Ar SCOTUSblog, César Cuauhtémoc García Hernández: Misusing history to limit birthright citizenship. From the introduction:
President Donald Trump’s executive order limiting birthright citizenship is back before the Supreme Court. Unlike the last time that challenges to the policy reached the justices – when they focused on a procedural issue – the Justice Department is now asking the court to side squarely with the president’s interpretation of the 14th Amendment. To support the president’s view that the Constitution’s citizenship clause always required consideration of a parent’s citizenship or immigration status, the Justice Department points to a variety of 19th-century sources, most prominently work by Justice Joseph Story, who is among the court’s most revered members. But a close reading of the writings by Story that the government cites reveals that its present-day argument misses key nuance from the past.
And from later on:
To support the administration’s claim that Trump’s executive order merely seeks to enforce the clause’s original meaning, [Solicitor General] Sauer relies on multiple sources that provide a much more complicated assessment of jurisdiction than the government admits, including six citations to the influential associate justice of the Supreme Court Joseph Story. Sauer argues that “[a] substantial body of historical evidence confirms” Trump’s view of the citizenship clause, repeatedly referencing Story.
As an initial matter, Story is a curious source given that he died in 1845, more than 20 years before Congress drafted the 14th Amendment. But Sauer’s reliance on Story also reveals an important gap between the text and its meaning. Quoting a passage from Story’s 1834 book, Commentaries on the Conflict of Laws, Foreign and Domestic, Sauer contends that children born to parents who were in transit or temporarily in a country do not receive citizenship. While Sauer quotes correctly the words that Story used, he misreads Story’s claim. Story is clear that he is describing his view of what the law should be rather than making an uncontested claim about what it is. Indeed, in the very sentence that includes the passage that Sauer quotes, Story explains that the exclusion upon which Sauer relies “would seem to be” a “reasonable qualification,” but, as he notes in the following sentence, this qualification had not been “universally established.”
I agree on the merits but disagree sharply on methodology. In my view, Story as a general matter potentially provides excellent evidence of the meaning of the Fourteenth Amendment. His treatises were widely circulated and much respected authorities in antebellum America. It is likely that many, if not most, of the drafters of the Amendment were familiar with them, and they were undoubtedly references to which people of the time would turn when faced with an interpretive question. Story is a much more questionable source in interpreting the original 1788 Constitution because he wrote so long after its ratification. But for the Fourteenth Amendment, his writing is a crucial part of the pre-existing legal background, just as, say, Blackstone’s Commentaries were for the 1788 Constitution.
But in this particular case I agree that Story’s treatise isn’t especially helpful. At most, it indicates that there may have been some uncertainty in the antebellum period about the citizenship status of U.S.-born children of temporary visitors. (On the other hand, it might only show that Story thought there should be a different rule.) In any event, though, the constitutional question is the meaning of “subject to the jurisdiction” of the United States. This is the phrase in the Fourteenth Amendment that makes U.S.-born persons U.S. citizens. Story did not say anything (in the quoted passages, or, as far as I am aware, elsewhere in the treatise) about the meaning of this phrase. But other contemporary sources are clear that temporary visitors were subject to U.S. jurisdiction while in U.S. territory — unless, as with ambassadors, they had immunity under international law. (See Originalism and Birthright Citizenship, at pp. 437-440.) That was not unsettled in the antebellum period, whatever Story said about citizenship. And that pre-Amendment meaning is highly indicative of the Amendment’s original meaning.
Posted at 6:09 AM