Birthright Citizenship and the Bates Opinion [Updated]Michael Ramsey

In their recent essay defending a narrow view of birthright citizenship under the Fourteenth Amendment (discussed here), Ilan Wurman and Randy Barnett rely heavily on an 1862 legal opinion by Lincoln's Attorney General, Edward Bates.  I didn't include the Bates opinion in my earlier article on the citizenship clause because the opinion seemed of only marginal relevance: (1) it was written before the Amendment was adopted, so it isn't evidence of how people of the time read the Amendment; (2) it does not address the phrase "subject to the jurisdiction" of the United States, which is key phrase in the Amendment; (3) it does not address, or even mention, the categories in the modern dispute (children of lawful temporary visitors and children of persons not lawfully present in the United States); instead it directly addresses only the entirely distinct category of free persons of African descent; and (4) it seems merely to repeat the general understanding of the pre-Amendment common law, derived from the English principle of jus soli, and so is cumulative of other sources discussed in the article.

On a further look, in light of its importance to Professors Wurman and Barnett, I conclude I was right the first time.

Bates' opinion, given in response to an inquiry by Secretary of State Salmon Chase, concluded that a free person of African descent, if born in the United States, was a U.S. citizens.  (Bates distinguished Dred Scott with extraordinary and not very persuasive effort.)  As relevant to the broader question of how citizenship is obtained, Bates' principal discussion runs as follows:

And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural born” right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

That nativity furnishes the rule, both of duty and of right, as between the individual and the government, is a historical and political truth so old and so universally accepted that it is needless to prove it by authority. Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books which, I think, cannot fail to remove all such doubts-Kent’s Com., vol. 2, part 4, sec. 25; Bl. Com., book 1, ch. 10, p. 365; 7 Co. Rep., Calvin’s case; 4 Tenn. Rep., p. 300; Doe v. Jones, 3 Pet. Rep., p. 246; Shanks v. Dupont; and see a very learned treatise, attributed to Mr. Binney, in 2 Am. Law Reporter, 193.

In every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country.

This is simply a restatement of the common law rule derived from England, as his citations above to Blackstone and Calvin's Case illustrate. (Bates was wrong that this rule existed in "every civilized country" but he was right about England.)  As Bates said, "nativity furnishes the rule" subject to narrow exceptions.

Bates then turned to possible exceptions:

I have said that, prima facie, every person in this country is born a citizen; and that he who denies it in individual
cases assumes the burden of stating the exception to the general rule, and proving the fact which works the disfranchisement: There are but a few exceptions commonly made and urged as disqualifying facts.

In the immediately ensuing discussion Bates acknowledged an exception for the "small and admitted class of the
natural born composed of the children of foreign ministers and the like."  He then avoided the question of whether slaves could be citizens as not relevant to the question asked, and rejected arguments that citizenship might be precluded by color or race.  After distinguishing a number of precedents (including Dred Scott), he reached his conclusion:

I give it as my opinion that the freeman of color, mentioned in your letter, if born in the United States, is a citizen of the
United States.

In sum, Bates said the birth in the United States gives U.S. citizenship subject to narrow exceptions including for children of diplomats and possibly for slaves, but not exceptions for race or color.  He didn't mention any other exceptions (ignoring the issue of tribal Native Americans).  In particular he didn't mention an exception for children of temporary visitors.

Professors Barnett and Wurman derive a more sweeping exception from Bates' opinion.  As summarized by Ilya Somin, in a post criticizing their essay:

Barnett and Wurman argue that only people born in the United States at a time when their parents have traded "allegiance" for "protection" truly qualify as under the jurisdiction of the United States. They contend that illegal migrants haven't made any such compact with the US, and therefore don't qualify.

Barnett and Wurman cite an 1862 opinion by Attorney General Edward Bates stating that "The Constitution uses the word 'citizen' only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other." Barnett and Wurman claim the Citizenship Clause is based on a social contract theory under which people enter into a "social compact" with the government, trading allegiance for the protection of the laws.

The Barnett/Wurman view misreads Bates.  The English law, on which Bates relied, did rest on the idea of protection in return for allegiance.  But this relationship did not arise from a compact made by the parents, and Bates nowhere says or implies that it did.  Rather, the jus soli principle he was describing arose from a natural law relationship between the sovereign and the child.  The sovereign owed protection and the child owed allegiance as a result of birth in sovereign territory, entirely apart from consent on either side.  There may well have been people in nineteenth-century America who tried to restate the English natural law rule as one derived from social compact, but that isn't what Bates was doing.

UPDATE:  Professors Barnett and Wurman have a response to critics at Volokh Conspiracy.

FURTHER UPDATE:  Jed Shugerman discusses the Bates opinion in two posts at his Shugerblog:

Birthright Citizenship: Barnett & Wurman’s NY Times Essay and their Bates/Blackstone Double Backfire

Birthright Citizenship, Again: Barnett & Wurman misread Bates again (and they misread Ramsey and me)

Our analyses are closely aligned.  This is an excellent summary from the second post:

Bates’s meaning is not complicated. The notion that citizenship entails both rights and duties is basic. From high school through law school, we discuss and debate what duties and rights does citizenship entail: Voting (a right and a duty)? Jury service (a right and a duty)? A duty to registering for the draft at 18? And a right to protest against the draft? It turns out that was basically what Bates was explicating in discussing African-American citizenship, its implications, and the indicia from different states and from around the world of what citizenship entails: what are the rights and duties that come from citizenship?

In the end, this question also is not complicated. Birthright citizenship is a simple rule, with very, very narrow exceptions that a plain reading of “subject to jurisdiction” would signal to an ordinary reader using common sense: ambassadors and diplomats are not subject to the jurisdiction of where they have been assigned; invading armies do not make themselves subject to jurisdiction (but as one law professor noted today from his experience, allied soldiers in another country are subject to jurisdiction). It is a broad, simple rule…

And that is why the Reconstruction Congress chose it: to simplify and clarify citizenship for all freed slaves, with no “allegiance” tests or oaths (or literacy tests, etc.) as local procedural hurdles or obstacles that would foreseeably frustrate Reconstruction and African-American citizenship.

And a key point from the first post:

Bates never said that allegiance comes before citizenship or that allegiance was a prerequisite for citizenship. Citizenship causes a duty of allegiance.  Barnett and Wurman have their causal sequence backward ...

Their quotation from Blackstone also makes more sense in that light. He was also saying citizenship implies duties of allegiance, not the other way around. ...