The Birthright Citizenship Clause Means Exactly What It Says: | Vikram David Amar | Verdict

The Fourteenth Amendment to the United States Constitution, arguably the most important piece of law enacted anywhere in the world over the last two centuries, opens majestically with these words: “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.” A crowning achievement of Reconstruction and a self-conscious repudiation of the Supreme Court’s egregiously wrong ruling in Dred Scott (holding that Black persons, whether free or enslaved, could not be citizens of America), this clause constitutionally guarantees citizenship for “all persons” who are “born . . . in the United States” and who are “subject to [its] jurisdiction.” We set out—and repeat—the core text of this quintessentially American provision, the so-called Citizenship Clause, because faithful attention to text is essential to interpreting, applying, and adhering to the Constitution. Recent events warrant a reminder of this basic interpretive principle.

On January 20, President Trump issued an executive order that reads the Citizenship Clause in ways that confound, indeed defy, the rather uncomplicated and conventionally accepted—and we think clearly correct—understanding of the words of the Clause. Under the time-honored and straightforward interpretation, all persons who are born on U.S. soil (that is, within the United States and federal territories in the process of becoming states) and who are “subject to” “jurisdiction” of the United States (that is, are persons over whom the United States does assert the lawful power to govern but not persons, such as foreign dignitaries and some Indians, over whom the U.S. disclaims any such power) are automatically citizens. This does not mean that the United States may not confer citizenship on other persons—persons who were born outside the U.S. or persons over whom the United States does not assert regulatory power at the time and place of birth—too; it simply means that U.S. and state governments must recognize citizenship of persons who meet the two-part (born in the U.S. and governed by the laws thereof) test laid out in the Citizenship Clause. Put differently, the government can, in recognizing citizenship, go beyond, but cannot operate beneath, the floor set by the Citizenship Clause itself.

The President’s executive order, by contrast, would refuse citizenship for a child born in the U.S. and bound to obey U.S. law unless at least one of the child’s parents was, at the time of the child’s birth, a U.S. citizen or a U.S. permanent resident. Thus, under the order, if a child is born on U.S. soil to parents neither of whom was a citizen or permanent resident, but instead who at the time of birth were in the United States unlawfully or only temporarily (under, for example, a tourist, student or work visa), that child is not guaranteed citizenship. This, according to the order, because the “subject to the jurisdiction thereof” provision of the Clause is best understood as requiring lawful and non-temporary presence by at least one of a child’s parents at the time of birth. (In deeming children born to foreign mothers who at the time of birth are legally—albeit temporarily—in the country not to be citizens at birth, the order goes even further than arguments heard in recent years, including from several Republican presidential candidates, that children born in the U.S. to unlawfully present non-citizen mothers should not benefit from birthright citizenship.)

Not surprisingly, the executive order has already triggered a series of lawsuits by states and other plaintiffs to block enforcement. At least four district court judges have determined, in adjudicating applications for preliminary relief, that the plaintiffs are likely to prevail on the merits given the order’s unconvincing treatment of the Citizenship Clause. For that reason, these courts have so far blocked implementation of the part of the order that directs federal agencies to, for example, withhold passports from U.S.-born children lacking a citizen or permanent-resident parent, with respect to children born in the U.S. thirty days after the issuance of the order. As one judge, in Seattle (a Ronald Reagan appointee), said: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.” (That judge later issued a nationwide preliminary injunction against the order; the U.S. Court of Appeals for the Ninth Circuit rejected the administration’s request for a stay.)

It is always possible that different lower courts will be more sympathetic to the administration’s position, particularly at the early stages of litigation where likelihood of success on the merits is just one consideration in the preliminary injunction analysis. Sometimes, too, as a case proceeds in the judicial system, an argument that initially seems untenable can, for reasons that may or may not be grounded in principled law, gain strength. Nonetheless, the record so far does not favor the administration. And we are confident that when all is said and done, the administration’s interpretation of the Citizenship Clause will be soundly rejected, including at the Supreme Court if the issue makes it that far.

Yet in the last few weeks, some prominent scholars and commentators writing in high-profile media outlets have taken the position that the executive order actually rests upon a sound—or at least plausible—interpretation of the Fourteenth Amendment. Writing in The New York Times, legal scholars Randy Barnett and Ilan Wurman argue that the executive order is “not necessarily” inconsistent with the Citizenship Clause. Focusing in particular on children born in the U.S. to unlawfully present parents, these authors (like those who crafted the President’s order) contend there is support for the position that the Clause does not guarantee citizenship under such circumstances because such children are not “subject to the jurisdiction [of the United States].” Barnett and Wurman assert that the phrase “subject to the jurisdiction thereof” does not focus on whether a person is bound by U.S. lawful authority at and after birth (that is, whether the federal government asserts legal authority over the child), but instead reflects a “social compact” principle under which individuals pledge their allegiance to the nation (including by agreeing to obey by the nation’s laws) in exchange for the nation’s protection of their individual rights (the so-called “allegiance-for-protection” notion). Barnett and Wurman contend that both “the 14th Amendment’s original purpose and the common-law principle of ‘jus soli,’ or birthright citizenship, which informed the public meaning of the text . . . relate to the idea of social compact” so as to limit the reach of the Citizenship Clause. In particular, as to “children of people who are present in the United States illegally,” Barnett and Wurman argue:

Has a citizen of another country who violated the laws of this country to gain entry and unlawfully remain here pledged obedience to the laws in exchange for the protection and benefit of those laws? . . .[T]he parents are not enemies in the sense of an invading army, but they did not come in amity. They gave no obedience or allegiance to the country when they entered—one cannot give allegiance and promise to be bound by the laws through an act of defiance of those laws. Such persons can even be summarily removed from the country without judicial procedures of the sort that would protect citizens. If the allegiance-for-protection view informed the original meaning of the text, then they and their children are therefore not under the protection or “subject to the jurisdiction” of the nation in the relevant sense.

There are many huge and fatal flaws with this reading. Perhaps the most fundamental is that this reading does absolute violence to the words of the Clause, in at least two separate respects. First, the Citizenship Clause says nothing—not a word—at all about the parents of a child born in the United States. Instead, the words of the Citizenship Clause speak directly to and about the persons who are born—rather than to or about the parents of the persons who are born (and in that way was radical in rejecting more traditional blood-based notions of citizenship)—on U.S. soil. It is not the parents who must be subject to the jurisdiction of the United States at all. It is the child who must be born in the U.S. and subject to its authority in order to claim a right of citizenship. The Citizenship Clause is explicitly about the place of birth rather than (as was traditional in other societies) the parentage of birth. Indeed, the Clause’s very words will sometimes operate to distinguish sharply parent from child: A mother unlawfully present may be removed from the country or otherwise punished even though her newborn enjoys the benefits of citizenship.

Second, the very words “subject to” in the Clause focus on the permissible exercise of power by an outside entity over someone, not actions taken by that person himself. The ordinary and enduring meaning of “subject to” is “affected by,” which trains attention not on the person who is affected but rather the outside entity or circumstance that may be causing an effect. This is not to say that in determining that someone is “subject to” something we never consider actions taken by that person. For example, a person is subject to personal jurisdiction of a state court only if she has purposefully availed herself of the benefits of the state in which the court sits. But to say that sometimes lawful exercise of power over someone turns on her actions is not to say that it always does. More importantly, the ultimate question posed by the use of the words “subject to” (standing alone) is not why someone may be subject to something, but whether she is. And when we ask whether illegally present persons or their children are subject to the laws of the United States, the answer is obviously yes. Indeed, the unlawfully present parents themselves (even if we were wrongly to focus on them rather than the children mentioned in the Clause) are here unlawfully only because the United States asserts regulatory power over them via our immigration laws. And while unlawfully present persons are here, they of course can be punished for violating any domestic laws they break. For example, Barnett and Wurman do not, and could not, say anything to suggest why a child born in a New York City hospital would not, absent some special claim to immunity, be subject to the power of New York and federal law. Indeed, do these authors think that children born in the U.S. to unlawfully present parents are exempt from punishment for violating domestic American law during their time here? Of course not. So in what sense are these children—the very people the Clause speaks to—not “subject to” U.S. jurisdiction?

Barnett and Wurman’s account might be at least worth considering if the Fourteenth Amendment read: “All persons born . . . in the United States to parents who by acts of allegiance have become subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.” But such a provision is vastly different from the one found in the Constitution, and no reliable method of interpretation can close the gap; the variant we offer here would not have been complicated to write, and yet we know of no draft of the Citizenship Clause that comes close to this kind of language that would shift focus from the child to the parent, or shift focus from the fact of a regulatory relationship by the government to the basis of such a relationship.

Indeed, given the specific words and syntax of the actual Citizenship Clause that was enacted (especially the specific and exclusive focus on the persons who are born), Barnett and Wurman’s proffered approach verges on the surreal. Consider Barnett and Wurman’s core idea of identifying which individuals have traded allegiance for protection—and thus are subject to jurisdiction. We might sensibly ask that question of an adult. But what could it possibly mean to investigate whether a newborn has entered the social compact at the heart of Barnett and Wurman’s account? We can’t ask the child (and even if we could the question wouldn’t make any sense). A focus on obedience to the law is similarly unrevealing. A baby born in the U.S. obviously has not entered the country unlawfully (indeed, except as the result of birth, hasn’t entered the country at all) or broken any laws.

In support of their account of the Citizenship Clause, Barnett and Wurman invoke references that span three centuries (including Lord Coke’s 1608 opinion in Calvin’s Case; Blackstone’s commentaries (from the 1760s); an 1862 opinion by Attorney General Edward Bates; and some dicta from the Supreme Court’s 1898 decision in United States v. Wong Kim Ark). But as venerable as these sources might be, Barnett and Wurman offer nothing to suggest that the Congress that proposed the Fourteenth Amendment, or the state conventions that ratified it, or the people of the United States who read it would view constitutional text that talks about whether a person is bound to obey U.S. law as really asking instead whether the parents of that person—themselves nowhere mentioned in the Amendment—have pledged allegiance to the U.S. In other words, Barnett and Wurman offer, at least so far, no evidence to suggest their proffered understanding of the Citizenship Clause was the or a natural one for the people who—using words that would be very odd to employ had the parental-allegiance-for-child-protection idea been the animating one—made the provision part of the Constitution.

(As to the provision of the executive order that says children born in the U.S. to lawfully present non-citizens are also not U.S. citizens under the Fourteenth Amendment, Barnett and Wurman say that provision raises “a more complicated question not addressed here.” We’ll wait for the answer, but one initial reaction we have, in addition to what we’ve said above, is that it’s hard to see why tourists and temporary workers—but not people who have overstayed a visa—can be deemed to have pledged allegiance to the nation in any sense relevant to the meaning of the Fourteenth Amendment.)

In other respects, Barnett and Wurman seek to lean on historical puzzles that simply don’t exist. They write, for example, that the conventional view that “subject to . . . jurisdiction” means simply subject to the power of the government (including its courts) “cannot explain the status of children born to foreigners on foreign public [warship] vessels in U.S., waters, who were not considered citizens.” But as a succinct Harvard Law Review Note explained a century ago (citing an opinion of Chief Justice John Marshall) “[o]ver foreign public [warship] vessels in its ports every nation is understood to waive the exercise of its territorial jurisdiction.” So the conventional view fully explains what Barnett and Wurman wrongly see as an “anomaly.”

The other “anomaly” Barnett and Wurman offer involves the fact that “children born to citizens residing within enemy-occupied territory [were apparently] considered citizens if their parents remained loyal.” But this too, even if true, is not necessarily an anomaly: while we are no experts on the law of occupation, there is at least some possibility that non-invading persons in enemy-occupied territory remain bound to (and can be punished for violating) the domestic law of the invaded country. In that sense, the invaded country arguably does continue to “subject” persons in such occupied territories to its “jurisdiction.” Moreover, and more fundamentally, as noted near the outset, the conventional view does not foreclose the recognition of citizenship in circumstances where the two-part test is not satisfied, and Barnett and Wurman adduce no evidence to support the notion that the “apparent” treatment of children born in occupied territories as citizens was dictated by a common understanding that the Citizenship Clause so required. In other words, these folks could have been considered citizens regardless of what the Citizenship Clause mandates. For Barnett and Wurman to meaningfully challenge the conventional understandings, they would need to point to persons who do satisfy the two-part test who were not considered citizens. Their only attempt at that, with respect for persons born on foreign public vessels, fails for the reason discussed above.

Nor can Barnett and Wurman account for the fact that all Black children born in the U.S. to slaves were undeniably covered by the Citizenship Clause (an historical reality Barnett and Wurman seem to acknowledge), even though many enslaved parents of these children were present in the U.S. illegally, by virtue of international slave trade that had been made unlawful in the early 1800s but that persisted until the Civil War. Yet another historical example that Barnett and Wurman would have to confront: the treatment of children born during the Civil War to parents who were Southern rebels. Certainly these parents had not pledged—and indeed had flouted—allegiance to the United States. And yet John Bingham, principal drafter of the Fourteenth Amendment, seemed to carry the day in successfully defeating a proposed piece of federal legislation in 1867 designed to strip rebels of citizenship, when he argued that even the rebellious parents remained “subject to” U.S. “jurisdiction” and thus were covered and protected by the Citizenship Clause of the Fourteenth Amendment that was in the process of being enacted. And in this debate, no one even suggested, much less plausibly argued, that the U.S.-born children of Confederate rebels would lack citizenship protection.

Meanwhile, in the Wall Street Journal, D.C. lawyers Chuck Cooper and Pete Patterson also train attention on the jurisdictional provision of the Citizenship Clause. They may very well agree with what Barnett and Wurman say, but Cooper and Patterson have a different emphasis—the particular need (in their view) that the parents be here not fleetingly but more permanently. They think President Trump’s order is valid in full, concluding that “[o]nly the children of those who are lawfully and permanently domiciled in the U.S. at the time of birth are entitled to citizenship by virtue of being born in the country.” Although Cooper and Patterson contend that this conclusion follows from the “text, history and structure of the Constitution,” we really can’t see how.

For important starters, Cooper and Patterson must but cannot overcome the same textual arguments we discussed above in connection with Barnett and Wurman, namely the Clause’s textual focus on the children not the parents, and its focus on the fact of jurisdiction rather than the basis of jurisdiction. And an additional focus on “permanent” presence (like Barnett and Wurman’s focus on allegiance) just doesn’t make practical sense as applied to U.S.-born children—the persons about whom the Citizenship Clause speak—themselves; in what sense is such a child’s presence anything but enduring? After the moment of birth, all U.S.-born children will have spent their whole lives in the U.S. It is true, of course, that they may at some point leave the U.S., but that is true of all babies born here, regardless of the status of their parents.

Relatedly, Cooper and Patterson offer no meaningful reason to believe that ephemerality (as they put it) was broadly understood to be the essence of the words “subject to [U.S.] jurisdiction” under the Citizenship Clause. They offer no meaningful legislative history, save for a vague reference to Senator Jacob Howard who referred to but did not define “full and complete” jurisdiction. Certainly they provide no sustained argument demonstrating that the permanent presence vel non of the parents was, in the minds of those who made the Fourteenth Amendment law, central to whether their children were “subject to” U.S. jurisdiction. In this regard, Cooper and Patterson make reference to a nineteenth-century British treatise, but offer no evidence whatsoever to show that this treatise influenced or reflected how the enactors of the American Fourteenth Amendment understood the Citizenship Clause’s words.

In another place, Cooper and Patterson describe being subject to the jurisdiction of the U.S. in terms of being required to pay taxes on worldwide income and being subject to military conscription. But that observation, about statutory obligations attached to citizenship, doesn’t inform the meaning of the Fourteenth Amendment. And on top of that, the argument is circular, because Cooper and Patterson assume that children born in the U.S. to unlawfully present parents would not be subject to the draft or to U.S. taxation if they lived abroad. But if they are citizens (the question at issue), and have not renounced such citizenship, then seemingly they would be subject to the burdens of citizenship other citizens bear.

Just as Occam’s razor suggests that answers that are the simplest and that require the fewest assumptions are often the best in resolving disputes in the realm of philosophy, so too in the absence of compelling public legislative or other history, a constitutional interpretation that straightforwardly honors a provision’s textual emphasis on place of birth and actual amenability to regulation—and nothing more—is vastly superior to interpretations that require the imputation of the status, allegiance or ephemerality of a child’s parents, when the words of the document never mention anything at all about the parents or any of these concepts.