The docket for the birthright citizenship case is available here. The government’s March 19 reply brief is included there. Unfortunately, at page 8 of the reply brief, the latter part of the Citizenship Clause is misquoted: “are citizens of the United States and of the States wherein they reside.” The actual clause contains one less letter: “are citizens of the United States and of the State wherein they reside.”
That letter “s” was a subject of dispute in the Congressional Globe, between Sen. Jacob Howard and Sen. Reverdy Johnson, and is far from trivial. Every letter of the clause was a subject of intense analysis in the 1860s, and we obviously have no right to delete or rewrite any of it outside the Article V amendment procedure.
Removing the “s” indicates (to me at least) that they wanted each beneficiary of the clause to be a resident (i.e. domiciliary) of no more than one state, and also no less than one state.
This reminds me of a sentence that Judge Jack Weinstein once wrote: “The Fourteenth Amendment to the United States Constitution provides that no state may deny equal protection to any person within its jurisdiction.” That’s not at all what the Fourteenth Amendment says, but it perfectly captures U.S. Supreme Court jurisprudence, by omitting the words “of the laws.” Those three deleted words, by the way, are “of the laws” rather than “of its laws,” thus giving Congress a substantive role (e.g. embracing the Civil Rights Act of 1866).
Of course, the Constitution cannot be preserved by mangling it. I urge the Solicitor General to please correct the error in the reply brief (I also made this request in an email dated March 20). Let the chips fall where they may.
Posted at 6:32 AM