Recently published, the Harvard Journal of Law and Public Policy’s symposium issue (vol. 49, issue 2) on birthright citizenship, with an introduction by Judge Steven Menashi, long articles on the two sides of the debate by Keith Whittington and Ilan Wurman, and this shorter contribution by Gerard Magliocca: Without Domicile or Allegiance: Gypsies and Birthright Citizenship. Here is the introduction to Professor Magliocca’s article (footnotes omitted):
Though Professors Wurman and Whittington disagree on the original public meaning of the Citizenship Clause, and hence birthright citizenship, they must agree that children born in the United States to Roma (or gypsy) parents are citizens. They must agree on this because Senator Lyman Trumbull was asked by Senator Edgar Cowan during the debate on the Civil Rights Act of 1866 whether the Act would “have the effect of naturalizing the children of Chinese and Gypsies born in this country.” Senator Trumbull replied: “Undoubtedly.” President Andrew Johnson concurred with Trumbull in his overridden veto of the Civil Rights Act, the precursor of the Fourteenth Amendment’s Citizenship Clause. There, the President rejected the Act in part because “the people called gypsies” would become birth citizens. And the link between gypsies and birth citizenship was repeated in Congress when the Citizenship Clause of the Fourteenth Amendment was discussed shortly thereafter.
Why did the Roma feature so prominently in the citizenship conversation, and what does that mean for the interpretation of birthright citizenship today? This Article argues that the invocations of gypsies drew on Blackstone’s discussion of them in his Commentaries and reinforces the long-settled view that neither legal status, domicile, nor allegiance are requirements for birth citizenship in the United States. Blackstone explained that for over two centuries Parliament barred “Egyptians” from entering the country, imposed fines on anyone who helped them immigrate illegally, and set out harsh punishments on any that remained. But children born within the Crown’s territory to these nomadic and unlawful parents were still treated as subjects. Thus, the law of England was that native-born children of illegal aliens were not themselves aliens. Almost all lawyers in the ante-bellum era read Blackstone as part of their training, which explains why so many references were made to gypsies during the Civil Rights Act and Citizenship Clause debates.
Notwithstanding that tradition, in 1866, Senator Cowan argued that American birthright citizenship should not apply to gypsies because, among other things, they “have no homes” and “no allegiance” to the United States. He lost. He lost even though they paradigmatically lacked homes or allegiance. Senator Cowan and President Johnson lost because the text of the Fourteenth Amendment says nothing about domicile or allegiance for purposes of national citizenship. But they also lost because they wanted Congress to reject the longstanding principle that the status of parents was almost always irrelevant to the status of their nativeborn children. Congress refused to do that then, and no President can do that now.
Posted at 6:08 AM