Birthright Citizenship: A Reply to Professor RamseyAndrew Hyman

On the subject of birthright citizenship, Mike Ramsey recently wrote: "it's evident from nineteenth-century international law who might be born in the United States but not be 'subject to the jurisdiction' of the United States: children of ambassadors and other diplomatic personnel."  Okay, but what about nineteenth-century national law, as opposed to international law?

There were two federal statutes in the nineteenth century that seem like very good evidence (at least as good as any international law) as to who might be born in the United States but not be "subject to the jurisdiction thereof".  Those laws are the Civil Rights Act of 1866, and its verbatim reenactment in 1870 (the Fourteenth Amendment took effect in 1868).  Both of those federal statutes said: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."  It seems clear from those national laws that people who were "subject to any foreign power" could not take advantage of birthright citizenship.  That includes diplomats, but it probably also includes people who lawfully belong in a foreign country instead of in this one.  How could someone possibly belong in a foreign country according to the law, and yet not be subject to a foreign power?

The leading case on birthright citizenship was United States v. Wong Kim Ark.  The Court in that case did not explicitly address illegal immigration.  But the Court did explicitly say this:  "In the forefront [i.e. the beginning]...of the civil rights act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms."  The Court therefore wanted people to look not just at international law for the meaning of the Citizenship Clause, but also to the foremost national law on that subject.  And, looking at the general words "not subject to any foreign power," I am hesitant to say that people belonging outside this country are covered by those words.

The Court decided Wong Kim Ark in 1898, long after the Citizenship Clause took effect in 1868.  All I’m saying about Wong Kim Ark is that I happen to agree with its statement about the Civil Rights Act being relevant to the meaning of the Citizenship Clause, and of birthright citizenship, and of the exceptions thereto.  Also, I admit that the language of the Civil Rights Act is not crystal clear, but it does provide a significant elaboration of the Citizenship Clause.  Perhaps the greatest ambiguity in the phrase “subject to any foreign power” is whether it covers legal visitors from foreign countries aside from diplomats, in addition to covering people who are trying to immigrate here illegally.  But either way, the phrase covers the latter, and I doubt that the U.S. Supreme Court would ever overturn the conclusion in Wong Kim Ark that the phrase does not cover the former.  Let me hasten to add: I do not doubt the power of Congress to confer U.S. citizenship on the U.S.-born children of illegal immigrants, and perhaps Congress should do so in many types of cases.  I’m just saying that nothing like it is required by the Fourteenth Amendment.

Mike Ramsey seems to take the position that, if a person is even partly subject to the jurisdiction of the United States, then citizenship at birth is a constitutional right.  But, if a foreign government waives diplomatic immunity as to parking tickets for all its diplomats in the United States, then birthright citizenship kicks in per the Citizenship Clause?  That seems unreasonable.  Relatedly, suppose that Congress decides to treat people who are unlawfully present in the United States pretty much the same way as Congress already treats diplomats; would Mike then say that there’s no more constitutional right to citizenship at birth for such immigrants? 

Getting back to the Civil Rights Act and its language about being “subject to any foreign power,” one might ask what difference it makes whether a foreign citizen is trying to establish permanent residence in the United States legally or illegally?  To my mind, a person is more subject to a power that he cannot lawfully emigrate from, as compared to a power that he can lawfully emigrate from.  In that sense, people in the United States unlawfully are more subject to a foreign power than if they were here lawfully.