Most commentary on President Trump's executive order regarding birthright citizenship has focused on its application to persons not lawfully present in the United States. As I've argued at length elsewhere, I think the Constitution's original meaning requires citizenship for the children born in the United States, regardless of their parents' status. I acknowledge in that article, though, that some other versions of originalism might not reach the same conclusion. The current situation regarding undocumented migration is something the framers of the Fourteenth Amendment didn't experience and could not have foreseen, so an intent-oriented originalist might say that the Amendment was never intended to apply to undocumented migrants. (That's not my version of originalism, so I don't think that. But people who want to say that the Constitution clearly conveys citizenship on the children of persons not lawfully present in the United States need to explain why they favor my version of text-based originalism and not intent-based originalism.)
In this post I want to focus on the other part of the executive order that has been less discussed. The executive order also denies citizenship to U.S.-born children of lawful temporary visitors:
It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons … when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
I think this provision is not constitutional under any version of originalism. First, the framers of the Fourteenth Amendment were, we may presume, fully aware of the question regarding the citizenship of children of temporary visitors. That issue had been directly addressed in a relatively recent (for them) 1844 New York state case, Lynch v. Clarke. The court, holding that the U.S.-born child of temporary visitors was a U.S. citizen under common law, observed:
[B]y the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. . . .
and added with perhaps some overstatement:
I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, that the birth in this country does of itself constitute citizenship.
The 1848 edition of James Kent's widely-used treatise on American law discussed Lynch favorably. (For citations and further discussion, see my article, notes 33-43).
Second, in drafting the Amendment, the framers used a phrase that, in the legal language of the time, included temporary visitors. The Amendment states (as is well-known at this point):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. (emphasis added)
There is simply no doubt that temporary visitors, and by extension their children, were in the nineteenth century meaning subject to the jurisdiction of the United States. Chief Justice Marshall directly addressed the situation of temporary visitors in The Schooner Exchange v. McFaddon (1812). He began by saying that "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. . . . " Although there were some exceptions (for foreign sovereigns and diplomats), Marshall explained that territorial jurisdiction did apply to temporary visitors:
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would
be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and not one motive for requiring it.
Justice Story made a similar point in his Commentaries on the Conflict of Laws (1834). Emer de Vattel, the great eighteenth century writer on international law, observed that "foreigners who pass through or sojourn in a country, either on business, or merely as travellers” are “subject to the laws” of that country because “[t]he sovereignty is the right to command
the whole country; and the laws are not simply confined to regulating the conduct of the citizens towards each other, but also determine what is to be observed by all orders of people throughout the whole extent of the state.” (Citations at notes 153-156 of my article).
In sum, "subject to the jurisdiction" (or "amenable to the jurisdiction," as Marshall put it) meant subject to the nation's laws. Foreign sovereigns and diplomats were not subject to U.S. laws (as Marshall held in McFaddon) because they had immunity, but temporary visitors were.
Thus we can be confident that (a) the Framers knew about the issue of U.S.-born children of temporary visitors, and knew from Lynch and Kent's Commentaries that the common law generally treated them as U.S. citizens; and (b) the Framers chose language ("subject to the jurisdiction") that they knew paralleled language leading commentators had used to describe the legal status of temporary visitors. It follows that the Framers of the Fourteenth Amendment intended to give citizenship to the children of temporary visitors. And it is not implausible to think they did, since that simply constitutionalized the general common law rule.
(Aside: co-blogger Andrew Hyman has an interesting contrary take on the Amendment's language focused on the phrase the "the State wherein they reside." But I'm not persuaded.)
Posted at 6:16 AM