Section I of the Court’s opinion starts out by quoting the Citizenship Clause: “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.” The Court interprets the Clause this way:
[W]hile the Clause does ensure state citizenship attaches for U. S. citizens in “the State wherein they reside,” Amdt. 14, §1, the explicit invocation of residence for state citizenship only highlights its absence from the criteria for U. S. citizenship. See Slaughter-House Cases, 16 Wall. 36, 74 (1873) (a person can “be a citizen of the United States without being a citizen of a State”).
Normally, in an English sentence having the form “A is B and C,” it is implied that “A is B” and also “A is C.” The Citizenship Clause has this form. If a judge wishes to say that “A is not C” then some reason should be offered. To his credit, Chief Justice Roberts does cite a precedent (as shown above), namely Slaughter-House. In that case, the Court said, “a man can be a citizen of the United States without being a citizen of a State….” But no one has ever disputed this, because Congress can naturalize persons as U.S. citizens, and they will remain U.S. citizens no matter where they reside, or resided at birth. That is exactly what Congress did in the Civil Rights Act of 1866 (CRA): Congress used its Naturalization Power to collectively grant U.S. citizenship, without saying anything about state citizenship. If anyone is tempted to say that the Citizenship Clause imitated the CRA’s openness to U.S. citizens who are not citizens of any state, they should be mindful that the CRA also conditioned citizenship on not being “subject to any foreign power.”
Slaughterhouse was not so bold as to suggest that a person born in a state after 1868 could thereby become a citizen of the United States but not a citizen of that state. No Supreme Court case has ever said so until this Summer. The mere citation to a case that did not do so (i.e. Slaughter-House) is insufficient and mistaken. Dozens of newspapers said during 1866 that the proposed Citizenship Clause of the Fourteenth Amendment “declares all persons born or naturalized in the United States citizens of them and of the state wherein they reside.” And means and. The late great dean of Harvard Law School, Christopher Langdell, was 100% correct that in this context the term “United States” does not include territories, be they incorporated or not.
Kudos to Charles Cooper for testifying recently to Congress that “the Citizenship Clause expressly contemplates that persons eligible for birthright citizenship ‘reside’ in a state….” This is especially obvious if they are born in that state.
The Court in Barbara seems to suggest that it would have reached a different conclusion if the Citizenship Clause had instead said this: “All persons born or naturalized in the United States while residing there and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That would have been redundant, though, because the Clause already presumes that the people covered by the Clause reside in a state. In the legal parlance of that era, residence meant domicile, and a citizen who moved from a state but who had not yet established a new state of residence technically maintained the old one until such time as the new one was established (just like U.S. citizenship is maintained even after leaving the country).
The Court has now adopted an understanding of “jurisdiction” that matches its misunderstanding of the word “and” in the Clause, while entirely rejecting the concept of domicile. Had the Court adhered to the grammatical structure of the Clause, then it should have agreed with Joseph Story: “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.” It was well-accepted in the 1860s that “allegiance arises from domiciliation,” so the Court has now exiled both domicile and parental allegiance from the Citizenship Clause (a child’s domicile almost always follows that of the parents). I hope the exile will be temporary, but either way the holdings in Wong Kim Ark and Slaughter-House would be unaffected.
I am going to keep researching this stuff as time permits, and if I and others find more smoking guns — there never seem to be enough — maybe the ship will be set right. I doubt the Court in Slaughter-House would have given Chief Justice Roberts any snippet to quote if they suspected a Chief Justice would ever reject their adjacent paragraph: “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Anyway, merely reciting the snippet that was recited in Barbara is not much of an explanation to justify what the Court did: splitting the Citizenship Clause in two, and depriving both parts of the intended context.
Posted at 6:15 AM