From A Reader: Thoughts on Why the Barnett/Wurman Contrarian Take on the Citizenship Clause Does Not Convince

There is much to say about the current attention to birthright citizenship under the Fourteenth Amendment, as well as to the not entirely scholarly way in which that debate is being conducted in the public sphere. But I’m not going to say any of that in this post.

Instead, I’m going to pass along a long and very thoughtful response I read to the arguments made by Randy Barnett and Ilan Wurman recently in the New York Times and on the Volokh Conspiracy, from an unnamed reader. I thought it was worth sharing in the name of continuing to advance the more scholarly parts of that debate:

Thoughts on Why the Barnett/Wurman Contrarian Take on the Citizenship Clause Does Not Convince

The following is in the nature of an informal open letter to Professor Randy Barnett and Professor Ilan Wurman, responding skeptically to their New York Times opinion piece and Volokh Conspiracy blogpost that question the conventional historical understanding of the Citizenship Clause of the Fourteenth Amendment. This letter is not intended to be a comprehensive analysis of this issue, or indeed of the arguments that Barnett and Wurman have made thus far. Instead, it aims to complement critiques that others have already made—to take Barnett and Wurman’s arguments on their own terms and explain why they are methodologically and analytically unpersuasive.[1]

I. Methodology: The Elision of Original Public Meaning

Most obviously, for pieces describing themselves as aimed at elucidating the original public meaning of the Citizenship Clause, it is striking that your op-ed/blogpost do not discuss any source from the time period immediately around enactment of that clause—say, 1865-1872. Nothing from Congressional or public debate about black/freedman citizenship at the end or immediately after the war; or Congressional and public debates over the Civil Rights Act of 1866; or Congressional and ratification debates over the Fourteenth Amendment. I trust you can understand why that seems a bit eyebrow-raising.

I recognize that you’ve said, both in the VC blogpost and on Twitter, that the goal of this op-ed is to establish the common-law backdrop against which the relevant debates occurred; but I just don’t think that works.

A. You say in the VC post that you “presume, as the Supreme Court has, that the Fourteenth Amendment's language "subject to the jurisdiction" of the United States was intended to encapsulate the [common-law] rule, whatever it was”; and taking issue with your “presumption that the language of the amendment tracks that rule as opposed to doing something else” is a valid basis for disagreement. But doesn’t that all but concede away the store?

If the goal is to enrich the arguments with respect to the validity of the citizenship EO as a matter of original public meaning—which I take to be your ultimate bottom-line aim—I would think you actually have to tackle the original public meaning itself, not some simplified, “presumed” version of that meaning. (Even granting for the moment your assertion that the Supreme Court did things your way in Wong Kim Ark, I’m not sure what difference that should make, from an originalist’s standpoint.)

Put differently: if one is not interested in the original public meaning as it actually existed, I don’t quite know what all this detailed effort at historical analysis is supposed to be relevant to—why, by your lights, we should care.

B. So then the question, as a historical matter, is what parts of the common-law/birth-upon-the-soil paradigm were (publicly) understood to be incorporated into the Citizenship Clause. One possible answer is “all of it”—that the drafters and ratifiers simply said, “we like the common law model and that supplies the meaning of the Citizenship Clause.” Another possible answer is “we like the general common-law principle that birth on the soil confers citizenship, but now we need to futz around with it a little bit to make sure that the boundaries of jus soli birthright citizenship in 1868 are where we want them to be.” Or something else entirely.

No matter what, though, you still need an account of how the common-law model and the language of the Citizenship Clause relate to one another. At the very least you need a cogent and sustained defense of your decision to treat them as coextensive. And I don’t see how you’ve supplied that, either in the op-ed or the VC blogpost.

(You say in the blogpost that the original public meaning of the text is what matters; and “if [the public meaning of the text] incorporated the common law rule, the actual content of that historical rule is what matters” [emphases added]. But don’t you still have to justify your conditional?)

II. The (Partial?) Relationship Between Common-Law Citizenship Doctrine and “Subject to the Jurisdiction”

Relatedly, a recurring thread in the op-ed and VC blogpost both is the way they compare the conventional reading of “subject to the jurisdiction” (as you gloss it, that it means “simply subject to the power of the U.S. government, its army, its courts and its laws”) with various features of common-law doctrine—and then say that because, in your view, the conventional reading cannot fully explain all aspects of common-law citizenship doctrine (or would give rise to certain anomalies if credited), then it cannot be the public meaning of “subject to the jurisdiction.”

But I would think that assumes (i) the public meaning of “subject to the jurisdiction” was one that accounted for all aspects of common-law citizenship doctrine; and (ii) drafters, ratifiers, voters, etc would agree with your view that inconsistencies exist between common-law doctrine and the conventional modern reading of the Citizenship Clause.

I’ve already laid out above my disagreements with assumption (i). What about assumption (ii)? Let’s assume for a second that you’re correct that the conventional modern understanding of “subject to the jurisdiction” and the historical common-law rule are at points an uneasy fit, analytically. But couldn’t legislators, ratifiers, citizens ca. 1868 have had a different, incorrect understanding of whether the two principles fit together well enough? Isn’t their view, not ours, what matters from an original meaning standpoint? (Cf. the debate over the role of the so-called Barron contrarians in drafting the Fourteenth Amendment.)

(This is one more reason, I’m afraid, why your decision in the op-ed/blogpost to avoid grappling with legislative/public debates, etc, from, say, 1865-1872, seems to be fundamentally flawed.)

III. Understanding Common-Law Citizenship Doctrine’s Exceptions to the Birthright Citizenship Rule

For what it’s worth, I don’t think that you are necessarily correct about how many anomalies result from juxtaposing the conventional reading of “subject to the jurisdiction” with the common-law rule as usually understood.

A. The op-ed refers to the issue of “children born to citizens residing within enemy-occupied territory, who appear to have been considered citizens if their parents remained loyal”; and the blogpost discusses “the status of children born to loyal Americans in enemy-occupied territory” who “were presumed to be citizens upon reconquest.”

For both these examples, you reference the Supreme Court decision in Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99 (1830). I can’t quite tell whether you meant to be referring to the same scenario in both examples (if, that is, in the op-ed, there was omitted for space language to the effect of “if their parents remained loyal and the territory was reconquered”); or if the op-ed was talking about the doctrine of election and the blogpost was talking about the effect of reconquest.

If you have in mind the doctrine of election, I don’t see how that creates the kind of anomaly you’re talking about, given that the caselaw (Inglis itself and many other cases) consistently discusses the doctrine as a sui generis, time-limited exception to the typical rule. If you’re talking about reconquest, the most obvious point to make is that this doesn’t come from the opinion of the court, but from the solo portion of Justice Story’s concurrence. (Now, I grant you Justice Story is a name to conjure with; but precision and accuracy matter even so!)

Setting that aside, Story discusses the effect-of-reconquest idea as an example of “exceptions” to the standard common-law rule, “which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine.” 28 U.S. at 155. The reconquest “exception,” as I understand it, is based on the principle (or perhaps constitutes the principle) that “birth within the allegiance of a foreign sovereign, does not always constitute allegiance, if that allegiance be of a temporary nature within the dominions of another sovereign.” Id. at 156.

Now to me, this feels more like a case of special pleading on the part of common lawyers to avoid an obviously undesirable result—an epicycle, if you will—than an analytically pure/harmonious working out of the basic principles. And I think Story can fairly read as obliquely acknowledging the point, when he says that “the children of the natives,” following reconquest, are “deemed, by a sort of postliminy, to be subjects from their birth.” Id.

At a minimum, I think the best reading of this passage is definitely that Story is treating the effect-of-reconquest principle as an unusual scenario that common lawyers have agreed should not be treated as coming within the normal rule. So it strikes me as questionable to say that any discrepancy between the conventional understanding of “subject to the jurisdiction” and the effect-of-reconquest rule creates doubt about how well the conventional understanding matches the common-law rule.

Put differently, that Interpretation A fits well with Rule B, but not with Rule-Exception B’, only creates doubt about the proper fit between A and B if B’ is a really important exception that everybody understands to be significant in understanding the scope and contours of B. And you’ll forgive me if I don’t think you’ve shown the effect-of-reconquest rule to have that kind of significance in antebellum common-law-citizenship thought. (Assuming, of course, that this is a rule accepted and applied by other common-law jurists before and after Justice Story, which you haven’t shown either. I haven’t looked at the literature in this area in a while and don’t recall one way or the other. But there is a bit of an evidentiary foundation problem here.)

B. The op-ed also refers to the issue of the “the status of children born to foreigners on foreign public vessels in U.S. waters, who were not considered citizens.” But doesn’t that result follow from applying principles derived from the Schooner Exchange v. M‘Faddon, 11 U.S. 116, 141-146 (1812)—i.e., that as a matter of what today we’d call public international law, the United States, in concert with other sovereigns, has agreed not to exercise its full jurisdiction over foreign public vessels in U.S. waters/U.S. ports? Is your argument that common-law authorities between 1812 and 1865 or thereabouts didn’t extend Schooner Exchange to foreign non-military public vessels, such that this citizenship puzzle still exists notwithstanding the approach taken in that case, or that they departed from the Schooner Exchange approach? If so, what is your basis for saying that? If not, then where’s the problem, exactly?

Granted, your blogpost formulates the puzzle slightly differently, namely as encompassing the citizenship status of children born to foreign parents on any foreign vessel in U.S. waters, not merely foreign public vessels. I’m not sure, though, whether the difference in phraseology was intentional or not. If so, from where do you derive the rule that children born in that situation were not considered U.S. citizens by birth within the territory and jurisdiction? (I realize that Justice Story’s concurrence in Inglis talks about children born on foreign vessels to foreign parents being foreign citizens; but I think it’s reasonably clear from context that he’s talking about the high seas, not U.S. territorial waters, given the language there about the child “born on the ocean” being “born in a place where [the child’s sovereign] has dominion in common with all other sovereigns.” See 28 U.S. at 155.

One other point there: you talk in the op-ed about the fact that children born on foreign vessels in this scenario are “subject both to U.S. protection in at least some sense, as well as the application of U.S. law,” because “[n]umerous state and federal laws are applicable” to them. One obvious question, of course, is whether this was true during the historical period you are examining. The other obvious question is whether laws are applicable to them (or were applicable to them at the time) to the same extent as children born on U.S. soil to foreign parents. If not, isn’t there a good argument that they are not fully subject to U.S. sovereign authority in the relevant sense, as needed under the common-law rule to give rise to citizenship?

C. This is also, I think the explanation for the “class of Native Americans on American soil, not subject to tribal authority, but over whom the U.S. had never taken jurisdiction” that you reference in the blogpost—namely that they were living in territory and in circumstances such that U.S. sovereign authority existed over them in name only, without real authority over them as a practical matter. Or, at the very least, this is how the drafters of the Fourteenth Amendment explained why they would not be “subject to the jurisdiction.” (Lyman Trumbull gave a whole paragraph-long disquisition on precisely this point, as I’m sure you know. See Cong. Globe, 39th Cong., 1st Sess. 2893 (1866).) Now, is that a perfect analytical fit? Ehh, maybe not. Was it enough of a tenable distinction to persuade people at the time that “subject to the jurisdiction” could be fairly said to exclude them? That’s certainly how the Civil Rights Act/Fourteenth Amendment citizenship debates in Congress read to me. So again—where is the anomaly here that requires explanation?

D. You also say that the “sovereignty account suffers from a more absurd defect that gets to the root of today's debate over immigration,” namely that sovereignty includes “the right to decide which foreigners shall become a member of the society, whether on a temporary or permanent basis,”; and therefore that divorcing sovereignty from the power to decide yea or nay to a foreigner’s membership in society, at least for purposes of a citizenship rule, is inherently self-contradictory.

A couple points there. First, the conventional account, as I’ve always understood it, is grounded in equating “jurisdiction” in the citizenship clause with the full extent of the federal government’s inward-facing law-making/law-execution/law-enforcement authority over a child who is already within U.S. territory (bracketing here The Insular Cases). I’m not sure it’s right to say that this conception of jurisdiction is inherently self-contradictory.

Now, you might reply that even if it’s not self-contradictory, equating “jurisdiction” and inward-facing authority—and thus narrowly drawing limits on birthright citizenship—would be self-defeating, because of the problems inherent in effectively depriving society of the choice of whom to admit to membership (or not).

I understand, from a policy standpoint, why people might find that reply appealing. The problem from a historical standpoint is obviously that this emphasis on society getting to choose who it wants to be a citizen was a core premise of the antebellum decisions (most notoriously Dred Scott) that held that free black people were not citizens. So why, then, would legislators, ratifiers, public, etc, all understand the Citizenship Clause of the Fourteenth Amendment as relying on that same premise?

Certainly the Congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment reflect that opponents of the Citizenship Clause(s) didn’t think the Clauses afforded society the choice to consent/refuse consent to a child’s citizenship—as they themselves said, that’s a key reason they were in opposition in the first place! I mean, maybe there’s evidence to be found in the ratification debates, etc, that the public at large didn’t understand these Clauses that way; but if there is, I don’t think anybody’s ever unearthed it.

IV. What Edward Bates’s Citizenship Opinion Does, and Does Not, Tell Us about Limits on Birthright Citizenship

Let’s talk now about Edward Bates. Bottom-line up front: I’m really not sure where in Bates’s citizenship opinion you derive this idea of the “social compact” from. At a minimum, I tend to think you are putting much more weight on snippets from Bates’s opinion than they will bear.

A. For one, the opinion isn’t aimed at elucidating precisely what is meant by “jurisdiction,” “allegiance,” etc. It’s aimed at rebutting the largely-but-not-exclusively Southern argument, culminating in Dred Scott, that said, in effect, all citizens are entitled to the same rights and privileges, so individuals who are deprived of some of those rights and privileges by statutes etc can’t be citizens. And his answer is, basically, everyone born on the soil is a citizen no matter what political rights, etc, they might enjoy. It’s a very thin and (to me) unsatisfying conception of citizenship, but it worked for the people in the political middle, like, well, Bates. (I’m sure you’re aware of it already, but Ryan C. Williams’s Virginia Law Review article on Bolling v. Sharpe has a great discussion of this debate/dynamic.)

Also, nobody at the time was disputing that free black people born in the United States would be born on the soil in the relevant sense—only what consequences should be understood to follow from that. So to treat Bates as having said something meaningful and consequential on when being born on the soil would/would not give rise to citizenship strikes me as getting out from the text more than Bates was putting in.

B. Now, that doesn’t necessarily mean you’re wrong! (Obligatory Barthes death of the author reference goes here.) What Bates took for granted about birthright citizenship, jus soli, etc, while fighting this other fight could conceivably be revealing on the issue we’re dealing with now. But do his implicit (or explicit) assumptions in his citizenship opinion support the argument you’re making? Respectfully, I really don’t think they do.

After all, Bates emphasizes that the allegiance/protection dyad that everybody focuses is understood to apply, begin, give rise to citizenship at birth. As he says, “[i]n every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country.” Absent some clear exception to the general rule, the sovereign owes protection to everyone born within the sovereign’s territory, and they owe allegiance to the sovereign right back.

My question, then, is this—where does Bates suggest that the citizenship status of the parents, and whether they have fully complied with their obligations to the sovereign of the nation in which they are living (and in which the child is born), have any role to play here? After all, he emphasizes the “great legal fact that the child takes its political status in the nation where it is born” led Congress to “pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries.”

The only example Bates gives, as far as I can tell, of an exception to this weighty prima facie presumption that would flow from the status of the parents is “the small and admitted class of the natural born composed of the children of foreign ministers and the like” (emphasis in original). If that’s what you’re relying on to show that as a general matter, parental citizenship status and so on matters under the common-law rule, I have to say that’s an awfully thin reed. And if that’s not what you’re relying on, I struggle to see why you’re leaning on Bates at all.

C. You say in your blogpost that Bates invoked “the conception of the social compact to receive protection in return for obedience to the laws . . . which constitutes ‘allegiance’ in a republic.” Or perhaps you meant to say that Bates invoked the conception of the social compact under which the individual receives protection in exchange for ‘allegiance,’ i.e., obedience to the sovereign’s laws? (The sentence is a little unclear, I think.) Either way, I still don’t follow, and I don’t think your blogpost really explains, why Bates’s invocation of the allegiance/protection dyad supports your view. That is, I still don’t see how centering allegiance/protection shows, or tends to show, that the antebellum common-law rule treated parental obedience to the sovereign’s laws as relevant to the newborn child’s entitlement to protection or to their obligation to obey the laws—let alone that “subject to the jurisdiction” was publicly understood to incorporate this formulation of the common-law rule.

Pause to note, by the way, that I had always understood the allegiance/protection relationship, as it pertains to citizenship, as being that the sovereign provides protection to the child from birth and is therefore entitled to demand the child’s allegiance; not, as you suggest, that the sovereign’s obligation to protect the child was understood to follow from the child’s obedience to the laws. I think you have not yet sufficiently grounded your preferred sequencing of this relationship in the relevant historical materials; more evidence needed there. Or, at the very least, you need to better reconcile the way that the VC blogpost glosses Coke as saying in Calvin’s Case that the allegiance/protection “exchange is immediate,” such that “it hardly matters whether protection or allegiance comes first,” the “exchange is simultaneous,” with the way that the blogpost contends just a few paragraphs down that the right to protection follows from the conferral of allegiance.

You also point to the “concept of ‘prima facie citizenship’” that you derive from Bates’s opinion; and suggest that Kurt Lash will have more to say on that front. (I will confess that I’m not entirely thrilled that Professor Lash has announced his conclusion first, with supporting evidence to follow. That seems a little iffy as a matter of good scholarly practice.)

I’m frankly unsure how this moves the ball down the field for you. To me, the “prima facie” language in Bates’s opinion seems like little more than articulating a strong default rule that birth upon the soil gives rise to citizenship unless an unusual exception applies; and I don’t think anyone adhering to the conventional wisdom would dispute that. What leads you to think that Bates intended a thicker conception of “prima facie citizenship” that supports your position?

V. The Perils of Relying Too Heavily on Calvin’s Case

To support your idea of some (frankly rather amorphous) notion of social compact theory being relevant to understanding the Citizenship Clause, you lean a fair bit, especially in the blogpost, on Coke’s opinion in Calvin’s Case. This strikes me as dubious, at least with respect to the current inquiry, for a bunch of different reasons.

A. As an initial matter, I get nervous that what you’ve said about Coke so far (both in the blogpost and on twitter) risks straying a bit over into ahistorical proof-texting that could read our more contemporary (or even 18th/19th Century) ideas into Coke, rather than understand him in his own context.

B. Setting that aside, is your argument that Coke was an adherent of a version of early-modern social-compact theory? If not, I frankly don’t know why you’re bringing in Coke in the first place on this particular point. If so, I think you’ve got a whole lot of work to do to support—and further specify—that interpretation. (For starters, I would think you’d have to grapple w/folks like Polly Price who argue that Calvin’s Case has to be understood as, in part, an effort to grapple w/conceptual challenges posed by the interaction of the postnati citizenship controversy with the pre-modern King’s-Two-Bodies paradigm. That seems potentially to be in a fair bit of tension with reading Coke’s opinion as an expression of proto-social-contract ideas, no?)

C. Assume, though, that you’re right about Coke, both in terms of social-compact theory and the relevance of parental allegiance. What follows from that conclusion?

I would think your argument would have to be then that antebellum American common-law jurisprudence citing Calvin’s Case to support jus soli citizenship principles were drawing on those aspects of Coke’s opinion, among others. But does that argument have any grounding in cases, commentaries, treatises, etc? If so, I don’t think you’ve yet identified it. And if that’s not your argument, I don’t understand the relevance of this aspect of Calvin’s Case, at least for present purposes.

And then, of course, you have to take the point one step further—that when drafters/ratifiers discussed the Citizenship Clause, their understanding of its scope was based in part either on that aspect of Coke directly or on the common-law theorists/jurists drawing on that aspect of Coke. That’s a further evidentiary hurdle, which, as far as I can tell, you haven’t cleared, or even attempted to clear. (You say in the NYT op-ed that the framers of the Constitution revered Coke; but what that has to do with the meaning of the Fourteenth Amendment 90 years later, I’m not sure.) Not to get all Mondale-to-Hart here, but . . .

D. One final point about Coke. In the op-ed’s description of Calvin’s Case, and then of Wong Kim Ark, you talk about “amity”—and, as I read you, equate “amity” with friendship and with giving local allegiance, obedience to the laws, etc. (Perhaps I’m overreading; but I’m not sure I am.) But is that what amity meant to Coke? Or was it simply “in peacetime”/”not as part of an invading army”? I had gotten the impression that he was using it in the latter, narrower sense. Maybe I’m wrong about that, but it strikes me as something of a term of art—and, as such, perhaps one to use a little more carefully than the op-ed does.

VI. Methodology: Silver Blaze, or, the Absence of Support from Contemporary Evidence

You say in the blogpost that your allegiance-first account is “far more coherent than the conventional wisdom’s emphasis on power and sovereignty,” and your account can better/more coherently explain the various exceptions to the standard jus soli rule, relative to the conventional wisdom. But do the various influential antebellum accounts of the common-law/jus soli rule in fact explain the exceptions to the general rule (or at least the exceptions you find puzzling) along your allegiance-first lines? Aren’t you also baking in an assumption that the common-law rule was fully analytically coherent in the first place? (That seems, well, anti-common-law-ish.)

To bring this full circle, isn’t there a bit of a dog-that-didn’t-bark problem here with regard to the c. 1866-1868 public meaning of “subject to the jurisdiction”? That is, your view, if I’ve read you correctly, is that birthright citizenship was publicly understood then as incorporating some version of the idea that allegiance matters far more than protection (or that protection follows from allegiance, not vice versa); that, in particular, parental allegiance is the key ingredient for citizenship purposes; and that “subject to the jurisdiction” was intended to incorporate this principle.

But if that’s right, shouldn’t that general understanding of citizenship acquisition be more evident in public debates over the Citizenship Clause? Where, for example, in Congressional debates over the Civil Rights Act/Fourteenth Amendment do you find articulation of the general principle that a child’s citizenship should turn, to some degree, on the allegiance of their parent? Why is the emphasis instead so much on the status of the child at the time of their birth, without reference to the parent’s allegiance?

You might well reply that these ideas come into play for purposes of the limitations on a pure jus soli rule, i.e., that this is the work “subject to the jurisdiction” is doing. I’m not sure that would be a sufficient response, though. Because it is not as though Congressional supporters (and opponents) articulated their conception of birthright citizenship only in the context of hammering out limits/exceptions to citizenship-wholly-by-territorial birth. And I don’t recall seeing more general descriptions in these debates of the nature/meaning of citizenship that turn on (or even implicate) parental allegiance, or that foreground allegiance while minimizing the significance of protection.

Perhaps I’m wrong on that point (though, respectfully, I don’t think I am). At a minimum, though, isn’t it incumbent on you—as an avowed advocate of original public meaning both here and in general—to adduce contemporary evidence to this effect before drawing any conclusions about the proper originalist interpretation of the Citizenship Clause?

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[1] (The letter was drafted before the posting on SSRN of a recent co-authored piece that strongly criticizes the Barnett/Wurman thesis. It thus does not take into account that critique or Professor Wurman’s initial responses to it on Twitter. Nor does it attempt to anticipate what arguments Barnett and Wurman will be making in the promised longer-form articulation of their thesis, whenever that articulation should arrive.)