At Just Security, John Mikhail: Birthright Citizenship and DOJ’s Misuse of History in Its Appellate Briefs. From the introduction:
In its appellate briefs in Washington v. Trump and CASA v. Trump, two of the birthright citizen cases making their way through the courts, the Department of Justice claims that the original meaning of the Constitution’s Citizenship Clause supports President Donald Trump’s Executive Order limiting birthright citizenship to American-born children whose parents are either citizens or legal permanent residents (LPRs). Although these briefs from the government might seem at first glance to be scholarly and well-supported, a close look at them reveals that DOJ is grasping at straws. Many of the authorities on which the briefs rely are misleading or derivative, while other more pertinent sources are mischaracterized or ignored. Here, I discuss eight notable examples, focusing on the brief in Washington v. Trump. The brief in CASA v. Trump seems to be virtually identical and subject to the same objections, which should be considered alongside other criticisms of DOJ’s prior briefs in these cases, and of the Executive Order itself.
Of the eight criticisms, I think this one is the most important from an originalist perspective (many of the others relate to evidence from significantly after ratification):
“Primary Allegiance”
On page 12, the brief claims that the reason why children of foreign diplomats, hostile occupiers, and tribal Indians are not birthright citizens is “because of their primary allegiance to another sovereign” (emphasis added). This concept reappears on page 13: “The text and structure of the Fourteenth Amendment, as well as its drafting history and background principles, demonstrate that ‘subject to the jurisdiction’ refers to persons who owe primary allegiance to the United States” (emphasis added). The same term is used again, six times, on pages 17, 22, and 23.
The brief cites no legal authority for these claims about primary allegiance. Instead, it seems to have made them up out of whole cloth for the purposes of this litigation. A simple search confirms that this phrase is never used—not once—in either Elk or United States v. Wong Kim Ark, the 1898 case in which the Supreme Court held that the American-born child of noncitizen parents was a birthright citizen. The phrase “primary allegiance” also cannot be found in any of the five volumes of the Congressional Globe that chronicled what was said during the First Session of the 39th Congress, when the Fourteenth Amendment was adopted. The members of that Congress talked a lot about allegiance in 1866, but apparently never about “primary allegiance.” Nor, finally, does this term appear in Professor Michael Ramsey’s seminal article, “Originalism and Birthright Citizenship,” the most significant originalist scholarship on the Citizenship Clause to date. Bizarrely, DOJ seems to have fabricated a new legal concept on behalf of the Executive Order, while ignoring Ramsey’s scholarship and the extremely detailed historical analysis of birthright citizenship in the Court’s landmark opinion in Wong Kim Ark. One suspects that the courts will not be impressed with this kind of make-it-up-as-you-go originalism, once they take the time to read and digest Wong Kim Ark, Ramsey’s article, and the sources on which they principally rely.
Agreed, I don't think "primary allegiance" was a concept at the relevant time. But even if it was in some abstract sense, it doesn't connect with the phrase "subject to the jurisdiction." Perhaps this is a naive textualist point, but in my view "subject to the jurisdiction" meant just subject to sovereign authority, not some more remote concept of allegiance. Subject to the jurisdiction of a sovereign, in the legal terminology of the time, meant under sovereign authority. "Allegiance," as it related to sovereign jurisdiction, in my view just meant the legal obligation to follow sovereign commands. On that meaning, it doesn't add anything to "subject ti the jurisdiction." To the extent it had a different meaning, that meaning wasn't adopted in the clause's text.
Posted at 6:06 AM