Originalism and Birthright Citizenship

Originalism and Birthright Citizenship

MICHAEL D. RAMSEY*

The f‌irst sentence of the Fourteenth Amendment provides: “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 re-

side.” This language raises two substantial questions of scope. First,

what does it mean to be born “in” the United States? Does that include

birth in U.S. overseas possessions, territories, bases, or places under

temporary U.S. occupation? Second, what does it mean to be born “sub-

ject to the jurisdiction” of the United States? Does that include persons

born in the United States to parents who are only temporary visitors or

parents not lawfully present in the United States?

The original meaning of the Citizenship Clause’s text indicates a broad

scope for constitutional birthright citizenship as to both places and per-

sons. At the time of enactment, places subject to permanent U.S. sover-

eign authority were considered “in” the United States without regard to

whether they were territorially contiguous or culturally integrated into

the U.S. political system. In mid-nineteenth-century terminology, persons

born within U.S. territory were “subject to [its] jurisdiction” unless excluded

legally by international rules of immunity or practically by military or politi-

cal realities.

But these originalist solutions in turn raise a challenge for originalism

as a theory of modern constitutional interpretation. There is little evi-

dence that the Amendment’s enactors considered or could have foreseen

the modern implications of either question. The United States had no ma-

terial overseas possessions when the Amendment was drafted and rati-

f‌ied. Restrictive federal immigration laws did not materially take hold in

the United States until the late nineteenth century. Application of the

Citizenship Clause thus requires originalism to confront the role (or lack

thereof) of intent in modern originalist theory. Most modern originalists

claim to be bound by the original meaning of the text rather than the

original intent of the enactors. But in the case of the Citizenship Clause,

the text’s resolution of key questions of its scope appears to be acciden-

tal. The Citizenship Clause presses originalism to explain why original

meaning should be binding in modern law when it does not ref‌lect the

enactors’ policy choices. As the Article discusses, explanations are

* Hugh and Hazel Darling Foundation Professor of Law, University of San Diego School of Law.

© 2020, Michael D. Ramsey. Thanks to Larry Alexander, Allan Erbsen, Andrew Hyman, Matthew Ing,

Andrew Kent, Thomas H. Lee, Catherine Powell, Lisa Ramsey, Michael Rappaport, John Vlahoplus,

and participants at Fordham Law School’s Faculty Colloquium for helpful comments, and to Jessica

Bade and Ellen Atkinson for research assistance.

405

available, but they may take originalism away from some of its apparent

common ground.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407

I. BACKGROUND: U.S. CITIZENSHIP IN HISTORICAL CONTEXT . . . . . . . . . . . . 410

A. CITIZENSHIP IN THE ORIGINAL CONSTITUTION AND AFTERWARDS . . . 410

B. CITIZENSHIP, THE CIVIL WAR, AND AFTERWARDS. . . . . . . . . . . . . . . . 416

C. MODERN CHALLENGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421

II. THE ORIGINAL MEANING OF THE CITIZENSHIP CLAUSE . . . . . . . . . . . . . . . 424

A. “BORN . . . IN THE UNITED STATES”. . . . . . . . . . . . . . . . . . . . . . . . . . . 425

1. Pre-enactment Meaning: What Was “in” the United

States in the Nineteenth Century? . . . . . . . . . . . . . . . . . . 426

2. The Drafting History and the Territorial Scope of the

Citizenship Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427

3. Pre-enactment Usage: What Was Not “in” the United

States? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429

4. Post-enactment History: The Insular Cases. . . . . . . . . . . 432

5. Modern Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

B. “SUBJECT TO THE JURISDICTION THEREOF”. . . . . . . . . . . . . . . . . . . . . 436

1. Pre-enactment Meaning: Who Was “Subject to [U.S.]

Jurisdiction” in the Mid-Nineteenth Century?. . . . . . . . . 437

2. The Drafting History and “Jurisdiction” in the

Citizenship Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441

a. Maintaining Prior Exceptions: Diplomats. . . . . . . . 441

b. Maintaining Prior Exceptions: Native Americans . . 442

c. Categories Not Excluded: Children of Aliens . . . . . 445

d. The Citizenship Clause and the 1866 Civil Rights Act 451

3. Post-ratif‌ication Interpretations. . . . . . . . . . . . . . . . . . . . 454

4. Modern Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . 458

406 THE GEORGETOWN LAW JOURNAL [Vol. 109:405

III. ORIGINALISM AND THE ORIGINAL MEANING OF THE CITIZENSHIP CLAUSE 461

A. THE CONSTITUTION’S ACCIDENTAL CITIZENSHIP RULES. . . . . . . . . . . 462

B. ORIGINALISM AND ACCIDENTAL OUTCOMES. . . . . . . . . . . . . . . . . . . . 467

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471

INTRODUCTION

The f‌irst sentence of the Fourteenth Amendment declares: “All persons born or

naturalized in the United States, and subject to the jurisdiction thereof, are citi-

zens of the United States and of the State wherein they reside.”

1

This language

raises two substantial questions of scope. First, what does it mean to be born “in”

the United States? Does that include birth in U.S. overseas possessions, territo-

ries, bases, or places under temporary U.S. occupation? Second, what does it

mean to be born “subject to the jurisdiction” of the United States? Does that

include persons born in the United States to parents who are only temporary visi-

tors or parents not lawfully present in the United States?

Modern law curiously gives a narrow answer to the f‌irst question and a broad

answer to the second. Birth “in” the United States, for constitutional purposes,

means only birth in one of the states or an “incorporated” territory such as the

District of Columbia. It excludes U.S. overseas territories such as Puerto Rico

and American Samoa, whose inhabitants are not constitutional citizens (people

born in Puerto Rico have birthright citizenship by statute while those born in

American Samoa do not).

2

But long-standing practice broadly recognizes consti-

tutional citizenship for almost all persons born “in” the United States in this nar-

row sense, including children of temporary visitors and undocumented migrants.

3

Both propositions have come into recent dispute. Cases brought by natives

of American Samoa have challenged the Citizenship Clause’s geographic

scope, with (so far) inconsistent results,

4

and the American Samoans’ claim has

received substantial academic support.

5

The constitutional citizenship of U.S.-

1. U.S. CONST. amend. XIV, § 1.

2. See Tuaua v. United States, 788 F.3d 300, 307–08 (D.C. Cir. 2015) (discussing citizenship status

of persons born in “unincorporated” U.S. territories); SAM ERMAN, ALMOST CITIZENS : PUERTO RICO,

THE U.S. CONSTITUTION, AND EMPIRE 122–43 (2019) (discussing Puerto Ricans’ failure to obtain

constitutional citizenship and the 1917 legislation giving them statutory citizenship).

3. U.S. DEP’T OF STATE, 8 FOREIGN AFFAIRS MANUAL § 301.1-1(d) (2018) (“All children born in and

subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even

if their parents were in the United States illegally at the time of birth . . . .”); Matthew Ing, Birthright

Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause, 45 AKRON L. REV. 719,

721–23 (2012) (discussing modern practice).

4. Compare Tuaua, 788 F.3d at 302–06 (rejecting U.S. citizenship claims of persons born in

American Samoa), with Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1196–97 (D. Utah 2019)

(f‌inding that persons born in American Samoa are entitled to constitutional citizenship), appeal f‌iled,

No. 20-4017 (10th Cir. Feb. 11, 2020).

5. See, e.g., Brief of Citizenship Scholars as Amici Curiae in Support of Plaintiffs-Appellees and

Aff‌irmance at 31, Fitisemanu, No. 20-4017 (10th Cir. May 12, 2020) (supporting American Samoans’

2020] ORIGINALISM AND BIRTHRIGHT CITIZENSHIP 407