Thank you to Kenneth Barr for engaging with my draft article about citizenship, originalism, and illegal immigration (I have posted the second draft at this link. Here are some replies….
Mr. Barr criticizes me for quoting an 1830 article by Joseph Story for the principle that domicile can “found or destroy jurisdiction.” He says this refers to the jurisdiction of the courts, not jurisdiction of a nation over persons. I disagree. If someone is subject to the jurisdiction of a country’s courts then that person is subject to jurisdiction of that country itself, and if someone is not subject to a country’s courts then that country cannot exercise jurisdiction over that person, assuming a constitutional right to trial. So jurisdiction of the U.S. and jurisdiction of the courts of the U.S. are inextricably related (as many others have concluded too).
Mr. Barr also points out that Joseph Story said the following in the same 1830 article: “A person born in a foreign country, while his parents are there under the allegiance of the government of the country, though they are there for temporary purposes only, is generally deemed a subject of such country, and owing allegiance to its sovereign.” He did say that, but it doesn’t contradict the part I quoted. Moreover, the Citizenship Clause was later phrased to address concerns about temporary foreign visitors (in 1866, Sen. William Fessenden said to Sen. Benjamin Wade, “Suppose a person is born here of parents from abroad temporarily in this country”). Surely, the drafters and ratifiers of the 14th Amendment were entitled to clarify or even modify prior policy. Observe too that Story was referring there to “subjects” not “citizens.” When it came time to address citizens, Story wrote elsewhere:
Persons, who are born in a country, are generally deemed citizens and subjects of that country. A reasonable qualification of this rule would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes, as for health, or occasional business.
No draft of my article has mentioned this statement by Story, nor the statement by Fessenden, because we should be more concerned about the meaning of words, and the original public meaning of the constitutional text, rather than compiling every policy statement that might happen to support one's conclusions, and the policy statements of Fessenden and Story certainly do support my conclusions.
Mr. Barr also criticizes me for citing a West Virginia state case that was actually quoting the argument of counsel and not the opinion of the court. This is a valid criticism, I made a stupid mistake and have corrected it, thank you.
Mr. Barr says that “Justice McLean’s dissent in Dred Scott is not relevant authority….” But of course it is relevant authority, the Citizenship Clause was written in large part to overturn Dred Scott. Moreover, it is significant that citizenship and domicile had closely-related meanings in the decades leading up to the Fourteenth Amendment, even if there was no specific issue in the Dred Scott case about foreign parents visiting the U.S., or about illegal immigrants. McLean’s dissent was very clear that “any individual who has a permanent domicil in the state under whose laws his rights are protected, and to which he owes allegiance” is a citizen who can sue a citizen of another state per the federal diversity statute. And McLean was absolutely correct. See Case v. Clarke, 5 Fed. Cas. 254 (C.C.R.I. 1828) (Justice Story on circuit) (“To constitute a person a citizen of a state, so as to sue in the courts of the United States, he must have a domicil in such state …. [A] mere temporary change of place, without any intention of permanent residence, constitutes no change of domicil”); Brown v. Keene, 33 U.S. 112, 115 (1834) (“A citizen of the United States may become a citizen of that state in which he has a fixed and permanent domicile….”).
Mr. Barr also mentions that, “If Trumbull and the other framers were around in 1885 when Andrew Hyman said we subjected Indians to our criminal law, they would have agreed the Indians would be subject to our jurisdiction under their definition.” Maybe so, I take no position about it. In my second draft (linked above), I mention that Professor Bryan Wildenthal has written that, “It seems difficult to dispute that, at least from [1885] on, Indians have been ‘subject to the jurisdiction’ of the United States.” Evidently, Mr. Barr thinks that subjecting a person to a criminal law is relevant to the “jurisdiction” mentioned by the Citizenship Clause whereas giving a court authority to try a case in which that person is a party is not —- but I think they are both relevant.
Mr. Barr says my article discusses a statement by Senator Trumbull with respect to the Civil Rights Act, to the effect that children of temporary residents were excluded from birthright citizenship. My article quotes Trumbull as saying (to President Andrew Johnson) that the citizenship clause of the Civil Rights Act was referring to children born to people domiciled in a state, and I am unaware that Trumbull ever repudiated that understanding of citizenship, which is not so much an exception as a definition of what it means to be a citizen. Mr. Barr discusses what happened in “a later Congress” but does not say which one, or give any date. He says, “Senator Williams as Grant’s Attorney General ruled that children of temporarily resident aliens were citizens.” Maybe, maybe not, but I wrote nothing about it, and President Grant took office after the Fourteenth Amendment had already been ratified by the states. So anything said during the Grant administration lacked much relevance to an originalist interpretation of the Citizenship Clause.
Posted at 6:08 AM