The first sentence of the 14th Amendment reads, in relevant part: “All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Fellow blogger Andrew Hyman correctly notes that this assertion has the form “A is B and C,” which implies “A is B” and “A is C,” and he emphasizes that “and” means “and”. All very true.
But it is equally correct that “A is B and C” might imply that “A is B” and “A is C (provided that D).” That is, “C” might be the case only if “D” is true, and yet it might still be true that “A is B and C”. A relevant hypothetical follows.
It is undisputed that a person can be a citizen of the U.S. and not a citizen of any particular State. E.g., in Twentieth Century-Fox Film Corporation v. Taylor, 239 F. Supp. 913 (S.D.N.Y. 1965), the District Court found that Elizabeth Taylor was a U.S. citizen but not a citizen of any particular State. For several years previously, she had resided with her then-husband, Richard Burton, in the U.K.
Suppose Ms. Taylor had become pregnant while in the U.K. and wanted to ensure than her child would be a U.S. citizen. (Not every child of a U.S. citizen born abroad is a U.S. citizen. See, here.) So, just before her due date, she comes to the U.S., enters a hospital, and gives birth. A very few days later, she and the baby return to the U.K.
I assume that a newborn infant can “reside” only in the State in which at least one parent resides. But Elizabeth Taylor’s hypothetical baby would not reside in any State, because Ms. Taylor is not a citizen or resident of any State and Richard Burton was never a U.S. citizen or resident. A hospital stay of a few days, undertaken with the fixed intention of returning to a foreign country, surely cannot establish residence or citizenship in a State.
I submit that, notwithstanding the fact that the hypothetical baby is not a resident of any State, it is nevertheless perfectly clear that the infant is a U.S. citizen. If that is the case, then the first sentence of the 14th Amendment must be understood as containing, sub silentio, the following qualification at the end of the sentence: “provided, however, that a person born in the United States shall not be a citizen of a State unless, at the time of birth, at least one parent is a resident of such State.”
“A is B and C” is still true: If someone is born in the U.S., that person is a citizen of the U.S. and of the State in which he or she resides. But “A is B and C (provided that D)” is consistent with “A is B and C” and is also true: If someone is born in the U.S., that person is a citizen of the U.S. and also of a State, provided that he or she does reside in such State.
One might argue that, even if Ms. Taylor did not reside in any State, her child would nevertheless be a resident of the State in which he or she was born. But, if that argument is accepted, it would similarly follow that newborns delivered to parents who are in the U.S. illegally would be residents of the State in which they were born, regardless of whether or not their parents legally resided in any State.
UPDATE: Andrew Hyman responds:
Elizabeth Taylor was born in England, and was a dual citizen of both the U.K. and U.S. If she hypothetically had a child during a brief visit to the U.S. for that purpose, while her domicile was in England, then presumably the child would have become a U.K. citizen at birth, especially since her then-husband was also a U.K. citizen. But if Congress wants to additionally confer or offer U.S. citizenship at birth for such a child, then Congress can do so using its naturalization power. I doubt judges can unilaterally do the same thing by modifying or conditioning any part of the Citizenship Clause in the Fourteenth Amendment.
FURTHER UPDATE: David Weisberg replies:
Most of the people residing in Washington, D.C. are U.S. citizens, but they are not citizens or residents of any State. If one of them gives birth in D.C., that newborn surely is a U.S. citizen, although not a resident or citizen of any State. Moreover, there are many thousands of expats–U.S. citizens who are permanently domiciled in foreign lands–who are no longer residents or citizens of any particular U.S. State. If a pregnant expat returns to the U.S. for only a few days to give birth to a child, and then immediately leaves with her child and returns to her foreign domicile, is there any question that that child is a U.S. citizen? If it is agreed that the newborns in these two hypotheticals are indeed U.S. citizens, then I would submit that the first sentence of the 14th Amendment is best understood as I have proposed.
Posted at 6:05 AM