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07/25/2021

There are Better Arguments for Overturning the Insular Cases than the Ones Based Upon the Citizenship Clause [Updated with Comments]
Andrew Hyman

I have no definite opinion about whether the Insular Cases ought to be completely overturned, or cabined, or something in between.  But it does seem like there are better ways of doing it than relying upon the Citizenship Clause.  For some background on the continuing controversy about the Insular Cases see the blog post written a few days ago by my co-blogger Michael Ramsey (who also wrote a law review article about it).  Basically, those cases held that there are two kinds of U.S. territories: “incorporated” territories that are on the way to statehood, and “unincorporated” territories that are not expected to get statehood.  Those cases generally held that residents of the incorporated territories are entitled to full constitutional rights, whereas people in the unincorporated territories are only entitled to a slimmed-down version of the most fundamental constitutional rights.

Most of the current arguments against the Insular Cases are based on the Citizenship Clause which does not explicitly mention territories and therefore is of dubious relevance: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  Back when that clause was ratified in 1868, the term “United States” sometimes referred to the states minus the territories, and various clauses in the Constitution are best read the same way (e.g. the Eleventh Amendment which refers to “one of the United States”).   The Tenth Circuit Court of Appeals recently discussed various textual reasons for reading “the United States” in that narrow manner when it comes to the Citizenship Clause, one of those textual reasons being the clause’s “effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’”  I will get back to this point below, but first would like to list three different originalist arguments for overturning (or cabining) the Insular Cases that seem like much stronger arguments than the one based on the Citizenship Clause:

First, one could argue that unincorporated territories are unconstitutional because they are not within the constitutional power to admit new states.  There is no general power granted in the Constitution to conquer and control the world forever.

Second, one could instead rely upon the Territories Clause which says, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….”  The word “needful” here is significant.  One could plausibly argue that it is not “needful” to recognize constitutional rights that are different depending upon whether a territory is incorporated or unincorporated.    

Third, one could make a more subtle argument based on the Territories Clause.  While it might be needful for rights to apply uniformly in all U.S. territories in order to limit the U.S. government as distinguished from the territorial government, it might not be needful to interfere with the self-government of an unincorporated territory by interceding between the territorial government and its own populace.

Having just summarized a few potentially reasonable constitutional arguments against the Insular Cases, I will excuse myself from trying to summarize possible counterarguments, and will instead return now to the wrongness of using the Citizenship Clause to overturn the Insular Cases.  Although internal congressional deliberations are usually not worth much, at least they can show that an idea might be plausible, and this quote from Illinois Senator Lyman Trumbull falls within that category: “the first section [of the proposed amendment] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.”  It’s not exactly clear what Trumbull meant (e.g. maybe he meant that the word "State" meant "State or Territory" throughout the first section), but in any event the public was not really privy to Trumbull's remark, judging by the zero hits I get at newspapers.com.  The same goes for legislative history on the other side, including the statement by Iowa Congressman James F. Wilson that, “A citizen of the United States is always a citizen of the state in which he resides….”  But there was one person who got a lot of press on this point: Ohio Congressman James Ashley urged (in July 1867 and again in December 1867) that the pending Fourteenth Amendment be replaced with one that includes this language: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state or territory wherein they reside” (emphasis added).  See 40th Congress 2nd Session Cong. Globe 117 (December 10, 1867).  If you check www.newspapers .com, you will find Ashley’s proposal covered in nineteen different newspapers throughout the country, and the list can be expanded by consulting other databases.  So, clearly, the public was very much on notice that the Citizenship Clause did not explicitly refer to any territories, and that a proposal in Congress to do that failed.

Had Congressman Ashley succeeded in his well-publicized effort to alter the Citizenship Clause in 1867, then I would agree the term “United States” in the Citizenship Clause was used in its broader sense, and therefore that the Insular Cases are unconstitutional for that reason.  But he didn’t, it wasn’t, and they aren’t.

MICHAEL RAMSEY RESPONDS: I agree with Andrew Hyman that the Fourteenth Amendment's citizenship clause isn't the principal basis for arguing that the Insular Cases were wrongly decided.  I don't agree at all with his three suggestions as to what the main arguments against the Insular Cases are (particularly the first and third ones).  The fundamental flaw in the Insular Cases is that absolutely nothing in the original Constitution's text, background understanding, contemporaneous commentary or post-ratification practice suggests that there are two tiers of U.S. territories, one entitled to full constitutional protections and the other entitled to only constitutional protections that are "fundamental" (whatever those may be).  The two-tier theory didn't emerge until it became convenient to the U.S.'s imperial ambitions in the aftermath of the Spanish-American War.

As to his idiosyncratic view  that the citizenship clause does not convey constitutional citizenship on persons born in any U.S. territory (including D.C.), I've responded before and won't repeat those arguments.  I'll add only that I don't think Congressman Ashley's proposal adds anything.  Ashley's proposal, it seems to me, had nothing to do with U.S. citizenship.  Rather, Ashley thought there ought to be -- in addition -- a concept of territorial citizenship akin to state citizenship. But since the territories, unlike the states, didn't have sovereignty apart from the U.S. as a whole, that concept made little sense and so wasn't adopted.  That doesn't suggest that people born in the territories aren't U.S. citizens (an entirely different proposition), only that people who reside in the territories (regardless of where they were born) don't have a state citizenship in addition to their U.S. citizenship.  To the extent (if at all) that Ashley thought the clause didn't convey U.S. citizenship on persons born in the territories, his view was inconsistent with the more common understanding (as I've described here).

BRIEF REPLY FROM ANDREW HYMAN: Mike assumes that I don’t think the Citizenship Clause implies any right to birthright citizenship in the District of Columbia. Actually, I would say that birthright citizenship in the District is an indirect implication rather than a direct implication of the Citizenship Clause.  This is because Article I, Section 8 says Congress shall “exercise like Authority” over the District as it exercises over federal enclaves within the states, and since Congress cannot deny birthright citizenship in the latter then it cannot in the former.  I also don’t believe national citizenship disappears if one moves outside of the states and/or outside of the District of Columbia, for reasons that I explained previously.