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Monday, February 14, 2011

Welcome to the Birthright Citizenship Roundtable

Thanks to Matt and Dan, Prawfs will be the home to a discussion of the merits of two new proposals to change birthright citizenship law in the United States.  These proposals are designed to deny citizenship to some or all children of undocumented non-citizens born in the United States who otherwise would be U.S. citizens by birth.  We have an all-star group of panelists, with people on various sides of the issue.

The background legal principles are these.  Although American law has had Section 1 of the 14th Amendment only since 1868, we had citizens before that, under common law.   The traditional principle of Anglo-American citizenship comes from Calvin's Case,  77 ER 377 (1608),  which held held that birth in the lands of a sovereign made a person a natural born subject of that sovereign.  In 1868,  Congress and the States essentially codified Calvin's Case through Section 1, which 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 reside."   

The critical language for our purposes is "subject to the jurisdiction thereof."  In United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898), the Court said that the language included racial Chinese born in the United States notwithstanding that racial Chinese were prohibited from immigrating and becoming naturalized citizens.  The Court--no great friend of Chinese immigrants--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."  That is, "subject to the jurisdiction thereof" means nothing more than "subject to the laws of the United States," which all non-citizens, including the undocumented, emphatically are. 

But not all agree.  A number of people think that the Fuller/Harlan dissent in Wong Kim Ark had the better of the argument; if a child owes political allegiance to another country, he or she is not completely subject to the jurisdiction of the United States.  Put another way, these theorists believe that the citizenship principle of jus sanguinis--law of blood--is better than the citizenship principle of jus soli--law of soil.  Citizenship, they say, should follow the parent rather than the place of birth. 

Below are the proposals to change the current rules on citizenship, and four reasons why they are legally problematic.

The first proposal is designed to generate a case testing the validity of Wong Kim Ark.  The vehicle is an interstate compact which would create two types of birth certificates, one for people born in a state "subject to the jurisdiction of the United States" and one for others.  Since this would immediately generate a lawsuit, proponents hope this will lead the Supreme Court to reconsider Wong Kim Ark.


The second proposal is a constitutional amendment.  Senators David Vitter and Rand Paul have introduced S.J. Res. 2 (112th Cong., 1st Sess.), which would repeal Section 1 of the 14th Amendment by implication by adding the following to the Constitution:

    A person born in the United States shall not be a citizen of the United States unless-(1) one parent of the person is a citizen of the United States; (2) one parent of the person is an alien lawfully admitted for permanent residence in the United States who resides in the United States; (3) one parent of the person is an alien performing active service in the Armed Forces of the United States; or (4) the person is naturalized in accordance with the laws of the United States.

The other participants in the roundtable, surely, will have much to say about the  proposed constitutional amendment, but I will focus on the proposed state compact. The problems with this statute are too many to offer a systematic critique, but I offer four thoughts.

1. There's a Statute.  The holding of Wong Kim Ark was made statute law as part of the Nationality Act of 1940.  This Act, the fruit of a decade of study by the Departments of State, Justice and Labor, was the first comprehensive U.S. citizenship law.  (The earlier patchy efforts left gaps resulting in,  for example, John McCain not being a citizen by birth.)  8 U.S.C. 1401(a) makes a citizen "a person born in the United States, and subject to the jurisdiction thereof".  The drafting history (e.g., here at 7) makes clear that the statute embraces the holding of Wong Kim Ark.  Accordingly, the Court's interpretation seems to be part of the U.S. Code.  E.g., Cottage Sav. Ass'n v. C.I.R., 499 U.S. 554, 561-62 (1991).  No one has argued that Congress lacks the power under the Naturalization Clause to  grant citizenship to all born in the United States other than a child of a diplomat or soldier in hostile occupation.  Therefore, there is a strong argument that even if a plausible challenge to the logic of Wong Kim Ark could be mounted, a necessary first step would be to persuade Congress to repeal Section 1401(a)

2. Citizenship Is Not  a State Matter.  One of the most interesting things about the Citizenship Clause is that it regulates state as well as national citizenship.  This is a stark reminder of the judgment of Congress and the majority of the States that citizenship, state and federal, should be protected from the prejudices of particular States--States cannot be trusted to make citizenship determinations even about state citizenship. The historical reason, of course, is that former Confederate States denied citizenship to formerly enslaved persons after the Civil War.  (And even earlier, state-by-state standards proved unworkable under the Articles of Confederation; this is why the Constitution provides for "an uniform Rule of Naturalization.")  The clear language of the Amendment (in addition to the fact that Congress has occupied the field through the Nationality Act of 1940 as codified and amended in the Immigration and Nationality Act) mean that state citizenship legislation is preempted--to the extent that it is covered by the 14th Amendment, citizenship is now an exclusively federal matter as much as making treaties or declaring war. 

 3. The 14th Amendment is a Jus Soli Provision.  Reasonable people could argue that citizenship should be transmitted to children based on the citizenship of the parents (jus sanguinis) rather than based on the place of birth (jus soli).  But there is no serious argument that the 14th Amendment has done so.  The critical factor, according to the text, is birth or naturalization in the U.S., a territorial, jus soli, concept.  The status of the parents is irrelevant; the Citizenship Clause does not ask whether the parents are subject to the jurisdictionof the United States, it asks whether the person born in the United States is subject to U.S. jurisdiction.

4. Why the Eagerness to Let Other Countries Set U.S. Citizenship Policy?  Another oddity of the dissent in Wong Kim Ark and of the Compact is the controlling effect they give to foreign law.  The theory is that children whose parents have citizenship in other countries are not fully subject to U.S. jurisdiction. Preliminarily, if this is right, it raises a host of problems for dual citizen parents; if a parent's foreign tie makes a U.S.-born infant not completely subject to U.S. jurisdiction, then the child of two U.S. citizens born in the United States, logically, is not a citizen if one parent is a dual citizen.  Under the Compact, it appears that if two U.S. citizen parents happened to be Israeli or Canadian dual citizens, their child born in the United States would not be a U.S. citizen, because they do not have "at least one parent who owes no allegeance to a foreign sovereignty." As the Court noted in Wong Kim Ark, if U.S. the law made citizenship of the parents the critical issue for children born in the United States, the outcome "would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States." 169 U.S. at 694.  

More fundamentally, it is not clear why the United States should give effect to the citizenship law of foreign countries as part of U.S. citizenship policy. If North Korean law provided that foreign-born descendants of North Koreans are citizens unto the 1,000th generation, but South Korean law provided that descendants of South Koreans born abroad may only gain citizenship by naturalization (or vice-versa), why should those foreign laws dictate the result under U.S. citizenship law? We make citizens (or not) for reasons of our own, not to please or accomodate other nations.  Foriegn law is not now relevant to U.S. citizenship law; I do not understand why it should be made relevant. 

There is much more to be said on this subject, and I look forward to reading what my fellow bloggers think.


Posted by Marc Miller on February 14, 2011 at 04:03 AM in Immigration | Permalink


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leticia olalia morales of 15501 pasadena ave #8 tustin ca 92780 submitted fake documents and paid 5000 dollars to obtain a US tourist visa. she also submitted fake employment records to obtain a work visa. she is now applying for citizenship. her contact at the embassy was man named sandman.

Posted by: anon | Jun 28, 2011 10:02:21 PM

Is this the portion of the Expatriation Act of 1868, to which you refer:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any declaration, instruc- tion, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government."

I'm not sure I'm following your argument. How does that apply to the concept of dual citizenship?

Posted by: Roger | Mar 22, 2011 10:20:17 AM

What an interesting debate. I just found out about "prawfsblawg" via the comments at naturalborncitizen.wordpress, Leo Donofrio, Esq's site.

After reading this article, I have to respectfully disagree with the writer's conclusion because the he premises his argument on the meaning of "subject to the jurisdiction" without regard to the Expatriation Act of 1868, which is the sister act to the 14th. That 1868 Act formally declared that "dual citizenship" had never been, nor was it to be from there on, a part of our legal code as it was "fundamentally inconsistant with the principles of our government". And those are the words of the law that is still in effect to date.

Posted by: Linda | Mar 18, 2011 8:24:22 PM

Re: Lord Coke - Calvin's case

The alien born Frenchman, visiting in amity was a subject of the king of England.

"Concerning the local obedience, it is observable, that as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part. And this appeareth in 4 Mar. Br. 32. and 3 and 4 Ph. and Mar. Dyer 144. Sherley a Frenchman, being in amity with the King, came into England, and joyned with divers subjects of this realm in treason against the Kingand Queen, and the indictment concluded contra ligeant’ suae debitum;51 for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject

"[33. ][Ed.: protection attracts subjection, and subjection protection.]"

"The third is ligeantia localis46 wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King’s protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other."

Calvin was adjudged a natural born subject, by way of TWO essential qualities.

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by NATURE AND BIRTHRIGHT, and is called alta ligeantia42a and he that oweth this is called subditus natus."

"Calvin the Plaintiff naturalized by PROCREATION AND BIRTHRIGHT"

So it appears there were TWO essential qualities to make a natural born subject.

The subject/citizenship status of the parent father mattered.

"that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born UNDER THE LIGEANCE OF A SUBJECT,"

What does this mean?

Sanguinis and soli, that's what it means!

Why did Justice Horace Gray in Wong Kim Ark case not mention these important points, that were expressed by Lord Coke, and which were crucial to the task at hand of attempting to define US 'natural born Citizen'?

Why are these important & crucial points from Calvin's case not discussed generally in the legal commentators?

Posted by: MichaelN | Mar 17, 2011 9:21:43 PM


In May, 1789, James Madson 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 as Lord Coke's ideas on natural allegiance?

Posted by: Ethan Greene | Mar 16, 2011 10:31:29 AM

Prof. Blackman:

Pardon a layperson butting in. I read your article or Original Citizenship and your remark here about "mass naturalization".

If George Washington were eligible to be President, by the Constitution, he would have had to be a resident of the "country" for 14 years. By my reckoning that would have been since April 30, 1775, before the declaration.

John Jay wrote to Washington suggesting that only a natural-born citizen should be commander in chief, a suggestion that many believe made it's way into Article II of the Constitution. But where did Jay think those natural born citizens were going to come from? If anything, a naturalized citizen is not a natural born citizen. (Jay proffered no exception for "citizens at the time.")

I think it more in line with the thinking of the founders that those citizens of New York, Virginia and South Carolina started the clock of their citizenship in the United States at their birth in those colonies who comprised the original United States, rather than at the Declaration of Independence.

Posted by: Kevin Davidson | Mar 10, 2011 11:34:00 PM


Your reading of the Declaration is misconceiving. The Declaration's grievance has been a general argument for mass migration, but the grievance was with Parliament and the crown limiting migration to the United States, not the individual colonial assemblies. At no point were the Founding Fathers claiming America to be an open migration country, and even if your interpretation is true, the Constitution and the inherent law of nations override this assertion. My suggestion is to read my law review article "The Plenary Power Doctrine and the Constitutionality of Ideological Exclusion," available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618976.

I hope you are enjoying your time at my alma mater, Cleveland-Marshall Law; it is a great place minus the snow and wind.

Posted by: Patrick J. Charles | Feb 18, 2011 4:20:48 AM

My extended reply is available at http://prawfsblawg.blogs.com/prawfsblawg/2011/02/reply-to-jack-chin.html

Posted by: John Eastman | Feb 15, 2011 9:49:50 PM

Prof. Blackman,

It looks like these doctrines apply to adult changes in citizenship -- that is, to naturalization -- not to citizenship at birth. What am I missing? I haven't clicked to the full article, but will do so.

The Declaration of Independence seems to be pretty clearly an instance of mass naturalization.

Posted by: Jim von der Heydt | Feb 15, 2011 9:31:00 PM

Very interesting post. I am not sure that Calvin's Case was 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

Thanks for the great discussion

Posted by: Josh Blackman | Feb 15, 2011 9:19:44 PM

Peter- of course we sometimes condition the distribution of certain goods on the basis of the status of one's parents (though in the cases you give it's not the _status_ of the parents so much as their _income_ and ability to support the children, which seems to me to be importantly different.) But the important question is whether _this_ is such a case, and I don't see a good argument for it. You've made your "consent" argument, of course, but that won't work here for reasons that Hume made clear more than 200 years ago. (It's important to see that serious people who take actual consent arguments seriously think they leads to essentially no government being legitimate.) Without the "consent" argument we have here children who are, from a moral point of view, just like other children- born here, growing up here, and a member of society in the same way that those whose parents are citizens are. In _this_ case, the status of the parents seems quite irrelevant to me.

Posted by: Matt Lister | Feb 15, 2011 8:44:32 PM

I agree with almost all of Jack's posting, with only three exceptions worth mentioning:

1. Jack is correct that the Chinese were generally barred from immigrating and naturalizing here. But Wong Kim Ark's parents were legal residents of the U.S. pursuant to treaty; they were here with the consent of the polity, which consent is pivotal, on the Schuck & Smith theory of the meaning of the "subject to the jurisdiction" clause, to the power of parents to confer citizenship by birth.

2. Jack says that the Wong Kim Ark dissenters believed that jus sanguinis was "better than" jus soli, but whether or not they believed that is beside the point. One can prefer jus soli, as I emphatically do, while still believing that the "subject to the jurisdiction" clause requires that the parents' presence be consensual in order to transmit birthright citizenship to their U.S.-born children.

3. Jack says that "the status of the parents is irrelevant" to the child's status. But that is clearly incorrect, even under his own view: the U.S.-born child of foreign diplomats and hostile military forces is not a jus soli citizen -- Jack's correct point -- but this is precisely because of the status of the parents.

I also disagree with Matt Lister's related point that we do not distribute important goods according to the status of the parent. In fact, social welfare law often did so (and may still do so) -- for example, conditioning a child's eligiblity for AFDC and Medicaid on the parent's marital, income, and other statuses.

I would add an argument against these amendments with which I'm sure most if not all readers will agree. We should not amend the Constitution except for the weightiest of reasons, and even then, only if legislation cannot solve the problem or we want to entrench the legislative change against future transient majorities. In my view, these conditions have not come close to being satisfied.

Posted by: Peter Schuck | Feb 15, 2011 4:20:48 PM

It's clear from your overview that this is settled law.
Did you say it's been in place "only" since 1868? Because in this country, that's a really long time.

I have to say this panel makes me, a 1L, wonder if there's any topic the Republican party could raise for reasons of political posturing that wouldn't set off an orgy of thoughtful jurisprudential hemming and hawing about how it might, in some alternative universe, if words meant nothing, possibly be legitimate, but in the end probably, on balance, not.

In South Carolina there's a proposal to insist on gold currency. In one of the Dakotas they're going to vote on state nullification. Let's please not take such things seriously as questions of law.

The answer when Republicans propose a laughable legal argument — waterboarding not torture, going uninsured meaningless to interstate commerce, the definition of 'citizenship' up for grabs — is to laugh. (When a federal judge agrees, of course, more attention must be paid; in the form of a simple argument, and then laughter at that judge.)

This is not to say that it's not important to do the work you guys are doing in legal history and theory. But to imply that it is in any way topical is to concede enormous ground to people who are deranging the social discourse. If they want to undo the Fourteenth Amendment, let's make em undo the PPACA, the Great Society, the New Deal, the Sherman and Wagner Acts, and all the civil-service rules FIRST.

Jim von der Heydt
Cleveland-Marshall College of Law

Posted by: Jim von der Heydt | Feb 14, 2011 10:37:15 AM

This is very good, Jack. I'd add that there are strong moral reasons why the status of one's parents should not be used to limit granting citizenship in the way proposed by either the proposed state laws or the proposed constitutional amendment, namely, that to withhold citizenship from one who is otherwise a member of society in all the normal ways because of the status of one's parents is to distribute an important moral good (citizenship) on the basis of a morally irrelevant ground (the status of one's parents.) It's ironic here that opponents of jus soli approaches to citizenship often claim that it is impermissibly "ascriptive", yet we see here how it's actually a strict jus sanguinis approach that ends up being ascriptive in an impermissible sense. (I detail these arguments in a paper in the Maryland Law Review, available here, for those interested:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586979 )

The same topic is approached in a very useful way from a historical perspective in Bernadette Meyler's paper in the Georgetown Immigration Law Journal here:

Posted by: Matt Lister | Feb 14, 2011 9:24:54 AM

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