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Justice Samuel Miller’s “Comical” Interpretation of the Citizenship Clause
Andrew Hyman

When a law says “X is Y and also Z,” it is ordinarily appropriate to conclude that X is Z, and to do so using an ellipsis: “X is… Z.”  If we apply this logic to the Citizenship Clause of the Fourteenth Amendment, we find that, “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens… of the state wherein they reside.“ Thus, a person whose residence is outside the states is not both (1) born or naturalized in the U.S. and (2) subject to the jurisdiction of the U.S.  This is very straightforward logic.

The Citizenship Clause does not explicitly say why it adopted this rule, but there are several possibilities. First, it may be that a person was not always considered to have been legally born where he was geographically born, and such legal fictions were well known in the 1860s. Second, the name “United States” may be used in the Citizenship Clause in its plural sense, as in Article 2, Section 1 of the Constitution (“the United States, or any of them”). Third, it may be that a person was not to be considered fully subject to the jurisdiction of the United States if his domicile was located in another country, or if he was not in amity with the United States. But the bottom line is that it does not matter which of these three explanations (or others) apply. The fact remains that the Citizenship Clause plainly says that all persons born or naturalized in the U.S. and subject to U.S. jurisdiction have their residence in one of the states; and, as I recently discussed, residence in this context means domicile.

This meaning of the Citizenship Clause is fully consistent with the outcome in the famous case of Wong Kim Ark, which involved a person born in the state of California in 1873 after it had become a state in 1850, while his parents had a permanent domicile there.  To those who may regard this understanding of the Citizenship Clause as stingy, it is vital to remember that its authors were trying to establish an unobjectionable core citizenship principle that would leave Congress free to expand upon that core principle by statute under other constitutional authority, such as the Naturalization Clause.

The interpretation that I've just described is different from the one that the U.S. Supreme Court gave in the Slaughter-House Cases in 1873:

Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

I agree with Professor Bryan Wildenthal that this statement by Justice Samuel Miller is “comical.”  Miller went a bit overboard in trying to sharpen the distinction between state and national citizenship, and he basically rewrote the language of the Citizenship Clause which actually makes quite clear that “all” people born or naturalized in the United States, and subject to the jurisdiction thereof, have their residence in one of the states, and that obviously includes "all" people who qualify as U.S. citizens under the Citizenship Clause.

Justice Miller further wrote that, “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  Miller had to base this assertion on the word “jurisdiction” alone, since he chose to mangle the actual language and structure of the rest of the Citizenship Clause, and of course the Court in Wong Kim Ark flushed Miller’s interpretation of the word “jurisdiction” down the drain: “This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness, as if the case before the court had called for an exact definition of the phrase, is apparent from its classing foreign ministers and consuls together….”  The same lack of care and exactness by Miller undermines his view that residence within a state is not pertinent to the Citizenship Clause’s grant of national citizenship, but the constitutional text certainly says it is pertinent.

In conclusion, I would like to state very directly whether I think the authors of the Fourteenth Amendment meant to require that people be domiciled in a state at the time of birth, in order to get citizenship.  The answer is generally yes as to constitutional citizenship, but no as to statutory citizenship, and for them statutory citizenship was no less valuable to a person than constitutional citizenship.  Not only did the Citizenship Clause allow states to confer state citizenship upon almost anyone at all, but it also left Congress free to confer U.S. citizenship upon almost anyone at all.  And Congress has done so numerous times, both before and after adoption of the Fourteenth Amendment.  I am not addressing here whether Congress has any power to revoke citizenship once granted, though I doubt it.