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11/21/2020

Originalism and Birthright Citizenship (again)
Michael Ramsey

I have posted a revised version of Originalism and Birthright Citizenship (Georgetown L.J., forthcoming) on SSRN.  This should be close to the final version.  Thanks to readers of this blog and of Volokh Conspiracy for helpful comments.

I want to respond briefly to Andrew Hyman's post, in which he argues that the citizenship clause requires birth within a state to acquire constitutional citizenship.  He bases that view on the fact that the clause says all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States "and of the state wherein they reside."

I think this is mistaken for three reasons.  First, there's a plausible alternative reading: that national citizens are also citizens of the state, if any, in which they reside.  Residence outside a state doesn't defeat national citizenship; it only defeats state citizenship.  True, this implies the phrase "if any" into the text.  But I think that's a natural enough implication.  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.

Second, the clause's text doesn't actually say what Andrew reads it as saying.  The key word "reside" is in the present tense.  That indicates that the residence to which it refers is not at a time in the past (at birth) but rather in the present -- that is, wherever the person currently resides.   That's a sensible outcome; one would expect state citizenship to change when one changes one's state of residency.  But if that's right, state residency can't be a prerequisite for national citizenship.  It would make no sense for national citizenship to disappear if one moved outside of the states (say, from Virginia to Washington D.C.).

If the drafters wanted to require birth within a state for national citizenship, they would have written it differently: "... are citizens of the United States and of the state in which they were born."  Or alternatively they could have required birth "within a state of the United States."  Andrew suggests that perhaps "in the United States" itself meant "within a state of the United States."  I respond to this claim directly in the article (Part II.A.)  It's clear from the pre-drafting linguistic background and from drafting commentary that "in the United States" ordinarily included U.S. territories as well as U.S. states, and that the drafters understood it that way.

Third, it's extremely unlikely that the drafters would have wanted to exclude from constitutional citizenship people born in U.S. territories.  I can think of no reason for doing so.  Why would they want, for example, to exclude people born in Washington D.C. from constitutional citizenship?  Further, it's very likely that they would have affirmatively wanted to include people born in D.C. and the western territories.  One of the main reasons for the citizenship clause was to assure constitutional citizenship to freed slaves and other U.S.-born people of African descent (whose citizenship had been questioned in the Dred Scott case). Excluding the territories from the citizenship clause would leave persons of African descent in D.C. and the western territories unprotected.  Andrew says they could be made citizens by statute -- but the point of the citizenship clause was to guarantee a constitutional right of citizenship that didn't depend on (and so couldn't be taken away by) a statute.  Moreover, in light of Dred Scott, it wasn't entirely clear at the time that people of African descent could be made citizens by statute.  The citizenship clause was designed to fix that error; there's no reason the drafters would have fixed it for people of African descent born in states but not for those born in territories.

My touchstone is the original meaning, so if the original meaning is clear I think that's the end of the inquiry even if the results seem odd.  But here the text is anything but clearly in favor of Andrew's reading; at most it's ambiguous, although actually I think the text alone favors my reading.  When the history and purpose of the clause are considered as well, I think it's apparent that it includes people born in U.S. territories as well as those born in U.S. states.  The state residence language adds the right to be a citizen of the state of one's current residence (I agree with Andrew that this means one's primary residence), but it doesn't impose an additional requirement of state residence for national citizenship.