The truth about Birthright Citizenship

(Note: See my further thoughts on the “subject to the jurisdiction” provision, below.)

In my previous entry on the Citizenship Clause of the Fourteenth Amendment, I did not deal with the “subject to the jurisdiction of the United States” provision, basing my argument on other factors. In fact the “subject to the jurisdiction” phrase is the key to the correct understanding of the Citizenship Clause, as made clear in a magnificent amicus curiae brief (available in pdf) written by Edwin Meese and John Eastman on behalf of the Claremont Institute and submitted to the U.S. Supreme Court in Hamdi v. Rumsfeld. The plaintiff in that case was an al Qaeda fighter captured in Afghanistan who claimed that because he was born in the U.S. when his parents were temporarily residing in Louisiana, though he was soon taken back to Saudi Arabia and raised there, he was a U.S. citizen and therefore entitled to all the procedural rights of a citizen.

Here are excerpts:

The current understanding of the Citizenship Clause is incorrect, as a matter of text, historical practice, and political theory. As an original matter, mere birth on U.S. soil was insufficient to confer citizenship as a matter of constitutional right. Rather, birth, together with being a person subject to the complete and exclusive jurisdiction of the United States (i.e., not owing allegiance to another sovereign) was the constitutional mandate, a floor for citizenship below which Congress cannot go in the exercise of its Article I power over naturalization.

And this:

The Citizenship Clause of the Fourteenth Amendment provides 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.” U.S. Const. Amend. XIV, § 1. As manifest by the conjunctive “and,” the clause mandates citizenship to those who meet both of the constitutional prerequisites: 1) birth (or naturalization) in the United States; and 2) being subject to the jurisdiction of the United States.

As noted above, Hamdi was indisputably born in the United States, so the issue in this case is whether he was also at the time subject to the jurisdiction of the United States. The widely-held, though erroneous, view today is that he clearly was. Any person entering the territory of the United States—even for a short visit; even illegally—is considered to have subjected himself to the jurisdiction of the United States, which is to say, subjected himself to the laws of the United States. Surely one who is actually born in the United States is therefore “subject to the jurisdiction” of the Unites States and entitled to full citizenship as a result, or so the common reasoning goes.

Textually, such an interpretation is manifestly erroneous, for it renders the entire “subject to the jurisdiction” clause redundant. Anyone who is “born” in the United States is, under this interpretation, necessarily “subject to the jurisdiction” of the United States. Yet it is a well-established doctrine of legal interpretation that legal texts, including the Constitution, are not to be interpreted to create redundancy unless any other interpretation would lead to absurd results. See, e.g., Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562 (1995) (“this Court will avoid a reading which renders some words altogether redundant”); see also Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case. W. Res. L. Rev. 179 (1989).

The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: “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.” 14 Stat. 27, ch. 31 (April 9, 1866). As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents remained a citizen or subject of the parents’ home country, was not entitled to claim the birthright citizenship provided by the 1866 Act.

And this:

The interpretative gloss offered by Senators Trumbull and Howard was also accepted by this Court—by both the majority and the dissenting justices—in The Slaughter- House Cases, 83 U.S. (16 Wall.) 36 (1872). The majority in that case correctly noted that the “main purpose” of the Clause “was to establish the citizenship of the negro,” and 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.” Id., at 73 (emphasis added).

Justice Gray appears not to have appreciated the distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.

Meese and Eastman’s most powerful section is their last, part of which I quote below:

III. The Overly-Broad Reading That Has Been Given to Wong Kim Ark Is Incompatible with the Theory of Government by Consent Adopted by the Founders and Reaffirmed by the Framers of the Fourteenth Amendment.

Once one considers the full import of Justice Gray’s language in Wong Kim Ark, it becomes clear that his proposition is simply incompatible not only with the text of the Citizenship Clause but with the political theory of the American founding as well.

At its core, as articulated by Thomas Jefferson in the Declaration of Independence, that political theory posits the following: Governments are instituted among particular peoples, comprised of naturally-equal human beings, to secure for themselves certain unalienable rights. Such governments, in order to be legitimate, must be grounded in the consent of the governed—a necessary corollary to the self-evident proposition of equality. Decl. of Ind. 2. This consent must be present, either explicitly or tacitly, not just in the formation of the government but in the ongoing decision whether to embrace others within the social compact of the particular people. As formulated in the Massachusetts Bill of Rights of 1780:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights …. The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. Mass. Const. of 1780, Preamble (emphasis added).

Thus, as Professor Edward Erler has noted:

[T]he social contract requires reciprocal consent. Not only must the individual consent to be governed, but he must also be accepted by the community as a whole. If all persons born within the geographical limits of the United States are to be counted citizens—even those whose parents are in the United States illegally—then this would be tantamount to the conferral of citizenship without the consent of ‘the whole people.

* * *

First, I want to stress how remarkable is the paragraph beginning, “At its core.” Here are two contemporary Republicans, speaking about the Declaration of Independence, not just in the usual terms of its being a declaration of individual rights, but, as I have repeatedly done, as a declaration of the rights and the sovereign existence of the American people as a particular people. This is exceptional, and shows how traditionalist, non-liberal ideas are starting to become influential in mainstream thinking.

Unfortunately, Meese and Eastman’s profound argument about consent as the basis of the granting of citizenship and their other important arguments did not hold sway with the Supreme Court, which accepted Hamdi’s claim that he is a citizen. The Court thus left intact the patently incorrect understanding of the Citizenship Clause, dating from the 1898 Wong Kim Ark decision, that anyone born in the U.S., including the child of an illegal alien, is a citizen. Indeed, as we can see from the full text of Hamdi v. Rumsfeld, the Court did not deal even glancingly with the arguments made in the Claremont brief. The Court simply assumed as a matter of course that Hamdi was “born an American citizen in Louisiana in 1980,” and went on from there. As an index of how far off the justices’ radar screen was any questioning of the erroneous conventional view of the Citizenship Clause, the word “citizen” only appears three times in the 28,000 word decision. Nevertheless, Meese and Eastman’s great statement should be the basis for an ongoing campaign to remove the outrage of birthright citizenship, something we can never accept.

The reality is that we are living under a revolutionary regime. Let us drop the pleasant thought that we are living under the Constitution and laws of the United States. Fundamental aspects of our Constitution and the rule of law have been rendered inoperative or turned on their head by lawless Courts and legislatures claiming to act in the name of the law. The alien invaders permitted into our country by the government are here without our consent, and the citizenship given as a “right” to perhaps millions of their children has been granted in gross violation of our consent, and, indeed, as Meese and Eastman show, of our sovereign rights and our very existence as a people.

- end of initial entry -

A reader writes:

The Eagle Forum’s brief in the Hamdi case is also very useful.

Also, you wrote: “The Court thus left intact the patently incorrect understanding of the Citizenship Clause, dating from the 1898 Wong Kim Ark decision, that anyone born in the U.S., including the child of an illegal alien, is a citizen.”

I am sure the Wong Kim Ark case did not contain any support for the current, incorrect view. The Court there actually carefully delimited the circumstances in which the U.S.-born Chinese could be a citizen. I usually see that case cited in rebuttal to the current view.

It is still disturbing though that the Court in Wong only required that the foreign parents be legally domiciled here for their children to obtain citizenship.

LA replies:

The reader is correct. Wong concerns non-citizens legally present in the U.S., not illegal aliens. But the point of Wong carries over to illegal aliens: that a person born in the U.S. of non-U.S.citizens and subjects of a foreign country automatically becomes a citizen, thus taking away the American people’s right to consent or not to consent to a person’s becoming a citizen. Once that right is established for non-citizen resident aliens, and once we add the principle from Plyler (or some other case?) that all persons in the United States regardless of legal status are “persons” under the 14th Amendment, then it’s inevitable that the children of illegals will also be treated as automatic citizens.

What would the law be like if the consent upon which Meese and Eastman lay such stress were respected? I’m just guessing here, but it seems that children of U.S. citizens would automatically be citizens. Children of legal aliens would be legal aliens and would have to be naturalized in order to be citizens (naturalization is the process that involves the mutual consent between the American people and the new citizen). And children of illegal aliens would be illegal aliens.

LA continues:

However, according to Wikipedia, it is not at all clear that Wong relates only to legal resident parents. Apparently the conventional view of Wong, and especially the view of Wong as stated in Plyler v. Doe which is based on Wong, is that anyone born to parents in the United States is a citizen of the U.S., with only two exceptions: if the parents are diplomats serving a foreign sovereign, and if the parents are enemy aliens. In this view Wong makes no distinction between being born to legal resident parents and being born to illegal alien parents.

Howard Sutherland writes:

Great to see you tackling this subject, which is one of the most important aspects of America’s immigration problem. Remove the near-irresistible lure automatic birthright citizenship creates, and who knows how the behavior of foreigners thinking of coming here might change. The only way to justify the current federal misinterpretation is to read the Citizenship Clause as though the words “and subject to the jurisdiction thereof” were not there. Well, they plainly are there, and not for no reason.

As it happens, this is a topic I have written about in the past. These articles are a pretty good, and fairly brief, introduction to the history of the Citizenship Clause:

http://www.vdare.com/sutherland/weigh_anchor.htm
http://www.vdare.com/sutherland/rescue.htm
http://www.amconmag.com/2004/2004_09_27/article.html

The feds’ misinterpretation could easily be corrected by Congress, although there is evidently little will in that ever-less-august body to tackle the problem. We don’t need yet another constitutional amendment, in this case to tell us what the Constitution already says. Both Paul and Tancredo are on record supporting elimination of birthright citizenship, whether by legislation (as the 14th Amendment allows) or amendment.

LA writes:

As will be seen in my response to Robert B’s quotations of the Fuller-Harlan dissent to Wong in a later entry, I no longer find the Meese-Eastman arguments relating to the “subject to the jurisdiction” provision dispositive. Yes, as Meese and Eastman argue, when the framers of the Fourteenth Amendment wrote the words “subject of the jurisdiction” of the United States, they likely meant “subject to the complete and exclusive jurisdiction of the United States (i.e., not owing allegiance to another sovereign).” But, unfortunately, that is not what the Fourteenth Amendment says. Nor did the Framers use the clearer language of the 1866 Civil Rights Act, which Meese and Eastman quote: “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.” Instead, they used the more ambiguous phrase, “subject to the jurisdiction thereof.” See my discussion of this issue in the entry linked at the beginning of this paragraph.

My bottom line is, if the Congress and the people had been asked in 1867 whether they understood the Fourteenth Amendment to mean that children of legal and illegal aliens should automatically be U.S. citizens, they certainly would have said no. And on that basis alone birthright citizenship should be rejected. But I do not think that the Meese-Eastman and the Fuller-Harlan reading of the “subject to the jurisdiction” provision, in which they have to read things into the language that are not necessarily there, is the most solid basis on which to reject birthright citizenship. To my mind, the first approach, “What would a reasonable person at the time have thought that this language meant,” is a better basis for constitutional interpretation than trying to find meanings and intentions in words that are not necessarily there. “Subject to the jurisdiction thereof” could mean “subject to the exclusive jurisdiction thereof,” but it doesn’t necessarily mean that.

Also, according to Howard Sutherland’s article, in the debates on the Fourteenth Amendment its drafters made explicitly clear that “subject to the jurisdiction thereof” meant “subject to the exclusive jurisdiction thereof.” So the stated intentions of the framers of the Fourteenth Amendment would also be a solid basis on which to reject birthright citizenship. My only point here is that by itself the language of the Citizenship Clause is ambiguous, and therefore relying solely on that language is not a solid basis for overturning birthright citizenship.

Howard Sutherland writes:

Thank you for posting the links to my Citizenship Clause articles, and thanks again for taking on the birthright citizenship question. It’s hard to overstate its importance.

I like your analytical framework (Would those who ratified this have done so if they had known it would be applied this way?) and I think it is consistent with original intent analysis of constitutions and other legislation. Of the methods of textual analysis in litigation current today, I think originalism is the most honest—as long as the starting point is the language of the provision being interpreted and analysis stays as close to the text itself as possible. If that language is clear, there is no need—and no warrant—to look outside the “four corners of the document”; simply apply the provision according to its plain meaning. If the statutory meaning is not entirely clear (and I agree the Citizenship Clause is not a masterpiece of drafting), then look also at the expressed intent of those who drafted and enacted it. The logical place to do that is the legislative history of the provision, especially recorded debate of it. For the Citizenship Clause, that is in the Congressional Globe’s transcript of the U.S. Senate debate of the language of the Citizenship Clause on May 30, 1866. I read that when I researched my August 2001 VDare article on the Citizenship Clause, and I quote it fairly extensively. After reviewing the Senate debate—the formal record of the Citizenship Clause’s proponents’ legislative intent—I don’t see how one can honestly read the Citizenship Clause as a blanket or even general grant of citizenship to non-citizens’ children born within the United States. Nevertheless, the clause’s drafters would have done better to adopt the more explicit language they used in the Civil Rights Act of 1866. In the Senate debate, Sen. Jacob Howard of Michigan, who introduced the amendment, explained the reach of the jurisdiction phrase in words very similar to those of the CRA of 1866. Maybe they thought Constitutional language should sound more elegant than the words of a mere act. If so, costly mistake!

LA replies:

Sen. Howard said:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Forgive my irritation, but there is some stupidity in the American bloodstream that if THAT’s what Sen. Howard and his colleagues meant, they didn’t make that clear in the Amendment itself. Look at the cost of their notion that Constitutional language needs to sound “uplifting” rather than be clear and unambiguous. Don’t want to be too specific! Don’t want to say that children of foreigners and aliens would not be citizens under this Clause! That’s wouldn’t be high-class enough!

However, explicit mention of foreigners and aliens would not have been necessary to avoid ambiguity. As I’ve already pointed out, the Congress could have avoided all the problems that their imprecise language has caused us, if they had simply worded the sentence thus:

“All persons born or naturalized in the United States, and not subject to the jurisdiction of a foreign power, are citizens of the United States…”

But perhaps even that would have sounded too “narrow” to the American mind, which always insists on the most universal possible formulation of its ideas, even when the ideas themselves are particularist.

Ok, so they could have left out any reference to a foreign power, and just made clear that the person’s connection to the United States is undiluted, like this:

“All persons born or naturalized in the United States, and subject to the exclusive jurisdiction thereof, are citizens of the United States…”

Nope, that word “exclusive” would still sound too “narrow” to the American mind. Of course, they meant exclusive, but would have hesitated to put such plain language in the Constitution. And so they left us with this unbelievable mess, or, rather, they left the opening for the Court in Wong to leave us with this unbelievable mess.

LA to Eric E (who had sent the Meese-Eastman brief):

I’ve been feeling my way into the issue, and, I hope, correcting any errors as go along. Please feel welcome to register any opinions about what’s been posted so far.

Eric E. writes:

Clearly you got it. Meese and Eastman’s technical discussion, coupled with their definition of how it relates to the concept of self government, is as you said, magnificent.

Never again will I think of Ed Meese as just another party hack. Clearly a press hatchet job on him, and I fell for it 25 years ago.

I would only comment…. where did we go wrong, how did the understanding of who the people were get changed to something so contrary to what was obvious two centuries ago … that the Constitution is an agreement among one people, that it incorporates them and their posterity only, and of course those they AGREE to admit into the group, at least until everyone agrees that the party’s over and it’s time to go our separate ways?

My opinion is that it proceeds from a misunderstanding of this phrase:

“All Men Are Created Equal”

This means simply that no man is born a king. That’s all. It’s a rejection of feudalism and its offspring, royalty.

But as you have pointed out, the universalist misinterpretation of our society appends a conclusion to this statement, taken out of whole cloth: If all Men are created equal, then we have no right to discriminate in any way against any of them, and therefore All Men are to be considered Americans, for to deny them that would be to deny their equality to us, which is discriminatory.

This has one linchpin: the denial of the existence of an American nation, a particular group of people, to start with. If you agree to that, using the misinterpretation of the line from the Declaration, you immediately arrive at the conclusion that everyone is an American, they just haven’t gotten here yet.

Reductio ad Absurdum? Perhaps. But the results are clear to see. The American nation is being obliterated, submerged in a sea of unrecognizable faces. But we were never here to begin with, according to the non-discrimination theory. There never was an American nation, at least not a legitimate one. According to this principle, the only legitimate nation is no nation at all.

You can take it from there.

LA replies:

Here is information on John Eastman (whom I hadn’t heard about before—note that he worked as law clerk to Clarence Thomas and has done several amicus curiae briefs for Claremont including the Boy Scouts case):

http://www.ashbrook.org/about/staff/eastman.html

And Meese (who is not that old, he is 75, so he wa 73 when he worked on the amicus curiae brief with Eastman):

http://en.wikipedia.org/wiki/Edwin_Meese

Posted by Lawrence Auster at July 29, 2007 04:14 PM | Send