark case, pp. 663-64).  Second, nothing ties the narrower view of citizenship back to the Fourteenth Amendment’s text: there were competing pre-1868 views of citizenship, but there weren’t competing pre-1868 views of what it meant to be “subject to the jurisdiction” of the United States.

3.  The 1866 Civil Rights Act.  The 1866 Civil Rights Act, the Fourteenth Amendment’s legislative predecessor, had more restrictive citizenship language, giving citizenship to persons born in the United States and “not subject to any foreign power.”  Arguably, this language excludes children of aliens; most foreign powers gave citizenship to children of their nationals born abroad, and thus those children, even if born in the United States, were subject to a foreign power under international law.  This restrictive reading is consistent with the central purpose of both the Civil Rights Act and the Fourteenth Amendment – to guarantee citizenship to former slaves, who would not be claimed as citizens by any foreign power.  Even granting all this, though, it says nothing about how to read the different language of the Fourteenth Amendment.  Perhaps the drafters of the Amendment intended to replicate the meaning of the Act, but if so why didn’t they use the same language?  It seems at least equally likely that using different language showed their intent to reach a different result.  

4.  The drafting history.  Opponents of birthright citizenship claim that some statements in the Amendment’s drafting history show an intent to read citizenship more narrowly.  This may be true, although Garrett Epps – the premier authority on this history – disagrees (see here, and a shorter version here).  But in any event, other parts of the drafting history show both supporters' and opponents' understanding that the Amendment would grant automatic citizenship to aliens’ children.  Senator Cowan, for example, objected that under the citizenship clause “the child of the Chinese immigrant in California is born a citizen.”  California Senator Conness, a supporter of the clause, similarly said “The proposal before us … relates in that regard to the children begotten of Chinese parents in California, and it is proposed that they shall be citizens. … I am in favor.”  (Specific citations are in the article by Professor Epps noted above).  And again, the key is that nowhere in the drafting history, so far as I’m aware, does anyone explain how the “subject to the jurisdiction” language could mean anything other than what it appears to mean.  Stray remarks in debates aren’t enough to overcome the text.

5.  Post-ratification history.  My opponents’ best originalist argument appears to be that the Supreme Court rejected the birthright citizenship of aliens’ children just five years after the Amendment was ratified, in the 1873 decision in The Slaughter-House Cases.  The issue wasn’t directly raised there, and of course the Court reversed itself twenty-five years later in Wong Kim Ark – but I am not thinking of an argument from precedent.  Rather, the argument is (for an originalist) that near-contemporaneous interpretations carry significant weight.  Although I think pre-ratification evidence is stronger (because once language becomes law, people have an incentive to distort it to their purposes), still it takes a bold interpreter to say that language does not mean what people said it meant just five years after it was enacted.  Nonetheless, here the post-ratification evidence seems insufficient.  As this outstanding article by Bernadette Meyler shows, after ratification there was spirited debate over the clause’s meaning, with both sides widely represented.  Further, the Court and other voices on its side did not explain why the Amendment’s text failed to grant birthright citizenship: that is, they did not give a plausible meaning of “subject to the jurisdiction” that excluded aliens’ children.  (They did say that “subject to the jurisdiction” meant “subject to the exclusive jurisdiction” – but that’s not explaining the text; it’s adding a word that isn’t there).

In sum, all five arguments suffer from the same problem: they do not show a plausible alternate meaning of “subject to the jurisdiction.”  Instead they argue that “subject to the jurisdiction” cannot mean what it appears to mean.  But ultimately none succeeds: at most they only show what the Amendment’s framers might have chosen.  More is needed. We need proof that the framers in fact did choose a narrower view of citizenship.  I’m not aware of any evidence sufficient to override the text’s nineteenth-century meaning, which remains the best evidence of what the framers chose.