Thanks to the musings of Pres. Trump, there’s been a flurry of interest in the boundaries of birthright citizenship as set forth in the first sentence of Section 1 of the Fourteenth Amendment. (See, e.g., here, here, and here.) As a textualist, I think the most reasonable interpretation is an expansive one, i.e., that birthright citizenship is not conditional upon the lawfulness of the parents’ presence in the U.S. at the time of birth. And I find it surprising that many of the arguments put forth by scholars who see themselves as originalists (and not textualists) turn on the very subjective intentions of individual members of Congress who debated the proposed amendment.
But, in any event, I have noticed the absence of any reference to what seems to me a very important consideration arguing in favor of the expansive interpretation: In light of U.S. protocol governing the issuance of birth certificates, the expansive interpretation leads to a relatively simple method for determining who is and who is not a U.S. citizen, while the more restrictive interpretation leads to a morass.
This is what the American Bar Association says about birth certificates:
In the United States, there is no national (federal) birth registry, as you might see in other nations … Instead, birth certificates are issued by the states, which are obligated under law to report annual vital statistics data to the federal government. … Within each state, the management of birth certificates might be further decentralized, with data collected and certificates issued at the county or municipal level. Birth data is submitted to the state, county, or municipality by parents, doctors, midwives, and hospitals[.]
If we adopt the view that a newborn is entitled to birthright citizenship only if his or her parents were, at the time of birth, lawfully present in the U.S., how are we to determine (a) whether those of us who were born in the U.S. are bona fide citizens of the U.S., and (b) whether persons who in the future will be born in the U.S. will be bona fide citizens of the U.S.?
I have a birth certificate that proves I was born in the U.S., but I would be hard put to prove that my parents were lawfully present in the U.S. when I was born. And certified copies of their birth certificates would not establish their own U.S. citizenship, because their own parents might not have been lawfully present here when my parents were born. Did I hear someone whisper, “Infinite regress”?
A very similar problem arises with future newborns. Are we going to rely on “parents, doctors, midwives, and hospitals” to make a legal determination as to whether or not newborns’ parents are lawfully present in the U.S.? That would seem to be a recipe for either massive confusion or persistent fraud.
If a birth certificate does not establish U.S. citizenship, what does? We had better stick with birth certificates and the expansive understanding of birthright citizenship.
MICHAEL RAMSEY comments: This is a fair practical point but I think it is not textualist (or originalist). As such, it helps illustrate the difference between textualism/originalism and a principal competitor — pragmatism in the style of Justice Breyer, who I think would like the point a lot. A number of academic commentators say that some versions of originalism/textualism collapse into living constitutionalism but I think that it not true. If the text and original meaning indicated the opposite conclusion, this important pragmatic consideration would not alter my view.
Posted at 6:45 AM