In the recent case about nationwide injunctions (Trump v. CASA), Justice Sotomayor’s dissent (unlike the Court’s majority) addressed the merits of the particular injunction at issue, which involves illegal immigration and the Citizenship Clause of the Fourteenth Amendment. Co-blogger Michael Ramsey quoted her dissent at length on June 29 as to the merits.
Mike agrees with Sotomayor’s reasoning and her choice of historical sources, but I do not, and would like to say why. Justice Sotomayor begins by asserting that “To be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws.” But it's not so simple, and the question remains whether a person is sufficiently bound to the authority and laws of the United States. Justice Joseph Story once wrote a widely-read encyclopedic article in which he said that a person who lacks domicile is not subject to complete jurisdiction: “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.” James Kent took a similar stance. Justice Sotomayor apparently does not consider domicile to be a valid factor, she does not mention it, and that is a mistake.
In antebellum cases about diversity jurisdiction, federal courts (including SCOTUS) often used domicile to determine whether state citizenship existed. Leading legislators who helped write the Civil Rights Act of 1866 as well as the Fourteenth Amendment (e.g. Lyman Trumbull and John Bingham) recognized a domicile requirement for citizenship, as did Lincoln’s attorney general, Edward Bates. Justice Sotomayor’s dissent mentioned the Wong Kim Ark case (1898), but overlooked that case’s repeated reliance upon parental domicile to establish citizenship of a child (domicile was mentioned 22 times in the majority opinion, and four more times in the dissent).
To avoid this issue of domicile, Justice Sotomayor quotes Chief Justice Marshall: “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” But she omits the very next sentence which is highly relevant: “It is susceptible of no limitation not imposed by itself,” wrote Marshall. So we have to look at what self-imposed limitations were prevalent as of 1868. The Citizenship Clause embraces several such limitations, including a limitation for diplomats, for invading armies, and for any people who lack U.S. domicile. Whether those limitations matched perfectly with seventeenth-century English law is not dispositive, because the U.S. had every right, as Marshall wrote, to impose its own limitations.
Consider this sentence written in an 1830 case: "Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth." Justice Sotomayor leaves us with this highly tailored version: “[n]othing is better settled . . . than the doctrine that the children even of aliens born in a country . . . are subjects by birth.” Gone is the condition of the parents. The USDOJ does not now dispute that U.S.-born children get birthright U.S. citizenship if their alien parents are legal residents of the U.S., which was the situation in the Wong Kim Ark case, but that is not the situation with illegal immigration. Lastly, I’d like to address this statement by Justice Sotomayor:
The lawmakers who ratified the Fourteenth Amendment understood that it would extend citizenship to all children born here, regardless of parental citizenship. Indeed, some objected to its passage on those grounds, complaining that it would permanently extend citizenship to immigrants who “invade [state] borders” and “settle as trespassers.” Cong. Globe, 39th Cong., 1st Sess., 2891 (1866).
That's not correct. Justice Sotomayor is referring there to U.S. Senator Edgar Cowan (R-PA), who was asking a question about the scope of the Citizenship Clause, not describing its scope. Here’s what Cowan asked about the proposed Citizenship Clause:
I am unwilling, on the part of my State, to give up the right that she claims…of expelling a certain number of people who invade her borders; who owe to her no allegiance; who…settle as trespassers wherever they go…I mean the Gypsies…. Are those people, by a constitutional amendment, to be put out of the reach of the State in which they live? I mean, as a class. If the mere fact of being born in the country confers that right, then they will have it; and I think it will be mischievous.
Observe the question mark. One can very properly dislike Cowan’s attitude toward the Roma people (“Gypsies”), but that should not cause us to mischaracterize what he said. It was a question, not an answer. Also, Professor Kurt Lash has observed that, “No one claimed these people [Gypsies] were illegally present in the United States….” In any event, Cowan did not have to wait long for an answer to his question.
U.S. Senator John Conness (R-CA) responded to Cowan: “I have failed to learn, from what the senator has said, what relation what he has said has to the first section of the constitutional amendment before us….” It sounds to me like Conness accepted Cowan’s factual statements about Gypsies in Pennsylvania for the sake of discussion, and answered that the Citizenship Clause would not do what Cowan feared it might do.
Senator Conness then changed the subject to Chinese immigrants in California, and endorsed citizenship for their children born in California, without suggesting that any of those Chinese parents had invaded California’s borders, or settled in California as trespassers. Of course, Conness was entirely correct. It was well known in the 1860s that domicile was necessary to establish that a person is fully subject to the jurisdiction of the government, and aliens from China typically satisfied that requirement (most exclusionary laws came later). Incidentally, months before the Citizenship Clause was proposed, Senator Lyman Trumbull spoke in favor of guaranteeing citizenship for “Chinese and Gypsies born in this country,” but that earlier discussion did not include anything about Chinese or Gypsies who invade borders, or who settle anywhere as trespassers.
For more information, Mike Ramsey has written a widely-cited article about this subject, at this link. And, I have written a short article reaching a different conclusion, at this link.
Posted at 6:14 AM