Andrew Hyman gives far too short shrift here to Respondents’ defense in Trump v. Barbara of statutory birthright citizenship based on the Nationality Act of 1940 (see pages 20-23 of Respondents’ briefing here, and Mike Ramsey’s analysis here). Hyman does not seriously address linguistic drift—the fact that linguistic usage can change over time, such that the term “subject to the jurisdiction thereof” might be substantially broader in the 1940 Act and subsequent statutes than in the Citizenship Clause of the Fourteenth Amendment.
The 1940 Act’s use of “naturalization” differs radically from that of the Citizenship Clause because of linguistic drift. The same might well be true of the 1940 Act’s use of “subject to the jurisdiction thereof.”
Naturalization under the 1868 Citizenship Clause consists of the acquisition of citizenship by any means other than birth in this country. See Rogers v. Bellei, 401 U.S. 815, 841 (1971) (Black, J., dissenting on other grounds). A person born outside of the United States to an American parent “is an alien as far as the Constitution is concerned, and ‘can only become a citizen by being naturalized. . . ’” See Miller v. Albright, 523 U.S. 420, 453 (1998) (Scalia, J., concurring). Consequently, persons like Senator Ted Cruz who receive derivative citizenship under a federal statute at birth abroad are naturalized citizens in the constitutional sense. They are naturalized outside the United States, of course, so the Citizenship Clause does not protect their national citizenship or grant them citizenship of the state wherein they reside.
Naturalization under the 1940 Act and subsequent statutes, however, consists of the conferring of nationality by any means after birth. See, e.g., the 1940 Act, Sec. 101(c) here. Linguistic usage changed after 1868. Consequently, persons like Ted Cruz are naturalized citizens in the constitutional sense but not in the statutory sense.
Respondents in Trump v. Barbara make strong arguments from text and legislative history that the current statutory grant of citizenship to everyone born in the United States and subject to its jurisdiction includes children of parents who are visiting temporarily or are unlawfully present, even if the 1868 Citizenship Clause does not. One cannot simply assume that statutes from 1940 onwards use words the same way that the Fourteenth Amendment did some hundred years earlier—just as one cannot simply assume that the Amendment uses “office . . . under the United States” and “officer of the United States” the same way that the original Constitution did (see, e.g., Josh Blackman’s and Seth Barrett Tillman’s acknowledgement at page 199 here of potential linguistic drift in the eighty years between the ratification of the Constitution and of the Fourteenth Amendment).
Postscript: For more from Larry Solum on linguistic drift, see here and page 812 onward from here.
Posted at 6:18 AM