John Vlahoplus and Michael Rosin have written an interesting article about a citizenship controversy in the 1870s, but the article is brief and misses some key points. First, the birth of Joseph Mogridge in 1813 was long before the 14th Amendment was written and adopted, and it’s an unwarranted assumption that the law of birthright U.S. citizenship didn’t change between 1813 and 1868; indeed Vlahoplus and Rosen point to an 1874 debate in Congress about whether to grant birthright citizenship in certain cases where (as Robert Hale put it), someone is “born in this country, of parents not domiciled here….” (see p. 3460 at this link). Lack of domicile at birth was a very significant factor during the middle of the nineteenth century, and the law on this subject in 1813 (whatever it may have been) wasn’t necessarily the law in every successive year until 1868.
Secondly, relying upon one side of that congressional debate that occurred six years after the constitutional amendment took effect is not originalism. Finally, my third objection is that Vlahoplus and Rosin misread the 1872 case of Mogridge v. United States upon which they heavily rely; the opinion of the Commission on British and American claims in that case was remarkably short and cryptic, and here is their opinion in full: “We are of opinion that the Commission has no jurisdiction of this claim, and therefore the demurrer is allowed.” Vlahoplus and Rosin mistakenly assume that this sentence adopted every argument contained in Robert Hale’s demurrer, but that’s a bad assumption. One of the arguments Hale had made to the Commission was that, “the claimant has no standing as a British subject before this Commission, he…being at the time of the alleged injuries, domiciled within the United States.” That has nothing to do with circumstances at birth. Although Hale argued this was relevant to standing, I doubt he thought it was relevant to whether Mogridge had become a U.S. citizen at birth. And the Commission’s opinion may well have been based on that piece of Hale’s argument about domicile in the 1860s. Certainly, a huge portion of Mogridge’s argument relied upon affidavits about his allegedly foreign status in the 1860s, as distinguished from the 1810s.
UPDATE from Andrew Hyman:
Regarding the first of the three points I made above, I just want to clarify that I was not suggesting that the Citizenship Clause of the 14th Amendment had no retroactive effect. It did, and was intended to grant citizenship to many people (e.g. former slaves) who had been born before 1868. All the same, if someone was born before 1868 and qualified for birthright citizenship as of the year of birth, but would not have qualified as of 1868, the Citizenship Clause did not take away or cancel such citizenship.
Posted at 6:43 AM