Born in the U.S.A.?
Rethinking Birthright Citizenship in the Wake of 9/11
By
John C. Eastman
Professor of Law
Chapman University School of Law
Presented
March 22, 2003
The Claremont Institute Symposium on
American Citizenship in the Age of Multicultural Immigration
at
Chapman University School of Law
Orange, California
Historically, the language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment (like the rest of Section 1 of the Fourteenth Amendment) was derived so as to provide a more certain constitutional foundation for the 1866 Act, strongly suggests that Congress did not intend to provide for such a broad and absolute birthright citizenship. 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.”13 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 in the 1866 Act.
Of course, the jurisdiction clause of the Fourteenth Amendment is somewhat different from the jurisdiction clause of the 1866 Act. The positively-phrased “subject to
[12 See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case. W. Res. L. Rev. 179 ?? (1989); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562 (1995) (“this Court will avoid a reading which renders some words altogether redundant”).
13 Chapter 31, 14 Stat. 27 (April 9, 1866).]
the jurisdiction” of the United States might easily have been intended to describe a broader grant of citizenship than the negatively-phrased language from the 1866 Act, one more in line with the contemporary understanding accepted unquestioningly by Dorf that birth on U.S. soil is alone sufficient for citizenship. But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading.
When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction; “[n]ot owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now” (i.e., under the 1866 Act). That meant that the children of Indians who still “belong[ed] to a tribal relation” and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause.
Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin to explicitly exclude “Indians not taxed,” as the 1866 Act had done, was rejected as redundant.14
The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court—by both the majority and the dissenting justices—
14 Congressional Globe, 39th Cong., 1st Sess., 2892-97 (May 30, 1866). For a more thorough discussion of the debate, see Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 72-89 (Yale Univ. Press 1985).
in The Slaughter-House Cases. The majority 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.”15 Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the Clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.16
Although the statement by the majority in Slaughter-House was dicta, the position regarding the “subject to the jurisdiction” language advanced there was subsequently adopted by the Supreme Court in the 1884 case addressing a claim of Indian citizenship, Elk v. Wilkins.17 The Supreme Court in that case rejected the claim by an Indian who had been born on a reservation and subsequently moved to non-reservation U.S. territory, renouncing his former tribal allegiance. The Court held that the claimant was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”18 John Elk did not meet the jurisdictional test because, as a member of an
15 83 U.S. (16 Wall.) 36, 73 (1872).
16 Id. at 92-93.
17 112 U.S. 94 (1884).
18 Id. at 102.
Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” according to the Court.19 Drawing explicitly on the language of the 1866 Civil Rights Act, the Court continued:
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.20
Indeed, if anything, Indians, as members of tribes that were themselves dependent to the United States (and hence themselves subject to its jurisdiction), had a stronger claim to citizenship under the Fourteenth Amendment merely by virtue of their birth within the territorial jurisdiction of the United States than did children of foreign nationals. But the Court in Elk rejected that claim, and in the process necessarily rejected the claim that the phrase, “subject to the jurisdiction” of the United States, meant merely territorial jurisdiction as opposed to complete, political jurisdiction.
Such was the interpretation of the Citizenship Clause initially given by the Supreme Court. As Thomas Cooley noted in his treatise, The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.
19 Id. at 99.
20 Id. at 102.
[12 See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case. W. Res. L. Rev. 179 ?? (1989); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 562 (1995) (“this Court will avoid a reading which renders some words altogether redundant”).
13 Chapter 31, 14 Stat. 27 (April 9, 1866).]
the jurisdiction” of the United States might easily have been intended to describe a broader grant of citizenship than the negatively-phrased language from the 1866 Act, one more in line with the contemporary understanding accepted unquestioningly by Dorf that birth on U.S. soil is alone sufficient for citizenship. But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading.
When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction; “[n]ot owing allegiance to anybody else.” And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now” (i.e., under the 1866 Act). That meant that the children of Indians who still “belong[ed] to a tribal relation” and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause.
Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin to explicitly exclude “Indians not taxed,” as the 1866 Act had done, was rejected as redundant.14
The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court—by both the majority and the dissenting justices—
14 Congressional Globe, 39th Cong., 1st Sess., 2892-97 (May 30, 1866). For a more thorough discussion of the debate, see Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 72-89 (Yale Univ. Press 1985).
in The Slaughter-House Cases. The majority 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.”15 Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the Clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.16
Although the statement by the majority in Slaughter-House was dicta, the position regarding the “subject to the jurisdiction” language advanced there was subsequently adopted by the Supreme Court in the 1884 case addressing a claim of Indian citizenship, Elk v. Wilkins.17 The Supreme Court in that case rejected the claim by an Indian who had been born on a reservation and subsequently moved to non-reservation U.S. territory, renouncing his former tribal allegiance. The Court held that the claimant was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”18 John Elk did not meet the jurisdictional test because, as a member of an
15 83 U.S. (16 Wall.) 36, 73 (1872).
16 Id. at 92-93.
17 112 U.S. 94 (1884).
18 Id. at 102.
Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States. Although “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,” “they were alien nations, distinct political communities,” according to the Court.19 Drawing explicitly on the language of the 1866 Civil Rights Act, the Court continued:
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.20
Indeed, if anything, Indians, as members of tribes that were themselves dependent to the United States (and hence themselves subject to its jurisdiction), had a stronger claim to citizenship under the Fourteenth Amendment merely by virtue of their birth within the territorial jurisdiction of the United States than did children of foreign nationals. But the Court in Elk rejected that claim, and in the process necessarily rejected the claim that the phrase, “subject to the jurisdiction” of the United States, meant merely territorial jurisdiction as opposed to complete, political jurisdiction.
Such was the interpretation of the Citizenship Clause initially given by the Supreme Court. As Thomas Cooley noted in his treatise, The General Principles of Constitutional Law in America, “subject to the jurisdiction” of the United States “meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.
19 Id. at 99.
20 Id. at 102.
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