Professor Kurt Lash recently suggested that the focus of the birthright citizenship controversy will be on “roughly seven pages in the Congressional Globe…found at Cong. Globe, 39th Cong., 1st Sess., 2890 to 2897.” Agreed, those seven pages are well worth reading, but those seven pages include not just widely divergent opinions, but also a serious misunderstanding of what the proposed text actually was. The Clause’s lead sponsor, Senator Jacob Howard of Michigan, misquoted the proposed Citizenship Clause at page 2869, and did not insist upon the correct version until page 2892. Senator Reverdy Johnson opposed the correction, and disputed that it involved a mere typographical error; Johnson was very likely correct.
True, the correction only involved a single letter, but it greatly changed the Clause’s meaning. Here’s the correction: “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 states wherein they reside.” This meant not just that each person was entitled to no more than one state citizenship in one single state, but furthermore the corrected clause referred to all persons respectively and individually, rather than collectively. Each of the “all persons” covered by the clause was to be resident (i.e. domiciled) in a state, and no domicile would lapse until a new one was established, in accordance with well-established federal law at the time dealing with diversity jurisdiction.
Howard and his allies likely realized during the debate that the “subject to the jurisdiction” language might not be considered sufficient to exclude Indian tribes from automatic U.S. citizenship, and so he casually restored language to exclude not just tribes but anyone at all whose home was outside the states. Whatever Howard’s motive, people in U.S. territories would have to rely instead on common law and/or treaties and/or statutes addressing naturalization and citizenship. Unfortunately, the debate in Congress at the end of May 1866 had become somewhat skewed by the shifting text, so one needs to read with caution.
Congressman James Ashley (a lead framer of the Thirteenth Amendment) sought in 1867 to explicitly include “the territories” in a proposed replacement for the Fourteenth Amendment, but his proposal failed. Even putting aside everything but the Clause’s current text, and putting aside the difference between “state” and “states,” Christopher Langdell correctly argued decades later that residents of territories (both incorporated and unincorporated) were not contemplated by the language of the Citizenship Clause: “if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'" The Clause’s current text was meant to be a package deal of state and federal citizenship, and that’s a very difficult conclusion to avoid, especially with regard to state-born people, but as to everyone else as well. Even if that conclusion only applies to state-born people, it strongly supports the existence of a domicile requirement for birthright U.S. citizenship under the Clause, if one accepts that the last few words of the Clause require domicile for state citizenship. Of course, once a person obtained U.S. citizenship, it would continue to operate wherever he went, including the territories, because the Citizenship Clause is all about conferring citizenship, not about taking it away.
Posted at 6:15 AM