In the Supreme Court’s recent Trump v. Barbara, Chief Justice Roberts wrote for the majority to hold that the Fourteenth Amendment’s citizenship clause broadly guarantees U.S. citizenship to almost all persons born in the United States, apart from those born to parents with diplomatic immunity or some similar exclusion from the reach of U.S. law and law enforcement. As a result, he found President Trump’s executive order limiting birthright citizenship to the children of U.S. citizens and lawful permanent residents to be unconstitutional.
As my prior scholarship indicates, I think that’s entirely right, largely for the reasons the Chief Justice gives. But the case is an originalist disappointment because Roberts wasn’t able to persuade a majority of the Court’s originalist-oriented Justices. Of the Court’s originalists, only Justice Barrett joined his opinion. Justice Kavanaugh concurred in the judgment on the grounds that the executive order violated a statutory provision that codified a broad understanding of the citizenship clause, but added briefly that in his view the citizenship clause itself did not require such a broad application. Justices Thomas, joined by Justice Gorsuch, and Justice Alito (writing only for himself, with a somewhat different reading of the clause) dissented in lengthy opinions. That’s especially disappointing because in my view the originalist case for the broad reading of the clause is very strong, and could have been the basis of a powerfully unified originalist statement demonstrating originalism’s capacity to resolve contentious modern cases. The fracturing of the originalist Justices may have been inevitable (if the question is really as hard as the multiple opinions suggest), but it is all the same disappointing.
The majority opinion is also disappointing in that it doesn’t start with the constitutional text. Instead, it devotes its opening sections to the development of the English common law of subjectship, and the subsequent U.S. common law of citizenship. This is important context, of course, but it is (or should be) only secondary evidence to support a conclusion about the text’s original meaning.
When the opinion does get to the text, though, its analysis seems persuasive:
Even putting the common law to one side, the Citizenship Clause’s key phrase—“subject to the jurisdiction”—requires the same result. The word “jurisdiction” was hardly unknown to the drafters and ratifiers of the Fourteenth Amendment. Congress chose to use an established legal term and the Clause must be interpreted in that light.
In 1868, as today, “jurisdiction” (in the context of a sovereign) refers to the “[p]ower of governing or legislating.” N. Webster, An American Dictionary of the English Language 732 (C. Goodrich & N. Porter eds. 1865); see also, e.g., 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 671 (1879) (“The authority of government; the sway of a sovereign power”). To be “subject to” the jurisdiction of the United States, then, is to “liv[e] under” its “dominion,” J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause’s territorial focus on those born “in” the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.
The scope of that power was well settled in 1868, largely by “the celebrated case” of Schooner Exchange v. McFaddon, 7 Cranch 116. See H. Wheaton, Elements of International Law §96, p. 154 (8th ed. 1866). Expounding on “general principles,” Chief Justice Marshall explained that “jurisdiction” referred to “the full and complete power of a nation within its own territories.” 7 Cranch, at 136. That “absolute” power was “susceptible of no limitation not imposed” by the nation itself. Ibid. All sovereigns, however, were understood to have impliedly waived their jurisdiction in “certain peculiar circumstances”—in essence, where exercising jurisdiction would “degrade the dignity” of “foreign sovereigns.” Id., at 136–137. As in the context of jus soli, those peculiar circumstances arose most frequently in the case of “foreign ministers.” See id., at 138–139. “[E]very sovereign would hazard his own dignity,” after all, if his officials abroad were made to “owe temporary and local allegiance to a foreign prince.” Id., at 139.
The limits of that exception were carefully defined. Still within the United States’ power were the “private individuals” of a foreign nation who had “spread themselves through [our territory] as business or caprice may direct.” Id., at 144. “[I]t would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction,” Chief Justice Marshall explained, “if such individuals or merchants . . . were not amenable to the jurisdiction of the country.” Ibid. “Nor can the foreign sovereign have any motive for wishing such exemption,” he continued, with respect to its sojourning subjects who were “not employed by” the sovereign or “engaged in national pursuits.” Ibid. Just like jus soli, a sovereign’s jurisdiction made no exception for those only temporarily present within the sovereign’s territory. Instead, nearly everyone within the territorial boundaries of the United States was “amenable to” the Nation’s jurisdiction. Ibid.
The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions. The same groups included (and excluded) by jus soli were included (and excluded) by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers and members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign). No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States; no foreign sovereign would “have any motive for wishing” them outside this Nation’s authority. Ibid. Those children are thus subject to the jurisdiction of the United States. They satisfy both elements of the Citizenship Clause: they are “born . . . in the United States” and “subject to the jurisdiction thereof.” Under the Constitution, they are citizens at birth.
I think this is exactly right (and it also sounds rather familiar — see here, pp. 437-440). And I don’t think either of the main dissents makes much progress in disputing it.
Justice Thomas, joined by Justice Gorsuch, argues that the clause implicitly requires that one’s parents be domiciled in the United States to come within the citizenship clause. But despite the length of his opinion and the range and depth of sources cited, I don’t see how he gets that requirement from the clause. He does call into question some of the majority’s account of the common law. But the primary question isn’t the pre-Amendment common law; it’s the meaning of “subject to the jurisdiction.” And he does not show why children of non-domiciled aliens present in the United States were not “subject to the jurisdiction” of the United States in the ordinary meaning of jurisdiction as expressed by Marshall in Schooner Exchange.
Justice Alito offers a different reading — he would read the clause to require that a U.S.-born child’s parents owe primary allegiance only to the United States. As I’ve argued elsewhere, there is some basis for associating allegiance with jurisdiction, so long as allegiance is understood as a duty of obedience. A person is under the authority of a sovereign (that is, the sovereign has jurisdiction over the person) if the person has a duty of obedience (that is, owes allegiance) to the sovereign. But as Marshall explained in Schooner Exchange — as recounted by the majority in the quite above — aliens present in sovereign territory did owe temporary allegiance to the territorial sovereign, and thus were subject to sovereign jurisdiction. To be sure, aliens also owed allegiance their home-country sovereign as a result of their citizenship/subjectship in that country, as Alito says. But that doesn’t mean they didn’t also owe allegiance to the temporary territorial sovereign. They did, while temporarily in sovereign territory. And in any event, the constitutional language is “jurisdiction” not “allegiance.” Like Justice Thomas, Justice Alito doesn’t show how aliens present in U.S. territory would not be subject to U.S. jurisdiction under the ordinary meaning of jurisdiction (meaning U.S. lawmaking and law enforcement authority).
In sum, it’s disappointing that despite the amount of originalist thought and effort the Justices put into the case, they were unable to agree on a common approach. Perhaps the case counts as an originalist win for the prominence of originalism in all of the opinions and the care, thoughtfulness and depth of each of them. But it would have been more of a win had there been an originalist consensus.
Posted at 6:12 AM