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11/10/2020

Apportionment, Allegiance, and Birthright Citizenship
John Vlahoplus

Arguments of the President and his amici (the “Appellant Group”) in Trump v. New York (Supreme Court oral argument scheduled for 11/30) go beyond statutory grounds to assert that the Constitution supports or even compels the exclusion of unlawfully resident aliens from the count that apportions seats in the House of Representatives.  These arguments ignore early federal, state, and colonial immigration and naturalization laws.  They are inconsistent with fundamental constitutional principles, and they threaten longstanding precedents governing birthright citizenship and liability for treason.  Some even rely on discredited theories that would restrict or deny birthright citizenship for U.S.-born children of aliens.  The Supreme Court should reject these arguments and decide the case on statutory grounds, even if it analyzes the constitutional arguments using only materials and events through the ratification of the Fourteenth Amendment.

The Appellant Group argues that apportionment historically included aliens only because they were on a path to citizenship.  But early federal naturalization acts applied only to white immigrants.  The group provides no evidence that apportionment historically excluded others.  The group also argues that no federal law restricted immigration before 1875.  But a federal statute forbade entry to Black indentured servants beginning in 1808.  Treasury Secretary Cobb later explained that the statute’s language “leaves no doubt” that Congress “intended to provide in the most unequivocal manner against the increase of that class of population by immigration from Africa.”  Congress also federalized state laws forbidding entry to free foreign Blacks generally in 1803.  As a result of these laws and the prohibition of the slave trade, Secretary Cobb advised in 1858 against granting a vessel permission to depart a U.S. port for Africa for the purpose of boarding Blacks there and bringing them here.  Many other state and colonial laws also forbade immigration.  In 1786 a Virginia group complained that people had been living there for more than a year in violation of one such statute and that “their residence here is illegal.”  Americans were well aware of illegal immigration before the ratification of the Constitution and the Fourteenth Amendment.

The Appellant Group also argues that the Constitution only permits counting “inhabitants,” which they define thickly to exclude unlawfully resident aliens on the ground that they do not reside here permanently with significant ties to the country such as allegiance.  But unlawfully resident aliens owe allegiance to the United States.  Under the common law, alien friends and non-hostile alien enemies residing here are under our general protection, so they owe allegiance and can be held liable for treason.  This is also true for non-hostile alien enemies who arrive after hostilities begin, including those who come for economic reasons.  It is even true for prisoners of war captured here although they enter hostilely and without permission.  In addition, many immigrants who came before the ratification of the Fourteenth Amendment intended to return home, and many did—including forty to sixty four percent of Germans, southern Italians, and Hungarians who arrived in the great wave that began in 1830–50.  The Appellant Group provides no evidence that apportionment historically excluded aliens who intended to eventually return home.

The Appellant Group argues further that aliens in general, and unlawfully resident aliens in particular, must not be allowed “to redistribute ‘political power’ within” the United States through apportionment because that would be “fundamentally antithetical” to principles governing “the sovereign’s rights to define the polity (‘the people’).”  This just recycles an old policy argument asserted as early as 1867.  On the contrary, the Federalist 54 explains the principle justifying counting enslaved persons at all for apportionment, which also applies to unlawfully resident aliens:

In being protected . . . in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society . . . .

The arguments from allegiance and polity track the discredited consent theories of those who would restrict or deny birthright citizenship for U.S.-born children of aliens generally.  In attacking Justice Gray’s opinion in Wong Kim Ark, for example, John C. Eastman claims that Gray was “astoundingly incorrect” in asserting that an alien present in the realm owes obedience “and may be punished for treason.”  But Gray was correct, and Eastman is wrong—as he is about birthright citizenship generally.  The Court should reject the Appellant Group’s constitutional arguments and not allow Trump v. New York to surreptitiously alter longstanding principles governing apportionment, treason, and birthright citizenship.

This post is a shorter version of a paper (with citations) forthcoming in the British Journal of American Legal Studies and available on SSRN here.