In a blog post on January 23, Michael Ramsey wrote about a child born in the United States to a mother temporarily visiting the U.S. from abroad. Mike asserted that denial of birthright citizenship for the child would be “not constitutional under any version of originalism.” But it would be under my version.
In support of his assertion, Mike's blog post relies upon (among other things) a New York case, Lynch v. Clarke (1844), and also an 1848 edition of a treatise by James Kent which discussed Lynch v. Clarke. But Mike previously wrote in a law review article that, “despite the holding in Lynch, it seems fair to say that the issue of temporary visitors remained somewhat unsettled in the mid-nineteenth century.” So, if the matter was unsettled, then why should we be certain that the U.S.-born child of temporary foreign visitors qualifies under the Citizenship Clause? Mike acknowledges that an 1863 New York case (Ludlam v. Ludlam) was in “considerable tension with Lynch,” so basically I would say that New York law was a mess when it came to this subject, as of the mid-1860s.
Putting aside New York, other states were following the lead that Justice John McLean set in his Dred Scott dissent. McLean wrote:
It has never been held necessary, to constitute a citizen within the act [authorizing lawsuits in federal court], that he [i.e. Mr. Scott] should have the qualifications of an elector [i.e. a voter]. Females and minors may sue in the federal courts, and so may any individual who has a permanent domicil in the state under whose laws his rights are protected, and to which he owes allegiance.
Thus, domicile (or “domicil” in the old-fashioned spelling) was a critical factor in constituting someone a citizen. And temporary visitors from abroad ain’t got no domicile here in the United States. An 1865 case in the West Virginia Supreme Court echoed Justice McLean: “in the United States, domicil is citizenship — that which describes the one describes the other….”
It is a mistake to assume that “jurisdiction” has only one meaning in every context, and the word “jurisdiction” in the Citizenship Clause therefore needs to be treated carefully. If it simply meant being subject to U.S. laws, then it would be very hard to argue that indigenous Americans were simultaneously not subject to U.S. jurisdiction and yet were subject to the Major Crimes Act of 1885 (which gave federal prosecutors authority to prosecute crimes on tribal lands, including murder, rape, arson, and burglary). It could be, of course, that the Major Crimes Act has been unconstitutional since 1885, or alternatively that indigenous Americans have all qualified for birthright citizenship under the Citizenship Clause since 1885, but Mike hasn't made that case, as far as I know.
There were antebellum descriptions of “jurisdiction” that meant more than merely being subject to U.S. laws. For example, Joseph Story wrote this:
The question of domicil is of very great importance, for it often regulates political and civil rights, and founds or destroys jurisdiction over the person or property.
In that conception of jurisdiction, domicile is required, which matches up with what Justice McLean wrote in his Dred Scott dissent, quoted above. It also matches up with other key evidence described in my recent article on this subject. Many senses of the word "jurisdiction" coexisted, so in my view Mike needs to justify plucking one particular conception of jurisdiction from an opinion of Chief Justice Marshall, even if Marshall happened to be speaking about immigration.
The Citizenship Clause still leaves naturalization as an option for temporary visitors to the United States, but I doubt there is any more support for it in Congress now than there was in 1866. Senator Fessenden was particularly concerned about that possibility, and soon after he raised that concern the Citizenship Clause was amended to clarify that granting U.S. citizenship to people would have the effect of granting state citizenship as well, but only in the "state wherein they reside."
Posted at 6:21 AM