Robert E. Mensel (St. Thomas University School of Law) has posted Jurisdiction in Nineteenth Century International Law and its Meaning in the Citizenship Clause of the Fourteenth Amendment (32(2) St. Louis University Public Law Review 329 (2013)) on SSRN. Here is the abstract:
This article addresses the meaning of the citizenship clauses of the Civil Rights Act of 1866 and the Fourteenth Amendment by augmenting the historical record relevant to those clauses. It argues that the key to understanding their meaning lies in the nineteenth century concept of allegiance, the central concept in the international law of citizenship and subjecthood in the nineteenth century. International law, diplomatic history, and international conflict centered around that concept, reveal complexities not fully explored in the previous scholarly literature on the citizenship clauses. Conflicting national claims to the allegiance of subjects and citizens and to the duties they owed to sovereigns caused, in part, the War of 1812. They almost led the U.S. to war with Austria in 1853, and they contributed to tensions with other German states. They flared up again with Great Britain in conflicts over conscription by the United States of British subjects in 1862, and in the Fenian conflicts of 1866. Conflict arose over the extent to which sovereigns whose subjects emigrated to the United States retained jurisdiction over those emigrants based on allegiance to their native sovereigns. This, to which I refer as the jurisdiction arising from allegiance, differed from and to some extent clashed with territorial jurisdiction. It was recognized as a matter of international law as an extraterritorial jurisdiction grounded in the relationship between the subject and the subject's original sovereign. It was vastly more extensive and expansive than its enervated twenty-first century descendant, and so, in a seeming paradox, has remained generally invisible to the modern eye. To understand it is to gain important insights into the meanings underlying both the Act and the Amendment. The citizenship clauses of the Act and the Amendment offered opportunities to relieve this international tension, even while addressing their principal purpose of making citizens of the freedmen. The congressional debates over the Act and Amendment lapsed into incoherence because one group of legislators discussed the proposed Amendment as if the word jurisdiction' therein meant the jurisdiction arising from allegiance. That suggests that they intended to exclude from birthright citizenship the children of aliens, of persons who owed allegiance to some other sovereign at the time of the child's birth in the United States. Their opponents discussed the proposed Amendment as if the word jurisdiction' meant only territorial jurisdiction. That meant that anyone born within the United States would be a citizen by birthright, with only the most trivial exceptions, unless excluded explicitly. The greater weight of language and history favors the conclusion that the word 'jurisdiction" in the Fourteenth Amendment was predominantly understood to mean the jurisdiction arising from allegiance. The weight of the evidence is not overwhelming, however, and the disposition of enormously important modern issues on the basis of that weight, without further research, might well be ill advised.
My views on this are sketched here (part 1), here (part 2), and here (part 3). To briefly summarize, I do not agree that pre-amendment international law was materially unclear on this point or that "jurisdiction" meant "exclusive jurisdiction." Jurisdiction may have meant "jurisdiction arising from allegiance," but temporary visitors to a territory (other than ambassadors and their families, and hostile occupiers) owed temporary allegiance to the territorial sovereign (as well as owing allegiance to the sovereign of the place where they were citizens or subjects). Professor Mensel may be right that some people in the drafting debates used "jurisdiction" to mean "exclusive jurisdiction" but they were simply wrong (and many people used it in the right way).
For an even stronger statement of the contrary view (contrary to me, that is), see the recent post at NRO Instant Citizens by A.J. Delgado, relying on an an earlier discussion of birthright citizenship by Hans von Spakovsky.
Posted at 6:55 AM