At Law & Liberty, Robert G. Natelson: Cutting the Gordian Knot of Birthright Citizenship. From the introduction:
… The value of the Fourteenth Amendment has made writers reluctant to criticize the measure’s text or its drafters. Candor compels, however, the conclusion that the Fourteenth Amendment is very poorly written.
Much evidence of poor drafting is in the results: Section 2, dealing with congressional apportionment, has proved unworkable. Section 3, the Disqualification Clause, is filled with uncertainties that fueled extensive litigation during the months leading to the 2024 presidential elections. Scholars are still debating the Privileges or Immunities Clause—not merely its specific applications but even its basic purpose. Scholars and jurists continue to debate the amendment’s Due Process Clause as well.
Thus, it is unsurprising that the scope of birthright citizenship also remains unsettled.
One reason for the difficulties in construing the Fourteenth Amendment is that, while the 1866 Civil Rights Act is often cited as an interpretive source for the amendment, the language of the amendment differs appreciably from that of its predecessor statute. One cannot dismiss the legal effect of those changes, as some have, simply because a senator or two thought (inaccurately) that they meant the same thing.
Another source of difficulty is that, unlike the framers of the original Constitution, the amendment’s drafters rarely relied on words and phrases with recoverable historical and legal meanings. Instead, they coined their own phrases (such as “equal protection of the laws”) or—as in the case of the amendment’s Privileges or Immunities Clause—referred to idiosyncratic definitions rather than established ones.
The most important source for the original meaning of a constitutional provision is usually the ratification record. And yet the Fourteenth Amendment’s state ratification records, to the extent that they are published at all, often are unhelpful …
If you try to interpret the phrase “subject to the jurisdiction,” you encounter all these obstacles. This language differs from the corresponding phrase in the Civil Rights Act (“not subject to any foreign power, excluding Indians not taxed”). The traditional legal meaning of “subject to the jurisdiction” (that is, “within the territory governed by”) would render that phrase redundant, and the Senate debates confirm that a new, unprecedented definition was intended. But those debates are very unclear on what that new definition was.
And in conclusion:
Because of the poor drafting of the Fourteenth Amendment, the conflicting statements among those who proposed it, and the lack of useful ratification history, there can be no perfect interpretation of the Citizenship Clause. But there is a best one: A child is born “subject to the jurisdiction” of the United States when his or her parents are in allegiance to the United States. That means they are either US citizens or non-diplomat foreigners from friendly countries—temporarily or permanently, but legally—in the United States.
Rob Natelson is one the best originalist writers; before reaching an originalist conclusion on anything, I check to see if he has addressed it — and I hesitate to disagree, especially on fundamental points. But I disagree here, not just (in part) with the conclusion, but with the premise of the essay.
Parts of the Fourteenth Amendment may use unclear language but the citizenship clause does not. "Subject to the jurisdiction" had a clear legal meaning in pre-Amendment sources. It was not "within the territory governed by" (as Natelson says) but "under the authority of". (My longer discussion is here, Part II.B.) Thus it included people not in sovereign territory but nonetheless under sovereign authority (such as citizens abroad), and it excluded people in sovereign territory with international law immunites such as ambassadors. The proposition that using its traditional legal meaning in the Fourteenth Amendment would render the phrase redundant is simply incorrect.
That is not to say that the phrase's application in all circumstances was clear, and Natelson is right that the drafters talked it through in debates that sometimes seem hard to follow. But he greatly overstates the imprecision of the debates: a strong degree of consensus emerged that (a) tribal Native Americans and foreign diplomats were excluded by the phrase, and (b) children of aliens (other than diplomats) were not.
That said, I agree with much of the essay's discussion of allegiance (which in this context I see as just another way of describing a duty of obedience, and thus sovereign authority). I agree that aliens within sovereign territory have a temporary duty of obedience ("allegiance") to the territorial sovereign and thus are subject to that sovereign's jurisdiction. And I agree that this covers both alien permanent residents and alien visitors (who had an equivalent duty).
The essay loses me at the last step. I don't see its justification for excluding unlawful entrants. They too have a duty to obey the territorial sovereign while present in sovereign territory, and so are subject to the sovereign's jurisdiction.
Posted at 6:21 AM