The Issue of Birthright Citizenship in U.S. Territories is Closely Linked to the Issue of Illegal Immigration
Andrew Hyman
Michael Ramsey and I have had a spirited discussion here on this blog about the first sentence of the Fourteenth Amendment, which says: "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." Essentially, Mike has argued that there is an implicit "might" before the last word of that Citizenship Clause, whereas I think there is an implicit "do."
Accordingly, we have debated whether people born after passage of the Fourteenth Amendment are entitled to birthright citizenship in U.S. territories, or instead a statute or treaty is needed for that purpose. Although not (yet) persuaded, I have learned a lot from the discussion, and from occasional related comments from David Upham and John Vlahoplus. Just for the record, here's the core of the discussion between Mike and me:
Me on November 12, 2020: "Justice Samuel Miller's 'Comical' Interpretation of the Citizenship Clause"
Mike on November 21, 2020: "
Me on November 24, 2020: "Citizenship and Almond Joys"
Mike on June 17, 2021: "Tenth Circuit Rejects Samoans' Bid for U.S. Citizenship"
Me on June 27, 2021: "More Cool Maps as Evidence of What the 'United States' Meant in 1868"
Mike on July 20,2021: "The Nonoriginalist Insular Cases"
Me on July 25, 2021: "There are Better Arguments for Overturning the Insular Cases than the Ones Based Upon the Citizenship Clause [Updated with Comments]"
I’ll just add a couple quick things. First, the interpretation that I've advocated dates a long way back. For example, in 1899, Christopher C. Langdell argued that "United States" in the Citizenship Clause refers only to the states, because, "if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'" As I've pointed out, a proposal to do exactly that was rejected in 1867.
The only other thing that I’d like to mention now is that this discussion about territories is relevant to the well-known ongoing controversy about whether a person, born to parents who are anywhere in the country illegally, becomes entitled to birthright American citizenship. It has long been understood that the words "state wherein they reside" in the Citizenship Clause refers to legal domicile rather than merely presence or property ownership, as Senator Jacob Howard implied in 1866 while correcting a typo: "The word 'State' in the eleventh line is printed 'States.' It should be in the singular instead of the plural number…." This domicile is a condition on both state and federal birthright citizenship, when the Citizenship Clause is read like this: "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 [do] reside."