Original meaning of the citizenship clause
The only real debate about the meaning of the citizenship clause comes from constitutional originalists, of which the overwhelming majority are considered politically conservative. More liberally inclined judicial minds, for the most part, either consider the original meaning of the clause irrelevant for the purpose of determining what it should mean today, or side with the particular originalist camp that concludes the clause was meant to guarantee birthright citizenship to anyone born in the territory of the United States.
Originalist legal minds are, however, split down the middle as to the original public meaning of the clause. As to their debate, there are several relevant quotations that predate the ratification of the 14th amendment, and which serve to inform our understanding of the meaning of its terms.
First, the famous Supreme Court Justice Joseph Story wrote in 1840 that:
Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the ligeance [sic] of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and, consequently, owe obedience or allegiance to, the sovereign, as such, de facto. [Emphasis added.]
As to what may constitute de facto allegiance to a sovereign, James Madison wrote even earlier:
It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. [Emphasis added]
These two giants of early American jurisprudence were commenting on the meaning of the term “Natural born citizen” found in Article II of the Constitution. Therefore, it seems that if we are to make the altogether rational assumption that Justice Story and James Madison shared the same, correct understanding of the “established maxim” of birth as the most certain criterion of allegiance, and that de facto allegiance is sufficient to create citizenship, then birthright citizenship would be guaranteed by the Constitution. The original understanding of Article II would inform such an interpretation of the 14th Amendment – if birth is sufficient to create citizenship, and citizens are unambiguously subject to the jurisdiction of the United States, then all persons born in the territory of the United States must be citizens of the United States, guaranteed all rights and subject to all duties that derive therefrom.
This view is explained quite clearly in the words President Lincoln’s Attorney General Edward Bates, who served as the nation’s chief law enforcement officer and head of the Justice Department only a few years before the ratification of the 14th Amendment. Bates wrote, in an official opinion of the Attorney General of the United States “Citizenship of Children of Illegal Parents,” delivered September 1, 1862:
I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.
But, as is so often the case in constitutional jurisprudence, things are not always as they first appear. First, it should be noted that the official opinion of Attorney General Bates does not speak to the quality of alien for whom the rule applies. He may have been simply articulating a standard that would have guaranteed citizenship to a child of parents legally in the United States, such as Wong Kim Ark, but not for children of aliens illegally present in the country.
This alternative view is bolstered by the statement of Senator John Lyman Trumbull, a key drafter and proponent of the 14th Amendment, who said that “subject to the jurisdiction thereof” meant far more than simply being present in the United States. Senator Trumbull believed that “subject to the jurisdiction thereof” meant not owing allegiance to any other sovereign.
Furthermore, Senator Jacob Howard, the lawmaker who introduced the final language of the amendment on the floor of the Senate, argued that the meaning of its provisions should be interpreted to conform to the previously passed 1966 Civil Rights Act, which guaranteed citizenship to “all persons born in the United States and not subject to any foreign power.” [Emphasis added.]
John Eastman, former Dean of the Chapman School of Law and Chair of the Federalist Society’s Federalism and Separation of Powers Practice Group, argues that disagreement over the meaning of the citizenship clause stems from a misunderstanding of “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.” Eastman contends that those who believe that all persons born in the territory of the United States are subject to the jurisdiction thereof are only correct insofar as they refer to partial, territorial jurisdiction. Complete political jurisdiction, on the other hand, attaches only to persons who are both born in the United States or its territories and owe jurisdictional allegiance to the same.
So, does the 14th Amendment’s citizenship clause confer automatic birthright citizenship regardless of the jurisdictional allegiance of the parents and their child? It depends on what sources you choose to cite. This author has his own thoughts as to which of the mid-19th century scholars’ interpretations should hold more weight, but originalism as a method of constitutional jurisprudence is opaque enough on this question, and the modern debate is so divided, that a definitive yes or no on this question will only come after a prolonged examination of original sources and an inevitable grant of cert by the Supreme Court of the United States. What can be answered definitively, however, is whether the President can change by executive order the current practice of the government of the United States of conferring birthright citizenship to the children of any alien, legal or otherwise, born within its borders.
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