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Tuesday, February 15, 2011

Reply to Jack Chin

Professor Chin gets the conversation started, but there are several places where I think he begs the question under considersation.  We're trying to ascertain what the meaning of the 14th Amendment was to those who drafted and ratified it, and in particular whether it was intended to confer automatic citizenship on the children of those who are in this country illegally.

So, our first point of disagreement.  Prof. Chin claims that the 14th Amendment "essentially codified Calvin's Case" and the principal of jus soli it espoused--once born on the king's soil, always the king's subject.   He cites Wong Kim Ark as support for this proposition, claiming that the Supreme Court in that case "held that the language excluded only 'the two classes of cases,--children of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,--both of which . . . by the law of England and by our own law, . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country.' "  But note carefully the location of his quotation marks--"only" is not within them, and it does not appear in the Wong Kim Ark decision.  Rather, Wong Kim Ark notes that "subject to the jurisdiction" excludes those classes, but the issue for us is whether it also excludes those who are merely subject to the partial, territorial jurisdiction of the United States by virtue of their mere presence within its borders, but not subject to the "full and complete" jurisdiction specifically referenced by the authors of the 14th Amendment.   Wong Kim Ark suggests that it does, but that is dicta, because that question was not before the Court.  Wong Kim Ark's parents were lawful, permanent residents, not unlawful or temporary ones.

Which leads me to my second main point of disagreement.  Professor Chin says "there's a statute" that codified the holding of Wong Kim Ark, and that "the drafting history . . . makes clear that the statute embraces the holding of Wong Kim Ark."  Not quite.  The drafting history actually makes clear that it embraces both the holding of Wong Kim Ark and the contradictory holding of Elk v. Wilkins.  See page 8 (Prof. Chin cited only to page 7).  Elk clearly rejected jus soli as the meaning of the 14th Amendment, so the only way to reconcile these two cases, and the drafting history supporting the current statute (which, after all, merely repeats the language of the 14th Amendment) is to read Wong Kim Ark as limited to its actual holding, namely, that the children of lawful, permanent residents are also entitled to automatic citizenship.   I do agree, though, that if Congress wanted to grant automatic citizenship beyond that, it certainly could, pursuant to its Article I power over naturalization.  By embracing both Wong Kim Ark and Elk v. Wilkins in the legislative history to the current naturalization statute, it has not yet done so.

I'm sure I'll have more on the collateral points, but let me close with a third area of major disagreement.  Prof. Chin notes that the old common law rule was jus soli.  Indeed, it was.  And there are certainly antebellum-era cases continuing to apply the old common law rule (though none by the Supreme Court itself, to my knowledge).  In 1776, we adopted the common law to the extent not inconsistent with the principles of the Declaration of Independence.  But what is the Declaration if not a full repudiation of the jus soli doctrine?  By it, our Founders claimed a natural right to repudiate their former allegiances and create a new one, establishing a new government based on the consent of the governed.  That was not permissible under jus soli.  Hence, "consent" rather than perpetual feudal allegiance is the model for citizenship we adopted in 1776, though it took some time for the old common law courts and lawyers to come to the full appreciation of what that meant.  While not a model of clarity, the better read of the debates over the 14th Amendment is that it was intended to confirm our consent-based model for citizenship.  The nearly contemporanous debates over the Expatriation Act confirm this with even greater clarity.  The Supreme Court unanimously confirmed this view, albeit in dicta, in The Slaughterhouse Cases, the first case to reach the Supreme Court interpreting the 14th Amendment, noting that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."  (emphasis added).  It accepted that dicta as holding in Elk v. Wilkins.  The major treatise writer of the day, Thomas Cooley, asserted that meaning of the 14th Amendment as well.  Even after Wong Kim Ark, Congress continued to subscribed to its tenants--the 1924 naturalization act for Native Americans would not have been necessary if birth on U.S. soil was alone sufficient.

So Congress is free to grant citizenship to anyone born on U.S. soil if it wants to, even to terrorists like Anwar al-Awlaki, who was born while his Yemeni parents were temporarily in the United States on a student visa.  I just don't agree that the 14th Amendment foolishly requires such a result; rather, that would be an exercise of Congress's power over naturalization.  As Senator Jacob Howard, the author of the Citizenship Clause, and Senator Lyman Trumbull, a key drafter of the 14th Amendment, described, "subject to the jurisdiction" as used in the 14th Amendment requires "a full and complete jurisdiction," "not owing allegiance to anybody else."  Those who are in this country illegally are not here by consent, and they continue to owe allegiance to their home countries.  They have subjected themselves to our laws, to be sure, and hence to our partial and territorial jurisdiction, but not to the broader, allegiance-owing jurisdiction intended by the 14th Amendment and mandated by the "consent" principle of the Declaration of Independence.  We welcome as fellow citizens all who come to this country by mutual consent.  We just ought not be in the habit of handing out citizenship like lottery tickets to those who violate our laws, ignore our lack of consent, and enter this country illegally.  As I said, I don't think the proper understanding of the 14th Amendment requires such a result.

Posted by John Eastman on February 15, 2011 at 07:04 PM in Immigration | Permalink

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We just ought not be in the habit of handing out citizenship like lottery tickets to those who violate our laws, ignore our lack of consent, and enter this country illegally.

John, how did children born in the US "ignore our consent" or "enter the country illegally"? Now, maybe their parents did this, but no one is giving citizenship to the parents, certainly not via the 14th amendment. So, can you explain to me who you are talking about here? It sounds like you mean those who get citizenship via birth in the U.S., but unless you have some sort of hereditary theory of sin or law breaking, I don't see how what you say here can possibly apply to the children born here. Maybe we should have a less generous jus soli rule. I don't think we should, but that could be debated. But what you say above doesn't address that. Children born to illegal immigrants didn't, after all, break any laws or enter the country illegally.

Posted by: Matt Lister | Feb 15, 2011 7:57:20 PM

Yes, I meant to "the children of those who violate our laws," etc. The parents are not in this country legally. They are therefore not here with our consent. There children are born in this country only as the result of their parents' illegal presence here. Under jus soli, that's enough. But it is not enough under a consent-based model, because it would mean that parents can unilaterally compel granting of citizenship to their children even though they are only here without consent, in express violation of our laws.

Posted by: John Eastman | Feb 15, 2011 8:11:34 PM

Can I edit the typo? "There children" in the fourth sentence should of course be "their children."

Posted by: John Eastman | Feb 15, 2011 8:12:42 PM

If the drafting history is as Prof. Eastman claims, his post is persuasive in arguing that Prof. Chin should have included Native Americans in a tribal context among the persons excepted from US juridisction when born within US borders. Somehow the post neglects to mention that that was what Elk v. Wilkins was about, but I imagine that was just an oversight; surely Prof. Eastman cannot be claiming that infants born to illegal immigrants are, because of their blood, like Native Americans at the turn of the last century: members of "distinct political communities[... and] in a dependent condition, a state of pupilage, resembling that of a ward to his guardian" (_Elk_, 112 US 99).

If this is, somehow, what is being argued, I have to say I think the Declaration of Independence cuts in the other direction. It is not soil that is being forsworn in the Declaration as a basis of citizenship, but blood; indeed, the only thing that the newly naturalized citizens of the new US have in common, in 1776, is soil. (Later, of course, they would have the Constitution, which I tend to consider a better authority than the Declaration or the Articles of Confederation.) In overturning feudalism, they were overturning the idea that destiny or allegiance is passed on to one by one's parents; precisely the proposition opponents of birthright citizenship in the political arena are currently trying to deny. (Funny that some of them trace their roots to the Tea Party -- and I do mean ha-ha funny.)

The Declaration is based on the failure of blood relations to sustain political relations: the colonists' British brethren, it says, "have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity" of cutting those bonds. Blood ties are obsolete. The 'we' of the Declaration is the people of the *place*, the people who can say of the King, he has "plundered our seas, ravaged our coasts, and burned our towns."


In the last paragraph of the post, I find myself focusing on Prof. Eastman's phrase "ignore our lack of consent." It describes parents, not newborns, I assume, and therefore seems off topic (as others have noted). But it also seems to me to be a plain, clear description, not of egregious, horrifying conduct, but of simple criminality. The punishment for that conduct, of course, appropriately includes deportation; but it is not different in kind from the conduct of, say, a telecom company that "ignores our lack of consent" to warrantless wiretapping.

The Elk cite is helpful, for historical purposes; I don't know the state of the law on Native Americans now, but I think it's good to have Prof. Chin corrected on the historical fact that US jurisdiction did not extend to newborns on tribal lands, just as it did not extend to diplomats' children. The special status of "Indians not taxed" in the founding documents carves out this exception nicely.

A last point. Prof. Eastman says "We're trying to ascertain what the meaning of the 14th Amendment was to those who drafted and ratified it, and in particular whether it was intended to confer automatic citizenship on the children of those who are in this country illegally." But didn't I read somewhere that there was no such thing as illegal immigration until 1875, when convicts and prostitutes were barred? So that means we will get nowhere with 'original intent' on this question, since the category of 'illegal immigrant,' like the category of 'wiretapping,' did not exist then.

In any case, the original intent question is academic, isn't it, in the face of what is clearly settled law. As an academic myself, I'm glad you guys are having at it!

Jim von der Heydt


PS. I think the idea that citizenship 'lottery tickets,' or any lottery tickets, are freely handed out is pretty funny, since illegal immigrants pay the same taxes citizens do, and since lottery tickets , sold for cash by state governments, apparently consume 9% of the income of households taking home less than $13K a year.
http://www.springerlink.com/content/771700m2wt7kt242/

Posted by: Jim von der Heydt | Feb 15, 2011 8:29:53 PM

John, I strongly suggest you go read Hume's "Of the Original Contract". The sort of "consent" theory you suggest hopeless, and has been for several hundred years. As I mention below, those who take this sort of argument serious (A. John Simmons is the best example, probably) see that the result is that essentially no government is legitimate. (The move that philosophers have made here is to make use of the idea of "hypothetical consent". Rawls is an example of this. But it's deeply implausible that a hypothetical consent account is going to include this hereditary lawbreaker idea in it.)

Posted by: Matt Lister | Feb 15, 2011 8:49:11 PM

I think you are correct to disagree with Jack that Calvin's Case was not the common law in 1776 following the revolution. My research shows that the colonists expressly rejected Calvin's Case and turned to a Lockean theory of consent-based citizenship. My article, Original Citizenship (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1654577), published a few months ago in the University of Pennsylvania Law Review PENNumbra may be of some help on this point. I summarize these points here: http://joshblackman.com/blog/?p=6151

Posted by: Josh Blackman | Feb 15, 2011 9:22:45 PM

In reply to Professor von der Heydt: Of course I am not claiming that the children of illegal immigrations are in a dependent relationship or "state of pupilage" with the United States. But that makes the case for Native American citizenship stronger than theirs, not weaker. Native Americans at the time of Elk v. Wilkins owed their primary allegiance to their tribe, but the tribe in turn (in many cases) was a dependent sovereign owing allegiance to the United States. Elk therefore owed indirect allegiance to the United States, but that was not sufficient. Here's the language from Elk that is relevant for the analogous context we're addressing: "The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States." Birth on U.S. soil by one of the tribal members did not confer automatic citizenship on the child because the parents (and through them the child) owed their primary allegiance to the tribe, not to the United States. So too with the children of illegal immigrants, who continue to owe their primary allegiance to their home country. As I said before, Congress can extend automatic citizenship to such individuals if it chooses (and it may even be good policy, though there are certainly policy arguments on the other side as well). My point is that the 14th Amendment does not compel such a result.

On the originalism point, I agree that the debates did not address specifically the question of illegal immigration, because we did not have restrictions on immigration in place at the time. That's why the "Indian" discussion is so important. It gives us the best assessment of what "subject to the jurisdiction" meant, and we have to extrapolate from the principles articulated in that regard to the current dispute. Such arguments from analogy are part of the originalism inquiry (unless you adopt the straw man view of the argument that, for example, we should not have an Air Force because the Constitution only speaks of an Army and a Navy).

Posted by: John Eastman | Feb 15, 2011 9:41:29 PM

And in reply to Professor Lister: Of course people have grappled with "consent" theory. But I do not subscribe to the view that the difficulties destroy the legitimacy of government. Those living in the United States in the current generation did not help ratify the Constitution, so did not give their formal consent to it. But by choosing to stay (at least after reaching the age of maturity), they have given tacit consent. In any event, there is no question that those who enter this country illegally are here without consent--tacit or otherwise. I do not need to claim (and I do not claim) that their children are "hereditary lawbreakers", only that they are born in this country without consent.

Posted by: John Eastman | Feb 15, 2011 9:47:39 PM

Prof. Eastman,

My point was not to compare the strength of the two citizenship claims, but to point out that they are qualitatively different. The important part of my quotation from Elk was the part about distinct political communities (Indian tribes in discrete, geographical proximity), not the part about national inferiority. Illegal Immigrants' children are not living in distinct political communities, of the racially inferior kind or any other; they crawl, then toddle, then study among us.

I think you're conflating jurisdiction with allegiance, and parents' allegiance with children's, in ways that aren't supported yet. The US's lack of jurisdiction over "Indians not taxed" goes back to the Constitution, which is an additional reason the exception to the generlal rule of Wong Kim Ark seems well founded and should be added to Prof. Chin's list.

Here (since I'm a law student) is a hypo:
Suppose consent theory were the law of the land. I wonder what you'd think of a group of legal, non-naturalized immigrants living in an isolated community and pledging allegiance only to themselves and their faith. Wouldn't they be better candidates to have non-citizen babies under your theory than the children of illegal immigrants in, say, San Antonio? If so, what about Zionist Jews in a city enclave? (At what age could the children opt in to citizenship -- a question that brings us back to old Jonathan Edwards debates?) The argument proves too much, it seems to me.

Also, I think you ducked my textually-based argument about the Declaration. Is there more evidence to it I could read? I've queued up Prof. Blackman's article on consent theory for adults throwing off bad government.

Jim vdH

Posted by: Jim von der Heydt | Feb 15, 2011 10:22:13 PM

John, under your theory, would children of former slaves be United States citizens under the 14th Amendment?

Posted by: Curious | Feb 15, 2011 10:25:03 PM

To be clear: I recognize that the people in my hypothetical have US consent to be here. But the other factors for consent — individual consent, allegiance, and involvement in the political community — are absent. So I guess I just meant to ask whether there's a basis for counting factor 1 so much more important than factors 2 through 4, especially since it's the only one without a textual grounding in the case law or the declaration.

Posted by: Jim von der Heydt | Feb 16, 2011 7:45:38 AM

I do not need to claim (and I do not claim) that their children are "hereditary lawbreakers", only that they are born in this country without consent.

Can you expound on the theory of consent you're using here? It's obviously not express consent, as none of us have given that to anyone being a member. (Even if we did, for reasons set out by Hume, it's not clear it could be legitimating in the conditions we find ourselves in.) And, as anyone who has worked on them knows, tacit consent theories have a lot of trouble, probably such that they can't do the needed work here. (Again, A. John Simmon's _On the Edge of Anarchy_ is the gold-standard here, I think, so I'd be especially interested to see why you think the account you rely on can meet his arguments.) I'd be extremely interested to know more about the account you're using and how you think it works. Without such an account, I think you're at most relying on an empty metaphor.

Posted by: Matt Lister | Feb 16, 2011 8:40:03 AM

Prof. Eastman, your opening post made two factual assertions that I found slightly curious. You said that you are not aware of any antebellum Supreme Court cases applying the common law citizenship rule. How narrowly do you mean that statement? Are you limiting it only to situations where the application of that rule determined the holding of the majority of the Court? If so, why? If not, what about the Court's opinion in Murray v. Charming Betsy, 6 U.S. 64, 119-20 (1804), or Justice Story's concurring opinion in Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99, 155-56 (1830)?

You also say that the 1868 Expatriation Act debates support your view of how the drafters of the Fourteenth Amendment viewed citizenship as based on consent. But isn't that overreading the Expatriation Act debates? The drafters of the Expatriation Act were certainly opposed to the idea that one could be held to one's birth citizenship in perpetuity if one desired to cast that citizenship off; but they had very little to say about how one acquired that birth citizenship in the first place. If anything, what little there was said about acquisition of citizenship was consistent with a jus soli/territorial model, not a consensual one.

Posted by: Mark | Feb 16, 2011 10:10:55 AM

I believe Eastman has the jist of the argument down, as I discuss here at the Charles Law & History Blog (http://patrickjcharles.wordpress.com/2011/02/16/affirmance-that-the-meaning-of-subject-to-the-jurisdiction-thereof-was-congressional-plenary-power-to-define-citzenship/)

Posted by: Patrick J. Charles | Feb 16, 2011 11:08:42 AM

Professor Eastman writes:

Hence, "consent" rather than perpetual feudal allegiance is the model for citizenship we adopted in 1776, though it took some time for the old common law courts and lawyers to come to the full appreciation of what that meant. While not a model of clarity, the better read of the debates over the 14th Amendment is that it was intended to confirm our consent-based model for citizenship…. We welcome as fellow citizens all who come to this country by mutual consent. We just ought not be in the habit of handing out citizenship like lottery tickets to those who violate our laws, ignore our lack of consent, and enter this country illegally. As I said, I don't think the proper understanding of the 14th Amendment requires such a result.

I do not wish to quarrel with John Eastman’s theory as a matter of precedential exegesis or original understanding. This is not because I believe that Professor Eastman has “the law” correct on these points. Instead, it is because I’m just too much of a legal Realist to believe that text, history, or precedent is determinate on this issue. It seems to me a waste of toner or bytes to contend that Jacob Howard, Justice Gray, or any other 19th century figure or population had any clear answer to the status of illegal aliens under the 14th Amendment.

There is, to my mind, a far deeper problem with Professor Eastman’s “consent” theory: It is essentially vacuous, because it relies on a purely fictional notion of congressional consent to admission of children. That is, the consent-based theory either allows Congress to exclude anyone it pleases – including the children of legal immigrants and naturalized citizens -- from any constitutional entitlement to citizenship, or the theory deploys an incoherently question-begging and utterly undefined notion of “consent.” This is true of all consent-based theories of state power – Locke’s, Eastman’s, etc. They are all empty, because they presume “consent” in patently fictional ways.

Let me illustrate with an example. Suppose Congress were to offer the following form of naturalization in a properly enacted federal statute: Certain persons would be given citizenship after a certain number of years of residence but their children would not acquire any right of citizenship by dint of their birth on U.S. soil. Why would not such a law be perfectly consistent with Professor Eastman’s “consent-based” theory of the 14th Amendment? Professor Eastman might reply that, by consenting to the admission of the parents, Congress thereby consented to the admission of the kids born on U.S. soil. But, of course, this is purely fictive “consent”: By hypothesis, Congress explicitly refused to consent to conferring such citizenship. Perhaps Professor Eastman would argue that the 14th Amendment requires that we interpret congressional permission to the parents to reside here as also permission for the kids to become citizens here. But such an interpretation is not a function of Congress’ actual consent: It is the legal fiction of manufactured consent, born of some consideration other than Congress’ actual intent – a consideration that has nothing to do with the non-existent congressional consent.

In short, Eastman’s theory rests on some purely fictional notion of consent – the idea that somehow We the People should be presumed to have consented to the children of legally present aliens’ becoming U.S. citizens simply because the parents have some statutory entitlement to be present in the United States when the children are born. If we can presume such “consent” based on Congress’ handing out visas to the kids’ parents, then why can we not also presume “consent” based on Congress’ under-enforcement of our immigration laws? “Illegal” aliens, after all, are present here with our tacit consent: We could round ‘em all up and deport ‘em all if we spent the thousands of billions necessary for the task and were willing to ruin our economy by depriving it of essential labor. By refusing to give the ICE the necessary resources to deport illegal aliens, why have we not tacitly consented to their presence? God knows, we benefit from such presence: Ask any labor economist. Under-enforcement of our deportation rules is de facto U.S. policy. Why, then, is this lax federal enforcement policy not sufficient “consent” to their presence here – consent sufficient to confer citizenship on their kids?

In short, the “consent”-based theory of citizenship – like all consent-based theories of coercion – are rooted in empty legal fictions about presumed consent that do not actually do the work attributed to such theories. Professor Eastman argues that Congress somehow ‘consented” to the conferring of citizenship on the children of legally resident aliens and naturalized citizens. But, if Congress were expressly to declare that they did not so consent to such a conferral of citizenship, then Eastman and his followers would have to manufacture such “consent” to save the 14th Amendment from being the cats’ paw of Congress. The manufacture of phony consent indicates that consent is not really doing the work in the theory.

The reason why Professor Eastman and Peter Schuck and others endorse such theories is because they seem to offer a middle ground between gutting the the 14th Amendment’s Citizenship clause and allowing that clause to confer citizenship on any kid who happens to be fortuitously born in a U.S. maternity ward. But consent-based theories are no middle ground: they are essentially empty vessels into which anything – including plenary congressional power to0 exclude native-born kids from citizenship – can be poured. One can read any theory of the 14th Amendment one likes into such theories, because such theories – if they are to restrain Congress at all -- require some theory of implied consent that rests on something other than actual consent. What is that something? Professor Eastman does not say. Until he does, we cannot know how or whether his theory actually constrains Congress.

Posted by: Rick Hills | Feb 16, 2011 3:57:45 PM

This is becoming more of a full-time enterprise than my schedule currently permits, but let me try to respond briefly to the several additional points made (in a series of comments).

To Jim von der Heydt: Elk v. Wilkins spoke of distinct political communities, trying to ascertain whether Indian tribes were comparable to foreign sovereigns even though they were present within the United States. By holding that they were more like foreign sovereigns, and that children born into tribal allegiance even though born in the United States, were not "subject to the jurisdiction" of the United States and therefore not citizens by birth, the Court makes an important statement about children born to the subjects of foreign sovereigns as well. "The evident meaning of [the 'subject to the jurisdiction' clause] is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance," holds the Court. The carve out for "Indians not taxed," contained in the original constitution and the 1866 Civil Rights Act, and rejected for inclusion in the Citizenship Clause of the 14th Amendment as redundant with "subject to the jurisdiction," was intended to treat these separate sovereigns as though they were foreign sovereigns, even though they existed within the territorial limits of the United States. As for your hypo, I think the best place to draw the line is at lawful permanent residence. "Lawful" gives us the consent, and "permanent residence" demonstrates more than just being subject to our laws while physically present. Of course, consent must be mutual, so if the groups themselves reject the offer of citizenship, that would be within their right to do so. Finally, I'm puzzled by your Declaration point. The Declaration is probably the most famous rejection of jus soli in human history. It was not "soil" that made Americans fellow citizens in 1776 (or 1783), but consent. Those born on British soil (whether the mother island or the colonies) could not renounce their allegiance to the King under jus soli theory, yet that is exactly what they did with the Declaration. Some born on colonial British soil remained loyalists to the king, and were given an exit option. Others born on British soil, whether of the home island or in the colonies, did become citizens. Still others not born on British soil in either place (home island or colonies) also became citizens and were eligible even for the office of President (despite not being "natural-born citizens") if they were citizens by the time of the adoption of the Constitution.

To Curious: Of course the children of former slaves are citizens; that's the main point of the 14th Amendment. I suppose if you want to press the limits of the consent theory, you could say that because the slaves themselves never consented to their presence in the United States then at most the 14th Amendment would amount to an offer of citizenship, but I don't think we need to be too concerned about that. Once freed, the decision to remain in the United States certainly demonstrated the necessary consent from their end.

Posted by: John Eastman | Feb 16, 2011 5:55:22 PM

To Matt Lister: I actually think on the illegal immigration issue there is an express lack of consent. We have a law that prohibits them from being present in the United States. We have therefore not even consented to their presence, much less the grant of automatic citizenship to their children, who are only born on U.S. soil as the result of the illegal action of their parents.

To Mark: I am perplexed by your reference to the Charming Betsy, which fully supports my position. Jared Shattuck had been born in Connecticut before 1776, probably became a U.S. Citizen at the time of the Revolution (though that is disputed), removed himself to St. Thomas, a Dutch island in the Caribbean, by 1788 or 1789, and became domiciled there, ultimately pledging allegiance to the Danish government. Under the jus soli doctrine, he could not renounce his citizenship and expatriate, which means that the U.S. could have seized his ship under the non-intercourse Act of 1800, for trading with the enemy during the quasi-war with France. Yet both sides of the case recognized that Shattuck could expatriate--they just disagreed about whether he had done so. The passage at 119-20 upon which you apparently rely is Chief Justice Marshall's characterization of the Government's argument, not the Court's holding. The holding is exactly the opposite. Although Marshall questioned whether expatriation could be accomplished in some circumstances, he held that Shattuck could not have his shipped seized as a "citizen residing elsewhere" [the relevant language from the statute] because "by his own act he has made himself the subject of a foreign "power." The seizure of his ship, the Charming Betsy, was therefore illegal, and the United States had to pay damages. I also don't think Inglis is dispositive. The case involved whether a collateral heir could inherit land in New York, for which he needed to be a citizen. He had been born in New York shortly before the Declaration of Independence. His father was from Ireland, and a loyalist to the King. New York was in American hands for a few months in 1776, before the British occupied it. The Inglis's left New York shortly before the British evacuation in 1783, returned to England. The Court held that the father thereby retained his status as a British subject, and further held that "John Inglis the son must be deemed to have followed the condition of his father, and the character of a British subject attached to and fastened on him also, which he has never attempted to throw off by any act disaffirming the choice made for him by his father." Justice Story concurred on this issue, and applied the Common Law rules. But New York had explicitly made the Common Law applicable by a provision of their Constitution of 1777. As a result, this case does not stand for the broader proposition that, absent some adoption by positive law, the common law jus soli doctrine applies in the United States. Indeed, even under the adopted common law that expressly applied in New York, he recognized that "the general principle . . . adopted, was to consider all persons, whether natives or inhabitants, upon the occurrence of the revolution, entitled to make their choice, either to remain subjects of the British crown, or to become members of the United States." But in any event, the case of the changing allegiances during the Revolutionary War is, as he recognized, somewhat sui generis. Finally, on the Expatriation Act point, yes, the discussion was about whether there was a right of expatriation on the back end, not the front-end definition of citizenship. My point was that the discussion supports the rejection of jus soli, where a unilateral expatriation right does not exist.

Posted by: John Eastman | Feb 16, 2011 5:55:56 PM

To Rick Hill: Apologies for not having more time to respond to your lengthy post, but I've got to get back to my day job. I will just note that "consent of the governed" is a core principle in the Declaration of Independence, so whatever the difficulties you've identified, it is clear that for those who declared independence, it had some meaning, which undoubtedly influenced the Constitution's drafting as well. The very idea of limited government whose authority is defined by a delegation of enumerated powers, for example, as ours is, is grounded in consent ideas/social compact theory. We may not think we're bound by their views, but the goal of the discussion is to figure out what they meant (or, as in the case of this roundtable, to figure out what their successor framers of the 14th Amendment meant).

Posted by: John Eastman | Feb 16, 2011 6:04:25 PM

Prof. Eastman,

You say "The Declaration is probably the most famous rejection of jus soli in human history," but to me the text suggests that it's a rejection of consanguinity in favor of territoriality, not the other way around. I'll keep an eye out for evidence that might back you up.

In general, the theory of volitional citizenship implied in the Declaration to me clearly evokes naturalization, and has nothing to do with infants.

But thanks for your reply.

Jim vdH

Posted by: Jim von der Heydt | Feb 16, 2011 7:04:27 PM

So Professor Eastman, at your leisure, do you have any answers to the following questions (or do answers exist in any published form somewhere in published form to which you could direct our attention here at Prawfsblawg?)

1. Why has Congress not "consented" to the admission of the kids of illegal aliens when Congress blatantly does not really make an effort to deport their parents? That is, why is Congress's willful congressional tolerance of these illegals' presence not "consent" to such presence?

2. Could Congress pass the hypothetical statute that I described above, consistent with the 14th Amendment -- i.e., a law stipulating that, while Congress was allowing aliens to be naturalized, this decision would not be deemed to be congressional "consent" to the conferring of citizenship on their kids? If Congress did so, then would the ban on citizenship for those kids violate the 14th Amendment?

3. If the answer to that last question (2) is "yes, such a denial of citizenship to the kids of naturalized aliens would violate the 14th Amendment," then how exactly does such an answer square with your consent-based theory of citizenship, given that Congress did not consent to the kids' admission to the nation and only consented conditionally to the admission of their parents?

4. Is your response to (3) above based on the idea that, if Congress allows x to become a citizen, then Congress must somehow be deemed to have consented to conferring citizenship on x's kid, if the latter is born in the USA's territory? If so,how is such a stipulation based on "consent" at all?

5. You invoke the Declaration of Independence as your model of consent. Consent in the Declaration of Independence is a form of absolute popular sovereignty: According to the Declaration, the People have plenary power to determine their form of government. Are you claiming that the Congress enjoys similar power to exclude children born on U.S. soil from U.S. citizenship by withholding consent?

Thanks in advance for any light you can shed on the specifics of this consent-based theory -- most specifically, why that theory is not a blank check for Congress to exclude anyone they please by simply withholding consent to their citizenship.

Posted by: Rick Hills | Feb 16, 2011 8:13:37 PM

Rick: 1. I don't think the Executive's failure to enforce amounts to a repudiation of the law. If Congress truly wanted to signal its consent, it could repeal the existing immigration laws.

On 2-5, the important thing to consider is that consent is that of the people, not just Congress. Congress could not withhold consent in the hypothetical you pose because the automatic citizenship would drop below the floor specified by the 14th Amendment, and it is ultimately the consent of the people, as expressed first through the higher law of the Constitution, that would govern in such a case.

Posted by: John Eastman | Feb 16, 2011 9:46:48 PM

Prof. Eastman,

Just an additional note of thanks for the completeness of your replies.

This quote from Elk is particularly clarifying:
""The evident meaning of [the 'subject to the jurisdiction' clause] is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance," holds the Court."
I see how the intervening authority of the tribe detracts from the US's political authority in that case. The analogy with illegal immigrants still seems quite tenuous, but I understand your argument better.

Jim von der Heydt

Posted by: Jim von der Heydt | Feb 16, 2011 9:48:10 PM

Prof. Eastman, To follow up for a second on the Charming Betsy point: What strikes me as telling about Marshall's discussion of Shattuck's citizenship (at 119-120) is not his characterization of the government's argument, but rather his offhand/matter-of-course statement that Shattuck was an American citizen at birth because he was born in the United States. To be sure, that's neither the holding of the case nor determinative of its outcome, but it seems worth paying attention to nonetheless.

You distinguish Charming Betsy and the Expatriation Act debates by noting that they both admit of at least some sort of right of expatriation, which you take to be inconsistent with jus soli. That's not quite right, though. It's inconsistent with jus soli as then practiced in Britain, certainly. But that doesn't end the inquiry at all.

Your argument is based on equating the British common law with jus soli with the orthodox view of the Citizenship Clause, and arguing that since, inter alia, the drafters of the Fourteenth Amendment rejected the perpetual citizenship of the British common law, they couldn't have taken a territorial view of citizenship in the Clause. But what I don't understand is why you think that, either as a matter of logic or history, the drafters could not have adopted a territorial view of citizenship acquisition while still leaving room for expatriation. Certainly Attorney General Bates, in his influential citizenship opinion, took that view. What is your basis for concluding that the drafters of the Fourteenth Amendment saw things differently from Bates?

Posted by: Mark | Feb 16, 2011 10:44:27 PM

Intentions' aside, the plain language of the 14th Amendment's section 1 is: "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 reside."

Someone unlawfully present in the United States, whether pursuant to an admission or entry without inspection (EWI) is and remains from the initial admission or EWI "subject to the jurisdiction thereof" the United States; and a child born of this person is either going to be a citizen or unlawfully present in the U.S. from birth. There has been no logical basis proffered in this debate as to why under the terms of Section 1 only the child of a lawfully admitted and / or lawfully present alien should qualify for citizenship from birth but not the child of an alien not lawfully present at the time of the child's birth.

To take the position that someone who is born to a parent unlawfully present in the United States at the time of birth is - by some twisting of this language - not a citizen under Section 1, would require a conclusion that this CHILD is NOT subject to the jurisdiction of the United States. It seems to me that whatever basis is relied upon to conclude that a child of unlawfully present aliens is not a citizen will require the same treatment of a child born of lawfully present aliens.

If proponents of this new interpretation of the citizenship clause get their way, as a Constitutional matter, these children will neither hold any particular status under the Immigration and Nationality Act, nor will the be subject to removal nor would they then be unlawfully present -- not being subject to the jurisdiction of Federal Laws.

Finally, it seems to me that the only reason for section to state "all persons born or naturalized" are US Citizens would be to conflate the two groups of people -- those born here and those not born here -- as citizens of the very same kind, warranting no difference in treatment. Sentence 1 of Section 1 constitutes a self-contained equal protection clause enforceable by Section 5. And it would seem to preclude the position that persons born in the US and subject to its jurisdiction are not US Citizens.

Posted by: Adam | Feb 17, 2011 3:18:11 AM

Adam said: "There has been no logical basis proffered in this debate as to why under the terms of Section 1 only the child of a lawfully admitted and / or lawfully present alien should qualify for citizenship from birth but not the child of an alien not lawfully present at the time of the child's birth."

Actually, Prof. Eastman is I think making a logical claim: that 'jurisdiction,' as used in Section 1, has a special meaning in the immigration context and cannot exist without consent of the people. What consequences that has for law enforcement I'm not quite clear, but presumably that's a different kind of jurisdiction.

Posted by: Jim von der Heydt | Feb 17, 2011 8:43:04 AM

I understand his consent theory, but it - like other discussion on the subject - I think misses the individual who is the subject of that first sentence: the child born, not the parents.

What Professor Eastman states is: "Those who are in this country illegally are not here by consent, and they continue to owe allegiance to their home countries. They have subjected themselves to our laws, to be sure, and hence to our partial and territorial jurisdiction, but not to the broader, allegiance-owing jurisdiction intended by the 14th Amendment and mandated by the "consent" principle of the Declaration of Independence. We welcome as fellow citizens all who come to this country by mutual consent. We just ought not be in the habit of handing out citizenship like lottery tickets to those who violate our laws, ignore our lack of consent, and enter this country illegally."

Professor Eastman and others confuse who ACTUALLY is the subject of the sentence, the child born here, not the unlawfully present parent. To address his statement in reverse, we - the USA - do actually grant benefits to those who break the laws. An immigration amnesty shouldn't be a problem to anybody who has approved of or taken a tax amnesty or other benefit like speeding and having an officer let you off. Both law breakers pose serious threats -- one to the physical well being and one to the financial well being of the Republic. BUT the CHILD born in the United States did not cross illegally; I suppose if the mother was already pregnant and Prof. Eastman will concede personhood, his consent theory may work.

However, the only means for this consent theory to work is on a case-by-case basis with an examination of the laws of the parents' home country jurisdiction. There is no evidence to support this as the intention of either Senators.

Posted by: Adam | Feb 17, 2011 9:43:04 AM

Once more into the breach (with my compliments to the organizers of this roundtable and thanks to all the very good questions).

To Mark: I don't think you can make much of CJ Marshall's reference to being a citizen because born in the U.S. The flux caused by the turmoil of the war makes it very difficult to make any broad statements about birthright citizenship. Shattuck was born before July 4, 1776, and hence a British citizen under the jus soli rules applicable at the time. Unlike Inglis in the other case discussed, he stays after the war, and hence his British allegiance transferred to the U.S. He moved to St. Thomas sometime before 1789, while still a minor. The issue in the case was whether his actions there amounted to an expatriation such that the ship he owned was not owned by a "citizen residing elsewhere" and therefore not subject to seizure. On your other point, yes it is possible to allow for expatriation on the back end and still have a jus soli model for grant of citizenship on the front end. My point is that the expatriation discussions show that they were rejecting at least the pure form of jus soli. AG Bates took that view, but his opinion was issued in 1863, five years before the adoption of the 14th Amendment, and he conceded that it was an unsettled issue.

To Adam: "Subject to the Jurisdiction" had two different meanings, partial and territorial jurisdiction, on the one hand (that's the "you have to comply with the laws of the sovereign in whose territory you are present), and complete jurisdiction, on the other (that's the allegiance part). In my view, the 14th Amendment codifies the latter, and I believe there is ample support for that interpretation in the debates, in the first couple of Supreme Court cases to address the issue, in the treatise writers of the day, and in the political theory of the Declaration. On your further point about the "child" as distinct from the "parent," once you accept the proposition that status flows from the parent, at least until the age of majority, the parent's status of still owing allegiance to a foreign sovereign and therefore subject only to the partial rather than compete jurisdiction of the United States, becomes that of the child as well. The child did not enter illegally, but his parent's did, and were therefore not subject to the complete jurisdiction necessary to pass that on to their children, one of the two required elements for automatic citizenship under the 14th Amendment.

Posted by: John Eastman | Feb 17, 2011 11:13:13 AM

More on the AG Bates Opinion, in reply to Mark: More relevant for our purposes of interpreting the 14th Amendment is the AG Opinion written by AG Williams AFTER the adoption of the Amendment. Addressing questions that had arisen under the Expatriation Act, AG Williams had this to say about the meaning of the Citizenship Clause in the 14th Amendment: "Section 1 of the 14th amendment to the Constitution declares that ‘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 reside.’ But the word ‘jurisdiction’ must be understood to mean absolute or complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them." 14 U.S. Op. Atty. Gen. 295, 1873 WL 3613 (Aug. 20, 1873).

Posted by: John Eastman | Feb 18, 2011 4:31:02 PM

John Eastman writes:

[T]he important thing to consider is that consent is that of the people, not just Congress. Congress could not withhold consent in the hypothetical you pose because the automatic citizenship would drop below the floor specified by the 14th Amendment, and it is ultimately the consent of the people, as expressed first through the higher law of the Constitution, that would govern in such a case.

So, if I understand the argument, We the People have not "consented" to the presence of illegal aliens in our midst -- despite our employing them, depending on them, and refusing to elect a Congress that would fund the ICE sufficiently to deport them -- because the Congress passed a statute saying that they are prohibited from entering our territory and, therefore, are not really "subject to [U.S.] jurisdiction" at all. Sure, we tax them, jail them, claim all of the powers of a sovereign over them, refuse to deport them or even make a serious effort to do so, and, indeed, depend on 'em to fuel our economy of cheap labor -- but they are not really here.

Why? Because, for reasons that remain obscure to me, our true "consent" is expressed by statutes that Congress enacted but does not enforce, a statute declaring that these aliens really should not be here even though every citizen who reads a newspaper knows full well that we'd bankrupt ourselves by trying to deport them.

The question of why our "consent" must be constitutionally expressed in this precise manner than by our ICE funding decisions and actual employment practices is somehow inferred from the parsing of Jacob Howard's speeches, a precedent or two from the 19th century, Calvin's Case and our alleged repudiation of it, and a theory of consent-based citizenship so obscure that it has taken a dozen law professors two dozen comments to explore.

Is it not self-evident that this Alexandrian theory of "consent" has nothing to do with real popular consent, based on actual popular opinion and actual public behavior? That such a theory is a lawyer's construction of such byzantine complexity that only a hyper-formalist lawyer could understand it, much less embrace it? That such a theory ignores what We the People are actually doing -- obviously consenting to aliens' entering our country to do our grunt labor while withholding consent that their children should enjoy the right to protect themselves through suffrage?

The real practical consequence of this formalistic notion of "consent" is that We the People can have our cheap labor cake and eat the laborers' rights of due process and suffrage too. We cultivate a class of metics whom we can easily exploit by declaring them to be here without our permission, and then we add insult to injury by pretending that somehow all of this was done without our "consent." Such a "consent-based" theory has the practical consequence of creating a permanent class of guest workers whose children will never get the right to vote, because, after all, We the People never "consented" to their presence. My inner Realist tells me that this notion of popular "consent" is a lawyer's plug nickel. I predict -- and fervently hope -- that SCOTUS will feel the same way.

Posted by: Rick Hills | Feb 19, 2011 9:34:56 AM

With Rick Hills' pardon, I had another thought from a more formalist direction on the Williams opinion cited above. Prof. Eastman, it seems to me that there are real problems with using this citation from AG Williams as interpretive evidence in the way that you want to do. This opinion was written in 1873. It tells us something about how George Williams interpreted the Fourteenth Amendment in 1873; it doesn't tell us much about the views of other Republicans in 1866. Considering that the Bates opinion was _quoted_ by key members of Congress in 1866 (albeit when considering the Civil Rights Act of 1866), the notion that our interpretation should be driven more by a document written after the fact is somewhat curious. (Subsequent legislative history? Really?)

Williams himself, of course, says in the previous paragraph of the opinion that an American citizen is one who is "born here." Presumably on the consensualist view that should come with an invisible asterisk, [unless you are the child of an alien]. And that may well be the proper way to read Williams' opinion. But is Williams' view in 1873, or his views when in the Senate in 1866, representative of the Republican caucus or the Senate as a whole on that point? There I think there are serious doubts.

Presumably you don't give much weight to the fact that the only judicial opinion between the Revolutionary period and the Civil War to discuss the citizenship of a child born in the US of alien parents (Lynch v. Clarke, of course), held that such a child was a U.S. citizen (and indeed, a U.S. citizen despite leaving the country as an infant and never returning); or that this opinion was officially endorsed as authority by Buchanan's AG in 1859 (at least for white children), and Lincoln's AG in 1862.

But what about the evidence that members of Congress in 1866 agreed that a child born here would be a citizen even if their parents were not? Lyman Trumbull, who drafted the Civil Rights Act of 1866 and was consulted in the Senate debates on the Fourteenth Amendment, certainly thought so: "the children who are born here of parents who have not been naturalized are citizens." CG 39(1):498. For that matter, Edgar Cowan, one of the principal opponents of the citizenship guarantees in the Act and the Amendment agreed with Trumbull that, for example, "the children of German parents are citizens" (id.). Cowan rejected Trumbull's territorial model, but he didn't do it on the grounds that a child of an alien took on the parent's citizenship and was thereby barred from U.S. citizenship; his opposition was rooted in rejecting birthright citizenship for children of the wrong _race_.

George Williams may have drawn a distinction between territorial/lawmaking jurisdiction and "political" jurisdiction, taken the view that aliens were subject only to the former, and believed that the children of aliens were likewise subject only to the former and thus outside the scope of the Citizenship Clause. But did anybody else in 1866?

Posted by: Mark | Feb 19, 2011 10:47:22 AM

One quick additional thought on consent: the consent-based theory that Prof. Eastman is arguing was enacted in 1866 is quite similar to the consent-based theory adopted by Chief Justice Taney in his discussion of citizenship in Dred Scott. Surely it is relevant, as a historical matter, that the citizenship guarantees of the Civil Rights Act of 1866 and the Fourteenth Amendment were enacted to repudiate Dred Scott's take on citizenship, not endorse it?

Posted by: Mark | Feb 19, 2011 10:51:40 AM

I think it is extremely important for this discussion to focus on the revisionists' claim that children born in the United States to aliens who are not lawful permanent residents, but are lawfully present, are not guaranteed citizenship by the Fourteenth Amendment. Aside from children of diplomats, these children are subject to the jurisdiction of the United States, and owe allegiance to the United States. The historical doctrine distinguished between the "temporary allegiance" owed by aliens during their presence and the "permanent allegiance" owed by citizens/subjects even when they leave the territory. (The U.S. Code still employs this distinction in defining U.S. nationals.)
The revisionists appear not only to invent an idiosyncratic notion of "jurisdiction" but also to invent an idiosyncratic notion of "allegiance," in order to draw a line between children of lawful permanent residents and children of all other aliens in the territory.
These are not special definitions used in the field, but simply inventions.

Posted by: Gerald Neuman | Feb 22, 2011 1:35:22 PM

Part of John Eastman's argument regarding "subject to the jurisdiction" is his repeated statement that illegal/undocumented immigrants are not subject to US military draft laws. (For an example, see the statements attributed to Professor Eastman in this article, http://www.csmonitor.com/USA/Politics/2010/0811/14th-Amendment-Is-birthright-citizenship-really-in-the-Constitution.) In fact, Professor Eastman is wrong about that. Undocumented immigrants are subject to the military draft (although the US does not have a draft at the moment, and the undocumented are not permitted by any military Service to enlist voluntarily--not at the present time, anyway). In the past, the US has readily drafted undocumented immigrants. If they are drafted and serve honorably during wartime, they can become US citizens immediately under 8 USC 1440.

For more information on undocumented immigrants and the draft, see the Selective Service website, www.sss.gov (look for the prominent notice that states "attention undocumented males!").

Posted by: Margaret Stock | Feb 24, 2011 12:26:12 PM

In May, 1789, James Madison made a speech on the floor of the House of Representatives. In the speech he said,

"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." (the speech was part of the trial in the contested election of Dr. Ramsay v. William L. Smith).

Isn't this essentially the same idea as natural allegiance by Lord Coke?

Posted by: Ethan Greene | Mar 17, 2011 12:47:58 AM

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