Birthright Citizenship: A Case Study in the Near-Inevitability of Constitutional Ambiguity

President Trump, normally a divisive figure, has improbably unified us with his recent tweet on ending birthright citizenship for the children of unlawfully present aliens. Legal academics on the Left and Right, from John Yoo to Mike Dorf, have joined together as one to declare that Trump’s proposal is obviously unconstitutional. Judge James Ho, Trump’s own judicial appointee, has argued that the 14th Amendment guarantees citizenship to those born on U.S. soil regardless of whether their parents are lawfully present. (For a typically cogent summary of the debate, see Ilya Somin’s post at Volokh’s).

Thanks to President Trump, in short, we are enjoying a rare moment of scholarly consensus about the meaning of the Fourteenth Amendment. I honestly regret having to squabble with that spirit of unity in what follows. As I shall explain after the jump, I share the consensus view that the Fourteenth Amendment ought to be construed to guarantee birthright citizenship for those born on American soil to unlawfully present aliens. Unlike the scholars referenced above, however, I take this view to be the result of pragmatic constitutional construction. Plain textual semantics, legal tradition, and historical context all will not do the trick. The scholarly consensus, in other words, conceals a constitutional policy judgment. This judgment is buried under cartloads of erudition about sources ranging from Calvin’s Case to the 39th Congress’s debates about diplomats and Indian tribes to SCOTUS’s decision in Wong Kim Ark. None of these, however, really speak to the question being asked by Trump and his supporters, because none of those sources confronted the question of whether persons who entered American soil in violation of its laws were really “subject to the jurisdiction of the United States.” To answer that question, one must construct a purpose for the 14th Amendment’s guarantee of “soil citizenship” — an unpleasant task, because such constitutional construction exposes how divided we really are about immigration. It is more pleasant to pretend that conventional legal sources yield an answer to an urgent legal question — and if such a pretense is necessary to beat off Trump’s attacks on “soil citizenship,” then I am happy to go long with the game. But I am hoping that a little candor about constitutional ambiguity will do no damage to a just cause as long as it is excluded from the briefs and confined to an obscure blog.

1. How much of an obligation to obey U.S. law must one have to be “subject to the jurisdiction of the United States”?

According to the conventional wisdom, the Fourteenth Amendment guarantees citizenship to everyone born on U.S. soil subject to a very narrow qualification: Such persons must be “subject to the jurisdiction of the United States.” Conventional wisdom declares that one is subject to U.S. jurisdiction whenever one is obliged to obey U.S. laws. The children of foreign diplomats who are born on American soil do not get the benefit of birthright citizenship, because those diplomats and their immediate family members are immune from many laws that the rest of us have to obey. Likewise, invading armies are subject to the law of war, not the domestic law of homicide, theft, and so forth. So the children of foreign invading soldiers and diplomats do not automatically get U.S. citizenship merely by fact of their birth on U.S. soil, but the children of pretty much every other sort of alien does.

There is a pleasing symmetry to this definition of what it means to be “subject to” the United States’ jurisdiction: The alien, as it were, takes the bitter with the sweet, sacrificing automatic membership in the national community via birthright citizenship in return for immunity from that community’s laws. Like most pat answers to tricky constitutional questions, however, defining “subject to U.S. jurisdiction” as “obliged to obey U.S. law” proves both too little and too much.

First, the “obliged-to-obey-U.S.-law” theory proves too little, because it does not explain exclusion of diplomats’ kids from birthright citizenship. “Diplomatic agents” (i.e., those diplomats included on the State Department’s “Blue List”) enjoy immunity from criminal process, but they are subject to civil process for commercial, property, and professional activities outside their diplomatic duties. So why does not their obligation to obey at least some U.S. law not make those diplomats “subject to U.S. jurisdiction”?

Second, the conventional wisdom proves too much: It suggests that the children of unlawfully present aliens could be excluded from the “jurisdiction of the United States” and, thus, birthright citizenship, simply by Congress’ extending something akin to diplomatic immunity to such children. Given that minors generally lack both criminal responsibility and the capacity to incur contractual liability, Congress could practically provide “illegal alien immunity” to many such kids (say, those younger than 13) without risking too much public disorder from increased incentives for lawless juvenile behavior. I am not suggesting that Congress is practically likely to take the hint and use such an immunity-conferring law to exclude aliens’ children from birthright citizenship. (If there were any such likelihood, then I would not have suggested the idea). Such theoretically easy evasion of birthright citizenship, however, suggests something wrong with the premise that justifies the evasion.

The reason why mechanical definitions of the “jurisdiction of the United States” fail is that the concept of falling within a nation’s “jurisdiction” is actually a hazy legal conclusion the core of which is very hard to specify. As explained by Justice Gray in Wong Kim Ark, the justification for jus solis seems to turn on some sort of reciprocal and voluntary relationship in which the resident provides allegiance to the sovereign in exchange for the sovereign’s protection. If the sovereign refuses to enter into this bargain by physically excluding the alien from residency or, failing such physical exclusion, by excluding the alien from the benefit of domestic laws, then there is a non-frivolous argument that the alien does not fit within the spirit of jus solis.

This idea that “jurisdiction” turns on some sort of voluntary agreement between sovereign and subject seems to be the basis for Peter Schuck’s and Rogers Smith’s 1985 book, Citizenship Without Consent, arguing that Congress can exclude unlawfully present aliens from birthright citizenship. Schuck and Smith continue to maintain that the absence of a voluntary relationship between sovereign and subject places unlawfully present aliens outside the United States’ “jurisdiction“ within the meaning of the 14th Amendment. Their view is an outlier — but if the strength of an argument is measured by more than numbers, I see no easy textualist argument against their position. (I am on record as disagreeing with Peter’s views on soil citizenship, a disagreement to which he responded long ago on this blog).

What about legal tradition? Learned disquisitions on jus solis shed very little light on the problem of unlawfully present persons, simply because, for most of the history of the concept of “soil citizenship,” such persons simply did not exist. Until the late nineteenth century, governments did not attempt to control rigorously who could reside within their borders: If one lived peacefully in a kingdom, then the presumption was that (1) one consented to the sovereign government’s jurisdiction and (2) the sovereign government consented to one’s presence. Since the 1880s with the Chinese Exclusion Act, the United States has attempted to keep out millions of people who want to enter. When the former fails and the latter succeed, can the latter force the former to exercise “jurisdiction” that the government abjures? Nothing said in the 39th Congress, in Calvin’s Case, in Wong Kim Ark, or in any other hoary old source on jus solis of which I am aware sheds much light on this question. (Richard Primus has a nice post over at Balkinization explaining why the originalist stance on the meaning of the 14th Amendment’s “STTJ” language might be just as indeterminate as the Living Constitutionalists’ take(s)). If one really wants to go down the hyper-formalist route, then one simply invites Congress to expel aliens’ kids from citizenship through the simple expedient of conferring legal immunities on such kids — immunities that would not add much to what youth already gives them but which would be a formalistic pretext for excluding them from the benefits of birthright citizenship.

2. How can birthright citizenship for all be pragmatically defended?

Suppose that one were inclined to concede that the STTJ language in the 14th Amendment is ambiguous enough to need a little “constitutional construction.” How might a broad, simple reading that automatically included virtually all children born on U.S. soil be justified pragmatically?

One justification for such a stance is a combination of administrative simplicity and social equality. Consider the problems of definition raised by Schuck’s and Smith’s “voluntary consent” theory of citizenship: How can you tell whether or not the sovereign has consented to the presence of an unlawfully present alien? Just because some statutes prohibit an alien’s presence does not necessarily imply that the sovereign does not consent to that alien’s sticking around. After all, the non- or under-enforcement of laws excluding entry, or requiring deportation, of aliens, is a policy choice by Congress and the President. One can argue, as has Eric Posner and Adam Cox, that the “second-order structure” of immigration law’s enforcement decisions suggest that the sovereign has actually consented to aliens’ unlawful presence until those aliens misbehave. If this is a fair characterization of how immigration laws are actually enforced, then the Schuck-Smith argument against birthright citizenship for the children of unlawfully present aliens collapses, because the sovereign actually has consented to the aliens’ presence and they have consented to obey most of the sovereign’s laws.

Schuck and Smith can escape the implications of such de facto consent only by relying on legal formalities that endanger national unity. By stripping children of birthright citizenship, Schuck’s and Smith’s theory threatens to create a permanent class of guest workers — a class that reproduces itself every generation by giving birth to kids without membership in the nation where they reside. As I observed a decade ago, the beauty of automatic soil citizenship is that “eventually any group that is enlisted, tacitly or otherwise, to labor for our economy will eventually obtain political rights through their children.” Nothing in Schuck’s and Smith’s theory provides this elegantly simple safeguard against Congress’ creating an abused subclass of metics.

Soil citizenship comes at a cost, but, in my view, those costs are trivial compared to the benefits. It is true that American law’s automatically conferring citizenship on anyone born on U.S. soil creates some U.S. citizens who have no emotional allegiance to the United States. I live in Shanghai for half the year, where international schools are sometimes filled with kids holding U.S. passports who have spent little more time in the United States than the few weeks needed by their parents to engage in “birth tourism.”. One might reasonably believe that people with such tenuous links to a nation ought not to be awarded membership in the national community.

The rank-and-file voters who object to birthright citizenship, however, are not concerned with these non-resident Americans who lack ties to the USA. They are instead upset by the entry into citizenship of kids who make their home here and whose actions suggest that they bear as complete allegiance to this country as any other natural-born member. As a practical matter, the danger of non-resident “birth tourism citizens” seems to me to be trivial compared to the dangers posed by giving Congress the power to exclude a class of resident aliens permanently from a share of political power.

These pragmatic considerations cannot be fit easily into the conventional modes of argument dependent on text, history, precedent, and structure. As I suggested above, however, those conventional modes actually yield no uncontroversial answers to the meaning of the 14th Amendment’s STTJ language. If the question, therefore, ever comes to a judicial dispute, I predict that lawyers will dutifully assemble the usual suspects, from Calvin’s Case to Wong Kim Ark, dazzling us all with their erudition after which the judges and justices will massage the history and precedents with their usual sophistication. But the votes will actually, in the end, rest on the pragmatic hopes and fears that I outlined above.