Jurisdiction and Residence in the Citizenship Clause
Andrew Hyman
Regarding this Originalism Blog post from Wednesday: People who doubt constitutional birthright citizenship for illegal aliens (and/or legal aliens) often point to the word “jurisdiction” in the Citizenship Clause. But there is another separate feature of the same Clause that points to the same conclusion. The Tenth U.S. Circuit Court of Appeals recently and correctly said that a “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.’” And the phrase "state wherein they reside" in the Citizenship Clause has always been widely understood as referring to legal domicile rather than merely physical presence or temporary shelter. This was no accident. Senator Jacob Howard said in 1866 that, "The word 'State' in the eleventh line is printed 'States.' It should be in the singular instead of the plural number….” That is, a person can have no more than one domicile. The Citizenship Clause could be 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 [if any] wherein they reside.” But the Tenth Circuit was right to doubt that kind of interpretation, and I don’t know of any canon of construction that would justify inserting the words “if any.” The clause makes good sense without those two words. This is also proof about how the word “jurisdiction” was used. People claiming a broad meaning of the word “jurisdiction” in that amendment usually (and correctly) acknowledge that there was also a narrower meaning floating around in the 1860s.