At Law & Liberty, Amy Swearer (Edwin Meese III Center for Legal and Judicial Studies) and I debate the original meaning of birthright citizenship:
The Originalist Basis of Birthright Citizenship – Originalism requires extending birthright citizenship to all people born in the United States regardless of the status of their parents, by Michael D. Ramsey
The Forgotten Meaning of the Citizenship Clause – Universal birthright citizenship was never the original intent, by Amy Swearer
Of course, the titles overstate slightly. Everyone agrees that children of diplomats and others with diplomatic immunity, as well as children of those serving in foreign armies and — at least as it stood in the nineteenth-century, members of most Native American tribes — were excluded from constitutional birthright citizenship by the phrase "subject to the jurisdiction." The question is whether anyone else was excluded. My argument is that no one else was excluded, because all other persons born in the United States are subject to its jurisdiction (meaning subject to its lawmaking and law execution authority).
For those who want even more (!), there's another 100 or so pages of this debate in my article Originalism and Birthright Citizenship, 109 Georgetown L.J. 405 (2020) and Amy Swearer's article Subject to the [Complete] Jurisdiction Thereof: Salvaging the Original Meaning of the Citizenship Clause, 24 Tex. Rev. of L. & Pol. 135 (2020).
UPDATE: Everyone wants in on the debate! Randy Barnett and Ilan Wurman have this op-ed in the New York Times: Trump Might Have a Case on Birthright Citizenship. (Paywalled, but Ilya Somin has a summary and strong criticism here). Among Professor Somin's counterpoints:
There are several flaws in Barnett and Wurman's "allegiance-for-protection" theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren't part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.
This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn't qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.
Agreed. But I would also say more fundamentally the problem with the Barnett-Wurman theory is that it doesn't deal with the actual text of the Constitution. That is, it doesn't offer much direct evidence on the original meaning of the phrase "subject to the jurisdiction."
And Evan Bernick has this essay at the LPE [Law and Political Economy] Project's blog: The Anti-Constitutional Attack on Birthright Citizenship. From the introduction:
“All persons born in the United States … are citizens of the United States,” so long as they are “subject to the jurisdiction thereof.” Are the children of undocumented immigrants and temporary visitors—people who can be sued, arrested, prosecuted, detained, and deported—“subject to the jurisdiction” of the United States? If it seems obvious that they are, your intuition is correct. Only by incorporating the kinds of textually unstated assumptions and technical distinctions that have earned lawyers a bad reputation can this seem remotely complicated. Though claiming the authority of history, the assumptions and distinctions are ahistorical.
All subsequent anti-birthright “literature” (broadly defined to include things that are written down somewhere) is shaped by Peter Schuck and Rogers Smith’s 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity. (For the record, Schuck has expressly rejected the constitutionality of any anti-birthright executive order and indeed suggested that no “competent lawyer” would defend it.) The authors elaborate a theory of citizenship that is based on reciprocal consent on the part of the sovereign and the would-be citizen. The sovereign agrees to provide protection to the citizen, and in return the citizen pledges undivided allegiance to the sovereign. Schuck and Smith contend that although the common law held that citizenship generally attached to all persons born within the territorial jurisdiction of a state and subject to its civil and criminal laws—a theory of citizenship grounded in a nonconsensual and indissoluble sovereign-subject bond—the Framers of the Fourteenth Amendment rejected this “ascriptive” view of citizenship.
Their argument draws extensively upon the legislative debate over the Citizenship Clause regarding its application to Indians. Schuck and Smith make a great deal of Senator Lyman Trumbull’s insistence that “jurisdiction” was lacking over Native nations and their citizens because they did not “ow[e] allegiance to anybody else,” as well as Senator Jacob Howard’s claim that Tribal citizens were not “subject to the jurisdiction thereof” because United States did not have “full and complete” jurisdiction over them. From such evidence Schuck and Smith extract a general Republican commitment to consensual citizenship. Common to all the exceptions to birthright citizenship acknowledged by Republicans—children of Tribal citizens, children of ambassadors, children of diplomats—is, they maintain, a lack of reciprocal consent. Pointing to the absence of reciprocal consent between undocumented immigrants and the United States, Schuck and Smith claim that the children of undocumented immigrants are not guaranteed birthright citizenship….
Professor Bernick then criticizes this claim, drawing especially on his knowledge of antebellum abolitionist and Native American history.
Posted at 6:22 AM