Roberts embraced the logic of Wong Kim Ark, that the citizenship clause ‘incorporated the common law and granted citizenship to nearly all’ U.S.-born children.
Given the stakes and the extensive body of scholarship on the citizenship clause, the 26-page majority opinion by Chief Justice John Roberts in Trump v. Barbara is surprisingly brisk. On the question of the constitutional scope of birthright citizenship, only Justice Amy Coney Barrett joined Roberts and the Court’s three liberals.
Subjects of the King
Roberts began with English common law, under which birth within the king’s dominions made one a subject owing duties of allegiance, but with exceptions for those born in “discrete areas within his kingdom that were temporarily outside his control. . . . And the same held true for ambassadors (and their families), who were considered—by a fiction of extraterritoriality—to remain on foreign soil and thus ‘under the ligeance’ of their home country.” This extended even to the children of “gypsies” (today known as Roma or Romani) who were legally banned from the country.
Of course, the new United States did not adopt all of the English idea of jus soli, the law of the soil. The king’s subjects were, to the British, subjects for life, while Americans adopted the republican view that a man could change his allegiance — which is why the Constitution empowered Congress to naturalize immigrants into American citizenship. But the sway of common law principles was enduring in this area, as in so many others, which is why one finds early American commentators such as James Madison, Justice Joseph Story, and Chancellor James Kent reaching for it. Indeed, much of the strength of the case for a broad reading of birthright citizenship rests on what American commentators said on the topic before the 14th Amendment, given that a number of its proponents insisted that they were simply restoring the existing law as it applied to white people and ensuring that it would apply to black people as well, regardless of Dred Scott.
Before the War
Roberts cites Lynch v. Clarke, a prominent 1844 case in which New York’s chancery court found that the child of an Irish couple who lived in New York for four years was a citizen by birth. He also cited the dissents of Justice Benjamin Curtis and John McLean:
Justice Curtis wrote, “the received general doctrine has been, in conformity with the common law”—that all “free persons born within” a State are “citizens of the United States.” . . . Justice McLean said much the same. “Being born under our Constitution and laws,” he explained, “make[s] him a citizen.”
That is important background as well. Curtis, the only Whig justice, resigned from the Court in protest soon after Dred Scott, and his opinion was widely quoted by Republicans, including Abraham Lincoln in the Lincoln–Douglas debates the year after Dred Scott. McLean was widely thought to be angling for the Republican presidential nomination. The men who wrote the 14th Amendment knew their opinions well. They also knew what Lincoln’s attorney general, Edward Bates, had concluded in an 1862 legal opinion:
Bates . . . issued a landmark opinion that sought to displace Dred Scott in favor of the common law. Citing the key authorities…Bates rejected the premise that “citizenship is ever hereditary.” . . . “Every person born in the country,” he wrote, “is, at the moment of birth, prima facie a citizen . . . without any reference to race or color, or any other accidental circumstances.” . . . He acknowledged that there were some limits—hence “prima facie,” not “conclusive.”. . . But those exceptions were “few,” simply “the small and admitted class of the natural-born composed of the children of foreign ministers and the like.” . . . To Bates, it was soil—not blood—that “furnishes the rule, both of duty and of right.”
Roberts does not cite Bates’s pithier summary: “I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.”
The 14th Amendment
In Roberts’s view, the line between pre-1866 law and the 14th Amendment was clear: “Even the language of the [Citizenship] Clause is that of the common law,” drawing upon the wording of Lynch and antebellum treatises; Lynch, for example, held that American citizenship extended to “all persons born within the jurisdiction of the United States.” Later, he writes that “Congress chose to use an established legal term and the Clause must be interpreted in that light.”
Roberts essentially embraced the logic of Wong Kim Ark: “What the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States.” In doing so, he invoked Chief Justice John Marshall’s definition in Schooner Exchange v. M’Faddon (1812), a case exempting foreign warships from the jurisdiction of American courts: “the full and complete power of a nation within its own territories.” That definition was cited by the Court in Wong Kim Ark.
Here is where the key line comes in distinguishing Roberts’s view from those of the dissenters. Roberts quotes Marshall:
All sovereigns . . . were understood to have impliedly waived their jurisdiction in “certain peculiar circumstances”—in essence, where exercising jurisdiction would “degrade the dignity” of “foreign sovereigns.” . . . As in the context of jus soli, those peculiar circumstances arose most frequently in the case of “foreign ministers.” . . . “Every sovereign would hazard his own dignity,” after all, if his officials abroad were made to “owe temporary and local allegiance to a foreign prince.” . . . Just like jus soli, a sovereign’s jurisdiction made no exception for those only temporarily present within the sovereign’s territory. Instead, nearly everyone within the territorial boundaries of the United States was “amenable to” the Nation’s jurisdiction. [Citations omitted.]
On this view, the broad language of the citizenship clause is presumptively universal, and the “carefully defined” unenumerated exceptions to “jurisdiction” are construed narrowly to those traditionally recognized as necessary limitations to avoid conflict with foreign sovereigns that would arise when one sovereign claimed authority over another’s official representatives. Certainly, the idea that unenumerated exceptions should not be expanded beyond the traditionally recognized categories is how the courts have read the 13th Amendment: the ban on involuntary servitude explicitly exempts convicts and has been read to exempt a few limited categories recognized in the Northwest Ordinance (which used the same language), such as the military draft, jury service, or sailors at sea who had to complete their voyages.
Conflict with foreign sovereigns plainly would never be a problem with, say, illegal immigrants to America. Or would it? After all, the British still thought their subjects were subjects for life. Some nations in that period, such as China and Sweden, went further and made any emigration from the country illegal. And with the case of transients through the United States, it was very much a live issue in the 1850s and 1860s that America, Britain, and other powers would insist on the right to defend their own people when traveling abroad.
Roberts also cited an 1872 opinion by Attorney General George Williams (who had been a senator from Oregon during the 14th Amendment’s passage), concluding that the child of Austrian parents only “temporarily residing” in New York City was a citizen: “a person born in this country, though of alien parents who have never been naturalized, is, under our law, deemed a citizen of the United States by reason of the place of his birth.”
Roberts notes the strong consensus on this point in American law, but also that it began to erode in the 1880s among scholars who argued for looking to international law rather than the common law for guidance as to where the parents were legally “domiciled.” Roberts noted pointedly that the State Department did an about-face from Williams’s position when Democrats took over in 1885, and he characterized the scholarship of the 1880s as “fundamentally revisionist.” Of course, the dissent in Wong Kim Ark was penned by Chief Justice Melville Fuller, an 1888 Grover Cleveland appointee who remains to this day the only Democratic Supreme Court appointee ever to be confirmed by a Republican Senate.
Where Allegiances Lie
The word “domicile” plays a very large role in the division between the majority and the dissent, although it is worth noting the obvious problem: if people who enter the U.S. illegally and live here for decades are not “domiciled” here, they may be essentially stateless — and surely, if their children are not citizens but have never lived anywhere else, those children are domiciled nowhere at all. It is hard to find support anywhere in the debates or contemporaneous commentary for the view that the 14th Amendment, which aimed to end the Dred Scott approach, would re-create a new class of stateless persons born in America and with no other home. While Justice Ketanji Brown Jackson’s concurrence is hugely overheated in accusing Justice Clarence Thomas’s dissent of trying to bring back Dred Scott, there is a point here about the very sort of practical problem the 1866 Congress was trying to avoid when it drafted the citizenship clause in such broad, universal terms.
As Roberts notes, the point of departure is the dissenters’ more stringent view of “allegiance” in American law than at common law:
Natural allegiance, they contend, was no longer sufficient for citizenship; some greater quantum of allegiance was required. . . . What all these formulations supposedly share is that they turn on domicile—the place of one’s permanent home. The trouble is that there is scant evidence for this dramatically revisionist view. Certainly no one said that such a change had occurred. Indeed, even as the antebellum Americans hotly debated whether the Declaration of Independence had abrogated one aspect of the British common law—that natural allegiance was indefeasible, no matter a person’s desire to expatriate—all agreed that such allegiance was owed in the first place. . . . The Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868.
By contrast, while the debates on the 14th Amendment included a great many references to the common law and to its few, recognized exceptions, “no member of Congress seriously grappled with a domicile-based carveout to the fixed, certain, and intelligible rule of the common law” as set forth in Lynch and other pre-1866 authorities. To Roberts, the complexity of that inquiry argues against reading it as an unwritten element of what looks on its face like a bright-line rule:
A domicile-based qualification would have introduced significant uncertainty. Unlike the easy-to-apply common law, it would be difficult, if not impossible, to lay down any general rule of domicile-based citizenship, as domicile often depends upon the circumstances of each case, the combinations of which are infinite. . . . If Congress intended to hinge citizenship on each individual’s domicile—a question that is sometimes a matter of great difficulty to decide . . . it is reasonable to expect there would have been at least some discussion of the topic. [Emphasis in original; citations and quotations omitted.]