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A Response on Birthright Citizenship
Devin Watkins

[Ed.: For this guest post we welcome Devin Watkins, a frequent writer on constitutional law issues from an originalist perspective].
Concerning the topic of birthright citizenship, I wish to play devil’s advocate for a moment. I support granting birthright citizenship as a policy—which I believe Congress clearly has the power to do—but I have doubts as to it being a constitutional requirement. That doesn’t mean I am convinced that it isn’t required, but I am skeptical.

Michael Anton has spoken of the language of the congressional debates on the Fourteenth Amendment. Reading those quotes, as Mr. Anton has laid out, should at least raise questions. But as Justice Scalia described [Ed.: Quoting Judge Henry Friendly, I believe], “legislative history is like walking into a crowded cocktail party and looking over the heads of the guests to pick out your friends.” Each side can do it, to some extent, and so it can become muddled.

But legislators do not pass laws in isolation, and legislative debates are not always the best source of the original understanding.  Prof. Ramsey has questioned if it applies based on the text and pre-drafting history. In other words, the context in which this amendment was written that could lead one to this understanding of the text without relying upon the legislative debates. So let me do just that, with at least a plausible account of such context (although I agree there are arguments on both sides of this issue).

Let us then return to the life in 1866 when the amendment was proposed. This was after the Civil War and the Radical Republicans were trying to restore the rights of African-Americans which had been oppressed by the south. While the Thirteenth Amendment had prohibited slavery, African-Americans were being oppressed in many of their other rights, which Congress wished to restore.

Key to the Citizenship Clause at issue is that the Supreme Court in Dred Scott had held that citizenship was “confined to the white race.” The radical republicans believed that Dred Scott was wrongly decided and wanted to restore what they saw as the rightful interpretation of the Constitution. To do this, the amendment restored African-American rights to citizenship at birth—along with all other people—to be equal to what had always been the case for white Americans.

But then we must consider what were the traditional rights of white Americans to citizenship at birth that would now be extended to all people. To do this requires going back to English common law, which American courts then adopted, which guided birthright citizenship prior to the Fourteenth Amendment. As the Supreme Court would later note in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the most authoritative English common law case for birthright citizenship, that was adopted by the 1787 Founders, was Calvin’s Case, decided by Sir Edward Coke—probably the most revered of the English jurists by the American founders.

Calvin’s Case lays out the terms by which English subjects would have birthright citizenship. According to Coke, the key question concerning if a person was a citizen at birth was the allegiance of the parents at the time of birth.

This doesn’t mean that the parents must be citizens. Coke describes three relevant types of allegiance. (1) Allegiance “originally is due by nature and birth-right” (birthright citizenship), (2) Allegiance acquired (naturalization) or Denizen (permanent resident), (3) temporary allegiance (visa). As long as the parents, at the time of birth, owed at least temporary allegiance to the government, the child was considered to have allegiance by birth (or what we would call birthright citizenship).

But Coke noted that merely being within the territory wasn’t good enough. He wrote that “neither the climate nor the soil, but [a]legiance and obedience that make the subject born; for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soil, and under his meridian, for that he was not born under the [a]ligeance of a subject, nor under the protection of the King.”

So let us assume for a moment that the Fourteenth Amendment’s Citizenship Clause merely applied this common law definition of natural born citizen to all people rather than just white citizens (as Dred Scott incorrectly interpreted). How would that apply to illegal immigrants?

An argument could be made that it would depend on if they entered the country legally. If they got a visa or otherwise entered legally, at that moment they agreed to follow all the laws of the United States; they agreed to at least temporary allegiance during the time in which they are present in the United States, and the United States choose to allow them to enter agreeing to provide them protection. Even if they later violate the laws, they still agreed to follow them.

If, however, they sneak across the border, by what public act did they agree to follow United States laws or the United States agree to provide them protection? As Coke noted, merely entering the country soil is not enough. It also seems strange to describe the act of violating the United States laws, by entering the country illegally, as even showing the intent by the individual to obey the United State's laws.

Coke in Calvin’s Case often asks if a person who acts to overthrow the government has committed treason to determine if someone owes such a duty of obedience and allegiance to the government. Treason has a unique relationship with citizenship, as the Supreme Court held in Kawakita v. United States (1952): citizens are required to not act against the United States no matter where they are, as they always have a duty of obedience to the United States. Likewise Coke notes that people who enter in amity could be guilty of treason, but a soldier who enters while hostile to the government could not be.

So imagine if a person sneaks across the United States border and attempts to overthrow the United States by committing an act of sabotage. Would that individual be guilty of treason? It seems to me to not depend on if the individual is an agent of a foreign power, but that they never agreed to respect the authority of the United States. Without any even plausible act whereby they agreed to pledge even temporary allegiance to the United States, the prohibition on treason cannot apply to them.

And now we get to the text of the Fourteenth Amendment, which states it only applies to those “subject to the jurisdiction” of the United States. If a person cannot be convicted of treason, they are not truly “subject to the jurisdiction” of the United States.

I hope this illuminates at least a plausible argument to consider on the Fourteenth Amendment’s Citizenship Clause based only on text and pre-adoption history. As I noted at the beginning, I actually support the policy of birthright citizenship for all people born here. But it is far closer question concerning if it is a constitutional requirement.

MICHAEL RAMSEY ADDS:  Here is another originalist defense of the Anton position: Juan Davalos, No, The Fourteenth Amendment Does Not Authorize Birthright Citizenship (at The Federalist, thanks to Mark Pulliam for the pointer).