By Paul Gowder

Some argue that the Fourteenth Amendment does not require the U.S. to respect “birthright citizenship,” particularly with respect to the citizenship of the children of foreign nationals born on U.S. soil. This argument is in the news again because Donald Trump has claimed that he has the power to reverse birthright citizenship by executive order.

The argument revolves around the first sentence of the 14th Amendment. Here’s what it says:

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.

According to those whose arguments Trump is relying on, the U.S.-born children of foreign parents (or maybe just of undocumented foreign parents—they’re often not terribly clear) are not “subject to the jurisdiction” of the U.S., so they do not automatically acquire U.S. citizenship from being born in the territory.

That argument is nonsense.

Many dimensions of the argument have already been adequately addressed in accessible form. In particular, for those who adhere to the originalist theory of constitutional interpretation, and want to understand what people who were alive and arguing over the 14th Amendment thought at the time, I recommend reading James Ho’s article in Green Bag on the subject. Incidentally, Ho is a Trump appointee to the Fifth Circuit Court of Appeals and a former clerk for Justice Thomas—his conservative originalist credentials are impeccable. For further analysis of the history of birthright citizenship, its British origins, and history of Supreme Court decisions on the subject, see this brief commentary by John Yoo. Yoo, of course, is the author of the George W. Bush DOJ’s infamous “torture memos”—no social justice warrior he (interestingly, he was also a Thomas clerk).

To add to those sound arguments, I offer one aimed to convince you regardless of your theory of constitutional interpretation. Both “originalists” and “living constitutionalists” start from a common foundation: the text. And I submit that we can apply plain language legal interpretation to conclude that the word “jurisdiction” in the 14th Amendment cannot sustain the interpretation that Trump and his allies want to put on it.

The Legal Meaning of the Word “Jurisdiction”

Let’s start with the conventional legal reading of the word “jurisdiction.” In the law, we use “x is under the jurisdiction of y” to mean, “y has the right to give [some] commands to x.” For example, to say a person is under the personal jurisdiction of some court means that they can be sued in that court—other people are entitled to ask that court to give orders to the person who is subject to the court’s jurisdiction. We also use “jurisdiction” to refer to legislative power—to say that a person or a territory is within the jurisdiction of a legislature means that laws enacted by that legislature are binding over that person or in that territory.

Under this conventional legal meaning of the word “jurisdiction,” there are some narrow but clear categories of people who might be born in the U.S., but nonetheless are not subject to its jurisdiction. The most obvious example is the child of foreign diplomats. The legal status of foreign diplomats is expressed in the Vienna Convention on Diplomatic Relations, which states some long-standing traditions about diplomatic relations, particularly, that diplomats, once their status is voluntarily accepted by the receiving state, are immune from taxes, civil and criminal jurisdiction, search, compelled testimony, arrest and detention.

The second clear example of people who might be born in the U.S. but not subject to its jurisdiction are people who are citizens of sovereigns with competing or concurrent claims to the same territory. This includes members of Native American nations who, at the time of enactment of the Fourteenth Amendment, were not directly subject to U.S. law except by treaty. (This exception no longer applies, as, in 1924, Congress extended citizenship to members of Native American nations. Congress can expand, but not contract, the groups of people entitled to citizenship in the 14th Amendment.)

A leading Supreme Court case from the period shortly after Reconstruction, Ex Parte Crow Dog, interpreted a treaty between the United States and the Sioux nation to not authorize the U.S. to take criminal jurisdiction over a murder committed by a tribal member. The court in that case articulated a (terribly racist) theory of Native American sovereignty according to which the U.S. could enact law for Indian Country, but only as dependent nations in the aid of supporting the latter’s growth to sovereignty:

The pledge to secure to these people, with whom the United States was contracting as a distinct political body, an orderly government by appropriate legislation thereafter to be framed and enacted necessarily implies, having regard to all the circumstances attending the transaction, that among the arts of civilized life which it was the very purpose of all these arrangements to introduce and naturalize among them was the highest and best of all – that of self-government, the regulation by themselves of their own domestic affairs, the maintenance of order and peace among their own members by the administration of their own laws and customs. They were nevertheless to be subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards, subject to a guardian – not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of the laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor, and by education, it was hoped might become a self-supporting and self-governed society.

This is clearly a sui generis legal status created to accommodate the fact that the U.S. had been engaged in military conflicts over control over the territory of the Native American peoples, and wished to half-respect their sovereignty and self-determination while still itself claiming sovereignty over the territory.

Importantly, note that there were long-standing immunities from taxation for members of Native American nations. Article 1, section 2 (providing for apportionment of the House of Representatives) specifically refers to “Indians not taxed” as not to be counted in apportionment. A 2008 report of the staff of the Congressional Joint Committee on Taxation describes a number of continuing tax exemptions even after the conferral of citizenship.

Of a similar status to Native Americans at the time of the 14th Amendment would be military invaders, who, at least in the most basic circumstances (conquest) have competing claims to sovereignty over the territory that is the subject of military conflict. Invading military forces are present on the territory specifically for the purpose of denying the jurisdiction of the invaded government, and certainly do not act as if they are subject to the laws of the invading government; at least some international legal principles are consistent with this (presumably, the repatriation obligation of the Geneva Conventions implies that foreign invaders can’t be put on trial and convicted for treason or murder merely for shooting at one’s own soldiers in combat, for example).

I should note here that I’m a constitutional law professor, not a Native American law or international law specialist; experts in those areas of law might disagree with some of the details above. But the broad outlines can clearly aid us in interpreting the word “jurisdiction” in the Constitution even if some of the details are a little off: we have concrete examples of people who occupy special statuses according to which everyone acknowledges that they’re not subject to the laws of the territory on the same terms as everyone else.

A the Supreme Court explained in U.S. v. Wong Kim Ark, American jus soli citizenship was inherited from the British common law principle, and at British law exactly the same distinctions were made (obviously excepting the unique case of Native Americans). The Court quoted Lord Chief Justice Cockburn in 1869:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

Let’s sum up so far. We have a common legal meaning of the word “jurisdiction”—subjection to the ordinary law of the state. This common legal meaning excludes the categories of people that are historically and logically excluded—children of diplomats, invaders, and, prior to 1924, members of sovereign Native American nations with their own concurrent governmental institutions on the same territory. All of those categories of people have been exempt from at least some and in one case (the diplomatic one) basically all ordinary legal regulation, and all assent to having that status in a strong sense—diplomats intentionally come to represent their own governments, Native Americans claimed their own distinct sovereignty over the land, and invaders at least sometimes invade under something like the color of a denial of the jurisdiction of the country being invaded. None of the people thus described paid ordinary taxes.

And none of those points apply to ordinary immigrants, with or without permission. Documented and undocumented immigrants are held liable to obey all the laws of the host state, do pay taxes, and are not the subject of any kind of common international understanding about legal immunity or hostile claims of sovereignty.

Answering Some Bad Interpretations of “Jurisdiction”

We have a clear, direct, and conceptually well-grounded interpretation of the word “jurisdiction,” and one that manifestly forbids adding new categories of people to the very narrow and discrete set of historical exemptions to birthright citizenship. The argument should stop there. But of course it doesn’t, because the people who think they can abolish birthright citizenship without changing the Constitution have more to say. Here are a few of the things they’ve said, and some brief answers:

Bad interpretation #1: super-jurisdiction, “allegiance.”

Some people have claimed that there’s a sort of ordinary or partial jurisdiction that applies to foreigners present in the territory, and then there’s a “full jurisdiction” or some kind of super-jurisdiction that applies to citizens. Sometimes this is equated to allegiance. For example, John Eastman criticizes the Court in Wong Kim Ark for missing an alleged

distinction between partial, territorial jurisdiction, which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws, and complete political jurisdiction, which requires allegiance to the sovereign as well.

The problem with this argument is that it’s circular. How do we recognize those people who owe “allegiance,” whatever that is? Well, we identify them by… their citizenship. Allegiance is a consequence of citizenship; therefore, this argument clearly begs the question of the citizenship of children of foreign parents born in the U.S. by assuming that they don’t owe allegiance, an assumption that rests on the illicit assumption that they aren’t citizens.

More legal detail doesn’t help the argument here. There are certainly some ways that the United States claims jurisdiction over American citizens that are independent of presence on the territory. Most notoriously, the U.S. exercises broad extraterritorial tax jurisdiction over its own citizens. So maybe we could get a definition of a kind of super-jurisdiction to which citizens are subject out of that. But, again, the problem is that the inference runs the wrong way: first we figure out who citizens are, and then we subject them to extraterritorial tax jurisdiction. Not the other way around.

Incidentally, the Supreme Court in Wong Kim Ark discussed the meaning of allegiance at length. The Court argued—as noted above—that the notion of jus soli citizenship was inherited from British law, and quoted A.V. Dicey, the leading commentator on British constitutional law, to the point that Britain recognized “temporary allegiance” owed by foreigners who happened to be present in the territory. On this account, “allegiance” is just the inverse of the ordinary sense of “jurisdiction”: people over whom the state has jurisdiction (including temporary sojourners) owe allegiance, even if only temporarily.

Bad interpretation #2: not owing allegiance to anyone else

One interpretation of the “allegiance” interpretation of “jurisdiction” specifically points to the status of the individual with respect, not to the U.S., but to other countries. Michael Anton (and Eastman) has argued that “jurisdiction” means “not owing allegiance to anyone else.” As far as I can tell, this means that he’d deny birthright citizenship to those who would also be entitled to citizenship in some other country by descent, on a theory according to which “jurisdiction” entails undivided political loyalty or some such.

Here’s the problem with that: dual citizenship exists, and has existed for a long time. Many contemporary political leaders hold dual citizenship. Ted Cruz did until he renounced his Canadian citizenship for the 2016 election (although Cruz holds his U.S. citizenship by descent not by birth in the territory). Weirdly, notorious British nationalist/Brexiter Boris Johnson was born in the U.S. to British parents, and held dual citizenship until he renounced his American citizenship quite recently.

The Supreme Court has recognized the validity of dual citizenship in Afroyim v. Rusk, which also pointed out that a constitutional amendment was proposed, but rejected, in the 11th Congress which would have stripped American citizenship from those who hold offices in foreign governments. In short, there’s no basis for supposing American citizenship to be inconsistent with citizenship in other countries, and it’s silly to think that you can abolish dual citizenship by inventing new meanings for the word “jurisdiction.”

Moreover, let’s recall that other countries’ citizenship criteria are wholly for those other countries to decide. Suppose the rule was that people born in the U.S. don’t acquire U.S. citizenship if, at the time of their birth, they were citizens of some other country through descent. In such a world, changes in the citizenship laws of other countries would change whether or not someone could be a U.S. citizen.

Imagine if Sweden passed a law providing that any person who had a Swedish great-grandparent automatically acquires Swedish citizenship at birth. On Anton’s argument, would such a law strip American descendants of Swedes of citizenship, at least (?) up until the point that they were old enough to renounce the Swedish citizenship? How can U.S. citizenship depend entirely on changes in someone else’s law?

I also worry that this argument draws on old anti-Semitic tropes. Anti-Semites today occasionally allege that there’s reason to question the loyalty of American Jews because of a misinterpretation of the Law of Return, which entitles Jews to immigrate to Israel, but only confers citizenship on Jews who have chosen to so immigrate, not on every Jew in the world. Anti-Semites misread that law to suppose that American Jews who have never immigrated to Israel nonetheless hold an allegiance to that state. Similar allegations were made about John F. Kennedy’s loyalties due to his Catholicism—that he’d really just be a puppet of the Pope.

Bad interpretation #3: “consent”

This one also shows up in Michael Anton’s op-ed, which claims that citizenship represents a relationship of mutual consent. This is worth quoting:

A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact’s scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. A compact that anyone can join regardless of the wishes of its existing members is not a compact.

There are numerous problems with this.

First, it’s grossly overstated on its own terms: “consented to by all other citizen-members?” I don’t consent to Michael Anton’s citizenship, please deport him.

Since I don’t get to unilaterally expatriate Anton (alas), nor he me (yet?), Anton can’t mean that every individual has to consent to every other individual. So what he has to mean is that the country as a whole has to consent to the criteria for citizenship. That is, Anton’s answer to “I don’t consent to Anton’s citizenship” must be “yes you do, through the laws that say that the children of an American citizen get to be citizens.”

But if that’s what consent means—merely written into the law—then it applies just as well to jus soli as to jus sanguinis. None of us have individually consented to the status of any individual by birth or by descent; in any case, consent will be by the laws. So Anton’s consent argument just reduces to the question, which I’ve already answered, about whether existing law (i.e., the 14th Amendment) requires birthright citizenship (hint: it does).

Eastman has a similar argument. He claims that Wong Kim Ark is

incompatible with the notion of consent that underlay the sovereign’s power over naturalization. What it meant, fundamentally, was that foreign nationals could secure American citizenship for their children merely by giving birth on American soil, whether or not their arrival on America’s shores was legal or illegal, temporary or permanent.

But, again, this applies to any Constitutional grounds for acquiring citizenship. If we’d written jus sanguinis into the Constitution, then it would mean that American nationals could secure American citizenship for their children without anyone’s consent.

Second, as Jacob Levy explained on Twitter (and Hume explained centuries ago), consent to governmental relationships is and has always been a fiction. None of us consent to the boundaries (geographic or interpersonal) of our political communities and never have.

Ultimately, this just isn’t a legal argument about the meaning of the word “jurisdiction.” Consent is distinct from jurisdiction. And so long as the U.S. proposes to enforce, for example, its criminal laws against undocumented immigrants, sojourners on tourist visas, and the like, the U.S. has manifestly “consented” to exercising jurisdiction over those folks. (It might be an interestingly different question if the U.S. conferred on tourists and undocumented immigrants immunity from the laws, but I suspect that we don’t want to make this country an international haven for murder tourism?)

Status inheritance as circular argument

Finally, most of these bad arguments are circular in a much deeper way. Suppose it is true that there is a sense of “jurisdiction” that applies to U.S. citizens but doesn’t apply to foreigners present in the territory. Why should we apply that same jurisdictional status to the children of the foreigners in question? To suppose, without argument, that if the U.S. lacks the relevant sense of jurisdiction over the parents it also lacks it over the children is precisely to assume a large part of the matter in dispute—that the legal status of the parents is passed on to the children. You don’t get to assume that.

To be sure, the narrow exceptions noted above are cases in which legal status does pass from parent to child—the special status of Native American tribes includes a longstanding recognition of the heritability of that status; the special status of diplomats has long been extended to their families (although the text of the Vienna Convention muddies the waters some). But no such principles apply to resident immigrants, documented or not.

In conclusion, jurisdiction means jurisdiction. It is a sad commentary on the state of our constitutional debate in 2018 that I should have had to write so many words in defense of a legal tautology.

Photo Credit: U.S. Air Force