Strengthening Constitutional Self-Government

No Left Turns

Originalism and Citizenship

If, as Steve notes below, "We’re all originalists now," might we be able to revisit the absurd notion that being born on U.S. soil is a sufficient condition for citizenhip.

As Ed Erler notes, that conclusion is a far cry from the orignial intent of the Fourteenth Amendment.

The Civil Rights Act of 1866 had previously asserted that “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The immediate impetus for the Fourteenth Amendment was to constitutionalize and validate the Civil Rights Act because some had questioned whether the Thirteenth Amendment was a sufficient basis for its constitutionality. A constitutional amendment would also have the advantage of preventing a later unfriendly Congress from repealing it.

One conspicuous departure from the language of the Civil Rights Act was the elimination of the phrase “Indians not taxed.” Senator Jacob Howard of Ohio, the author of the Citizenship Clause, defended the new language against the charge that it would make Indians citizens of the United States. Howard assured skeptics that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the United States because they owed allegiance—even if only partial allegiance—to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.

By itself, birth within the territorial limits of the United States, as the case of the Indians indicated, did not make one automatically “subject to the jurisdiction” of the United States.

Update: Professor Erler has a longer version of this essay, with more documentation in the recent Claremont Institute book, The Founders on Citizenship and Immigration.

Discussions - 10 Comments

Too bad originalist judges focus on the text of the provision (which provides for birthright citizenship) rather than legislative history. Otherwise, your point might make sense.

If Congress acted as Erler recommends, it would be held unconstitutional by a vote of 9-0.

Is there no wiggle room in the text for interpreting "subject to the jurisdiction thereof" according to the original intent?

There is no wiggle room if you are talking about non-slaves and non-Indians. The general rule of birthright citizenship was adopted from English common law (where it dated to at least 1608). The United States adopted this view before the 14th Amendment was ratified. An Ohioan, Justice Noah Haynes Swayne, nicely summarized the pre-14th Amendment rule: "All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country ... since as before the Revolution."

The general pre-14th Amendment rule was that persons born in the United States were "subject to the jurisdiction thereof." Erler is aware of this, but he basically tries to rewrite history by using a couple of quotes from Thomas Jefferson to prove that the United States "repudiated" the English rule of birthright citizenship. Erler's problem is that he is just wrong about the pre-14th Amendment state of the law. The United States followed the English rule, as Justice Swayne makes quite clear. Some of us may find his "natural law rejected the English common law" appealing, but that does not make it historically accurate.

Erler's piece actually proves why originalist judges do not rely on legislative history. It is far too easy to manipulate. Erler abuses it the same way liberal judges do. Senator Howard's comments refer to one group (Indians) that was historically exempted from the general rule. Erler takes those comments out of context to falsely claim that the non-birthright rule for Indians (a narrow exception) was actually the general rule applicable to everyone else.

It seems to me that you're appealing to legislative history here too. What else justifies your presumption that the meaning of the phrase "and subject to the jurisdiction therof" is the old rule? The plain meaning could cut both ways. There is nothing in the plain text that suggests that the exception was only meant to apply to Indians.

And didn't the Court discuss the legislative history of the text of the Second Amendment just the other day?

One further point. If memory serves, the committee deliberations on the language of the 14th Amendment were not published right away. Swayne may have incorrectly assumed that the the change in the language, which was different than the old common law language, was changed by accident.

There may have been a reason why they changed it from "allegiance" to "subject to the jurisdiction thereof." That change would be a reason, within the text, to conclude that they were not following the common law. No? Or perhaps that too was an established language meaning the same thing.

The question of the status of the children of Chinese workers in the West probably came up. I don't have access to the original source just now to check what they said. (For some reason Google books has a new edition, rather than the 1914 edition, so I can't check the full text). My memory is that it tracked with the comments about Indians, but I could be wrong.

The Debates in the first session of the 39th Congress are in the Congressional Globe. (P. 572), As they developed the language for the Amendment, they mention: "not subject to any foreign power or tribal authority." In short, they separated foreign powers from tribal authorities. They were referring to both. The page is available here.

And in the paragraph above the one I just quoted from P. 572 of the Congressional Globe from the 39th Congress, Senator Trumbull alludes to the finding in Calvin's Case of 1608, and explains that the language was designed to get around some of the complications it caused.

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me:
I lift my lamp beside the golden door.

America was indebted to immigration for her settlement and prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture and the arts.

Richard, I did not appeal to legislative history. The only time I discussed legislative history all at was when I pointed out how badly Erler misused it.

So what justifies my “presumption”? Take a look at United States v. Rhodes, the Supreme Court case I mentioned above. The Supreme Court held that birth within the United States makes one a natural-born citizen. It did not pull that rule out of thin air. Earlier cases give you quotes like this: “It is therefore the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents.” Lynch v. Clarke (1844). The nation never “repudiated” the English common law rule, as Erler claims. It did exactly the opposite. Erler’s historical account of the period between the Declaration and 1866 is not only incorrect, it is the opposite of what actually happened.

If a judge finds ambiguity in the phrase “subject to the jurisdiction thereof,” the very first thing the judge will ask is what that phrase meant in 1866. Who was subject to the jurisdiction of the United States? There is no doubt about the answer. Rhodes answers the question as “all persons born in the allegiance of the United States.” The only persons not born “in the allegiance” of the United States were the exceptions mentioned in my earlier post, and “the children of ambassadors,” who “are in theory born in the allegiance of the powers the ambassadors represent.” The court made it quite clear that, other than those exceptions, the rule of birthright citizenship was universal. (If you can find a copy of Rhodes, see page 789.) That is the legal backdrop of the 14th Amendment.

The language you quote from the Congressional debates adds nothing to the analysis. It simply confirms what I have already said. However, since you like using legislative history, let’s take a look at what Senator Howard actually said. “This amendment which I have offered is simply declaratory of what I regard as the law of the land already.” This thoroughly disproves Erler's theory. "The law of the land already" was birthright citizenship, with very few exceptions for the discrete classes we have discussed. Howard explained that the Amendment was not meant to include those discrete classes, “but will include every other class of persons.” The Chairman of the House Judiciary Committee stated that the provision defining citizenship is “merely declaratory of what the law now is.” He defined “what the law is now” by quoting William Rawle’s constitutional treatise: “Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”

Your comment regarding Calvin’s Case does not change any of this. Saying that one senator (or even 100 senators) thought that the original 1608 English case caused some complications is a far cry from saying the common law rule was “repudiated” in the United States. It was not, as even a very basic review of the case law makes clear. It is also a far cry from saying that the framers of the 14th Amendment meant to abandon the rule. They did not, and they said so explicitly.

Once you account for Erler’s glaring historical inaccuracies (i.e., his claim that the early United States “repudiated” a rule that it actually adopted as its own common law), his position is untenable. He wants us to assume that the 14th Amendment, which was intended to expand citizenship to a class of persons that had historically been excluded, also cut back on other classes of persons already granted citizenship by the prevailing rule, but did so without saying so anywhere in the text. And of course, we have have to make that assumption in spite of the fact that the Amendment’s author and the relevant committee chairman each explicitly said that they did not intend to change the preexisting law.

By now it should be obvious why almost no one takes this argument seriously. The courts certainly don't. They rejected this view before the 14th Amendment was written, and they continued to reject it afterward. Congress doesn't. Federal law codifies my understanding of the birthright rule almost verbatim. There is no wiggle room.

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