Streetwise Professor

October 31, 2018

Birthright Citizenship and the Opportunistic Use of Legal Arguments in Fundamentally Political Disputes

Filed under: Politics — cpirrong @ 8:50 pm

The most recent controversy that is roiling the republic is Trump’s declaration that he will end birthright citizenship by executive order.

This is an issue that I am somewhat ambivalent about as a matter of policy, and as a legal matter, am unconvinced by the legal arguments raised pro and con.  This is in part a reflection of the inherently incompleteness of law, stemming from ambiguities of language and draftsmanship.  It is also a reflection of the often opportunistic and unprincipled use of legal arguments to advance policy preferences.

Those who oppose Trump on this issue claim that it is settled law, under the 14th Amendment and Supreme Court decisions rendered thereunder.

The 14th Amendment states: “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.”

The key phrase here is “subject to the jurisdiction thereof”: I’ll return to it in a minute.

In US vs. Wong Kim Ark, the Supreme Court ruled 6-2 that the 14th Amendment was informed by English Common Law, which enshrined the principle of jus soli, which states that you are a citizen of the place (soil) where you are born.  The Court dispatched the “subject to the jurisdiction thereof” limitation rather peremptorily:

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,

That is, contrary to the government which argued that since Ark’s parents were subject of China, and hence subject to the legal jurisdiction thereof, the Court ruled that as long as they are not diplomats or government employees, jus soli applies.  They resided in the US, and hence were subject to its jurisdiction, and hence their children were citizens.  End of story.

In contrast, the dissenters pointed out that the 14th Amendment was passed 2 months after the Civil Rights Act of 1866, which granted citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”  Parents who are foreign citizens are subject to a foreign power.  Therefore, argued the dissenters in Ark, children of foreign citizens are not automatically US citizens.

Here the distinction depends on whether jurisdiction means sole jurisdiction.  If so, children of non-citizens are not necessarily automatically citizens by birth because they are subject to a foreign power. Note that the naturalization oath implies that foreign citizens are subject to the jurisdiction of the land of their citizenship: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.”  The language of the Civil Rights Act of 1866 would support the sole jurisdiction argument.

The Slaughter House cases, and Elk vs. Wilkins would also support this view.

I do not consider either the majority or minority opinions to be irrefutable.  The argument could go either way.

Further, the Ark majority included as a criteria for determining whether someone is subject to the jurisdiction of the US as having “a permanent domicil and residence in the United States.”  Subsequent immigration laws have created a legal category of permanent resident that did not exist at the time the 14th Amendment was passed, or Ark was decided.  People in the US illegally, clearly are not permanent residents and are subject to deportation: here the US can exercise its jurisdiction over them by kicking them out of the country.  Even some legally in the country are not permanent residents.  Under this interpretation, Green Card holders’ children would be citizens.  Children of illegal immigrants, and those in the country legally but without permanent status, would not be

So more conundrums: what did the 1898 Court mean by “permanent resident”? Is the 1898 concept of permanent residence (whatever that is) determinative, or is the current legal concept, as embodied in statute?  Further–and this is an issue that comes up time and again when attempting to evaluate legal decisions–is permanent residence a necessary condition, or a sufficient one?  It would seem from a reading of the decision that it is a necessary one, but as in many cases, this isn’t absolutely clear.  If it is necessary, and the current legal definition of permanent resident is employed, the reach of birthright citizenship would be substantially circumscribed.

These various ambiguities and conflicts are one reason to go outside the text in order to interpret and assign meaning.  Originalism looks to the intentions of the framers of the Amendment.  Here, there are clearly some indications that some of the senators who approved the 14th viewed the language to mean “sole jurisdiction.”  Senator Lyman Trumbull, for example, believed that “subject to the jurisdiction” means not owing allegiance to any other government.

In this context, the Civil Rights Act, passed by the same Senate, would also support the more narrow ambit of birthright citizenship.

So would historical context.  The 14th Amendment was specifically framed to reverse the Supreme Court decision in Dred Scott, and was intended to ensure that blacks, including the formerly enslaved, were citizens.  Since they were born in the US, and had always been subject to its jurisdiction and laws (sometimes to their great cost), the language of the 14th was clearly sufficient to achieve this objective.  What is the justification for extending the concept beyond those it was intended to reach?

An alternative outside-the-text theory of interpretation is the “living Constitution” doctrine, which holds that the document itself, and previous decisions thereunder, must be reinterpreted according to evolving norms, standards, beliefs, social conditions, and technologies.

There is an irony here, of course: those who are most adamant about the broadest interpretation of birthright citizenship cite to a case that was decided when social conditions were decidedly different.  Changes in views regarding immigration, which are intimately related to views regarding citizenship, are embodied in statute, which has restricted immigration and created new legal categories of resident since 1898.  A consistent application of the living Constitution view would require deference to those fundamental changes.  But that of course would produce a result that conflicts with the policy preference of most of those who usually appeal to this view.  So when it becomes inconvenient, the hallowed principle of a living Constitution, evolving to fit changing times, goes out the window.

This illustrates a broader point.  Many–and arguably most–legal arguments relating to policy disputes are opportunistic, and people adhere to a particular theory of interpretation as often in the breach as in the promise.  Like the old joke says: when the law is on your side argue the law; when the facts are on your side, argue the facts; when neither the law nor the facts are on your side, pound the table and scream.  So the same people who venerate adherence to established doctrines when it suits them will discard that in favor of a solemn belief in the need for doctrines to evolve to keep up with changing times when it doesn’t.  And vice versa.

The issue of birthright citizenship is inherently a political one, and courts become politicized when they become the forum for political disputes–an endemic problem in the US at present, which is in large part why Supreme Court appointments have become the subject of no-holds-barred battles.  Political institutions, notably legislatures and the executive, are better suited to handle these issues.  And that’s where this issue should be decided, if at all possible, rather than the courts.  If changing times make existing laws obsolete, there is a legislative process to change them.

But, alas, politicians have become more than comfortable with escaping their responsibilities and throwing weighty decisions to courts and bureaucrats, and fighting to control the courts and the bureaucracies, as a way of escaping accountability and responsibility.  Meaning that the controversy over birthright citizenship is emblematic of the dysfunction of current American government.

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8 Comments »

  1. Nicely explained – thanks.

    Comment by alexander hutton — November 1, 2018 @ 12:20 am

  2. Thus, in 1398 words, does the SWP distill our present dreadful political condition and sweep aside much blather by all sides.

    Comment by The Pilot — November 1, 2018 @ 8:41 am

  3. “one reason to go outside the text ”

    Indeed so.

    The US government, in its wisdom, insists upon taxing those who are American citizens wherever in the world they reside. What is the definition of citizenship used in deciding whom to tax? Boris Johnson was the child of two English people, one of whom was a student at Columbia at the time. He has been taxed as a US citizen. More thorough research among the IRS files might give us exactly this working fdefinition the government already works to, no?

    Comment by Tim Worstall — November 1, 2018 @ 8:59 am

  4. It may well be that the people who wrote the amendment meant to say the sort of thing Trump wants. Alas, in their incompetence they failed to say it.

    When some twerp starts talking about an emanation from a penumbra I shall figuratively fart in his general direction, because I’ll know he’s being a crook.

    Comment by dearieme — November 1, 2018 @ 9:53 am

  5. Some American judges saw the Citizenship Amendment as a statutory expression of an old common law doctrine (McKay v. Campbell, 1871; In re Look Tin Sing, 1885). It was summarized, 24 years before the 14th Amendment, by Lewis Sandford, the New York state judge in the Lynch v. Collins case:

    The common law by which all persons born within the king’s allegiance, became subjects, whatever were the situation [sic] of their parents, became the law of the colonies, and so continued, while they were connected with the crown of Great Britain.

    It was thus the law of each and all of the states at the Declaration or Independence, and so remained until the National Constitution went into effect, that a child born within their territory and liegeance respectively, though of alien parents, who were abiding temporarily, thereby became a citizen of the state of which he was a native…

    It is, therefore, the law of the United States that children, born here, are citizens, without any regard to the political condition or allegiance of their parents.

    Children of ambassadors, are, in theory, born within the allegiance of the sovereign power represented, and do not fall within the rule.

    The term “liegeance,” judging by the context, refers to the so-called local allegiance, “due from an alien, while resident in the United States, for the protection which the government affords him” as Bouvier’s dictionary defined it in 1856. According to Sir Edward Coke, writing in Calvin’s case in 1608, “as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part… which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject…”

    It’s pretty clear from the Congressional debate on the 14th Amendment that Trumbull believed that US-born children of non-citizen parents had always been considered citizens by law, and that no exceptions should be allowed based on race or ethic origin. Nor did he treat children of non-Americans (except diplomats) as being “subject to a foreign Power.” Otherwise, he would have contradicted himself. An early version of the 14th Amendment, as proposed by Trumbull, read (Congressional Globe, Senate, 39th Congress, 1st Session, p. 498):

    [A]ll persons born in the United States and not subject to any foreign Power, are hereby declared to be citizens of the United States, without distinction of color…

    Another senator asked if the proposed amendment would “have the effect of naturalizing the children of Chinese and Gypsies born in this country.” “Undoubtedly,” replied Trumbull. Although most of the Chinese immigrants were technically subjects of the emperor, Trumbull did not consider them or their issue “subject to” the Chinese empire. It appears only diplomats and other governmental agents with diplomatic immunity were “subject to a foreign Power” in his view. “If a negro or a white man belonged to a foreign Government he would not be a citizen,” and would not be taxed in the US, according to Trumbull (p. 527).

    Moreover, both Trumbull and Cowan, his opponent, agreed that children born on US soil of German parents had always been citizens by law. Cowan refused to recognize children of Chinese parents as citizens on racial and political grounds, but he never raised the issue of German immigrants’ allegiance or subjection to their original sovereigns in Europe.

    Trumbull wanted to exclude Indian tribe members from citizenship because, in his view, they were subject to tribal authority, a state within a state, although living on US soil. They supposedly relied on their tribal elders and customs for protection and therefore owed them allegiance. Some, dwelling in a wilderness that was only nominally American, were simply beyond the reach of US authorities. In contrast, Trumbull never claimed that a California resident, even if legally still a Chinese subject, was not fully subject to US jurisdiction or didn’t owe undivided allegiance to the US.

    Comment by Alex K. — November 1, 2018 @ 3:45 pm

  6. Ah! We have Blood (inheritance) and Soil (the place of birth). From Orban to Putin to Erdogan to Netanyahu, the mystical nexus of Blut und Boden, itself conceived in the German Romantic tradition, has risen again, as if from the dead. Fascism and nazism were more or less toxic offshoots from the main trunk; can’t blame the trunk for the toxicity of its offshoot, maybe??
    Speaking personally, as a rootless cosmopolitan, I can’t see what all the fuss is about. Soil is soil. Blood is blood. And the one has zero inherent connection with t’other. Just an accident of circumstance (cf the great migrations across the globe over millennia).

    Comment by Simple Simon — November 3, 2018 @ 11:28 am

  7. As a rootless cosmopolitan, Simple, you ought to have figured out that it’s all about culture.

    After all, some cultures welcome rootless cosmopolitans and others kill them on or shortly after arrival. One would think that the rootless contingent would have acute knowledge and awareness of such things.

    In the modern parts of the world, nationalism is about unique and shared cultural identities. That’s hardly toxic.

    In less modern places, it’s about ethnic triumphalism. E.g., the PRC, any Arab Muslim society, or irredentist ethnic groupings in the US.

    Comment by Pedric — November 5, 2018 @ 2:36 pm

  8. @Pedric My dear chap, you seem to be suffering under a misapprehension. Rootless cosmopolitans aren’t immediately identifiable: not by skin color and not always by our noses, ears or other physiological ‘features’. So although you might think we should be exterminated on sight, the question you should ask yourself is: how will I be able to distinguish the rootless cosmopolitans from the mass of my cultural brethren? We speak English as – and in may cases more – fluently than the natives do. We know the history and culture of the native population along with those of many other cultures. That’s because we’re, er, cosmopolitan. The only way you could be sure of eliminating me and similar rootless cosmos is by shooting pretty much anybody with an IQ greater than say 80 – which appears to be roughly the level which you and your ‘brethren’ have finally managed to attain. (Ah! The wonders and mysteries of evolution!)

    Comment by Simple Simon — November 10, 2018 @ 12:29 pm

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