Andrew Hyman offers three critiques of the recent article Birthright Citizenship of Child Born to Enemy Alien Visitors, co-authored with Michael L. Rosin and summarized here. One critique asserts that the article relies on only one side of an 1874 congressional debate. But it does not. The article relies on the decision and record in the 1872 case of Mogridge v. United States, in which a multi-national commission held that a child born in Pennsylvania to visiting British parents during the War of 1812 was a U.S. citizen. The article does refer to Robert S. Hale’s remarks to the House in 1874, but not as one Representative’s view in a two-sided debate—rather as an explanation of the official position of the United States in that case by a key participant, its legal counsel.
A second critique is that the commission’s opinion merely cites a lack of jurisdiction, which might have been based on Mogridge’s U.S. domicile without reaching the question whether he was also a U.S. citizen. That is incorrect. The commission specifically held that it had jurisdiction to hear claims of U.S.-domiciled Britons who were not also U.S. citizens—even if they had voted in the United States or had taken preliminary steps toward naturalization such as swearing their intent to naturalize and to renounce allegiance to the Queen. The commission specifically held that it lacked jurisdiction in Mogridge’s case because he was a U.S. citizen, following its decision on the same ground in an earlier dual nationality case. Mogridge’s U.S. citizenship sealed his fate.
The third critique is that U.S. law might have recognized birthright citizenship of children born to non-domiciled parents in 1813 when Mogridge was born, but not necessarily “in every successive year until 1868.” The law of birthright citizenship might have changed over time to require parental domicile. That is unpersuasive. Wong Kim Ark and the earlier authorities that our article cites recognize that the Citizenship Clause of the Fourteenth Amendment incorporates the same common law rule of citizenship by birth as the original Constitution. Natural born citizenship did not contract between 1813 and 1868. The United States did not fight the Civil War in part to repudiate Dred Scott only to adopt a narrower rule of birthright citizenship in the Fourteenth Amendment than the common law rule that applied to Joseph Mogridge at his birth in 1813.
UPDATE – COMMENT from Andrew Hyman:
To see what the Commission did or did not hold in the Mogridge Case, see its opinion.
Posted at 6:08 AM