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Tenth Circuit Rejects Samoans' Bid for U.S. Citizenship
Michael Ramsey

A divided panel of the Tenth Circuit held Tuesday in Fitisemanu v. United States that persons born in American Samoa (a U.S. territory) are not U.S. citizens, even though the Fourteenth Amendment says that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States...." I'm disappointed in the outcome, as I think (as I argued in Originalism and Birthright Citizenship) that the original meaning of the Amendment is clear: American Samoa is "in" the United States and thus anyone born there is a U.S. citizen. (Also I joined a professors' amicus brief in support of the claimants.)

Judge Bacharach has an originalist/textualist dissent that (unsurprisingly) I find entirely persuasive.  (And many thanks to him for the citations to my article, though he goes well beyond it in finding historical sources).  On the central point, he begins:

To determine the meaning of the Citizenship Clause, we first consider the public understanding of the phrase “in the United States” from 1866 to 1868. At that time, Congress and ordinary Americans understood that U.S. citizenship extended to everyone born within the nation’s territorial limits who did not owe allegiance to another sovereign entity. This understanding is reflected in (1) the judicial opinions decided by 1868, (2) the dictionaries, maps, and censuses from the era, (3) the debates surrounding the Citizenship Clause, and (4) the common law’s conception of a citizen.

And from further along:

To discern what ordinary Americans meant in 1866 to 1868 by the phrase “in the United States,” we can consider contemporary judicial opinions. In the nineteenth century, “[c]ourts . . . commonly referred to U.S. territories as ‘in’ the United States.” Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405, 426 (2020). For example, in the early part of the century, the Supreme Court observed that “the United States” “is the name given to our great republic, which is composed of States and territories” and “the territory west of the Missouri [was] not less within the United States . . . than Maryland or Pennsylvania.” Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820) (Marshall, C.J.).

Justice Story, riding Circuit, also explained that “[a] citizen of one of our territories is a citizen of the United States.” Picquet v. Swan, 19 F. Cas. 609, 616 (C.C.D. Mass. 1828). About 25 years later, the Court considered whether U.S. tariffs had been properly applied to products coming from outside the United States into the Territory of California after its cession by treaty. Cross v. Harrison, 57 U.S. (16 How.) 164, 181, 197 (1853). The Court answered “yes,” considering the Territory of California as “part of the United States.” Id. at 197–98.

And in 1867, the Supreme Court observed that U.S. citizens included inhabitants of “the most remote States or territories.” Crandall v. State of Nevada, 73 U.S. (6 Wall.) 35, 48–49 (1867) (quoting Smith v. Turner (The Passenger Cases), 48 U.S. (7 How.) 283, 492 (1849) (Taney, C.J., dissenting)).

Plus he has some super cool maps that I wish I'd found for my article.

And on the congressional debates:

Even if we were to look beyond the constitutional text, however, we would find confirmation of the unambiguous meaning of the Citizenship Clause. One meaningful source is the congressional debates leading to the enactment of the Citizenship Clause; the statements in these debates provide “valuable” input on what “contemporaneous opinions of jurists and statesmen” regarded as the “legal meaning” of the Citizenship Clause. United States v. Wong Kim Ark, 169 U.S. 649, 699 (1898). These statements can also provide evidence of the people’s understanding, especially if “there is evidence that these statements were disseminated to the public.” McDonald v. City of Chicago, 561 U.S. 742, 828 (2010) (Thomas, J., concurring in part & concurring in the judgment).

Senator Jacob Howard proposed amending the Constitution to include the Citizenship Clause. Cong. Globe, 39th Cong., 1st Sess. 2869 (1866). The Senate adopted his proposed amendment after considering whether its language extended citizenship to the children of American Indians and Chinese immigrants. Id. at 2890–97. In wording the amendment, Senator Howard drew from Senator Lyman Trumbull’s draft of the 1866 Civil Rights Act. Id. at 2894. Given the reliance on the Civil Rights Act, Senator Trumbull commented on his understanding of the phrase “in the United States,” stating that it “refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” Id. at 2894.

Eleven other Senators spoke, all agreeing with Senator Trumbull. Id. at 2890–97. For example, in discussing the extension of citizenship to children of American Indians, the Senators considered the Ojibwe (Chippewa) people in the state of Wisconsin, the Navajo Nation in the then-territory of New Mexico, and the Tribes in the unorganized “region of the country within the territorial limits of the United States.” Id. at 2892, 2894. No Senator questioned whether residents of the American Indian tribes were “in the United States.” Id. at 2890–97; Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405, 427–29 (2020). Each “knew and properly respected the old and revered decision in the Loughborough-Blake case,” where Chief Justice Marshall had referred to “the United States” as “the name given to our great Republic which is composed of States and territories.” Letter from J.B. Henderson to Hon. C.E. Littlefield (June 28, 1901), reproduced in Charles E. Littlefield, The Insular Cases (II: Dred Scott v. Sandford), 15 Harv. L. Rev. 281, 299 (1901) (quoting Loughborough v. Blake, 18 U.S. 317, 319 (1820)).

News of this debate was carried the next day in the New York Herald, the country’s best-selling newspaper, and other papers. See N.Y. Herald, May 31, 1866, at 1; Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 187 (Yale Univ. Press, 2008); see also N. Y. Times, May 31, 1866, at 1 (carrying the debate); Chi. Trib., May 31, 1866, at 1 (carrying the debate). So the Citizenship Clause was understood to apply to the territories.

This all sounds exactly right to me.  I wish it were not from the dissent.

Thanks to Neil Weare and Josh Blackman for the pointer.

ANDREW HYMAN ADDS: I especially liked Judge Lucero’s footnote 16 in the majority opinion: “Another textual consideration suggesting the Citizenship Clause’s exclusive application to state-born residents is its effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’ U.S. Const. amend. XIV, § 1, cl. 1 (emphasis added).”  This point was previously discussed here on this blog.