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Decoding the Fourteenth Amendment’s Citizenship Clause: Unlawful Immigrants, Allegiance, Personal Subjection, and the Law

Patrick J. Charles*

TABLE OF CONTENTS

I. INTRODUCTION ......................................................................................... 212 II. DECODING BIRTHRIGHT CITIZENSHIP FROM THE FOUNDING TO THE

FOURTEENTH AMENDMENT ......................................................................... 215 A. Birthright Citizenship and the 1866 Civil Rights Act ............... 220 B. Birthright Citizenship and the Fourteenth Amendment ............ 225

III. DEFINING CITIZENSHIP AND WHO IS “SUBJECT TO THE JURISDICTION

THEREOF” .................................................................................................... 231 IV. THE BIRTHRIGHT CITIZENSHIP DEBATE IN THE LATE NINETEENTH

CENTURY ..................................................................................................... 237 A. The Personal Subjection and Allegiance View of

“Subject to the Jurisdiction Thereof” ....................................... 240 B. The Internationalist or “Not Subject to Any Foreign Power”

View of “Subject to the Jurisdiction Thereof” .......................... 245 V. WONG KIM ARK, THE SUPREME COURT, AND OUR CURRENT BIRTHRIGHT

CITIZENSHIP JURISPRUDENCE ...................................................................... 247 VI. CENTERING THE POLITICAL DEBATE ON BIRTHRIGHT CITIZENSHIP AND

IMMIGRATION REFORM ................................................................................ 253 VII. CONCLUSION ........................................................................................ 260

* Patrick J. Charles is the author of numerous articles on legal history and standards of review, including The Constitutional Significance of a Well-Regulated Militia Asserted and Proven with Commentary on the Future of Second Amendment Jurisprudence, 3 NE. L.J. 1 (2011), The Plenary Power Doctrine and the Constitutionality of Ideological Exclusion: A Historical Perspective, 15 TEX. REV. L. & POL. 61 (2010), and “Arms for Their Defence”?: An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago, 57 CLEV. ST. L. REV. 351 (2009). Mr. Charles received his J.D. from Cleveland-Marshall School of Law, and his B.A. in History and International Affairs from the George Washington University. He is an historian for the United States Air Force 352nd Special Operations Group stationed at Mildenhall, United Kingdom, and an independent consultant on constitutional matters. The views expressed in this article are solely the author’s and not those of the United States Air Force or the Department of Defense. The author would like to thank Richard L. Aynes (Akron), David F. Forte (Cleveland-Marshall), and Matthew Lister (Villanova) for providing comments and feedback.

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I. INTRODUCTION

One of the most controversial issues in American constitutional law is that of birthright citizenship and its interrelation with unlawful immigrants. The Fourteenth Amendment prescribes the constitutional rule: “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.”1 These twenty-eight words have fueled numerous constitutional questions on the matter. Are the children of unlawful immigrants “subject to the jurisdiction thereof” within the meaning and intent of the Framers? Is every person born in the territorial United States, regardless of the parents’ immigration status, a citizen? Does the Fourteenth Amendment grant Congress any powers to legislate who is “subject to the jurisdiction thereof,” to include the children of unlawful immigrants?

Naturally, the answers to these questions differ depending on who is asked. If we focus solely on legal academia, some scholars take the view that the children of unlawful immigrants are not citizens. This interpretation rests on the view that unlawful immigrants cannot conceivably fall under the “complete jurisdiction” of the United States, and therefore cannot be granted citizenship in the spirit of the Fourteenth Amendment.2 A similar scholarly approach adopts the view that the children of unlawful immigrants are citizens of the United States with the caveat that Congress may exclude them through the plenary power doctrine.3 While this scholarly contingent agrees that the children of unlawful immigrants are not within the spirit of the Fourteenth Amendment, it recognizes that the U.S. Code must be amended in order to legally exclude the children of unlawful immigrants from citizenship.4

Opponents to either of these exclusionist views, what they term as the “consensualist” viewpoint, assert that almost all persons born in the United States must be citizens within the meaning and intent of the Fourteenth

1. U.S. CONST. amend. XIV, § 1. 2. See Brief for the Claremont Institute Center for Constitutional Jurisprudence as Amicus Curia Supporting Respondents at 8, Hamdi v. Rumsfield, 542 U.S. 507 (2004) (No. 03-6696); PETER H. SCHUCK &

ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY 85–87 (1985); John C. Eastman, Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment over Bush v. Gore?, 94 GEO. L.J. 1475, 1486–87 (2006); Charles Wood, Losing Control of America’s Future—The Census, Birthright Citizenship, and Illegal Aliens, 22 HARV J.L. & PUB. POL’Y 465, 503 (1999). 3. See Oforji v. Ashcroft, 354 F.3d 609, 620–21 (7th Cir. 2003) (Posner, J., concurring); Lino A. Graglia, Birthright Citizenship for Children of Illegal Aliens: An Irrational Public Policy, 14 TEX. REV. L. & POL. 1 (2009); William Ty Mayton, Birthright Citizenship and the Civic Minimum, 22 GEO. IMMIGR. L.J. 221, 228 (2008); George F. Will, An Argument To Be Made About Immigrant Babies and Citizenship, WASH. POST, Mar. 28, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/26/AR2010032 603077.html; Edward J. Erler, Citizenship and the Fourteenth Amendment, PUBLICSQUARE.NET (April 19, 2011), http://publicsquare.net/citizenship-and-the-fourteenth-amendment; Matthew Spalding, The 14th Amendment Doesn’t Make Illegal Aliens’ Children Citizens, USNEWS (Aug. 30, 2010), http://www.usnews.com/opinion/articles/2010/08/30/14th-amendment-doesnt-make-illegal-aliens-children-citizens. 4. It is important to note that the Immigration and Nationality Act does not clarify the Fourteenth Amendment. It merely restates its text verbatim. See 8 U.S.C. § 1401(a) (2006).

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Amendment, excluding the children of Indians and foreign ministers.5 Take for instance Gerald L. Neuman, who concludes that the “status of the alien parents is irrelevant” when interpreting the Fourteenth Amendment.6 This interpretation guarantees birthright citizenship to any children born of “permanent residents, lawful nonimmigrants, or unlawfully present” immigrants.7 Neuman believes that any interpretation asserting otherwise, such as limiting birthright citizenship to “children of citizens and permanent residents” is “revisionist” and unsupported by the historical record.8

Neuman is not the only scholar to take a strong stance against excluding the children of unlawfully present aliens. Garrett Epps similarly concludes that the “history of the Amendment’s framing lends no support to the idea that native-born American children should be divided into citizen and non-citizen classes depending on the immigration status of their parents.”9 Arguably providing the most detailed legislative history to date, Epps contends that the constitutional text is straightforward. He interprets the phrase “subject to the jurisdiction thereof” as applying to the moment of birth and not limited by the immigration status of the parents.10 In other words, Epps believes the legal question of birthright citizenship rests on whether the child is subject to American law at birth, which would make almost every child born on U.S. territory “subject to the jurisdiction thereof.”

A common rebuttal to this interpretation is that it prescribes a constitutional redundancy. Given the Fourteenth Amendment already requires birth in the territorial United States as a textual condition, it is asserted that it is superfluous to interpret “subject to the jurisdiction thereof” as being merely “subject to the laws.”11 Thus, critics assert that “subject to the jurisdiction thereof” must mean something more such as an affirmation of national consent or complete jurisdiction.12

It is interesting that both constitutional interpretations are rooted in the historical record, yet both claim the other is misinterpreting the drafters’ original intent. Perhaps the problem rests in the methodological approach

5. For the two most prominent opponents of exclusionist views see GERALD L. NEUMAN, STRANGERS TO THE

CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW 165–87 (1996) and Garrett Epps, The Citizenship Clause: A “Legislative History,” 60 AM. U. L. REV 331 (2010). See also Matthew Ing, Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause, 45 AKRON L. REV. (forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1653650; Matthew J. Lister, Citizenship, in the Immigration Context, 70 MD. L. REV 175, 205–06 (2010); Mark Shawhan, “By Virtue of Being Born Here”: Birthright Citizenship and the Civil Rights Act of 1866, 15 HARV. LATINO L. REV. (forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675876; Michael Ramsey, Originalism and Birthright Citizenship (Part Two), THE ORIGINALISM BLOG, (July 1, 2011), http://originalismblog.typepad.com/the-originalism-blog/2011/07/originalism-and-birthright-citizenship-part-twomichael-ramsey.html. 6. NEUMAN, supra note 5, at 165. 7. Id. 8. Id. at 166. 9. Epps, supra note 5, at 339 (emphasis added). 10. Id. at 333. 11. For an example of this line of argument, see Graglia, supra note 3, at 5–6. 12. For a list of academics supporting this approach, see supra notes 2–3.

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employed by either side. Scholars on both sides of the debate seem to employ historical evidence in a manner that breaks the bands of historical elasticity. Scholars supporting a restrictive Fourteenth Amendment equate the status of Indians with unlawful immigrants often without providing a proper legal correlation. Scholars supporting a broad interpretation of the Fourteenth Amendment leave out the importance of domicile and residence in defining political rights to include citizenship, especially their link with the legal tenets of temporary allegiance and personal subjection.13 Meanwhile, both sides of the scholarly debate have mischaracterized nineteenth-century conceptions of international law and its importance in the birthright citizenship debate.

The purpose of this Article is not to deduce original intent, meaning, or understanding by comparing and contrasting these modern, yet divergent, scholarly interpretations of the Fourteenth Amendment’s Citizenship Clause.14 Instead, this Article seeks to examine the legal tenets of birthright citizenship in the late nineteenth century anew and concludes the Citizenship Clause is not an absolute command that may be supplemented by legislation dependant on the tenets of allegiance, personal subjection, and international norms.15 From the 1866 Civil Rights Act16 through the Supreme Court’s decision in United States v. Wong Kim Ark,17 this Article will trace the legal tenets of birthright citizenship as a means to better understand the means and bounds of the Citizenship Clause.

Part II of this Article discusses birthright citizenship from the founding era to its ratification in the Fourteenth Amendment.18 Part III discusses the first attempt to legislate who was “subject to the jurisdiction” of the United States, and its importance in understanding the constitutional scope of the Citizenship Clause.19 Part IV traces the diverging interpretations of the Citizenship Clause from 1875 before the landmark decision Wong Kim Ark.20 Part V addresses the holding in Wong Kim Ark, whether it is consistent with

13. For the importance of temporary allegiance and political rights, see Patrick J. Charles, Representation Without Documentation?: Unlawfully Present Aliens, Apportionment, the Doctrine of Allegiance, and the Law, 25 BYU J. PUB. L. 35, 82–85 (2011). See also Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Pre-Enactment History, 19 GEO. MASON U. CIV. RTS. L.J. 1, 34–43

(2008) (discussing the allegiance for protection doctrine). 14. For a summary of these different interpretational approaches, see Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 926–55 (2009) (discussing the different originalist approaches in light of the Second Amendment). 15. For a previous attempt at this approach, see generally Bernadette Meyler, The Gestation of Birthright Citizenship, 1868–1898 States’ Rights, the Law of Nations, and Mutual Consent, 15 GEO. IMMIGR. L.J. 519 (2001). This article disagrees with many of Meyler’s conclusions but agrees that the scholarly debate in the nineteenth century provides important historical evidence that can settle the interpretative debate. 16. Ch. 31, 14 Stat. 27 (1866) (codified as amended 18 U.S.C. § 242 (2006)). 17. 169 U.S. 649 (1898). 18. See infra Part II. 19. See infra Part III. 20. See infra Part IV.

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the original understanding of the Fourteenth Amendment, and whether it prevents excluding the children of unlawful aliens from citizenship.21

Lastly, Part VI seeks to center the political debate concerning curtailing birthright citizenship. Similar to the divergent scholarly interpretations of the Citizenship Clause, the political debate is far from objective in that both sides make broad generalizations about the constitutionality and effectiveness of curtailing birthright citizenship. In particular, Part VI discusses how the passage of such legislation may come about and the policy considerations that Congress must weigh before enacting it.22 Part VI seeks neither to support nor oppose legislation limiting birthright citizenship. It only seeks to guide a responsible discourse on the potential of limiting birthright citizenship.

II. DECODING BIRTHRIGHT CITIZENSHIP FROM THE FOUNDING TO THE

FOURTEENTH AMENDMENT

It is no historical secret that the Constitution was drafted due to the failures of the federal system under the Articles of Confederation. One failure being each State possessed the ability to frustrate United States’s diplomatic relations,23 including the prescription of different laws with respect to citizenship.24 To fix this disparity, the Constitution expressly vested the federal government with plenary power to “establish an uniform Rule of Naturalization.”25 Certainly, the Constitution makes no reference over the power to define citizenship by birth, but the founding generation understood that the law of nations placed the power over foreign affairs, immigration, and citizenship with the national government.26 As John Marshall once stated at oral argument, every nation has a “right to legislate over foreigners,” and this power “goes to the rights of all kinds.”27

A 1793 charge to a grand jury by John Jay, the first Chief Justice of the Supreme Court, further illuminates that the law of nations—which included sovereign powers over immigration, citizenship, and naturalization—was part of the U.S. Constitution. Jay stated the “laws of the United States” fell under “three heads or descriptions”:

1st. All treaties made under the authority of the United States. 2d. The laws of nations. 3d. The constitution and statutes of the United States.28

21. See supra Part V. 22. See supra Part VI. 23. PETER ONUF & NICHOLAS ONUF, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS IN AN

AGE OF REVOLUTION, 1776–1814, at 94–95 (1993). 24. Patrick J. Charles, The Plenary Power Doctrine and the Constitutionality of Ideological Exclusion: An Historical Perspective, 15 TEX. REV. L. & POL. 61, 95–96 (2010). 25. U.S. CONST. art. I, § 8, cl. 4. 26. Charles, supra note 24, at 84–89, 92–118. 27. JAMES IREDELL, MIDDLE CIRCUIT, 1793, VIRGINIA 10 (1793) (unpublished journal of oral arguments) (on file with the Library of Congress Rare Books Division, Washington, D.C.). 28. CITY GAZETTE AND DAILY ADVERTISER (Charleston, S.C.), Aug. 14, 1793, at 2, column 1.

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Jay defined the law of nations as consisting of “those laws by which nations

are bound to regulate their conduct towards each another” and “those duties, as well as rights, which spring from the relation of nation to nation.”29 Relying on the influential writings of Emer De Vattel,30 Jay discussed the interrelation between immigration, allegiance, and national sovereignty as follows:

The respect which every nation owes to itself, imposes a duty on its government to cause all its laws to be respected and obeyed; and that not only by its proper citizens, but also by those strangers who may visit and occasionally reside within its territories. There is no principle better established, than that all strangers admitted into a country are, during their residence, subject to the laws of it; and if they violate the laws, they are to be punished according to the laws . . . to maintain order and safety.31

Undoubtedly, one of these national duties included plenary power over U.S. citizenship, and it seems the founding generation generally followed the English common law. However, even the common law adhered to legal principles of allegiance and international rules respecting sovereignty. To put it another way, the founding generation’s understanding of jus soli citizenship, or right of the soil citizenship, was a bit more complex than mere birth in U.S. territory vested citizenship.

A May 22, 1789, speech by James Madison proves to be a great example in this regard. Madison examined whether South Carolina Representative William Smith was a citizen of the United States and could hold a seat in compliance with Article I, Section 2 of the Constitution.32 He began his assessment by surveying the laws of South Carolina, not the English common law or the law of nations. Madison confirmed the importance of this constitutional step, stating, “Where the laws do not expressly guide us, we must be guided by principles of a general nature so far as they are applicable to the present case.”33

It was only once Madison determined that South Carolina did not have a law addressing the citizenship question at issue that he turned to some “principles of a general nature”; the first principle being the “established maxim that birth is a criterion of allegiance.”34 He knew that citizenship at birth “derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion” and is “what applies in the United States.”35 At the same time, Madison understood the importance of

29. Id. at column 1. 30. The writings of Vattel were highly influential on the founding generation’s view of international law. See Charles, supra note 2424, at 85–89, 108. 31. CITY GAZETTE, supra note 28, at 2, column 3. 32. U.S. CONST. art. I, § 2, cl. 2 (“No Person shall be a Representative who shall not have attained the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”). 33. 12 THE PAPERS OF JAMES MADISON 179 (Charles F. Hobson & Robert A. Rutland eds., 1979). 34. Id. 35. Id. at 179 (emphasis added).

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allegiance in determining citizenship, either by birth or naturalization. It was an “established” maxim that “allegiance shall first be due to the whole nation” to vest citizenship.36

Smith’s problem rested with whether he maintained primary allegiance to the United States and absolved any second allegiance owed to England.37 In the end, Madison determined that Smith was a citizen because he was an accepted member of South Carolina’s “political society” and “bound by the decision of the society with respect to the question of independence and change of government.”38 Indeed, Madison’s analysis can be read to stand for the proposition of unequivocal birthright citizenship. However, more legal questions are raised than answered. For instance, how important was the parents’ allegiance and their being accepted members of the political community to vest citizenship at birth? What type of allegiance was necessary for citizenship to vest—temporary and local or natural and perpetual allegiance?39 Could Congress or South Carolina have defined the terms of allegiance and domicile before vesting citizenship to children at birth?

The answers to these questions cannot be easily assumed. If we follow Madison’s views on federal plenary authority over naturalization, it can be argued that distinctions can be made for “one class of emigrants more than another, as to the length of time before they would be admitted citizens.”40 At one point, Madison even advocated for immigrant class distinctions in the interest of the “general good”:

I have been led to think it worthy of consideration whether our law of naturalization might not be so varied as to communicate the rights of Citizens by degrees, and in that way, preclude or abridge the abuses committed by naturalized merchants particularly Ship owners. The restrictions w[ould] be felt it is true by meritorious individuals, of whom I could name some . . . this always happens in precautionary regulations for the general good.41

Unfortunately, transplanting Madison’s views on naturalization does not sufficiently answer the founding generations’ full understanding of citizenship by birth. What the historical record does reveal is that the doctrines of allegiance and personal subjection were intertwined with national sovereignty.

36. Id. at 180 (emphasis added). 37. Id. 38. Id. at 181. 39. In terms of late eighteenth-century allegiance definitions, Joseph Yates (1722–1770), a former Judge of the King’s Bench, defined the differences in his personal volume of Matthew Hale’s Pleas of the Crown. Yates wrote, “Local Allegiance is that which is due from a Foreigner during his Residence here; and is founded in the Protection he enjoys for his own person his Family & Effects during the Time of that Residence.” 1 JOSEPH YATES, MATTHEW HALE’S PLEAS OF THE CROWN (6th ed. 1759) (available at Georgetown Law Center Special Collections). Yates defined natural allegiance as “that which is due from every man who is born a Member of a society.” Id. Such allegiance was “perpetual & Indefeasible and therefore the Allegiance arising from it is equally perpetual & unalienable.” Id. 40. 15 THE PAPERS OF JAMES MADISON 432 (Thomas A. Mason, Robert A. Rutland & Jeanne K. Sisson eds., 1985). 41. 8 THE WRITINGS OF JAMES MADISON 425 (Galliard Hunt ed., 1908) (emphasis added).

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This fact is attested by the legal works of Hugo Grotius,42 William Blackstone,43 Emer De Vattel,44 Joseph Yates,45 and others.46

Even the first U.S. case to directly address the subject of citizenship by birth, Lynch v. Clarke,47 confirmed that the common law tenets of jus soli were based on national sovereignty and allegiance. The case concerned whether Julia Lynch who was born in New York of “alien parents, during their temporary sojourn”48 was a U.S. citizen. In conclusion, Judge Lewis H. Sandford held that by the current “law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen,”49 and by allegiance Sandford was referencing the “general allegiance” owed to the “confederated sovereignty of the United States” by aliens within its territorial limits.50 By “general allegiance” Sanford was likely referring to temporary and local allegiance, which is a full submission to the authority of the nation as the tacit condition of protection.51 In general terms, as defined by Associate Justice Samuel Chase, allegiance referred to the “mutual bond between” the sovereign and the “subject, by which the subjects owe Duty to the [sovereign] and the [sovereign], protection to [the] subjects.”52

At no point did Sandford state or infer that citizenship by birth vested automatically upon territorial presence or that it was an unalterable constitutional right. In fact, Sandford expressly acknowledged the federal government’s authority to prescribe rules affecting citizenship by birth:

In reference to another class of the future inhabitants of the country [following the ratification of the Constitution]—those who were born here of alien parents—it is claimed that the common law continued in force, which will be a subject for inquiry presently. Whether it did or did not, their condition was to be ascertained by a national law. In reference to aliens, legislation would be necessary; and the power to legislate, was conferred upon Congress. From what has been stated, it follows that such power was intended to be, and necessarily must be exclusive. And being exclusive, it cannot, as we have seen, be controlled by the unwritten or common law of one of the states,

42. HUGO GROTIUS, THE LAW OF WAR AND PEACE 201–02 (Francis W. Kelsey trans., 1925) (“Permanent residence ought not to be denied to foreigners who, expelled from their homes, are seeking a refuge, provided that they submit themselves to the established government and observe any regulations which are necessary in order to avoid strifes.”) (emphasis added). 43. 1 WILLIAM BLACKSTONE, COMMENTARIES 358 (Oxford, Clarendon 1765) (Allegiance is “due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection.”). 44. For an analysis on Vattel’s treatise concerning allegiance and settlement, see Charles, supra note 24, at 85–89. 45. Yates kept a personal edition of Matthew Hale’s Pleas of the Crown. It was rebound with blank leaves of paper placed in between sections so that Judge Yates could scribble his own notes concerning the famous treatise. See 1 YATES, supra note 39. For analysis on Yates’s writing, see Charles, supra note 13, at 78. In 1872, the Supreme Court relied on Hale’s Pleas of the Crown in confirming the doctrine of allegiance in relation to defining residence. Carlisle v. United States, 83 U.S. 147, 155 (1872). 46. Charles, supra note 24, at 83–84. 47. 1 Sand. Ch. 583 (1844). 48. Id. at 638. 49. Id. at 663 (emphasis added). 50. Id. at 641. 51. See Yates, supra note 39. 52. SAMUEL CHASE, BRITISH CASE LAW CITATIONS (1800) (unpublished journal, on file with the Library of Congress Rare Books Division, Washington, D.C.).

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any more than it can be altered by the statute law of such state. And whether or not the Constitution enabled Congress to declare that the children born here of alien parents who never manifested an intention to become citizens, are aliens or are citizens—it is clear that the decision of that question must be by some general rule of law, applicable to affecting our whole nation. It must be determined by what may be called the national law, as contra-distinguished from the local law of the several states. It is purely a matter of national jurisprudence, and not of state municipal law.53

To be clear, the holding in Lynch does not stand for the proposition that mere birth in the United States constitutionally vests citizenship.54 Sandford was clear to point out that the parties were in agreement that Congress had not yet legislated on the subject. In such cases, the common law applied until Congress regulated the subject. “[I]n the absence of constitutional or congressional provision on the subject [of citizenship by birth], it must be regulated by the principles of the common law, if they are pertinent and applicable,” wrote Sandford.55 In the case of jus soli citizenship, the common law required the parents to be in accord with the doctrine of allegiance by maintaining “general allegiance” to the United States.56 Julia Lynch’s parents fell within the terms of “general allegiance” because they had not violated any federal statute or law at the time of her birth in the United States.

This form of allegiance required by aliens—often referred to as temporary or local allegiance—was more than being physically present and subject to criminal prosecution. In England, it often required the announcing of one’s presence and taking an oath.57 The same held true in the United States. As Noah Webster aptly put it, local allegiance imposes “an obligation upon every member of a state or body politic, the moment he steps within its jurisdiction, to submit peaceably to such positiv[e] injunctions of that state’s, as hav[e] been judged necessary for its welfare.”58 Webster noted that the purpose of the doctrine of allegiance was the need for “moral law, which has for its object the

53. Lynch, 1 Sand. Ch. at 645–46 (emphasis added; the phrases “unwritten or common law” and “national law” were emphasized in the original source). 54. Commentators supporting a broad interpretation of jus soli citizenship fail to place Lynch v. Clarke in its proper context. See Gerard N. Magliocca, Indians and Invaders: The Citizenship Clause and Illegal Aliens, 10 U. PA. J. CONST. L. 499, 504–05 (2008); Shawhan, supra note 5, at 9–10. For a more creative and an historical reading of Lynch v. Clarke, see Berta Esperanza Hernández-Truyol, Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-First Century, 23 FORDHAM URB. L.J. 1075, 1114 (1996) (reading Lynch as supporting an “open borders” policy).

It is worth noting here that only one member of the Reconstruction Congress relied on Lynch v. Clarke to define national citizenship. On April 7, 1866, debating the 1866 Civil Rights Bill, Ohio Representative William Lawrence quoted Lynch twice to support the argument that U.S. citizenship is a national matter that cannot be legislated by the states. See CONG. GLOBE, 39TH CONG., 1ST SESS. 1832, 1836 (1866). Indeed, Lawrence read Lynch as holding that all persons born in the territorial United States are its citizens, but properly understood the holding was due to the continued “absence of [a] constitutional provision or congressional law” touching upon the subject. Id. at 1832. 55. Lynch, 1 Sand. Ch. at 655. 56. Id. at 641. 57. Charles, supra note 24, at 69–70. 58. NOAH WEBSTER, A COLLECTION OF ESSAYS AND FUGITIVE WRITINGS 319 (I. Thomas and E.T. Andrews, Boston 1790).

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good of society.”59 In other words, allegiance was a legal issue to be regulated upon the needs and political self-preservation of the nation.

In the midst of the War of 1812 and before Congress, James Monroe also conveyed the importance of allegiance in our American government:

Allegiance is a political relation between a sovereign and his people. It is the obligation that binds the latter in return for the protection which they receive. These reciprocal duties have the same limit. . . . A citizen or subject of one power entering the dominions of another, owes allegiance to the latter, in return for the protection he receives.60

Alexander Hamilton came to a similar conclusion when debating federal policy over immigration, naturalization, and citizenship. He viewed the ties of allegiance as crucial to the preservation of the United States moving forward and hoped Congress would enact more stringent immigration policies:

The safety of a republic depends essentially on the energy of a common National sentiment; on a uniformity of principles and habits; on the exemption of the citizens from foreign bias, and prejudice; and on that love of country which will almost invariably be found to be closely connected with birth, education, and family.61

The historical question that remains is whether the Fourteenth Amendment commanded citizenship by birth to be a fixed and unalterable rule or whether the tenets of allegiance, domicile, personal subjection, and international law could vary it dependent upon legislation necessary for the general or common good. There is no disputing that by the time of the Reconstruction Congress it had been settled that citizenship by birth was the general rule of law, with the children of Indians and foreign ministers being the standard exceptions. In the case of excluding Indian children, Attorney General Caleb Cushing wrote the legal rationale was because the parents were subjects and not “sovereign constituent ingredients of the Government.”62 In other words, while Indians were subject to the laws of the United States in many respects, in other respects they were not, and this quasi-subjection was seen as a sufficient legal concern to exclude such persons from birthright citizenship.

A. Birthright Citizenship and the 1866 Civil Rights Act

As the United States became immersed into the international sphere, the issue of divided allegiance not only affected the citizenship status of Indian children but of foreigners as well. For instance, in the midst of the Civil War, the French government stipulated ten rules of citizenship as a means to exempt its citizens from U.S. military service. The list included French citizens who were temporarily resident in the United States, and also “minor

59. Id. at 318. 60. 7 NILES’ WEEKLY REGISTER 84 (Oct. 22, 1814). 61. 25 THE PAPERS OF ALEXANDER HAMILTON 496 (Harold C. Syrett ed., 1977). 62. C. Cushing, U.S. Attorney General, to Robert McClelland, Secretary of the Interior, July 5, 1856, reprinted in 7 Op. Att’y Gen. 746, 749 (1854–56).

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sons, even those born in [the United States], of French parents who are naturalized Americans, if they were born before the naturalization of their father.”63 Secretary of State William H. Seward responded that the United States would not “sanction all the positions assumed” by the French government.64 Instead, Seward thought it best to handle any citizenship issues within the tenets of international and constitutional law “as the cases actually arise.”65 It was a policy that the Department of State would continue throughout the late nineteenth century in which a number of adjudications were based on international conceptions of birthright citizenship.66

Before we get to that historical point in time, it is important to capture the view of the Reconstruction Congress on the subject, for its members would draft both the 1866 Civil Rights Act and the Fourteenth Amendment’s Citizenship Clause. Seven years prior to both debates, the first member of the Reconstruction Congress to comment on the issue was John Bingham. What makes Bingham’s understanding of great significance was his personal involvement in drafting the Fourteenth Amendment. It has even been asserted that Bingham’s interpretation should be the one most relied upon when interpreting the Fourteenth Amendment.67

The issue of birthright citizenship arose at a time when Congress was debating the admission of the Oregon Territory into the Union. Discussing the contents of the 1857 Oregon Constitution, Bingham defined U.S. citizenship as follows:

Who are the citizens of the United States? Sir, they are those, and those only, who owe allegiance to the Government of the United States; not the base [perpetual] allegiance imposed upon the Saxon by the Conqueror, which required him to mediate in solitude and darkness at the sound of the curfew; but the allegiance which requires the citizen not only to obey, but to support and defend, if need be with his life, the Constitution of his country. All free persons born and domiciled within the jurisdiction of the United States, are citizens of the United States from birth.68

63. Henri Mercier to William H. Seward (Oct. 31, 1862), reprinted in UNITED STATES DEPARTMENT OF

STATE: MESSAGE OF THE PRESIDENT OF THE UNITED STATES, AND ACCOMPANYING DOCUMENTS, TO THE TWO

HOUSES OF CONGRESS, AT THE COMMENCEMENT OF THE FIRST SESSION OF THE THIRTY-EIGHTH CONGRESS

809–10 (Wash., Gov’t Printing Office 1863) [hereinafter ANNUAL MESSAGE OF THE PRESIDENT 1863]. 64. William H. Seward to Henri Mercier (Nov. 4, 1862), in ANNUAL MESSAGE OF THE PRESIDENT

1863, supra note 63, at 812. 65. Id. 66. See infra notes 165–187 and accompanying text. 67. See McDonald v. City of Chi., 130 S. Ct. 3020, 3072 (2010) (Thomas, J., concurring) (finding Bingham’s view to be “particularly significant” as “the principal draftsman of § 1”); Richard L. Aynes, The Continuing Importance of Congressman John A. Bingham and the Fourteenth Amendment, 36 AKRON L. REV. 589, 591 (2003) (“Bingham’s inseparable link with the Amendment makes him worthy of attention from both a legal and an historical view. . . . [H]is words may provide meaning or context for what has been termed original intent, meaning or understanding of the Fourteenth Amendment.”); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57, 103 (1993) (discussing the importance of Bingham’s views on contemporaries and the first federal courts to apply the Fourteenth Amendment). 68. CONG. GLOBE, 35TH CONG., 2ND SESS. 983 (1859) (emphasis added).

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Scholars have deduced different conclusions from Bingham’s definition.

Those that view birthright citizenship broadly focus on his application of birthright citizenship to all free persons.69 However, Bingham unequivocally conditioned citizenship on a number of factors to include domicile, allegiance, and being a member of the political community.70 In terms of the doctrine of allegiance, it is unlikely that Bingham was referring to natural allegiance or that which is possessed by citizens at birth, for he referenced birthright citizenship as applying to all free persons that are domiciled. Thus, it is likely Bingham was referring to allegiance in terms of temporary or local allegiance, which requires full obedience and submission to the laws of the nation as the condition of protection.71

This interpretation is confirmed upon reading the rest of Bingham’s speech. He confirmed numerous times that birthright citizenship extended to those “free inhabitants, born and domiciled within the United States.”72 In these latter instances, Bingham made no reference to allegiance, but this does not displace that the doctrine was universally understood as the tacit condition of lawful settlement.73 Not to mention, Bingham confirmed his acceptance of the doctrine three years later when debating emancipation within the District of Columbia:

I undertake to say, by the decision of your Federal tribunals, that women—that all the women of this Republic born upon the soil—are citizens of the United States . . . . The Constitution leaves no room for doubt upon this subject. The words “natural-born citizen of the United States” occur in it. . . . Who are the natural-born citizens but those born in the Republic? Those born within the Republic, whether black or white, are citizens by birth—natural-born citizens. . . . [A]ll other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement touching natural-born citizens except what is said in the Constitution in relation to Indians. The reason why that exception was made in the Constitution is apparent to everybody. The several Indian tribes were recognized at the organization of this Government as independent sovereignties. They were treated with as such; and they have been dealt with by the Government ever since as separate sovereignties. Therefore, they were excluded from the general rule.74

Here again, a selective reading could deduce that all persons born in the United States, excluding tribal Indians, are citizens. However, history in context requires more than picking whichever statement supports a respective interpretation. Three years prior, Bingham had conditioned birthright

69. See Epps, supra note 5, at 379. 70. See CONG. GLOBE, 35TH CONG., 2ND SESS. 983. 71. See Charles, supra note 13, at 78–81 (discussing the different eighteenth century commentary on the subject). 72. CONG. GLOBE, 35TH CONG., 2ND SESS. 983 (emphasis added); see also id. at 984 (“Who, sir, are citizens of the United States? First, all free persons born and domiciled within the United States—not all free white persons, but all free persons.”); id. at 985 (“But it is not necessary to take time in demonstrating that all free persons born and domiciled within the United States are citizens of the United States.”). 73. See Charles, supra note 13, 61–86. 74. CONG. GLOBE, 37TH CONG., 2ND SESS. 1639 (1862).

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citizenship on domicile, allegiance, and being a member of the political community.75 Indeed, in his 1862 speech, Bingham only referenced the importance of parental allegiance, but this does not mean that domicile and membership in the political community were removed from the birthright equation. If anything, one could argue Bingham’s reference to the “general rule” as acknowledging these other conditions.

Bingham’s statements on birthright citizenship are significant as we move forward to the debates of the 1866 Civil Rights Act, for its sponsor, Senator Lyman Trumbull,76 made similar references. The Act, as adopted, stated: “That 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 . . . .”77 The text itself went through numerous proposed amendments and changes, but Trumbull’s stance on its constitutional breadth remained unchanged. For instance, in an exchange with Pennsylvania Senator Edgar Cowan, Trumbull confirmed the children of German and Asiatic parents born in the United States were citizens.78 During this exchange, it is true that Trumbull did not condition birthright citizenship on any factors. However, the conditions were implicit in the law, for the next day Trumbull qualified his position:

My own opinion is that all these persons born in the United States and under its authority, owing allegiance to the United States, are citizens without any act of Congress. They are native-born citizens. That is my judgment about it; but there is a difference in opinion upon that subject.79

Here, Trumbull conditions birthright citizenship on the tenets of allegiance and being a member of the political community. In particular, Trumbull believed that these general rules excluded Indians, for they “do not recognize nor are they made subject to the laws of the United States.”80 Certainly, Indians that committed crimes outside the tribal jurisdiction were held accountable for those crimes by the respective U.S. authorities. Thus, in many ways they were subject to the authority of the United States. However, Trumbull’s point was that Indians did not fall within our political jurisdiction because they do not fully recognize the laws. He clarified this, stating, “They make and administer their own laws; they are not counted in our population; [and] they are not represented in our Government . . . .”81

From Trumbull’s initial definitions, it is unclear whether not falling under the “authority” and “allegiance to the United States” was satisfied upon meeting all the stated conditions or any of them. Perhaps one may argue that Trumbull was only referencing the political situation affecting Indians, and felt this could

75. See supra note 72. 76. For a summary of the Act’s purpose, see Epps, supra note 5, at 349–50. 77. Ch. 31, 14 Stat. 27 (1866) (codified as amended 18 U.S.C. § 242 (2006)). 78. CONG. GLOBE, 39TH CONG., 1ST SESS. 498 (1866). 79. Id. at 527 (emphasis added). 80. Id. 81. Id.

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never extend to any other class of people, such as the children of unlawfully present immigrants.82 This interpretation comes into question upon reading Trumbull’s statements on February 1, 1866:

The Senator [John B. Henderson] from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States and who owe allegiance to it. I thought that might be the best form in which to put the amendment at one time, “That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens;” but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer.83

This statement makes it abundantly clear that the 1866 Civil Rights Act did not intend to make all persons citizens. There could be legal conditions precedent for birthright citizenship to vest, including compliance with the doctrine of allegiance. As Trumbull’s statement confirms, in terms of international law, it was well settled that persons born of parents temporarily present could not maintain the requisite allegiance to possess citizenship by birth.84 Moreover, following the opinions of Trumbull, we know that the ownership of landed property could not be a condition precedent, but obtaining lawful domicile was deemed acceptable.85

A statement by Iowa Representative James F. Wilson on the 1866 Civil Rights Act supports the preceding conditions that may be imposed on birthright citizenship:

It is in vain we look into the Constitution of the United States for a definition of the term “citizen.” It speaks of citizens, but in no express terms defines what it means by it. We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except

82. As it stands today, unlike Indians, unlawful immigrants are counted for apportionment purposes. Congress has never passed legislation regulating the issue, and the constitutionality of such legislation is uncertain. For a debate on this issue, compare Charles, supra note 13, with MARGARET MIKYUNG LEE &

ERIKA K. LUNDER, CONG. RESEARCH SERV., R41048, CONSTITUTIONALITY OF EXCLUDING ALIENS FROM THE

CENSUS FOR APPORTIONMENT AND REDISTRICTING PURPOSES (2010). 83. CONG. GLOBE, 39TH CONG., 1ST SESS. 572. 84. The doctrine of allegiance was quite prevalent in nineteenth-century immigration and citizenship law. See DANIEL GARDNER, A TREATISE ON INTERNATIONAL LAW, AND A SHORT EXPLANATION OF THE

JURISDICTION AND DUTY OF THE GOVERNMENT OF THE REPUBLIC OF THE UNITED STATES 98, 110, 150, 157, 180, 255 (1844) (numerous later editions were published); HENRY WHEATON, ELEMENTS OF INTERNATIONAL

LAW: WITH A SKETCH OF THE HISTORY OF THE SCIENCE 99–101, 111–12, 122, 177–81, 230, 237–42 (1836)

(numerous later editions were published); 1 RICHARD WILDMAN, INSTITUTES OF INTERNATIONAL LAW: INTERNATIONAL RIGHTS IN TIME OF PEACE 6, 40–45, 82, 133 (1850) (numerous later editions were published and also cited by the Supreme Court in the Carlisle v. United States, 83 U.S. 147, 154 (1872)). 85. CONG. GLOBE, 39TH CONG., 1ST SESS. 572 (Indians “are not counted in the census. They are not regarded as part of our people.”); id. (“Whenever they are separated from those tribes, and come within the jurisdiction of the United States so as to be counted, they are citizens of the United States. It is not intended as a property qualification.”).

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it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native-born citizens of the United States.86

Indeed, during the 1866 Civil Rights Act debates congressional members often spoke of birthright citizenship in broad terms, including Trumbull.87 Still, this does not disparage the statements made by Bingham, Trumbull, and Wilson on the legal conditions that could be imposed upon birthright citizenship.88 It is a historical point of emphasis that the Act’s citizenship provision was merely declaratory of the law as the Reconstruction Congress understood it. As Trumbull later confirmed to the Illinois Assembly on the matter:

It was the generally received opinion that after the adoption of the Constitutional Amendment abolishing Slavery, all native born persons were citizens. If not citizens, what were they?. . .The [Civil Rights Act’s] words declaring “all persons born in the United States, and not subject to any foreign Power, to be citizens” were only declaratory of what the law already was.89

Certainly, part of this declaratory law included national sovereignty over the United States’s borders and foreign affairs.

B. Birthright Citizenship and the Fourteenth Amendment

In Garrett Epps’s piece discussing the legislative history on birthright citizenship, he finds it problematic to compare the 1866 Civil Rights language with that of the Fourteenth Amendment’s Citizenship Clause. Epps writes the Fourteenth Amendment has “different wording; it emerged from a different political situation; it was adopted under different procedures and had different authors, and it was approved by different voting bodies.”90 It is for these reasons that Epps concludes the Citizenship Clause’s “meaning must stand on its own.”91 There is no disputing that the two provisions maintain different language,92 but the two were commonly understood as encompassing the same body of law.93

86. Id. at 1117. Ohio Representative William Lawrence agreed with Wilson’s interpretation of the law. See id. at 1832; see also discussion supra note 54 (conveying Lawrence’s reading of Lynch v. Clarke). 87. See CONG. GLOBE, 39TH CONG., 1ST SESS. 600 (1866) (“I have already said that in my opinion birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States, and that the bill now under consideration is but declaratory of what the law now is.”); see also id. at 1757. 88. This is a contextual aspect of history that broad interpretations of the Citizenship Clause do not properly take into account. Take for instance, Mark Shawhan, who entitled his law review piece based on Trumbull’s “by virtue of being born here” statement. See generally Shawhan, supra note 5. Indeed, Trumbull did make this statement, but he also made numerous statements conditioning birthright citizenship on a number of factors. 89. Senator Trumbull’s Address to the Illinois Legislature—The Civil Rights Bill, N.Y. TIMES, Jan. 21, 1867, at 1. 90. Epps, supra note 5, at 353. 91. Id. 92. The Fourteenth Amendment reads “subject to the jurisdiction thereof” in lieu of “not subject to any foreign power.” Compare U.S. CONST. amend. XIV, § 1, with Ch. 31, 14 Stat. 27 (1866) (codified as amended 18 U.S.C. § 242 (2006)). 93. See DAILY MINERS’ REGISTER (Central City, Colo.), Nov. 15, 1866, at 1, column 3 (Section 1 “is a guarantee of citizenship to all persons born within the United States. It embraces in a constitutional enactment the provisions of the civil rights bill.”).

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More importantly, the content of the debates themselves reveals a similar understanding of the constitutional rules regarding birthright citizenship.

When the Fourteenth Amendment was first proposed by Michigan Senator Jacob M. Howard to the Senate, it did not have a provision guaranteeing birthright citizenship. Section 1 only declared: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”94

On May 23, 1866, Ohio Senator Benjamin F. Wade sought to amend Section 1 by removing “citizen” and substituting language that barred states from abridging “the privileges or immunities of persons born in the United States or naturalized by the laws thereof.”95 Wade knew the courts, especially the Supreme Court in Dred Scott v. Sanford,96 disagreed on the definition of citizen. Thus, Wade sought to mirror Section 1 to reflect the legal proposition in the 1866 Civil Rights Bill, for he “always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States.”97

In response to Wade’s definition of birthright citizenship, Maine Senator William P. Fessenden queried, “Suppose a person is born here of parents from abroad temporarily [resident] in this country.”98 Wade replied that he only knew of “one instance, in the case of the children of foreign ministers who reside ‘near’ the United States” for which this would be the case.99 He elaborated that it was by a “fiction of law” that such persons were not “residing here,” and not citizens of the United States.100

There is no disputing that Wade’s broad definition of birthright citizenship conflicts with the debates concerning the 1866 Civil Rights Act, especially the granting of citizenship to persons temporarily resident or who were outside the allegiance of the United States.101 Wade’s reason for such a broad interpretation was to comport with the legal maxim de minimis lex non curat, or the law does not concern itself with trifles. He thought it “better to put this question beyond all doubt and all cavil by a very simple process” with the language he proposed.102

94. CONG. GLOBE, 39TH CONG., 1ST SESS. 2764 (1866) (Howard’s proposed amendment was presented in joint resolution H.R. no. 127). 95. Id. at 2768. 96. 60 U.S. 393 (1856). 97. CONG. GLOBE, 39TH CONG., 1ST SESS. 2768. 98. Id. at 2769. 99. Id. 100. Id. 101. See supra notes 77–89 and accompanying text. 102. CONG. GLOBE, 39TH CONG., 1ST SESS. 2769.

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It was at this juncture that Senator Howard proposed to add the

following to precede Section 1: “All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the States wherein they reside.”103 Howard described the purpose of the amendment as follows:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.104

One can interpret Howard’s speech in one of two ways. The first interpretation comports with Senator Wade’s broad interpretation, and would affirm that only the children of foreign ministers and ambassadors were excluded from birthright citizenship. A second interpretation takes into account Howard’s reference to “natural law and national law,” and must conclude that international norms and national legislation could impact which “foreigners” or “aliens” were “subject to the jurisdiction thereof.” Given the 1866 Civil Rights Act debates, the latter interpretation seems more likely, and is supported by the remaining debates concerning the Fourteenth Amendment.

The primary concern with Howard’s amendment was the status of Indian children. Senators Edgar Cowan, James R. Doolittle, and William P. Fessenden each expressed such concerns.105 It was here that Senator Trumbull chimed in to confirm that “subject to the jurisdiction thereof” comported with the interpretation imposed by the 1866 Civil Rights Act:

The provision is, that “all persons born in the United States, and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does [Senator Doolittle] pretend to say that the Navajoe [sic] Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction.106

103. Id. at 2869. 104. Id. at 2890. Senator Howard’s opinion is of critical importance to understanding the scope of the Citizenship Clause. Howard was appointed to a three member committee to propose amendments to the full Senate, which included Senators Fessenden and Grimes. See Richard L. Aynes, Enforcing the Bill of Rights Against the States: The History and Future, 18 J. CONTEMP. LEGAL ISSUES 77, 129 (2009). Indeed, Senator Wade was the Senate Republican’s caucus chair and did make a proposed amendment to the Citizenship Clause. Id. However, it was Howard’s version and view that was adopted, not Wade’s. Id. 105. CONG. GLOBE, 39TH CONG., 1ST SESS. 2890–93. 106. Id. at 2893.

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Similar to his statements on the 1866 Civil Rights Act,107 Trumbull

conditioned birthright citizenship on factors such as the doctrine of allegiance and being a member of the political community—what Trumbull classified as the “complete jurisdiction.” Conversely, Garrett Epps interprets “complete jurisdiction” narrowly, and focuses intently on Trumbull’s reference to the inability to sue Navajos in a court of law. It is from this sentence that Epps deduces that “complete jurisdiction” equates to being merely subject to the laws.108 This interpretation cannot survive given that Trumbull later confirmed that allegiance and personal subjection were important factors in addition to being “subject to the laws.”109

At this point Maryland Senator Reverdy Johnson stood in to support an amendment “excluding Indians not taxed.” However, before Johnson discussed the matter, he defined the birthright citizenship clause as follows:

Now, all that amendment provides is, that all persons born in the United States and not subject to some foreign Power . . . shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. . . . I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.110

Certainly, this statement confirms that Johnson viewed the language of Section 1 as akin to the 1866 Civil Rights Act. Birthright citizenship may have been prescribed on general terms, but it was still dependent on allegiance, personal subjection, and being a member of the political community. Trumbull even assuaged Johnson’s concern stating, “We propose to make citizens of those brought under our jurisdiction in that way.”111 When was an individual “brought” under U.S. jurisdiction? In the case of Indians, Trumbull stated it required “owing allegiance solely to the United States.”112

Thus, “subject to the jurisdiction thereof” was never intended to remove the 1866 Civil Rights Act’s understanding of birthright citizenship. Instead, its inclusion in the Fourteenth Amendment was primarily intended to quell any concerns on the constitutional issue.113 This fact is confirmed by Senator Doolittle questioning the difference in language. Senator Howard replied the change was “to put this question of citizenship . . . beyond the legislative power of such gentlemen [from the States that] . . . would pull the whole system up by its roots and destroy it, and expose the freedmen again to the oppressions of

107. See supra notes 78–86 and accompanying text. 108. Epps, supra note 5, at 361–62. 109. CONG. GLOBE, 39TH CONG., 1ST SESS. 2893 (statement of Sen. Trumbull) (“If [persons] are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens; and that is all that is proposed. It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’ ”). 110. Id. 111. Id. 112. Id. at 2894. 113. Id. at 2768, 2896.

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their old masters.”114 In other words, “subject to the jurisdiction” sought to affirm once and for all that U.S. citizenship was superior to State citizenship.115 There is no substantiated evidence that it sought to supersede federal power over defining allegiance, domicile, and which foreigners may immigrate to become members of the political community.

Take for instance, Illinois Representative Jehu Baker’s interpretation of birthright citizenship. He thought the provision to be “plainly just” and without objection.116 It ensured those who were “subject to taxation, to military service, both State and national, ought, upon every principle of manly justice, to receive in turn from society that protection which is involved in the status of citizenship.”117 Citizenship by birth was not to be vested as a result of mere presence. It was dependent upon principles of “reciprocal protection” or the tenets of allegiance.118

A speech by Oregon Senator George H. Williams confirms this understanding:

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, “subject to the jurisdiction of the United States,” to mean fully and completely subject to the jurisdiction of the United States. If there was any doubt as to the meaning of the words, I think that doubt is entirely removed and explained by the words in the subsequent section [on apportionment].119

114. Id. at 2896. 115. The 1868 Louisiana Constitution provides a great example on the Fourteenth Amendment in this regard. Article 2 of the Bill of Rights declared: “All persons, without regard to race, color, or previous condition, born or naturalized in the United States, and subject to the jurisdiction thereof, and residents of this State for one year, are citizens of this State. The citizens of this State owe allegiance to the United States; and this allegiance is paramount to that which they owe to the State.” LA. CONST. OF 1868, art. II (emphasis added). States could no longer define the terms of allegiance for admittance into the political community. See Samuel T. Spear, National Protection, 24 INDEPENDENT 1231 (1872) (“The fact that one is a citizen of the state in which he resides does not in any way release him from the higher fact that he is also a citizen of the United States. As between the two forms of citizenship the national is supreme in the responsibilities and subjection which it involves.”). 116. CONG. GLOBE, 39TH CONG., 1ST SESS. 256 (1866) (statement of Rep. Baker). 117. Id.; see also The Indian Question, DAILY EVENING BULLETIN (San Francisco, Cal.), Apr. 19, 1870, at 1, column 1 (“The Indians are not and never have been subject to our jurisdiction. That is, they are not subject to our laws, not subject to taxes, nor to military service. Owing none of the duties of allegiance, they are not accorded any of its privileges.”); id. (“Government is founded on the consent of the governed: and the citizen is the fundamental and only repository of sovereignty. We want no citizens who are not fit to be sovereigns; and we can consistently have none who are not equally and freely admitted to all the rights as well as subjected to all the obligations of a common government.”). 118. CONG. GLOBE, 39TH CONG., 1ST SESS. 256. 119. Id. at 2897.

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Williams’s reference to Section 2 is telling, for it illuminates that lawful

settlement and being counted for apportionment were qualifications upon which birthright citizenship could depend—an interpretation that coincides with the 1866 Civil Rights Act debates. The question repeatedly asked and answered, in terms of apportionment, was whether non-citizens, women, and minors should be counted.120 Despite numerous attempts to limit apportionment to voters or male citizens twenty-one years and older, the constitutional basis of apportionment was decidedly affirmed to be total population.121 However, total population did not include every person present in the United States at the time. The drafters of the Fourteenth Amendment understood that apportionment should not extend to those temporarily present or who were not deemed part of the political community.122

In this legal aspect, Section 1 and Section 2 are intimately linked.123 It was commonly understood that both could be legislated in terms of defining who is within the jurisdiction124 of the United States through the legal tenets of allegiance, domicile, and being a contributing member of the political community. Judge Timothy Farrar’s Manual of the Constitution of the United States concurs with this understanding.125 Discussing the Fourteenth Amendment, Farrar wrote:

Who are the “persons in each State” to be counted? Citizens, inhabitants, residents—temporary or permanent, strangers, aliens, Indians, &c.? “Indians not taxed” are not altogether excluded; although before it was by some considered doubtful whether they were excluded only from the first class. This total exclusion is compatible with the preceding section, only on the ground that the Constitution has made them aliens, and so not “subject to the jurisdiction” of the United States, otherwise than aliens by temporary residence; for otherwise they are, by that section and by birthright, actual “citizens of the United States, and of the States wherein they reside.” . . . “The whole number of persons in each State” cannot mean everybody on the soil at a particular time, nor exclude everybody who may happen not to be on it at the same time, and of course should be authoritatively construed by the law-making power.126

Here, Farrar does not expressly define “persons” in terms of the Fourteenth Amendment, but in a previous section he wrote that “persons” included “citizens or aliens, natural-born or legally admitted, or otherwise constituted as such,” but expressly including a portion of those “bound to service.”127 Farrar’s definition undoubtedly coincides with those who

120. Charles, supra note 13, 56–60. 121. Id. 122. Id. at 61–67, 81–86. 123. See Elk v. Wilkins, 112 U.S. 94, 101 (1884). 124. Cf. U.S. CONST. amend. XIV, § 5. 125. The following sections of Farrar’s Manual would remain unchanged in subsequent editions. See TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 403 (2d. ed. 1869); TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 403 (3d. ed. 1872). 126. TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 403 (1st ed. 1867). 127. Id. at 214.

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advocated for the adoption of the Fourteenth Amendment. There had to be a legal line somewhere that Congress may “enforce, by appropriate legislation, the provisions of this article.”128 For scholars to assert otherwise is to claim that the drafters of the Fourteenth Amendment sought to completely strip the United States of national sovereignty in terms of its borders, foreign affairs, and what constitutes being a member of the political community, a proposition unsupported by the historical record.

III. DEFINING CITIZENSHIP AND WHO IS “SUBJECT TO THE JURISDICTION THEREOF”

As Part II details, the Fourteenth Amendment’s Citizenship Clause was never intended to be an unfettered grant of citizenship should a person be born in the territorial United States. Conversely, detractors read “subject to the jurisdiction thereof” as defining very narrow legal exceptions that only affect the children of Indians, diplomats, and enemy troops. This narrow interpretation, although plausible, omits and discards much of the historical record. Take for instance Senator Trumbull’s affirmation to President Andrew Johnson that the 1866 Civil Rights Act only made citizens of “ ‘all persons’ born of parents domiciled in the United States, except untaxed Indians.”129 To be domiciled within the allegiance of government is to announce one’s presence and personally subject oneself to government. One cannot receive the reciprocal protection of government, especially any political rights, by doing otherwise.130

In 1851, Secretary of State Daniel Webster conveyed this understanding of the law in a letter addressing the House of Representatives:

[E]very foreigner . . . residing in a country, owes to that country allegiance and obedience to its laws so long as he remains in it, as a duty imposed upon him by the mere fact of his residence, and the temporary protection he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the universal understanding in all civilized states, and nowhere a more established doctrine than in this country.131

Certainly, one may argue the Fourteenth Amendment’s Citizenship Clause is broader in scope or less flexible than the 1866 Civil Rights Act, but the debates and public understanding prove otherwise. Massachusetts Senator

128. U.S. CONST. amend. XIV, § 5. 129. This portion of the letter is reprinted in Mark Shawhan, The Significance of Domicile in Lyman Trumbull’s Conception of Citizenship, 119 YALE L.J. 1352, 1352–53 (2010) (emphasis added) (quoting Letter from Sen. Lyman Trumbull, Chairman, Senate Judiciary Comm., to President Andrew Johnson (undated), in ANDREW JOHNSON PAPERS, Reel 45, Manuscript Div. Library of Congress, Washington, D.C.) (internal quotation marks omitted). 130. This author is not the only modern scholar to assert that the doctrine of allegiance, including reciprocal protection, was alive and well in the late nineteenth century. See Richard L. Aynes, Constitutional Considerations: Government Responsibility and the Right Not to Be a Victim, 11 PEPP. L. REV. 63, 75–83

(1984) (discussing the doctrine as pertinent to understanding the Fourteenth Amendment as a whole, especially governmental protection). 131. BOS. SEMI WEEKLY COURIER, Jan. 1, 1852, at 1, column 5.

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Charles Sumner, a member of the Reconstruction Congress and strong advocate for the Thirteenth, Fourteenth, and Fifteenth Amendments, even later confirmed that “this definition of Citizenship” could be enforced by “appropriate legislation.”132 For whatever reason, this historical and legal point is often ignored. Perhaps it is because subsequent Congresses never enacted comprehensive reform.

It must be a point of emphasis that throughout the nineteenth century the United States maintained lenient rules regarding immigration and naturalization.133 This public policy, however, does not detract from what the law may constitutionally prescribe or that persons were denied entry. The historical record provides some evidence that, by the mid-nineteenth century, U.S. visas were denied to persons “whose loyalty to the Union . . . has not the most complete and satisfactory evidence.”134 Also, the fact remains that many of the greatest legal minds interpreted the Fourteenth Amendment as providing Congress with plenary power to define the terms of domicile, allegiance, and who constituted a member of the political community. In fact, by 1874 the Department of State and Foreign Affairs Committee submitted a bill to define what constituted domicile and residence as a means to acquire U.S. citizenship by birth, both abroad and in the territorial United States.135

The bill came at the recommendation of President Ulysses S. Grant, and its purpose was to “mark out and define when and how expatriation can be accomplished.”136 Grant acknowledged that the Fourteenth Amendment, once and for all, extinguished the “feudal doctrine of perpetual allegiance,” yet pleaded to Congress that there remained international disagreement as to when foreign citizenship attaches or U.S. citizenship is lost.137 Thus, there remained discord as to when temporary allegiance attached or there was sufficient personal subjection for birthright citizenship to vest.

Multiple times, in 1873, members of the President’s cabinet would define the constitutional scope of the Fourteenth Amendment in this regard. The first occurred in response to an application for a U.S. passport. Secretary of State Hamilton Fish wrote that citizenship attaches “by reason of birth within the jurisdiction of the United States, or by reason of naturalization therein.”138 Both cases required a “personal subjection to their jurisdiction”

132. 14 CHARLES SUMNER, THE WORKS OF CHARLES SUMNER 385 (Boston, Lee & Shepard 1883). 133. Charles, supra note 13, at 61. 134. Letter from D.P. Heap to John P. Brown (June 12, 1861), reprinted in 1 UNITED STATES

DEPARTMENT OF STATE: MESSAGE OF THE PRESIDENT OF THE UNITED STATES TO THE TWO HOUSES OF

CONGRESS AT THE COMMENCEMENT OF THE FIRST SESSION OF THE THIRTY-SEVENTH CONGRESS 390 (Wash., Gov’t Printing Office 1861). 135. CONG. REC., 43RD CONG., 1ST SESS. 3279 (1874). 136. President’s Message to the Senate and House of Representatives: Events of the Year, HARTFORD

COURANT (Hartford, Conn.), Dec. 3, 1873, at 1, column 6. 137. Id. 138. Letter from Hamilton Fish to Lawrence Washburne (June 28, 1873), reprinted in UNITED STATES

DEPARTMENT OF STATE: MESSAGE OF THE PRESIDENT OF THE UNITED STATES TO THE TWO HOUSES OF

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in order for citizenship to vest, and “make the constitutional right complete.”139 Fish would later confirm this interpretation in a letter to President Grant, writing, “[t]he fourteenth amendment of the Constitution makes personal subjection to the jurisdiction of the United States an element of citizenship.”140 Fish concurred with the drafters that the “child born of alien parents in the United States is held to be a citizen thereof,”141 but this too was understood to vest on the tacit condition of personal subjection.

In 1873, former Oregon Senator George H. Williams, who voted both in favor of the 1866 Civil Rights Act and Fourteenth Amendment,142 came to a similar understanding as U.S. Attorney General. The word “jurisdiction,” Williams wrote to President Grant, “must be understood to mean absolute or complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.”143 He recognized that aliens were “subject to the jurisdiction of the United States only to a limited extent.”144 Thus, “in the absence of treaties and legislation by Congress” on the subject, the rules of allegiance and

CONGRESS AT THE COMMENCEMENT OF THE FIRST SESSION OF THE FORTY-THIRD CONGRESS 256, 257 (Wash., Gov’t Printing Office 1873). 139. Id. Secretary of State Fish confirmed this interpretation of the Fourteenth Amendment twice in this letter. See id. at 259.

The provisions of the fourteenth amendment of the Constitution have been considered. This amendment is not only of a more recent date, but is a higher authority than the act of Congress referred to, and if there be any conflict between them, or any difference, the Constitution must control, and that makes the subjection of the person of the individual to the jurisdiction of the Government a requisite of citizenship.

Id. 140. Letter from Hamilton Fish to Ulysses S. Grant (Aug. 25, 1873), reprinted in PAPERS RELATING TO

THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL MESSAGE

OF THE PRESIDENT, DECEMBER 1, 1873, at 1186, 1189 (Wash., Gov’t Printing Office 1873) [hereinafter PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1873]. 141. Id. at 1192. 142. See CONG. GLOBE, 39TH CONG., 1ST SESS. 3042 (1866). 143. Letter from George H. Williams to Ulysses S. Grant (August 20, 1873), reprinted in ANNUAL

MESSAGE OF THE PRESIDENT 1873, supra note 140, at 1219. Williams’s 1873 interpretation is consistent with his 1866 statements on the scope of the Citizenship Clause. See supra notes 119–128 and accompanying text. It should be noted that in 1874 Williams’s integrity and legal experience came into question upon President Grant appointing him to fill the Supreme Court vacancy caused by the death of Chief Justice Salmon P. Chase. See Paul A. Freund, Appointment of Justices: Some Historical Perspectives, 101 HARV. L. REV. 1146, 1149–50 (1988). Williams withdrew his nomination as a result. Id. Certainly, one could claim that this makes Williams’s opinion on the Citizenship Clause suspect, but it was quite common in the mid to late nineteenth century for Supreme Court nominees to be rejected on philosophical and political reasons, with claims of inexperience to support partisan views. See Ruth Bader Ginsburg, Confirming Supreme Court Justices: Thoughts on the Second Opinion Rendered by the Senate, 1988 U. ILL. L. REV. 101, 107 (1988); Grover Rees III, Questions for Supreme Court Nominees at Confirmation Hearings: Excluding the Constitution, 17 GA. L. REV. 913, 944 n.94 (1983). The purpose of this Article is not to weigh Williams’s credentials except to say that he was a former Oregon judge who proved instrumental during the 1857 Oregon Constitutional Convention and as a member of Congress during the adoption of the 1866 Civil Rights Act and Fourteenth Amendment. See David Schuman, The Creation of the Oregon Constitution, 74 OR. L. REV. 611, 616 (1995). For more on the history and life of Williams and his Supreme Court nomination, see T.W. Davenport, The Late George H. Williams, 11 OR. HIST. Q. 279 (1910); Harvey W. Scott, An Estimate of the Character and Services of Judge George H. Williams, 11 OR. HIST. Q. 223 (1910); Sidney Teiser, Life of George H. Williams: Almost Chief-Justice, Part II, 47 OR. HIST. Q. 417 (1946). For the story of Williams’s nomination in his own words, including that of other candidates, see George H. Williams, Reminiscences of the Supreme Court, 8 YALE L.J. 296 (1899). 144. Letter from George H. Williams to Ulysses S. Grant (Aug. 20, 1873), reprinted in ANNUAL

MESSAGE OF THE PRESIDENT 1873, supra note 140, at 1219.

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personal subjection were “to be drawn from writers upon international and public law, who do not always agree, and therefore it will be difficult for the Government to act upon any such rules without a chance of controversy.”145

It is for these reasons that the Foreign Relations Committee sought to adopt uniform standards for vesting citizenship by birth.146 The bill was authored by Massachusetts Representative Ebenezer R. Hoar, a former Massachusetts State judge and U.S. Attorney General who had failed in his nomination to the bench of the Supreme Court.147 It defined the terms “domicile” and “reside” as “implying a fixed residence at a particular place, with direct or presumptive proof of an intent to remain indefinitely.”148 The definition applied to both U.S. citizens living abroad and aliens in the territorial United States. In terms of the latter, the following rule was prescribed:

[A] child born within the United States of parents who are not citizens, and who do not reside within the United States, and who are not subject to the jurisdiction of the United States, shall not be regarded as a citizen thereof, unless such child shall reside in the United States, or unless his or her father, or in case of death of the father his or her mother, shall be naturalized during the minority of such child, or such child shall within six months after becoming of age file in the Department of State, in such form and with such proof as shall be prescribed by the Secretary of State, a written declaration of election to become such citizen, or shall become naturalized under general laws.149

What makes this provision of such constitutional significance is that it conditioned citizenship on the tenets of allegiance and domicile. In particular, the provision disqualified from citizenship the children of alien parents temporarily present. Indeed, the bill provided numerous exceptions to this general rule, but these exceptions were only intended to reciprocate the rules that the United States applied to its own citizens abroad.150 To put it another way, the provision provides concrete evidence that who was “subject to the jurisdiction thereof” was viewed as a matter of federal regulation, determined by the national sovereignty of the United States.

Those that opposed the bill primarily took issue with bill’s distinctions between native and naturalized citizens.151 To date, no prominent scholar has

145. Id. For the importance and use of international law to supplement the U.S. Constitution, see Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, “A Decent Respect to the Opinions of [Human]kind”: The Value of Comparative Perspective in Constitutional Adjudication, Address Before the International Academy of Comparative Law at American University (July 30, 2010), available at http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_07_30_10.html. For an outstanding history, see ONUF & ONUF, supra note 23. 146. See JACKSON DAILY CITIZEN (Jackson, Mich.), Apr. 2, 1874, at 2, column 1. 147. See The Halting Appointments, DAILY EVENING BULLETIN (San Francisco, Cal.), Dec. 24, 1869, at 1, column 2. 148. CONG. REC., 43RD CONG., 1ST SESS. 3279 (1874). 149. Id. 150. Id. at 3280. 151. CHI. TIMES, May 3, 1874, at 6, column 2.

It is treason against the principle of American sovereignty to make any distinction between native and naturalized citizens. It is treason by implication against the constitution of the United States.

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found any newspaper editorial or narrative claiming the bill to be a violation of the Fourteenth Amendment. It is known that the Boston Daily Globe supported the bill as “properly” excepting “a child born within the United States of parents who are neither residents, nor have been naturalized during its minority.”152 Meanwhile, all other newspaper accounts, at least that this author has found, merely summarized the debate proceedings and provided no commentary as to its constitutionality.153

Throughout the debates, only one person questioned congressional authority in this regard. On the third day of debates, New York Representative Robert S. Hale prepared a long speech attacking the bill on numerous grounds. Hale’s primary objection was that of other opponents: the bill treated citizens born abroad differently than those born in the United States.154 Hale’s second objection was the bill conflicted with the duties of government in terms of international norms.155 He then objected on the grounds of the Fourteenth Amendment:

The general rule is that every person born within a sovereignty is by birth a subject of that sovereignty. . . . This rule has no respect to the circumstances under which the person may have been born, or the status of the parents at the time of his birth; whether the father of the child born here is permanently domiciled within our borders, or is here for temporary and commercial purposes, or is a mere visitor or a casual traveler within our boundaries. If the child is born within the United States, by that birth he is a citizen of the United States.156

Those that support a broad interpretation of the Fourteenth Amendment will claim this objection is why the bill was never put to vote. However, this conclusion does not gain support in the legislative record. No one else on the House floor objected to Hoar’s bill on this ground. The bill was debated for four days, and opponents emphasized their disfavor on the grounds of distinction between naturalized and born citizens, not unequivocal birthright citizenship.

In defense of the bill, Hoar stated it determined “who shall be regarded as citizens, in order that there may not be any question” further on the subject.157 To quell the fears of those who thought the bill took U.S. citizenship away from citizens abroad, Hoar stated:

We are not undertaking to take any man’s citizenship away; but the United States have certain duties in regard to their citizens abroad. That provision of the Constitution does not take away the right of a citizen of the United States to become naturalized in a foreign country; it does not relate to it. Its object was

The president who would presume to discriminate between a native and foreign-born citizen at home or abroad, would be unanimously and furiously impeached.

Id. 152. American Citizenship Abroad, BOS. DAILY GLOBE, Apr. 25, 1874, at 4. 153. See BOS. DAILY ADVERTISER, Apr. 23, 1874, at 1, column 8; N.Y. TRIBUNE, Apr. 23, 1874, at 2, column 2; N.Y. TIMES, Mar. 30 1874, at 4, columns 1–2. 154. CONG. REC., 43RD CONG., 1ST SESS. 3459–60 (1874). 155. Id. 156. Id. at 3460. 157. Id. at 3492.

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to provide who should be citizens of the United States within its jurisdiction. [The Fourteenth Amendment’s] object, in short, was to reverse the Dred Scott decision. That was the great purpose of it.158

Hoar’s understanding of “jurisdiction” was based on notions of national sovereignty concerning foreign affairs, immigration, and citizenship. To prevent foreign embarrassments, the bill’s supporters including the President’s cabinet, hoped to finally settle the terms of residency for purposes of citizenship, both at home and abroad. Furthermore, Hoar’s reference to Dred Scott is telling. It illuminates that the Fourteenth Amendment sought to remedy the defects of state citizenship and its superior relation to federal citizenship.159 Despite modern academic claims to the contrary, “subject to the jurisdiction thereof” did not intend to completely strip the United States of its international sovereignty over immigration, federal citizenship, and foreign affairs. The debates do not reveal the drafters ever sought to remove all notions of subjection and allegiance to government, for it was the very legal basis that could exclude the children of diplomats, temporary sojourners, Indians, and enemy troops from citizenship.160

Even after the bill was withdrawn for revisions, the main objection to the bill remained the same in that it deprived American citizens of jurisdiction after two years of residing abroad. Representative Leonard Myers, an opponent of the bill, was happy to see the bill withdrawn, yet also attested to its legitimate purpose:

The very able replies of the Cabinet, with the documents appended . . . form the most valuable collection upon expatriation, naturalization, domicile, and citizenship which we have. . . . I say, therefore, that no question ever came more legitimately before a committee, and none better deserves to occupy attention, challenging nevertheless, as it should, the closest scrutiny.161

Myers agreed with Secretary of State Hamilton Fish that “personal subjection”162 was an element of the Fourteenth Amendment, stating, “Jurisdiction is but another word for sovereignty.”163 This sovereignty required the United States to protect its citizens abroad absent an avowal or act removing their allegiance, but it also required allegiance or personal subjection with the intent of domicile from those within its territorial jurisdiction. The fact of the matter remained that U.S. citizenship still rested with the tenets of allegiance. Indeed, the Fourteenth Amendment

158. Id. at 3493. 159. Although the states have no power to guide national citizenship through state legislation, there was a recent attempt. See Julia Preston, State Lawmakers Outline Plans to End Birthright Citizenship, Drawing Outcry, N.Y. TIMES, Jan. 5, 2011, http://www.nytimes.com/2011/01/06/us/06immig.html; Bob Christie, Senate Panel Passes Birthright Citizenship Law, MY FOX PHOENIX (Feb. 22, 2011), http://www.myfoxphoenix.com/dpp/news/immigration/birthright-citizenship-2-22-2011. 160. See supra notes 90–128 and accompanying text. 161. CONG. REC., 43RD CONG., 1ST SESS. 3597 (1874) (emphasis added). 162. Letter from Hamilton Fish to Mr. Washburne, June 28, 1873, reprinted in PAPERS RELATING TO THE

FOREIGN RELATIONS OF THE UNITED STATES 1873, supra note 140, at 257 (Wash., Gov’t Printing Office 1873). 163. CONG. REC., 43RD CONG., 1ST SESS. 3597.

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extinguished the doctrine of perpetual allegiance as inconsistent with American practice and the rights of expatriation. However, the tenets of temporary or local allegiance remained intact, as attested by numerous commentators and courts preceding the Supreme Court’s holding in Wong Kim Ark.164

IV. THE BIRTHRIGHT CITIZENSHIP DEBATE IN THE LATE NINETEENTH CENTURY

The lack of any early legislation defining residency or domicile would prove problematic for the Department of State in adjudicating U.S. citizenship claims. Hoar’s bill sought to remedy the different outcomes affected by treaties, international law, and the doctrine of allegiance, but proved to be too burdensome on U.S. citizens domiciled abroad. Thus, absent congressional guidance, the Department of State continued adjudicating U.S. citizenship on a case-by-case basis.

One such case was that of Ludwig Hausding who was born of persons “temporarily in the United States,” yet never dwelled nor applied for citizenship in the United States.165 Given these facts, Secretary of State Frederick Theodore Frelinghuysen knew Hausding could only assert citizenship on the ground of birth in the United States. However, Frelinghuysen found this legal claim to be “untenable, for by section 1992, Revised Statutes, it is made a condition of citizenship by birth that the person be not subject to any foreign power.”166 Frelinghuysen elaborated:

Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation: that the fact of birth, under circumstances implying alien subjection, establishes of itself no right of citizenship; and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute.167

The reference to “alien subjection” is significant, for it denotes that Hausding’s parents had not personally subjected themselves to the jurisdiction of the United States as to qualify for his citizenship. Hausding’s case was not the only one to rest on qualifications of personal subjection, residence, or allegiance. In 1885, former Representative and current U.S. ambassador Boyd Winchester wrote to Secretary of State Thomas F. Bayard168 on the matter of

164. 169 U.S. 649 (1898). 165. Letter from Frederick Theodore Frelinghuysen to John A. Kasson (Jan. 15, 1885), reprinted in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1873, supra note 140, at 395. 166. Id. 167. Id. (emphasis added). Frederick Theodore Frelinghuysen was a New Jersey lawyer, former New Jersey Attorney General (1861–1866), Republican U.S. Senator from New Jersey, and U.S. Minister to England before being appointed as Secretary of State by Chester Arthur. See BIOGRAPHICAL DIRECTORY OF

THE UNITED STATES CONGRESS 1774–2005, at 1085 (Andrew R. Dodge & Betty K. Koed eds., 2005) [hereinafter BIOGRAPHICAL DIRECTORY]. 168. Thomas F. Bayard was a lawyer and former Democratic U.S. Senator from Delaware until appointed to Secretary of State by Grover Cleveland. See BIOGRAPHICAL DIRECTORY, supra note 167, at

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Richard Greisser, who desired papers to establish American citizenship.169 The facts stipulated that in 1869 Greisser was born of two non-citizen parents in Delaware, Ohio, but was removed to Switzerland within a year. Neither Greisser nor his family ever returned to the United States, yet he sought “citizenship on the ground of being born in the United States.”170

Winchester did not view the Fourteenth Amendment as unequivocally granting citizenship to everyone born in the United States. Instead, Winchester found the “precedents and instructions” to be “so unsatisfactory and conflicting” that he “declined to do anything until specially instructed from the Department.”171 On the one hand, he read State Department precedent as granting a “right of election of citizenship on arriving at maturity” to persons born in the United States.172 On the other hand, Winchester found authorities vesting citizenship according to the nationality of the father.173 If he had to choose an interpretation, however, Winchester found it to be “intimated, if not expressly held, that there should be a personal subjection to the jurisdiction of the United States to complete and maintain [a person’s] character of or claim of citizenship.”174

Bayard replied to Winchester that “on general principles of international law I do not consider . . . Richard Greisser . . . a citizen of the United States.”175 Bayard had “no doubt” that Greisser was born in the United States, but the facts presented made him “subject to a foreign power” and “not subject to the jurisdiction of the United States.”176 Again, the Department of State’s reliance on international law in this instance was deemed necessary given the absence of congressional legislation. The statutes did not prescribe any right of election, thus Bayard felt he must follow international precedent and grant citizenship if Griesser had remained in the country. At the same time, however, Bayard acknowledged that any rules concerning birthright citizenship could be superseded by legislation when he acknowledged the 1866 Civil Rights Act as a constitutional exercise as to who is “subject to the jurisdiction thereof.”177

A year later, Bayard again referred to the international rules respecting election to adjudicate the citizenship of Friedrich de Bourry, who had been born in New York on December 4, 1862, of Austrian parents temporarily resident:

625. For a history of Bayard’s congressional career, see CHARLES CALLAN TANSILL, THE CONGRESSIONAL

CAREER OF THOMAS FRANCIS BAYARD, 1869–1885 (1946). 169. Letter from Boyd Winchester to Thomas F. Bayard (Nov. 4, 1885), reprinted in PAPERS RELATING

TO THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL

MESSAGE OF THE PRESIDENT, DECEMBER 8, 1885, at 813 (Wash., Gov’t Printing Office 1885) [hereinafter PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1885]. 170. Id. at 814. 171. Id. 172. Id. 173. Id. 174. Id. (emphasis added). 175. Thomas F. Bayard to Boyd Winchester, Nov. 28, 1885, reprinted in PAPERS RELATING TO THE

FOREIGN RELATIONS OF THE UNITED STATES 1885, supra note 169, at 814. 176. Id. at 815 (internal quotations omitted). 177. Id.

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It is not claimed that his father was ever naturalized, or made the requisite declaration of his intention to become a citizen of the United States, or in any way signified his intention formally to abjure his Austrian allegiance. Nor is it pretended that when . . . the present memorialist arrived at full age, he took any steps to make or record his election of citizenship in the United States. . . . Under these circumstances it is not necessary for me to consider the question whether Friedrich de Bourry was, at the time of his birth, a citizen of the United States under the naturalization statutes and the fourteenth amendment of the Constitution of the United States.178

It is important to note that the right of election to citizenship was never part of our Anglo-American tradition. It developed as an international norm in the mid to late nineteenth century, and in terms of statutory law, the United States maintained no provision on the subject. Indeed, Ebenezer Hoar’s bill sought to codify a right to election to certain classes. However, the bill’s defeat left the Secretary of State to adjudicate U.S. citizenship on a case-by-case basis according to international precedent.

Take for instance a query from the Belgian government as to whether all persons born “upon the soil” were citizens of the United States.179 Bayard accurately replied that both the 1866 Civil Rights Act and Fourteenth Amendment controlled, yet found the issue was a bit more complicated than mere birth in the United States:

[Q]uestions arising thereunder must be considered upon the facts presented in actual cases in which a ruling becomes necessary, giving due heed to the general principle that the right of election of citizenship commonly pertains to the individual himself on becoming sui juris [or upon their consent and being competent].180

Here again, Bayard relied on the international rules respecting election to determine U.S. citizenship. He also acknowledged that any “subsequent” statutes in time would control future determinations, implying that “subject to the jurisdiction thereof” gave Congress flexibility in defining which alien classes qualified.181

When William F. Wharton assumed the role of Secretary of State, he too implied Congress was not foreclosed from legislating which alien classes were “subject to the jurisdiction thereof.” In 1891, Wharton wrote to F.D. Grant that “[t]here has been not a little diversity of opinion as to the scope to be given to the words ‘not subject to any foreign power’ ” in the 1866 Civil

178. Letter from Thomas F. Bayard to James Fenner Lee (July 24, 1886), reprinted in PAPERS RELATING

TO THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL

MESSAGE OF THE PRESIDENT, DECEMBER 6, 1886, at 13 (Wash., Gov’t Printing Office 1887). 179. Letter from Th. de Bounder de Melsbroeck to Thomas F. Bayard (Mar. 27, 1888), reprinted in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH

THE ANNUAL MESSAGE OF THE PRESIDENT, DECEMBER 3, 1888, at 48 (Wash., Gov’t Printing Office 1889) [hereinafter PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1888]. 180. Letter from Thomas F. Bayard to Th. de Bounder de Melsbroeck (Apr. 2, 1888), reprinted in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES 1888, supra note 179, at 48, 49. 181. Id.

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Rights Act.182 Wharton conveyed confidence that a “diplomatic officer” fell within the exception, for “the ‘children of ambassadors’ form an exception to the rules as to persons being born in the allegiance of a sovereign who are born on this soil.”183

Wharton’s reference to “allegiance” is significant. It confirms that birthright citizenship was not solely based upon the place of birth and being subject to the laws. Birthright citizenship required something more. Even tracing birthright citizenship to the founding generation, we see references to allegiance in exchange for political rights.184 The doctrine of allegiance was never conflated with merely being subject to a nation’s laws.185 It required some form of personal subjection to government, not mere presence.186 To assert otherwise would be to dilute national sovereignty and every nation’s right of self-preservation.187

A. The Personal Subjection and Allegiance View of “Subject to the Jurisdiction Thereof”

In addition to the Department of State adjudicating birthright citizenship claims according to allegiance, personal subjection, and domicile, a number of intellectuals interpreted the Citizenship Clause as requiring more than mere birth in the territorial United States. Each viewed “subject to the jurisdiction thereof” as imposing some form of personal subjection or requisite allegiance in order for birthright citizenship to vest. Naturally, there were different variations as Bernadette Meyler points out in her influential article The Gestation of Birthright Citizenship, 1868–1898.188 What Meyler’s survey lacks, however, is a basic understanding of the tenets of allegiance. She seemingly dismisses any notions of allegiance or subjection as historically unattainable and inconsistent with the text of the Fourteenth Amendment.189 Perhaps more importantly, Meyler’s article is not a complete or accurate survey of the scholarly texts touching upon the Citizenship Clause. A full survey reveals the tenets of allegiance and personal subjection could limit who was “subject to the jurisdiction thereof.”

182. Letter from William F. Wharton to F.D. Grant (Aug. 10, 1891), reprinted in PAPERS RELATING TO

THE FOREIGN RELATIONS OF THE UNITED STATES, TRANSMITTED TO CONGRESS, WITH THE ANNUAL MESSAGE

OF THE PRESIDENT, DECEMBER 9, 1891, at 21 (Wash., Gov’t Printing Office1892). 183. Id. 184. See supra notes 40–59 and accompanying text. 185. Margaret Stock has claimed that the State Department has “never interpreted” the Citizenship Clause in a manner that would deny citizenship to non-permanent residents. See Aimee Rawlins, The Birthright Citizenship Debate, COUNCIL ON FOREIGN RELATIONS, (Jan. 26, 2011), http://www.cfr.org/immigration/birthright-citizenship-debate/p23900 (Interview with Margaret Stock, Adjunct Professor, Univ. of Alaska Anchorage). However, the evidence in Part IV of this Article contradicts Stock’s historical assumption. 186. Charles, supra note 13, at 76–81. 187. Id. at 73–86; Charles, supra note 24, at 110–12. 188. Meyler, supra note 15, at 531–48. 189. Id. at 548–59.

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One such important late nineteenth-century intellectual was Samuel T.

Spear190 who defined “subject to the jurisdiction thereof” as a “phrase of limitation, intended to exclude certain persons from the classes specified.”191 Years earlier, Spear had outlined how the Fourteenth Amendment prescribed federal and state spheres of influence but never identified the limits of the Citizenship Clause.192 However, in 1877, he described Section 1 in the following terms:

The Fourteenth Amendment, so far from introducing an absolutely new theory into the Constitution with respect to citizenship, simply extended an old theory to persons not previously embraced within its provisions, giving additional protection to certain citizen rights, and in this way enlarging the applications of the theory. The primary purpose of the amendment was to bring the emancipated negroes of this country within the category of citizenship in both of its forms [state and federal], and thus place them on an equal footing with the white race about whose citizenship there was no dispute.193

In terms of the Citizenship Clause, Spear confirmed its purpose was to override Dred Scott as well as prevent any subsequent Congress or the Supreme Court from declaring the 1866 Civil Rights Act unconstitutional.194 Spear also noted that the Citizenship Clause did not override traditional notions of state sovereignty. Instead, it “delegate[d] the power of removing the disabilities of alienage to Congress, so far as U.S. citizenship and what may be called inter-state citizenship are concerned.”195 Spear elaborated:

What [the Citizenship Clause] says is, that certain described persons shall be citizens of the United States, and that these same persons, being resident in a State or States, shall be citizens of such State or States. It does not rest either proposition upon the authority of the other, but places both in the organic law of the land by the sovereign authority of the people. . . . Citizenship, in the generic sense, simply means membership in a political community; and what this membership means depends upon the constitution and the laws of the community.196

In 1880, Spear again commented on the constitutional scope of the Citizenship Clause. First, he addressed Section 2 and its definition of “persons” for purposes of apportionment. Overall, Spear agreed with Timothy Farrar197 that “persons are meant resident persons, inhabitants

190. Samuel T. Spear was the author of numerous treatises on the law. See SAMUEL T. SPEAR, THE

LEGAL-TENDER ACTS: CONSIDERED IN RELATION TO THEIR CONSTITUTIONALITY AND THEIR POLITICAL

ECONOMY (New York 1875); SAMUEL T. SPEAR, THE LAW OF EXTRADITION, INTERNATIONAL AND INTER-STATE: (Albany 1885); SAMUEL T. SPEAR, THE LAW OF THE FEDERAL JUDICIARY: A TREATISE ON THE

PROVISIONS OF THE CONSTITUTION, THE LAWS OF CONGRESS, AND THE JUDICIAL DECISIONS RELATING TO

THE JURISDICTION OF, AND PRACTICE AND PLEADING IN THE FEDERAL COURTS (New York 1883) [hereinafter SPEAR, THE LAW OF THE FEDERAL JUDICIARY]. 191. Samuel T. Spear, American Citizenship, 15 ALB. L. J. 484 (1877). 192. See Samuel T. Spear, State Citizenship, 27 INDEPENDENT 1381 (1875); Samuel T. Spear, National Protection, 24 INDEPENDENT 1231 (1872) [hereinafter Spear, National Protection] (“As between the two forms of citizenship the national is supreme in the responsibilities and subjection it involves.”). 193. Spear, supra note 191, at 484–85. 194. Id. at 485. 195. Id. at 486 (emphasis added). 196. Id. (emphasis added). 197. FARRAR, supra note 125, at 403–04.

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within the boundaries of a state.”198 In other words, apportionment did not vest by mere presence in the United States. A person also needed to be a lawful resident or accepted member of the nation to obtain representational rights. Not surprisingly, the same held true for birthright citizenship. As Spear aptly put it, the “political significance which attaches to the place of birth grows out of the fact that is usually accompanied with subjection to the jurisdiction and taken to indicate the jurisdiction to which the person is subject.”199 In other words, it all boiled down to lawful domicile:

“Domicile is residence as a final abode. To constitute it, there must be: 1, residence, actual or inchoate; 2, the non-existence of any intention to make domicile elsewhere.” . . .

The animus manendi [or intention of remaining to acquire domicile] is the chief point . . . and distinguishes a legal residence, or one that involves citizenship, from a temporary or transient occupancy which carries with it no change of citizenship.200

Spear was not the only late nineteenth-century authority to read “subject to the jurisdiction thereof” as affirming the tenets of allegiance, personal subjection, and lawful domicile. Lawyer, intellectual, and former U.S. ambassador William L. Scruggs201 agreed with Spear202 that the Citizenship Clause reversed the “Jeffersonian order of allegiance” from state to federal sovereignty and codified the English common law touching upon birthright citizenship,203 but on the well-established caveat that “personal subjection to our jurisdiction” remained an “element of citizenship.”204 In other words, Scruggs viewed the Citizenship Clause as neither embodying a pure “test by place of birth, nor that by the nationality of the parent, without important qualifications.”205

The question that vexed Scruggs and his fellow American diplomats was the lack of congressional guidance as to when sufficient allegiance attached for citizenship to vest: “How or under what circumstances a citizen may be deemed to have changed his allegiance, and to have obliterated all obligations resulting from his previous allegiance, has been among the vexed questions connected with our administration of foreign affairs.”206

If one follows the congressional debates concerning the 1866 Civil Right Act and the Fourteenth Amendment, the answer to Scruggs’s query is the

198. Samuel T. Spear, Indians Not Taxed, 32 INDEPENDENT 1639 (1880). 199. Id. at 1640 (emphasis added). 200. SPEAR, THE LAW OF THE FEDERAL JUDICIARY, supra note 190, at 142–43 (citing FRANCIS

WHARTON, A TREATISE ON THE CONFLICT OF LAWS § 21 (2d ed. 1881)). 201. For some of his writings not quoted in this article, see William L. Scruggs, Blundering American Diplomacy, 145 N. AM. REV. 313 (1887), William L. Scruggs, The Monroe Doctrine: Its Origin and Import, 176 N. AM. REV. 185 (1903), and William L. Scruggs, The Progress of Arbitration, 61 ADVOC. PEACE 239 (1899). 202. See Spear, State Citizenship, supra note 192, at 1381; Spear, National Protection, supra note 192, at 1231. 203. William L. Scruggs, Ambiguous Citizenship, 1 POL. SCI. Q. 199, 200–01 (1886). 204. Id. at 201. 205. Id. 206. William L. Scruggs, The American Abroad, 23CENT. L.J. 196, 198 (1886).

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establishment of lawful domicile or when persons become part of the political jurisdiction as to qualify for representation.207 Even this answer, however, proved unsatisfactory in the late nineteenth century, for the Department of State was forced to resort to international doctrine to fill in the statutory gap and define who had, in fact, established the requisite domicile for birthright citizenship to vest.208

Irving Berdine Richman was another late nineteenth-century intellectual who interpreted the Citizenship Clause as an affirmation of common law principles. The author of numerous histories,209 Richman may have provided the first historical analysis on the Citizenship Clause, often quoting members of the Thirty-Ninth Congress at length.210 While recognizing the different opinions among the courts and scholars, Richman believed the “great weight of opinion” supported the notion that “citizenship of the United States was not created but simply declared by the fourteenth amendment.”211 This meant that aspects of both the English common law and international law applied,212 which meant the children of “visiting” or “non-resident” foreigners could be constitutionally excluded from citizenship:

“[C]itizenship” and “state membership” being convertible terms, the citizenship of a parent may truthfully be said to attach immediately at birth to a child born out of the jurisdiction of the parent’s state; for by a temporary absence from his state an individual manifestly does not lose his membership therein.213

Perhaps the most forthright intellectual to take up the constitutional scope of the Citizenship Clause was the U.S. Chief Justice of the Samoa Islands Henry C. Ide. He posed the question: “[D]oes not the very fact of birth in our country render one ‘subject to the jurisdiction thereof,’ and ‘not subject to any foreign power?’ ”214 Ide recognized the constitutional tradition of jus soli over jus sanguinis citizenship, yet he also understood the importance of legal domicile as a means to define the former according to the tenets of allegiance:

When does the new principle of place of birth begin to extinguish the nationality? When does it complete that destruction and itself assume full sway and clothe the descendant with the new citizenship? It is no answer to say that the child is born with the stamp of his father’s nationality upon him. He is likewise born with the stamp . . . of his father’s actual domicile and intention never to renew or recognize his former allegiance and to adhere to the new one. Which is the more indelible and controlling? Ultimately the latter controls in all

207. See supra notes 77–128 and accompanying text. 208. See supra notes 165–187 and accompanying text. 209. For some of Richman’s works, see IRVING BERDINE RICHMAN, JOHN BROWN AMONG THE

QUAKERS: AND OTHER SKETCHES (1894) and IRVING BERDINE RICHMAN, RHODE ISLAND, A STUDY IN

SEPARATISM (1905). 210. Irving Berdine Richman, Citizenship of the United States, 5 POL. SCI. Q. 105, 107–16 (1890). 211. Id. at 123. 212. Id. at 117. 213. Id. at 106. 214. Henry C. Ide, Citizenship by Birth—Another View, 30 AM. L. REV. 241, 248 (1896).

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cases. According to our national theories, as expounded in our foreign relations and as suited to our conditions, the new stamp is controlling from the first birth in the new country, not from the second or later generations.

But the question of domicile is important in this connection [of jus soli citizenship]. One born of parents temporarily in our country is not born with the stamp of domicile and intention to reside here. Those two elements of national jurisdiction are wanting.215

The question that lingered is what constituted domicile. According to statements by Lyman Trumbull and Charles Sumner, the subject could be legislated consistent with the United States’s plenary authority over immigration and foreign affairs.216 Ide also inferred domicile was a matter of national legislation, but until then it must be settled on internationalist principles. “[W]here an alien is actually domiciled in our country, fixed for life as an inhabitant,” wrote Ide, “his original nationality is so far weakened that our institutions ought not to consent that its inanimate shadow shall rest upon his offspring and deprive them of the inherent rights which are theirs by birth.”217

For whatever reason, Bernadette Meyler dismisses Ide’s analysis by inferring that he personally sought a qualification to exclude the children of Chinese from birthright citizenship.218 Ide did no such thing. He merely applied the text of the Fourteenth Amendment to the common law and requisite internationalist principles as so many others had done before him. Ide properly understood the general rule that birth on the soil gave rise to citizenship. However, he also understood the importance of allegiance and domicile in order for citizenship to vest, two legal doctrines that Meyler never adequately explains.219

The last prominent intellectual to interpret the Citizenship Clause in terms of allegiance, domicile, and personal subjection was Boyd Winchester. In 1885, as a U.S. ambassador, Winchester acknowledged the competing interpretations of “subject to the jurisdiction,” and concluded it must require some form of “personal subjection.”220 Twelve years later and removed from political service, Winchester maintained the Fourteenth Amendment did not grant citizenship to everyone:

The United States claim all persons born within their territory as native born citizens, whatever may have been the nationality of their parents. There are, however, exceptions to this rule, resulting from the requirement of personal subjection to the “jurisdiction thereof”—(of the United States). This excludes Indians, the children of foreign diplomatic representatives born within the limits of the United States, and the children of persons passing through or temporarily residing in this country.221

215. Id. (emphasis added). 216. See supra notes 129–132 and accompanying text. 217. Ide, supra note 214, at 249. 218. See Meyler, supra note 15, at 536–37. 219. Ide, supra note 214, at 250–52. 220. Letter from Boyd Winchester to Thomas F. Bayard, Nov. 4, 1885, reprinted in PAPERS RELATING

TO THE FOREIGN RELATIONS OF THE UNITED STATES 1885, supra note 169, at 814. 221. Boyd Winchester, Citizenship in Its International Relation, 31 AM. L. REV. 504, 504 (1897) (emphasis added).

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Winchester supported his exclusion of temporary sojourners in terms of

domicile and allegiance. “Family domicile is the factor of prime importance,” wrote Winchester, when determining jus soli citizenship and is the “great defect” of jus sanguinis citizenship.222 He admitted there were differing internationalist theories as to when domicile attached,223 but acknowledged the doctrine of allegiance still applied in order for the full protection of the nation to vest, including any rights to citizenship: “Citizenship is an attribute of national sovereignty and not merely of individual or local existence. It is a sacred right, full of grave consequences, granted with solemn formalities, and its existence should always be well defined and indisputable.”224

B. The Internationalist or “Not Subject to Any Foreign Power” View of “Subject to the Jurisdiction Thereof”

As shown above in Part IV.A, citizenship by birth could require legal conditions precedent in order for that right to vest. Indeed, birth in the sovereign territory of the United States was the general rule, but there were exceptions to the rule based upon legal domicile, the tenets of allegiance, and personal subjection. Not all late nineteenth-century commentators adhered to this understanding of the Citizenship Clause. There was a small contingent of intellectuals that interpreted the law as prescribing jus sanguinis principles.

In 1884, George D. Collins advanced the most extreme version of this approach to interpreting the Citizenship Clause. Unlike Ide, Collins’s analysis was seemingly influenced as a means to exclude the children of Chinese parents from citizenship. He described the Chinese as a “people foreign to us in every respect” that rigidly adhere “to the peculiar customs, habits and methods of their forefathers.”225 He outright dismissed as “unsound reasoning” that “a person born within the United States, whose father at the time of such birth was an alien, [could be] a citizen of the United States.”226 He even described the jus soli doctrine as “manifestly impolitic.”227

Collins came to this ahistorical determination because he viewed the “common law” as “not part of the jurisprudence of the United States.”228 Thus, in contrast to the overwhelming majority of commentators that viewed the Citizenship Clause as an affirmance of the English common law, Collins viewed it as declaratory of the principles of international law.229 Pushing any

222. Id. at 505. 223. Id. at 507–08. 224. Id. at 513 (emphasis added). 225. George D. Collins, Are Persons Born Within the United States Ipso Facto Citizens Thereof?, 18 AM. L. REV. 831, 834 (1884). 226. Id. at 831. 227. Id. at 834. 228. Id. at 831. 229. Id. at 837.

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national common law debate aside,230 Collins at least came to agreement with his jus soli counterparts that “subject to the jurisdiction thereof” was a phrase of limitation: “The phrase . . . ‘subject to the jurisdiction thereof’ does not mean territorial jurisdiction, as has been held in some cases, but means national jurisdiction; that is the jurisdiction which a nation possesses over those who are its citizens or subjects as such.”231

Collins also properly identified the 1866 Civil Rights Bill’s language “not subject to any foreign power” as being synonymous with the “subject to the jurisdiction thereof,” yet somehow refused to accept the intent of each provision was to adhere to jus soli principles.232 Eleven years later, Collins did not budge from his pure internationalist stance. He never once referred to the ratifying debates and intently focused on synthesizing the phrases of limitation embodied in the 1866 Civil Rights Act and the Citizenship Clause.233 This likely explains why Collins refused to budge from the internationalist view.234

Alexander Porter Morse was another prominent late nineteenth-century internationalist.235 In his 1881 work entitled A Treatise on Citizenship, Morse provided an interpretation of the Citizenship Clause that comported with the drafters’ intent:

This section does not confer citizenship upon persons of foreign birth. The words “subject to the jurisdiction thereof” exclude the children of foreigners transiently within the United States, as ministers, consuls, or subjects of a foreign nation. This amendment does not include Indians and others not born in and subject to the jurisdiction of the United States; but an Indian, if taxed, after tribal relations have been abandoned, is a citizen.236

Here again, another commentator properly understood “subject to the jurisdiction thereof” as a phrase of limitation. Like Collins, however, Morse

230. This topic was a matter of heated debate following the ratification of the Constitution. See Patrick J. Charles, Originalism, John Marshall, and the Necessary and Proper Clause: Resurrecting the Jurisprudence of Alexander Addison, 58 CLEV. ST. L. REV. 529, 550–51 (2010). 231. Collins, supra note 225, at 837. 232. Id. 233. George D. Collins, Citizenship by Birth, 29 AM. L. REV. 385, 390–94 (1895). 234. Collins continued his internationalist view as an amicus before the Supreme Court, but his stance was not adopted by the Court. See United States v. Wong Kim Ark, 169 U.S. 649 (1898). In 1905, Collins fled to British Columbia after being indicted for perjury charges. When Collins was extradited to California to face the charges, he challenged and lost his claim of an invalid extradition warrant. See Collins v. O’Neil, 214 U.S. 113 (1909), reprinted in 3 AM. J. INT’L L. 747 (1909). An interesting footnote to the case is that Samuel T. Spear’s extradition treatise was cited in support of the Court’s judgment. Id. at 751. For Spear’s view on the Fourteenth Amendment, see supra notes 190–200. 235. In addition to his treatise, Morse was a frequent commentator on international law and citizenship. See Alexander Porter Morse, The Civil and Political Status of Inhabitants of Ceded Territories, 14 HARV. L. REV. 262 (1900); Alexander Porter Morse, Status of Inhabitants of Territory Acquired by Discovery, Purchase, Cession, or Conquest, According to the Usage of the United States, 48 AM. L. REG. 332 (1900); Alexander Porter Morse, Citizenship by Naturalization, 27 AM. L. REG. 665 (1879); Alexander Porter Morse, Rights and Duties of Belligerents and Neutrals from the American Point of View, 46 AM. L. REG. 657 (1898). 236. ALEXANDER PORTER MORSE, A TREATISE ON CITIZENSHIP, BY BIRTH AND NATURALIZATION, WITH

REFERENCE TO THE LAW OF NATIONS, ROMAN CIVIL LAW, LAW OF THE UNITED STATES OF AMERICA, AND

THE LAW OF FRANCE 248 (Boston, Little, Brown & Co. 1881).

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misinterpreted the 1866 Civil Rights Act as codifying jus sanguinis principles.237 He failed to understand that “subject to the jurisdiction thereof” was adopted as a means to clarify the 1866 Civil Rights Act and once and for all ensure that federal jurisdiction superseded any State claims to national citizenship.238

V. WONG KIM ARK, THE SUPREME COURT, AND OUR CURRENT BIRTHRIGHT

CITIZENSHIP JURISPRUDENCE

In addition to the views in Part IV, there were some intellectuals that viewed the Citizenship Clause in its broadest sense. They felt “subject to the jurisdiction thereof” merely equated to “subject to the laws.”239 The argument, as advanced in the late nineteenth century, is best articulated by Judge Thomas P. Stoney:

It is said that the words “subject to the jurisdiction thereof,” do not mean “territorial jurisdiction,” but national jurisdiction, that is, the jurisdiction “which a nation possesses over its citizens or subjects as such.” There is no such distinction between national and territorial jurisdiction. . . . All jurisdiction is territorial. The jurisdiction of a nation is co-extensive with and confined to its territorial limits.240

It is interesting that Stoney acknowledged the argument as probable, yet understood the legal complexities in accepting this analysis wholesale.241 In particular, Stoney experienced difficulties in reconciling such a broad interpretation with the Supreme Court’s opinions in the Slaughterhouse Cases242 and Elk v. Wilkins.243 In the Slaughterhouse Cases, the Court never decided the constitutional scope of the Citizenship Clause. The Court merely stated in dicta:

[The Citizenship Clause] declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The 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.244

There is no disagreement among contemporary scholars that the children of foreign ministers and consuls were excluded from citizenship by birth.

237. Alexander Porter Morse, Citizenship of Children of Aliens Born in the United States, 30 ALB. L. J. 420, 420 (1884). 238. See supra notes 90–128. 239. Garrett Epps provides his own intellectual summary supporting this view. See Epps, supra note 5, at 373–81; see also D.H. Pingrey, Citizens, Their Rights and Immunities, 36 AM. L. REG. 539, 540 (1888) (interpreting birthright citizenship broadly, while agreeing that the aliens must “reside therein”). 240. Thomas P. Stoney, Citizenship, 34 AM. L. REG. 1, 8 (1886). 241. Id. at 8–14. 242. 83 U.S. 36 (1873). 243. 112 U.S. 94 (1884). 244. 83 U.S. 36, 73 (1873).

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However, there is disagreement about what the Court meant by “subjects of foreign States.” Did the Court intend to acquiesce to jus sanguinis citizenship? Did the Court interpret the Citizenship Clause in conjunction with the text of the 1866 Civil Rights Act or was it implicitly affirming the conditions precedent for birthright citizenship to vest? The answer is unclear, but there is nothing in the dissent or majority opinions that dismissed the United States’s plenary authority over immigration, foreign affairs, the doctrine of allegiance, or residence.245

In Elk v. Wilkins, the Court again touched upon the constitutional scope of the Citizenship Clause. This time the question before the Court was one of national citizenship. In particular, the question was whether a person born of Indian parents was “subject to the jurisdiction thereof.” The Court properly read Section 1 in conjunction with Section 2 to hold that John Elk did not satisfy the original intent of the Citizenship Clause246 and therefore could not claim voting protections under the Fifteenth Amendment.247 In terms of all non-Indian persons born in the territorial United States, the Court stated in dicta:

The evident meaning of [“subject to the jurisdiction thereof”] is, 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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired.248

Here again, the Court left much wanting in terms of constitutional interpretation. What did it mean by “completely subject” to the political jurisdiction of the United States? At what point did “direct” or “immediate allegiance” vest? Certainly, the Court did not mean birth in itself vested allegiance, for the rest of the paragraph would be moot. If one examines Justice Harlan’s dissent, we find birthright citizenship to be dependent upon such factors as the parents being “subject to taxation and other public burdens” in accordance with the intent of the 1866 Civil Rights Act.249 According to Harlan, the same would have held true for the Fourteenth Amendment, for “the former [1866 Civil Rights Act] urged the adoption of the latter.”250

245. Indeed Justice Field’s dissent states that citizenship is “dependent upon the place of their birth, and “not upon the condition of their ancestry,” but claims this in the context that the states cannot impose residence requirements for U.S. citizenship to vest. Field’s dissent is silent as to the federal government’s authority to define the terms of domicile, residence, allegiance, or personal subjection. Id. at 95 (Field, J., dissenting). 246. For the drafters’ intent in reading both provisions together, see supra notes 119–128. 247. Elk v. Wilkins, 112 U.S. 94, 109 (1884). 248. Id. at 102. 249. Id. at 114 (Harlan, J., dissenting). 250. Id. at 115.

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Despite these holdings, the issue of whether persons born of alien parents in

the territorial United States were, in fact, citizens remained unclear as a jurisprudential matter. As seen in Parts III and IV, government officials were forced to adjudicate U.S. citizenship on a case-by-case basis. The lack of any affirmative congressional authority as to who was “not subject to any foreign power,” yet also “subject to the jurisdiction thereof” remained unsettled.

Before the Supreme Court would hear Wong Kim Ark and settle the jurisprudential question, Marshall B. Woodworth analyzed the case in light of the district court opinion.251 Woodworth recognized a number of important legal facts. First, the district court opinion seemingly conflicted with Supreme Court precedent in the Slaughterhouse Cases.252 Second, the nations of the world generally adhered to two doctrines of citizenship, jus soli and jus sanguinis.253 Third, there was very little substantive case law directly addressing whether the Citizenship Clause encompassed the child of two alien parents residing in the territorial United States.254

To Woodworth, settling the constitutional issue boiled down to the relationship between the 1866 Civil Rights Act and the Citizenship Clause:

These two expressions [of the law] are, to all intents and purposes, the same in meaning, for it may well be said that one who is subject to the jurisdiction of the United States is not subject to any foreign power. Taking the phrase as it is contained in the constitutional provision, and the question presents itself, what was intended to be the application of the word “jurisdiction?” Does it mean, to be subject to the “laws” of the United States, or has it another and a more extended meaning?255

Woodworth answered the query just as the drafters envisioned.256 He believed persons are “subject to the jurisdiction of the United States who are within [its] dominions and under the protection of [its] laws, and with the consequent obligation to obey them, when obedience can be rendered; and only those thus subject by their birth . . . are within the terms of the amendment.”257 Thus, “subject to the jurisdiction thereof” did not mean mere presence in the territorial jurisdiction. It required more according to the tenets of allegiance, domicile, and personal subjection. Indeed, Woodworth understood every nation “may affix conditions, or regulate the acquisition of citizenship, in accordance with what it may deem most conducive to its policy, stability and prosperity,”258 with the United States electing citizenship on jus soli principles. At the same time, however, he acknowledged that the

251. Marshall B. Woodworth, Citizenship of the United States Under the Fourteenth Amendment, 30 AM. L. REV. 535 (1886). 252. Id. at 536. 253. Id. 254. Id. at 536–37. 255. Id. at 541. 256. See supra Part II.B. 257. Id. at 542 (emphasis added). 258. Id. at 545.

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subject of citizenship was “co-extensive with the right of a nation to admit or exclude aliens and to prescribe the terms of their admission or exclusion.”259

Herein lays the interpretational problem with those modern commentators that read the Citizenship Clause to include virtually anyone present. Take for instance a recent article by Matthew Ing, who asserts “immediate allegiance” is satisfied by being in U.S. territory and “directly subject” to its “sovereign power.”260 This assumptive take on allegiance ignores federal plenary authority over immigration and foreign affairs.261 The right to exclude non-citizens according to any condition dates back to our Anglo origins and was well understood by the founding generation.262 Although not expressly codified in the Constitution, it is a sovereign right, fixed by the law of nations, as a means for national self-preservation and based on principles of allegiance.263 A non-citizen could not gain the full protection of a nation without fully submitting to the sovereignty of the nation.264 This is why late eighteenth- and nineteenth-century discussions on citizenship were always intertwined with references to allegiance, residence, domicile, and personal subjection. As Woodworth informs us, the doctrines must be “co-extensive” with each other,265 for any person could not expect to

259. Id. at 546 (emphasis added). 260. Ing, supra note 5, at 35. For some other attempts to dismiss the importance of the doctrine of allegiance, see James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, in MADE IN AMERICA: MYTHS & FACTS ABOUT BIRTHRIGHT CITIZENSHIP 6, 11 (2009), available at http://www.immigrationpolicy.org/sites/default/files/docs/Birthright%20Citizenship%20091509. pdf [hereinafter MADE IN AMERICA] (arguing that “allegiance” is moot because “the text of the Citizenship Clause requires ‘jurisdiction,’ not ‘allegiance.’ ”); Elizabeth B. Wydra, Birthright Citizenship: A Constitutional Guarantee, AM. CONST. SOC’Y L. & POL’Y 9 (2009), available at http://www.acslaw.org/ files/Wydra%20Issue%20Brief.pdf (arguing the allegiance of the parents is insignificant, for allegiance “spring[s] from the place of one’s birth, not the citizenship status of one’s parents.”). 261. For some recent scholarship disagreeing with this important historical and legal fact, see Epps, supra note 5, at 349–91 and Shawhan, supra note 5, at 68 (concluding “the relevant criterion [for birthright citizenship to vest], historically speaking, is the extent of U.S. sovereign authority over those children at birth, not the consent of the political community to their membership”). 262. See Charles, supra note 24, at 67–118. It is often ahistorically asserted that the Supreme Court “created” the plenary power doctrine. See Kevin R. Johnson, Congress to Apologize for the Chinese Exclusion Act?, IMMIGRATIONPROF BLOG (Aug. 1, 2011), http://lawprofessors.typepad.com/immigration/ 2011/08/congress-to-apologize-for-the-chinese-exclusion-act.html. For some prominent scholarship advancing this myth, see T. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, 83 AM. J. INT’L L. 862 (1989); Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, 858 (1987); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L. J. 545

(1990); and Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L.J. 339 (2002). 263. Charles, supra note 24, at 89, 94, 103, 110–13. 264. Id. at 83–88, 103–05; see also MORSE, supra note 236, at 159 (“temporary allegiance (which describes the obedience due by an alien to the laws of the jurisdiction in which he happens to be commorant) is everywhere recognized”); id. at 160 (“Certain persons may . . . be under the jurisdiction of two different states. . . . In case of conflict, the preference will be given to the state in which the individual or family in question have their domicile. . . . If the oath of allegiance is the first tie which binds the citizen to the state, it is evident that the individual cannot appeal . . . simultaneously to two sovereignties”). 265. Woodworth, supra note 251, at 546.

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be afforded political rights or benefits on any footing other than legal admission and acceptance into the community.266

The holding in Wong Kim Ark provides nothing to undermine this basic understanding of our Anglo-American tradition. The case concerned the birth of Wong Kim Ark in the territorial United States to parents who were both of Chinese decent and legal residents of California.267 The Court emphasized that its previous decisions touching upon the Citizenship Clause did not present these facts268 and even noted this was crucial to its holding at numerous points.269 It reflected that residence, domicile, and allegiance were requisites that the Citizenship Clause rested upon:

The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory.270

266. Political advocacy groups often conflate civil rights with political rights as a means to gain popular support for a broad interpretation of the Citizenship Clause. Take for instance Eric Ward, National Field Director for the Center for New Community, who writes that any restrictions as to who is subject to the jurisdiction thereof “would be the first time since the infamous ‘three-fifths clause’ that the Constitution has been written to restrict civil rights rather than expand them.” Eric Ward, A New Nativism: Anti-Immigration Politics and the Fourteenth Amendment, in MADE IN AMERICA, supra note 260, at 24, 27 (emphasis added). This is a complete misstatement of the Fourteenth Amendment. Advocates like Ward also hope to garner political support by referring to those that support the enforcement of immigration laws with negative terms like “anti-immigrant” or “nativist,” yet, at the same time, says the use of the word “illegal alien” is a form of hate speech. See id. at 24–28 (referring to proponents of limiting birthright citizenship as “anti-immigrant”); Eric Ward, Word Wars: Honesty vs. Hate in the Immigration Debate, DOUBLE STANDARD (June 13, 2010, 9:52 PM), http://thedoublestandard.wordpress.com/2010/06/13/word-wars-honesty-vs-hate-in-the-immigration-debate/ (stating the use of “illegal alien” is a form of hate speech and referring to immigration control supporters as “anti-immigrant”). Ward is not alone in advancing this hypocrisy in wordplay. Often immigration law professors refer to proponents of enforcing immigration law with negative terms such as “anti-immigrant,” yet claim the use of the term “illegal alien” as racist or hate speech. See Bill O. Hing, Anti-Immigrant Laws Damage Arizona’s Economy, IMMIGRATIONPROF BLOG (Sept. 18, 2011), http://lawprofessors.typepad.com/immigration/2011/09/anti-immigrant-laws-damage-arizonas-economy.html (referring to laws imposing immigration controls as “anti-immigrant”); Kevin R. Johnson, “Aliens” and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM. L. REV. 263, 276–81 (1996) (criticizing the use of the phrase “illegal alien”); Kevin R. Johnson, How Georgia’s Anti-Immigration Law Could Hurt the State’s (and the Nation’s) Economy, IMMIGRATION PROF BLOG (Oct. 4, 2011), http://lawprofessors.typepad.com/immigration/2011/10/release-how-georgias-anti-immigration-law-could-hurt-the-states-and-the-nations-economy.html (also criticizing the use of the phrase “illegal alien”). One cannot have it both ways. 267. United States v. Wong Kim Ark, 169 U.S. 649, 652–53 (1898). 268. Id. at 676–82. 269. The fact of legal residence and domicile was reiterated throughout the opinion. See id. at 653, 656, 666, 693, 695–96, 700, 704–05. 270. Id. at 693 (emphasis added).

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While some commentators have read this language as vesting citizenship

in everyone present,271 such an interpretation is an idealistic reading at best.272 Since the ratification of the Fourteenth Amendment, neither the Supreme Court, nor any court for that matter, has ever heard a case adjudicating citizenship from persons without the requisite temporary or local allegiance to the United States, or lawful residence and domicile. The closest the Court has ever come to defining any limitations on the Citizenship Clause in recent times is Nguyen v. INS,273 but that case involved a person born outside the territorial United States. At the same time, however, it is worth noting that the Court in Nguyen recognized congressional plenary authority to define the “ties and allegiances” of persons,274 a legislative determination that has never been questioned in our Anglo-American tradition.275

Needless to say, the constitutionality of legislation excluding the children of unlawful immigrants from U.S. citizenship remains unsettled as a jurisprudential matter. If one follows the intent of the 1866 Civil Rights Act and Citizenship Clause, there is a strong constitutional argument that such children could be excluded because the parents have not personally subjected themselves to the jurisdiction of the United States or acquired the requisite temporary or local allegiance by complying with the immigration laws; therefore, they have not maintained a lawful residence or domicile in accordance with the law. The only questions remaining are whether such legislation could ever come about, and any public policy concerns that must be considered.

271. See Epps, supra note 5, at 332–33; Ho, supra note 260, at 6, 12–13; Lister, supra note 5, at 205–06; Magliocca, supra note 54, at 507–09; Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV. 2037, 2091–92 (2008); Cristina M. Rodriguez, The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009). 272. For some interpretations of Wong Kim Ark contemporaneous with the opinion that conflict with the broad interpretation, see HENRY BRANNON, A TREATISE ON THE RIGHTS AND PRIVILEGES GUARANTEED BY

THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 25 (1901). Mere birth within our territory does not always make the child a citizen. He must be born under the allegiance of the United States . . . within its “jurisdiction.” Such is the case with children of aliens born here while their parents are traveling or only temporarily resident, or of foreign ministers, consuls and attachées of foreign embassies. Such children are born within our territory, and within our territorial jurisdiction, but not within the pale of allegiance to us, as when born they are not subject to our laws.

Id. (citing Wong Kim Ark, 169 U.S. 682); see also Comment, 7 YALE L.J. 366, 367 (1898) (stating in the United States “the alien must be permanently domiciled, while in Great Britain birth during mere temporary sojourn is sufficient to render the child a British subject.”); John W. Judd, The XIV Amendment—Its History and Evolution, 13 AM. LAW. 388, 389 (1905) (“a child born in the United States of Chinese parents, who at the time of this birth were subjects of the Emperor of China, but who have a permanent domicile and residence in the United States . . . became at the time of his birth a citizen of the United States. Under this holding . . . they should be permanently domiciled here”); Marshall B. Woodworth, Who Are Citizens of the United States? Wong Kim Ark Case—Interpretation of Citizenship Clause of Fourteenth Amendment, 32 AM. L. REV. 554, 559 (1898) (“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens . . . .”). 273. 533 U.S. 53 (2001). 274. Id. at 67. 275. This unquestioned power may be coming to an end. In Flores-Villar v. United States, 130 S. Ct. 1878 (2011), the Court split 4–4 on whether Congress may prescribe different citizenship rules according to gender.

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VI. CENTERING THE POLITICAL DEBATE ON BIRTHRIGHT CITIZENSHIP AND

IMMIGRATION REFORM

As the historical record demonstrates, the Anglo-American tradition of birthright or jus soli citizenship was never an absolute guarantee to all present within the territorial United States. The history of the Fourteenth Amendment—preceding, contemporaneous to, and following its ratification—provides significant guideposts to legislate persons born of unlawful immigrant parents.276 The question that remains is whether it is in America’s interest to do so. It is commonly proclaimed, “We are a nation of immigrants.” At the same time, as President Barack Obama fittingly put it, we are also a “nation of laws.”277

To begin, this Part neither endorses nor opposes the adoption of legislation limiting birthright citizenship to the children of unlawful immigrants. It merely seeks to guide the debate responsibly and provide a discourse for public interest groups, policy makers, and legislators in considering any legislation. At the same time, this section disagrees with those that loosely claim that limiting birthright citizenship is a costly and impossible task or that it cannot deter unlawful immigration, for much is left unanswered. As with any legislative reform, a well-drafted and balanced comprehensive scheme can be effective once put into practice.

In terms of America’s moral identity and conscious, the decision to adopt any birthright citizenship legislation proves to be difficult, for America is faced with finding a proper balance between maintaining its political preservation and adhering with immigration tradition.278 Take for instance the fact that the children of many unlawful immigrant families have spent their entire life in the United States and individually maintain no moral,

276. For some commentary that disagrees with the constitutionality of birthright citizenship legislation, see Berta Hernandez-Truyol & Justin Luna, Children and Immigration: International, Local, and Social Responsibilities, 15 B.U. PUB. INT. L.J. 297, 309–10 (2006) (stating birthright citizenship legislation is preempted by the Fourteenth Amendment); Priscilla Huang, Anchor Babies, Over-Breeders, and the Population Bomb: The Reemergence of Nativism and Population Control in Anti-Immigration Policies, 2 HARV. L. & POL’Y REV. 385, 400–01 (2008) (stating birthright citizenship legislation is nativism and unconstitutional); Brooke Kirkland, Note, Limiting the Application of Jus Soli: The Resulting Status of Undocumented Children in the United States, 12

BUFF. HUM. RTS. L. REV. 197, 197–98, 208–09 (2006) (stating birthright citizenship legislation would cause statelessness in contradiction of the Fourteenth Amendment). 277. Transcript of Obama’s Immigration Speech, WALL ST. J., July 1, 2010, available at http://blogs.wsj.com/washwire/2010/07/01/transcript-of-obamas-immigration-speech/. 278. Id. (“Our task then is to make our national laws actually work—to shape a system that reflects our values as a nation of laws and a nation of immigrants. And that means being honest about the problem, and getting past the false debates that divide the country rather than bring it together.”). For the Supreme Court affirming the federal government’s power over immigration as a means for national self-preservation, see United States ex rel. Turner v. Williams, 194 U.S. 279, 290 (1904) (“rested on the accepted principle of international law, that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe”). See also Demore v. Kim, 538 U.S. 510, 521–22 (2003); Reno v. Flores, 507 U.S. 292, 305–06 (1993); Kleindienst v. Mandel, 408 U.S. 753, 765–66 (1972); Graham v. Richardson, 403 U.S. 365, 377 (1971); Galvan v. Press, 347 U.S. 522, 530 (1954); Harisiades v. Shaughnessy, 342, U.S. 580, 588–89 (1952); Chuoco Tiaco v. Forbes, 228 U.S. 549, 556–57 (1913); Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892).

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political, or personal allegiance to their parents’ nationality. Despite the claims of an insular minority of radicals, the law currently prescribes that these children are U.S. citizens, for, at the time of their birth, Congress never purposefully nor intentionally excluded them from our national jurisdiction.279 Yet, should future generations be excluded from U.S. citizenship, how is America to handle a situation where the children have never lived anywhere but on U.S. soil? Are we to return to the nineteenth-century international norms of election citizenship in some form? Also, what about international concerns in regard to statelessness? These are just some of the difficult questions that any attempt at limiting birthright citizenship will have to face.

Another hurdle that proponents have to face is the simple question: How can such legislation ever come about? To date, congressional bills limiting birthright citizenship to lawful residents have failed considerably,280 and Congress has not succeeded in passing comprehensive immigration reform since 1996.281 Indeed, interest in such legislation reached its peak following the 2008 election,282 but it seems that neither Democrats nor Republicans can come to any agreement on how to fix America’s outdated immigration scheme as a whole.

Perhaps the answer lies in a compromise similar to that achieved in the 1986 Immigration Reform and Control Act (“IRCA”). When enacting IRCA’s comprehensive scheme, the political exchange was the establishment of employer sanctions for amnesty.283 At that time, employer sanctions were seen as the “humane” way to control America’s borders, for the belief was unlawful immigrants would be deterred from migrating if they could not find employment.284 Whether IRCA’s comprehensive employer sanction scheme has proved effective in preventing unlawful immigration is debatable.285

279. Currently, the United States Code merely restates the text of Fourteenth Amendment. See 8 U.S.C. § 1401(a) (2006). While one may argue the children of unlawful immigrants are not “subject to the jurisdiction thereof,” absent a live case or controversy denying U.S. citizenship to said persons, the courts cannot interfere. Thus, birthright citizenship must be legally assumed to all persons unless statutorily excluded. 280. For some recent bills, see Birthright Citizenship Act of 2011, H.R. 140, 112th Cong. (2011); Birthright Citizenship Act of 2011, S. 723, 112th Cong. (2011); Birthright Citizenship Act of 2009, H.R. 1868, 111th Cong. (2009). See also Devin Dwyer, Tea Party Senators Target Birthright Citizenship for Immigrant Children, ABC NEWS (April 6, 2011), http://abcnews.go.com/Politics/illegal-immigration-republican-senators-target-birthright-citizenship-bill/story?id=13302328. 281. See The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (1996). 282. The 2009 attempt by Georgia Representative Nathan Deal, H.R. 1868, was able to gain ninety-five co-sponsors. See H.R. 1868: Birthright Citizenship Act of 2009, GOVTRACK.US, http://www.govtrack. us/congress/bills/111/hr1868 (last visited Apr. 14, 2012). 283. See Bill O. Hing, The Case for Amnesty, 3 STAN. J. C.R. & C.L. 233, 244 (2007). 284. Brief for Amicus Curiae Immigration Reform Law Institute in support of Respondents at 7–28, Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) (No. 09-115). For full disclosure, the history and legal analysis of this amicus brief was that of this author. See id. at 41 n.11. 285. For some criticisms of IRCA’s employer sanction scheme, see David Bacon & Bill Ong Hing, The Rise and Fall of Employer Sanctions, 38 FORDHAM URB. L.J. 77 (2010) and Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193 (2007).

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However, until politicians can devise a better deterrent to protect America’s borders it is the system best suited,286 especially for the respective states in light of the Supreme Court opinion in Chamber of Commerce v. Whiting.287

A similar compromise could take place to bridge the political gap on immigration reform. The lure of another amnesty proposal for classes of unlawful immigrants may provide the political incentive for adopting a provision limiting birthright citizenship to legal permanent residents or some other form of domiciled immigrants. The same exchange could also take place for limiting congressional representation on comparable terms, thus making both Sections 1 and 2 of the Fourteenth Amendment contingent on lawful settlement.288

Still, the question that remains is the feasibility and effectiveness of such legislation in deterring unlawful immigration and preserving our political institutions. The difficulty in answering this question rests with the lack of a healthy and objective discourse between the opposing sides. While proponents have not fully thought out the implementation and effects of birthright citizenship legislation, opponents reply with unsupported generalizations and seek to characterize the debate as un-American.289

There is one opponent, however, who has thought about the potential effects associated with curtailing birthright citizenship—Margaret Stock. For those unfamiliar with Stock’s work in this area, she has routinely writes and advocates that limiting birthright citizenship would be difficult to implement, too expensive, and a non-sensible solution to preventing unlawful immigration.290 To responsibly guide the birthright citizenship debate, each of her policy arguments must be taken in turn. First, to support the claim that limiting birthright citizenship would be too difficult to implement, Stock raises concerns about the complexities in determining derivative citizenship, providing proof of U.S. citizenship or residency, and adjudicating claims

286. For some analysis supporting the use of employer sanctions and E-Verify as the means to improve it, see Stephen A. Brown, Comment, Illegal Immigrants in the Workplace: Why Electronic Verification Benefits Employers, 8 N.C. J.L. & TECH. 349 (2007) and Randall G. Shelley, Jr., If You Want Something Done Right . . . : Chicanos Por La Causa v. Napolitano and the Return of Federalism to Immigration Law, 43

AKRON L. REV. 603 (2010). 287. In Chamber v. Commerce v. Whiting, the Supreme Court upheld a series of Arizona employment laws that punished in-state employers that knowingly employed unlawful aliens. The highest punishment was the loss of the employer’s business license, and the Court found this to fall within IRCA’s statutory scheme. See 131 S. Ct. 1968 (2011). 288. For a history and discussion, see generally Charles, supra note 13. 289. See supra note 266 and accompanying text for how opponents are guiding the debate. See also Sara Catherine Barnhart, Note, Second Class Delivery: The Elimination of Birthright Citizenship as a Repeal of “The Pursuit of Happiness,” 42 GA. L. REV. 525 (2008) (claiming that limiting birthright citizenship violates the Declaration of Independence and is racist based); Katherine Pettit, Comment, Addressing the Call for the Elimination of Birthright Citizenship in the United States: Constitutional and Pragmatic Reasons to Keep Birthright Citizenship Intact, 15 TUL. J. INT’L & COMP. L. 265, 281–89 (2006) (giving “pragmatic” reasons why birthright citizenship should not be limited). 290. See Margaret Stock, Policy Arguments in Favor of Retaining America’s Birthright Citizenship Law, in MADE IN AMERICA, supra note 260, at 29–34; Rawlins, supra note 185.

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effectively.291 Indeed, the implementation of any birthright citizenship legislation will prove problematic should it merely exclude the children of unlawful immigrant parents and nothing more. However, should such legislation be accompanied with a number of amendments or an entire reform of the immigration system, it may serve as an effective deterrent to unlawful immigration, and preserve American political institutions as proponents desire. The reality is that much remains unanswered as to whether curtailing birthright citizenship would prove to be an effective policy.

The first hurdle that proponents must overcome is figuring out what will serve as the documentary proof for the parents to prove either citizenship or legal residency. According to Stock, this is a real issue of concern because state-issued birth certificates currently serve as the basis for many federal databases.292 In other words, she believes any change to the current practice of universal birthright citizenship would require an overhaul of the federal system.293 This concern is overstated. Any curtailment of birthright citizenship cannot have a retroactive effect. All prior and future birth certificates could still serve their identification purpose and provide presumptive proof of the parents’ citizenship, with passports and other selected documents serving as presumptive proof of lawful residence. Indeed requiring documentary proof will be somewhat of a burden to those citizens that do not readily retain their birth certificates, but this is not an unconstitutional or unreasonable burden.294 A birth certificate is a standard document that every citizen should maintain for a number of reasons, and it is hardly an impediment on their liberty to present one to a supervising authority.295

In terms of any alien privacy concerns, evidence of lawful presence is already statutorily required, and it is difficult to argue that proof of lawful residence impedes or inconveniences aliens any further than the federal code already prescribes.296 Let us not forget that the federal government already has

291. Stock, in MADE IN AMERICA, supra note 260, at 30–32. 292. Margaret Stock, The Cost to Americans and America of Ending Birthright Citizenship, NAT’L

FOUND. FOR AM. POL’Y BRIEF, at 7 (Mar. 2012), available at http://www.nfap.com/pdf/NFAPPolicyBrief. BirthrightCitizenship.March2012.pdf. 293. Id. 294. Parents-to-be are almost always aware of a pregnancy months before the birth of the child. Even if the parents do not have their respective birth certificates at the time of birth, they can obtain them in a reasonable time to confirm citizenship. 295. Take for instance the right to vote. Despite its recognition in the Fifteenth Amendment, the Supreme Court found no constitutional impediment by requiring a valid state issued driver’s license or identity card to confirm one’s identity at a polling place. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008). For some scholarly discussions, see Spencer Overton, Voter Identification, 105 MICH. L. REV. 631 (2007) and Frederic Charles Schaffer and Tova Andrea Wang, Is Everyone Else Doing It?: Indiana’s Voter Identification Law in International Perspective, 3 HARV. L. & POL’Y REV. 397 (2009). 296. See 8 U.S.C. § 1304(e) (2006).

Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

Id.

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in place the E-Verify system297 and other federal databases, and perhaps these systems could be upgraded or modified to handle any disputed claims of lawful residence.298

What this brief documentary overview leaves out, however, is a system to adjudicate citizenship denials or stateless persons. It is here that birthright citizenship legislation would have to expand the federal judiciary or Board of Immigration Appeals (which is already exhausted with claims) to handle the potential influx of citizenship claims in a timely manner. Any legislation also must provide exemptions if certain hardships can be shown. Situations where the family shows a need for asylum or proof of statelessness are two such exemptions. At the same time, the executive branch should be immediately directed to take measures curbing potential statelessness.299 If the Department of State exchanged international agreements and correspondence in the late nineteenth century for this purpose, it is difficult to argue that it cannot be done today or that treaties cannot be negotiated to prevent statelessness.300

Stock’s second argument is that birthright citizenship legislation is unfeasible because it would be too costly. When Stock first advanced her economic costs argument in a 2009 article, she did not provide any concrete economic data other than the individual costs associated with determining a request for derivative citizenship (an individual’s acquisition of citizenship by virtue of familial relationship to a citizen), which is a separate statutory scheme in itself.301 In a 2012 National Foundation for American Policy Report, Stock supplemented her claims. First, she again claimed the costs associated with derivative citizenship would presumably apply to any birthright citizenship legislation.302 In doing so, she speculated each family

297. See 8 U.S.C. § 1324a(d)(2); Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111-83, § 547, 123 Stat. 2177 (2009); Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, Div. A. § 143, 122 Stat. 3580 (2008); Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, § 2, 117 Stat. 1944 (2003); Basic Pilot Extension Act of 2001, Pub. L. No. 107-128, § 2, 115 Stat. 2407 (2002). 298. As it stands today, the E-Verify system confirms the employment status of 98.3% of all submissions in twenty-four hours. Only 0.3% of all inquiries need to be later confirmed. This is generally as a result of input errors such as misspelled names or typos. See E-Verify Statistics and Reports, UNITED

STATES CITIZENSHIP AND IMMIGRATION SERVICES, http://www.uscis.gov/portal/site/uscis/menuitem. eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=7c579589cdb76210VgnVCM100000b92ca60aRCRD&vgnextchannel=7c579589cdb76210VgnVCM100000b92ca60aRCRD (last visited Apr. 14, 2011). 299. There is no substantiated evidence that statelessness was a general concern with the Fourteenth Amendment, but it should be addressed in any legislation. For an argument that statelessness was allegedly a concern, see Kirkland, supra note 276, at 197–98, 208–09. 300. See Opinions of the Heads of the Executive Departments, and Other Papers, Relating to Expatriation, Naturalization, and Change of Allegiance, reprinted in PAPERS RELATING TO THE FOREIGN

RELATIONS OF THE UNITED STATES 1873, supra note 140, at 1179–1438. 301. See Stock, in MADE IN AMERICA, supra note 260, at 32. For legal summary of derivative citizenship and the federal code, see Sungjee Lee, The Parent/Child Relationship: Derivative Citizenship Through Parents, 16 J. CONTEMP. LEGAL ISSUES 43 (2007). As it stands today, Congress can apply different derivative rules to men and women. See Flores-Villar v. United States, 536 F.3d 990 (9th Cir. 2008), aff’d per curiam, 131 S. Ct. 2312 (2011); Nguyen v. INS, 533 U.S. 53 (2001); Miller v. Albright, 523 U.S. 420 (1998). 302. Stock, supra note 292, at 15 (“We can estimate the cost of a change to the Citizenship Clause because the U.S. government already does such parental status verifications for children born overseas to

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would have to pay between $1,200 to $1,600 dollars in government and legal fees to prove their child is a U.S. citizen at birth.303 However, there is no support that this legal scenario would be the case should a curtailment ever be put in place. To be blunt, Stock’s concerns and estimates are more speculative than real because we do not know how any curtailment will be policed or implemented.304

Second, Stock argues that upgrading the federal government databases to handle birthright citizenship claims will cost the taxpayers roughly $2.7 billion a year.305 This estimate is not based on positive data or government estimates because no study has ever been commissioned. Instead, her estimate is based on the annual cost of other federal immigration databases such as E-Verify and Secure Communities.306 Still, even assuming Stock is correct in her estimate, few, if any, will disagree that there will be administrative costs associated with curtailing birthright citizenship. This holds true with the implementation of any legislation. The important policy question moving forward is whether this actual cost is worth the economic, social, and political benefits that the proponents claim. Stock’s analysis does not definitively answer this question. Indeed, she argues that any curtailment will have a negative impact on total tax revenues,307 but those familiar with immigration reform know that the tax benefits and burdens involving unlawful immigration are hotly contested issues.308 What makes Stock’s claim even more troubling is that she has provided us with no actual data to work with.309 This is important because there are conflicting reports as to the

American citizen parents. To obtain proof their child is a U.S. citizen, the parents are required to submit forms and fees . . . . Currently USCIS charges $600 to check the parents’ documents and verify the citizenship status of children born overseas to U.S. citizens, and a similar bureaucratic process will presumably be required for U.S. born children if the Citizens Clause is changed.”). 303. See id. at 1. 304. See id. at 15 (Assuming derivative citizenship rules will apply, “we can calculate that changing the Fourteenth Amendment will be roughly equivalent to a $600 baby tax on every child born in the United States—or as an alternative way of thinking about it, we can say that changing the Citizenship Clause will have direct costs of about $2.4 billion per year. This estimate, of course, is just the bureaucratic cost—not the cost of hiring a lawyer who can help a person submit the documents to the bureaucracy, or the cost of litigation and damages when the bureaucracy makes a mistake.”). 305. Id. at 2–3 (“The estimated cost to U.S. employers of operating the E-Verify system will be at least $2.7 billion per year or more. It is conceivable that similar costs estimates would emerge in segments of the federal bureaucracy needed to respond for verification involving four million babies every year.”); see also id. at 13–15 (discussing how the previous estimate was calculated). 306. Id. 307. See id. at 12–13 (“The loss of all these citizens [born of unlawful alien parents] and their entry into the shadow economy will also have a significant long term tax impact. As members of the underground economy, these millions of young people will be paying less in federal, state, and local taxes than they would if they were deemed to be citizens at birth. If they physically leave the United States, they will escape U.S. tax obligations, which they would be unable to do if they were U.S. citizens at birth.”). 308. For a study arguing that unlawful immigration burdens taxpayers more than it helps them, see Jack Martin, The Fiscal Burden of Illegal Immigration on United States Taxpayers, FEDERATION FOR AMERICAN

IMMIGRATION REFORM (Feb. 2011), available at http://www.fairus.org/site/DocServer/USCostStudy_ 2010.pdf?docID=4921. 309. See Stock, supra note 292, at 12–13.

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cost of unlawful immigration on the U.S. taxpayer.310 Thus, until a detailed and objective report (preferably compiled by the federal government) is available, we may never know the true economic costs.

Stock’s last policy argument is that limiting birthright citizenship would neither deter nor prevent unlawful immigration. She argues, if anything, such legislation would “automatically make even more people into illegal migrants.”311 This argument may have some merit should immigration reform solely rely on limiting birthright citizenship, but it still needs to be explored further through governmental efforts. The fact remains that we do not know what impact curtailing birthright citizenship will have on deterring unlawful immigration, and we may never know unless such legislation is implemented. This places the United States in a rather difficult predicament.

Needless to say, the public policy arguments in favor of retaining unequivocal birthright citizenship are not “very strong,” nor are the arguments against it “weak.”312 Without concrete and transparent data, the argument is somewhere in between the two extremes and has yet to be properly weighed or considered. It is a debate in progress. The same holds true for the argument that limiting birthright citizenship is “un-American.”313 The balance between our immigration heritage and national sovereignty leaves legislators with some very difficult policy decisions. Despite opponents claiming that preserving the United States’s political integrity is at best a marginal case on policy grounds,314 we know for certain that founding generation would vehemently disagree.315

To the Founders, political integrity and the consent of the governed were the entire basis of our republican government,316 and determining who it sought to govern was implicit in national sovereignty or what was dubbed the “greatest happiness of the greatest number.”317 To reiterate the words of John Marshall, arguing a case before Chief Justice John Jay and Associate Justice James Iredell, every nation has a “right to legislate over foreigners.”318 This power “goes to the rights of all kinds.”319 Let’s just hope when immigration reform is brought forward that Congress exercises its power in a prudent manner, relying on objective and useful information.

310. See supra note 308. 311. Stock, in MADE IN AMERICA, supra note 260, at 33. 312. See id. at 34. 313. Id. at 33. 314. Id. at 32. 315. Charles, supra note 24, at 95–107. 316. See generally Patrick J. Charles, Restoring “Life, Liberty, and the Pursuit of Happiness” in Our Constitutional Jurisprudence: An Exercise in Legal History, 20 WM. & MARY BILL RTS. J. 457 (2011). 317. Id.at 472; Charles, supra note 24, at 95–118. 318. IREDELL, supra note 27, at 10. 319. Id.

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260 Washburn Law Journal [Vol. 51

VII. CONCLUSION

Upon its ratification in 1868, the Citizenship Clause sought to place federal citizenship above state citizenship and overturn Dred Scott. At the same time, the Citizenship Clause was the subject of confusion and uncertainty as to who is “subject to the jurisdiction thereof.”320 Today that debate continues as commentators pick and choose portions of our Anglo-American tradition that support their respective stance, often breaking the bands of historical elasticity in their pursuit. The historical record contemporaneous with the Citizenship Clause demonstrates that its jus soli guarantee was never absolute.321 There were legal justifications for limiting birthright citizenship, including the tenets of allegiance, personal subjection, and domicile. This understanding is consistent with the law of nations in the eighteenth and nineteenth centuries in which every sovereign nation maintained power over immigration and foreign affairs.322

In terms of our modern political discourse over birthright citizenship, the debate is far from being objective or centered. Proponents of limiting birthright citizenship have much to weigh and consider before implementing any legislation. They should only adopt legislation because it is in America’s best interest to do so as a political, social, and economic matter, not to advance an agenda or to support xenophobic notions of immigration. At the same time, opponents too need to do more than claim proponents are “anti-immigrant” or that such legislation is “un-American.”323 To characterize proponents in this light is to practice the very hate that they claim to oppose, and to delineate American political integrity as irrelevant. Instead, opponents should focus on material evidence that limiting birthright citizenship will not deter immigration and the fact that the costs associated are disproportionate. Whether these costs are economic, social, or international, they must be concrete, proven, and transparent to the American people. Speculating about the costs is insufficient at any level, academic or political.

320. See supra notes 165–238. 321. See supra notes 77–238. 322. See supra notes 23–62, 131–135. 323. See supra note 266 and accompanying text; see also Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 IOWA L. REV. 707, 711 (1996) (categorizing the issue in terms of xenophobia and nativism).