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11/24/2020

Citizenship and Almond Joys
Andrew Hyman

This blog post is in reply to Mike Ramsey’s recent post about birthright citizenship.  The Citizenship Clause says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens…of the state wherein they reside.”  In my opinion, this means if you’re born or naturalized while domiciled outside the states, then you’re not both (1) born or naturalized in the United States, and (2) subject to the jurisdiction of the U.S. 

Mike disagrees, writing that it would be plausible to read the quoted sentence like this: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens…of the state, if any, wherein they reside.”  Mike considers the words “if any” to be implicit, and he gives an analogy:

Suppose I tell my kids: if you eat your dinner, you can have a slice of pie and the candy in your pocket.  One kid does not have any candy in his pocket.  In my view (and, I'm sure, in his), he can still have pie.  I meant "...and the candy, if any, in your pocket."  Having candy in his pocket isn't a prerequisite for having pie; it's just a prerequisite for having candy.

I suggest we slightly modify the statement: “if you eat your dinner, you can have a slice of pie and the Almond Joy in your pocket.”  Here I have replaced “candy” with “Almond Joy” because the latter is binary (either you have the Almond Joy in your pocket or you don’t), whereas the word “candy” could be anything from zero to lots and lots.  The Citizenship Clause is also binary; either you’re born in a state or you’re not.  I agree with Mike that the offer by the parent probably does suggest that a kid with no Almond Joy in his pocket would be entitled to pie if he finishes his dinner.  But, I also think that the parental statement would mistakenly assume that the kid did have an Almond Joy in his pocket.  That mistake might not vitiate the offer, but it would still be a mistake, and I don’t think it’s proper to interpret a clause in the Constitution as mistaken, especially when there’s a plausible non-mistaken interpretation available. Sometimes it is okay to judicially correct an error in a statute (e.g. by inserting “if any”), but only if “failing to do so would result in a disposition that no reasonable person could approve” (per Justice Scalia).  If I am correct that it’s not appropriate to imply the words “if any” into the Citizenship Clause, then “the United States” in this context must include only the states, because I do not think any other meaning would make sense in the Citizenship Clause.  

Mike assumed that I believe national citizenship “disappears if one moves outside of the states,” but I don’t believe that. The Citizenship Clause is all about who gets citizenship, not about who loses citizenship.  Senator Jacob Howard was a lead author of the Citizenship Clause, and he explained: “I take it for granted that when a man becomes a citizen of the United States under the Constitution they cannot cease to be a citizen, except by expatriation or the commission of some crime by which his citizenship shall be forfeited."  I agree with Howard.

Mike suggests that the drafters could have adopted my interpretation by writing "... are citizens of the United States and of the state in which they were born."  But, actually, that would have removed the guarantee of state citizenship when a citizen of one state moves to another state, and I believe that guarantee is an important part of the Citizenship Clause.  Moreover, this language that Mike suggests would no longer require that constitutional birthright citizenship be unavailable to people whose domicile is outside the states.  Also, this language Mike suggests would be just as susceptible to improper insertion of the words “if any” like this: "... are citizens of the United States and of the state, if any, in which they were born."

 Mike’s draft article acknowledges that the framers wanted to exclude from constitutional citizenship people born in places under temporary U.S. control, so I’m not sure it would have been a big leap in their minds to exclude from constitutional citizenship people born in places under temporary federal control that would soon become states.  The lead definition of “citizen” in Bouvier’s Law Dictionary was “One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers….”  People in the territories obviously could not do that, and hence it would have been rational to not consider them “citizens.”  As Iowa Congressman James F. Wilson said during debate on the Fourteenth Amendment, “A citizen of the United States is always a citizen of the state in which he resides….” Mike is correct that “Excluding the territories from the citizenship clause would leave persons of African descent in D.C. and the western territories unprotected,” but white people in those places would be equally unprotected, and neither white people nor black people in those places would be subject to the great evil that the Fourteenth Amendment was meant to address: racist state governments.  Moreover, Congress could extend citizenship to them by statute, having overturned the citizenship holding in the Dred Scott case which involved a man who had been born in the state of Virginia; Mr. Scott was born in Southampton County, Virginia around 1799.