Getting right to the point, the word “United States” in the Citizenship Clause is plural, and refers in an antiquated way to the collection of states. The new proof consists of newspaper articles published throughout the country in October and November 1866 quoting a key endorsement of the pending 14th Amendment: “It declares all persons born or naturalized in the United States, citizens of them and of the state wherein they reside….” (emphasis added). The list of 20 news articles reporting the endorsement by the Times Picayune is at the end of this blog post, with respective dates of publication.
This new evidence confirms what should already be clear from the text and history of the 14th Amendment: it deliberately doesn’t mention federal territories, it was not meant to affect the law of citizenship in the territories, and therefore it is not appropriate or necessary to change its meaning by adding or inferring the words “if any” at the end of the Clause (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United and of the state wherein the reside if any”). Inserting or inferring those words would separate the State Citizenship Subclause from the rest of the Clause, and it would also sever its requirements for U.S. citizenship; those requirements are very significant for the current controversy about birthright citizenship of children born to temporary visitors and to people who have immigrated unlawfully.
This new evidence confirms the literal meaning of the text of the Clause, which changed somewhat during the congressional debates. The Thirteenth Amendment likewise used the antiquated meaning of “United States,” by referring to “the United States, or any place subject to their jurisdiction.”
The word “reside” in the Citizenship Clause means domicile, and a well-known principle at the time was that a person who has a state domicile retains it until he establishes a new one, no matter where he goes, where he lives, or where he calls home. This was all well-known conlaw in 1866, the word “reside” had been interpreted this way in the context of presidential qualifications, and it’s undisputed today, as far as I know. So the Citizenship Clause makes sense when read literally, there is no need to append or infer the words “if any.” As Justice Scalia once wrote, “the soundest legal view seeks to discern literal meaning in context.”
Here are the 20 newspaper articles that I found quoting the Times Picayune’s endorsement of the 14th Amendment (“It declares all persons born or naturalized in the United States, citizens of them and of the state wherein they reside….”):
(1) The Evening Post, New York, NY, October 13, 1866
(2) Baltimore American, Baltimore, Maryland, October 15, 1866
(3) The South-Western, Shreveport, Louisiana, October 17, 1866
(4) Republican Banner, Nashville, Tennessee, October 18, 1866
(5) Wisconsin State Journal, Madison, Wisconsin, October 18, 1866
(6) The Evening Post (ran the story on Oct. 13 as well), New York, NY, October 22, 1866
(7) The New York Tribune, New York, New York, October 23, 1866
(8) Semi-Weekly Wisconsin, Milwaukee, Wisconsin, October 24, 1866
(9) Grand Rapids Eagle, Grand Rapids, Michigan, October 24, 1866
(10) Hartford Courant, Hartford, Connecticut, October 26, 1866
(11) Atchison Champion, Atchison, Kansas, October 28, 1866
(12) The American Republican, West Chester, Pennsylvania, October 30, 1866
(13) Hinds County Gazette. Raymond, Mississippi. November 2, 1866
(14) St. Louis Globe-Democrat, St. Louis, Missouri, November 7, 1866
(15) Memphis Daily Post, Memphis, Tennessee, November 10, 1866
(16) Buffalo Courier Express, Buffalo, New York, November 12, 1866
(17) Courier-Register, Ann Arbor, Michigan, November 15, 1866
(18) The Cleveland Leader, Cleveland, Ohio, November 16, 1866
(19) Flake’s Bulletin, Galveston, Texas, November 19, 1866
(20) Appeal Democrat, Marysville, California, November 27, 1866
Posted at 6:07 AM