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Cert Petition and Amicus in the American Samoa Citizenship Case
Michael Ramsey

I've joined a group of scholars in filing an amicus brief in support of the petition for certiorari in Tuaua v. United States.  This is the case (discussed previously here) challenging the bizarre rule that people born in American Samoa (a U.S. territory) are not U.S. citizens at birth (they are "non-citizen nationals").  The brief's argument is summed up in the title of the first section: "All Persons Born Within And Owing Allegiance To The United States Are Citizens."  I think the original meaning of the Fourteenth Amendment plainly supports that proposition.

Here are my previous thoughts on the case, when it was pending at the D.C. Circuit:

Under the first sentence of the Fourteenth Amendment, "All persons born ... in the United States and subject to the jurisdiction thereof, are citizens of the United States..."  American Samoa is a U.S. territory, part of the United States and subject to its jurisdiction.  As the brief explains, in the years prior to the adoption of the amendment, with exceptions not relevant, U.S. law recognized only citizens and aliens -- not any intermediate status.  In particular, there was no doubt at the time that persons born in U.S. territories (not within any state) were U.S. citizens.

This became awkward around the beginning of the 20th century, when the United States acquired overseas territories (especially after the Spanish-American War) with substantial non-White populations.  In the racist climate of the time, the U.S.  government found a way to call these people something less than full citizens.  But the constitutional basis of that status was never made clear, and indeed it seems that there is not one.  Either overseas territories are part of the United States (in which case the inhabitants are U.S. citizens) or they are not part of the United States (in which case the United States lacks authority to exercise long-term sovereign power over them).

Notably, under British law in the eighteenth and nineteenth centuries, inhabitants of overseas parts of the British empire, such as India, were considered British subjects because they were born within the dominions of the British monarch.  See Henry S. Q. Henriques, The Law of Aliens and Naturalization (1906), pp. 63-64.  In contrast, Henriques explains, inhabitants of places under British protection (by treaty, for example) but not formally part of the empire, were not British subjects.  Thus there is little historical ground for thinking that U.S. law, as constitutionalized in the Fourteenth Amendment, would not have similarly seen persons born in the overseas sovereign dominions of the U.S. government as being born "in the United States."

The D.C. Circuit did not accept this argument (although it also did not really do anything to refute it), so the plaintiffs are seeking Supreme Court review.  Ted Olson has joined the case as counsel for the plaintiffs.  Of course, there's no split in authority from the lower courts, so it really depends on the Court being persuaded of the manifest unconstitutionality of the plaintiffs' status.

Noah Feldman discusses the case here, concluding "the D.C. Circuit panel’s opinion almost certainly got the law wrong"  (agreed -- although, since there's no Supreme Court precedent directly on point, I'm not sure how he can say that if he's not an originalist: it's hard to say what the living Constitution view necessarily is).