Complications and Clarity in Birthright Citizenship

The conventional wisdom is right.

Keith Whittington has a new piece on SSRN on originalism and birthright citizenship, defending the conventional wisdom that the children of non-domiciled immigrants born in the United States are “subject to the jurisdiction” of the United States and therefore constitutionally guaranteed citizenship by the Fourteenth Amendment. The piece is called By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States.

As I have linked before to two recent contrarian pieces, one by Ilan Wurman, and one by Kurt Lash, now may be as good a time as many for me to offer my basic thoughts on this debate.

The conventional wisdom is correct.

The phrase “subject to the jurisdiction thereof” excluded small categories of aliens who were taken outside of federal jurisdiction by principles of international law or martial law, such as the children of ambassadors and the children of invading armies, as well as a category of Indian tribes. Neither the original understanding of the phrase, nor an extension of its logic today, excludes the children of illegal aliens, let alone the children of visa holders.

What I find both interesting but ultimately frustrating about the scholarship on this issue is that there are some genuinely complicated things about the history, omissions in popular understandings about the topic, etc. So those who pick up some of the revisionist scholarship in this area may rightly think “wow, this is more complicated than I thought.” That’s true. But in my view none of those complications make it plausible that EO 14160 is lawful.

Because ultimately I fear so many people get lost in the weeds on this, I will just provide a few high-level thoughts here for now.

1. Because jurisdiction is and was “a word of many, too many, meanings” it is possible to find lots of rich and potentially contradictory discussion about jurisdiction of various kinds over various kinds of people in the 19th century, as Ilan Wurman did. But ultimately if you read discussion of the Fourteenth Amendment itself, it is pretty clear that they were using jurisdiction in the sense I described above — a sense drawn from other bodies of general law, such as the law of nations and martial law.

2. Because the nature of federal power over Indian tribes is complex — and was in both contestation and change in the second half of the nineteenth century — it’s possible to ask lots of questions about in what sense Indian tribes were not “subject to the jurisdiction” of the United States, as Kurt Lash did. In my view, the answer has a lot to do with the law of nations, and there is a lot more to be researched and written about it. But ultimately, whatever you think was happening with Indian tribes at the time, illegal aliens and visa holders today are just not at all like Indian tribes in the relevant sense.

3. There were also interesting complexities about dual citizenship. You can find some sources suggesting that those who were born here but ultimately domiciled elsewhere might ultimately have to elect between foreign citizenship or American citizenship. But ultimately this does nothing to support the executive order for two reasons. First, it depends on anti-dual-citizenship principles that we have since largely abandoned. Second, even if those principles existed, it suggests that those born here would be entitled to elect U.S. Citizenship at some point.

4. Zooming out, there is just no relevant sense in which illegal aliens and visa holders today are not subject to the jurisdiction of the United States. They are held liable for ordinary violations of local law (i.e., they owe us “allegiance”), and they bring ordinary claims under local law, such as contract and tort, as a matter of course (i.e., they are granted “protection”).

5. It is possible — though I am not at all certain about this — that Congress might be able to dramatically restructure federal jurisdiction in unprecedented ways so as to exclude some aliens. Maybe Congress could enact a new legal regime in which aliens were given a status akin to diplomats, or prisoners-of-war, or even 19th century tribes, and then use that status as a predicate for denying birthright citizenship. (That would mean that the famous Dellinger testimony/OLC memo is at least overconfident or oversimplified, and it would potentially put me in disagreement with Whittington, I am not sure.)

   But this possibility does not have anything to do with EO 14160. EO 14160 does not purport to create or recognize any such jurisdictional status, nor is there any reason to think that the executive branch on its own could restructure American jurisdiction if it tried.

In my view, this is a constitutional debate that has not been improved — on either side — by its potential relevance to public policy or to the litigation over Trump’s executive order. The history is complicated, many of the complications are worth exploring for scholarly purposes, but they ultimately have nothing to do with EO 14160.