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Law & the Courts

Constitutional Originalism Requires Birthright Citizenship

Outside the Supreme Court in Washington, D.C. (Pixabay)

Among the ideas that percolate now and then on the Right is the idea of reforming or eliminating birthright citizenship, the policy by which anyone born on American soil automatically becomes a natural-born citizen. From a policy perspective, there is fair grounds for debate: there are reasonable objections to the abuse of birthright citizenship, but also serious problems of principle and practice with changing it. But from a legal perspective, the answer should be clear: a proper originalist interpretation of the U.S. Constitution, as presently written, guarantees American citizenship to those born within our borders, with only a few limited exceptions.

Whose Birthright?

From a conservative policy perspective, the main complaint with birthright citizenship is how it interacts with illegal immigration: once a child is born on our soil, thus automatically gaining citizenship, his or her parents – even if they have entered and remained in the country illegally – gain a leg up in the struggle to remain. Liberals and progressives may not like the terms “anchor baby” and “chain migration,” and even conservative immigration moderates (like me) may be uncomfortable with how they sometimes get used, but they do describe a real-world issue: the child’s birth on our soil increases the chances that the rest of the family will win the fight to reside here. Indeed, this used to be a bipartisan concern; in 1993, back before he became Democratic Senate Majority Leader, Harry Reid introduced legislation that would have eliminated birthright citizenship for the children of illegal aliens.

All that said, birthright citizenship exists for reasons intrinsic to our American creed that ours is a society you join, not one reserved to those with an ancestral connection to the blood and soil. Any effort to uproot birthright citizenship, even for the children of illegal aliens, would bring us closer to the European problem of a two-tiered caste of citizens and permanently alienated aliens. Tampering with the status quo to root out the abuses might well create more problems than it is worth.

All of that is to say, the policy criticisms of birthright citizenship are legitimate, but they are far from an open-and-shut case. The legal argument, however, is much more open-and-shut.

Wong Kim’s Ark

The Fourteenth Amendment would appear, to the uninformed observer, to grant birthright citizenship: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” And in fact, the Supreme Court, in 1898, settled the question as far as the courts were concerned in United States v. Wong Kim Ark, 169 U.S. 649 (1898)Wong Kim Ark held that the child of legal Chinese transients through the country, born in San Francisco, was an American citizen and could not be excluded from the country. While Wong Kim Ark did not deal with the children of illegal immigrants, its reasoning concluded that the Fourteenth Amendment had adopted the doctrine of jus soli, by which citizenship was conferred at birth rather than through the citizenship of the parents, and thus its logic extends to all born here regardless of parentage:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case…“strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”…Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

(Emphasis added).

Of course, Supreme Court decisions – even very old ones – are not infallible, and originalist scholars and judges sometimes criticize errors of very old vintage. The courts of the 1868-1898 period got more than a few things grievously wrong about the Fourteenth Amendment, and one of the two dissenters in Wong Kim Ark was Justice Harlan, who had also dissented alone two years earlier from Plessy v. Ferguson, the now-infamous “separate but equal” case. Still, the fact that Wong Kim Ark was decided 30 years after its passage places a heavier burden on those arguing that it somehow got the publicly-understood meaning of its words wrong. And Wong Kim Ark was reaffirmed by the Supreme Court to apply to children of illegal aliens as recently as 1982.

Jurisdiction and Its Limits

If there is any basis in the text for excluding anyone born in the territorial United States from birthright citizenship, it can be found in the phrase “and subject to the jurisdiction thereof.” Critics of Wong Kim Ark have generally drawn on the work of Edward Erler of the Claremont Institute, and his arguments have been offered in these pages and others by his Claremont colleagues John Eastman and Michael Anton. Erler argues:

A correct understanding of the intent of the framers of the 14th Amendment and legislation passed by Congress in the late 19th century and in 1923 extending citizenship to American Indians provide ample proof that Congress has constitutional power to define who is within the “jurisdiction of the United States” and therefore eligible for citizenship…

[D]uring debate over the amendment, Senator Jacob Howard, the author of the citizenship clause, attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the U.S. Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.” Jurisdiction understood as allegiance, Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the U.S.

(Emphasis added). This passage has attracted a great deal of controversy, because Erler, Anton and others making this argument have presented this quotation from Senator Howard to say “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” The inserted “or” changes the meaning significantly, if you believe that Howard was simply stating that “subject to the jurisdiction” excluded only those who were excluded from the reach of American law – like the children of foreign diplomats and the children of sovereign Indian tribes – and does not exclude foreigners and aliens generally. The narrower view of what “subject to the jurisdiction” excludes is the argument made at length over at The Federalist in 2015 by James Ho, who has since been appointed to the Fifth Circuit by President Trump.

After National Review and other outlets appended corrections to this quotation, Anton penned a response over at Claremont, and you can read his piece alongside Judge Ho’s if you prefer to get into the weeds; I think Judge Ho has by far the better of the argument in light of the relevant history (including the fact that the 1868 Congress aimed to overrule the then-hated Dred Scott decision, which had stripped birthright citizenship from the children of slaves) and the fact that Anton is placing a heavy weight on the grammatical construction of a political speech rather than a legislative text. The reference to Indian tribes as having a distinct character is, of course, one that recurs in the text of the Constitution and much of American law on things like sovereign immunity and taxation; it is original and fundamental that Native American tribes have a different status than other populations in the United States who did not have pre-existing sovereign status on American soil.

Indeed, as Jake Walker has detailed here and here at RedState, birthright citizenship was the default rule, and embodied in the Constitution’s definition of “natural born citizen” in Article II, even before the Fourteenth Amendment. For example, as Justice Story – one of the leading legal commentators of his day – wrote in 1840:

[A]llegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and, consequently, owe obedience or allegiance to, the sovereign, as such, de facto.

(Emphasis added). James Madison:

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.

(Emphasis added). This is not a definition of allegiance to the sovereign within one’s jurisdiction that depends on having been legally admitted to the country. Which is not surprising: while the right to exclude aliens from the jurisdiction is an ancient attribute of sovereignty, most of human history has not been characterized by airtight borders, enforced by vetting and documentation of new entrants. Laws have always assumed that anyone found in the land should be subject to the authority of the sovereign, regardless of how they got there. That rule applied unless there was some good reason – diplomatic immunity, being a lawful foreign combatant, being a member of a separately sovereign internal group like Native American tribes – to be outside the ordinary reach of the law. This is the legal backdrop that led Edward Bates, President Lincoln’s Attorney General, to write just a few years before the adoption of the Fourteenth Amendment:

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 Fourteenth Amendment, which incorporated Senator Howard’s language, is properly understood to have codified Attorney General Bates’ contemporary understanding. That is what it meant when it was adopted in 1868, and no amount of current political controversy about illegal immigration should lead conservative critics of birthright citizenship to abandon that original understanding.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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