Birthright Citizenship: What the Meaning of “in” isAndrew Hyman

This is a brief followup to Mike Ramsey’s recent post about birthright citizenship for babies born to people who have immigrated illegally to the United States.  The Citizenship Clause says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Most of the discussion has revolved around the meaning of the phrase “subject to the jurisdiction thereof” (note the definite article “the” which seems in this context to suggest full rather than partial jurisdiction).  I won’t now add to what was previously said about that phrase.  I just want to now put in a good word for also discussing the meaning of “in.”

To be physically “in” the United States is not the same as being lawfully “in” the United States, and the word “in” in the Citizenship Clause may well mean both physically and lawfully “in” the United States.  Many post-1868 cases support that view.  See, e.g., U.S. v. Tu Joy, 198 U.S. 253 (1905): “The petitioner, although physically within our boundaries, is to be regarded as...stopped at the limit of our jurisdiction and kept there while his right to enter was under debate.”  Or see Zartarian v. Billings, 204 U.S. 170 (1907): “Never having legally landed, of course [he] could not have dwelt within the United States."  Or see Kaplan v. Tod, 267 U.S. 228 (1925) (“The appellant could not lawfully have landed in the United States. . . and until she legally landed ‘could not have dwelt within the United States’”).  Or see Leng May Ma v. Barber, 357 U.S. 185 (1958): “We conclude that petitioner's parole did not alter her status as an excluded alien or otherwise bring her ‘within the United States’ in the meaning of § 243 (h)."  This is all very similar to the ancient diplomatic doctrine of quasi extra territorium (Latin: “as if outside the territory”).

This is not to say that the words “subject to the jurisdiction thereof” do not provide a textual way to resolve the matter.  All I’m saying is that the word “in” could perhaps resolve it too.  There are a lot of subtleties here, not least of which is that being within a legal jurisdiction is not always the same as being within a territorial jurisdiction, which in turn is not always the same as being physically within a territory.

Pre-1868 evidence about the word “in” would be useful.  If there is legitimate doubt about the question, then that counsels against any court overturning otherwise-valid statutes that address the matter.  But the matter should only be considered doubtful once interpretive rules have failed to yield clarity.  See John McGinnis: “the practice of liquidation confirms that for the Framers, clarification of unclear text through interpretive rules comes before any obligation of judicial clarity comes into play” (thanks to Will Baude for the pointer).