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Friday, November 02, 2018

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.

Posted by Rick Hills on November 2, 2018 at 08:34 AM | Permalink

Comments

thanks

Posted by: Danny Jones | Nov 10, 2018 4:39:12 AM

I think it is highly formalistic to say that the U.S. "consented" to the presence of people illegally forced to come to this country through the international slave trade simply because no federal law required their deportation. For many Americans, North and South, slavery was seen as a necessary evil. They acknowledged that slavery was wrong, but they thought it was necessary because they could not imagine a workable interracial society. For Americans with these views, slaves brought to the country illegally were not welcome because they added to the magnitude of the problem. Along the same lines, many Southerners opposed the international slave trade because it competed with the interstate slave trade. The opposition, therefore, was not just to the trade, but also the continued presence of the slaves. In sum, it is true that Congress did not pass laws requiring deportation (though many in Congress supported colonization); however, I don't think the sovereign (which I am assuming means the People) consented to the presence of slaves illegally brought to the US in any meaningful sense.

Posted by: Jeff Schmitt | Nov 6, 2018 12:03:37 PM

I commented on Peter Shuck's later post that the slayer rule and the murderous grandson not inheriting is the principle most people are thinking about with regard to what's just in the case of illegal alien children. Taht common-law principle is very helpful in interpreting the ambiguous constitutional wording. See http://rasmusen.dreamhosters.com/b/ .

It also helps with the problem of the illegally imported slave's child:
The principle says that the child of someone who was brought here illegally as a slave when the slave trade was illegal would be a citizen. True, that person was here as the result of an illegal act, but the act was by an enemy, not by a friend. (In addition, solving the problem for the present day,  maybe that statute would not deport the child, since the child was not imported, and so the *grandchild* would be a citizen.) 

Posted by: Eric Rasmusen | Nov 6, 2018 10:17:30 AM

Yes, I am looking for an original public meaning argument. And I know that at the time the Fourteenth Amendment was adopted we didn't have the kind of immigration system we have today. But we didn't have the internet when the First Amendment was adopted either. To apply the Constitution to a factual situation that didn't exist when it was adopted, we first need to identify what factual circumstances existed at the time (or were believed to exist) and from those (and the arguments presented) we can establish the principle that underlies the text. Then we can apply that principle to the modern factual situation.

Everyone agrees that the children of ambassadors, native american tribes, and enemy occupying forces were not subject to the jurisdiction of the United States. (There is some dispute on the issue of aliens who are lawful residence by people who think Wong Kim Ark are wrong, based on 2 contemporaneous supreme court interpretations, a contemporaneous AG interpretation, and some legislative history, but I don't agree with them. I think WKA was rightly decided.) But then we must ask WHY these three groups were picked as not being subject to the jurisdiction. Some have said it is because they cannot be criminally prosecuted. I somehow doubt that because ambassadors can be criminally prosecuted in the US for their actions in the US (although we, by tradition, request their nation waive diplomatic immunity), furthermore they are subject to civil liability. Native Americans are commonly prosecuted today, just because Congress has decided to change from the immunity that previously existed. And invading military forces can also be executed for violating the laws of war by the United States.

More is needed, and if you look at WKA and Calvin's Case (by Coke) it provides strong evidence that the real question of "jurisdiction" under that clause is allegiance (by the individual to the state) and protection (by the state to the individual). By that interpretation of the underlying principle, I would think anyone who entered the country legally (even under a temporary visa as Coke discusses in Calvin's case such temporary visitors), would be subject to the [political] jurisdiction of the US. People who sneak across the border never agreed to allegiance to the US nor did the US agree to provide them protection.

Posted by: Devin Watkins | Nov 5, 2018 12:53:20 PM

Rick,

The laws I mention were enforced to some degree; particularly in the 1860-1870 period, there were regular incidents, treaties, and appropriations, so it is doubtful that any members of Congress were unaware of the legal structure. I'll cover all of this in an upcoming (i.e., incomplete) paper.

I'll close by adding my observation that the biggest problem with the Schuck-Smith thesis is that their political philosophy may be admirable, but how do we imagine members of Congress based the Fourteenth Amendment on a complex set of ideas which were not mentioned in the debates, rather than the plain vanilla understandings of Calvin's Case and the treatises, which were?

Jack

Posted by: Jack Chin | Nov 5, 2018 9:48:38 AM


“It is important to note that from the moment of our conception, to the moment we come forth from our Mother’s womb, we are present with our Mother in both Time and Space. If our Mother was a United States Citizen, upon the moment we come forth from our Mother’s womb, we are citizens of The United States by birth.”

That should read:

It is important to note that from the moment of our conception, to the moment we come forth from our Mother’s womb, we are present with our Mother in both Time and Space. If our Mother and/or Father, was a United States citizen at the moment we came forth from our Mother’s womb, we become natural born citizens of The United States, through the United States citizenship of our Mother and/or Father, and thus do not need to apply for citizenship.

So the question is, on what basis can the sons and daughters of United States citizens, born in The United States, and the sons and daughters of illegal immigrants born in The United States, both be natural born citizens, when for a minor, citizenship can only come through birth, if the Mother and/or Father, is a Uniited States citizen?

The Founding Fathers did not refer to themselves as “natural born citizens”, because they knew that their parents were not, nor could they have been, United States citizens at the moment each Founding Father was born. However, all of our Founding Fathers, “no longer subject to the king”, became naturalized citizens at the moment our Constitution was adopted.

“No citizen except a natural born Citizen, or a Citizen of The United States at the time of the Adoption of this Constitution,
shall be eligible to the Office of President...”

Posted by: N.D. | Nov 4, 2018 6:31:54 PM

It is important to note that from the moment of our conception, to the moment we come forth from our Mother’s womb, we are present with our Mother in both Time and Space. If our Mother was a United States Citizen, upon the moment we come forth from our Mother’s womb, we are citizens of The United States by birth.

Posted by: N.D. | Nov 4, 2018 10:37:59 AM

Okay, one last set of responses, and I’ve got to grade some midterm papers:

Jack Chin writes:

“there was an elaborate system of deportation of enslaved persons illegally imported into the United States. See, e.g., Act of March 3, 1819, 3 Stat. 532. Accordingly, because Congress provided for their removal even after landing, it cannot be said that Congress tolerated either their entry or their presence.”

Thanks, Jack: I was unaware of the deportation provision. Was it ever enforced? My sense is that prosecutions of the slavers themselves were rare and often unsuccessful, despite the incentives of prize money. The federal government had few resources — no ICE! — to investigate and deport smuggled slaves. So it seems doubtful to me that anyone in the 39th Congress had any awareness of unlawfully present persons or any legal theory about unlawfully present slaves’ relationship to the “jurisdiction” of the United States. In any case, as Richard Primus nicely argues in his “Riddle off Hiram’ Revels,” https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1523&context=articles, Republicans in the 1860s and 1870s were often inclined to look on the laws defining slaves’ legal status prior to the Civil War as a legal nullity, without force even during the period in which they existed. So I am inclined to doubt that the status of smuggled slaves informed their ideas about STTJ. But these are just my tentative hypotheses: Happy to be corrected, especially if the correction makes it more likely that SCOTUS or others accept birthright citizenship as constitutional law!

Asher notes that, even if the semantics of STTJ were ambiguous, the purposes of the Citizenship clause might be unambiguous. Agreed! I take one of those purposes to be the elimination of hereditary caste or class, and it is on that basis that I endorse “soil citizenship” based on the location of one’s birth. My skepticism is directed only at the idea that, if we fed the phrase “subject to the jurisdiction of” into a vast corpora database containing the usage of the phrase during the 18th and 19th centuries, we would be any wiser about what to do about the children of unlawfully present persons.

Of course, I actually have not done any research into the corpus of texts using the phrase, so maybe I am wrong!

Posted by: Rick Hills | Nov 3, 2018 9:03:56 PM

I don't know that the moral of your story, that to interpret much of the Constitution we must construct purposes, necessarily shows that original public meaning is so indeterminate because original publicly understood purposes may be discoverable (though perhaps not here, a question on which I truly have no view). It's possible that, for example, we not only have badly and overinclusively missed the boat on what equal protection semantically meant in 1866 American legal circles, as I believe John Harrison (and maybe Pamela Brandwein, in a similar way?) argued and I know many originalists privately believe, but that we have also missed its widely understood reparative purpose (or its purpose of maximal color-blindness, or whatever). It seems to me that original public meaning at least could be agnostic as to a theory of legal meaning just so long as the legal meaning one inquires into is original and public, and that it is not necessarily concerned only with what you (incorrectly and a little confusingly, as a matter of linguistic terminology, especially when you talk about pragmatics, which is a linguistic term of art as well) refer to as semantics. It also seems to me that if one were really interested in original public meaning, one would have to grapple with the reality that there are a lot of purposivist legal readers in the world, and were perhaps far more of them in the past than there are now. Especially if one is doing original public meaning for the metatheoretical reason that original public meaning originalism is an "original method" or was our "original law," one would, I think, have to live with purposivist modalities of interpretation inasmuch as interpreters contemporaneous with the framing of the Constitution or a given amendment understood the "meaning" of contemporaneously ratified constitutional provisions in deeply purposivist and pragmatic ways. (Which isn't to say that such an approach to original public meaning wouldn't admit of fixation; what would be fixed would be original purposivist understandings.)

Posted by: Asher Steinberg | Nov 3, 2018 5:19:03 PM

Hmmm. Rick, you write: "To my knowledge, slaves illegally smuggled into the United States after 1808 were not illegally PRESENT. Indeed, I do not think that anyone was illegally present in antebellum America, because deporting illegal entrants back to their place of origin really was not a legal concept until the 1880s."

However, in addition to the Alien and Sedition Acts as an historical example of deportation, there was an elaborate system of deportation of enslaved persons illegally imported into the United States. See, e.g., Act of March 3, 1819, 3 Stat. 532. Accordingly, because Congress provided for their removal even after landing, it cannot be said that Congress tolerated either their entry or their presence. Accordingly, it seems inescapable that for the Schuck and Smith thesis to be right, we must either (1) read a non-textual exception into the citizenship clause, unknown to the drafters or ratifiers, which might render stateless African Americans born in the United States whose ancestors have been here for two centuries, or (2) recognize that the citizenship clause granted citizenship to the children of people who entered and remained here in violation of U.S. law.

Posted by: Jack Chin | Nov 3, 2018 9:41:12 AM

Oh, in that case perhaps we agree. For example, STTJ="as to whom the U.S. *can* assert complete jurisdiction while they are in the U.S." To be sure, that might *include* tribal members, but that doesn't trouble me, even if some of the framers thought, assumed or hoped they'd be excluded.

Posted by: Marty Lederman | Nov 3, 2018 4:04:34 AM

Marty, my point was slightly different: Once one tries to use a formalistic definition of “STTJ” based on dictionary definitions (like, for instance, “regulated by Congress”), one opens the door to all sorts of paradoxes and problems (like, for instance, the prospect of Congress’ excluding people from birthright citizenship through the granting of immunities from regulation).

The solution, to my mind, is to define the STTJ limit very narrowly without too much regard for semantics: Diplomats, invading armies, and perhaps Indians living on tribal lands fall outside the limit, because they are exempt from lots of laws by very deep tradition, and Congress cannot extend the groups who might fall outside the limit with any further immunities or exemptions. (I think of this as analogous to the “Saxbe Fix” for the Incompatibility/Ineligibility clause: When a constitutional limit doesn’t matter very much, we can afford to construe into desde tu de).

Posted by: Rick Hills | Nov 3, 2018 4:00:09 AM

Marty, my point was slightly different: Once one tries to use a formalistic definition of “STTJ” based on dictionary definitions (like, for instance, “regulated by Congress”), one opens the door to all sorts of paradoxes and problems (like, for instance, the prospect of Congress’ excluding people from birthright citizenship through the granting of immunities from regulation).

The solution, to my mind, is to define the STTJ limit very narrowly without too much regard for semantics: Diplomats, invading armies, and perhaps Indians living on tribal lands fall outside the limit, because they are exempt from lots of laws by very deep tradition, and Congress cannot extend the groups who might fall outside the limit with any further immunities or exemptions. (I think of this as analogous to the “Saxbe Fix” for the Incompatibility/Ineligibility clause: When a constitutional limit doesn’t matter very much, we can afford to construe into desde tu de).

Posted by: Rick Hills | Nov 3, 2018 4:00:08 AM

Thanks, Rick. But I thought you were trying to make another point, too--which is that once Trump's critics concede that kids of diplomats aren't automatically citizens, they must also acknowledge the possibility that Congress could also deny citizenship to children of undocumented aliens. And, if so, I'm pushing back on that -- I don't think that follows at all.

Posted by: Marty Lederman | Nov 3, 2018 3:47:49 AM

Either of your choices is fine with me, Marty. My only point is that original public meaning will not yield any very satisfactory answer to a problem that must be answered pragmatically rather than semantically.

(By the way, diplomats’ kids often qualify for birthright citizenship de facto, because their birth certificates marking their place of birth carry no special “diplomatic” marker. That has upset some commentators who worry about foreigners’ becoming citizens through the natal pathway — see, e.g., https://cis.org/Report/Birthright-Citizenship-Children-Foreign-Diplomats — but I tend to take the non-enforcement of the STTJ limit to suggest that the limit serves no very important purpose).

Posted by: Rick Hills | Nov 3, 2018 3:37:57 AM

Thanks, Rick. I think you agree with Larry Rosenthal that *but for* the tribal members and/or children-of-diplomats "exceptions," this would be very straightforward, right? One possibility, then, is that the framers plainly *intended* (or at least wanted and/or expected) to exclude those two discrete categories from citizenship, but failed to do so by use of the STTJ clause, which doesn't quite do the trick. If that's correct, then the only interesting question would be whether to honor their intent/expectations *w/r/t those discrete categories,* despite the textual inadequacy. (In which case there'd be no reason to preclude birthright citizenship *beyond* those discrete categories.)

Another possible response to the "problem" of diplomats' kids and tribal members, I suppose, would be to read in a modifier such as "complete" before "jurisdiction." The theory, as I understand it, would be that the U.S. *could not* assert complete jurisdiction over tribal members and/or children-of-diplomats. The fact (which you emphasize) that Congress could *choose* not to assert such jurisdiction over them--or *anyone else*--is, on this view, irrelevant. The argument, such as it is, would be that these two discrete categories of individuals are not even *subject to* the assertion of complete jurisdiction, i.e., it'd be impossible.

Posted by: Marty Lederman | Nov 3, 2018 3:22:17 AM

Thanks for the comments, all. Here are a few responsive thoughts:

1. Jack Chin notes that there WERE persons in antebellum America who had illegally entered the United States, and the fact of their illegal entry did not affect the citizenship of their children under the 14th Amendment.

True enough — but there is a difference between illegal ENTRY and illegal PRESENCE. To my knowledge, slaves illegally smuggled into the United States after 1808 were not illegally PRESENT. Indeed, I do not think that anyone was illegally present in antebellum America, because deporting illegal entrants back to their place of origin really was not a legal concept until the 1880s. (The usual remedy for violations of state immigration law was to charge the vessel a fine for bringing in people who would be a charge on the State).

I guess that, if one were a “Schuckian” who adhered to the contractual idea of citizenship (I’m not), then the US government extended the protection of its laws to those illegal entrants in a way that the modern government does not intend to extend the protection of its laws to unlawfully present people.

2. Several people point out that it is the legal status of the child, not the parents, that determines whether the child is “subject to the jurisidiction [of the United States].” Of course — and, again, a Schuckian might say that, because such children are exempt from the benefits of many laws, they have not “subject to the jurisdiction [of the United States].” Of course, they are STTJ of the most important laws — but...what if they weren’t? What if they were granted an exemption from criminal law, like ambassadors? As I noted above, as minors they are already practically exempt from such laws because they lack criminal responsibility, so conferring legal immunity on them would not be a big deal. Would you say that they could be stripped o birthright citizenship under those circumstances because they would not be STTJ? Bite that bullet, and I’ll accept the formalist/textualist theory reiterated by Larry Rosenthal.

3. Devin Watkins reiterates that he is an originalist and a formalist and wants an answer that sounds in something like original public meaning. My intuition is that you are asking something from the past language usage that it cannot give. Our Immigration Industrial Complex simply did not exist until sometime after the 1880s.

The idea that someone’s very presence in the country was illegal such that, regardless of their compliance with local laws, they could be deported because of the illegality of their entry was not, to my knowledge, an idea with which the 39th Congress was familiar. The citizens of countries with which we were at war could be deported, interned, or paroled. Immigrants bringing poverty or disease or more slavery (in their own persons) could be excluded. But the idea that mere presence could be unlawful based on facts about one’s earlier entry does not seem to me to be a concept with which Americans or Anglo-American law was familiar.

I could be wrong about the novelty of unlawful presence in the 1860s. If so, then I guess there would be a more powerful originalist argument against Peter Schuck’s “allegiance” idea than I have imagined. Until someone persuades me, however, that the words “STTJ” were written and ratified in the shadow of a concept of unlawful presence, I will continue to be unimpressed by the originalist-formalist credentials of arguments against Peter’s position.

Posted by: Rick Hills | Nov 2, 2018 7:27:42 PM

Despite my respect for Professor Hills, I think that this post needlessly complicates a straightforward textual argument.

If one were to simply start with the unadorned text, this issue is quite simple. Of course undocumented immigrants are "subject to the jurisdiction" of the United States -- that is precisely why they can be prosecuted for unlawful entry and any other crime they commit while in the country unlawfully. Given the frequency with which the current administration prosecutes undocumented immigrants, it is astonishing that it could take the position that those persons are somehow not "subject to the jurisdiction" of the United States.

If there is an ambiguity in the Citizenship Clause, it is that the phrase "subject to the jurisdiction thereof" is a pretty unsatisfactory way to exclude the children of diplomats and members of sovereign tribes, since their children, in some respects, are subject to the jurisdiction of the United States, as the post indicates, even if though in other respects these children have limited forms of jurisdictional immunity. Thus, the worst that can be said is that the drafters failed in their quest to exclude these categories of children. Perhaps more reasonably, one could conclude that the historical evidence of an intent to exclude the children of diplomats and tribal members indicates that children not fully and completely subject to the jurisdiction of the United States are excluded from birthright citizenship under the "subject to the jurisdiction" clause. But, when it comes to undocumented immigrants, the text is really quite clear; they have no type of jurisdictional immunity that might exclude them from the textual grant of birthright citizenship.

Larry Rosenthal
Chapman

Posted by: Larry Rosenthal | Nov 2, 2018 4:44:53 PM

I join the chorus of those pointing out that I think some of this conflates the allegiance question for the unauthorized parents and the allegiance question for the child. That someone is in part of a reciprocal allegiance-protection relationship with the sovereign governing the birthplace is pretty well-founded.

Posted by: Lee Kovarsky | Nov 2, 2018 11:15:14 AM

Very interesting comments (far more than most of the blather I have seen on this topic). I think you have expressed a variety of good policy implications for accepting the arguments against birthright citizenship for illegal aliens. But I'm a formalist who believes strongly in originalism. So while these might be good arguments should we pass an amendment that clarifies or changes this, it doesn't seem to impact the actual legal arguments at issue. At least to me.

Posted by: Devin Watkins | Nov 2, 2018 10:55:21 AM

Probably , problem with the blog here , not with the link to Dorf.

Posted by: El roam | Nov 2, 2018 10:37:31 AM

By the way , the link to " Dorf on law " is broken , so here :

http://www.dorfonlaw.org/2018/10/can-trump-eliminate-birthright.html

Thanks

Posted by: El roam | Nov 2, 2018 10:33:17 AM

Interesting , but this is a legal issue , not social or philosophical one. Legal/ constitutional issue , that is to say that :

When interpreting the law or the constitution , one must stick to the legal path required here . Means :

The " starting point " must be :

The language , the wording , the text , and then , facing ambiguity or impasse , one must shift to the legislator intent ( whether subjective or objective , let alone ,the supremacy of the constitution ) .

Now , what do we have here :

We have both elements or stipulations :

Born in the US , and , the word " and " adding another stipulation :

" Subject to the jurisdiction of the United states " . However :

That is to say , that , being born in the US , wouldn't suffice , if doesn't meet the second stipulation . Otherwise :

Could be sufficient to be born in the US , and no more than that . So why the second stipulation dealing with " jurisdiction " ?? It must exclude , and not include , otherwise , being born is enough . It does cover any possibility finally .

So some argue ,that it is excluding : Indians tribes at the time . Others argue diplomats , foreign ships , but yet :

It does exclude , not include.The word " and " suggests only one thing : excluding not including , or ,legally ,futile description ( implausible right now ) That's it !!

So , the suggestion of the respectable author of that post , seems overwhelming with all due respect ( although in Utopian terms , desirable )

Thanks

Posted by: El roam | Nov 2, 2018 10:11:57 AM

Rick writes: "[N]one 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.'"

But it is the child, nor the parents, who must be subject to U.S. jurisdiction, and the child quite obviously has not entered the country in violation of American laws. There is no law against being born.

The question of the parents' allegiance or status therefore seems irrelevant to birthright citizenship under the plain language of the 14th Amendment. Or am I missing something?

Posted by: Steven Lubet | Nov 2, 2018 10:09:05 AM

This argument, like that of Schuck and Smith, overlooks the historical fact, emphasized by Gerald Neuman, that the citizenship clause of the Fourteenth Amendment was unquestionably intended to grant citizenship to the children of unauthorized migrants, namely, the children of enslaved persons brought here by criminals after the ban on the international slave trade in 1808. One might say that the slave trade is different than modern migration, yet the Constitution refers to it as "importation or migration." That is, the Framers understood it as a variety of migration, for whatever that's worth.

The immunity angle does not quite work for me. Foreign diplomats have a right to immunity by treaty which cannot legally be unilaterally terminated by the United States, although it is recognized by U.S. law. The United States saying it will create an immunity when it has no obligation to do so hardly removes the beneficiary from the jurisdiction of the United States; it rather proves the opposite, that it does have legal authority over the individual. And if that would work for noncitizens, why couldn't the U.S. do that on the basis of race? After all, the equal protection clause applies only to the states. The U.S. could have determined in, say, 1880, that African Americans were being discriminated against by the states so they should have federal immunity, with the sad consequence that they would not be "subject to the jurisdiction" of the U.S. and thus their children born in the U.S. would not be U.S. citizens. I do not think this strategem would have or should have worked.

If protection is the keystone to jurisdiction, it seems to me important that federal law protects even unauthorized migrants against various kinds of discrimination, and offers several limited paths to regularization of status, such as registry and withholding of removal.

Finally, the Fourteenth Amendment uses the word "jurisdiction" twice. The Supreme Court has held that they mean the same thing. The Schuck-Smith argument is going to have to find some way to overcome the plain language of the text.

Posted by: Jack Chin | Nov 2, 2018 10:02:56 AM

I agree there's no obviously correct answer. On the one hand, we want to avoid a permanent class of guess workers for pragmatic reasons. On the other hand, birthright citizenship does act as inducement to illegal immigration to at least some extent. I fail to see a principled basis for courts to choose between these alternative policies.

Posted by: Douglas Levene | Nov 2, 2018 8:58:34 AM

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