At the Civitas Institute, Richard Epstein: Trump’s executive order stands on a firmer footing than its vocal critics acknowledge. From the core of the argument:
On the historical front, there were no restrictions on immigration prior to the Civil War so there is no body of law that deals with it. But the problem of the sojourner had to come up frequently, and there is no record of any parent claiming that their children born in the United States were citizens, so on one half the problem, the historical record is clearly against the claim. And as illegality is, if anything, a more serious offense, it seems clear that if that problem had arisen, there is no reason to think that citizenship would have been granted.
Yet given the weak historical record, the overall understanding of Wong Kim Ark depends heavily on the key text of the Citizenship Clause of the Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
That language comes hard on the heels of the Civil Rights Act of 1866 which opens with this declaration:
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery . . .
The 1866 Act thus includes foreigners on the list of persons, along with Indians not taxed. Diplomats are on that list. The Fourteenth Amendment contains no enumeration of excluded parties but does contain the phrase “subject to the jurisdiction thereof” that points to a set of unenumerated exclusions. It is widely agreed that this phrase includes diplomats and their families who owe loyalty to their sovereign. But if that were the only class of cases covered, the exception to citizenship language could have been explicit. And it would be odd in the extreme if there were any reversal on foreigners, especially illegal aliens and sojourners, without some explicit notice of the point. Yet the early case law speaks to these issues against the claim of birthright citizenship. Thus, from the outset, it has never been disputed that members of the Indian tribes within the United States did not obtain citizenship of this clause. Thus, Elk v. Wilkins (1884) held that the Indian plaintiff was not an American citizen because the Citizenship Clause required that he had to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.” Thereafter, it took The Citizens Act of 1924 to make by statute members of Indian tribes citizens of the United States. Members of Indian tribes occupy a complex position under American law, which followed, according to Elk that “an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.” And the same position had also been taken in the well-known Slaughter-House Cases (1872). Speaking about the Citizenship Clause in the wake of Dred Scott v. Sandford (1857), they wrote: “That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Both cases were cited and distinguished in Wong Kim Ark, which is no surprise since the same Supreme Court Justice, Horace Gray, wrote both Elk and Wong Kim Ark.
(Thanks to Jonathan Adler for the pointer.)
It's a forceful essay, as one would expect from Professor Epstein, and I agree that the case against the President's position isn't as self-evident as some suggest. But I'm not persuaded. I'll just note three quick points in response.
(1) Like much of the writing on its side of the issue, the essay does not develop an account of "subject to the jurisdiction [of the United States]" that that explains how that phrase meant something other than simply "subject to the legal authority of the United States." In particular, it does not develop a meaning of the phrase that would include non-citizen permanent residents (held to be covered by the Citizenship Clause in the Wong Kim Ark case) but not non-citizen visitors. (The best effort I've seen in that direction is Andrew Hyman's recent paper.)
(2) The essay does not address the fact (which I don't think is disputed) that under English common law children born in England (other than children of diplomats) were English subjects without regard to the status of the parents. It's true that there was some dispute in the pre-Civil War United States whether that rule carried over completely to U.S. common law, though in my view the majority view was that it did. (It's simply not true that there is "no record" of children of temporary visitors claiming U.S. citizenship in the pre-Civil War era. As I noted in a prior post, this situation was raised and discussed in court cases and commentary.) The longstanding English rule is surely important historical background, and makes it entirely plausible that the Fourteenth Amendment's framers adopted a parallel rule.
(3) In my view the 1866 Civil Rights Act cuts against the narrow view of the Citizenship Clause, not in favor of it. If one reads the Act to exclude from citizenship the children of all foreign citizens, and if the Fourteenth Amendment's framers had wanted that rule, they could have simply carried over the language of the Act. Instead, they chose different language that indicates a more limited exclusion.
Ultimately, I agree with the essay that the issue comes down to the meaning of "subject to the jurisdiction," but as explained in my article on the matter from a while back, I think that phrase had a clear common meaning at the relevant time, and the various historical ambiguities one might raise in opposition aren't enough to overcome the text.
Posted at 6:16 AM